Case 1:18-cv-01034 Document 1 Filed 05/01/18 Page 1 of 49

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARKELLE SETH,

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Old North Carolina Highway 75

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Butner, N.C. 27509

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) CIVIL ACTION NO:

Plaintiff,

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vs.

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The DISTRICT OF COLUMBIA,

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Karl A. Racine, Attorney General

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Office of the Attorney General

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441 4th Street, N.W., Suite 630 South

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Washington, D.C. 20001

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The D.C. DEPARTMENT ON DISABILITY )

SERVICES,

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250 E Street, S.W.

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Washington, D.C. 20024, and

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ANDREW REESE, in his

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official capacity as Director of the D.C.

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Department on Disability Services,

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250 E Street, S.W.

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Washington, D.C. 20024

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Defendants.

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COMPLAINT

Markelle Seth, by and through his attorneys, brings this Complaint against the District of

Columbia; the D.C. Department on Disability Services (“DDS”); and Andrew Reese, in his

official capacity as Director of DDS for violating Title II of the Americans with Disabilities Act

of 1990, 42 U.S.C. § 12131 et seq. (“ADA”), Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794(a) (“Section 504”), the D.C. Human Rights Act of 1997, D.C. Code § 2-1401.01 et

seq. (“DCHRA”), and the Citizens with Intellectual Disabilities Civil Rights Restoration Act of

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2015, D.C. Code § 7-1301.01 et seq. (“CIDA”).
I. INTRODUCTION 1. Markelle Seth (“Markelle”) is a D.C. resident with intellectual disability1 currently
in federal prison despite not having been convicted of any crime, in violation of his right under
state and federal law to receive services and treatment in the most integrated setting appropriate to his needs. The District of Columbia, by and through DDS 2, the agency responsible for
providing services to D.C. citizens with intellectual and developmental disabilities, has
abandoned Markelle—a young man found by a judge of this Court to have “the auditory
comprehension of a first-grade student”—leaving him to languish in a federal prison in North
Carolina.
2. Markelle has now endured over three years of confinement in local and federal
1 Plaintiff uses the term “intellectual disability” in place of “mental retardation” except when directly quoting others or referencing names of organizations. Although the latter term appears in some evidence, case law, and statutory language, it is offensive to many persons and has been replaced by more sensitive and appropriate terminolo gy. See Rosa’s Law, Pub. L. No. 111-256, 124 Stat. 2643 (changing entries in the U.S. Code from “mental retardation” to “intellectual disability”); Hall v. Florida, 134 S. Ct. 1986, 1990 (2014) (“This opinion uses the term ‘intellectual disability’ to describe the identical phenomenon. This change in terminology is approved and used in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders, one of the basic texts used by psychiatrists and other experts. ” (citations omitted)); Robert L. Schalock et al., The Renaming of Mental Retardation: Understanding the Change to the Term Intellectual Disability, 45 Intellectual & Developmental Disabilities 116 (2007). This complaint also uses person-first language, describing the person before the disability, consistent with D.C. Code § 2-632 (the People First Respectful Language Modernization Act of 2006).
2 All references to DDS refer to DDS, its Director, Andrew Reese, and the District of Columbia. DDS is acting on behalf of the District of Columbia as the government agency charged with providing services for D.C. citizens with intellectual and developmental disabilities.
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jails and prisons, despite Defendants’ legal obligation and explicit promise to provide services and treatment to Markelle via civil commitment pursuant to the D.C. statute that governs situations exactly like this one, and corresponding federal law obligations to accommodate Markelle’s disability in the most integrated setting appropriate.
3. Indeed, DDS’s own retained expert stated that Markelle can and should be returned to the District, where he can be placed in a supervisory program without posing a danger to himself or others. DDS—ignoring its own expert’s recommendation—has reneged on its legal commitment to do so, despite having both the legal obligation and practical capac ity to do so. As such, Markelle must be removed from the dangerous, segregated, damaging, and nonhabilitative environment of federal prison and returned to his home state.
4. Because of his disability, Markelle is entitled, under federal and D.C. law, to receive from Defendants disability-related services in the most integrated setting appropriate for him in his home community. Defendants provide these services to other D.C. residents and they can be provided consistent with the requirements of public safety. Defendants’ actions violate the ADA, Section 504, DCHRA, and CIDA, and should be enjoined.
5. In late 2014, when Markelle was twenty years old, he was charged in this Court with sexual offenses involving children who lived in his household. The Court recognized that Markelle is an individual with intellectual disability and ordered a series of evaluations to determine his competency to stand trial. While those evaluations were pending, Markelle, through his counsel, applied to DDS for disability-related services. That request sought to ensure that, if Markelle were found by the court to be incompetent to stand trial and unlikely to be restorable to competency, he could be considered for appropriate services in the most integrated setting appropriate in his community via the District of Columbia’s civil commitment
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mechanism, rather than remain in prison without having been convicted of a crime. 6. In 2015, DDS began a comprehensive evaluation of Markelle. Based on his well-
documented history of disability, he was found eligible for services. The agency identified and referred him to an existing DDS service provider, which accepted him and began to develop a program to provide him with services and treatment in the community. DDS later retained an expert to determine if the recommended program could properly meet Markelle’s needs while protecting the safety and security of the community. During that process, which extended through 2016, DDS repeatedly and unequivocally informed Markelle and his counsel, in writing and orally, that it planned to commence civil commitment proceedings in order to provide him with community-based services3 through a selected provider under D.C. law, if and when this Court were to conclude that Markelle was incompetent to stand trial on the pending criminal charges.
7. DDS identified an appropriate structure and plan for comprehensive habilitative services in the community that would meet both Markelle’s needs and the needs and interests of the community. DDS’s expert issued a series of detailed reports containing a comprehensive plan to both serve and supervise Markelle outside of correctional facilities and within existing programs with which DDS has contracted for services for other individuals with intellectual
3 CIDA defines “community-based services” as “non-residential specialized or generic services for the evaluation, care and habilitation of persons with intellectual disabilities, in a community setting, directed toward the intellectual, social, personal, physical, emotional or economic development of a person with an intellectual disability. Such services shall include, but not be limited to, diagnosis, evaluation, treatment, day care, training, education, sheltered employment, recreation, counseling of the person with an intellectual disability and his or her family, protective and other social and socio- legal services, information and referral, and transportation to assure delivery of services to persons of all ages who have intellectual disabilities.” D.C. Code § 7-1301.03(5). 4

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disability charged with sexual or other serious offenses. 8. In late 2016, based on multiple evaluations described below, this Court found that
Markelle was not competent to stand trial due to his intellectual disability and that there was no reasonable likelihood that he would ever become competent to stand trial. At that point, DDS should have, as it had promised to do pursuant to D.C. law, begun civil commitment proceedings in the D.C. Superior Court.
9. Instead, DDS reneged on its prior explicit commitments, ignored the recommendations of its own expert, and abdicated its legal responsibility to Markelle. As a result, Markelle is currently being held in a federal prison in North Carolina even though he has not been and cannot be convicted of the crime for which he was charged. A petition for federal civil commitment has been filed in the Eastern District of North Carolina which, if granted, will result in indefinite incarceration of Markelle in the Federal Bureau of Prisons (“BOP”).
10. During his federal incarceration, Markelle has cycled back and forth between the prison’s general population and confinement in near 24-hour-per-day administrative or disciplinary “segregation” because his intellectual disability makes it challenging for him to follow institutional rules, leading authorities to frequently discipline him by placing him in solitary confinement.
11. DDS’s continued failure to act by initiating civil commitment in the District of Columbia where he could receive the habilitative services to which he is entitled, leaves Markelle facing the prospect of federal civil commitment—including regular solitary confinement—in a federal prison in North Carolina for the foreseeable future, if not for the rest of his life.
12. Authorities for the BOP have stated that they would send Markelle back to the 5

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District of Columbia, as they are required to do by statute, if the appropriate local agency were prepared to take responsibility for his care and treatment.
13. DDS has both a mandate and the capacity to provide Markelle with the services and supports he needs to be successful in the community. DDS’s own retained expert has recommended it do so in this case, and it has created specific plans for the care and custody of Markelle. However, due to DDS’s refusal to act and its dereliction of its statutory mandate, Markelle remains far from home, in a federal prison, cut off from those who care about him, and deprived of services in the most integrated setting appropriate, to which he is entitled. His civil rights are being violated, his mental and physical health are being damaged, and indeed, his safety and future are at risk.
14. Upon information and belief, the District of Columbia regularly provides community-based supervisory services to D.C. residents who are found not competent to stand trial due to mental illness through the Department of Behavioral Health, but is failing to do so for those with intellectual disability, such as Markelle. D.C. law provides dual mechanisms to civilly commit citizens who are found not competent to stand trial for one of two reasons: mental illness or intellectual disability. The District freely serves the former group, citizens found not competent to stand trial with a primary diagnosis of mental illness, pursuant to the Ervin Act, Mental Health Civil Commitment Act of 2002, D.C. Code § 21–501 et seq. (“Ervin Act”), which charges the District’s Department of Behavioral Health with this responsibility. The Ervin Act’s counterpart, CIDA, similarly charges DDS with providing services for citizens with intellectual disability found not competent to stand trial due to their intellectual disability. Despite having both the resources to serve these citizens and a statutory mandate to do so, DDS has failed to act for Markelle.
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15. DDS is expressly tasked with serving individuals in Markelle’s situation, even in cases where a person presents a risk to themselves or others. Indeed, CIDA specifically provides that only individuals who present the highest level of risk (defendants charged with a crime of violence or a sex offense) meet the criteria for civil commitment. The statute thus charges DDS with responsibility for a challenging population. It has no basis to avoid this mandate in Markelle’s case, particularly when DDS’s expert has concluded that DDS can serve Markelle in an integrated fashion in the community with appropriate supports and without undue risk.
16. Finally, the remedy sought here is appropriate because c ivil commitment is primarily a state, not a federal, function. Federal civil commitment exists only as a last resort for dangerous individuals for whom no state provision for care and custody exists. D.C. civil commitment allows for the provision of person-centered services and supports in the community, while federal civil commitment is akin to a lifelong prison sentence. Moreover, because DDS is able to care for and supervise Markelle, its failure to do so violates federal and D.C. law, and it cannot abdicate its responsibility to the federal government.
II. PARTIES 17. Plaintiff Markelle Seth is an individual with intellectual disability currently confined to federal custody at Federal Medical Center (“FMC”) Butner after being found incompetent to stand trial and not capable of being returned to competency. Markelle is a resident of the District of Columbia. 18. Defendant District of Columbia is the jurisdiction that oversees DDS, a city government agency. 19. Defendant DDS is the D.C. government agency responsible for providing information, approval, placement, oversight and coordination, and funding for services to people
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with intellectual disability in the District. 20. Defendant Andrew Reese is the Director of DDS. In this role, Defendant Reese
oversees the administration of the agency. 21. Whenever Plaintiff uses the word “Defendants” in this Complaint, he means all
Defendants, their agents, employees, and all those acting in concert with them or at their direction.
III. JURISDICTION AND VENUE 22. This Court has general jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal question jurisdiction). This court has supplemental jurisdiction to consider sta te law claims under 28 U.S.C. § 1367. 23. Venue is proper in this Court pursuant to 28 U.S.C. § 1391.
IV. FACTS A. Markelle Has Experienced Instability, Trauma, and Intellectual Disability.
24. Markelle was born on November 29, 1993, and raised in the District. He was removed from his mother’s care through neglect proceedings commenced in D.C. Superior Court when he was three months old. When child protective services took custody of Markelle, he weighed less than he did at his birth. He was then placed in St. Ann’s Infant Home, an orphanage, rather than a family home. Markelle spent time in two separate foster care homes before he was placed with his father in 1997, at the age of three.
25. Markelle experienced childhood seizures from infancy until he was about six years old. Markelle had significant delays in reaching developmental milestones, including not being able to sit up on his own until age four and not being able to crawl until age five. He also
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had significant speech delays and was provided with speech and physical therapy. 26. Markelle also experienced significant challenges in school. He was identified as
having a disability and placed in special education classes during elementary school. He was bullied by other students because of his disability. At some point during his attendance in a D.C. Public School, Markelle received an Individualized Education Program (“IEP”) that focused on supporting his learning activities across a broad array of areas, including math, reading, and writing, providing speech and language services, and behavioral supports.
27. For middle school and high school, Markelle was placed in Options Public Charter School (“Options”), a notoriously dysfunctional, segregated special education school in the District. In twelfth grade, Markelle’s standardized testing scores reflected math skills at a fourth-grade level, reading skills at a second-grade level, and writing skills at a first-grade level.
28. The school deemed Markelle unable to earn a high school diploma and placed him on the certificate track. Although the federal Individuals with Disabilities Education Act entitled him to receive a full complement of special education services until he turned twentytwo, Options encouraged Markelle to leave school at age eighteen. This action deprived him of his full special educational entitlement, as Markelle stopped receiving all services when his time at Options ended.
B. Markelle Is an Individual with Intellectual Disability. 29. As defined by the American Association on Intellectual and Developmental
Disabilities (“AAIDD”) and adopted by the District of Columbia, the definition of intellectual
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disability has three prongs: 1) significantly impaired intellectual functioning; 4 2) adaptive
behavior deficits in conceptual, social, and/or practical skills ; and 3) onset of the disability before
age eighteen. AAIDD, Definition of Intellectual Disability, http://aaidd.org/intellectualdisability/definition; see D.C. Code § 7-1301.03(2), (15A).
30. DDS expressly found on April 17, 2015, that Markelle meets all three criteria for
intellectual disability and is eligible for its services.
31. Markelle receives federal Supplemental Security Income benefits based on his
disability, and he has been evaluated and found eligible for services as an adult with intellectual disability by Defendant DDS. Multiple evaluations over many years have confirmed this
diagnosis. In finding him incompetent for trial, see infra paras. 37-40, a judge of this Court found that Markelle’s full scale IQ “hovers somewhere between fifty-three and sixty- five,
landing at the bottom one percent of his age group regardless of where in that range it falls.”5 Exhibit 1, Magistrate Judge Harvey’s Report and Recommendation at 33, United States
4 An IQ of approximately 70 – 75 or lower demonstrates significant impairment of intellectual functioning. See AAIDD, Intellectual Disability: Definition, Classification, and System of Supports (11th ed. 2010) (Classification Manual); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013). The U.S. Supreme Court has rejected arbitrary cutoffs for IQ scores in making the intellectual disability determination, stating that “intellectual disability is a condition, not a number. Courts must recognize, as does the medical community, that the IQ test is imprecise,” Hall, 134 S. Ct. at 2001, and the standard error of measurement “means that an individual’s score is best understood as a range of scores on either side of the recorded score. ” Id. at 1995. Markelle’s IQ score range of 53 – 65, see supra para. 31, unequivocally meets the first prong of the definition of intellectual disability.
5 Magistrate Judge Harvey’s conclusions were adopted without objection from either party by Chief Judge Beryl Howell on December 22, 2016. Order, United States v. Seth, No. 14-mj608 (BAH/GMH) (D.D.C. Dec. 22, 2016) (Dkt 77). 10

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v. Seth, No. 14-mj-608 (BAH/GMH) (D.D.C. Dec. 1, 2016) (Dkt 75) (hereinafter “Magistrate’s Report”).
C. Markelle Was Arrested and Charged but This Court Determined Markelle is Not Competent to Stand Trial. 32. In October 2014, Markelle was arrested and later charged in the U.S. District
Court for the District of Columbia with one count of production of child pornography for allegedly using his cell phone to videotape two children in his household engaging in sexual behavior with him, in violation of 18 U.S.C. § 2251(a).
33. Shortly following his arrest, competency proceedings were initiated due to Markelle’s obvious intellectual disability. Although a criminal complaint was filed in federal district court, the government ultimately did not seek an indictment.
34. Markelle was sent to a Federal Bureau of Prisons facility in New York for the competency evaluation. The BOP psychologist concluded he was incompetent to stand trial, which neither the defense nor prosecutio n disputed. In accordance with the federal statute, after being returned to the District, Markelle was next sent to a BOP facility in Butner, North Carolina, for an opinion on whether he could be “restored” to competence.
35. This series of transitions from the District to New York, back to the District, and then on to North Carolina was extremely hard for Markelle, who faces challenges to functioning successfully in a correctional environment under the best of circumstances. As described more fully herein, he spent virtually the entire period of the two BOP competency evaluations in solitary confinement.
36. Markelle was also physically harmed while in the District’s custody during the interval between those evaluations. During a search of his cell at the D.C. Jail, Markelle
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protested and became upset when correctional officers touched his belongings. The officers responded with physical force and fractured his skull, which required sutures. Following intervention from counsel, Markelle was moved to the Correctional Treatment Center. There he was provided special housing on a medical unit with older and physically unwell pr isoners in an effort to keep him safe.
37. After a four- month incarceration at FMC Butner during which the BOP undertook to restore Markelle to competence, he was returned to the District. Following a contested evidentiary hearing, Magistrate Judge G. Michael Harvey decided that Markelle “lacks the capacity to understand, think through, and answer even the most basic questions about the legal process and the case against him.” Magistrate’s Report at 37. The Court concluded that due to “an incurable deficiency in oral comprehension and mental processing, ” Markelle is “incapable of being restored to competency for the foreseeable future.” Id. at 39-40.
38. The court found Markelle “has consistently demonstrated that he has the auditory comprehension of a first grade student” and that “having [him] stand trial would be akin to putting a seven-year-old in the courtroom and expecting them to understand the language, ideas, and theories likely to be discussed.” Id. at 39. During the hearing, Markelle was engrossed in coloring books, sticker books, word searches, and dot-to-dot activities. The Court noted that Markelle at times would “cover[] his ears as if to prevent himself from hearing testimony that he did not like, [behavior] that suggests he lacks a rational understanding of how to contribute to his defense and conduct himself in a courtroom.” Id. at 26, 38.
39. After a two-day evidentiary hearing, during which both sides presented evidence and experts, Magistrate Judge Harvey issued a Report and Recommendation on December 1, 2016, finding Markelle incompetent to stand trial and not restorable to competency in the
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foreseeable future.
40. On December 22, 2016, Chief Judge Beryl Howell issued an order adopting Magistrate Judge Harvey’s Report and Recommendation. Chief Judge Howell also remanded Markelle into the Attorney General of the United States’ custody pursuant to 18 U.S.C. § 4246, the federal civil commitment statute, for purposes of psychological examination to determine if Markelle’s release would create a risk of substantial bodily injury or harm to another person. Markelle was transferred back to FMC Butner. Order, Seth, No. 14-mj-608 (BAH/GMH) (Dec. 22, 2016) (Dkt 77).
41. Markelle remains at FMC Butner pending his 18 U.S.C. § 4246 civil commitment hearing.
D. DDS Initially Agreed to Place Markelle in a Community-Based Program and Took Significant Steps in Furtherance of That Commitment. 42. On February 13, 2015, prior to his first competency hearing, Markelle’s defense
lawyers applied to DDS for support and services because incarceration is an inappropriate and harmful placement for Markelle. DDS’s then-Director, Laura Nuss, soon acknowledged Markelle’s eligibility for services and the agency’s duty to provide them to him through the civil commitment process.
43. On March 12, 2015, Director Nuss confirmed that a favorable eligibility determination was forthcoming and that DDS would proceed with civil commitment. She wrote, “I encourage you to continue working with DDS and DDS/DDA6 staff identified in the emails
6 DDS is composed of two administrations that are tasked with overseeing and coordinating services for residents with disabilities through a network of private and non-profit providers: 13

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below to develop a person-centered approach to supporting MS [Markelle Seth] in the context of
the court proceedings and the formal commitment process. I am copying our General Counsel to
ensure that we move forward together on MS’s behalf.”
44. On March 13, 2015, DDS’s General Counsel, Mark Back, likewise acknowledged
that DDS planned to move for civil commitment of Markelle in order to remove him from
federal prison, writing in an email, “we will need to work together to get a suitable Jackson finding7 in order to move forward with commitment in the Habilitation Court.”
45. On March 18, 2015, DDS formally determined that Markelle was eligible for its
services based on his intellectual disability, and documented its decision in a letter dated March
20, 2015.
46. In April 2015, DDS sent a letter to Markelle stating that as soon as his
Developmental Disabilities Administration (“DDA”) and Rehabilitation Services Administration (“RSA”). 7 A Jackson finding is a reference to a court’s finding, pursuant to Jackson v. Indiana, 406 U.S. 715 (1972), that a defendant incompetent to stand trial, and unlikely to become competent, cannot be confined indefinitely. In Jackson, the Supreme Court held that a defendant committed solely on the basis of incompetency “cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. ” Id. at 738. Prior to this ruling, virtually all states allowed the automatic and indefinite commitment of incompetent defendants. The Court ruled that holding defendant Jackson (who had intellectual disability and was deaf) to a “more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses ” deprived him of equal protection. Id. at 716. The Court also concluded that, “[a]t the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed. ” Id. at 738. Thus, the ruling identified the necessity of either initiating civil commitment or releasing a defendant whose competence is not likely to be restored. Id.
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competence status was resolved, DDS would initiate civil commitment proceedings in the District. In its April 17, 2015 letter, Musu Fofana, a Program Manager with DDS, acknowledged that:
a. Markelle is an individual with intellectual disability who is eligible to receive DDS services;
b. Markelle was determined to be incompetent to stand trial for the abovementioned crimes; and
c. “…once [DDS has] a Jackson finding from the federal court, DDS/DDA will work with your attorneys and the federal authorities in filing for civil commitment in the Mental Health and Habilitation Branch of the D.C. Superior Court’s Family Division.” (emphasis added).
47. On April 23, 2015, two DDS case managers met with Markelle at the District’s Correctional Treatment Facility to work on the person-centered plan that is part of DDS’s process of developing an Individual Support Plan (“ISP”). DDS policy requires that an ISP: “1. [s]upports the person to achieve individually defined outcomes and goals in the most integrated community setting appropriate to his or her needs; 2. [s]upports the person to exercise positive control over their life; 3. [e]nsures delivery of services in a manner reflecting personal preferences and choices and respecting what is important to and for the person; and 4. [s]upports the person’s health and well-being.”8
48. On July 13, 2015, DDS’s then-Director Nuss and other DDS staff, including thenDeputy Director Holly Morrison and the agency’s General Counsel, Mark Back, met to discuss
8 Policy: Person Centered Planning Process and Individual Support Plans at 3, 2017-DDAPOL001, Dep’t on Disability Servs. (2017), https://dds.dc.gov/sites/default/files/dc/sites/dds/ publication/attachments/2017-DDA-POL001%20Person%20Centered%20Planning%20 Process%20and%20Individual%20Support%20Plans%20Policy.pdf. 15

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Markelle’s case. At that meeting, Director Nuss explained that DDS is accustomed to managing a wide range of behavioral challenges with its clients and it was prepared and equipped to address any issues presented by Markelle.
49. Following that meeting, on August 6, 2015, DDS Deputy Director Morrison notified Markelle’s counsel by email that DDS had identified a service provider, Benchmark Human Services (“Benchmark”), to serve Markelle and that DDS would be conducting a formal assessment to determine the parameters of a plan for Markelle. DDS explained that Benchmark had a history of working successfully with complex and challenging DDS clients and had a proven track record of successfully serving in the community individuals with intellectual and other developmental disabilities whose behavior had brought them into contact with the criminal justice system, including individuals who presented dangerous sexual behaviors.
50. On August 12, 2015, DDS Deputy Director Morrison emailed Benchmark’s President for Residential Services and asked him to arrange an assessment of Markelle.
51. From August 2015 through early 2017, DDS worked on developing a plan for Markelle’s transition from the criminal justice system into the District’s civil commitment system, which was expected to take place as soon as the issue of competency was resolved.
52. DDS, through Benchmark, its contractor, retained an expert, Dr. Matthew Mason, a licensed Psychologist and Board-Certified Behavior Analyst and an expert in developmental disabilities, to evaluate Markelle and decide on the components of a service plan that “will both meet his needs and also account for concerns regarding the safety of others that are raised by the allegations [in the criminal case].” Exhibit 2, Draft Description of Services for Mr. Markelle Seth at 1, Benchmark Human Services (Feb. 12, 2016) (hereinafter “Benchmark Service Plan”). Dr. Mason has particular expertise in working with individuals with intellectual disability who
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present sexual behavior problems. 53. After interviewing Markelle and reviewing his history, Dr. Mason concluded that
Markelle would be “responsive to and appropriate for placement in a highly structured and supervised [minimum of one-to-one, round-the-clock supervision] community-based residential program,” and determined specifically “that a more restrictive setting would not be necessary. ” It was DDS’s expert’s professional opinion, based on years of experience addressing similar concerns with respect to individuals with intellectual and developmental disabilities, that Markelle’s behavioral issues, whether sexual or otherwise, could be readily and safely managed in a community setting. Dr. Mason noted that “Benchmark has safely and successfully served individuals similar to and more behaviorally challenging than Mr. Seth in community settings with appropriate structure, staffing and programming. ” Id.
54. Dr. Mason’s plan outlined various safety mechanisms that he recommended to be employed in a community residence for Markelle, but concluded that the most important feature of a plan would be that it have a high degree of engagement for Markelle: “From Benchmark’s experience working with individuals with profiles similar to Mr. Seth, it is clear that while the above safety precautions are necessary and appropriate, the most essential keys to a successful and safe experience for Mr. Seth will be engagement in activities that are meaningful to him, ensuring staff assigned to supervise him are well-trained and supported, providing high levels of supervision, as well as continuous oversight and evaluation of program services. Building with Mr. Seth’s active involvement a home and a way of life that he is invested in will be the surest way to achieve success and meet the needs of both Mr. Seth and his community. ” Id. at 4.
55. Dr. Mason’s proposal also recommended that Markelle be provided with other services available in the community, including, in particular, sexuality education tailored to the
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needs of a person with his disability that is available through the DDA Health Initiative. The leadership of that program met with Markelle and indicated their ability and willingness to provide him services.
56. Following Dr. Mason’s proposal, planning meetings to discuss services for Markelle and Dr. Mason’s recommendations were held in early 2015 at DDS ’s offices and included DDS, Dr. Mason, and Markelle’s counsel. When Markelle’s competency hearing in federal court was posted from January to May 2016, DDS determined that remaining planning for services should also be postponed, to be resumed once there was a suitable Jackson finding. This determination was made on December 22, 2016, when Judge Howell adopted Judge Harvey’s findings and held that Markelle could not restored to competence in the foreseeable future. Order, Seth, No. 14- mj-608 (BAH/GMH) (Dec. 22, 2016) (Dkt 77). At this point, Defendant DDS was expected to proceed with filing for civil commitment and finalizing a habilitation plan for Markelle. However, in the interim period, Defendant Reese had replaced Laura Nuss as Director of DDS. Instead of proceeding with a petition for civil commitment as planned, Defendant Reese requested that a new risk assessment of Markelle be prepared.
57. Consequently, because no civil commitment proceedings were initiated in the District, Markelle was sent to FMC Butner where evaluations began to assess him for federal civil commitment.
58. Defendant Reese retained Dr. Mason to prepare a new risk assessment of Markelle. O n February 24, 2017, Dr. Mason issued a comprehensive report, finding that Markelle “can be safely and successfully supported in the community” in a “highly structured, closely supervised community based program” that would “provide for community safety while ensuring that Markelle has every opportunity to succeed and to avoid re-offending.”
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59. Dr. Mason addressed Markelle’s behavior while he has been held in custody in correctional facilities. Dr. Mason found that “while numerous and frequent, Markelle’s problematic behaviors appeared relatively low in intensity and brief in duration. ” He noted that prison staff described Markelle’s behavioral outbursts as “immature and impulsive” and that Markelle responded well and generally quickly to “de-escalation strategies during these outbursts” and demonstrated remorse after he calmed down. Dr. Mason noted that Markelle frequently reached out to others to assist with problem-solving and calming, which demonstrated “his interest in establishing supportive alliances.”
60. Dr. Mason reported that correctional facility staff described Markelle as “collaborative and outgoing” but also required a high degree of monitoring given his difficulty understanding and adhering to rules. The correctional facility staff agreed that Markelle had difficulty following rules “not because he was a hardened criminal or oppositional in nature, but rather because he was immature, impulsive, and had a strong desire for immediate gratification. ” Staff described Markelle as “a likeable person with a sense of humor and playfulness. ”
61. Dr. Mason further reported that Markelle was not preoccupied with children or “deviant” sexuality. Prison staff noted that “although he was vulnerable to being taken advantage of by other inmates, he was not likely to try to take advantage of others, to attempt to develop relationships for the purposes of gaining sexual favor, or to otherwise act in a sexually predatory manner.”
62. Dr. Mason analyzed the results from the administration of a number of risk assessment instruments, including instruments designed to assess the risk of sexual violence. Dr. Mason found that Markelle’s cognitive, behavioral and emotional characteristics were not unusual, but instead are common in individuals with intellectual disability. Dr. Mason concluded
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that Markelle’s prior and current behavior, including his sexual misconduct, was not based on an “underlying psychopathic condition.” Rather, such behaviors were “a function of inappropriate supervision” after having been placed in a position of caring for children, and “more opportunistic than predatory in nature, and influenced by his limitations in cognition and selfmanagement.” Dr. Mason found that Markelle’s sexual abuse charges stemmed, in part, “from a lack of supervision by responsive adults and from having been affirmatively placed in a position of caring for children.”
63. Dr. Mason recognized that Markelle would “need significant mentoring and supervision to function effectively in the community, especially with regards to following accepted norms of social behavior and engaging in safe sexual practices. ” He found that Markelle did not appear to be “a flight risk . . . and his desire for social engagement, approval and need for supportive relationships are important compensatory strengths. ”
64. Dr. Mason recommended the following criteria for a community-based placement for Markelle:
a. Markelle should be placed in a highly structured community-based residential program with “at least 1:1 staffing on a 24- hour basis” and with full and consistent daily schedule of employment and other meaningful activities. Staff assigned to Markelle should be thoroughly trained on his strengths and weaknesses, on the nature of his offenses, and on “non-negotiable safety practices.” Markelle should “not live or work in areas with unsupervised access to children” and his behavior in the community must be monitored to prevent any unsupervised contact with minors.
b. Markelle should reside in a lower density neighborhood that promotes effective monitoring of exits.
c. DDS should develop comprehensive plans for Markelle that include behavioral management, crisis management, supportive psychiatric care, intensive counseling, psychosexual assessment and related sexual education, 20

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and self-management plans for Markelle.
d. Staff working with Markelle should be trained on the importance of using positive programming strategies to help address Markelle’s social deficits and challenges in problem-solving that stem from his intellectual disability.
65. Dr. Mason stated that community supports for Markelle were appropriate and likely to be effective:
Mr. Seth has demonstrated the capacity for establishing appropriate emotional ties, empathy and a desire to please others; these traits are indicators that he will be able to develop lasting, useful relationships with community-based staff and other supportive adults in his life. Based upon my extensive experience with many individuals with a variety of sexual behavioral problems, it is my opinion that Mr. Seth will respond well to supervision and supports. Mr. Seth’s sociability, eagerness to please and willingness to create alliances with responsible adults are highly indicative that he will succeed if provided with appropriately designed supportive living and work environments that incorporate effective supervision.
66. Dr. Mason’s recommendations, prepared at the request of Defendant DDS, were endorsed by a subsequent evaluation prepared by a second expert, Dr. Stephen Hart, who was retained by Markelle’s lawyers. Dr. Hart is a psychologist and research scientist who helped develop several of the risk assessment tools used by BOP and other experts who evaluated Markelle.
67. In his June 18, 2017 risk assessment evaluation and report, which was provided to DDS, Dr. Hart agreed with Dr. Mason’s conclusion that Markelle’s sexual misconduct was not consistent with an underlying psychopathic condition. Rather, Dr. Hart concluded that Markelle’s actions were more likely attributable to “restricted opportunity for sexual contact with age appropriate peers, along with deficiencies in judgment and impulse control” and which were “exacerbated by a lack of appropriate intervention and supervision. ”
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68. Dr. Hart also endorsed the risk management plans proposed by Dr. Mason, noting
Dr. Mason’s expertise in intellectual disability and praising the individua lly tailored and
workable nature of Dr. Mason’s recommendations. He found that, consistent with best practices:
. . . the plans were based on a comprehensive assessment of risk factors; an individualized, integrative case formulation; identification of plausible scenarios; and attention to strategic, tactical, and logistical considerations. The plans also reflect a deep understanding of intellectual disability in general and the needs of Mr. Seth more specifically. Second, the management plans are remarkable or noteworthy for being feasible (i.e. available, accessible, and affordable), attentive to Mr. Seth’s unique risk, need, and responsivity factors (i.e. appropriate), and consented to by Mr. Seth (acceptable).
69. Dr. Hart also discussed Markelle’s history of behavior problems while held in
various correctional facilities, noting that they were minor, connected to Markelle ’s disability,
and a result of an inappropriate environment and a lack of trained staff. According to Dr. Hart,
Markelle’s institutional history involved:
Incidents that were primarily reactive in nature and minor in seriousness. Examples include minor rule violations (e.g. wearing the wrong clothes, not sharing a communal television with others) and problems dealing with interpersonal stress or conflict (e.g. rude or disruptive behavior when interacting with staff or fellow residents). Such incidents are expected when dealing with people with intellectual disability, especially when they are placed in closed living environments that lack the programs and trained staff to deal with their special needs (e.g., through contingency management, verbal de-escalation, and so forth).
E. DDS Identified a Community-Based Provider Ready to Accept Markelle and Suitable for His and the Community’s Needs. 70. While Markelle’s competency proceedings were pending, Benchmark ceased
operations in the District of Columbia. Wholistic Services, Inc. (“Wholistic”)—a DDS-certified,
D.C.-based provider of supportive services to individuals with intellectual and developmental
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disabilities, including supported living, behavioral supports, and supported employment—was therefore asked to assess Markelle for placement in its program. Wholistic conducted a comprehensive assessment of Markelle, and expressed its willingness and ability to provide an appropriate program to Markelle. In February 2017, Miatta Thomas, Chief Administrative Officer of Wholistic, informed DDS that Wholistic could provide services to Markelle to successfully support him and eventually help transition him into the community.
71. In August 2017, after DDS canceled planned group meetings to discuss Markelle’s program, Wholistic provided DDS with a detailed Proposal for Transition, Safety and Support Services for Markelle (“Wholistic Proposal”), see Exhibit 3. Wholistic characterized its Proposal as a “draft” but also indicated that it was ready to be put it into final form, subject to review by DDS. In its Proposal, Wholistic stated that:
a. “Wholistic has safely and successfully served people similar to and more behaviorally challenging than Markelle in community settings with appropriate structure, staffing and programming.” Wholistic Proposal at 7.
b. Wholistic has “a proven track record of successfully serving people with intellectual and other developmental disabilities who have been involved in the criminal justice system, in particular people who have a history of dangerous sexual behaviors.” Id. at 6.
c. Wholistic had taken into consideration the seriousness of the charges brought against Markelle and the risk that insufficient supervision could present. Id. at 5.
72. Wholistic expressed confidence that it could account for this risk, noting that Markelle would be subject to “a high level of supervision 24/7 ” in order to protect both Markelle and members of the community. Id. at 9.
73. Wholistic’s Proposal addresses each of the recommendations and criteria identified by DDS’s expert, Dr. Mason, for a successful community-based placement for
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Markelle. Specifically, Wholistic proposed:
a. Training its staff related to Markelle’s specific safety and crisis management needs, including training in essential strategies for supporting individuals with intellectual disability, in order to address Markelle’s needs, as well as strategies to manage the risks that someone with Markelle’s history and disabilities could pose to the community. See id. at 5-6, 8-9.
b. Placing Markelle in highly structured residential setting with at least 1:1 staffing on a 24- hour basis. Wholistic recognizes that increased staffing levels, such as a 2:1 supervision, may be necessary for up to the first year, and is ready to provide that level of supervision, if necessary. Wholistic notes that a residential placement with no more than one other housemate would be best for Markelle, given his history of multiple placements (foster care, homelessness) and his difficulties in institutional se ttings interacting with others. See id. at 7-8.
c. Providing vocational services to Markelle, including a thorough evaluation of his skills and interests, and assistance with resume building, interview skills, and completing job applications. Wholistic indicates that if Markelle gains employment, staff would continue 1:1 supervision of him, and would coach Markelle and his employer and co-workers to ensure the safety of Markelle and others. See id.
d. Training staff to use a mentoring model to supervise Markelle, including demonstrating desired behaviors, using non-directive coaching strategies, and other methods, all within a framework of non-negotiable safety rules and limits. Wholistic states that Markelle would be fully informed of the supervision and safety requirements of his placement, and the consequences to him for violating those rules, including the potential for loss of community placement and liberty, and potentially incarceration. See id. at 8.
e. Developing a behavioral health and other professional services plan for Markelle. Wholistic identified a specific university-based program in Washington, D.C., with extensive expertise in the assessment and training related to sexual behavior, a psychiatrist to perform a psychiatric consultation for Markelle, and a psychologist to address Markelle’s individual therapeutic needs and issues, including his history of abuse, the development of appropriate relationships, improving his self- management skills, and building his self-esteem. Wholistic also proposes retaining a registered nurse to 24

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monitor Markelle’s medical care needs on a weekly basis. See id. at 9. 74. As of the date of this filing, Wholistic remains willing and able to provide the recommended services to Markelle.
F. DDS Reneged on Its Commitment and Obligation to Provide Markelle with Community-Based Supports and Services Pursuant to D.C.’s Civil Commitment Statute. 75. On April 22, 2016, Ms. Nuss departed DDS and Defendant Reese took over
leadership of the agency as its Director. 76. Ignoring both the recommendations of its own expert, Dr. Mason, and the
willingness of Wholistic to serve Markelle in the community with the appropriate level of supports and services, DDS has inexplicably refused to move forward with Markelle’s civil commitment. Upon information and belief, DDS has decided not to provide community-based services and supports to Markelle via the civil commitment mechanism pursuant to its obligations under D.C. Code § 7-1301.01 et seq.
77. As a result of DDS’s inaction, on April 14, 2017, FMC Butner’s warden filed a certificate of mental disease in Markelle’s federal civil commitment case in the Eastern District of North Carolina, noting that “suitable arrangements for State custody are not available.”
78. DDS’s reversal of position and its apparent current plan to leave Markelle in federal custody indefinitely are inconsistent with the findings by Dr. Mason—DDS’s own expert—that Markelle can and should return to the District and can be placed in a communitybased program without posing a danger to himself or others. DDS’s reversal is also inconsistent with its prior successful efforts to secure Markelle’s acceptance into community-based programming under the strict requirements Dr. Mason recommended. DDS has ignored its own
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medical evaluation and risk assessment, and reneged on its responsibility even after its due diligence and planning unequivocally demonstrated the appropriateness and feasibility of serving Markelle in the community.
G. Markelle Struggles Within a Correctional Setting and Is Frequently Subjected to Solitary Confinement Due to His Intellectual Disability. 79. Markelle has been held at FMC Butner on two separate occasions. He was
transferred to FMC Butner for the first time in April 2015 and spent four months there while the BOP endeavored to render him competent for trial, following which he was returned to the District of Columbia in September 2015. In January 2017, after this Court concluded that Markelle is neither competent to stand trial nor restorable to competency in the foreseeable future, Markelle was returned to FMC Butner, where he remains today.
80. Because FMC Butner is a correctional institution, Markelle, and other individuals like him who are awaiting civil commitment proceedings or who have already been civilly committed, are held alongside incarcerated inmates who have been convicted and are serving their prison sentences in the facility, as well as inmates who are held in pretrial detention.
81. Because FMC Butner is a correctional institution, its inmates are expected to follow numerous rigid rules that govern every aspect of their daily lives. When inmates fail to follow institution rules, they are subjected to disciplinary measures that can include loss of privileges and/or disciplinary or administrative segregation in separate segregation areas.
82. Administrative and disciplinary segregation are essentially forms of solitary confinement. While in segregation, inmates are confined to their cells, except for short periods of time when they are allowed to leave their cells for recreation. Their interactions with other inmates and staff are limited.
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83. As a result of his intellectual disability, Markelle has struggled to comply with FMC Butner’s rules, which do not contemplate the needs of individuals with intellectual and developmental disabilities. He has been disciplined for not following orders from correctional officers and staff, for talking back or being disrespectful to correctional officers and staff, and for singing loudly while listening to music using headphones. Markelle has also been disciplined for carrying a pop-tart back to his cell from the dining hall, failing to tuck in his clothes, wearing the wrong uniform shirt, refusing to buckle his belt, wearing earbuds in the prison hallways, and other similar behavior. Markelle has also gotten into several conflicts with other inmates at FMC Butner as a result of, for example, disputes over which television shows to watch when he has wanted to watch cartoons.
84. When Markelle has violated FMC Butner’s rules, he has experienced a range of disciplinary consequences, including losing his phone privileges for months at a time, confiscation of his MP3 player and radio, and suspension of his commissary privileges.
85. Of utmost concern, Markelle has been placed in segregation on numero us occasions, even for apparently minor infractions, such as speaking disrespectfully to an officer. When confined in this manner, Markelle is locked alone in a cell for a minimum of twenty-two to twenty-three hours a day. When the institution is short-staffed he is not afforded the opportunity to leave the cell where he is confined at all. Markelle was in segregation for virtually the entirety of the four-month period of his restoration evaluation. See Magistrate’s Report at 13.
86. For an individual with an intellectual disability, such as Markelle, solitary confinement is recognized as being a particularly toxic setting that not only fails to provide equal
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access to programs, services and activities, but can cause additional harm.9 87. FMC Butner does not have the resources or staff necessary to meet Markelle’s
needs as an individual with intellectual disability and does not provide specific habilitation programming geared toward people with intellectual disability. As DDS’s own expert, Dr. Mason, made clear, Markelle has had difficulty following institutional rules and interacting properly with staff and other inmates because of challenges related to his intellectual disability.
88. Within this highly restrictive setting, Markelle is unable to maintain consistent communications with his legal team, as his legal calls are not permitted with regularity and are routinely monitored by BOP staff. Legal calls at FMC Butner occur in Markelle’s counselor’s office. Markelle’s counselor listens to his legal calls and intercedes to reprimand Markelle for discussing issues with his attorneys that she feels are “non- legal” including discussions regarding his pending disciplinary hearings and his resulting confinement in the Solitary Housing Unit.
89. Dr. Mason recommended positive, non-directive programming strategies for Markelle. Specifically, he noted: “[T]he most essential keys to a successful and safe experience for Mr. Seth will be engagement in activities that are meaningful to him, ensuring staff assigned to supervise him are well- trained and supported, providing high levels of supervision, as well as continuous oversight and evaluation of program services. Building with Mr. Seth’s active involvement a home and a way of life that he is invested in will be the surest way to achieve success and meet the needs of both Mr. Seth and his community. ” Benchmark Service Plan at 4.
9 In a landmark decision, the court in Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995) concluded that for vulnerable prisoners, including those with intellectual disability, preexisting mental illness and brain damage, “placing them in the SHU [Solitary Housing Unit] is the mental equivalent of putting an asthmatic in a place with little air to breathe.” Id. at 1265. 28

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This type of skills acquisition and behavior support is not present at FMC Butner and is not possible to achieve in such a setting.
90. In addition to the conditions of his confinement within the institution, Markelle’s confinement at FMC Butner has placed him far away from his family and circle of support in the District of Columbia. Because Markelle’s family, and in particular his father, with whom he maintains a close relationship, is financially unable to travel from the District to North Carolina, they are unable to see and interact with Markelle and provide him with additional support that could help lead to his re-integration into the community.
91. In sum, FMC Butner cannot provide the community-based and personalized services to which Markelle is legally entitled.
H. DDS Is Able to Serve Similarly Situated Individuals with Intellectual Disability and Associated Behavioral Issues Yet Has Abdicated Its Responsibility to Markelle. 92. As a result of the Evans v. Bowser, No. 1:76-cv-00293 (D.D.C.) class action
lawsuit filed in 1976 to remedy the constitutionally deficient level of care, treatment, education, and training provided to residents of Forest Haven—the District’s former institution for people with intellectual and developmental disabilities—the institution closed in 1991 and the D.C. government10 was charged with developing a quality support services delivery system for D.C. residents with intellectual and developmental disabilities. Since 1991, the District has provided residents with intellectual and developmental disabilities services in small, community-based programs. DDS’s mission statement notes that it seeks to “provide innovative high quality services that enable people with disabilities to lead meaningful and productive lives as vital
10 The agency responsible for this work at the time was known as the Mental Retardation and Developmental Disabilities Administration. In 2006, this agency was replaced with DDS. 29

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members of their families, schools, workplaces and communities in every neighborhood in the District of Columbia.” DDS Mission Statement, Dep’t on Disability Servs., https://dds.dc.gov/page/dds- mission-statement. DDS states that it is committed to personcentered service planning and delivery and community integration.
93. Upon information and belief, DDS provides community-based services to other individuals who have faced similar criminal charges and whose behavioral challenges and corresponding risks are at least equivalent to those posed by Markelle’s intellectual disability and associated behavioral issues. As noted above, DDS’s own expert has found that DDS can treat and serve Markelle, and DDS committed to doing so following the Jackson determination.
94. Upon information and belief, DDS has the capacity to plan and monitor individualized services for Markelle and has contracted with providers who are capable of executing DDS’s plans. It is impossible to guarantee outcomes, but the provider network in the District of Columbia, and DDS in particular, are well-prepared to address, and have a track record of serving, individuals who present risks similar to and greater than Markelle.
95. Upon information and belief, through the Department of Behavioral Health, Defendant District of Columbia regularly provides community-based services to similarly situated D.C. residents with mental illness, but is refusing to serve Markelle.
96. DDS’s failure to accept responsibility flies in the face of D.C. Code § 7-1304.01, which, as its legislative history makes clear, was designed precisely for situations like Markelle’s. As such, there is no legitimate reason for DDS not to file a civil commitment petition in Markelle’s case.
97. As a result of Defendants’ refusal to act, Markelle continues to remain in federal custody at FMC Butner. Unless DDS acts, Markelle will remain incarcerated indefinitely
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because of his disability, in a harmful setting in which he is subjected to solitary confinement, deprivation of privileges, and other disciplinary measures despite not having been convicted of any crime.
V. LEGAL FRAMEWORK A. By Failing to Provide Markelle with Services and Treatment in the Most Integrated
Setting Appropriate, Defendants Have Violated Title II of the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973.
98. Congress enacted the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”), to provide a clear and comprehensive mandate for the elimination of discrimination against people with disabilities and to provide strong and consistent standards for identifying and addressing such discrimination. Id. § 12101(b)(1), (2). The ADA is based on Congress’s findings that: 1) “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem, ” id. § 12101(a)(2); 2) “individuals with disabilities continually encounter various forms of discrimination, including . . . relegation to lesser services, programs, activities, benefits, jobs, or other opportunities,” id. § 12101(a)(5); and 3) “discrimination against individuals with disabilities persists in such critical areas as . . . institutionalization . . . and access to public services.” Id. § 12101(a)(3).
99. The ADA defines a “disability” as “a physical or mental impairment that substantially limits one or more major life activities.” Id. § 12102(1)(A). The ADA defines “major life activities” as including “learning, reading, concentrating, thinking, [and] communicating,” as well as major bodily functions, such as brain function. Id. § 12102(2)(A), (B). The regulations implementing Title II of the ADA make clear that inte llectual disability
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“will virtually always be found to impose a substantial limitation on a major life activity. ” 28 C.F.R. § 35.108(d)(2)(ii), (iii)(C). Markelle has a disability as defined in the ADA, and is entitled to the protections of the ADA.
100. Title II of the ADA provides that “[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Title II applies to all services, programs, and activities of public entities. See id. Defendants are public entities and must comply with Title II of the ADA.
101. Congress directed the Attorney General of the United States to promulgate regulations enforcing Title II of the ADA and to provide guidance on their content. Id. § 12134. The regulations specify that it is unlawful discrimination for a public entity to: 1) “[a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others, ” 28 C.F.R. § 35.130(b)(1)(ii); 2) “[p]rovide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others, ” id. § 35.130(b)(1)(iii); 3) fail to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities, ” id. § 35.130(d) (“the integration mandate”), which the Attorney General has defined as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible,” id. pt. 35, App. B; or 4) “utilize criteria or methods of administration . . . [t]hat have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.” Id. § 35.130(b)(3)(ii).
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102. The Supreme Court has held that discrimination prohibited under Title II of the ADA includes the unnecessary isolation or segregation of persons with disabilities. In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the Court held that public entities must provide community-based services to persons with disabilities when (1) such services are appropriate; (2) the affected persons do not oppose community-based treatment; and (3) community-based services can be reasonably accommodated, taking into account the resources available to the public entity and the needs of others who are receiving disability services from the entity. Id. at 607. The Supreme Court explained that its holding “reflects two evident judgments.” Id. at 600. First, “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable of or unworthy of participating in community life.” Id. Second, “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. ” Id. at 601.
103. Congress specifically authorized individuals who believe their Title II ADA rights are being violated to bring an action in a United States District Court. 42 U.S.C. § 12133 (incorporating the remedies and enforcement procedures available under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., which includes a private right of action).
104. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“Section 504”) provides: “No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .” Id.
105. An individual with a disability is any person who has a disability as defined in § 33

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12102 of the ADA, as described above. Id. § 705. Defendants’ programs, services, and activities receive Federal financial assistance. Accordingly, Defendants are subject to the nondiscrimination requirements of Section 504.
106. Congress directed that Title II of the ADA be interpreted in a manner consistent with Section 504, 42 U.S.C. §§ 12134(b), 12201(a), and the courts have followed this directive. See, e.g., Yeskey v. Pa. Dep’t of Corr., 118 F.3d 168, 170 (3d Cir. 1997), aff’d sub nom. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998).
B. By Failing to Provide Markelle with Services and Treatment in the Most Integrated Setting Appropriate, Defendants Have Violated the D.C. Human Rights Act of 1977. 107. The D.C. Human Rights Act of 1977, D.C. Code § 2-1401.01 et seq. (“DCHRA”),
defines “disability” identically to the ADA. Id. § 2-1401.02(5A). 108. Discriminating on the basis of disability is proscribed by the DCHRA. Id. § 2-
1401.01. The DCHRA provides: “Every individual shall have an equal opportunity to participate fully in the economic, cultural and intellectual life of the District and to have an equal opportunity to participate in all aspects of life, including, but not limited to, in employment, in places of public accommodation, resort or amusement, in educational institutions, in public service, and in housing and commercial space accommodations.” Id. § 2-1402.01.
109. The DCHRA further notes, “it shall be an unlawful discriminatory practice for a District government agency or office to limit or refuse to provide any facility, service, program, or benefit to any individual on the basis of an individual’s actual or perceived . . . disability.” Id. § 2-1402.73.
110. The statute provides for a private right of action and damages. Id. § 2-1403.16. “The D.C. courts have always looked to cases from the federal courts in interpreting the D.C.
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Human Rights Act, and have followed, wherever applicable, precedents from the federal courts’ treatment of comparable civil rights statutes. ” Paralyzed Veterans of Am. v. Ellerbe Becket Architects & Engineers, P.C., 950 F. Supp. 393, 405 (D.D.C. 1996).
C. By Failing to Petition for Markelle’s Civil Commitment in Order to Provide Him with Services and Treatment in the Most Integrated Setting Appropriate, Defendants Have Violated D.C.’s Citizens with Intellectual Disabilities Civil Rights Restoration Act of 2015. 111. In 2002, D.C.’s Citizens with Intellectual Disabilities Civil Rights Restoration Act
of 2015, D.C. Code § 7-1301.01 et seq. (“CIDA”), was amended to establish a civil commitment procedure for individuals with intellectual disability who have been charged with a violent crime or sex offense but found incompetent to stand trial. 11 The D.C. Council Committee Report for CIDA stated that the legislation “is modeled after the Ervin Act provisions that govern civil commitment in the context of individuals who have been found incompetent to stand trial due to mental illness,” since the Ervin Act does not address those who are found incompetent due to intellectual disability. See Kathy Patterson, Chairperson, Committee on the Judiciary, Bill 14616, the “Civil Commitment of Citizens with Mental Retardation Amendment Act of 2002,” at 4, Council of the District of Columbia (June 3, 2002), http://lims.dccouncil.us/Download/329/B140616-COMMITTEEREPORT.pdf (“D.C. Council Committee Report”).
112. The Ervin Act, originally passed in 1964, was updated in 2002 to ensure that individuals with mental illness receive treatment in the least restrictive, most integrated setting
11 The Disability Services Reform Amendment Act of 2018, D.C. Act 22-277, which amends CIDA, was enacted on March 12, 2018. This bill eliminates civil commitment for most individuals with intellectual disability moving forward, but keeps intact the current procedures regarding individuals like Markelle who are found incompetent to stand trial in criminal cases.
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appropriate. The Act was also amended to provide for regular review of an individual’s commitment to ensure restrictions are lifted as soon as possible. The District’s Department of Behavioral Health is responsible for providing services to D.C. residents with mental illness who are subject to the Ervin Act.
113. CIDA was amended after two separate incidents in which individuals with intellectual disability were charged with violent offenses, were deemed incompetent to stand trial without the possibility of restoration of competence, and were not eligible for civil commitment under the Ervin Act because they did not have mental illness. Both individuals continue to receive services successfully in the community from DDS.
114. The CIDA legislation is the result of many years of efforts by the D.C. Council, in conjunction with advocates from the D.C. disability and civil rights communities, to ensure that individuals in Markelle’s situation receive needed supports and services in the least restrictive setting 12 while simultaneously employing safeguards to preserve public safety in a way that provides the greatest possible protection of their civil rights.13
12 While CIDA defines “commitment” as “placement in a facility, pursuant to a court order . . . of an individual found incompetent in a criminal case at the request of the District,” D.C. Code § 7-1301.03(4), the statute defines “facility” as encompassing community-based living arrangements. See id. § 7-1301.03(13). Further, the recently enacted amendment to CIDA, D.C. Act 22-277, which has been signed by Mayor Muriel Bowser and is projected to become law on or about May 12, 2018, removes the term “facility” altogether from the statute’s definition of commitment: “‘Commitment’ means services and supports from the D.C. Department on Disability Services, pursuant to court order . . . for a person found incompetent in a criminal case at the request of the District. ”
13 In the 2002 D.C. Council Committee Report for the law, Chairperson of the Committee on the Judiciary Kathy Patterson noted that the new iteration of the bill “emphasize[s] a civil rather than criminal approach to the issue. ” D.C. Council Committee Report at 9. The 36

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i. Purpose of D.C.’s Citizens with Intellectual Disabilities Act
115. The law’s Statement of Purpose requires that any treatment, supports, and
services must be provided in the least restrictive setting in a manner that is individually tailored
and geared toward maximal community integration:
. . . the design and delivery of care and habilitation services for persons with intellectual disabilities shall be directed by the principles of normalization, and therefore: (1) Community-based services and residential facilities that are least restrictive to the personal liberty of the individual shall be established for persons with intellectual disability at each stage of life development; (2) The use of institutionalization shall be abated to the greatest extent possible; (3) Whenever care in an institution or residential facility is required, it shall be in the least restrictive setting; and (4) Individuals placed in institutions shall be transferred to community or home environments whenever possible, consistent with professional diagnoses and recommendations.
D.C. Code § 7-1301.02(b).
116. CIDA defines “least restrictive alternative” as “that living and/or habilitation
arrangement which least inhibits an individual’s independence and right to liberty. It shall
include, but not be limited to, arrangements which move an individual from: (A) More to less
structured living; (B) Larger to smaller facilities; (C) Larger to smaller living units; (D) Group to
Report recounts the testimony of various community members, which included sex educators and civil and disability rights advocacy groups. The input from the collective testimony included the following points that were later incorporated into the statute: 1) intellectual disability is not causally related to violence; 2) though the individual’s disability does not change over time, individuals with intellectual disability benefit from sex education and other behavioral supports that teach about appropriate sexual conduct; 3) the legislation should not be enacted without a study of similar legislation throughout the country and a close examination of best practices, such as in the states of Washington and Vermont; 4) the legislation must focus on plans that target behavior and provide appropriate treatment options; and 5) any treatment plans created by the legislation should be individualized and tailored to the needs of the specific person.
37

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individual residences; (E) Segregated from the community to integrated with community living and programming; and/or (F) Dependent to independe nt living.” Id. § 7-1301.03(16); see also id. § 7-1305.03.
117. CIDA further provides that an individual subject to civil commitment under the statute “shall be provided with the least restrictive and most normal living conditions possible consistent with preventing the individual from causing injury to others . . . . Individuals shall be taught skills that help them learn how to effectively utilize their environment and how to make choices necessary for daily living and . . . refrain from committing crimes of violence or sex offenses.” Id. § 7-1305.02. The statute also provides for an annual court hearing to review the individual’s commitment in the event it is no longer appropriate, id. § 7-1304.11(a-1), a private right of action, id. § 7-1305.13, and damages, id. § 7-1305.14. Sovereign immunity does not bar an action under CIDA. Id. § 7-1305.13(c).
ii. CIDA’s Application to Individuals with Intellectual Disability Charged with a Crime
118. In line with CIDA’s requirements, all of DDS’s services for individuals who are civilly committed are provided in the least restrictive setting. Although Markelle would require intensive, 24-hour supports, civil commitment under D.C. law would allow him to receive these services in his home community in the most integrated setting appropriate for his needs.
119. CIDA provides that in the instance of an individual found incompetent in a criminal case, “the District shall have no more than 30 days from the date on which the finding is made that the individual is incompetent and not likely to gain competence in the foreseeable future in which to file a petition . . . . For extraordinary cause shown, the Court may extend the
38

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period of time within which the petition must be filed. ”14 Id. § 7-1303.12a(a). Markelle was found incompetent by this court in December 2016.
120. Absent any extraordinary cause, DDS has refused to petition for Markelle’s commitment for over a year and has indicated that it has no plans to do so in the foreseeable future. Since the time that DDS committed to serving Markelle in April 2015, it appointed a new director and subsequently has inexplicably refused to take responsibility for Markelle. Unless DDS acts, Markelle will remain incarcerated indefinitely in a setting in which he is subjected to solitary confinement, deprivation of privileges, and other disciplinary measures due to his disability in a prison setting that is inappropriate for the supports and treatment he requires.
D. Federal Civil Commitment Is Inappropriate Here. 121. Although civil commitment of incompetent defendants is typically a state
function, as outlined above, federal law, 18 U.S.C. § 4246, provides that a federally charged defendant who is found incompetent to stand trial may be civilly committed by the federal government if, and only if, (1) he is found dangerous as a result of a mental condition, and (2) his home state refuses to take responsibility for his care and custody. Federal civil commitment results in confinement by the BOP in a federal prison hospital until the prison authorities
14 The statute governing federal civil commitment, 18 U.S.C. § 4246(d), see discussion infra Section VI, also contemplates that the process of getting the state to take responsibility for a defendant found incompetent may be an ongoing process, noting that the Attorney General will have custody over the individual until the state “will assume such responsibility” and requiring the Attorney General to “continue periodically to exert all reasonable efforts to cause such a State to assume such responsibility for the person’s custody, care, and treatment.” 18 U.S.C. § 4246(d).
39

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determine that it is safe to release the individual.
122. Federal law recognizes the strong preference for returning an individual to his/her
own state for commitment. 18 U.S.C. § 4246(d) states: The Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment. The Attorney General shall make all reasonable efforts to cause such a State to assume such responsibility. If, notwithstanding such efforts, neither such State will assume such responsibility, the Attorney General shall hospitalize the person for treatment in a suitable facility, until (1) such a State will assume such responsibility; or (2) the person’s mental condition is such that his release, or his conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment would not create a substantial risk of bodily injury to another person or serious damage to property of another; whichever is earlier. The Attorney General shall continue periodically to exert all reasonable efforts to cause such a State to assume such responsibility for the person’s custody, care, and treatment.
123. The BOP’s evaluation concluded that Markelle “is currently suffering from a
mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to the property of another. ” Because DDS has failed
to petition for Markelle’s commitment, the BOP concluded that “suitable arrangements for State
custody are not available,” even though, as described above, they clearly are if only DDS would
act to provide them. As a result, a petition for federal civil commitment was filed in the Eastern
District of North Carolina on April 28, 2017. 124. The circumstances here weigh overwhelmingly in favor of Markelle’s civil
commitment in the District: (1) DDS has authority and responsibility to petition for Markelle’s
civil commitment to provide him with supports and services in the most integrated setting
appropriate in his home state pursuant to CIDA; (2) DDS’s own expert agrees that Markelle can
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and should be served in the community; and (3) a community-based provider in the District of Columbia with the capacity to do so has offered to serve Markelle.
125. By refusing to fulfill their obligation to petition for custody of Markelle and provide services to him in the most integrated setting appropriate to his needs, Defendants, the District of Columbia, DDS, and its Director, Andrew Reese, have caused Marke lle to remain in federal prison at FMC Butner—often in solitary confinement—in violation of Title II of the ADA, 42 U.S.C. § 12131 et seq., Section 504, 29 U.S.C. § 794(a), the DCHRA, D.C. Code § 21401.01 et seq., and CIDA, D.C. Code § 7-1301.01 et seq. Every day that Defendants fail to fulfill their legal obligation to provide community-based services to Markelle in his home state is another day that he is forced to languish in federal prison indefinitely without having been convicted of a crime.
126. CIDA was passed as part of an intentional and deliberative effort to place responsibility on DDS for the exact scenario faced by Markelle. The law plainly requires DDS to provide Markelle with services in the most integrated setting appropriate to his needs in a way that simultaneously ensures public safety and the protection of his civil rights. Defendants’ failure to fulfill their obligation under this law guarantees Markelle’s continued placement in federal prison in violation of the ADA, Section 504, DCHRA, and CIDA.
VI. CAUSES OF ACTION COUNT 1: VIOLATION OF THE AMERICANS WITH DISABILITIES ACT 127. The allegations of paragraphs 1 to 126 above are incorporated herein. 128. Markelle is a “qualified individual with a disability” as defined in the ADA, 42 U.S.C. § 12131(2); see id. § 12102(1). Markelle’s intellectual disability substantially limits multiple major life activities, such as caring for oneself, learning, reading, concentrating and
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thinking, and DDS has determined him to be eligible for disability services. Moreover, with appropriately tailored support systems such as those described above, Markelle can be served in the community without posing a threat to the health or safety of others.
129. Defendant DDS is a public entity subject to the ADA. Id. § 12131(1). 130. By refusing to follow through on its promise to civilly commit Markelle and take him into custody, DDS is depriving him the benefits of its programs, activities, and services in violation of Title II of the ADA, id. §12132. 131. Specifically, Defendants are, on the basis of disability, excluding Markelle from participation in or denying him the benefits of the services, programs, or activities of the District, or subjecting him to discrimination, including by:
(i) Denying Markelle the opportunity to participate in or benefit from an aid, benefit, or service;
(ii) Affording Markelle an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Providing Markelle with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Providing different or separate aids, benefits, or services to Markelle than are provided to others unless such action is necessary to provide Markelle with aids, benefits, or services that are as effective as those provided to others;
(v) Otherwise limiting Markelle in the enjoyment of any right, privilege, 42

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advantage, or opportunity enjoyed by others receiving the aid, benefit, or service. See 28 C.F.R. § 35.130(a), (b)(1).
132. Upon information and belief, the District of Columbia regularly provides community-based supervisory services to D.C. residents who are found not competent to stand trial due to mental illness through the Department of Behavioral Health, but is failing to do so for those with intellectual disability, such as Markelle. Despite having both the resources to serve these citizens and a statutory mandate to do so, DDS has failed to act for Markelle.
133. In addition, Defendants are denying Markelle the opportunity to participate in services, programs, or activities that are not separate or different from those offered to others, id. § 35.130(b)(2), and utilizing criteria or methods of administration—
(i) That have the effect of subjecting Markelle to discrimination on the basis of disability; or
(ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to Markelle.
See id. § 35.130(b)(3)(i)-(ii).
134. DDS is also imposing or applying “eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying [a] service, program, or activity,” without showing that “such criteria [are] necessary for the provision of the service, program, or activity being offered. ” Id. § 35.130(b)(8).
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135. Finally, DDS is failing to “administer services, programs, and activities in the most integrated setting appropriate to [Markelle’s] needs.” See id. § 35.130(d); id. § 35.152(b)(2); see also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).
136. In Olmstead, the Court determined “that, under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id. at 607.
137. As in Olmstead, numerous professionals, including DDS’s own professionals, who have treated and evaluated Markelle, have concluded that he can and should be served in the community, Markelle wants to return to and be treated in the District, and there are communitybased options available to him that can both meet his needs and provide for the community’s security.
138. By refusing to serve Markelle, DDS leaves him in a federal prison facility—often in segregated housing—that is unable to provide the necessary treatment, safe facilities, and integrated services required by the ADA. See supra paras. 98-106.
139. Defendants have failed to comply with the nondiscrimination requirements of the ADA and the integration mandate of the ADA, based on Markelle’s disability.
140. Community-based services for Markelle can be reasonably accommodated, taking into account the resources available to the District and the needs of others who are receiving disability services from the District. Defendants’ actions in violation of the ADA were intentional.
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141. As a result of Defendants’ violations of the ADA, Markelle has suffered harm. 142. Unless enjoined by the Court, Defendants will continue to violate the ADA rights of Markelle.
COUNT 2: VIOLATION OF SECTION 504 OF THE REHABILITATION ACT 143. The allegations of paragraphs 1 to 142 above are incorporated herein. 144. Markelle is a “qualified individual with a disability” as defined in Section 504, 29
U.S.C. § 794, et seq., Markelle’s intellectual disability substantially limits multiple major life activities, such as caring for oneself, learning, reading, concentrating and thinking, and DDS has determined him to be eligible for disability services.
145. Discrimination on the basis of disability is prohibited by Section 504: “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .” Id. § 794(a).
146. DDS is a recipient of Federal financial assistance. 147. As set forth above, DDS has discriminated against Markelle because of his intellectual disability. In doing so, they have denied him the benefits of its federally funded programs. 148. DDS’s actions in refusing to serve Markelle are intentional and Markelle has suffered harm as a result.
COUNT 3: VIOLATION OF THE D.C. HUMAN RIGHTS ACT 149. The allegations of paragraphs 1 to 148 above are incorporated herein.
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150. Markelle is an individual with a disability under the DCHRA, which defines “disability” identically to the ADA. D.C. Code § 2-1401.02(5A).
151. It is a violation of the DCHRA to discriminate on the basis of disability. Id. § 21401.01. The DCHRA provides: “Every individual shall have an equal opportunity to participate fully in the economic, cultural and intellectual life of the District and to have an equal opportunity to participate in all aspects of life, including, but not limited to, in employment, in places of public accommodation, resort or amusement, in educational institutions, in public service, and in housing and commercial space accommodations.” Id. § 2-1402.01. The statute further notes that “it shall be an unlawful discriminatory practice for a District government agency or office to limit or refuse to provide any facility, service, program, or benefit to any individual on the basis of an individual’s actual or perceived . . . disability.” Id. § 2-1402.73.
152. Defendants have discriminated against Markelle on the basis of his disability in violation of the DCHRA.
153. Community-based services for Markelle can be reasonably accommodated, taking into account the resources available to the District and the needs of others who are receiving disability services from the District. As a result of Defendants’ violations of the DCHRA, Markelle has suffered harm.
154. Unless enjoined by the Court, Defendants will continue to violate the DCHRA rights of Markelle.
COUNT 4: VIOLATION OF THE CITIZENS WITH INTELLECTUAL DISABILITIES ACT
155. The allegations of paragraphs 1 to 154 above are incorporated herein. 156. CIDA requires that the District petition for civil commitment for individuals with
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intellectual disability found incompetent to stand trial and not likely to gain competence in the foreseeable future in a criminal case within thirty days of such a finding absent a showing of extraordinary cause. Id. § 7-1303.12a(a). Once the person is committed, the statute requires that individuals with intellectual disability be “provided with the least restrictive and most normal living conditions possible . . . . This standard shall apply to dress, grooming, movement, use of free time, and contact and communication with the community . . . . Individuals shall be taught skills that help them learn how to effectively utilize their environment and how to make choices necessary for daily living and . . . to refrain from committing crimes of violence or sex offenses. ” Id. § 7-1305.02.
157. This court issued a finding of incompetence to stand trial in December 2016. DDS has an obligation to petition for Markelle’s civil commitment to provide him with supports and services in the most integrated setting appropriate in his home state. Instead, Markelle has been held in federal custody for over a year, frequently placed in solitary confinement and subjected to a number of other harsh conditions and deprivation of privileges at FMC Butner, an unnecessarily harsh, inappropriate, and restrictive treatment placement.
158. CIDA requires DDS to provide Markelle with treatment and supervision services in the community in the most integrated setting appropriate to his needs in a way that simultaneously ensures public safety and the protection of his civil rights. Defendants’ failure to fulfill their obligation under this law guarantees Markelle’s continued placement in federal prison in violation of the law.
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PRAYER FOR RELIEF
WHEREFORE, Markelle prays that judgment be entered in his favor and against
Defendants as follows:
A. Declaring that the Defendants’ actions described above constitute violations of the
Americans with Disabilities Act of 1990, Section 504 of the Rehabilitation Act of 1973, the D.C. Human Rights Act of 1997, and the Citizens with Intellectual
Disabilities Civil Rights Restoration Act of 2015;
B. Granting preliminary and permanent injunctive relief requiring Defendants to
promptly accept physical and legal custody of Markelle within a reasonable
period of time, not to exceed thirty (30) days; C. Awarding compensatory and punitive damages to Markelle including his out-of-
pocket losses, emotional damages, and other harms caused by the Defendants’
discriminatory conduct;
D. Awarding attorneys’ fees and costs incurred in the prosecution of this action;
E. Granting such other and further relief as the Court may deem just and proper.
Respectfully submitted this 1st day of May, 2018. /s/ Donald P. Salzman Donald P. Salzman, D.C. Bar No. 479775 Daniel W. J. Becker, D.C. Bar No. 1024373 Gary DiBianco, D.C. Bar No. 458669 Rebecca M. Murday, N.Y. Bar No. 5584743, D.C. Bar Application Pending, Motion for Pro Hac Vice to Be Filed 1440 New York Avenue, N.W. Washington, D.C. 20005-2111 Tel: (202) 371-7983 Fax: (202) 393-5760 Donald.Salzman@probonolaw.com 48

Case 1:18-cv-01034 Document 1 Filed 05/01/18 Page 49 of 49
/s/ Eve L. Hill Eve L. Hill, D.C. Bar No. 424896 BROWN GOLDSTEIN & LEVY, LLP 120 East Baltimore Street, Suite 1700 Baltimore, Maryland 21202 Tel: (410) 962-1030 Fax: (410) 385-0869 EHill@browngold.com /s/ Robert D. Dinerstein Robert D. Dinerstein, D.C. Bar No. 373443 AMERICAN UNIVERSITY, WASHINGTON COLLEGE OF LAW, DISABILITY RIGHTS LAW CLINIC 4300 Nebraska Avenue, Y-202 Washington, D.C. 20016 Tel: (202) 274-4141 Fax: (202) 274-0659 RDiners@wcl.american.edu /s/ Shira Wakschlag Shira Wakschlag, D.C. Bar No. 1025737 THE ARC OF THE UNITED STATES 1825 K Street, N.W., Suite 1200 Washington, D.C. 20006 Tel: (202) 534-3708 Fax: (202) 534-3731 Wakschlag@thearc.org
49

 
 APPEAL,CLOSED,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18−cv−01034−BAH

SETH v. DISTRICT OF COLUMBIA et al Assigned to: Chief Judge Beryl A. Howell Case in other court: USCA, 19−07057 Cause: Viol. of the Americans with Disabilities Act of 1990
Plaintiff

Date Filed: 05/01/2018 Date Terminated: 09/28/2018 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

MARKELLE SETH

represented by Rebecca Mei Murday SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1440 New York Avenue, NW Washington, DC 20005 (202) 371−7983 Fax: (202) 661−8323 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel W. J. Becker SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1440 New York Avenue, NW Washington, DC 20005 (202) 371−7061 Email: Daniel.Becker@skadden.com TERMINATED: 05/06/2019

Eve L. Hill BROWN, GOLDSTEIN & LEVY, L.L.P. 120 East Baltimore Street Suite 1700 Baltimore, MD 21202−6701 (410) 962−1030 Fax: 410−385−0869 Email: ehill@browngold.com ATTORNEY TO BE NOTICED

Gary DiBianco SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1440 New York Avenue, NW Washington, DC 20005 (202) 371−7858 Fax: (202) 393−5760 Email: gary.dibianco@skadden.com ATTORNEY TO BE NOTICED

Robert D. Dinerstein AMERICAN UNIVERSITY Washington College of Law 4300 Neberaska Ave NW Y202 Washington, DC 20016 (202) 274−4141 Email: rdiners@wcl.american.edu ATTORNEY TO BE NOTICED

V. Defendant DISTRICT OF COLUMBIA
Defendant D.C. DEPARTMENT ON DISABILITY SERVICES
Defendant ANDREW REESE in his official capacity as Director of the D.C. Department of Disability Services

Shira Wakschlag THE ARC OF THE UNITED STATES 1825 K Street, NW Suite 1200 Washington, DC 20006 (202) 534−3708 Fax: (202) 534−3731 Email: wakschlag@thearc.org ATTORNEY TO BE NOTICED
Donald P. Salzman SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1440 New York Avenue, NW Washington, DC 20005 (202) 371−7983 Fax: (202) 661−9063 Email: Donald.salzman@skadden.com ATTORNEY TO BE NOTICED
represented by Matthew Robert Blecher OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 Fourth Street NW Suite 600 South Washington, DC 20001 (202) 442−9774 Fax: (202) 730−0586 Email: matthew.blecher@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda J. Montee OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 724−5691 Fax: (202) 741−8934 Email: amanda.montee@dc.gov TERMINATED: 12/21/2018
represented by Matthew Robert Blecher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda J. Montee (See above for address) TERMINATED: 12/21/2018
represented by Matthew Robert Blecher (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Amanda J. Montee (See above for address) TERMINATED: 12/21/2018

Date Filed 05/01/2018
05/01/2018 05/01/2018 05/04/2018 05/04/2018
05/04/2018 05/04/2018 05/08/2018 05/18/2018 05/18/2018
05/18/2018 05/18/2018 05/18/2018 05/18/2018 05/18/2018 05/18/2018 05/18/2018

# Docket Text
1 COMPLAINT against D.C. DEPARTMENT ON DISABILITY SERVICES, ANDREW REESE, DISTRICT OF COLUMBIA ( Filing fee $ 400 receipt number 0090−5455208) filed by MARKELLE SETH. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Civil Cover Sheet, # 5 Notice of Related Cases, # 6 Summons to Karl A. Racine, # 7 Summons to DC Dept on Disability Services, # 8 Summons to Andrew Reese)(Salzman, Donald) (Entered: 05/01/2018)
2 NOTICE OF RELATED CASE by MARKELLE SETH. Case related to Case No. 14−mj−608. (zmd) (Entered: 05/03/2018)
Case Assigned to Chief Judge Beryl A. Howell. (zmd) (Entered: 05/03/2018)
3 STANDING ORDER. Signed by Chief Judge Beryl A. Howell on May 4, 2018. (lcbah4) (Entered: 05/04/2018)
4 SUMMONS (3) Issued Electronically as to D.C. DEPARTMENT ON DISABILITY SERVICES, DISTRICT OF COLUMBIA, ANDREW REESE, District of Columbia Attorney General. (tth) (Additional attachment(s) added on 5/4/2018: # 1 Notice and Consent) (zmd). (Entered: 05/04/2018)
SUMMONS Not Issued as to Mayor of the DISTRICT OF COLUMBIA. (zmd) (Entered: 05/04/2018)
5 REQUEST FOR SUMMONS TO ISSUE for Mayor Muriel Bowser re 1 Complaint, filed by MARKELLE SETH. Related document: 1 Complaint, filed by MARKELLE SETH.(Salzman, Donald) (Entered: 05/04/2018)
6 SUMMONS (1) Issued Electronically as to the District of Columbia Mayor. (Attachments: # 1 Notice and Consent)(zrdj) (Entered: 05/08/2018)
7 NOTICE of Appearance by Amanda J. Montee on behalf of All Defendants (Montee, Amanda) (Entered: 05/18/2018)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the District of Columbia Attorney General. Date of Service Upon District of Columbia Attorney General 5/10/2018. Answer due for ALL D.C. DEFENDANTS by 5/31/2018. (Salzman, Donald) (Entered: 05/18/2018)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. ANDREW REESE served on 5/10/2018 (Salzman, Donald) (Entered: 05/18/2018)
10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. D.C. DEPARTMENT ON DISABILITY SERVICES served on 5/10/2018 (Salzman, Donald) (Entered: 05/18/2018)
11 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on the Mayor of the District of Columbia. Date of Service Upon the Mayor for the District of Columbia on 5/10/2018. (Salzman, Donald) (Entered: 05/18/2018)
12 NOTICE of Appearance by Gary DiBianco on behalf of MARKELLE SETH (DiBianco, Gary) (Entered: 05/18/2018)
13 NOTICE of Appearance by Eve L. Hill on behalf of MARKELLE SETH (Hill, Eve) (Entered: 05/18/2018)
14 NOTICE of Appearance by Shira Wakschlag on behalf of MARKELLE SETH (Wakschlag, Shira) (Entered: 05/18/2018)
15 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Rebecca Murday, :Firm− Skadden Arps Slate Meagher & Flom LLP, :Address− 1440 New York

05/22/2018 05/22/2018 05/22/2018 05/23/2018
05/23/2018 05/24/2018
06/14/2018 06/19/2018 06/19/2018
06/20/2018 07/12/2018 07/26/2018 07/26/2018 09/04/2018
09/05/2018

Avenue, N.W., Washington, D.C. 20005. Phone No. − 202−371−7983. Fax No. − 202−661−8323 Filing fee $ 100, receipt number 0090−5490203. Fee Status: Fee Paid. by MARKELLE SETH (Attachments: # 1 Declaration of Rebecca Murday In Support of Motion for Admission Pro Hac Vice, # 2 Text of Proposed Order)(Salzman, Donald) (Entered: 05/18/2018)
16 Consent MOTION for Extension of Time to File Answer by D.C. DEPARTMENT ON DISABILITY SERVICES, DISTRICT OF COLUMBIA, ANDREW REESE (Attachments: # 1 Text of Proposed Order)(Montee, Amanda) (Entered: 05/22/2018)
17 NOTICE of Appearance by Daniel W. J. Becker on behalf of MARKELLE SETH (Becker, Daniel) (Entered: 05/22/2018)
18 NOTICE of Appearance by Robert Dinerstein on behalf of MARKELLE SETH (Dinerstein, Robert) Modified on 5/22/2018 (zrdj). (Entered: 05/22/2018)
MINUTE ORDER (paperless) GRANTING the defendants' 16 Consent Motion for an Extension of Time to Respond to Plaintiff's Complaint. The defendants shall, by June 14, 2018, file their answer to the plaintiff's complaint. Signed by Chief Judge Beryl A. Howell on May 23, 2018. (lcbah4) (Entered: 05/23/2018)
Set/Reset Deadlines: Defendants' answer to plaintiff's Complaint due by 6/14/2018. (hmc) (Entered: 05/23/2018)
MINUTE ORDER (paperless) GRANTING the plaintiff's 15 Motion for Admission Pro Hac Vice. Ms. Rebecca M. Murday may enter an appearance pro hac vice for the purpose of representing the plaintiff in this action. Signed by Chief Judge Beryl A. Howell on May 24, 2018. (lcbah4) Modified on 5/24/2018 to edit attorney's last name(hmc). (Entered: 05/24/2018)
19 MOTION to Dismiss by D.C. DEPARTMENT ON DISABILITY SERVICES, DISTRICT OF COLUMBIA, ANDREW REESE (Attachments: # 1 Text of Proposed Order)(Montee, Amanda) (Entered: 06/14/2018)
20 Consent MOTION for Extension of Time to File Response/Reply as to 19 MOTION to Dismiss by MARKELLE SETH (Attachments: # 1 Text of Proposed Order)(Salzman, Donald) (Entered: 06/19/2018)
MINUTE ORDER (paperless) GRANTING the plaintiff's 20 Consent Motion for Extension of Time to Respond to Defendants' Motion to Dismiss Plaintiff's Complaint. The plaintiff shall, by July 12, 2018, file any response to the defendants' 19 Motion to Dismiss. The defendants shall, by July 26, 2018, file any reply. Signed by Chief Judge Beryl A. Howell on June 19, 2018. (lcbah4) (Entered: 06/19/2018)
Set/Reset Deadlines: Response to Dispositive Motion due by 7/12/2018; Reply due by 7/26/2018. (tg) (Entered: 06/20/2018)
21 RESPONSE re 19 MOTION to Dismiss (Opposition to Defendants' Motion to Dismiss Plaintiff's Complaint) filed by MARKELLE SETH. (Salzman, Donald) (Entered: 07/12/2018)
22 REPLY to opposition to motion re 19 MOTION to Dismiss filed by D.C. DEPARTMENT ON DISABILITY SERVICES, DISTRICT OF COLUMBIA, ANDREW REESE. (Montee, Amanda) (Entered: 07/26/2018)
23 NOTICE of Appearance by Matthew Robert Blecher on behalf of All Defendants (Blecher, Matthew) (Entered: 07/26/2018)
24 MOTION for Order (Motion Requesting an Order to Bureau of Prisons Directing Expert Access to Federal Medical Center Butner to Interview Plaintiff) by MARKELLE SETH (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Memorandum in Support, # 6 Text of Proposed Order)(Salzman, Donald) (Entered: 09/04/2018)
MINUTE ORDER (paperless) DIRECTING, upon consideration of the plaintiff's 24 Motion Requesting an Order to Bureau of Prisons Directing Expert Access to Federal Medical Center Butner to Interview Plaintiff, the defendants to file, by 3:00 p.m. on September 7, 2018, a statement of the reasons for their opposition to the plaintiff's motion. Signed by Chief Judge Beryl A. Howell on September 5, 2018. (lcbah4)

09/05/2018 09/07/2018 09/07/2018
09/10/2018 09/10/2018 09/28/2018
09/28/2018 10/26/2018
11/06/2018 11/06/2018
11/07/2018 11/20/2018

(Entered: 09/05/2018)
Set/Reset Deadlines: Defendants' response to Order of the Court due by 3:00 p.m. on 9/7/2018. (tg) (Entered: 09/05/2018)
25 RESPONSE re 24 MOTION for Order (Motion Requesting an Order to Bureau of Prisons Directing Expert Access to Federal Medical Center Butner to Interview Plaintiff) filed by D.C. DEPARTMENT ON DISABILITY SERVICES, DISTRICT OF COLUMBIA, ANDREW REESE. (Attachments: # 1 Text of Proposed Order)(Montee, Amanda) (Entered: 09/07/2018)
MINUTE ORDER (paperless) DIRECTING, upon consideration of the plaintiff's 24 Motion Requesting an Order to Bureau of Prisons Directing Expert Access to Federal Medical Center Butner to Interview Plaintiff and the defendants' 25 Response to the Plaintiff's Motion, the plaintiff to file, by 3:00 p.m. on September 12, 2018, any reply to the defendants' response. Signed by Chief Judge Beryl A. Howell on September 7, 2018. (lcbah4) (Entered: 09/07/2018)
Set/Reset Deadlines: Plaintiff's reply to the defendants' 25 response due by 3:00 p.m. on 9/12/2018. (tg) (Entered: 09/10/2018)
26 REPLY to opposition to motion re 24 MOTION for Order (Motion Requesting an Order to Bureau of Prisons Directing Expert Access to Federal Medical Center Butner to Interview Plaintiff) filed by MARKELLE SETH. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Salzman, Donald) (Entered: 09/10/2018)
27 ORDER GRANTING the defendants' 19 Motion to Dismiss Plaintiff's Complaint and DENYING AS MOOT the plaintiff's 24 Motion Requesting an Order to Bureau of Prisons Directing Expert Access to Federal Medical Center Butner to Interview Plaintiff. See Order for further details. The Clerk of the Court is directed to close this case. Signed by Chief Judge Beryl A. Howell on September 28, 2018. (lcbah4) (Entered: 09/28/2018)
28 MEMORANDUM OPINION regarding the defendants' 19 Motion to Dismiss Plaintiff's Complaint and the plaintiff's 24 Motion Requesting an Order to Bureau of Prisons Directing Expert Access to Federal Medical Center Butner to Interview Plaintiff. Signed by Chief Judge Beryl A. Howell on September 28, 2018. (lcbah4) (Entered: 09/28/2018)
29 MOTION to Amend/Correct Judgment, MOTION for Leave to File an Amended Complaint by MARKELLE SETH (Attachments: # 1 Plaintiffs Proposed Amended Complaint, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Text of Proposed Order)(Salzman, Donald) (Entered: 10/26/2018)
30 Consent MOTION for Extension of Time to File Response/Reply as to 29 MOTION to Amend/Correct Judgment MOTION for Leave to File an Amended Complaint by D.C. DEPARTMENT ON DISABILITY SERVICES, DISTRICT OF COLUMBIA, ANDREW REESE (Attachments: # 1 Text of Proposed Order)(Montee, Amanda) (Entered: 11/06/2018)
MINUTE ORDER (paperless) GRANTING the defendants' 30 Consent Motion for an Extension of Time to Respond to Plaintiff's Motion to Alter or Amend Judgment and Motion for Leave to File Amended Complaint. The defendants shall, by November 23, 2018, file any response to the plaintiff's 29 Motion to Alter or Amend Judgment and Motion for Leave to File Amended Complaint. The plaintiff shall, by December 7, 2018, file any reply. Signed by Chief Judge Beryl A. Howell on November 6, 2018. (lcbah4) (Entered: 11/06/2018)
Set/Reset Deadlines: Defendants' response to the 29 motion to alter or amend judgment and motion to file amended complaint due by 11/23/2018; plaintiff's reply due by 12/7/2018. (tg) (Entered: 11/07/2018)
31 RESPONSE re 29 MOTION to Amend/Correct Judgment MOTION for Leave to File an Amended Complaint filed by D.C. DEPARTMENT ON DISABILITY SERVICES, DISTRICT OF COLUMBIA, ANDREW REESE. (Attachments: # 1 Text of Proposed Order)(Montee, Amanda) (Entered: 11/20/2018)

12/07/2018 12/21/2018 05/06/2019 05/08/2019
05/08/2019 06/07/2019
06/10/2019 06/17/2019

32 REPLY to opposition to motion re 29 MOTION to Amend/Correct Judgment MOTION for Leave to File an Amended Complaint filed by MARKELLE SETH. (Salzman, Donald) (Entered: 12/07/2018)
33 NOTICE OF WITHDRAWAL OF APPEARANCE as to D.C. DEPARTMENT ON DISABILITY SERVICES, DISTRICT OF COLUMBIA, ANDREW REESE. Attorney Amanda J. Montee terminated. (Montee, Amanda) (Entered: 12/21/2018)
34 NOTICE OF WITHDRAWAL OF APPEARANCE as to MARKELLE SETH. Attorney Daniel W. J. Becker terminated. (Becker, Daniel) (Entered: 05/06/2019)
35 ORDER DENYING the plaintiff's 29 Motion to Alter or Amend Judgment and DENYING AS MOOT the plaintiff's 29 Motion for Leave to File Amended Complaint. See Order for further details. The Clerk of the Court is directed to close this case. Signed by Chief Judge Beryl A. Howell on May 8, 2019. (lcbah4) (Entered: 05/08/2019)
36 MEMORANDUM OPINION regarding the plaintiff's 29 Motion to Alter or Amend Judgment and Motion for Leave to File Amended Complaint. Signed by Chief Judge Beryl A. Howell on May 8, 2019. (lcbah4) (Entered: 05/08/2019)
37 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 27 Order on Motion to Dismiss,, Order on Motion for Order, 35 Order on Motion to Amend/Correct,, Order on Motion for Leave to File, 36 Memorandum & Opinion, 28 Memorandum & Opinion, by MARKELLE SETH. Filing fee $ 505, receipt number 0090−6174658. Fee Status: Fee Paid. Parties have been notified. (Salzman, Donald) (Entered: 06/07/2019)
38 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 37 Notice of Appeal to DC Circuit Court. (zrdj) (Entered: 06/10/2019)
USCA Case Number 19−7057 for 37 Notice of Appeal to DC Circuit Court, filed by MARKELLE SETH. (zrdj) (Entered: 06/17/2019)

 
 Case 1:18-cv-01034-BAH Document 1-1 Filed 05/01/18 Page 1 of 42
Exhibit 1

CEcaCusgea!s12e:<21145:-.1mo8jl--.c01v01-67001890-.3BD4AC-HBJA-.GIHMOHJD!o!!cFDuqmoecewunomt ge1np-1tv!8765F!i!l!eHFdkinlge0fd5!/120231/0/101128/02176P!!a!RgPecaig2geo!12f!4qo2fh!4521

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ )

UNITED STATES OF AMERICA,

)

)

v.

) )

Case No. 14-mj-608 (BAH/GMH)

) )

MARKELLE SETH,

)

) )

Defendant.

) )

____________________________________)

REPORT AND RECOMMENDATION

This matter has been referred to the undersigned for the purpose of determining whether

Defendant Markelle Seth ($"qD<eXfYeXanWdTaangtr"%) has been restored to mental competency to stand trial

pursuant to 18 U.S.C. § 4241(e).11 DDeeffeennddant has Intellectual Disability, Mild,22 an incurable neu-

rodevelopmental impairment marked by stunted intellectual and adaptive functioning. The issue

for this Court to determine is whether Defendant, given his diagnosis and its permanence, is com-

petent to stand trial —o tgh[aTtg i\sf,' wjh[eXgt[hXeer D<eXfYeXnadWTaangt "qh[aTsf aT sfuhfYfYi\cVi\eXnatg pcreeXsfeXnagt aTbU\i_l\igtly tgob cVboanfshul_tg wji\tgh[

11 The relevant docket entries for purposes of this Report and Recommendation are as follows: (1) C;rei\m`i\naaT_l C;obm`pc_lTa\iangt aTgZTa\ianfsgt MEaTrek^eXl__leX KSXegt[h ($"qC;ob`mcp_l).r"%) [QD<^kgt). 1,R]6; ($-2%) A8fYfYi\dWaTvii\tg obYf AIanivXefsgt\iZgTagtboer MEylob KCylTajw ($"qKCylaTjw A8YfYf).r"%) [QD<k^gt). 1,-1]; (3) Forensic Evaluation Report of D<re.) KCrei\sfgt\ianTa DL_lbolyWd ($q"LD_lbolyWdt'sf RJeXcpboergtr"%) [QD<k^tg.) .338R]6; ($4/%) TLeraTanfsVceri\pctg obYf tgh[eX C;obm`pcXegtXeanVcly H@eXaTre\ianZg oban METaly 1,61,' 2-0+,116 ($"q50/*1,61/*1,16 TLer).r"%) [Dkt. 67]; (5) Transcript of the Competency Hearing on May 17, 2-0+,116 ($"q50/*1,72/*,116 LTer).r"%) [QD<k^tg.) 1638R]6; ($61%) D<XeYfXeanWdTaangtt'fs PHrebocpbofsXeWd F>\ianWd\ianZgfs obYf F>aTVcgt aTanWd C;obnacVl_uhfs\iboanfs obYf DLTajw ($q"D<eXYf).r"%) [QD<k^tg.) 27,1R]6; ($27%) PHl_Ta\ian(tg\iYfYft'sf PHrebocpbofsXeWd F>i\naWd\ianZgfs obYf F>aTcVtg aTanWd C;obnacV_lhufs\iboanfs obYf DLTajw ($"qPH_l).r"%) [QD<k^gt). 27-2R]6; ($38%) PH_lTa\iangt\iYfYft'sf RJeXsfpcobnasfXe tgob D<XeYfXeanWdTaangtt'sf PHrebocpbofsXeWd F>i\nadWi\nagZfs obYf F>aTcVtg aTnaWd C;obnacVl_uhfs\iboanfs obYf DLTajw ($"qPHl_.) RJeXfscp).r"%) [QD<^kgt). 72-2R]6; aTanWd ($94%) DefXeanWdTaangtt'sf RJeXfspcobnafsXe tgbo PH_lTa\iangt\iYfYft'sf PHrebocpbofsXeWd F>i\nadWi\naZgfs obYf F>aTcVgt aTanWd C;obnacV_luhsfi\obanfs obYf DLTajw ($"qD<eXfY.) RJXefscp).r"%) [QD<^kgt). 27/4R]).
22 E=vii\dWeXnacVeX i\na tgh[eX reXecVboerWd bUeXfYobreeX tgh[eX uhnaWdXeerfs\iZganXeWd obcVVcTafs\iboanTa_l_lly ereXYfXeerfs tgob D<XeYfXeanWdTaangtt'sf Wd\iTagZanbofs\ifs aTfs "qMEi\l_dW MEeXnatgaTl_ RJeXgtTaerWdTagt\iboan',r" bUuhgt AIangtXe_llectual Disability, Mild has since replaced that language as the preferred terminology for that diagnosis. See Hall v. Florida, 572 U.S. ___, 134 S. Ct. 1986, 1990 (2014) (citations omitted); see also D<eXYf.) =Ekxh[.) 1,,' MEC;C; C;obm`cpXegtXeanVcly E=viTa_lhuTagt\iboan ($"qD<\iEM\ifsTat'sf RJeXcpboergtr"%) aTgt 4/.) A8cVcVobreWd\iangZ_lyl', wjh[i\l_eX reXecVboZgan\imz\ianZg tgh[Tagt sfobm`eX dWobcVhu`mXeangtfs m`Taly erXeYfXeerXeanVceX D<XeYfXeanWdTaangtt'fs "qMEi\l_dW MEeXnatgaT_l RJeXgtTaerWdTagt\iboanr" ober "qMEeXnatgaTl_ RJeXtgaTredWaTtg\ibona,' ME\i_lWd',r" tgh[eX uhanWdXeerfs\iZganXeWd wji\l_l_ reeXfYeXer tgbo tgh[aTgt dW\iTagZ(nosis as Intellectual Disability, Mild.

CEacCsugea!s21e:<21154:.-1om8l-j.-c10v10-70610908.-3DB4CA-BJHA.-IGHOMJDH!o!!cFDuoqmceewunomt ge1np-1tv!8765F!i!l!eHFdiknlge0fd5!/120231/0/1012180/2176P!!a!RPgecagi3geo!32f!4qo2hf!4521
his lawyer with a reasonable degree of rational undWeXerfsgtTaanWd\ianZgr" aTanWd "qaT erTagt\iboanTa_l aTfs wjeXl__l aTfs fYaTVcgthuTa_l uhnadWeXerfsgtTaanWd\ianZg obYf tgh[eX pcreobcVeXeXWd\ianZgfs aTgZaTi\nasftg h[\i`m).r" Dusky v. United States, 362 U.S. 402, 402 (1960).
The undersigned held a competency hearing on May 16 and 17, 2016, after which the parties submitted their proposed findings of fact and conclusions of law. Based on the evidence addWhuVcXeWd aTtg tgh[eX h[eXTaer\ianZg aTnaWd tgh[eX pcTaergt\iXefst' reeXfscpXeVcgt\iivXe aTregZhu`mXeangtfs', tgh[eX uhnadWXeerfs\iZganXeWd reeXVcbo`mmends that the Court find that Defendant has not been restored to competency and is therefore incompetent to stand trial in this case.
BACKGROUND AND PROCEDURAL HIISSTORY On October 15, 2014, the government filed the instant complaint charging Defendant with one count of production of child pornography in violation of 18 U.S.C. § 2251(a). Compl. The complaint alleges that, while responding to a report of an assault with a dangerous weapon on October 2, 2014, Metropolitan Police Department ($"qMEHP<Dr"%) officers learned at the scene that two minors, aged three and five, accused Defendant of sexually abusing them. See Kyaw Aff. [Dkt. 11] at 1. Law enforcement later obtained warrants to search two cell phones that Defendant was carrying. Id. at 2. On the cell phones, law enforcement found sexually explicit videos of the two minors and other sexually explicit photographs of young children. Id. at 3. After interviewing the children accusing Defendant of engaging in sexually explicit conduct with them, the MPD officers placed Defendant under arrest and transported him to a police station in Washington, D.C. Id. at 2.
2

CEcaCusgea!s21e:<21145:-.1mo8jl-.-c10v01-67001890-.3BD4AC-HBJA-.GIHMOHJD!o!!cFDuqmoecewunomt ge1np-1tv!8765F!i!l!eHFdkinlge0fd5!/120231/0/101218/02176P!!a!RgPecaig4geo!43f!4qo2fh!4521
Once at the station, law enforcement placed Defendant in a holding room for an interview.33 Two MPD officers proceeded to advise Defendant of his Miranda rights, which he waived, and ask him aTbUbohugt tgh[eX cV[h\i_lWderXeant'fs aTl__lXegZTagt\iboans of sexual abuse. H@eX erXeYfXeererXeWd tgob tgh[obsfeX aTl_l_eXgZTagt\iboanfs aTfs "qtgh[eX sf\igthuTagt\iboan',r" aTnadW', wjh[eXna pcreeXsffsXeWd for more details, refusXeWd tgob aTnasfwjeXer tgh[eX MEPHD< obfYYf\iVcXeerfst' dqhuXefsgt\iboanfs). During the interview, Defendant had trouble maintaining eye contact, speaking clearly, and articulating cogent and coherent thoughts. Shortly after the interview began, he tucked his arms—pand, intermittently, his face— pinto his shirt and stared at the ground. Indeed, his demeanor during the interview was child-like, likely due, in part, to his mental disability.
C;obuhnasfeXl_ Yfboer D<eXfYeXnaWdTaangt h[aTfs aTsfsfXeergtXeWd sfi\ancVeX tgh[\ifs cVTafsXet'sf \ian\igt\iTagt\iboan tgh[aTtg h[\ifs cVl_i\eXnagt i\fs i\nacVobm`pceXtgeXangt to stand trial.) F>boer tgh[aTtg reeXaTsfboan', i\m``mXeWd\iTagtXe_lly fYbo_l_lbojw\ianZg D<XeYfXeanWdTaangtt'fs i\nai\tg\iaT_l aTpcpceXaTerTaanVcXe oban OGcVtgobbUeXer 16, 2014, the Court ordered that Defendant be screened by the Department of Behavioral Health at the Superior Court of the District of Columbia to determine if he had the competency to proceed with a supervised release hearing. See Order re Forensic Screening [Dkt. 3]. Shortly after, and based on dWeXfYeXnasfeX cVbohuanfsXe_lt'fs uhanbocpcpbofsXeWd erXedqhuXefsgt', the Court committed Defendant to the custody of the Attorney General of the United States pursuant to 18 U.S.C. § 4241(d) for a preliminary competency screening. Order re Mental Competency to Stand Trial [Dkt. 5]. On December 22, 2014, Dr. Samantha DiMisa ($"qD<re.) D<i\MEi\sfTar")%,' aT pcsfylcVh[obl_obgZi\sfgt wj\igt[h tgh[eX F>XeWdXeerTa_l B9uherXeTahu obYf PHrei\sfobanfs ($"qB9OGPHr")%,' concluded that Defendant lacked the competency to understand the nature and consequences of the proceedings against him and to assist properly in his defense. See Def. Exh. 1, MCC Compe-
33 The MPD officers made a video recording obYf D<eXYfXeanWdTaangtt'sf \ian\igt\iTa_l aTrereeXfsgt i\natgeXrevii\eXwj,' wjh[i\cV[h tg[heX gZboiv(ernment then submitted into evidence during the competency hearing. See Pl. at 3. The undersigned has si\nacVXe reXeiv\iXejwXeWd tgh[aTtg erXeVcboerWd\ianZg', wjh[i\cV[h fseXrevieXfs aTfs tgh[eX bUaTsf\ifs fYboer tgh[eX C;bohuergtt'sf Yfm\aWd\ianZgfs wji\gt[h respect to D<XeYfXeanWdTaangtt'sf i\nai\tgi\aTl_ \iangtXeeriv\iXejw wji\tg[h tgh[eX MEHP<D.)
3

CEcaCusgea!s21e:<21145:-.1mo8jl-.-c10v01-67001890-.3BD4AC-HBJA-.GIHMOHJD!o!!cFDuqmoecewunomt ge1np-1tv!8765F!i!l!eHFdkinlge0fd5!/120231/0/101218/02176P!!a!RgPecaig5geo!54f!4qo2fh!4521
tgeXanVcly E=ivaTl_uhaTgt\iboan ($q"D<\iEM\ifsTat'sf RJXecpboergtr"%) at 15o-16. Accordingly, the undersigned committed Defendant to the custody of the United States pursuant to 18 U.S.C. § 4241(d)(1) to determine whether there was a "qsubstantial probability in the foreseeable future that he [would] attain the cVTacpTaVc\igtly tgob pceXrem`\igt tg[hXe pcreobVcXeXeWd\ianZgfs tgob gZbo YfboerjwTaerWd).r" OGredWeXer for Further Psychiatric Evaluation [Dkt. 17].
On April 27, 2015, Defendant was transported to the Federal Medical Center in Butner, North Carolina ($"qFMC B9uhgtanXeerr"%) pcuhresfuhaTangt tgob tgh[Xe C;bohuergtt'sf OGredWXere. See Status Report [Dkt. 29]. The uhnadWXeerfs\iZganXeWd h[Xe_lWd aTna i\natgeXrem`eXdWi\TatgeX h[eXTaer\ianZg tgob aTsfsfeXsfsf D<XeYfXeanWdTaangtt'fs pcreobgZreXefsfs on June 10, 2015, at which he and his psychologist at FMC Butner, Dr. Kristina Lloyd ($q"D<re.) DL_lbolyWdr"%), appeared by videoconference. Based obna D<re.) DL_lbolyWdt'sf representations at the hearing that Defendant was not competent to stand trial, the undersigned ordered Defendant to remain at FMC Butner for additional psychiatric evaluation and, if possible, competency restoration. See June 10, 2015 Minute Entry. On July 21, 2015, Defendant and Dr. Lloyd appeared again before the undersigned by videoconference, and Dr. Lloyd informed the Court that i\gt wjaTfs "qqduhi\tgeX _l\i^kXe_llyr" tgh[Tagt D<eXfYeXanWdTaangt wjobhu_lWd be restored to competency. See 7/21/2015 Transcript [Dkt. 43] at 14:1. One month later, Dr. Lloyd prepared a psychological evaluation report confirming her prediction and concluding that Defendant isf "qreeXaTdWly tgbo bUeX erXegthueranXeWd tgbo cVbohuergt fYober reeXfsbo_lhugt\iboan obYf h[\ifs _leXgZTal_ sf\igthuTagt\iboan).r" See DL_lbolyWdt'fs Report at 16, 20.
Di\sfsfaTgt\ifsYf\iXeWd wji\tg[h D<re). DL_lbolyWdt'sf cVobnacVl_uhsfi\obna,' WdXeYfXeanfsXe cVobuhanfsXe_l requested that the undersigned i\sfsfuheX aTan OGreWdeXer dWi\reeXVcgt\ianZg D<XeYfXeanWdTaangtt'fs tgreaTnasfpcboretgaTgt\iboan tgbo tgh[Xe C;obrereXecVtgi\obnaaTl_ LTerXeTagt`mXeangt F>aTcV\i_l\igtly obYf tgh[eX D<.)C;.) BJTa\i_l ($q"C;TL>Fr"%) sfob tgh[aTtg [h\ifs cVob`mcpXegtXeanVcly Vcbohu_lWd bUeX eXivTa_lhuTagtXeWd bUyl aTna eXkxpceXretg reeXgtTa\ianXeWd bUly tgh[eX WdXeYfeXanfsXe.) See Order regarding Transport and Competency Report [Dkt. 36]. The undersigned granted de-
4

CEcaCusgea!s21e:<21145:-.1mo8jl-.-c10v01-67001890-.3BD4AC-HBJA-.GIHMOHJD!o!!cFDuqmoecewunomt ge1np-1tv!8765F!i!l!eHFdkinlge0fd5!/120231/0/101218/02176P!!a!RgPecaig6geo!65f!4qo2fh!4521
YfXeanfseX cVbohuanfsXe_lt'sf request, see id. at 2, and Dr. Robert Denney ($q"D<er). D<eXananXelyr"%), a psychologist retained as a defense expert, evaluated Defendant and concluded that he is not competent to stand trial. See D<eXfY.) E=xkh[.) 1,,' C;obm`pceXtgeXnacVeX E=viaTl_uhaTgt\iobna ($q"DXeananXelyt'sf RJXecpboergtr"%) at 29.
The parties then requested that the Court hold a competency hearing to determine whether Defendant has been restored to competency pursuant to 18 U.S.C. § 4241(e). On November 4, 2015, then-Chief Judge Richard W. Roberts referred this matter to the undersigned to conduct the competency hearing and to prepare a Report and Recommendation on the issue. Order [Dkt. 50]. Following a series of adjournments prompted by scheduling conflicts between the parties, the undersigned held a two-day competency hearing on May 16 and 17, 2016. The parties later submitted post-hearing briefs in support of their positions in July and August. The matter is now ripe for resolution.
LEGAL STANDARD "qIAgt i\fs wjeX_l_l XefsgtTaUb_l\ifs[hXeWd tgh[aTgt tgh[Xe D<uhXe PHreboVcXefsfs C;l_aTuhsfeX obYf tgh[Xe F>obuhretgeXeXangt[h A8m`eXnadWm`Xeangt pcreobh[\iUb\igtfs tgh[eX Vcer\i`m\ianaT_l pcreobsfXecVhugt\iboan obYf aT dWeXfYeXnadWaTnatg wj[hbo i\fs naobtg cVobm`pceXtgeXnatg tgbo sftgTaanWd tgre\iTa_l).r" Medina v. California, 505 U.S. 437, 439o-40 (19942-)%.) LTbo eXivTa_lhuaTtgeX aT dWXeYfXeanWdTaangtt'fs cVobm`pceXtgeXnacVyl,' aT cVobuhretg m`uhsfgt m`aTk^eX aT WdhuTa_l i\andqhu\ierly i\angtbo wjh[eXtgh[eXre tgh[eX dWeXfYeXnadWaTnatg "qh[aTfs aT sfuhfYYf\iVc\iXenatg pcreeXsfXenatg aTbU\i_l\igtly tgob Vcboanfshu_lgt wj\igt[h h[\ifs l_aTwjylXere wji\gt[h aT reXeTafsboanTaUb_lXe WdXegZerXeXe obYf reaTtgi\obnaaTl_ uhnaWdXeerfsgtTaanWd\ianZgr" aTanWd "qaT erTagt\ibonaaTl_ aTsf wjeXl__l aTfs fYaTcVtguhaTl_ uhnadWXerstanding of tgh[eX pcreobcVeXeXdWi\nagZfs aTgZaT\inafsgt [h\i`m).r" Dusky v. United States, 362 U.S. 402, 402 (1960). The procedure for determining competency is prescribed by 18 U.S.C. § 4241, which states in pertinent part that a court must hold a hearing to determine a defenWdTaangtt'sf Vcbo`mcpXegtXeanVcly "qi\Yf tgh[XeerXe is a reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the preobcVeXeXdWi\nagZsf aTgZaT\iansftg h[i\`m obre tgbo aTsfsfi\sftg pcreobpceXer_lly \ian h[\ifs dWXeYfXeanfsXe).r" 1,38
5

CEcaCusgea!s21e:<21145:-.1mo8jl-.-c10v01-67001890-.3BD4AC-HBJA-.GIHMOHJD!o!!cFDuqmoecewunomt ge1np-1tv!8765F!i!l!eHFdkinlge0fd5!/120231/0/101218/02176P!!a!RgPecaig7geo!76f!4qo2fh!4521
UM.)SK.)C;.) §n 4/2-4/1,($aT)%.) "qIAfY,' aTfYtgeXre tgh[eX h[XeaTer\iangZ', tgh[Xe Vcbohuergt Yf\ianWdfs bUyl aT pcreeXpcobnadWeXeraTanVcXe boYf tgh[eX eXiv\iWdXeanVcXer" tgh[aTtg tgh[eX dWeXfYeXnadWaTnatg i\fs naobtg Vcbo`mcpXegtXeangt tgob sfgtTaanWd tgeri\aTl_,' tgh[eX Vcbohuergt m`uhsfgt "qcVobm`m`i\tg tgh[Xe WdXeYfXeanWdTaangt tgob tgh[Xe custody obYf tgh[eX A8tgtgobreanXely G?XeanXeerTa_lr" fYober tgreeXaTtgm`eXnatg i\na aT sfuhi\tgaTbU_lXe fYTaVc\i_l\igtly fYober hucp tgob Yfbohuer m`obnagt[hfs "qtgob WdXegtXeer`m\inaeX whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward . . . .r" 1,38 UM.)SK.)C;.) §n 4/2-4/1,($Wd%)($,1%).) OGnacVXe tgh[eX YfTaVc\i_l\igtlyt'sf dWi\reeXcVgtboer cVXeergt\iYf\iXefs tgh[aTgt tgh[Xe WdXefYXeanWdTanatg "qi\sf aTbUl_eX tgob uhnadWXeerfsgtTaanWd tgh[Xe naaTgtuhreXe aTanWd VcboanfsXedqhuXeanVcXefs obYf tg[heX pcreobcVeXeXdW\iangZfs aTgZaTi\nasftg h[i\`m aTanWd tgbo aTsfsf\ifsgt pcreobcpXeer_lly \ian h[i\fs dWXeYfXeanfsXe',r" aTfs h[TacpcpXeanXeWd h[eXreeX', tgh[eX cVobuhertg m`uhsfgt h[ob_lWd aTna aTdWWd\i(tional hearing to determine whether the defendant has in fact been restored to competency by a preponderance of the evidence. 18 U.S.C. § 4241(e).
FINDINGS OF FACT The following findings of fact are based on the testimony and evidence presented during the competency hearing or otherwise contained in the record. A. Preliminary Observations Defendant, now twenty-three years old, demonstrated signs of developmental disability and behavioral problems at an early age. See DL_lbolyWdt'sf Report at 6. He has been diagnosed with various mental impairments at different points in his life, but Intellectual Disability, Mild ($q"IDMr"%) is the diagnosis that most aptly captures his condition. See id. at 16; see also D<\iEM\ifsTat'sf Report at 10-,1,16; D<XeananXelyt'sf Report at 24. Intellectual Disability is a three-tiered neurodevelopmental disorder, with each tier —o Mild, Moderate, and Severe —o demarcated by the intensity obYf obanXet'sf sfyl`mcpgtbo`mfs).44
44 OW[h\i_leX D<XeYfXeanWdTaangtt'sf dWi\aTZganbofs\ifs VcboangtTa\ianfs tgh[Xe wjoberWd "qMEi\_lWd',r" tgh[aTtg \ifs', \ian m`Taanly wjaTylfs', aT m`i\sfnaobm`eXre.) IA<DEM applies to individuals with IQ scores that fall within the bottom two percent of IQ scores in the population, see 5/17/16 Tr. at 403:155o-24, and approximately thirty percent of individuals that have IDM are found incompetent to stand trial. See 5/16/16 Tr. at 186:16o-87:19. Put differently, there i\fs anbogt[h\ianZg naeXVcXefsfsTaer\i_lly "qm`i\_lWdr" aTbUobuhtg tgh[eX m`eXnatgaTl_ dWeXfYi\cVi\eXnacV\iXefs aTsfsfobVc\iTagtXeWd with IDM; rather, its name is a reflection of the severity of the symptoms associated with Intellectual Disability, Moderate and Intellectual Disability, Severe, which frequently deprive individuals of their ability to function
6

CEcaCusgea!s21e:<21145:-.1mo8jl-.-c10v01-67001890-.3BD4AC-HBJA-.GIHMOHJD!o!!cFDuqmoecewunomt ge1np-1tv!8765F!i!l!eHFdkinlge0fd5!/120231/0/101218/02176P!!a!RgPecaig8geo!87f!4qo2fh!4521
5/16/16 Tr. at 179:15o-80:15; 5/17/16 Tr. at 403:99o-24. Generally, an Intellectual Disability diagnosis requires the satisfaction of three criteria: (1) limitations in cognitive or intellectual functioning; (2) limitations in adaptive functioning —o that is, conceptual skills, practical skills, and social skills; and (3) a date of onset falling within obanXet'sf neurodevelopmental period. See DL_lbolyWdt'sf RJeXcpboergt at 16; see also 5/16/16 Tr. at 130:5o-21. Because the impairment is neurodevelopmental, there is no medicinal treatment for it6; tgh[eXreeX i\fs naob "qcVuherXer" fYober AI<DEM). Id. at 207:55o-11. Indeed, i\gt i\sf D<XeYfXeanWdTaangtt'fs lack of capacity for improvement that divides the parties in the instant case: defense counsel dispcuhtgeXfs tgh[eX ZgboivXeeran`mXeangtt'fs aTsfsfeXretg\ioban tgh[aTtg, after four months at FMC Butner, Defendant has been restored to competency and that he now has the capacity to rationally understand his case and to aid in his defense if provided with certain accommodations. See Def. Resp. at 3 n.4; see also 5/17/16 Tr. at 536.
B. D2eJKfJeQnIdFaQnVtZ'sU C1RoPmSpJeVtJeQnHcYy 3EXvFaOlWuaFtViMoRnQsU Defendant has undergone four competency evaluations in two different court systems, three of which resulted in a determination that he was not competent to stand trial. Each will be addressed below.
1. D<re). B9TaeranXefst' C;obanVc_lhufs\iboanfs aTanWd OGpci\na\iboanfs In August 2011, Defendant was arrested for an incident unrelated to the instant case and appeared before the Superior Court of the District of Columbia. See Def. Exh. 1, Juvenile Competency Evaluation ($"qB9aTrenaeXfs RJeXcpboergtr"%) at 1o-2. After his lawyer in that case expressed concern over his comprehension of the proceedings, the court referred Defendant, who was seventeen years old
on their own altogether. Id. at 404:4o-405:1. For his part, Defendant has consistently demonstrated extremely low intellectual and adaptive functioning: he has never lived alone or worked a job that requires any self-direction, he has extreme difficulty planning and concentrating, he is unable to manage his emotions, and he has trouble communicating with other people. See LD_lbolyWdt'sf RJeXpcobergt at 16.
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at the time, to the Child Guidance Clinic within the Court Social Services Division for a competency evaluation. Id. at 2. There, Dr. Michael E. Barnes $(q"D<re). B9aTrenaXefsr")%, a licensed psychologist, conducted a day-long evaluation of Defendant cVobnasfi\sftgeXnatg wj\igt[h tgh[eX Vcbohuergtt'fs obreWdXeer and with the assistance of a clinical intern. Id. at 6o-14. While Defendant cooperated throughout the evaluation, he appeared both frustrated and tired, falling asleep twice and struggling to maintain attention for longer than five minutes at a time. Id. at 6. On the Wechsler Adult Intelligence Scaallee—oFFoouurth Edition ("qWAIS-IWVr"), a standardized assessment used to measure, among other things, an individuhTa_lt'sf ZgXeanXeerTa_l i\natgeXl_l_eXcVtguhaTl_ YfhuancVgt\iobnai\ng, Defendant performed poorly. Id. at 7o-8. He obtained an IQ score of sixty-three, which ranks at the bottom one percent of his age group, and demonstrated difficulty with processing information and expressing himself. Id. at 8o-9. Dr. Barnes also administered portions of the Woodcock-BJbo[hanfsboan LTXefsgtfs obYf A8cVh[i\eXiveXm`eXangt ($"qWOJB-IAIAAIr"%), establishing that Defendant had the listening and oral comprehension skills of an eight year old. Id. at 9.
G?i\viXean D<XeYfXeanWdTaangtt'sf cVobgZnai\tgi\vieX aTanWd aTdWaTpctgi\vieX WdeXfYi\cVi\eXnacVi\eXsf,' D<re.) B9TaeranXefs Wd\iTagZanbofsXeWd D<eXfYeXnadWaTangt with IDM. Id. at 10. He also observed that D<eXfYeXnadWaTnatg dWeXm`boanfsgterTagtXeWd oban_lly aT "qm`aTregZi\naaT_l uhanWdeXrefsgtaTanWd(i\anZgr" obYf Vcbohuergtroom pcreobcVeXdWuhreeX aTanWd aT "ql_i\m`i\tgeXWd uhnaWdXeerfsgtTaanWd\ianZgr" obYf tgh[Xe rebo_lXefs of the prominent courtroom actors. Id. at 12. He struggled to explain the role his own lawyer would have in the proceedings, for example, and was unable to retain new information related to these topics throughout the evaluation. Id. Accordingly, Dr. Barnefs obcp\ianXeWd "qwji\tgh[ reeXaTfsbonaaTbUl_eX pcsfylcVh[obl_obgZi\cVaTl_ cVXeergtTa\iangtlyr" tgh[aTtg D<eX(fendant was not competent to stand trial and that he demonstrated little capacity for improvement. Id. at 14. Following the evaluation, the charges against Defendant were dropped and he spent several months in a group home. See LD_lbolyWdt'sf RJXepcboertg at 7.
8

CEcaCusages!21e:<21145:1-.mo8-jlc.-10v0-1067101089-3.B4DA-CBHJA-.HGIMODHJo!!c!uFDmqoecewunomt 1ge-np1tv!87F65i!l!e!HFdkinl0ge5fd/!012123/010821/021P76!a!!gRPeca1ig0ge!o;9f!qo4fh2!4521
2. D<re). D<\iEM\ifsTat'sf C;obnacV_luhfs\iboanfs aTnaWd OGcp\ian\iboanfs Several years after his 2011 arrest, on October 15, 2014, the government filed the instant complaint in this Court charging Defendant with one count of production of child pornography in violation of 18 U.S.C. § 2251(a). Compl. On October 23, 2014, the Court committed Defendant to the custody of the Attorney General of the United States for a competency evaluation pursuant to 18 U.S.C. § 4241(d) tgob WdXegtXeer`m\ianeX wjh[eXgt[hXeer h[eX sfuhfYfYeXerfs "qfYreobm` aT m`eXangtTa_l dWi\sfXeaTfsXe obre dWeXfYeXcVtg erXeanWdXeer\ianZg him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him . . . .)r" See Order re Mental Competency to Stand Trial [Dkt. 5]. During that assessment, Dr. DiMisa of the Metropolitan Correctional Centerp—New York ($q"ME;C;Cr"%) evaluated Defendant approximately two dozen times between November 17 and December 22, 2014. See DiMissTat'sf Report at 1. On November 18, 2014, Defendant disclosed that he had been diagnosed with 1IDM and reported auditory hallucinations. Id. He also expressed an interest in returning to the Washington, D.C. area. Id. at 5o-6. For the first month of the evaluation, MCC staff placed Defendant in a locked cell in the Psychological Observation unit due to his inability to properly interact with other inmates and staff. Id. He occupied his time by attending self-h[eXl_pc pcreobgZreaTm`sf,' reeXTaWd\ianZg Vc[h\i_lWderXeant'fs bUobobk^sf', aTand completing cV[h\i_lWderXeant'sf wjboerWd pcuhzmzml_eXsf. Id. at 5. He was later transferred to general population housing, where he exercised, watched television, and interacted with other inmates. Id. During her evaluation, Dr. DiMisa observed that Defendant frequently alternated between unresponsive, calm, and frustrated states. Id. at 4. On one occasion, he became so frustrated while talking about his criminal charge that he abruptly left his evaluation appointment. Id. While Dr. DiMisa noted that Defendant generally behaved appropriately, she observed several outbursts —o including one involving another inmate over the television rules and one related to his difficulty
9

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using the telephone —o occasioned by his low frustration tolerance. Id. at 5. He also displayed a tendency to disengage when prompted to discuss his family or the charge against him, and he was obbUsfXeerivXeWd _l\igZ[hgt_lly bUaTnagZ\ianZg h[i\fs h[XeTaWd aTgZaT\ianfsgt tgh[eX wjaTl_l_ bUeXcVaTuhsfeX h[eX wjaTsf,' i\na h[i\fs wjobredWsf', "qsftgreeXsfsfi\anZg obhugt).r" Id. at 6o-7. Overall, his compliance during the evaluation process varied; he would fluctuate between hiding under his blanket and engaging in appropriate conversation. Id. at 6.
As part of her evaluation, Dr. DiMisa attempted to administer a number of psychological assessments. On the Reading Level Indicator, an untimed reading inventory used to determine an i\anWd\iiv\iWdhuTa_lt'sf erXeTaWd\ianZg aTbUi\l_i\tgi\eXsf, Defendant demonstrated a second grade independent reading level. Id. at 7. On the Personality Assessment Inventory, Dr. DiMisa deemed his results invalid due to his difficulty interpreting the content. Id. Defendant took the WAIS-IWV again and his performance yielded extremely low scores similar to those he received when Dr. Barnes administered the test. He obtained an IQ score of fifty-three, although Dr. DiMisa deemed this score invalid as well due tgob aT "qm`aTrek^eXWd dWi\sfcVerXecpTaanVcly bUeXtgwjeXXean Q[<DXeYfXeanWdTaangtt'sfR] sfuhbUtgeXsftg sfcVboereXfs .) .) .) .)r" Id. at 8. Dr. DiMisa noted that Defendant appeared unmotivated during the administration of the WAIS-IWV, requiring constant prompting to complete tasks and disengaging when unable to immediately answer questions. Id. at 8o-9. D<XeYfXeanWdTaangtt'sf performance in all four subtests of the WAIS-IWV —o verbal comprehension, perceptual reasoning, working memory, and processing speed —o yielded extremely poor results. Id. Based on her observations of Defendant and his performance on the psychological assessments, Dr. DiMisa diagnosed him with IDM and gave him a provisional diagnosis of Autism Spectrum Disorder, a disorder marked by deficiencies in social interaction that manifest as difficulty reciprocating emotional behavior and relationships. Id. at 10o-11.
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With respect to D<XeYfXeanWdTaangtt'sf competency to stand trial specifically, Dr. DiMisa expressed serious concern. Though he dWeX`mboanfsgterTagtXeWd "qsfobm`eX k^nabojw_lXeWdZgXer" obYf tgh[Xe i\nadWi\viduals involved in courtroom proceedings, he frequently became unresponsive and required significant prompting during questioning. Id. at 12. Defendant dWeXsfVceri\UbXeWd tgh[eX Vc[hTaerZgXe aTgZaTi\nasfgt h[\i`m aTfs "qcVh[i\l_Wd aTUbhufsXer" obre "qcVh[i\_lWd pcobrenaboZgerTacp[hly',r" bUuhgt Wd\ifsXeanZgTaZgXeWd wj[hXean pcreeXfsfsXeWd further. Id. at 12o-13. On the other hand, he appeared aware of the concept of plea bargaining and was responsive to learning new information about court proceedings. Id. at 13. When the legal concepts required lengthy explanations, however, Defendant struggled to maintain the attention required to retain the information. Id. He also expressed satisfaction with the performance of his defense counsel and denied any difficulty in their relationship, but became overwhelmed when asked how he would assist in his own defense. Id. at 14. Specifically, he fixated on whether the government would be able to use images and videos from his cell phone as evidence against him and became so agitated that he could no longer proceed with the evaluation. Id. Dr. DiMisa opined that DefenWdTaangtt'sf m`eXnatgTa_l i\m`pcaTi\rem`eXnatg reXeanWdXeerXeWd him completely unable to assist in his legal strategy; he failed to understand the seriousness of his case and was incapable of comprehending the recommendations of defense counsel. Id. Moreover, he displayed an inability to communicate with his counsel rationally, to weigh the merits of potential defenses, and to make decisions regarding his constitutionally-guaranteed rights as a criminal defendant. Id. at 14o-15. Accordingly, Dr. DiMisa recommended that Defendant be found not competent to stand trial and that he be committed to a mental health facility for a period of competency restoration pursuant to 18 U.S.C. § 4241(d). Id. at 15o-16.
3. D<re). DL_lbolyWdt'sf C;obanVc_lhufs\iboanfs aTanWd OGpci\na\iboanfs Following Dr. D<\iEM\ifsTat'sf erXeVcbo`m`mXeanWdTagt\iboan', tgh[eX uhnadWeXerfs\iZganXeWd committed Defendant to the custody of the Attorney General pursuant to 18 U.S.C. § 4241(d) tgob "qdWeXtgeXrem`i\naeX wjh[eXgt[hXeer tgh[eXreeX i\fs aT
11

CEcaCusgea!s21e:<21145:-.1mo8jl-.-c01v01-67001890-.3BD4AC-HBJA-.GIHMOHJD!o!!cFDuqomeceuwnomt ge1np-1tv!8765F!i!l!eHFdkinlge0df5!/120231/0/101218/02176P!!a!RgPecaig1ge3!21o32f!4qof2h!4521
ssuubbssttaannttiiaall pprroobbaabbiilliittyy tthhaatt iinn tthhee ffoorreesseeeeaabbllee ffuuttuurree hhee wwiillll aattttaaiinn tthhee ccaappaacciittyy ttoo ppeerrmmiitt tthhee pprroo-cVeXXeWd\iangZfs tgob gZbo fYboerjwTaerWd .) .) .) .)r" OGredWXeer ffoorr FFuurrtthheerr PPssyycchhiiaattrriicc EEvvaalluuaattiioonn [[DDkktt.. 1177]].. OOnn AApprriill 2277,, 22001155,, tthhee UUnniitteedd SSttaatteess MMaarrsshhaall SSeerrvviiccee ttrraannssppoorrtteedd DDeeffeennddaanntt ttoo FFMMCC BBuuttnneerr,, wwhheerree mmeeddiiccaall ssttaaffff aatt FFMMCC BBuuttnneerr ssccrreeeenneedd hhiimm aanndd ppllaacceedd hhiimm iinn aann ooppeenn mmeennttaall hheeaalltthh uunniitt.. DL_lbolyWdt'sf RReeppoorrtt aatt 88.. WWhhiillee lleeaavviinngg tthhee ddiinniinngg hhaallll tthhee nneexxtt ddaayy,, hhoowweevveerr,, DDeeffeennddaanntt wwaass iinnvvoollvveedd iinn aann aalltteerrccaattiioonn wwiitthh ssttaaffff aanndd wwaass ttrraannssffeerrrreedd ttoo tthhee sseeggrreeggaatteedd sseeccuurree mmeennttaall hheeaalltthh uunniitt.. IIdd..;; sseeee aallssoo 55//1166//1166 TTrr.. aatt 111100::55o-1166.. DDrr.. LLllooyydd ffiirrsstt mmeett tthhee DDeeffeennddaanntt iinn tthhee sseeccuurree mmeennttaall hheeaalltthh uunniitt,, wwhheerree sshhee ddiiss-ccuusssseedd wwiitthh hhiimm hhiiss ccaassee aanndd hheerr rroollee iinn iitt.. IIdd.. aatt 111100::33o-111133::2222.. SShhee eexxppllaaiinneedd ttoo DDeeffeennddaanntt tthhaatt sshhee wwoouulldd pprroodduuccee aanndd ssuubbmmiitt ttoo tthhee uunnddeerrssiiggnneedd aa rreeppoorrtt rreeggaarrddiinngg hhiiss ccoommppeetteennccyy,, aanndd DDeeffeenndd-aanntt ccoommmmuunniiccaatteedd ttoo hheerr tthhaatt hhee eexxppeecctteedd ttoo bbee ffoouunndd nnoott ccoommppeetteenntt ttoo ssttaanndd ttrriiaall aanndd ttoo bbee ttrraannss-ppoorrtteedd bbaacckk ttoo WWaasshhiinnggttoonn,, DD..CC.. ttoo sseeee hhiiss ffaammiillyy.. IIdd.. aatt 111122::55o-1100,, 111133::88o-111144::1188..
DDrr.. LLllooyydd bbeeggaann wwoorrkkiinngg aass aa lliicceennsseedd ffoorreennssiicc ppssyycchhoollooggiisstt aatt FFMMCC BBuuttnneerr iinn AAuugguusstt 22001144.. IIdd.. aatt 9966::2200o-2211,,9977::55o-77.. AAss aa ffoorreennssiicc ppssyycchhoollooggiisstt,, DDrr.. LLllooyydd iiss pprriimmaarriillyy rreessppoonnssiibbllee ffoorr oovveerrsseeeeiinngg tthhee ccoommppeetteennccyy eevvaalluuaattiioonnss ffoorr ccrriimmiinnaall ddeeffeennddaannttss wwhhoo mmaayy bbee iinnccoommppeetteenntt ttoo ssttaanndd trial andd conduccttiinngg evvaalluuaattiioonnss off ccrriimmiinal defenndanntts to assess their dangerousness. Id. at 9966::2244o9977::4. Before startiinngg herr positiionn at FMC Butner,, Dr. LLllooyydd compplleetteedd a post-doctoral felllowshhiipp aatt tthhee UUnniivveerrssiittyy ooff MMaassssaacchhuusseettttss MMeeddiiccaall SScchhooooll ffoorr ffoorreennssiicc ppssyycchhoollooggyy.. IIdd.. aatt 9977::1133o-2211.. IInn NNoovveemmbbeerr 2011, after ccoommpplleettiinngg herr felllloowwshhiip, Dr. LLllooyydd begann worrkkiinngg as a sttaaffff psychhoolloogiist for the BOP, conndduuccttiinngg intake screeningss anndd psychootthheerraappyy sessionss foorr inmattes. Id. at 977::1188o9988::6. SShe was evveennttuuaallllyy promootteedd to chhiieeff psychologist ffoorr a ffedderal iinnssttiittuuttiioonn iinn PPeennnnssyyllvvaanniiaa,, where she workkeedd unnttiill takiinngg herr ccuurrrent positionn att FMCC Butnneerr.. Id. at 9988::77o-16. Throughout hheerr ccaarreeeerr,, DDrr.. LLllooyydd hhaass tteessttiiffiieedd aass aa qquuaalliiffiieedd eexxppeerrtt wwiittnneessss iinn oovveerr ttwwoo ddoozzeenn ccaasseess iinn ffeeddeerraall
1122

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ccoouurrtt.. Id. aatt 110000::99o-1188.. BBaasseedd oonn tthhee aabboovvee aanndd wwiitthhoouutt oobbjjeeccttiioonn ffrroomm ddeeffeennssee ccoouunnsseell,, tthhee uunn-ddeerrssiiggnneedd qquuaalliiffiieedd DDrr.. LLllooyydd aass aann eexxppeerrtt iinn tthhee ddiiaaggnnoossiiss aanndd ttrreeaattmmeenntt ooff mmeennttaall iillllnneessss ttoo tteessttiiffyy iinn tthhiiss ccaassee.. IIdd..
IInn ttoottaall,, DDrr.. LLllooyydd ssppeenntt aapppprrooxxiimmaatteellyy ttwweennttyy--ffoouurr hhoouurrss iinntteerrvviieewwiinngg DDeeffeennddaanntt oovveerr tthhee ccoouurrssee ooff hhiiss ffoouurr mmoonntthh ssttaayy aatt FFMMCC BBuuttnneerr,, ddooccuummeennttiinngg hheerr oobbsseerrvvaattiioonnss iinn aa rreeppoorrtt sshhee pprree-ppaarreedd oonn AAuugguusstt 2244,,22001155.. Id. aatt 111188::55o-88;; see also DL_lbolyWdt'sf RJeXcpboergt aatt 44.. D<re). LD_lbolyWdt'fs eXviaT_lhuTagt\iboan ccoonnssiisstteedd ooff reeXvii\Xejw\ianZg D<eXYfXeanWdTaangtt'sf reXeVcboerWd aTnaWd iinn--ppeerrssoonn mmeeeettiinnggss wwiitthh aanndd oobbsseerrvvaattiioonnss ooff hhiimm.. IIdd.. aatt 55.. DDuurriinngg hhiiss ffoouurr mmoonntthhss aatt FFMMCC BBuuttnneerr,, DDrr.. LLllooyydd ssaaww DDeeffeennddaanntt aallmmoosstt ddaaiillyy aanndd sshhee oobbsseerrvveedd tthhaatt hhee aacctteedd oouutt iinn aa nnuummbbeerr ooff wwaayyss.. 55//1166//1166 TTrr.. aatt 110088::1166o-2233.. IInn ffaacctt,, hhee ssppeenntt nneeaarrllyy aallll ooff hhiiss ffiirrsstt ffoorrttyy--ffiivvee ddaayyss aatt FFMMCC BBuuttnneerr iinn iissoollaattiioonn iinn tthhee sseeccuurree mmeennttaall hheeaalltthh uunniitt dduuee ttoo hhiiss mmiissbbeehhaavviioorr.. SSeeee 55//1166//1166 TTrr.. aatt 115533::1188o-115544::11.. IInn eeaarrllyy MMaayy 22001155,, DDeeffeennddaanntt wwaass bbrriieeffllyy hhoouusseedd iinn aa sseemmii--lloocckkeedd uunniitt,, wwhheerreeiinn iinnmmaatteess aarree ppeerrmmiitttteedd ttoo lleeaavvee tthheeiirr cceellllss bbuutt aarree nnoott ffrreeee ttoo lleeaavvee tthhee uunniitt.. Id. aatt 115544::11o-22.. FFMMCC BBuuttnneerr ssttaaffff qquuiicckkllyy ttrraannssffeerrrreedd hhiimm bbaacckk ttoo tthhee sseeccuurree mmeennttaall hheeaalltthh uunniitt,, tthhoouugghh,, aafftteerr hhee cchheewweedd tthhrroouugghh tthhee ccoorrdd aattttaacchhiinngg aa kkeeyybbooaarrdd ttoo aa ccoommppuutteerr bbeeccaauussee he became agittatteedd by other innmmaatteess enntteerriinngg anndd lleeaavviinngg thee recrreaattiioonn room. See DL_lbolyWdt'sf RJeXcpboergt at 9. TThhereafter, he was transferrrreedd to the semi-lockkeedd unniitt foolllloowwiinngg a perioodd off goooodd behaviorr, bbuutt hhee wwaass aaggaaiinn rreettuurrnneedd ttoo tthhee sseeccuurree mmeennttaall hheeaalltthh uunniitt tthhee nneexxtt ddaayy wwhheenn hhee bbeeccaammee ffrruussttrraatteedd with another inmatte andd riippppeedd a televviissiioonn coorrdd out off a walll.. Id. at 10;; see also 5/16/16 TTr. at 15544::99o-17. Defendant also rreeppeeaatteeddllyy viioollaatteedd FMCC B9hugtanXeert'sf WdreeXfsfs VcboWdXe —o reffuussiinngg to wear hhiiss uunniiffoorrmm iinn tthhee ddiinniinngg hhaallll aanndd wwaallkkiinngg aarroouunndd tthhee ffaacciilliittyy with hiiss headphhooneess on —o despite beiinngg discciipplliinneedd ffoorr thiiss misbehavior. Id. at 1544::1188o-155:12; see also DL_lbolyWdt'sf RJeXpcboergt att 122o-13. Inn hiiss
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competency restoration group meetings,55 hhowever, Defendant was described as an "qeXxkeXm`cp_lTaerlyr" participant, behaving appropriately and working collaboratively with his peers. Id. at 11.
During her interviews with Defendant, Dr. Lloyd observed similarly problematic behavioral patterns. On one occasion, for example, Defendant bUeXcVaTm`eX "qreuhdWeX,' i\nasfbo_leXangt', aTnaWd vieXerbally aTgZZgerXefsfs\iivXer" wji\tgh[ h[eXre. See DL_lbolyWdt'sf RJeXpcobretg at 13. She also noted that Defendant is predisposed to "qsfh[uhtg[Qtgi\nagZR] Wdbojwanr" obre Wd\ifseXanZgTaZg\ianZg wjh[eXan h[eX \ifs uhan\inatgXeerXefsgtXeWd i\na h[\ifs pcreeXsfeXnatg aTcVtgi\vii\tgyl,' wjh[eXan h[Xe h[eXaTerfs upsetting information, and when he is told that he is wrong. See Tr. 5/16/16 at 188:19o-89:13. In order to coax him out of these states of unresponsiveness, Dr. Lloyd believes that someone with whom Defendant has a rapport needs to comfort him and provide him with time to decompress. Id. at 190:9o-91:5. While his IDM undoubtedly contributed to this protracted development, Defendant, Dr. Lloyd explained, "qh[aTsf l_eXaTeranXeWd tgh[aTtg [Qh[i\sf aTgZgZereXfsfs\ivieX bUeXh[aTiv\iboerR] h[aTfs bUeXeXna XeYfYfXeVcgt\ivieX fYboer him to either get something that he needs or wants or not to h[aTvieX tgob dWob sfobm`eXgt[h\ianZg .) .) .) .)r" Id. at 155:15, 156:122o-20.
Troublingly, the inattentiveness observed by Dr. Lloyd during her meetings with Defendant extended to his court appearances. At the June 10, 22015 status hearing before the undersigned, Defendant continuously fidgeted in his chair and did not appear to be paying attention. See DL_lbolyWdt'sf Report at 10. At the July 21, 220015 hearing, Defendant spent the majority of the time coloring. Id. It is worth noting, however, that while Defendant appeared disinterested at those hearings, he was later able to recall details from the discussions with an amount of specificity that surprised Dr.
55 Just as it sounds, the competency restoration group is an educational group for inmates found not competent to stand trial to improve their understanding of the legal process, courtroom procedures, and the roles of courtroom participants. See LD_lbolyWdt'sf RJeXpcort at 11. Dr. Lloyd informed the Court that, through his participation in the competency restoration group, Defendant would take part in a mock trial that would require him to weigh and process information and deal with simulated courtroom stressors. 5/16/16 Tr. at 221:133o-19. This mock trial, however, never took place. Id.
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Lloyd. Id. For example, at the June 10, 2015 hearing, Dr. Lloyd informed the Court that Defendant was not competent to stand trial and requested additional time to determine whether he could be restored to competency, and Defendant later told Dr. Lloyd that her request for him to remain at FMC Butner angered him. Id. These inconsistencies —o D<XeYfXeanWdTaangtt's tendency to occasionally follow courtroom procedure and decorum while also appearing uninterested and distracted —o makes Defendaanngtt'sf VcaTsfeX aT pcaTregt\iVchu_lTaer_lly Vcbo`mcp_l\iVcTagtXeWd obanXe; according to Dr. Lloyd, Defendant is neither "qcVl_eXaTre_lyl Vcbo`mcpXegtent [n]or clearly not competentr" at first glance. See 5/16/16 Tr. at 145:17o-46:8.
Despite these inconsistencies, Dr. Lloyd determined from the outset that she would largely forgo additional psychological testing of Defendant. In her view, D<XeYfXeanWdTaangtt'sf IDM diagnosis was well-documented and her task was to determine whether Defendant could be restored to competency in spite of that diagnosis. See 5/16/16 Tr. at 120:14o-121:22. In the psychological testing section of her report, Dr. Lloyd relied entirely on the testing conducted by Dr. Barnes and Dr. DiMisa in 2011 and 2014, respectively. DL_lbolyWdt'sf RJeXpcobregt at 13o-16. His consistently poor performance on those tests, as well as his medical record, which is replete with documentation of the data underlying those results, confirmed to her that further testing would be unnecessary. See 5/16/16 Tr. at 124:22o-125:12. Accordingly, and based on his demonstrated deficiencies in intellectual and adaptive functioning, Dr. Lloyd assigned Defendant with a principle diagnosis of IDM. DL_lbolyWdt'sf RJeXcpboretg at 16.
A8tg tgh[eX cVbo`mcpXegtXeanVcly h[eXTarei\nagZ', D<re). DL_lbolyWd Xe_lTaUbboerTagtXeWd oban D<XeYfXeanWdTaangtt'sf VcboanWd\itgi\obna,' eXxkpcl_Ta\ian\ianZg tgh[aTtg the neurodevelopmental deficiencies associated with D<eXYfXeanWdTaangtt'fs AI<DEM manifest in, inter alia, his tendency to neglect his hygiene, his restricted verbal skills, and his diminished thought process. See 5/16/16 Tr. at 131:3o-133:1. At the same time, of course, individuals diagnosed with IDM retain the capacity to function better than those with more severe forms of Intellectual Disability.
15

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Indeed, according to a study of federal inmates facing charges at the United States Medical Center for Federal Prisoners, roughly seventy percent of individuals with IlDM are found competent to stand trial upon their initial evaluation. Id. at 186:16o-87:19. However, the percentage of individuals with IDM found restored to competency after having been previously found incompetent to sftgTaanWd tgrei\aTl_,' _l\i^kXe D<eXfYeXnaWdTaangt', \ifs _lbojweXre.) AIan D<re). DL_lbolyWdt'sf cVaTfseX_lboTadW,' wjh[i\cV[h fYobcVhufsXefs _lTaerZgXe_lly oban restoration to competency proceedings, Defendant is the only individual with IlDM that she has found to be restored to competency following an initial finding of incompetency. See 5/16/16 Tr. at 1766::2222o23.
Nevertheless, Defendant demonstrates some cognitive capabilities. For example, he can socialize and communicate at a rudimentary level. Id. at 133:7o-17. According to Dr. Lloyd, though he struggles to understand unfamiliar concepts, he is capable of making basic decisions and articulating his reasoning for those decisions. Id. at 181:177o-22. He also has a sense of humor and personal interests. Id. at 133:122o-18. In fact, these latter two qualities led Dr. Lloyd to reject Dr. D<\iEM\ifsTat'sf pcreobvii\sfi\obnaaTl_ dWi\aTgZanbofs\ifs obYf A8uhgt\ifs`m KScpXeVcgterhu`m D<isorder. See LD_lbolyWdt'sf RJXecpboergt at 16.
B9aTfsXeWd oban tgh[eX tgobgtTa_l\igtly obYf [heXer obUbfsXereivTagt\iboanfs aTanWd h[Xeer erXeiv\iXejw boYf D<XeYfXeanWdTaangtt's record, Dr. Lloyd determined that Defendant had been restored to competency as of August 25,,220015. In her report on the matter, she started her analysis as to his competency by documenting D<XeYfXeanWdTaangtt'fs aTgtgtboeranXelyt'sf concerns —o including D<XeYfXeanWdTaangtt'sf apparent inability to understand his circumstances, to behave appropriately in court, and to assist in his own defense —o and offered her own assessments of his capabilities and ways to accommodate these deficiencies. See DL_lbolyWdt'sf RJXecpboergt at 16.
WOi\tgh[ reeXsfpceXcVtg tgbo D<XeYfXeanWdTaangtt'sf uhnadWXeerfsgtTaanWd\ianZg obYf h[\ifs Vc\iercVhu`mfsgtTaanVcXefs', Dr. Lloyd noted that Defendant accurately described the purpose of his detention at FMC Butner and demonstrated a generalized understanding of the potential outcomes of his competency evaluation. Id. at 17. She also
16

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believes that he understands certain complicated legal concepts, like plea bargaining. Id. For example, when presented with a hypothetical in which there was a large amount of evidence against him, Defendant suggested that, in that scenario, he would need to plead guilty. Id. at 18. Alternatively, when presented with a hypothetical in which there was little evidence implicating him, Defendant stated that he would fare better proceeding to trial. Id. With respect to the roles that the different parties play in the courtroom, Dr. Lloyd found that Defendant broadly understands the roles of his counsel —o "qtgob dWXeYfXeanWd [Qh[\i`mR]r" —o and the prosecutor —o "qtgob Yf\ianWd [Qh[i\`mR] gZhu\i_lgtlyr" —o and knows that he should not speak to the prosecutor without his attorney present. Id. Dr. Lloyd testified that Defendant mastered certain aspects of courtroom procedure by analogizing them to sports; after his meetings with Dr. Lloyd, Defendant came to view a judge as an umpire in a baseball game, responsible for ensuring that both sides follow the rules. Id. at 133:12o-18. Dr. Lloyd also found that Defendant benefits from reducing unfamiliar, complicated concepts into simpler, more digestible ones. He fails to grasp the concept of mandatory minimums in sentencing, for example, but he understands when told, step by step, that certain convictions automatically result in certain prison sentences. Id. at 134:2o-11. According to Dr. Lloyd, this trick —o breaking down a single, complicated concept into several punchier ones —o improves Defendaannttt'sf aTbU\i_l\igtly tgob uhnaWdXeer(stand things, but also prolongs discussions with Defendant about his case, which are already drawn out by his discomfort with the allegations against him. Id. at 134:12o-35:18.
With respect to D<XeYfXeanWdTaangtt'fs aTbU\i_l\igtly tgbo bUeXh[aTviXe aTcppcerbocper\iTagtXe_lly \ian cVbohuretg,' D<re). DL_lbolyWd aTcVk^nabojw_l(edged that Defendant appeared distracted at the status conferences before the undersigned, but suggested that his behavior was not disruptive. See DL_lbolyWdt'fs RJeXpcboregt at 18. She also cited his ability to recall specific details from the status hearings, including the date and time of the next status hearing, as evidence of his attentiveness despite his outward appearance. See 5/16/16 Tr. at
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222233::1155o-2244::66.. TThhoouugghh hhiiss ffaaiilluurree ttoo bbeehhaavvee aapppprroopprriiaatteellyy iinn ccoouurrtt aaddmmiitttteeddllyy ccoonncceerrnneedd DDrr.. LLllooyydd,, sshhee ffoouunndd tthhaatt ppoossiittiivvee rreeiinnffoorrcceemmeenntt,, oonnee--oonn--boanXe cVobnavieXresfaTtgi\obnasf,' aTanWd "q[Qk^]ReXeXpci\naZg tg[h\inagZfs sfh[obretg aTnaWd sfwjXeXegtr" sfaTtgi\sffYaTVcgtboer\i_lly i\m`cperboivXedd hhiiss bbeehhaavviioorr.. IIdd.. aatt 114466::1100o-4477::33.. AAddddiittiioonnaallllyy,, DDrr.. LLllooyydd oobbsseerrvveedd tthhaatt DDeeffeennddaanntt ssttooppppeedd ccoolloorriinngg aanndd ssttaarrtteedd ttaakkiinngg nnootteess aatt tthhee sseeccoonndd ssttaattuuss ccoonnffeerreennccee aafftteerr hheeaarr-i\anZg h[i\sf cVobuhnafsXe_l Wd\ifsVchufsfs h[i\fs cVobl_boer\ianZg \ian aT "qpceXj]obreaTtgi\vieX naTagthuerXe).r" IIdd.. aatt 114477::66o-1133.. AAccccoorrddiinngg ttoo DDrr.. LLllooyydd,, DDeeffeennddaanntt llaatteerr eexxpprreesssseedd rreeggrreett ttoo hheerr ffoorr ccoolloorriinngg dduurriinngg tthhee hheeaarriinngg.. IIdd.. aatt 114477::1144o-2211..
FFiinnaallllyy,, wwiitthh rreessppeecctt ttoo D<eXYfXeanWdTaangtt'sf aabbiilliittyy ttoo aaiidd iinn hhiiss oowwnn ddeeffeennssee,, DDrr.. LLllooyydd nnootteedd tthhaatt DDeeffeennddaanntt hhaass aa hhiigghh ooppiinniioonn ooff hhiiss ccoouunnsseell aanndd ffrreeqquueennttllyy iinnddiiccaatteedd tthhaatt hhee wwoouulldd nneeeedd ttoo ccoonnssuulltt wwiitthh tthheemm bbeeffoorree mmaakkiinngg aa lleeggaall ddeecciissiioonn.. SSeeee LD_lbolyWdt'sf RJeXpcobretg aatt 1188.. DDrr.. LLllooyydd ssuuggggeesstteedd tthhaatt cceerrttaaiinn aapppprrooaacchheess ttoo iinntteerraaccttiinngg wwiitthh DDeeffeennddaanntt,, lliikkee aasskkiinngg ssppeecciiffiicc qquueessttiioonnss tthhaatt wweellccoommeedd ooppeenn--eennddeedd rreessppoonnsseess aanndd pprroovviiddiinngg cclleeaarr eexxppllaannaattiioonnss ooff wwhhaatt hhee sshhoouulldd eexxppeecctt,, wwoouulldd iimmpprroovvee hhiiss rreellaattiioonnsshhiipp wwiitthh ccoouunnsseell.. IIdd.. MMoorreeoovveerr,, DDrr.. LLllooyydd bbeelliieevveess tthhaatt DDeeffeennddaanntt hhaass aa ggrraasspp ooff tthhee ggrraavviittyy ooff hhiiss ssiittuuaattiioonn aanndd aann aabbiilliittyy ttoo eennggaaggee iinn hhiiss lleeggaall ddeeffeennssee.. AAss nnootteedd,, DDrr.. LLllooyydd ffoouunndd iitt ccoommppeelllliinngg tthhaatt DDeeffeennddaanntt ssttooppppeedd ccoolloorriinngg aanndd ssttaarrtteedd ttaakkiinngg nnootteess dduurriinngg aa ssttaattuuss ccoonnffeerreennccee after hearriinngg hiiss counsel negaattiivveellyy rrefeerence hiiss coloriinngg. Id. at 14477::1144o-21. SShhe also ffoouunndd iitt notable that Defendant expreesssseedd ffrruussttrraattiioonn witthh llaaww eennffoorrcceemmeenntt ffoorr,, iinn hhiiss mmiinndd,, iinnssppeeccttiinngg hhiiss cceellll pphhoonnee wwiitthhoouutt hhiiss ccoonnsseenntt.. IIdd.. aatt 113388::1166o-3399::99.. DDeeffeennddaanntt ddiissccuusssseedd wwiitthh DDrr.. LLllooyydd hhiiss eellii-giibbiilliittyy for a split sentencee as wellll,, whichh she YfbohuanWd tgob bUeX "qpcreeXtgtgyl aTdWviTaanVcXeWd).r" Id. at 1411::88o-42:16. Additionally,, despite hiiss obviioouuss discomfortt ddiissccuussssiinngg hiss chharge,, Dr. LLllooyydd was iimmpprreesssseedd thatt D<eXfYeXnadWaTnatg aTsf^kXeWd h[Xeer wj[hly [hXe wjTafs bUeXi\anZg Vc[hTaerZgXeWd cV[h\i_lWd pcobrenaobZgerTacp[hly aTanWd nabogt "qsfeXxk wji\gt[h aT m`\ianboer).r" IIdd.. at 1355::22o-23. TThesse conversattions, coouupplleedd witg[h D<re.) DL_lbolyWdt'fs obbUfsXereivTagt\iboanfs obYf D<eXfYeXnadWaTangt eXanZgTaZg\ianZg wwiitthh hhiiss ccoouunnsseell,, sseeee iidd.. aatt 113377::44o-1144,, iinnffoorrmmeedd hheerr ooppiinniioonn tgh[aTtg D<eXYfXeanWdTaangtt'sf cVobgZnai\tgi\vieX _l\i`m\igtTagt\iboanfs ddoo nnoott pprreevveenntt hhiimm ffrroomm mmeeaanniinnggffuullllyy assisttiinngg inn hhiiss own deffennse.
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Accordingly, Dr. Lloyd concluded that Defendant is sufficiently competent for this case to proceed, so long as he receives the following assistance at trial: counsel must explain to him legal terms while avoiding legal jargon; counsel m`uhsftg "qeXxkpcl_aTi\na the steps in his legal proceedings in a brief,' sftgeXcp bUyl sftgeXcp m`aTnaanXere aTfs tgh[Xe cVaTfseX pcreboVcXeXeWdfsr"6; pcrei\ober tgbo eXTaVc[h dWaTyl,' VcbohunasfeXl_ must review with him the likely schedule of events and questions that he will receive; counsel must provide him with behavioral expectations; the Court must provide him with a pencil and paper during proceedings; and the Court must provide him with breaks during the day so that he may expend excess energy and confer with counsel. See DL_lbolyWdt'sf RJXepcobregt at 19o-20.
4. D<re). DL_lbolyWdt'sf A8dWm`i\nai\sfgtreaTgt\iobna obYf tghe CAST-MR To confirm her findings, Dr. Lloyd administered the Competence Assessment for Standing LTer\iTa_l fYober D<eXfYeXnadWaTnagtfs wji\tgh[ MEeXnatgaTl_ RJeXtgaTredWaTtgi\obna ($"qC;A8SKTL-EMJRr"%) tgob D<eXfYeXnadWaTnatg oban A8uhgZuhsftg 1,1,,' 2-0+1,50,' shortly before he was released from FMC Butner. Id. at 19. The CAST-MR is an assessment designed specifically to determine whether an adult with Intellectual Disability is competent to stand trial. See Def. Exh. 4, CAST-EMJR MEaTnauhTa_l ($"qC;A8SKTL-EMJR MEaTnahuTa_lr")%). Incorporating a means to evaluate the elements of competency established by the Supreme Court in Dusky, the CASTMR includes three sections: (1) bUaTsfi\cV l_XegZTa_l VcboanVcXecpgtsf,' wjh[\iVc[h aTsffsXefsfsXefs aT dWXeYfXeanWdTaangtt'fs k^naobwj_lXeWdZgXe obYf the criminal justice process; (2) sfk^i\l_l_sf tgob aTsffs\isfgt dWeXfYeXnasfeX,' wjh[\iVc[h aTsfsfeXfsfsXefs aT dWXeYfXeanWdTaangtt'fs uhnadWXeerfsgtTaanWd\ianZg of the attorney-client relationship; and (3) uhnadWeXerfsgtTaanWd\ianZg VcTafsXe eXvieXnatgsf,' wjh[i\Vc[h aTsffseXfsfsXefs aT dWXeYfXeanWdTaangtt'fs ability to discuss the case against them in a coherent manner and to understand the relationship between the alleged facts and the subsequent charge. See CAST-MR Manual at 3o-4. The first two sections consist of forty multiple choice questions, while the final section requires a defendant to answer ten open-ended ones. For the sections containing multiple choice questions, the examiner reads the questions and the accompanying answers aloud to the defendant,
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repeating the question and answers up to three times, and then reeXVcboerWdfs tgh[eX dWXeYfXeanWdTaangtt'fs aTnasfwjeXerfs). Id. at 5. There are also a series of practice questions that precede the first and second section of the CAST-MR designed to ensure the defendant understands the testing format and to decrease any test-related anxiety. Id. at 6. On the third section, the examiner may ask each open-ended qdhuXefsgt\iboan tgwji\cVeX aTanWd m`uhsfgt erXeVcboerWd tgh[Xe D<eXYfXeanWdTaangtt'fs aTnasfwjeXer vieXrebUaTtgi\m`.) Id. at 9. The examiner may prompt the defendant for more complete answers and rephrase the questions when necessary. Id. WOh[i\l_eX tgh[eX WdXeYfXeanWdTaangtt'sf aTnasfwjeXerfs \ian tgh[eX fYi\erfsgt two sections are either right or wrong, they can receive partial credit for their open-ended responses on the third section bUaTfsXeWd boan tgh[eX aTanfsjwXeert'sf aTcVVchuerTaVcly and coherence. Id. at 10o-11.
Dr. Lloyd was the first individual to administer the CAST-MR to Defendant, and she noticed that he appeared uninterested and unwilling to put forth his full effort almost as soon as the assessment began. Id. at 160:16o-61:10, 162:111o-22. In the first section testing basic legal concepts, Yfbore XekxTa`mpcl_eX,' D<eXfYeXnaWdaTangt sfeXl_XeVcgtXeWd aTna aTnasfwjXeer i\anWd\iVcTagt\ianZg tgh[aTgt aT j]uhdWgZXe "qwjobrek^fs Yfboer ylbohuer _lTajwlyXeerr" WdeXsfcp\itgeX demonstrating an understanding of the role of a judge in previous meetings with Dr. Lloyd. Id. at 163:16o-64:10. Dr. Lloyd stopped administering the second section measuring his understanding of the attorney-client relationship before Defendant finished bUeXcVaTuhsfeX sf[hXe "qcVobuhl_Wd tgeXl_l_ [Qtgh[Tagt tgh[eXylR] h[TaWd dobnaeX aTsf m`huVc[h aTsf [Qtgh[eXylR] Vcbohu_lWd ZgXegt aTVcVcbo`mcp_l\ifs[hXeWd).r" See 5/17/16 Tr. at 336:25o-37:6. However, on the open-ended questions in the third sfeXcVgt\iboan', wjh[i\cV[h tgeXfsgtfs D<XeYfXeanWdTaangtt'fs uhnadWeXerfsgtTaanWd\ianZg obYf VcaTfsXe events, Dr. Lloyd found that Defendant responded correctly ninety percent of the time. DL_lbolyWdt'fs Report at 9. Despite what Dr. Lloyd perceived to be a strong showing on the final section, Defendant scored a twenty-two out of fifty on the CAST-MR overall, a failing performance by a number of metrics. See Def. Exh. 2, Defendaaangtt's CAST-MR ($"qD<XeYfXeanWdTaangtt'sf C;8AKSLT-EMJRr"%) at 1; see also CAST-MR Manual at 20. In a study cited in the CAST-MR manual, for example, the mean
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score for thirty-six individuals with Intellectual Disability found incompetent to stand trial was 25.6 out of fifty, m`obreeX tgh[aTna tgh[reeXeX pcob\iangtfs h[\igZ[hXeer tgh[Taan D<XeYfXeanWdTaangtt'sf sfcVobreXe. Id.
Though Defendant fared better on the open-ended questions, Dr. Lloyd suspects that the CAST-MR testing format, which required him to follow along in an examination booklet as she read aloud, caused him to disengage. See 5/16/16 Tr. at 163:4o-64:18. Moreover, Dr. Lloyd reasoned that Defendant performed poorly in the sections of the CAST-MR containing multiple choice questions because he struggled to retain all the information —o i.e., the three answer choices —o at once. Id. at 168:19o-69:14. In fact, after she finished administering the CAST-MR, Dr. Lloyd asked Defendant the multiple choice questions that he had gotten wrong as open-ended questions and noted that he answered many of them, in her view, satisfactorily. Id. at 170:15o-71:24. When confronted with the discrepancies in his responses, Defendant claimed that the multiple answer choices confused him. See DL_lbolyWdt'sf RJeXpcobretg at 19. Despite wjh[aTtg sfh[Xe pceXrecVXe\iivXeWd tgbo bUeX D<XeYfXeanWdTaangtt'fs lack of effort during the administration of the CAST-MR, Dr. Lloyd assured the Court that he is not a malingerer —o his IDM diagnosis is long-standing and undeniable. 5/16/16 Tr. at 1911::2222o92:24.
KSgt\i_l_l,' D<re.) DL_lbolyWd bUeXl_i\eXvieXfs tgh[Tagt D<XeYfXeanWdTaangtt'fs C;8AKSLT-MR score underestimates the extent of D<XeYfXeanWdTaangtt'sf ^knaobwjl_eXdWgZeX aTanWd Vcbo`mcpXegtXeanVcyl). Id. at 164:155o-18. As she testified, the CAST-MR provides just a single piece in the mosaic of data that experts consider in completing competency evaluations. See id. at 160:16o-24. Indeed, based on her assessment and observations of Defendant, Dr. Lloyd testified at the competency hearing that she believes he understands the nature of the allegations and charge against him, that he can assist his attorneys, and that he can rationally participate in his own defense. Id. at 184:4o-20. In other words, Dr. Lloyd believes that he is competent to stand trial, assuming the Court provides the accommodations outlined above. Id.
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Further, on cross-examination, she denied that her previous finding of incompetency tainted her obvieXrefs\igZ[hgt obYf D<XeYfXeanWdTaangtt'fs erXefsgtboerTagt\iboan tgob cVobm`pceXtgeXnacVyl,' ober tgh[aTtg sfh[eX fYeXl_tg aTanly pcreeXsfsfuhreeX tgob fY\ianWd D<eXfYeXnadWaTnatg competent based on her role in the restoration process. Id. at 174:17o-75:22. As proof, Dr. Lloyd testified that Defendant is the only individual with IDM she has ever found to be incompetent and, then, restored to competency.66 IIdd. at 176:222o-23.
5. D<re). D<XeananXelyt'sf OGcp\ian\iboanfs aTnaWd C;obnaVc_lhufs\iboanfs F>bo_l_lbojw\ianZg D<re). DL_lbolyWdt'fs dWeXtgeXrem`\inaTagt\iboan tgh[aTtg D<eXfYeXnaWdaTangt h[aTfs bUeXeXan reXefsgtboerXeWd tgob cVbo`mcpXegtXeanVcly tgbo stand trial, defense counsel retained Dr. Denney to provide an expert opinion on the matter. See D<XeananXelyt'fs Report at 1. A clinical neuropsychologist and forensic psychologist, Dr. Denney previously worked for the BOP for several decades, conducting, among other things, competency and restoration to competency evaluations. 5/17/16 Tr. at 344:19o-45:12, 349:2o-20. During his training, he specialized in forensic psychology aTnaWd h[aTfs tgeXsfgt\iYf\iXeWd "qwjeXl_l_ obivXeer 1,+0+0 tgi\m`Xefsr" \ian fYXeWdXeerTa_l cVobhuergtfs across the country as an expert witness. Id. at 345:55o-12, 359:133o-22. Though he worked as a forensic neuropsychologist for over two decades with the BOP, he currently is in private practice, operating a clinical neuropsychology office specializing in criminal evaluations related to defendants with Intellectual Disability. Id. at 349:2o-20, 358:55o-22. Additionally, Dr. Denney has authored twenty-eight peer-reviewed publications as well as several books on clinical forensic psychology. Id. at 354:22o-56:1. For these reasons and others articulated more fully at the competency hearing,' tgh[eX uhnaWdeXerfs\iZganXeWd ZgerTaangtXeWd D<eXYfXeanWdTaangtt'sf m`obtgi\oban tgbo qduhTa_l\iYfly D<re). D<eXananXely aTsf aTna eXxkpceXretg \ian tgh[eX area of clinical neuropsychology and forensic psychology. Id. at 380:1o-18.
66 At the competency hearing, Dr. Lloyd explained that approximately eighty-five percent of her caseload consists of restoration to competency cases. 5/16/16 Tr. at 182:7o-84:3. Of those, she has found only forty-seven percent restored to competency. Id. Relatedly, eight percent of her restoration cases involve individuals with IDM, and Defendant is the only one that she has found to have been restored to competency. Id.
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As part of his evaluation, Dr. Denney erXeiv\iXejwXeWd D<XeYfXeanWdTaangtt'sf m`eXnatgaTl_ h[eXaT_lgt[h ereXVcboerWdfs aTnaWd met with him on September 15 and 16, 220015, for a little over seven hours at CTF in Washington, D.C. Id. at 1o-2; see also 5/17/16 Tr. at 463:13. During his evaluation, Dr. Denney administered a number of psychological tests, including the WAIS-IWV and the WJ-III, on which he asserts Defendant performed extremely poorly. Id. at 2-3. On the WAIS-AWN,' fYober XekxTa`mcp_lXe', D<XeYfXeanWdTaangtt'sf VcTacpTaVc\igtly Yfboer YfboVchufsXeWd aTtgtgeXnatgi\obna,' tgh[obuhgZh[ aTdWeXqduhaTtgeX,' "qsfi\gZnai\fYi\cVTaangt_lly wjeXakened as it required sustain[ed] [attention], and he demonstrated impulsivity and significantly slow speed of mental pcreobcVXefsfs\ianZg).r" D<XeananXelyt'sf Report at 22. Defendant obtained a full scale IQ score of sixty-five, which falls in the bottom one pceXrecVXeangt obYf i\anWd\iiv\iWdhuTa_lt'fs \ian h[\is age group. Id. at 23. His performance on the verbal comprehension section of the WAIS-IWV put him in the bottom fourth percent and his performance on the WJ-III established that he has the basic reading skills of a child in the second grade. Id. at 22. On the oral comprehension subsection, he demonstrated the capabilities of a first grader. Id. He also displayed significant impairments in his learning and memory, struggling to perform simple tasks that involved retaining and recalling information. Id. aTtg -2.3). B9aTfsXeWd oban D<XeYfXeanWdTaangtt'sf "qeXxktgreeXm`eX_lly _lbojw level of intellectual functioning and significantly impaired adaptive functioning across all dom`Ta\ianfs',r" D<re.) D<eXananXely bUeXl_i\eXviXefs tg[hTagt D<XeYfXeanWdTaangtt'fs IA<DEM dW\iTagZanbofs\ifs \ifs cVborereeXcVtg.) Id. at 23o-24.
Though he did not administer the CAST-MR during his evaluation', D<re.) D<XeananXelyt'sf cVobm`cpeX(tency report and testimony before the undersigned highlight what he considers to be a number of pcreobbUl_eXm`sf wj\igt[h D<re). DL_lbolyWdt'sf aTdWm`\ian\ifsgteraTgt\iboan of the assessment as well as his own observations of D<XeYfXeanWdTaangtt'sf pceXrefYbore`mTaanVcXe). LTbo begin, D<re.) D<eXananXely bUeXl_i\eXvieXsf tgh[aTgt D<XeYfXeanWdTaangtt'sf YfTa\i_lhuerXe tgbo aTnasfwjXeer tgh[Xe multiple choice questions correctly during the CAST-MR, only to provide satisfactory answers to the same open-ended questions afterwards, reveals the severity of D<XeYfXeanWdTaangtt'fs deficiencies with
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his cognitive capacity and auditory comprehension. See 5/17/16 Tr.at 422:100o-19, 428:5o-20. Further,' aTcVcVoberWd\ianZg tgob D<re.) D<eXnanaeXyl,' D<eXYfXeanWdTaangtt'sf sfcVobreeX boan tgh[eX C;A8KST-MR should be even lower than his already-low score because Dr. Lloyd gave him full credit for incomplete or improper answers to the open-ended questions. Id. at 431:6o-33:12. For example, on one open-ended question asking Defendant to identify the date and time of the events that led to his arrest, Dr. Lloyd gave Defendant full credit for providing a date without a time or even a temporal approximation. Id. at 4311::22o20. On another question, which asked Defendant to explain who he was with when he engaged in tgh[eX aTcVgt\iiv\igtly tgh[aTtg cVaThufsXeWd [hi\`m tgbo bUeX aTreereXfsgtXeWd', D<XeYfXeanWdTaangtt'fs aTnasfwjXere reflects instead who he was with when he was actually arrested and Dr. Lloyd gave him full credit for that response. See id. at 431:21 —o 432:2; see also D<XeYfXeanWdTaangtt'fs C;A8SKTL-MR at 7. In total, had D<re.) D<XeananXelyt's scored DefendaTangtt'sf pceXrefYobrem`aTanVcXe boan tgh[Xe Yf\maTa_l sfeXVcgtion of the CAST-MR, Defendant would have received six points instead of nine, meaning that his overall score would have been a nineteen out of fifty instead of twenty-two. See 5/17/16 Tr. at 433:1o-12. At a minimum, though, D<XeYfXeanWdTaangtt'sf performance on the CAST-MR suggests to Dr. Denney that whatever basic understanding of legal terms he possesses will be rendered useless in an actual trial by his cognitive deficits and emotional limitations. See D<XeananXelyt'sf RJeXpcobergt at 27.
As noted, while D<re). DL_lbolyWd aTanWd D<re.) D<XeananXely aTgZreeXeX boan D<XeYfXeanWdTaangtt'sf Wd\iTagZanbofs\ifs,' tgh[eXi\er obpci\nai\obanfs as to his competency differ. During the administration of the Competency Assessment InstrumentRevised, a semi-fsgterhuVcgthuerXeWd \iangtXeeriv\iXejw cVboivXeer\ianZg D<eXYfXeanWdTaangtt'fs Vcbo`mcperXe[hXeanfs\iboan obYf tg[heX _lXeZgTa_l pcreobcess and his case, Dr. Denney noted that Defendant demonstrated a limited factual understanding of the charge against him and the potential results of a guilty conviction. Id. at 25. He described his cVh[aTregZeX aTfs "qcVh[i\l_Wd pcoberanboZgerTacp[hly',r" bUuhtg wjaTfs uhnaaTUb_lXe tgob eXkxpc_lTain that the charge involves sexual conduct with a minor without significant guidance from Dr. Denney. See 5/17/16 Tr. at 489:33o-22. Though
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he superficially understands that his counsel will defend him, he struggled to explain what it means to defend someone in court. See D<XeananXelyt'sf RJeXcpboergt at 26. Moreover, after becoming frustrated while trying to explain the different roles of courtroom actors, Defendant abruptly left the evaluation room. Id. Overall, Dr. Denney bocp\ianXeWd tgh[aTtg D<XeYfXeanWdTaangtt'sf sfi\gZnai\fY\iVcaTnagt WdXeYf\iVc\iencies in cognitive functioning make it difficult for him to understand his surroundings. Id. at 27. He frequently responded to simple questions in a manner that reflected a misunderstanding of the actual question being posed; when asked how many siblings he has, Defendant was unable to articulate a clear answer for several minutes. Id. at 211,,227. He consistently demonstrated issues with impulsivity and poor decision-making, and Dr. Denney believes that efforts at competency restoration will do little to improve these problems. Id. at 27. For example, while Defendant at one point suggested that he would prefer a bench trial to a jury trial, his reasoning behind that response —o that a bench trial would be faster —o reflects juvenile judgment and a misunderstanding of the seriousness of his case. Id.
With respect to the accommodations proposed by Dr. Lloyd to permit Defendant to stand trial, Dr. Denney believes that they are insufficient to overcome his significant intellectual and adaptive deficiencies. Id. at 450:12o-51:10. Defendant, Dr. Denney said, would surely benefit from breaks, but he demonstrates such poor mental processing and oral comprehension that he will never fully understand what is happening at trial. Id. According to Dr. DennXelyt'sf aTsfsfeXsfsfm`eXnagt', Defendant demonstrated "qsfeXvieXreeX_lly i\`mcpTa\ierXeWdr" auditory cVbo`mcperXe[hXeanfs\iboan aTanWd "qsftgrei\k^i\nagZ_lly wjXeTa^kr" obreaT_l comprehension skills. See D<XeananXelyt'sf RJeXpcobregt aTgt -22-.) H@i\fs aTbU\i_l\igtly tgbo uhanWdXeerfsgtTaanWd wjh[aTgt i\fs bUeX\ianZg sfaTi\dW', Dr. Denney found, is consistent with that of a seven-year-old. See 5/17/16 Tr. at 399:22o-17. As such, Dr. Denney argues that no accommodation, including anti-anxiety medication, would have an impact on his cognitive efficiency or decision-making at trial. Id. at 452:20o-53:11. In other
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wwoorrddss,, hhee llaacckkss tthhee ccooggnniittiivvee aabbiilliittyy ttoo hhaavvee aa rraattiioonnaall uunnddeerrssttaannddiinngg,, oorr eevveenn ttoo lleeaarrnn ttoo hhaavvee aa rraattiioonnaall uunnddeerrssttaannddiinngg,, ooff wwhhaatt iiss hhaappppeenniinngg iinn hhiiss ccaassee;; mmuucchh lliikkee ttrryyiinngg ttoo tteeaacchh hhiigghheerr mmaatthh ttoo aa sseevveenn--yyeeaarr--oolldd,, DDeeffeennddaanntt llaacckkss tthhee ccaappaacciittyy ttoo lleeaarrnn tthhaatt kkiinndd ooff iinnffoorrmmaattiioonn.. See id. aatt 339911::2255o9944::1188,,440088::99o-0099::77.. TThhuuss,, tth[eX i\sfsfuheX wji\tgh[ D<re). DL_lbolyWdt'sf aTtgtgeXm`pctg aTtg cVob`mcpXegtXeanVcly reeXsftgobreaTtgi\obna,' D<re.) D<eXan(nneeyy eexxppllaaiinneedd,, iiss tthhaatt,, ffoorr iinnddiivviidduuaallss wwiitthh IInntteelllleeccttuuaall DDiissaabbiilliittyy,, tthheerree iiss nnoo wwaayy ttoo rreessttoorree sskkiillllss tthhaatt tthhee iinnddiivviidduuaall nneevveerr hhaadd iinn tthhee ffiirrsstt ppllaaccee.. TThhee ccooggnniittiivvee ddeeffiicciittss ccaauusseedd bbyy hhiiss IIDDMM aarree,, ppuutt sfi\m`pcl_yl,' huangterXeTagtTaUb_lXe). D<XeananXelyt'sf RJeXcpboergt aTtg 2-83,' see also 55//1177//1166 TTrr.. aatt 445533::1155o-2244,, 553344::55o-1111.. AAcc-ccoorrddiinnggllyy,, DDrr.. DDeennnneeyy bbeelliieevveess "qbUeXylobnaWd aT reeXaTfsboanaTbUl_eX dWbohuUbgtr" tgh[aTtg D<eXfYeXnaWdTanatg i\fs nnoott ccoommppeetteenntt ttoo ssttaanndd ttrriiaall aanndd wwiillll ccoonnttiinnuuee ttoo bbee ssoo ffoorr tthhee ffoorreesseeeeaabbllee ffuuttuurree.. Id. aatt 445544::99o-1155..
CC.. D2eJKfeJQnIdFaQnVtZ'sU C1oRWuTrVtTrRoRoPm D2eJcHRoTrWuPm D<uhre\ianZg tgh[eX cVobuhresfeX obYf D<XeYfXeanWdTaangtt'fs cVbo`mcpXegtXeanVcly reeXfsgtobreaTgt\iboan pcreobcVeXsfsf,' h[eX aTpcpcXeTaerXeWd bUeXfYobreeX tgh[eX uunnddeerrssiiggnneedd aa nnuummbbeerr ooff ttiimmeess,, mmoosstt pprroommiinneennttllyy ffoorr hhiiss ccoommppeetteennccyy hheeaarriinngg oonn MMaayy 1166 aanndd 1177,, 22001166.. FFoorr tthhee mmaajjoorriittyy ooff tthhee ccoommppeetteennccyy hheeaarriinngg,, tthhee uunnddeerrssiiggnneedd oobbsseerrvveedd tthhaatt DDeeffeennddaanntt oocc-cVhucp\iXeWd h[i\sf tgi\m`Xe wji\tgh[ Wd\isftgreTaVcgt\iboanfs', cVbo_lboer\ianZg i\na cV[h\i_lWderXeant'sf cVob_lboer\ianZg bUobobk^sf aTnaWd cVbo`mcp_lXegt\ianZg cV[h\i_lWderXeant'sf wordd puzzles. See 5//1177//1166 Tr. at 55555::44o-17. He seemmeedd to be payiinngg little attention to whatt wass ggooiinngg on arounndd him, althoughh, to be sure, he occasiioonnaallllyy made eye ccoonnttaactt withh witnesssseess anndd nnooddddeedd aass iiff hhee wwaass aaggrreeeeiinngg wwiitthh oorr lliisstteenniinngg ttoo tthheeiirr tteessttiimmoonnyy.. Seeee id. aatt 555566::99o-1188.. FFoorr tthhee bulkk off the hearing, howeverr, Defendant wass eiitthheerr disttrraacctteedd or eennggaaggiinngg iinn otherwise iinnaapppprroo-priate courtroooomm behavior. At one point, forr example, he placeedd his hanndds over hiiss earrss ass iiff too blockk out testtiimmoonnyy thaat he wass hearinng,, anndd he spentt a portionn off the seccoonndd daayy off thee heaarriinngg wwiitthh hhiiss heeaadd on thee table. See id. at 55555::44o-11. WOh[i\l_eX D<XeYfXeanWdTaangtt'sf bUeXh[aTiv\iboer aTgt tgh[eX Vcbo`mcpXegtXeanVcly h[eXTaer\ianZg \ifs ppaarrttiiccuullaarrllyy nnootteewwoorrtthhyy iinn tthhaatt iitt occuurrrreedd after Dr. LLllooyydd opiinneedd that Defendant has beenn resttoorreedd to ccoommppeetency,, it also marrkkss a
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cVboangt\ianhuTagt\iboan obYf D<XeYfXeanWdTaangtt'sf worrisome behavior before the undersigned. At the July 21, 2015 status hearing, for example, Defendant spent nearly the entire time fidgeting and coloring in a cV[h\i_lWderXeant'sf cVbo_lboering book.
ANALYSIS AND CONCLUSIONS OF LAW A. Burden of Proving Restoration to Competency Once a court makes an initial determination, based on a preponderance of the evidence, that a defendant is not competent to stand trial pursuant to 18 U.S.C. § 4241(d), section 4241(e) provides the court with the procedure for determining whether the defendant can be restored to competency. See 18 U.S.C. § 4241(e). While it clearly defines the proper standard of proof at the competency restoration stage —o a preponderance of the evidence —o section 4241(e) is silent as to which party bears the burden of proving that the standard has been met. See id. Since the Supreme C;bohuergtt'sf WdXeVc\ifs\iboan \ian Cooper v. Oklahoma, 517 U.S. 348, 362 (1996), which stated in dicta that "qtgh[eX aTcVVchufsXeWd i\na aT YfXeWdeXreaT_l pcreobsfeXcVhugt\iboan m`uhsftg pcreobviXe i\nacVbom`pceXtgeXanVcXe bUyl aT pcreeXpcobnadWeXreaTnacVeX obYf tgh[eX Xeiv\iWdXeanVcXe',r" some circuits have placed the burden on the defendant to prove his incompetence under section 4241(d). See United States v. Whittington, 586 F.3d 613, 618 (83tg[h C;i\re.) 2-0++049%) ($"qTLh[eX gZuhi\dWaTnacVeX obYf tgh[eX KShucpreXe`meX C;obuhretg,' aTnaWd tgh[Xe reeXVceXangt pcreeXcVeXdWeXangt obYf tgh[\ifs cVi\ercVuhi\gt,' sfhucpcpboergt tgh[Xe ZgboivXeeran`mXeangtt'fs pcobsfi\tgi\oban tgh[Tatg tgh[eX bUuhredWeXan i\sf oban tgh[eX WdXeYfeXanWdTaangt tgob pcreobviXe \ianVcbo`mcpXegteXnacVeX bUyl aT pcreeXpcobnadWeXreaTanVcXe boYf tgh[Xe eXiv\iWdXeanVcXe).r"%)6; see also United States v. Robinson, 404 F.3d 850, 856 ($4/tg[h C;i\re.) 2-0++005%) ($"qUMnadWeXer fYeXdWeXreaTl_ l_aTjw the defendaTnatg h[aTfs tgh[eX bUuhredWeXna,' s'bby a preponderance of the evidence [to show] that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist pcreobcpXeer_lly i\na h[\ifs dWXeYfXeanfsXe).t'r" ($cV\igt\ianZg 1,83 UM.)KS.)C;.) §n 4/2-4/1,$(Wd%) aTanWd Cooper, 517 U.S. at 362)); but see United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cire.) 2-0+0+61%) $("q[QTL]Rh[eX reeXl_eXviaTnatg cVbo`mcpXegtXeanVcly
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statute arguably contemplates that the burden will lie with the party making a motion to determine cVbo`mcpXegtXeanVcly).r" ($cVi\tgi\anZg 1,83 UM.)KS).;C). §n 4/2-4/1,)%)%.) These cases, however, fail to address who bears the burden of proving that a defendant who was previously found incompetent has been restored to competency under section 4241(e).
Finding no controlling precedent from the Supreme Court, nor any direct guidance from the D.C. Circuit Court, the undersigned concludes that the burden tgob pcreobvieX aT WdXeYfXeanWdTaangtt'fs reeXsftgobreTa(tion to competency pursuant to section 4241(e) rests with the government. To begin, a litany of cases from district courts across the country uniformly place the burden under section 4241(e) on the government. See, e.g., United States v. Carter, No. 1:12-CR-29, 2013 WL 6668715, at *11 ($E=.)D<.) LTXeanna.) D<eXcV.) 1,83,' 2-0+1,3.%) ($"qIt appears the burden of proving a defendant who was previously found incompetent is now competent may be allocated to the government.r"%)6; see also United States v. Hall, No. 4:111—oCCRRo-00223-o0044—oBBCCW, 2013 WL 2444603', aTtg *&/4 ($WO.)D<.) MEob.) BJhuaneX 05', 2-0+,1.3%) ($"qAfter there has been an adjudication of incompetence and the defendant has been committed to the Attorney General for a determination as to whether there is a substantial probability that in the foreseeable future the defendant will attain the capacity to permit the proceedings to go forward, as in this case, pursuant to 18 U.S.C. § 4241(e), the burden of persuasion shifts to the Government.r"%)6; United States v. Bergman, No. 04-CR-00180-WDM, 2011 WL 1793261, at *8 (D. Colo. May 5, 2-0+,1,1%) ($"q[QTL]Rh[eX bUuhredWeXan i\fs uhpcboan tgh[eX gZobvieXernam`Xeangt tgbo pcreobvieX bUyl aT pcreeXpcobnadWeXreaTnacVeX obYf tgh[eX eXiv\idWeXancVXe tgh[aTtg [Qtgh[eX dWXeYfXeanWdTaangtt'sfR] Vcbo`mcpXegtXeanVcXe wjaTfs reeXfsgtboerXeWd \ian OGcVtgobbUeXer 2-0+0+27 ). ). ). .)r")%6; United States v. Cabrera, No. 07-20760-CR, 2008 WL 2374234, at *6 (S.D. Fla. June 6, 2008) (noting the burden of persuasion shifts from the defendant to the government after an adjudication of incompetency). Moreover, common sense dictates that the burden should rest with the government at this stage of the com-
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petency proceedings. The Court found, pursuant to section 4241(d), that Defendant was not competent to stand trial and he was thereafter committed to FMC Butner to determine if his competency could be restored. Because the government nbojw sfeXeX^kfs aT cV[haTangZXe i\na tg[hXe C;bohuergtt'sf cVob`mcpXegtXeanVcly determination —o that is, a finding that Defendant has been restored to competency —o basic legal principles indicate that the government should bear the burden to persuade the Court to change its mind. See United States v. Baldwin, No. 1:10-CR-146, 2012 WL 5205814, at *2 (W.D. Mich. Oct. 22, 2012) (q"[QTL]Rh[eX burden is properly on the government in the somewhat unique circumstances of this case, where the court has already found that defendant is not competent to stand trial and the government is seeking a reversal of that finding.r")%.)
Accordingly, the undersigned concludes that the burden to prove, by a preponderance of the evidence, that Defendant has been restored to competency pursuant to section 4241(e) rests, in this case, on the government.
B. D2eJKfJeQnIdFaQnVtZ'sU C1RoPmSpJeVtJeQnHcYy LTh[eX qduheXfsgt\iboan obYf D<XeYfXeanWdTaangtt'fs Vcbo`mcpXegtXeanVcly tgob sftgTaanWd tgrei\aTl_ is a complicated one. It is muddled by his condition, IDM, which is often associated with aT "qcVobnasftgeXl_l_aTtgi\oban obYf cVobgZnai\gti\ivXe i\`mcpTa\ier`mXeangtfsr" that the Court must factor into its competency determination. United States v. Norrie, No. 5:11CR-94, 2012 WL 4955211, at *7 (D. Vt. Oct. 17, 2012). As the Supreme Court noted in Atkins v. Virginia, 536 U.S. 304, 318 (2002), and as the undersigned observed, individuals with Intellectual Disability suffer from an amalgamation of mental impairments: below-average intelligence, limitations in adaptive skills, diminished capacities for communication and understanding, and a predilection for acting on impulse rather than premeditation. A diagnosis of Intellectual Disability by itself, however, "qi\sf naobtg Wd\isfpcobsfi\tgi\vieX obYf i\nacVobm`cpXegtXeanVcly tgob sftgaTanWd tger\iTa_l).r" Baldwin, 2012 WL 5205814,
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at *2 (citing Atkins, 536 U.S. at 306). As Dr. Lloyd explained, roughly seventy percent of individuals with IDM are competent to stand trial. Defendant, having already been found not competent to stand trial, of course, is not a part of that statistic. Instead, he falls into the thirty percent of individuals with IDM who have been found incompetent to stand trial, and this Court must now determine whether, despite that previous finding, he has been restored to competency. As Dr. Lloyd acknowledged, such a determination would be a rarity; in her own experience, Defendant is the only individual with IDM that she has ever found to be restored to competency following an initial finding of incompetency to stand trial. Indeed, her acknowledgment reveals a fundamental tension at the heart of this matter: how can a person with an immutable intellectual impairment that previously rendered him incompetent to stand trial now have overcome that impairment such that he rationally understands the case against him?
Despite this tension, both parties agree that Defendant possesses a sufficient factual understanding of the case against him. At a minimum, he appears to understand that he has been charged with the production of child pornography and that the charge involves sexual conduct with a minor. He has also demonstrated an understanding of the actors involved in courtroom procedure, although the consistency and depth of his knowledge has wavered throughout his evaluation and restoration process. Seeing no reason to reject dWeXfYeXnasfeX VcbohuanfsXe_lt'fs concession as tgob D<XeYfXeanWdTaangtt'sf factual understanding of the case, the undersignneeddt'fs reeX`mTa\ian\ianZg tgaTsf^k is to determine whether DeYfXeandWaTnatg "qh[aTfs aT sfuhfYfYi\cV\ieXnagt pcreeXsfXeangt aTUb\i_l\igtly tgbo cVobanfshu_ltg wj\igt[h h[i\fs l_TawjylXeer wji\tgh[ aT erXeTafsboanTaUb_lXe dWeXgZreXeXe obYf rational understanWd\ianZgr" aTnaWd "qaT erTagt\iboanTa_l ). .) .) uhnadWeXrefsgtTaanWd\ianZg obYf tgh[eX pcreobcVeXeXWd\ianZgfs aTgZaT\ianfsgt h[\i`m).r" Dusky, 362 U.S. at 402.
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The government urges the undersiganXeWd tgob fYuh_l_lly aTdWobpcgt D<re.) DL_lbolyWdt'sf cVobancV_lhufs\iboan as to these two inquiries. Relying on United States v. Battle, 613 F.3d 258, 260 (D.C. Cir. 2010), the governm`eXnatg aTregZhuXefs tgh[aTtg D<re.) DL_lbolyWdt'fs obcp\ian\iboan that Defendant has been restored to competency, which was formed over the cobuhrefseX obYf D<XeYfXeanWdTaangtt'sf Yfbohuer m`boangt[hfs at FMC Butner, deserves more weight in the uhanWdXeerfs\iZganXeWdt'sf cVobm`cpXegtXeanVcly analysis thaTan D<re.) D<XeananXelyt'sf,' wjh[i\cV[h wjaTsf Yfober`mXeWd obvieXre tgh[eX cVobuherfseX obf a two-day evaluation after Defendant left FMC Butner. See Pl. Resp. at 17-18. The government believes that D<re.) DL_lbolyWdt'fs _lboanZgXeer evaluation allowed her to have more intimate discussions with Defendant, during which, the government contends, he revealed a rational and thoughtful understanding of the proceedings against him, including an understanding of the concept of split sentences, aT cVhuer\ibofs\igtly aTbUobuhtg tgh[eX ZgboivXeeran`mXeangtt'fs WdXeVc\ifs\iboan tgbo Vc[hTaerZgXe h[\i`m wj\igt[h Vc[h\i_lWd pcobrenaography instead of another crime, and an ability to contemplate the amount of evidence that might compel him to plead guilty or go to trial. Id. at 19. Additionally, the government suggests that Defendant learned adaptive behavior through his meetings with Dr. Lloyd, abandoning his coloring during a court appearance after his counsel referred to the habit disparagingly. Id. at 20. Most significant to the gZboivXeeran`mXeangtt'fs VcaTl_cVuhl_uhsf,' tgh[obuhgZ[h', i\fs tg[heX reeXvieX_lTation that Defendant believes that law enforcement searched his cell phone without his consent or a warrant. Id. This, the government argues, establishes that Defendant can reason through complicated legal issues and that he will be able to assist in his defense. Id. at 19o-20.
The undersigned finds these arguments unavailing. For one, tgh[eX ZgboivXeeran`mXeangtt'fs reeX_l\iTaanVcXe oban Battle is misplaced. Far from creating a bright-line rule that the competency evaluator who works with a defendant the longest is entitled to the most deference, the D.C. Circuit Court in Battle YfbohuanWd tgh[aTtg tg[h\ifs C;bohuergtt's decision to consider, among four other factors, the length of time for which an evaluator observed the defendant before adopting tgh[eX XeivTa_lhuTagtboert'fs opinion as to the defenddaannttt'fs
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competency to stand trial was neither clearly arbitrary nor erroneous. 613 F.3d at 262o-63. Moreover, the case at bar is distinguishable; the competency evaluator in Battle administered a number of psychological assessments that supported his conclusion, including a standard competency test tgh[aTtg "qreaTi\sfeXWd l_i\tgtgl_eX obre anbo cVobnacVeXerna reeXgZTaerWd\ianZg [Qtgh[eX dWXeYfXeanWdTaangtt'sf]R aTbU\i_l\igtly tgob uhnaWdeXerfsgtTaanWd tgh[Xe pcreobcVeXeXdWi\nagZfs ober aTsfsfi\sftg h[i\fs aTtgtgoberanXely).r" Id. at 263. The same cannot be said for D<XeYfXeanWdTaangtt'sf pceXrefYobrem`aTancVeX obna tgh[eX CAST-MR, the sole assessment Dr. Lloyd administered.
More to the point, the handful of moments identified by Dr. Lloyd and referenced in the governmmeennttt'fs bUrei\eXYf\maZg fail to provide as compelling a narrative obYf D<XeYfXeanWdTaangtt'sf reeXfsgtboerTagt\iboan tgob Vcbo`m(petency as the government suggests. In at least one of the moments on record where Defendant dW\ifsVchufsfsXeWd _lTajw XeanYfboerVcXe`mXeangtt'sf sfeXi\mzuhreeX obYf h[i\fs VcXe_l_l pch[obnaeX', admittedly before his stay at FMC Butner, he became so agitated that he could no longer continue his evaluation. See D<\iEM\ifsTat'sf RJeXcpboertg aTtg 1,/4). Moreover, Defendant getting upset over law enforcement looking through his property, or setting aside his coloring book after hearing someone criticize him for coloring, are hardly demonstrative of a rational understanding of his case or an ability to rationally assist in his defense. Rather, they strike the undersigned as fairly rudimentary, juvenile examples of behavioral adaptation and internal reasoning. This rings especially true when, as here, these instances are heralded as the most persuasive evidence of DXeYfXeanWdTaangtt'fs cVbo`mcpXegtXeanVcly Yfob_l_lbojw\ianZg fYobuher cVobnasfXecVuhtgi\vieX m`obnagt[hfs obYf naeXTaer-daily observation.
To be sure, DXeYfXeanWdTaangtt'fs i\nadqhu\ierly i\angtbo wjh[eXgt[hXeer h[eX i\fs Xe_l\iZg\iUb_leX fYboer sfpcl_\igt sfXeangtXeanVc\ianZg sfuhgZgZeXfsgtfs aT level of sophistication and familiarity with the legal system that is not immediately reconcilable with a finding of incompetency. A8fYgtXeer aTl_l_,' "qtgh[eX Dusky standard . . . does not require that a defendant h[aTvieX aT h[i\gZ[h _lXeiveX_l obYf aTbUi\_l\igtly ober pceXerYfboer`mTaanVcXe).r" See United States v. Merriweather, 921 F. Supp. 2d 1265, 1307 n.62 (N.D. Ala. Feb. 5, 2013); see also United States v. Hogan, 986 F.2d 1364, 1373
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($1,1,tgh[ C;i\re.) 1,9449.3%) ($"qE=vieXan pceXreYfXeVcgt_lly Vcbo`mpceXtgeXnatg dWeXYfXenaWdTaangtfs obfYgtXean Wdbo naobtg Yfhu_l_lly cVob`mcperXe[hXeanWd tgh[eX \iangter\i(cVTaVc\iXefs obYf sfobm`eX obYf tgh[eX dWeXfYeXnafs\iivXe tgh[Xeboer\iXefs obfYfYXeerXeWd bUyl tgh[eX\ier l_aTjwlyXeerfs).r"%). But these few ostensible mom`Xeangtfs obYf l_huVc\iWd\igtly aTanWd reeXTafsboan\ianZg Wdhuer\ianZg D<XeYfXeanWdTaangtt'fs time at FMC Butner do little to overcome the overwhelming amount of evidence presented to the undersigned that compels a finding of incompetency with respect to D<eXYfXeanWdTaangtt'sf present ability to rationally assist his counsel and understand his case. To begin, every single mental health professional to evaluate Defendant —o including, at one point, Dr. Lloyd —o has found him not competent to stand trial. As such, D<XeYfXeanWdTaangtt'fs record is replete with data dating back to 2011 establishing that his persistently deficient intellectual functioning prevents him from effectively understanding his legal circumstances and interacting rationally with his counsel. His full scale IQ score, for example, hovers somewhere between fifty-three and sixty-five, landing at the bottom one percent of his age group regardless of where in that range it falls. He has consistently demonstrated that he has the basic reading and oral comprehension skills of a seven- or eight-year-old, and the record indicates that he has little or no capacity for improvement on that front. Indeed, Dr. Denney evaluated Defendant after his four month restoration process, at a point when Defendant had, according to Dr. Lloyd, learned adaptive behaviors sufficient to render him competent, and yet Dr. Denney observed that Defendant continued to perform extremely poorly in psychological assessments and showed little tolerance for frustration. A8gt obanXe pcob\iangt dWuher\ianZg D<re). D<XeananXelyt'sf aTsfsfeXsfsfm`eXangt', Defendant abruptly ended the evaluation after becoming frustrated, just as he did with Dr. DiMisa prior to his time at FMC Butner. See D<XeananXelyt'fs RJeXcpboergt aTgt 2-16). He appeared unable to answer D<re.) D<XeananXelyt'sf basic questions cogently, including, for instance, a question about how many siblings he has. Id. at 21. His answers to other, more substantive questions, like what role his defense counsel will play in his trial —o he stated that he was unable to explain what it means to defend someone in court —o or whether he understands
33

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the seriousness of his charge —o [hXe dWeXfscVeri\UbXeWd h[\ifs Vc[hTaergZXe aTfs "qdWuh`mUbr" —o reveals that he still has little capacity to contemplate the gravity of his circumstances. Id. at 26.
WOh[i\l_eX D<XeYfXeanWdTaangtt'sf consistent under-performance on these psychological tests and interviews do not necessarily translate into a fimnding of incompetency, in the judgment of the undersigned, they do when viewed alongside D<XeYfXeanWdTaangtt'fs pceXrefYborem`aTanVceX boan tgh[eX C;A8SKTL-MR. Though Dr. Lloyd describes his poor performance on that assessment as just one strand in the tapestry of her evaluation and suggests it underestimates his true understanding of the legal process and case against him, it seems far more likely that his performance confirms what every other competency evaluator —o including one who examined Defendant after Dr. Lloyd —o has concluded: that Defendant lacks the cognitive capacity to rationally understand his case and assist in his defense. Indeed, while not dispositive on the issue of competency, the CAST-EMJR "qwjaTsf dWeXivXe_lbocpXeWd sfpceXVc\iYf\iVcTa_l_lly Yfboer evaluagt\ianZg aTdWj]uhdWi\cVaTtgi\vieX cVobm`pceXtgeXnacVeX i\an dWeXYfXeanWdTaangtfsr" wji\tgh[ AIangtXel__lXecVgthuaTl_ D<i\sfaTbUi\l_i\tgyl. See United States v. Dennis, No. 11-10250-EFM, 2012 WL 4794593, at *1 (D. Kan. Oct. 9, 2012) (citation omitted). As such, it serves as a valid, helpful, and relatively objective bUeXnacVh[m`Taer^k Yfbore aT cVbohuergtt'sf aTsfsfeXsfsfm`eXnatg obYf aT cVre\i`m\ianTa_l dWXeYfXeanWdTaangtt'sf cVobm`cpXegtXeanVcly tgob sftgaTnaWd tgrei\aT_l. See id. at *4 ($"q[QTL]Rh[eX C;obhuergt fYi\anWdfs \igt sfi\gZnai\fYi\cVaTnatg that [defendant] scored well above the average score of defendants who were found incompetent on two different administrations, by two different professionals, of the CAST-EMJR).r"%)6; see also United States v. Clark, No. 2:12-00215, 2013 WL 5592806, at *5 (S.D.W. Va. Oct. 10, 2013) (eXkxcp_lTa\ian\ianZg tgh[aTtg "qtghe CAST-MR is designed to fairly measure the mental grasp ooffr a defendant with Intellectual Disability after considering tgh[eX dWXeYfXeanWdTaangtt'sf score of 37 on the CAST-MR); Baldwin, 2012 WL 5205814, at *3 (cVobnafs\iWdXeer\ianZg dWXeYfXeanWdTaangtt'sf pceXrefYobrem`aTnacVeX boan tgh[Xe C;8ASKLT-MR, albeit a positive performance, before noting that the abundance of evidence supported a finding of incom-
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petency); United States v. Duhon, 104 F. Supp. 2d 663, 675 (W.D. La. 2000) (noting in its summary of eXkxpceXregt fYi\nadWi\nagZfs tgh[Tagt "qtgh[eX erXefshu_lgtfs obYf tgh[Xe C;A8SKTL-MR indicate that [defendant] is incompetent tgob sftgTaanWd tger\iTa_lr" before reaching the same conclusion); United States v. Cockrell, No. CR. 97-36-N, 1,949427 WOLD 1,837261504/2-,' aTtg *& ($ME.)D<.) A8l_aT.) BJhuanXe 1,,1', 1,494927%) ($cVobnasfi\dWeXrei\nagZ,' aT`mboanZg obtg[heXer tgh[i\nagZsf,' dWXeYfXeanWdTaangtt'fs poor performance on the CAST-MR in concluding that she lacks the competency to stand trial).
Accordinglyl,' tgh[eX uhnaWdeXerfs\iZganXeWd i\fs erXe_lhuVcgtTanatg tgbo dWi\sfcVobuhnatg D<XeYfXeanWdTaangtt'sf pcobobre pceXrefYobrem`aTnacVXe obna tgh[eX CAST-MR as readily as Dr. Lloyd. His score on the assessment provided by Dr. Lloyd —o twentytwo —o falls below the average score of individuals found not competent to stand trial provided by the CAST-MR manual —o 25.6. When considering that the CAST-MR was administered by Dr. Lloyd, an individual with whom Defendant has developed a rapport, it is possible, even likely, that his deficiencies are more complicated and profound than his score would otherwise suggest. Indeed, Defendant struggled throughout the administration of the assessment and reportedly never finished the second round of multiple choice questions even though Dr. Lloyd administered it at a point in his restoration process when he had purportedly developed the skills needed to render himself competent to stand trial.
Moreover, the undersigned fimnds persuasive D<re.) D<XeananXelyt'sf testimony that Dr. Lloyd likely and unintentionally over-sfVcboerXeWd D<XeYfXeanWdTaangtt'fs reeXfscpobanfsXefs i\an tghe third section of the CAST-MR. A review of D<eXYfXeanWdTaangtt'sf answers confirms that he failed to understand the premise of many of the open-ended questions. On the first question, which asked Defendant to describe what he was doing that caused him to be arrested,' D<eXfYeXnadWaTangt reeXcp_l\iXeWd "qC;h[i\_lWd pcobrenaobgZreaTpch[yl.) They said they had a warreTaangt).r" D<XeYfXeanWdTaangtt'fs C;A8KSTL-MR at 7. Though Dr. Lloyd gave Defendant full credit for that response, it fails to meet a number of criteria for receiving full credit listed in the CAST-MR manual, including that it pcreobvii\dWeX "qaTna aTcVcVuhreaTtgeX dWeXfscVrei\pctgi\bona obYf tgh[eX eXviXeangtfs i\m``mXeWd\iTagtXe_lly pcreeXVcXeWd\ianZg aTanWd Wdhuer\ianZg
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tgh[eX aTreerXefsgt',r" aTnaWd that it "qbUeX pcl_aTuhsfi\bUl_eX aTanWd i\na k^XeXecp\ianZg wji\tg[h tgh[eX reeXfsgt boYf Q[<DXeYfXeanWdTaangtt'sfR] VcTafsXe).r"77 CCAASSTMR Manual at 12. D<eXYfXeanWdTaangtt'sf erXefscpboanfsXefs tgob tgh[eX naeXxktg sfeXrei\eXfs obYf qduheXsftgi\obnasf,' for which Dr. Lloyd also gave him full credit, are similarly incomplete. For example, when asked to identify how many people were present when he was engaged in the activity that caused him to be arrested and who they were, D<eXfYeXanWdTaangt sftgaTgtXeWd tgh[Tagt h[eX "qwjaTsf aT_lboanXer" aTanWd that he "qwjaTsf wjaT_l^k\ianZg tgo the train station to go see [his] uhanVc_lXe).r" D<XeYfXeanWdTaangtt'sf C;A8SKLT-MR at 7. Not only does that description of his arrest not match the description from the complaint in this case, which reports a number of individuals other than Defendant and several MPD officers at the scene of his arrest, see Kyaw Aff. at 1, but it also fails entirely to address the second half of the question —o that is, it does not acknowledge "qwjh[ob was presfeXnatg aTgt tgh[eX tgi\m`Xe boYf ). .) .) tgh[Xe aTl_l_eXZgXeWd cVer\i`mXer" tgh[Tagt D<eXfYeXnadWTaangt previously identified as child pornography. CAST-MR Manual at 13. On another question, this time asking where he was arrested, Defendant said that he was at his sister-in--_lTajwt's house but that he did not know the addWreeXsfsf.) D<XeYfXeanWdTaangtt'fs C;A8SKTL-MR at 8. Despite receiving full credit, that response —o a familiar setting, _li\k^eX aT reXe_lTagt\iivXet'sf h[obm`eX,' with no further identifiers —o is described explicitly in the CAST-MR manual as deserving only partial credit. See CAST-MR Manual at 16. Accordingly, and based on a review obYf D<re.) D<XeananXelyt'sf tgeXsftg\i`mboanly aTnaWd D<eXYfXeanWdTaangtt'fs obwjan C;A8KSLT-MR examination form, the undersigned
77 IAna D<XeYfXeanWdTaangtt'sf cVTafsXe', tg[h\ifs dqhuXefsgt\iboan ereXdqhu\ierXefs aT m`obreeX Vcbo`mcp_lXekx erXefscpboanfsXe tgh[aTan h[Tad he, for example, been arrested at a home immediately after burglarizing it. His alleged criminal activity —o the production of child pornography —o and his arrest related to that activity are, at a minimum, several hours apart; he was arrested on October 2, 2014 at approximately 10:00 PM and the most recent videos containing what appear to be depictions of child pornography that were retrieved from one of tgh[eX cVeXl_l_ pch[obnaeXfs i\an D<XeYfXeanWdTaangtt'fs pcobsffseXsfsfi\boan wjeXreeX cVreeXTagtXeWd obna OGcVtgobbUeXer 2-', 2-0+1,/4 aTtg approximately 4:45 PM. See Kyaw Aff.at 1o-3. Additional images allegedly containing depictions of child pornography were taken using one of the cell phones i\an D<eXYfXeanWdTaangtt'fs pcobsfsfeXfsfs\iboan on September 18, 2014. Id. According to the CAST-MR manual, however, more complex incidents call for more dWeXgtTa\i_lXeWd aTnasfwjeXresf,' reeXanWdXeer\ianZg D<XeYfXeanWdTaangtt'fs sfh[obergt', \inacVobm`pcl_eXtgXe erXefscpobnasfeX XeivXean m`obereX uhnasfaTtgi\sffYaTcVtgobreyl.) See CAST-MR Manual at 12.
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i\fs VcboanYf\iWdXeantg tgh[aTtg D<XeYfXeanWdTaangtt'sf sfcVobreXe oban tgh[eX C;A8SKTL-MR was unintentionally inflated, and that his score should be closer to nineteen than twenty-two.
Regardless, either score indicates to the Court that Defendant has a fundamental difficulty with oral and reading comprehension such that he lacks the capacity to understand, think through, and answer even the most basic questions about the legal process and the case against him. A review of some of the multiple choice questions that Defendant answered incorrectly on the CASTMR is particularly instructive here. When asked what he would do if a prosecutor told a lie at trial, he indicated that he would refuse to answer more questions. See D<XeYfXeanWdTaangtt'sf C;A8KSLT-MR at 6. If he heard the judge and his lawyer talking but could not understand what they were saying, he said he would demand that they talk to him. Id. If he wanted to stand up in the middle of court and tell the judge something, he indicated that it would acceptable because the judge knows him. Id. When asked what he would do if his lawyer told him to do something he did not want to do, he responded that he would fire his lawyer on the spot. Id. at 5. More fundamentally, when asked what a crime i\sf,' D<eXfYeXnadWaTnagt aTnasfjwXeerXeWd tgh[aTtg i\tg i\sf "qwjh[eXna ylbohu h[aTtgeX sfbo`mXeboanXer" aTanWd reeXcpboergtXeWd_lly added that it is akin to "qaTcVtgi\naZg _li\k^eX aT _l\igtgtl_eX k^\iWd).r" Id. at 3. In other words, even after four months of attempted restoration, his performance on the CAST-MR and the additional evidence in the record confirms that Defendant will struggle to effectively interact with counsel and rationally understand the proceedings by a preponderance of the evidence in this Court.
Nor does the Court believe that the government has proved by a preponderance of the evidence that the accommodations proposed by Dr. Lloyd will permit Defendant to sufficiently consfuhl_tg wji\gt[h h[\ifs VcbohuanfseXl_ wji\tg[h "qaT reeXTafsobanTaUb_leX dWeXgZreXeeX obYf reaTgt\iboanTa_l uhanWdXeerfsgtTaanWd\ianZgr" obre pcreobvii\dWeX h[i\m` wji\tgh[ "qaT rational . . . understanding of tgh[eX pcreobcVeXeXdWi\nagZfs aTgZaTi\nasftg h[\i`m).r" Dusky, 362 U.S. at 402. Indeed, as of now,' D<re.) DL_lbolyWdt'sf suggestion that her proposed accommodations —o that is, that his counsel explain
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to him legal terms without using legal jargon, that his counsel review with him the likely schedule and questions he will be asked at the beginning of each day, and that the Court provide him with daily breaks so that he can expend excess energy and confer with counsel, see DL_lbolyWdt'fs RJeXcpboergt aTtg 19o-20 —o are entirely untested. While Defendant was supposed to take part in a mock trial during his competency restoration at FMC Butner to explore his ability to retain and reason through information, that never took place. See 5/16/16 Tr. at 221:133o-19. Without the benefit of a mock trial to test the coping skills Dr. Lloyd purports Defendant learned, the undersigned must rely in part oban D<XeYfXeanWdTaangtt'fs bUeXh[aTvi\iboer aTgt tgh[Xe sftgaTtghufs VcboanYfeXereXanVcXefs aTnaWd Vcbo`mcpXegtXeanVcy hearing to assess his progZerXefsfs aTanWd h[\ifs aTbU\i_l\igtly tgbo ereXTafsboanTaUb_lly aTnaWd reTagt\iboanTa_l_lly pcaTretgi\cVi\pcaTtgeX \ian h[\ifs dWeXfYeXnasfeX.) D<XeYfXeanWdTaangtt'sf VcboanWdhucVtg at those hearings, however, is less than promising. As noted above, Defendant spent the majority of his time at the competency hearing and all of his time in at least one of the status conferences cVbo_lboer\ianZg i\an aT cV[h\i_lWderXeant'sf Vcbo_lboer\ianZg bUobobk^.) He appeared completely disinterested in the discussions at those appearances despite their importance to his case and exhibited behavior, including, at one point, covering his ears as if to prevent himself from hearing testimony that he did not like, that suggests he lacks a rational understanding of how to contribute to his defense and conduct himself in a courtroom. While Dr. Lloyd maintains that Defendant was paying attention during his appearances, his ability to, for example, recall his next court date or his expression of anger over Dr. DL_lbolyWdt'sf sfuhgZgZeXfsgt\iboan to the Court that he needed to stay at FMC Butner for additional restoration, see DL_lbolyWdt'fs RJeXpcobretg aTtg 1,0+,' dWbo l_i\tgtg_lXe tgob cVobnavii\nacVXe tgh[Xe uhnadWeXrefs\iZganXeWd tgh[aTtg D<eXfYeXnadWaTnagt pcobsfsfeXsfsfeXfs', obre wji\_l_l ever possess, the oral comprehension and processing skills needed to rationally understand the case against him.
Indeed, the disagreement between Dr. Lloyd and Dre). D<eXnaanXely obvieXre tgh[eX viaTl_uheX obYf D<re). DL_lbolyWdt'sf proposed accommodations lays bare the tension at the heart of the instant case. While Dr. Lloyd
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YferTa`mXefs D<XeYfXeanWdTaangtt'fs pcreobbUl_Xe`m as an issue with his ability to pay attention that can be remedied by repetition and one-on-boaneX reeX\inafYborecVeXm`eXnatg,' D<re.) D<eXnanaXely sfuhgZgZeXsfgtfs tgh[Tatg D<XeYfXeanWdTaangtt'sf condition is better viewed as an incurable deficiency in oral comprehension and mental processing. In D<re.) D<XeananXelyt'fs view, no amount of breaks or explanations during trial will improve D<XeYfXeanWdTaangtt'sf VcbogZanitive performance. See 5/17/16 Tr. at 534:22o-14. The undersigned agrees. In particular, based on Dr. DennaXelyt'sf persuasive tgeXfsgti\m`obnayl', tgh[Xe uhnadWXeerfs\iZganXeWd \ifs VcboanVcXeeranXeWd wj\igt[h D<XeYfXeanWdTaangtt'sf "qsftgrei\k^i\nagZ_lly wjXeTa^kr" obreaTl_ and auditory comprehension skills. See D<eXananXelyt'sf RJeXpcbort at 22. Defendant has consistently demonstrated that he has the auditory comprehension of a first grade student. See D<XeananXelyt'sf RJeXpcobertg at 27; see also D<\iEM\ifsTat'fs RJeXpcobretg aTgt 72 $(q"[QIAR]tg \ifs _l\i^kXe_lly tgh[aTtg Q[D<eXYfXeanWdTaangtR] h[TaWd aT _l\i`m\igtXeWd cVTacpTaVc\igtly tgbo comprehend even the simplest items on the tgeXsftg).r")%.) Put differently, having Defendant stand trial would be akin to putting a seven-year-old in the courtroom and expecting them to understand the language, ideas, and theories likely to be discussed. While the child may understand some of what is going on, there is a ceiling on that understanding. 5/17/16 Tr. at 399:2o-400:8, 416:4o-13. The Court is reluctant to put someone with the mental processing capabilities of a seven-year-old on trial when the Supreme Court has made clear, in the context of Miranda,' tgh[aTtg cVh[i\_lWderXean "qobfYtgeXna _lTacV^k the experience, perspective, and judgment to recognize and avoid choices that could be detrimental tgob tgh[eX`m .) .) .) .)r" J.D.B. v. North Carolina, 564 U.S. 261, 272 (2011) (quoting Bellotti v. Baird, 443 U.S. 622 (1979)); see also United States v. Han, ___ F. Supp. 3d ___, 2016 WL 4132203, at *12 ($D<.)D<).;C.) A8uhgZ). 3.,' 2-0+,116%) ($q"[QA8R] cV[h\i_lWdt'sf aTgZeX i\fs YfTaer m`obreeX tgh[Taan aT cVh[reobnaobl_obgZi\cVaTl_ YfTaVcgt.) AIgt i\fs aT fYTacVgt tgh[aTtg gZXeanXeerTagtXefs Vcbo`m`mboanfsXeanfsXe VcboanVc_lhufs\iboanfs aTbUobhugt bUeXh[aTiv\iboer aTnaWd pceXreVcXecpgt\iboan).r" ($qdhubogt\ianZg J.D.B., 564 U.S. at 272)). After all, trials are oral in nature and, as such, require a significant degree of oral compre-
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hension. The undersigned has no confidence tgh[aTtg D<re.) DL_lbolyWdt'sf huangtXefsgtXeWd aTcVcVobm`m`obdWaTgt\iboanfs wji\l_l_ sfhuYf(ficiently rectify D<XeYfXeanWdTaangtt'sf significantly deficient mental processing and oral comprehension skills.
Accordingly, the undersigned finds that the government has failed to satisfy its burden of proving, by a preponderance of the evidence, that Defendant has been restored to competency pursuant to 18 U.S.C. § 4241(e). At a minimum, the undersigned finds that Defendant presently _lTaVc^kfs tgh[eX aTbU\i_l\igtly "qtgob cVboanfshu_lgt wj\igt[h [h\ifs l_aTwjylXeer wj\igt[h aT reeXaTfsbonaaTbUl_eX dWeXgZreeXeX obYf erTatg\iobnaaT_l uhnadWXeerfsgtTaanWd\ianZgr" and lacks "qaT reaTgt\iboanTa_l . . . understanding obYf tgh[eX pcreobcVeXeXdW\iangZfs aTgZaTi\nasftg h[\i`m).r" DDuussky, 362 U.S. at 402. Additionally, the undersigned finds that, due to the lack of treatment for his mental impairment and the ineffectiveness of the efforts to restore him to competency to date, Defendant is incapable of being restored to competency for the foreseeable future.
CONCLUSION Based on the foregoing, the undersigned recommends that the Court find that defendant has not been restored to competency pursuant to 18 U.S.C. § 4241(e) and is therefore not competent to stand trial in this matter. Further, the undersigned recommends that the Court find that Defendant is incapable of being restored to competency for the foreseeable future.88 The parties are advised that their failure to file objections to the findings and recommendations set forth above within fourteen days of the date of this Report and Recommendation may
88 The undersigned also recommends that the Court provide the government with thirty days following any finding of incompetency so that Defendant can be assessed for federal civil commitment pursuant to 18 U.S.C. §§ 4246 or 4248. As the parties are aware, sections 4246 and 4248 provide the BOP with a mechanism for determining whether an individual who has been found incompetent to stand trial should nevertheless be civilly committed to a suitable federal treatment facility as a dangerous or sexually dangerous person. SSee 18 U.S.C. §§ 4246(d), 4248(d).
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result in a waiver of their right of appeal from an order of the District Court adopting such findings and recommendations. See LCrR 59.2(b); see also Thomas v. Armn, 474 U.S. 140 (1985).

Dated: December 1, 2016

___________________________________ G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE

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 Case 1:18-cv-01034-BAH Document 28 Filed 09/28/18 Page 1 of 40

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARKELLE SETH, Plaintiff, v.
DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 18-1034 (BAH) Chief Judge Beryl A. Howell

MEMORANDUM OPINION The plaintiff, Markelle Seth, challenges his continued civil confinement “in federal prison despite not having been convicted of any crime,” by virtue of the defendants’ decision not to assume responsibility for his custody, care, and treatment, Compl. ⁋ 1, ECF No. 1, after he was found incompetent to face a federal criminal charge of production of child pornography, in violation of 18 U.S.C. § 2251(b), id. ⁋⁋ 32, 34, 37, and was subjected to federal civil commitment proceedings in the Eastern District of North Carolina, where he was being held, id. ⁋⁋ 40–41. Less than one month after the filing of the instant complaint, the federal civil commitment proceedings concluded with a judicial finding, by clear and convincing evidence, that “as a result of” Seth’s current mental condition, “his release would create a substantial risk of bodily injury to another person or serious damage to the property of another,” such that he was ordered civilly committed to the custody and care of the Attorney General, under 18 U.S.C. § 4246. Order, dated May 24, 2018 (“E.D.N.C. Commitment Order”) at 1, United States v. Seth, No. 17-hc-2090 (E.D.N.C. filed May 25, 2018). The instant complaint seeks, inter alia, “injunctive relief requiring Defendants” District of Columbia, District of Columbia Department on Disability Services (“DDS”), and Andrew Reese, in his official capacity as Director of DDS (collectively,

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“defendants”), to “promptly accept physical and legal custody of” Seth, Compl. at 48, based on four alleged violations of federal and local antidiscrimination laws, including Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 794; the District of Columbia Human Rights Act of 1997 (“DCHRA”), D.C. Code § 2-1401.01 et seq.; and the Citizens with Intellectual Disabilities Civil Rights Restoration Act of 2015 (“CIDA”), D.C. Code § 7-1301.01 et seq.
The defendants have moved to dismiss the complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that Seth has failed to state a claim upon which relief can be granted under the ADA, RA, DCHRA, or CIDA. See generally Defs.’ Mot. Dismiss Pl.’s Compl. (“Defs.’ Mot.”) at 1, ECF No. 19. Meanwhile, Seth has moved for an order directing the Bureau of Prisons (“BOP”) to permit expert access to Federal Medical Center (“FMC”) Butner to interview the plaintiff. See generally Pl.’s Mot. Requesting Order (“Pl.’s Mot.”), ECF No. 24. While a discrimination action is a creative effort to bring attention to this troubling situation, the allegations fail to support claims under the antidiscrimination laws and ultimately cannot provide the relief Seth seeks. Thus, for the reasons explained below, the defendants’ motion is granted, and Seth’s motion is accordingly denied as moot. I. BACKGROUND
The statutory framework regarding federal competency determinations and civil commitment is discussed first, followed by the factual and procedural history of this case.
A. Statutory Framework Congress established, in the Insanity Defense Reform Act of 1984 (“IDRA”), Pub. L. No. 98-473, 98 Stat. 2057, a “three-stage statutory process pursuant to which competency determinations are made.” United States v. Weissberger, 951 F.2d 392, 395 (D.C. Cir. 1991). First, upon motion by either party, “a court may order a competency evaluation committing a
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defendant for a period not exceeding 30-days if the court has ‘reasonable cause’ to believe that the individual may be incompetent to stand trial.” Id. (quoting 18 U.S.C. § 4241(a)). The results of that evaluation are presented at an adversarial hearing, “at which the judge determines whether a preponderance of the evidence indicates that the defendant is incompetent.” Id. at 396 (citing 18 U.S.C. §§ 4241(a), (d)). Second, “upon a finding of incompetency, the court may commit the defendant for a ‘reasonable time, not to exceed four months . . . to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the trial to proceed.” Id. (alteration in original) (quoting 18 U.S.C. § 4241(d)(1)). Finally, at the end of that second confinement, “another hearing is held to determine if the defendant is a long-term incompetent and sufficiently dangerous to require indefinite institutionalization.” Id. (citing 18 U.S.C. §§ 4241(d), 4246). If the court determines that “the defendant’s mental condition has not so improved as to permit the proceedings to go forward,” the defendant is then “subject to the provisions of sections 4246 and 4248.” 18 U.S.C. § 4241(d).
Sections 4246 and 4248, in turn, provide for the continuing commitment of a person “in the custody of the Bureau of Prisons whose sentence is about to expire, or who has been committed to the custody of the Attorney General pursuant to section 4241(d), or against whom all criminal charges have been dismissed solely for reasons related to the mental condition of the person.” Id. § 4246(a); see also id. § 4248(a). Under § 4246, if “the director of a facility” in which such a person is hospitalized certifies that the person “is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another, and that suitable arrangements for State custody and care of the person are not available,” the court for the district in which the person is confined “shall order a hearing to determine whether the person is presently suffering from a mental
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disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another.” Id. § 4246(a).1
If, after that hearing, “the court finds by clear and convincing evidence that the person is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall commit the person to the custody of the Attorney General.” Id. § 4246(d). At the same time, the IDRA expresses “a clear preference for state placement, if and when available, of those committed federally.” United States v. Volungus, 595 F.3d 1, 10 (1st Cir. 2010). Specifically, the IDRA provides that the detainee “shall” be released “to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment,” 18 U.S.C. § 4246(d), and the Attorney General “shall make all reasonable efforts to cause such a State to assume such responsibility,” id. See also United States v. Wigren, 641 F.3d 944, 947 (8th Cir. 2011) (“Congress presumably thought the States should bear responsibility for the care of mentally ill persons from their jurisdictions, and the IDRA thus imposes a duty on the Attorney General to pursue state placement.” (internal citation omitted) (citing S. REP. NO. 225, 98th Cong., 1st Sess. 208 (1984), reprinted in 1984 U.S.C.C.A.N. 3182 (1984))).
If the State declines to assume responsibility for the person, “the Attorney General shall hospitalize the person for treatment in a suitable facility” until either (1) the State assumes that responsibility, or (2) the person’s medical condition improves such that “his release, or his conditional release under a prescribed regimen of medical, psychiatric, or psychological care or

1

Section 4248 provides a similar process upon a director’s certification that the person is “sexually

dangerous.” 18 U.S.C. § 4248(a). For the purposes of these statutes, references to “States” include the District of

Columbia. See id. § 4246(h).

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treatment would not create a substantial risk of bodily injury to another person or serious damage to property of another,” whichever happens first. 18 U.S.C. § 4246(d)(1)–(2). If no State assumes that responsibility, the Attorney General must “continue periodically to exert all reasonable efforts to cause such a State to assume such responsibility for the person’s custody, care, and treatment.” Id. § 4246(d).
The IDRA also provides for regular review of and challenges to a person’s ongoing federal civil commitment. When a person is federally committed pursuant to 18 U.S.C. § 4246, the director of the facility to which that person is committed must “prepare annual reports concerning the mental condition of the person and containing recommendations concerning the need for his continued commitment,” which reports are submitted to the court that ordered the commitment. Id. § 4247(e)(B). If the director “determines that the person has recovered from his mental disease or defect to such an extent that his release would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment.” Id. § 4246(e). The court must then “order the discharge of the person or, on the motion of the attorney for the Government or on its own motion,” shall “hold a hearing . . . to determine whether he should be released.” Id. Upon a finding, by a preponderance of the evidence, that the person could be released or “conditional[ly] released under a prescribed regimen of medical, psychiatric, or psychological care or treatment” without “creat[ing] a substantial risk of bodily injury to another person or serious damage to property of another,” id. § 4246(e)(2), the court “shall” order the person’s release, with the appropriate conditions, id. § 4246(e)(2)(A)–(B). In addition, “at any time during such person’s commitment,” the committed person’s counsel or legal guardian may “file with the court that ordered the commitment a motion for a hearing to
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determine whether the person should be discharged from such facility,” provided that “no such motion may be filed within one hundred and eighty days of a court determination that the person should continue to be committed.” Id. § 4247(h).
B. Seth’s Background Seth is a resident of the District of Columbia with an intellectual disability. Compl. ⁋ 1. When he was three months old, Seth was “removed from his mother’s care through neglect proceedings” and placed in the orphanage at St. Ann’s Infant Home located in Hyattsville, Maryland. Id. ⁋ 24. He “spent time in two separate foster care homes before he was placed with his father in 1997, at the age of three.” Id. Seth experienced “childhood seizures from infancy until he was about six years old,” id. ⁋ 25, and “had significant delays in reaching developmental milestones, including not being able to sit up on his own until age four and not being able to crawl until age five,” id. In elementary school, he was “identified as having a disability and placed in special education classes,” eventually receiving an “Individualized Education Program (‘IEP’) that focused on supporting his learning activities across a broad array of areas.” Id. ⁋ 26. By the time Seth reached the twelfth grade, his “standardized testing scores reflected math skills at a fourth-grade level, reading skills at a second-grade level, and writing skills at a first-grade level.” Id. ⁋ 27. Seth’s developmental disabilities and behavioral problems were evident to the Magistrate Judge presiding over his initial appearance following his arrest on the criminal charge and subsequent status hearings. The Magistrate Judge noted that, at one hearing, Seth “continuously fidgeted in his chair and did not appear to be paying attention,” and at another hearing, he “spent the majority of the time coloring.” Report & Recommendation (“R&R”) at 14, United States v. Seth, No. 14-mj-608 (D.D.C. filed Dec. 1, 2016), ECF No. 75.2 During the competency hearing,

2

In ruling on a Rule 12(b)(6) motion to dismiss, the court may take judicial notice of matters of public

record, such as prior court proceedings. See Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1228 (D.C.

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the Magistrate Judge noted that, “[f]or the bulk of the hearing,” Seth “was either distracted or engaging in otherwise inappropriate courtroom behavior,” such as “plac[ing] his hands over his ears as if to block out testimony that he was hearing,” and he “spent a portion of the second day of the hearing with his head on the table.” Id. at 26.
On April 17, 2015, in connection with Seth’s underlying criminal proceedings, which are discussed in greater detail below, the DDS found that Seth “meets all three criteria for intellectual disability.” Compl. ⁋ 30.3 Seth now “receives federal Supplemental Security Income benefits based on his disability, and he has been evaluated and found eligible for services as an adult with intellectual disability by Defendant DDS.” Id. ⁋ 31. This Court later found that Seth’s full-scale IQ score “hovers somewhere between fifty-three and sixty-five, landing at the bottom one percent of his age group regardless of where in that range it falls.” R&R at 33 (adopted by the undersigned on December 22, 2016); see also id. at 6 (noting that “[Seth] has been diagnosed with various mental impairments at different points in his life, but Intellectual Disability, Mild (‘IDM’) is the diagnosis that most aptly captures his condition”). Throughout the proceedings detailed below, various psychologists and psychiatrists have diagnosed Seth with “Autism Spectrum Disorder,” id. at 10, and with IDM, id. at 15.
C. Seth’s Competency Proceedings in the District of Columbia On October 16, 2014, Seth was arrested and charged in this Court with “one count of production of child pornography for allegedly using his cell phone to videotape two children in

Cir. 1993). Accordingly, the Court will take judicial notice of the related proceedings arising from Seth’s criminal

case, see United States v. Seth, No. 14-mj-608 (D.D.C. filed Oct. 15, 2014), and of the related proceedings in the

Eastern District of North Carolina, see United States v. Seth, No. 17-hc-2090 (E.D.N.C. filed Apr. 28, 2017).

3

The American Association on Intellectual and Developmental Disabilities (“AAIDD”) defines “intellectual

disability” in three prongs: “(1) significantly impaired intellectual functioning; (2) adaptive behavior deficits in

conceptual, social, and/or practical skills; and (3) onset of the disability before age eighteen.” Compl. ⁋ 29 (footnote

omitted) (citing AAIDD, Definition of Intellectual Disability, available at http://aaidd.org/intellectual-

disability/definition). This definition has been adopted by the District of Columbia. Id.

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his household engaging in sexual behavior with him, in violation of 18 U.S.C. § 2251(a).” Compl. ⁋ 32.4 Seth’s initial appearance before a Magistrate Judge on that charge took place the same day, at which hearing the Magistrate Judge, upon “the insistence of [Seth’s] counsel,” ordered a preliminary competency screening with the District of Columbia Department of Behavioral Health, Pretrial and Assessment Branch (“DBH”). Order, dated Oct. 17, 2014, at 1, United States v. Seth, No. 14-mj-608 (D.D.C. filed Oct. 17, 2014), ECF No. 3; see also Order, dated Oct. 23, 2014 (“Preliminary Commitment Order”) at 1, United States v. Seth, No. 14-mj608 (D.D.C. filed Oct. 23, 2014), ECF No. 5.
The DBH completed its assessment on October 21, 2014, and recommended commitment pursuant to 18 U.S.C. § 4241. Preliminary Commitment Order at 1. Two days later, on October 23, 2014, Seth’s counsel requested “an examination of [Seth’s] mental competency . . . pursuant to 18 U.S.C. § 4241(a),” which motion was granted. Id. Seth was accordingly “committed to the custody of the Attorney General of the United States for placement in a suitable facility for a period not to exceed thirty days,” id. at 2, for a determination of whether he was “presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him,” id. Seth was transported to the BOP’s Metropolitan Correctional Center (“MCC”) in New York on November 10, 2014, for this examination. See Compl. ⁋ 34; Status Report, dated Nov. 14, 2014, at 1, United States v. Seth, No. 14-mj-608 (D.D.C. filed Nov. 15, 2014), ECF No. 10. On

4

This charge was predicated on reports by a boy and a girl, ages 5 and 3, respectively, who told police that

Seth, who lived with them, had on multiple occasions had both children perform oral sex on him and that Seth

recorded this activity. Criminal Complaint, Ex. 1, Statement of Facts at 1–2, United States v. Seth, No. 14-mj-608

(D.D.C. filed Oct. 15, 2014), ECF No. 1-1. Three video files depicting child pornography of the same two children

performing oral sex were recovered on Seth’s cell phone, along with three other files of child pornography. Id. at 2–

3. Ironically, Seth was the person who reportedly “flagged down” officers conducting a canvas of an area in

response to a call for an assault with a dangerous weapon. Id. at 1. While they were speaking with Seth, the officers

were approached by an individual who informed the officers of claims that “two minor victims had reported that

[Seth] had touched their private parts.” Id.

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December 22, 2014, BOP psychologist Dr. Samantha DiMisa issued her report, concluding that Seth “lacked the competency to understand the nature and consequences of the proceedings against him and to assist properly in his defense.” R&R at 3.
On March 25, 2015, the parties to the criminal case appeared before a Magistrate Judge for Seth’s first competency hearing. Order, dated Mar. 27, 2015, at 1, United States v. Seth, No. 14-mj-608 (D.D.C. filed Mar. 27, 2015), ECF No. 17. At this hearing, the Magistrate Judge found, “by a preponderance of the evidence,” that Seth was “presently suffering from a mental disease or defect rendering him mentally incompetent in that he is presently unable to understand the nature and consequences of the proceedings against him and is unable to assist properly in his defense.” Id. The Magistrate Judge accordingly ordered that Seth be “committed to the custody of the Attorney General,” pursuant to 18 U.S.C. § 4241(d)(1), “for placement in a suitable facility” for “in-patient evaluation by a certified psychiatrist or psychologist for a reasonable period of time, not to exceed four months,” to “determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward.” Id.
Seth was transferred to FMC Butner, in North Carolina, on April 27, 2015, for his inpatient evaluation. R&R at 4. At a status conference on June 10, 2015, FMC Butner psychologist Dr. Kristina Lloyd informed the Court of her finding that Seth was not yet competent to stand trial. Id. The Magistrate Judge thus “ordered [Seth] to remain at FMC Butner for additional psychiatric evaluation and, if possible, competency restoration.” Id. On July 21, 2015, “Dr. Lloyd informed the Court that it was quite likely that [Seth] would be restored to competency,” id. (internal quotation marks omitted), a conclusion that she reaffirmed one month later in a “psychological evaluation report,” in which she also concluded that Seth was “ready to be returned to court for resolution of his legal situation,” id. Seth’s counsel was
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“[d]issatisfied” with this conclusion and requested that Seth be transported “to the Correctional Treatment Facility of the D.C. Jail (‘CTF’) so that his competency could be evaluated by an expert retained by [Seth].” Id. Seth’s expert, Dr. Robert Denney, subsequently “evaluated [Seth] and concluded that he is not competent to stand trial.” Id. at 5.
The parties then requested a competency hearing “to determine whether [Seth] has been restored to competency pursuant to 18 U.S.C. § 4241(e),” id., and the matter was referred to a Magistrate Judge for that hearing. Id. The hearing, originally scheduled for January 2016, took place over two days on May 16 and 17, 2016. After the hearing, the Magistrate Judge concurred with defense counsel’s position, concluding, in a written Report and Recommendation issued on December 1, 2016, that Seth “lacks the capacity to understand, think through, and answer even the most basic questions about the legal process and the case against him.” Id. at 37. Moreover, “due to the lack of treatment for his mental impairment and the ineffectiveness of the efforts to restore him to competency to date,” the Magistrate Judge concluded that Seth “is incapable of being restored to competency for the foreseeable future.” Id. at 40.
This Court adopted the Magistrate Judge’s Report and Recommendation on December 22, 2016, and remanded Seth to the custody of the Attorney General of the United States, pursuant to 18 U.S.C. § 4246, “for purposes of psychiatric and/or psychological examination to determine and certify pursuant to 18 U.S.C. §§ 4246 and 4248” whether Seth “is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another and that suitable arrangements for State custody and care of the person are not available” or whether Seth “is a sexually dangerous person.” Order, dated Dec. 22, 2016 (“D.D.C. Commitment Order”) at 1–2, United States v. Seth, No. 14-mj-608 (D.D.C. filed Dec. 22, 2016), ECF No. 77.
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Seth was accordingly transferred back to FMC Butner for that evaluation, and he remains at Butner today. Compl. ⁋⁋ 40–41.
D. Proceedings in the Eastern District of North Carolina Seth underwent, and continues to undergo, further treatment at FMC Butner. On April 11, 2017, over a year before Seth’s complaint was filed, Butner psychologist Dr. Lloyd concluded that Seth was “suffering from a mental disease or defect as the result of which his release to the community would create a substantial risk for bodily injury to another person or serious damage to the property of another.” Joint Status Report, dated May 24, 2017 (“Jt. Status Report”) at 2, United States v. Seth, No. 14-mj-608 (D.D.C. filed May 24, 2017), ECF No. 85. Consequently, three days later, the Complex Warden at FMC Butner executed a “certificate of dangerousness,” pursuant to 18 U.S.C. § 4246, stating that the “FMC-Butner forensic staff believe that [Seth] is currently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to the property of another. In addition, suitable arrangements for State custody are not available.” Certificate of Mental Disease or Defect and Dangerousness (“Certificate”) at 1, United States v. Seth, No. 17-hc-2090 (E.D.N.C. filed Apr. 28, 2017), ECF No. 1-1. That certificate was sent to this Court on April 24, 2017, and was filed with the District Court for the Eastern District of North Carolina on April 28, 2017. Jt. Status Report at 2. Seth’s competency hearing in the Eastern District of North Carolina was scheduled for May 24, 2018. Before that scheduled date, Seth filed the instant complaint, on May 1, 2018. One week later, on May 7, 2018, in an apparent effort to delay the North Carolina competency proceedings, Seth requested that the federal court in North Carolina “stay all further proceedings” there pending the outcome of the instant litigation in the District of Columbia. Mot. Stay Proceedings at 1, United States v. Seth, No. 17-hc-2090 (E.D.N.C. filed May 7, 2018),
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ECF No. 25. That court denied this request, finding “no overlap between the issue to be adjudicated [in the North Carolina case] and the issue to be litigated in the District of Columbia lawsuit.” Order, dated May 17, 2018, at 3, United States v. Seth, No. 17-hc-2090 (E.D.N.C. filed May 17, 2018), ECF No. 30.
Accordingly, on May 24, 2018, a competency hearing was held in the Eastern District of North Carolina. The next day, that Court entered an order finding, “by clear and convincing evidence,” that Seth was “presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to the property of another.” E.D.N.C. Commitment Order at 1. The Court also found that “state placement is not available” in the District of Columbia. Competency Hr’g Tr. (dated May 24, 2018) at 46:19, United States v. Seth, No. 17-hc-2090 (E.D.N.C. filed June 7, 2018), ECF No. 34. Seth was thus ordered “committed to the custody and care of the Attorney General pursuant to 18 U.S.C. § 4246,” E.D.N.C. Commitment Order at 1, in which status he remains today.
E. Attempts to Place Seth in a Community-Based Program in the District of Columbia
While Seth’s federal competency and civil commitment proceedings were ongoing, his counsel continually attempted to have him placed in various community-based programs within the District of Columbia. On February 13, 2015, before the first competency hearing in this Court, Seth’s attorneys “applied to DDS for support and services because incarceration is an inappropriate and harmful placement for [Seth].” Compl. ⁋ 42. Soon thereafter, then-Director of DDS Laura Nuss allegedly “acknowledged [Seth’s] eligibility for services and the agency’s duty to provide them to him through the civil commitment process.” Id. On March 12, 2015, Nuss “confirmed that a favorable eligibility determination was forthcoming and that DDS would proceed with civil commitment.” Id. ⁋ 43. She encouraged Seth and his attorneys to work with
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DDS, the Developmental Disabilities Administration (“DDA”), and the Rehabilitation Services Administration (“RSA”) “to develop a person-centered approach to supporting [Seth] in the context of the court proceedings and the formal commitment process.” Id. The next day, on March 13, 2015, DDS General Counsel Mark Back “acknowledged that DDS planned to move for civil commitment of [Seth] in order to remove him from federal prison, writing in an email, ‘we will need to work together to get a suitable Jackson finding in order to move forward with commitment in the Habilitation Court.’” Id. ⁋ 44.5
On March 18, 2015, DDS “formally determined that [Seth] was eligible for its services based on his intellectual disability, and documented its decision in a letter dated March 20, 2015.” Id. ⁋ 45. One month later, on April 17, 2015, DDS Program Manager Musu Fofana acknowledged that Seth “is an individual with intellectual disability who is eligible to receive DDS services,” that Seth “was determined to be incompetent to stand trial for the abovementioned crimes,” and that “once DDS has a Jackson finding from the federal court, DDS/DDA will work with [Seth’s] attorneys and the federal authorities in filing for civil commitment in the Mental Health and Habilitation Branch of the D.C. Superior Court’s Family Division.” Id. ⁋ 46 (internal quotation marks, alteration, and emphasis omitted). One week later, two DDS case managers met with Seth at the CTF “to work on the person-centered plan that is part of DDS’s process of developing an Individual Support Plan (‘ISP’).” Id. ⁋ 47.6

5

A “Jackson finding” refers to a court’s determination of “whether there is a substantial probability” that “a

person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to

trial . . . will attain that capacity in the foreseeable future.” Jackson v. Indiana, 406 U.S. 715, 738 (1972).

6

An ISP (1) “[s]upports the person to achieve individually defined outcomes and goals in the most integrated

community setting appropriate to his or her needs”; (2) “[s]upports the person to exercise positive control over their

life”; (3) “[e]nsures delivery of services in a manner reflecting personal preferences and choices and respecting what

is important to and for the person”; and (4) “[s]upports the person’s health and well-being.” Compl. ⁋ 47 (internal

quotation marks omitted).

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Seth was transferred to FMC Butner on or around April 27, 2015, for his in-patient evaluation. On July 13, 2015, former DDS Director Nuss and other DDS staff met to discuss Seth’s case. Id. ⁋ 48. Soon thereafter, on August 6, 2015, DDS informed Seth’s attorneys that “DDS had identified a service provider, Benchmark Human Services (‘Benchmark’), to serve [Seth] and that DDS would be conducting a formal assessment to determine the parameters of a plan” for him. Id. ⁋ 49. One week later, on August 12, 2015, “DDS Deputy Director [Holly] Morrison emailed Benchmark’s President for Residential Services and asked him to arrange an assessment of [Seth].” Id. ⁋ 50. Subsequently, “from August 2015 through early 2017, DDS worked on developing a plan for [Seth’s] transition from the criminal justice system into the District’s civil commitment system, which was expected to take place as soon as the issue of competency was resolved.” Id. ⁋ 51.
During this period, Benchmark stopped operating in the District of Columbia, id. ⁋ 70, and Wholistic Services, Inc.—“a DDS-certified, D.C.-based provider of supportive services to individuals with intellectual and developmental disabilities, including supported living, behavioral supports, and supported employment—was therefore asked to assess [Seth] for placement in its program,” id. Wholistic conducted a “comprehensive assessment” of Seth, and, in February 2017, Wholistic Chief Administrative Officer Miatta Thomas “informed DDS that Wholistic could provide services to [Seth] to successfully support him and eventually help transition him into the community.” Id.
In January 2016, when Seth’s final competency hearing in this Court was postponed until May 2016, “DDS determined that remaining planning for services should also be postponed.” Id. ⁋ 56. Once this Court adopted the Magistrate Judge’s Report and Recommendation on December 22, 2016, “DDS was expected to proceed with filing for civil commitment and
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finalizing a habilitation plan for [Seth].” Id. During the postponement, however, “Defendant Reese had replaced Laura Nuss as Director of DDS.” Id. According to the Complaint, “[i]nstead of proceeding with a petition for civil commitment as planned, Defendant Reese requested that a new risk assessment of [Seth] be prepared.” Id. Dr. Matthew Mason, DDS’s expert, completed the new risk assessment and, on February 24, 2017, issued a “comprehensive report” finding that Seth “can be safely and successfully supported in the community in a highly structured, closely supervised community based program that would provide for community safety while ensuring that [Seth] has every opportunity to succeed and to avoid re-offending.” Id. ⁋ 58 (internal quotation marks omitted). Dr. Mason’s conclusions and proposed risk management plan were endorsed, on June 18, 2017, by an expert retained by Seth’s lawyers, Dr. Stephen Hart, id. ⁋⁋ 66– 68, who “agreed with Dr. Mason’s conclusion that [Seth’s] sexual misconduct was not consistent with an underlying psychopathic condition,” id. ⁋ 67.
In between the issuance of these two expert reports, however, FMC Butner psychologist Dr. Lloyd—the same doctor who had initially concluded that Seth could be restored to competency, R&R at 4, a conclusion disputed by Seth’s counsel—also reached a conclusion regarding Seth’s dangerousness. Dr. Lloyd concluded, on April 11, 2017, that Seth was “suffering from a mental disease or defect as the result of which his release to the community would create a substantial risk for bodily injury to another person or serious damage as to the property of another.” Jt. Status Report at 2. Accordingly, on April 28, 2017, the FMC Butner warden “filed a certificate of mental disease in [Seth’s] federal civil commitment case in the Eastern District of North Carolina, noting that ‘suitable arrangements for State custody are not available.’” Compl. ⁋ 77 (quoting Certificate at 1).7 As discussed above, that proceeding

7

While Seth accuses the defendants of “ignor[ing] the fact that this case was filed prior to [Seth’s] federal

civil commitment,” Pl.’s Opp’n Defs.’ Mot. Dismiss (“Pls.’ Opp’n”) at 7, ECF No. 21, it is actually Seth who

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resulted in an order, on May 24, 2018, three weeks after the complaint was filed, that Seth’s release would “create a substantial risk of bodily injury to another person or serious damage to the property of another,” E.D.N.C. Commitment Order at 1, and in his civil commitment “to the custody and care of the Attorney General pursuant to 18 U.S.C. § 4246,” id.
F. The Plaintiff’s Treatment while in Custody The complaint describes the harsh conditions Seth has endured at FMC Butner. As the complaint explains, “[b]ecause FMC Butner is a correctional institution, its inmates are expected to follow numerous rigid rules that govern every aspect of their daily lives,” and “[w]hen inmates fail to follow institution rules, they are subjected to disciplinary measures that can include loss of privileges and/or disciplinary or administrative segregation in separate segregation areas.” Compl. ⁋ 81. Seth contends that, “[a]s a result of his intellectual disability, [he] has struggled to comply with FMC Butner’s rules, which do not contemplate the needs of individuals with intellectual and developmental disabilities.” Id. ⁋ 83. Thus, Seth “has been disciplined for not following orders from correctional officers and staff, for talking back or being disrespectful to correctional officers and staff, and for singing loudly while listening to music using headphones.” Id. He has also been “disciplined for carrying a pop-tart back to his cell from the dining hall, failing to tuck in his clothes, wearing the wrong uniform shirt, refusing to buckle his belt, wearing earbuds in the prison hallways, and other similar behavior.” Id. Seth has also “gotten into several conflicts with other inmates at FMC Butner as a result of, for example, disputes over which television shows to watch when he has wanted to watch cartoons.” Id.
ignores the fact that the Certificate of Dangerousness that gave rise to his commitment was filed over a year before the underlying complaint in this matter was filed. The filing of the Certificate on April 28, 2017, was reported to this Court on May 24, 2017, nearly a year before the complaint in this case was filed. See Jt. Status Report at 2. Seth was thus well aware of the possibility of a dangerousness filing before he filed his complaint and, in fact, before his expert, Dr. Hart, was able to issue his own report.
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Due to these rule violations, Seth “has experienced a range of disciplinary consequences, including losing his phone privileges for months at a time, confiscation of his MP3 player and radio, and suspension of his commissary privileges.” Id. ⁋ 84. In addition, Seth has “been placed in segregation on numerous occasions, even for apparently minor infractions, such as speaking disrespectfully to an officer.” Id. ⁋ 85. When held in segregation, Seth avers that he “is locked alone in a cell for a minimum of twenty-two to twenty-three hours a day,” and if the institution is short-staffed, “he is not afforded the opportunity to leave the cell where he is confined at all.” Id. Seth allegedly was “in segregation for virtually the entirety of the four-month period of his restoration evaluation,” id., and he notes that “solitary confinement is recognized as being a particularly toxic setting that not only fails to provide access to programs, services and activities, but can cause additional harm,” id. ⁋ 86. Seth’s commitment at FMC Butner has also “placed him far away from his family and circle of support in the District of Columbia,” thus depriving him of “additional support that could help lead to his re-integration into the community.” Id. ⁋ 90.
G. Procedural History Seth filed the underlying civil complaint in this action on May 1, 2018, alleging that the defendants have violated the ADA, RA, and DCHRA by “excluding [Seth] from participation in or denying him the benefits of the services, programs, or activities of the District, or subjecting him to discrimination.” Id. ⁋ 131. Seth also alleges that the defendants have violated the CIDA because that Act allegedly “requires DDS to provide [Seth] with treatment and supervision services in the community in the most integrated setting appropriate to his needs,” and thus the defendants’ “failure to fulfill their obligation under this law guarantees [Seth’s] continued placement in federal prison in violation of the law.” Id. ⁋ 158. The plaintiff seeks a judgment “[d]eclaring that the Defendants’ actions . . . constitute violations” of the ADA, RA, DCHRA, and CIDA; “[g]ranting preliminary and permanent injunctive relief requiring Defendants to promptly accept
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physical and legal custody of [Seth] within a reasonable period of time, not to exceed thirty (30) days”; “[a]warding compensatory and punitive damages to [Seth] including his out-of-pocket losses, emotional damages, and other harms caused by the Defendants’ discriminatory conduct”; and costs and fees. Id. at 48. On September 4, 2018, the plaintiff filed the pending Motion Requesting an Order to Bureau of Prisons Directing Expert Access to Federal Medical Center Butner to Interview Plaintiff. See generally Pl.’s Mot. Both motions are now ripe for review. II. LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v. Moss, 134 S. Ct. 2056, 2067 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible when the plaintiff pleads factual content that is more than “‘merely consistent with’ a defendant’s liability” and that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action” to provide “grounds” of “entitle[ment] to relief,” Twombly, 550 U.S. at 555 (alteration in original; internal quotation marks omitted), and must “nudge[ ] the[ ] claims across the line from conceivable to plausible,” id. at 570. Thus, “a complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
In considering a motion to dismiss for failure to plead a claim on which relief can be granted, the court must consider the complaint in its entirety, accepting all factual allegations in
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the complaint as true, even if doubtful in fact. Twombly, 550 U.S. at 555; Sissel v. U.S. Dep’t of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014) (noting that in considering a Rule 12(b)(6) motion, the “court assumes the truth of all well-pleaded factual allegations in the complaint and construes reasonable inferences from those allegations in the plaintiff’s favor, but is not required to accept the plaintiff’s legal conclusions as correct” (internal citation omitted)). In addition, courts may “ordinarily examine” other sources “when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see also English v. District of Columbia, 717 F.3d 968, 971 (D.C. Cir. 2013). III. DISCUSSION
The defendants contend that the Seth has failed to state a claim under the ADA and the RA, because he has “not adequately alleged he is a qualified individual who has been denied services, programs, or activities by the District on the basis of his disability,” Defs.’ Mot. at 1; the DCHRA, because “he does not allege he was discriminated against by the District on the basis of his disability,” id.; or the CIDA, because “CIDA does not provide for a private right of action,” id. These issues are taken in turn before addressing Seth’s motion for an order directing access for an examination.
A. Americans with Disabilities Act and Rehabilitation Act Claims Congress enacted the Rehabilitation Act in recognition that “individuals with disabilities continually encounter various forms of discrimination in such critical areas as . . . institutionalization [and] health services.” 29 U.S.C. § 701(a)(5). To that end, section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal
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financial assistance.” Id. § 794(a). The ADA, enacted later, also seeks to protect individuals with disabilities. As relevant here, Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Both the RA and the ADA require public entities to “make reasonable modifications” to accommodate covered individuals, unless they “can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i).
At the motion to dismiss stage, a plaintiff bringing discrimination claims under § 504 of the RA or Title II of the ADA “does not need to prove a prima facie case of discrimination.” McNair v. District of Columbia, 213 F. Supp. 3d 81, 86 (D.D.C. 2016) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510–12 (2002)); see also Twombly, 550 U.S. at 569–70 (affirming that Swierkiewicz remains good law). Thus, at this stage of the litigation, a plaintiff alleging discrimination under the ADA need only show “(1) that the plaintiff is a qualified individual with a disability; (2) that the public entity denied him the benefits of or prohibited him from participating in the entity’s services, programs or activities; and (3) that denial or prohibition was ‘by reason of’ his disability.” Jackson v. District of Columbia, 826 F. Supp. 2d 109, 125–26 (D.D.C. 2011) (quoting 42 U.S.C. § 12132), aff’d, No. 11-7156, 2013 WL 500809 (D.C. Cir. Jan. 18, 2013). Under the RA, only the third requirement differs: the plaintiff must show that the discrimination or exclusion was caused “solely by reason of” his disability. 29 U.S.C. § 794(a) (emphasis added).8

8

The parties dispute whether the word “solely” in § 504 of the Rehabilitation Act should be read out of the

statutory text, such that the RA and the ADA are coextensive. Compare Defs.’ Mem. Supp. Mot. Dismiss (“Defs.’

Mem.”) at 9, ECF No. 19 (“Under the Rehabilitation Act, the standard is higher: a plaintiff must show he was

discriminated against solely by reason of his disability.” (internal quotation marks and alteration omitted; emphasis

in original)), with Pl.’s Opp’n at 19 (“Defendants incorrectly allege that the Rehabilitation Act invokes a higher

standard for discrimination due to the presence of the word ‘solely’ in the statute. In reality, the ADA and

Rehabilitation Act impose similar requirements regarding the basis of the Defendants’ actions or inactions.” (internal

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Generally, “[a] plaintiff may base h[is] discrimination claim on one of three theories of liability: disparate treatment, disparate impact, or failure to make a reasonable accommodation.” Davis v. Shah, 821 F.3d 231, 260 (2d Cir. 2016); see also Chenari v. George Washington Univ., 847 F.3d 740, 747 (D.C. Cir. 2017) (quoting Davis, 821 F.3d at 259–60); Drasek v. Burwell, 121 F. Supp. 3d 143, 153 (D.D.C. 2015) (noting that “intentional discrimination” is “also known as ‘disparate treatment’ discrimination”). In addition, the Supreme Court has recognized that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597 (1999). Seth contends that his complaint is sufficient to state claims for intentional discrimination, disparate treatment, disparate impact, and failure to accommodate. See Pl.’s Opp’n Defs.’ Mot. Dismiss (“Pl.’s Opp’n”) at 12–21, ECF No. 21. These claims are each insufficient for the same reason: Seth has failed to sufficiently establish that the defendants engaged in any of these purported forms of discrimination “by reason of his disability.” In addition, Seth argues that the complaint states a claim for unnecessary segregation, or unjustified isolation, under Olmstead. Id. at 21–25. This claim is likewise insufficient.
1. Intentional Discrimination, Disparate Treatment, Disparate Impact, and Failure to Make Reasonable Accommodations
The defendants do not dispute that they are public entities that denied Seth the benefits of or prohibited Seth from participating in their services. See Defs.’ Mem. Supp. Mot. Dismiss
quotation marks and citation omitted)). The D.C. Circuit has not expressly addressed this question, although it has indicated, without identifying this difference in language, that the two statutes should be read similarly. See Crandall v. Paralyzed Veterans of Am., 146 F.3d 894, 896–97 (D.C. Cir. 1998) (“The courts of appeals have overwhelmingly agreed that for this causal link to be shown the employer must have acted with an awareness of the disability itself, and not merely an awareness of some deficiency in the employee’s performance that might be a product of an unknown disability. They have so found under both the Rehabilitation Act itself and the analogous provision of the Americans with Disabilities Act.”). In addition, the D.C. Circuit repeatedly has acknowledged that § 504 of the Rehabilitation Act and Title II of the ADA “are similar in substance,” and, consequently, “cases interpreting either are applicable and interchangeable.” Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1260 n.2 (D.C. Cir. 2008) (internal quotation marks omitted). Resolving this issue is unnecessary in this case, however, given that Seth has failed to establish discrimination on the basis of his disability, let alone based solely on his disability.
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(“Defs.’ Mem.”) at 8–11, ECF No. 19. Rather, the defendants contend that Seth is not a “qualified individual,” id. at 8, and that he has not shown that he was denied these services “by reason of his disability,” id. at 9 (alteration and internal quotation marks omitted). See also Pl.’s Opp’n at 6–7, 12–25. These issues are taken in turn.
a) Qualified Individual with a Disability Under the ADA and the RA, a “qualified individual with a disability” is defined as “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2); see also 28 C.F.R. § 35.104. To be eligible for the DDS’s services, Seth must establish, among other requirements, that he is a “resident of the District of Columbia,” which is defined as “a person who maintains his or her principal place of abode in the District of Columbia, including a person with an intellectual disability who would be a resident of the District of Columbia if the person had not been placed in an out-of-state facility by the District.” D.C. Code § 7-1301.03(22). The defendants claim that Seth has not made this showing, given that he “currently resides at FMC Butner,” Defs.’ Mem. at 9, and that Seth does not fall under the statute’s enumerated class of persons “who would be a resident of the District of Columbia if the person had not been placed in an out-of-state facility by the District” because he was placed at Butner “not by the District, but by the U.S. Attorney General.” Id. (internal quotation marks omitted). These arguments fall short. The law is well established that “[a] person’s residency does not change by virtue of being incarcerated in another state.” Hester v. District of Columbia, 433 F. Supp. 2d 71, 78 (D.D.C. 2006) (citing Lawrence v. District of Columbia Bd. of Ethics, 611 A.2d 529, 532 (D.C. 1992)), rev’d on other grounds by 505 F.3d 1283 (D.C. Cir. 2007); see also, e.g., Johnson v. Passman & Kaplan, No. 03-7175, 2004 WL 2857277, at *1 (D.C. Cir. Dec. 13, 2004) (per
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curiam) (“[T]he domicile of a prisoner before he was imprisoned is presumed to remain his domicile while he is in prison.” (alteration omitted) (quoting Sullivan v. Freeman, 944 F.2d 334, 337 (7th Cir. 1991))); Jones v. Hadican, 552 F.2d 249, 250–51 (8th Cir. 1977); Polakoff v. Henderson, 370 F. Supp. 690, 693 (N.D. Ga. 1973), aff’d, 488 F.2d 977 (5th Cir. 1974); Stifel v. Hopkins, 477 F.2d 1116, 1121 (6th Cir. 1973). Other provisions of the D.C. Code also specify that “[n]o person shall be deemed to have gained or lost a residence by reason of absence while . . . kept at any institution at public expense.” D.C. Code § 1-1001.02(16)(E).
In short, Seth was a resident of the District of Columbia before his incarceration, Compl. ⁋ 17, and he thus remains a D.C. resident today. The fact that Seth was placed at FMC Butner by the U.S. Attorney General, and not the District, does not alter this conclusion, as the defendants argue. See Defs.’ Mem. at 8–9. While the D.C. Code does specify that those individuals placed at out-of-state facilities by the District remain citizens, this is merely one class of individuals who remain citizens—the statute does not list this class of individuals to the exclusion of all others. Thus, although Seth is presently confined at FMC Butner, he remains a “resident of the District of Columbia” for the purpose of his eligibility for DDS services.
b) By Reason of Disability The crux of the defendants’ dismissal motion is that Seth has failed to establish that he was denied DDS services and benefits “by reason of his disability.” Defs.’ Mem. at 9 (internal quotation marks and alteration omitted). Specifically, the defendants contend that Seth has not stated a claim for intentional discrimination, disparate treatment, disparate impact, or failure to make reasonable accommodations. Id. at 7–8; see also Defs.’ Reply Supp. Mot. Dismiss (“Defs.’ Reply”) at 3–5, ECF No. 22. Seth contends that he has alleged sufficient facts to survive a motion to dismiss on each of these theories of discrimination. The defendants are correct.
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To succeed on any of these theories of discrimination, the plaintiff must plead sufficient facts to establish that the complained-of “discrimination was due to his disability.” Howell v. Gray, 843 F. Supp. 2d 49, 59 (D.D.C. 2012) (internal quotation marks omitted). That is, the plaintiff “must establish that the disability actually played a role in the decision making process and had a determinative influence on the outcome.” Id. (internal quotation marks omitted) (quoting Jackson, 826 F. Supp. 2d at 115). Such a showing requires more than merely “recit[ing] the word ‘discrimination’” in the complaint. Bean v. Perdue, No. 17-0140, 2017 WL 4005603, at *5 (D.D.C. Sept. 11, 2017). The plaintiff must instead allege some facts of discrimination that tend to show that the complained-of discrimination was based on, or based solely on, his disability. See id. (dismissing the plaintiff’s RA claim when the plaintiff “ha[d] not alleged any acts of discrimination nor stated any facts suggesting that the USDA’s denial of his request for loan servicing was due ‘solely’—or even partly—to his disability”). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do,’” Azam v. D.C. Taxicab Comm’n, 46 F. Supp. 3d 38, 46 (D.D.C. 2014) (quoting Twombly, 550 U.S. at 555), “[n]or will a complaint survive if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement,’” id. (alteration in original) (quoting Twombly, 550 U.S. at 557).
The plaintiff has not made such a showing here regarding the alleged discrimination, whether in the form of intentional discrimination, disparate treatment, disparate impact, or failure to provide reasonable accommodations. Regarding intentional discrimination and disparate treatment, Seth must show that the defendants’ actions were taken “at least in part ‘because of,’ not merely ‘in spite of,’ [their] adverse effects upon an identifiable group.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). Here, Seth contends that DDS is “utilizing criteria or methods of administration” for its services that “have the effect of subjecting [Seth] to
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discrimination on the basis of disability,” Compl. ⁋ 133, but he provides no further details on these criteria, how they affected him, or the defendants’ motivations for imposing such criteria. Seth also cites, as evidence of intentional discrimination, “DDS’ record of providing similar services to individuals with behaviors similar to [Seth’s] but with different disabilities than [Seth’s],” Pl.’s Opp’n at 15 (citing Compl. ⁋⁋ 42–46, 48), but the cited paragraphs contain no mention of the services provided to other individuals and not to Seth. Seth identifies still other allegations from the complaint that purport to show intentional discrimination and disparate treatment, but these allegations concern only the defendants’ change of position regarding his case. For example, Seth cites, as evidence of discrimination, “DDS’ refusal to civilly commit [him] after having previously agreed to do so,” id. (citing Compl. ⁋⁋ 76–78), and “the severe harm that [Seth] has suffered, and continues to suffer during his incarceration,” id. (citing Compl. ⁋⁋ 34–36, 76–91), but these claims offer no indication of intentional discrimination or disparate treatment based on his disability. Notably, on April 17, 2017, the Complex Warden at Butner issued a Certificate of Dangerousness, certifying that Seth’s “release would create a substantial risk of bodily injury to another person or serious damage to the property of another,” Certificate at 1, a development that might also have affected the defendants’ change in position regarding their ability to provide community-based treatment for him.
Seth also contends that “the District of Columbia regularly provides community-based supervisory services to D.C. residents who are found not competent to stand trial due to mental illness through the Department of Behavioral Health, but is failing to do so for those with intellectual disability,” such as Seth. Compl. ⁋ 14; see also id. ⁋⁋ 93–95, 132.9 The complaint

9

To the extent that this allegation reflects an effort to distinguish Seth’s intellectual disability from a mental

illness as the crux of his discrimination claims, that assertion is simply not developed in the complaint, which

contains no facts indicating that the defendants treat people with intellectual disabilities differently from people with

mental illnesses when determining whether they will receive the services at issue.

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does not set forth any facts showing that the defendants’ decision not to provide services to Seth was based on disability discrimination, however, let alone based “solely” on his disability as required under the RA.10 Rather, the complaint acknowledges that, on March 18, 2015, “DDS formally determined that [Seth] was eligible for its services based on his intellectual disability,” id. ⁋ 45, and diligently worked, for nearly two years, to “develop[ ] a plan for [Seth’s] transition from the criminal justice system into the District’s civil commitment system,” id. ⁋ 51. After a leadership change at DDS, and perhaps more notably, after FMC Butner’s filing of the Certificate of Dangerousness, the agency reassessed its position and “decided not to provide community-based services and supports to [Seth] via the civil commitment mechanism.” Id. ⁋ 76. Although the defendants’ decision not to seek custody of Seth may have been inconsistent with DDS’s prior assurances, planning, and evaluations, merely changing a position or revising a recommendation, without more, does not amount to actionable discrimination. Seth offers no reason to think that this change was made by reason of his disability, rather than, for example, budgetary choices made by the new leadership or FMC Butner’s Certificate of Dangerousness.
The plaintiff next contends that he has “allege[d] sufficient facts to advance a disparate impact theory of discrimination.” Pl.’s Opp’n at 17 (capitalization omitted). A claim of disparate impact “requires the identification of a specific [ ] practice that, while facially neutral, nonetheless had a disproportionate adverse effect on a protected class of individuals.” Anderson v. Duncan, 20 F. Supp. 3d 42, 54 (D.D.C. 2013). The complaint alludes to “criteria” and “methods of administration,” Compl. ⁋ 133, but no factual allegations describing what these criteria or methods were or how they affected different classes of individuals are presented to

10

Indeed, the allegations under Count 2, “Violation of Section 504 of the Rehabilitation Act,” assert only that

“DDS has discriminated against [Seth] because of his intellectual disability,” Compl. ⁋ 147, not that DDS discriminated

against him “solely on the basis of” his disability, as required by the RA. 29 U.S.C. § 794(a) (emphasis added).

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support the discrimination claim. Indeed, Seth himself does not identify the facts in the complaint that support this theory. See Pl.’s Opp’n at 17–19. Rather, in responding to the motion to dismiss, Seth focuses on distinguishing Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 1998), a case that the defendants invoke in passing to argue that “[n]either the ADA nor the Rehabilitation Act establish[es] an obligation to meet a disabled person’s particular needs vis-àvis the needs of other handicapped individuals,” Defs.’ Mem. at 8 (quoting Pfrommer, 148 F.3d at 83). The facts of that case are distinguishable, but the case still shows the challenges of bringing a discrimination claim in the context of a public agency’s provision of disability services. Pfrommer involved allegations that the defendant agency had discriminated against the plaintiff on the basis of his disability by “fail[ing] to provide him with reasonable accommodations for his mental illness,” including an individualized rehabilitation program that included a “job coach and self-employment goals,” and by “terminating his benefits until he received continued mental therapy.” Pfrommer, 148 F.3d at 81. The plaintiff was thus challenging “the substance of the services provided to him,” not “illegal discrimination against the disabled,” id. at 84, and accordingly, the district court’s grant of summary judgment to the agency on the RA claims was affirmed, id. The Second Circuit also concluded that the ADA and the RA “mandate only that the services provided by [a covered entity] to non-handicapped individuals not be denied to a disabled person because he is handicapped.” Id. at 83. As discussed, Seth has not shown the defendants’ decision not to seek custody was made “because he is handicapped.”
Finally, Seth’s failure-to-accommodate claim is similarly insufficient to survive a motion to dismiss. To prevail on a failure-to-accommodate claim, a plaintiff must establish that (1) “he was disabled for the purposes of the Rehabilitation Act” or the ADA; (2) the public entity “had notice of his disability”; and (3) the public entity “denied his request for a reasonable accommodation
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of his disability.” Chenari, 847 F.3d at 747 (internal quotation marks and alterations omitted). Seth contends that his reasonable-accommodations claim survives a motion to dismiss because “the Complaint alleges specifically that [Seth] was entitled to services for which he was found eligible by DDS and that he was excluded from these services on the basis of his disability.” Pl.’s Opp’n at 20 (internal citation omitted) (citing Compl. ⁋⁋ 6, 132). Other than these bare allegations, however, Seth’s complaint includes no specific allegations supporting the claim that he was denied accommodations—that is, community-based services—by the defendants due to his intellectual disability. See Hinson ex rel. N.H. v. Merritt Educ. Ctr., 521 F. Supp. 2d 22, 30 (D.D.C. 2007) (granting motion to dismiss where the complaint “contain[ed] no specific allegations” regarding the plaintiff’s ADA and RA claims). Rather, the complaint indicates only that after “repeatedly and unequivocally inform[ing] [Seth] and his counsel” that they “planned to commence civil commitment proceedings in order to provide him with community-based services,” Compl. ⁋ 6, the defendants subsequently “reneged on [their] prior explicit commitments” and decided not to provide him with such services, id. ⁋ 9. See also id. ⁋⁋ 75–78.
While the Court is to assume the truth of all well-pleaded facts in the complaint, “[w]ithout any supporting factual allegations, [Seth’s] assertions reduce to mere legal conclusions that are not entitled to the assumption of truth.” Boykin v. Gray, 895 F. Supp. 2d 199, 208 (D.D.C. 2012), aff’d, 650 F. App’x 42 (D.C. Cir. 2016). Seth has offered no evidence that the defendants’ decision not to initiate commitment and custody proceedings was made based on his disability—indeed, he hardly acknowledges the issuance of an FMC Butner medical report on April 11, 2017, finding that Seth’s release would pose a danger to the community, or the FMC Butner Warden’s Certificate of Dangerousness filed on April 28, 2017, while DDS’s
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discussions and planning were ongoing. Jt. Status Report at 2.11 Accordingly, Seth has failed to state a claim for intentional discrimination, disparate treatment, disparate impact, or failure to make reasonable accommodations under the ADA and the RA.
2. Unjustified Isolation The defendants also contend that Seth’s ADA and RA claims “fail to the extent they are based on an unjust isolation theory” of discrimination. Defs.’ Mem. at 11. The Supreme Court recognized, in Olmstead, that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” Olmstead, 527 U.S. at 597. To succeed on an unjustified-isolation claim under Olmstead, a plaintiff must show that (1) “the State’s treatment professionals have determined that community placement is appropriate”; (2) “the transfer from institutional care to a less restrictive setting is not opposed by the affected individual”; and (3) “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id. at 587. The Court noted, however, that it was not holding “that the ADA imposes on the States a standard of care for whatever medical services they render, or that the ADA requires States to provide a certain level of benefits to individuals with disabilities,” but only “that States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” Id. at 603 n.14 (internal quotation marks omitted). Here, Seth does not oppose a “transfer from institutional care to a less restrictive setting,” id. at 587, but he has failed to offer sufficient indications that the defendants believe “community

11

In opposition to the defendants’ motion to dismiss, Seth relies on Alston v. District of Columbia, 561 F.

Supp. 2d 29 (D.D.C. 2008), in which this Court “denied a motion to dismiss an ADA complaint” when the

complaint contained “no mention” of “any causes [of discrimination] other than the extent and severity of [the

plaintiff’s] disabilities.” Pl.’s Opp’n at 20–21 (internal quotation marks omitted). Alston was decided before the

Supreme Court’s decision in Iqbal, however, which explained that surviving a motion to dismiss “demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678; see also id. at 683

(dismissing the plaintiff’s discrimination claim when the complaint “d[id] not contain any factual allegation sufficient

to plausibly suggest petitioners’ discriminatory state of mind”). Alston’s continuing guidance regarding the analysis of

a motion to dismiss is therefore questionable, and in any event, that case does not control the outcome here.

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placement is appropriate” or that “the placement can be reasonably accommodated,” id. In fact, to the contrary, another court has now found, “by clear and convincing evidence,” that Seth’s release from institutional care would “create a substantial risk of bodily injury to another person or serious damage to the property of another,” E.D.N.C. Commitment Order at 1, and that “state placement is not available” in the District of Columbia, Competency Hr’g Tr. at 46:19. Although the defendants may, at one time, have believed that community-based services would be an appropriate alternative for Seth, their decision not to move forward with accepting responsibility for his custody, care, and treatment indicates that they no longer find communitybased treatment appropriate.
Seth nevertheless contends that the complaint alleges sufficient facts to support an unjustified-isolation theory of discrimination because the defendants “are administering their services in a manner that denies community-based services to [him] and forces him to remain unnecessarily in federal custody.” Pl.’s Opp’n at 23; see also Compl. ⁋⁋ 77–78. This argument rests on the assumption that “the defendants are obligated to provide services to [Seth] despite his being in federal custody and his federal civil commitment.” Pl.’s Opp’n at 7 (capitalization omitted). No such obligation exists. Accord Traynor v. Turnage, 485 U.S. 535, 549 (1988) (“There is nothing in the Rehabilitation Act that requires that any benefit extended to one category of handicapped persons must be extended to all other categories of handicapped persons.”).
Under 18 U.S.C. § 4246, a certificate of dangerousness may issue only upon a finding that “suitable arrangements for State custody and care of the person are not available,” 18 U.S.C. § 4246(a). Once an individual has been committed to the custody of the Attorney General, § 4246(d) requires that “[t]he Attorney General shall release the person to the appropriate official of the State . . . if such State will assume responsibility for his custody, care, and treatment.” Id.
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§ 4246(d) (emphasis added). In committing Seth to the custody of the Attorney General, both the Complex Warden at FMC Butner and the district court in North Carolina found that “state placement is not available” in the District of Columbia. Competency Hr’g Tr. at 46:19; see also Certificate at 1. Release to the appropriate officials in the District therefore was not required. The statute contains no language requiring the government to present evidence on the availability, or lack thereof, of appropriate custody for Seth in the District, see Wigren, 641 F.3d at 946 (“The IDRA does not provide for judicial review of the certification, or establish standards by which a court could determine whether suitable arrangements for State custody are available” (internal quotation marks omitted)), or requiring the District to take custody of Seth, see id. at 947 (“[T]he [IDRA] does not endow the committed person with a judiciallyenforceable right to state custody.” (internal quotation marks omitted)). Indeed, Seth does not contend that any such language exists. Thus, given the conditional language in § 4246, the Attorney General is not required to release a civilly committed person to the District in the absence of the District’s willingness to assume responsibility for that person’s custody, care, and treatment. See 18 U.S.C. § 4246(d) (“The Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment.” (emphasis added)). In the absence of suitable arrangements in the District, the three-factor Olmstead test is not satisfied and Seth has failed to plead a sufficient claim of unjustified isolation.12

12

Even if Seth had succeeded on his discrimination claims, this Court would be hard-pressed to order his

release given the Certificate of Dangerousness and finding of dangerousness in the Eastern District of North

Carolina. Nevertheless, although Seth has failed to state a claim under the antidiscrimination laws, alternative

avenues for relief remain open. Seth may, for example, seek review of the dangerousness finding in the Eastern

District of North Carolina. When a person has been ordered civilly committed, “at any time during such person’s

commitment,” his counsel or legal guardian may “file with the court that ordered the commitment a motion for a

hearing to determine whether the person should be discharged from such facility,” and may continue to file such

motions every 180 days. 18 U.S.C. § 4247(h). Seth’s attorneys thus may challenge the dangerousness finding and

Seth’s continued commitment at regular intervals during his confinement, but they must do so in the Eastern District of

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B. District of Columbia Human Rights Act
The DCHRA states that “it shall be an unlawful discriminatory practice for a District
government agency or office to limit or refuse to provide any facility, service, program, or
benefit to any individual on the basis of an individual’s actual or perceived . . . disability.” D.C.
Code § 2-1402.73. “District of Columbia courts interpreting the DCHRA ‘have generally looked
[for guidance] to cases from the federal courts’ arising under federal civil rights statutes.” Whitbeck
v. Vital Signs, Inc., 116 F.3d 588, 591 (D.C. Cir. 1997) (alteration in original) (quoting Benefits
Commc’n Corp. v. Klieforth, 642 A.2d 1299, 1301–02 (D.C. 1994)). Thus, “the D.C. law is
applied in the same manner as the parallel federal antidiscrimination provisions.” Paralyzed
Veterans of Am. v. Ellerbe Becket Architects & Eng’rs, P.C., 950 F. Supp. 393, 405 (D.D.C. 1996).
The defendants contend that Seth has failed to state a claim under the DCHRA because
“the factual allegations pled do not support a plausible inference that the District’s decision not
to petition for his custody (namely, to provide him disability services) was made ‘on the basis of
North Carolina—the “court that ordered the commitment.” Id. In addition, Seth’s continued commitment is subject to annual review by the director of FMC Butner, who must “prepare annual reports concerning the mental condition of [Seth] and containing recommendations concerning the need for his continued commitment,” which reports are submitted to the court that ordered the commitment. Id. § 4247(e)(B). If the director finds that Seth has sufficiently recovered from his mental disease or defect, he must notify the court and the court must then order Seth’s release or hold a hearing on the issue. Id. § 4246(e). Seth could also initiate a habeas proceeding challenging his continuing custodial status. See id. § 4247(g) (“Nothing contained in section 4243, 4246, or 4248 precludes a person who is committed under either of such sections from establishing by writ of habeas corpus the illegality of his detention.”).
Seth also identifies the case United States v. Ecker, 489 F. Supp. 2d 130 (D. Mass. 2007), in which a defendant in the District of Massachusetts was found not competent to stand trial. Id. at 132. While the defendant was undergoing further evaluation, the government filed a petition for civil commitment in the District of Minnesota, where the defendant was then in custody. Id. After the court in Massachusetts dismissed the indictment, id. at 133, the defendant filed a motion “to order the United States Attorney General to transfer him from federal custody [in Minnesota] to a state facility within the Commonwealth of Massachusetts.” Id. at 131. While acknowledging the “principle of state responsibility for the care of the mentally ill” that is “clearly outlined in the text of” the IDRA, id. at 135, the court nevertheless noted that “the government is correct that neither this Court nor the Attorney General can require the Commonwealth of Massachusetts to assume responsibility for the care, custody and treatment” of the defendant. Id. at 137 (internal quotation marks and alteration omitted; emphasis in original). Nevertheless, recognizing the requirement, in § 4246, that the Attorney General “continue periodically to exert all reasonable efforts to cause such a State to assume such responsibility,” id. at 136 (emphasis in original) (quoting 18 U.S.C. § 4246(d)), the court “direct[ed] the government to provide a detailed report within six months to this Court identifying all reasonable efforts exerted to cause the Commonwealth of Massachusetts to assume custody” of the defendant, id. at 137. Such relief is not available in this antidiscrimination case against only local government parties.
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Case 1:18-cv-01034-BAH Document 28 Filed 09/28/18 Page 33 of 40
[his] actual or perceived . . . disability.’” Defs.’ Reply at 8 (alterations in original) (quoting D.C. Code § 2-1402.73). For the same reasons discussed above regarding Seth’s ADA and RA claims, Seth also has failed to establish that the defendants’ decision not to petition for custody in his case was made on the basis of his disability. Seth alleges in the complaint that the defendants have “discriminated against [him] on the basis of his disability in violation of the DCHRA” and that “[c]ommunity-based services for [him] can be reasonably accommodated,” Compl. ⁋⁋ 152–53, but the complaint contains no factual allegations explaining why the defendants’ change of heart is tantamount to discrimination under the ADA, the RA, or the DCHRA. In the absence of “any supporting factual allegations,” Boykin, 895 F. Supp. 2d at 208, these claims likewise do not survive a motion to dismiss.
C. Citizens with Intellectual Disabilities Act Finally, the defendants contend that Seth’s complaint fails to state a claim under the CIDA, D.C. Code § 7-1303, et seq., because “the civil commitment provision of CIDA [ ] does not create a private right of action” and because the CIDA does not create an “obligation . . . that the District petition for [Seth’s] civil commitment.” Defs.’ Mem. at 15–16. Seth, in turn, argues that a private right of action exists because “[Seth] is one of the class for whose special benefit CIDA was created,” Pl.’s Opp’n at 32, and that the CIDA “does not allow discretion to refuse commitment to individuals who have been found incompetent,” id. at 34. The defendants have the better arguments. The CIDA contains only one provision that expressly references a civil remedy for the enforcement of rights under the Act: D.C. Code § 7-1305.13(a), which states that “[a]ny interested party shall have the right to initiate an action in the Court to compel the rights afforded
33

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persons with intellectual disabilities under this chapter.” D.C. Code § 7-1305.13(a).13 Under that Act, however, “Court” refers to only “the Superior Court of the District of Columba,” id. § 7-1301.03(8), and the CIDA makes no mention of a private right of action available in federal court. Thus, Seth’s claims can proceed only if the CIDA includes an implied private right of action available in federal court.
District of Columbia courts “appl[y] the test of Cort v. Ash, 422 U.S. 66 (1975), to determine whether a D.C. statute creates an implied right of action.” Dial A Car, Inc. v. Transp., Inc., 132 F.3d 743, 744 (D.C. Cir. 1998) (citing Kelly v. Parents United for the D.C. Pub. Sch., 641 A.2d 159, 164 (D.C. 1994)). This test requires a court to consider three factors: (1) whether the plaintiff is “one of the class for whose especial benefit the statute was enacted”; (2) whether the legislature offered “any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one”; and (3) whether it is “consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff.” Cort, 422 U.S. at 78 (emphasis in original).14 Of these three factors, “the most important consideration is whether the legislature intended to create a private right of action.” Dial A Car, 132 F.3d at 744 (citing Suter v. Artist M., 503 U.S. 347, 364 (1992)). The “relatively heavy burden” of establishing this legislative intent rests with the plaintiff. Samuels v. District of Columbia, 770 F.2d 184, 194 (D.C. Cir. 1985).
Regarding the first factor—whether Seth is “one of the class for whose especial benefit the statute was enacted,” Cort, 422 U.S. at 78 (emphasis in original)—the legislative history

13

The CIDA was recently amended by the Disability Services Reform Amendment Act of 2017, D.C. Bill

No. 22-154, which went into effect on August 3, 2018. Unless otherwise noted, references to the CIDA and to Title

7 of the D.C. Code refer to the original provisions that were in place at the time the complaint was filed, rather than

the amended provisions.

14

A fourth Cort factor, whether the cause of action is “one traditionally relegated to state law, in an area

basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal

law,” Cort, 422 U.S. at 78, “is not applicable when a federal statute is not at issue.” Kelly, 641 A.2d at 163 n.10

(internal quotation marks and alteration omitted).

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indicates that he is not part of this class. The section at issue here, which gives the District the option of petitioning for an individual’s commitment, see D.C. Code § 7-1303.04(b-1), was enacted as part of the Civil Commitment of Citizens with Mental Retardation Amendment Act of 2002, D.C. Bill 14-616. The Committee Report explains that the purpose of the Act was to “ensure public safety and protect the community from individuals who may be dangerous to others without treatment or supervision,” D.C. Bill 14-616, Committee Report at 1 (June 3, 2002), but the report does not mention any enforcement mechanisms afforded to those individuals in the absence of a determination by the Superior Court for the District of Columbia that the individual has an intellectual disability. Although the plaintiff is correct that the “CIDA is infused throughout with concern, compassion, and protections for individuals with intellectual disabilities who are caught up in the criminal justice system,” Pl.’s Opp’n at 31–32; see also D.C. Code § 7-1301.02(a)(1), the CIDA and the rights it affords to persons with intellectual disabilities are focused on individuals who have been determined to be intellectually disabled under the process described in the CIDA, which is initiated by the District’s filing of a petition in the Superior Court for the District of Columbia, under D.C. Code § 7-1303.04(b-1), to have a person who has been found incompetent in a criminal case “committed to a facility.” D.C. Code § 7-1303.04(b-1). Here, the District opted not to petition for Seth’s commitment, and accordingly, he does not fall into the class of persons for whose benefit this statute was enacted.
Seth also has not carried his burden of establishing the second Cort factor—whether the D.C. Council offered “any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one.” Cort, 422 U.S. at 78. As discussed above, the only mention of civil remedies available under the CIDA is in § 7-1305.13, which applies only to persons who have been determined to be intellectually disabled by the Superior Court of the District of
35

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Columbia. The Committee Report contains no mention of an enforcement mechanism or remedy for those individuals who have not yet been determined intellectually disabled under the hearing and review procedures of the CIDA. See D.C. Code §§ 7-1304.01 to .13. Seth nevertheless relies on Kelly v. Parents United for District of Columbia Public Schools, 641 A.2d 159 (D.C. 1994), in which the D.C. Court of Appeals concluded that the District’s Nurse Assignment Act “created an implied private right of action permitting a parents group to sue on behalf of parents with children in schools without assigned nurses.” Pl.’s Opp’n at 32 (citing Kelly, 641 A.2d at 164). Kelly rested on language from Cort that “[i]n situations in which it is clear that [the statute] has granted a class of persons certain rights, it is not necessary to show an intention to create a private cause of action.” Kelly, 641 A.2d at 164 (emphasis in original) (quoting Cort, 422 U.S. at 82). The grant of rights to the class at issue in Kelly may have been “clear” in the Nurse Assignment Act, but the CIDA contains no such clear grant of a private right of action in federal court to the class of individuals to which Seth belongs—that is, individuals found incompetent in criminal cases for whom the District opted not to file commitment petitions. Thus, the second Cort factor does not weigh in favor of finding an implied right of action in federal court for individuals in Seth’s position.
Finally, the third factor—whether it is “consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff,” Cort, 422 U.S. at 78—also weighs against finding an implied right of action in federal court for individuals like Seth. Implying this remedy would permit any person who has been found incompetent in a criminal case, who believes he or she should be receiving DDS services or should be in the custody of the DDS, at taxpayer expense, to initiate an action, in federal court, compelling the District to take responsibility for his or her habilitation, care, and treatment. Such an implication would, as the
36

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defendants argue, “render[ ] the discretion conferred by the statute totally impotent,” Defs.’ Mem. at 16, and would flood the federal district court with actions that properly are cognizable in the Superior Court of the District of Columbia. The CIDA vests the District with discretion as to whether a commitment petition should be filed in each individual case. See D.C. Code § 71303.04(b-1) (“For an individual found incompetent in a criminal case, a written petition by the District may be filed with the Court to have the individual committed to a facility.” (emphasis added)). Accordingly, the CIDA does not provide an implied private right of action in federal court for individuals who have not been determined intellectually disabled through the process set out in that Act.15
Even if the CIDA did provide an implied private right of action in federal court for individuals like Seth, however, Seth would face an uphill battle in showing the sufficiency of his CIDA claims. Seth argues that the “CIDA requires that the District petition for civil commitment for individuals with intellectual disability found incompetent to stand trial and not likely to gain competence in the foreseeable future in a criminal case within thirty days of such a finding absent a showing of extraordinary cause.” Compl. ⁋ 156 (citing D.C. Code § 71303.12a(a)). Seth is correct that if the District decides to file a petition for civil commitment for such an individual, it “shall have no more than 30 days from the date on which the finding is made that the individual is incompetent . . . in which to file” that petition. D.C. Code § 71303.12a(a); see also id. § 7-1303.12a(a) (2018) (same). Section 7-1303.04(b-1), however,

15

Seth may be able, however, to challenge the District’s inaction in the Superior Court of the District of

Columbia. Section 7-1305.13(a) provides that “[a]ny interested party shall have the right to initiate an action in the

Court to compel the rights afforded persons with intellectual disabilities under this chapter,” D.C. Code § 7-

1305.13(a) (2018), with “Court” defined as “the Superior Court of the District of Columbia,” id. § 7-1301.03(8)

(2018). Although a rigorous timeframe applies to the initiation of commitment proceedings, see, e.g., id. § 7-

1303.12a(a) (2018), these time periods may be extended “[f]or extraordinary cause shown,” id. In other words,

while Seth does not have a federal right of action to enforce his rights under the CIDA, such an action may be

available in the Superior Court of the District of Columbia.

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makes clear that the District is not required to file such a petition every time such a finding is made. Rather, “[f]or an individual found incompetent in a criminal case, a written petition by the District may be filed with the Court to have the individual committed to a facility.” Id. § 71303.04(b-1) (emphasis added); see also id. § 7-1303.04(b-1) (2018) (same).
Seth ignores the discretionary nature of this provision, relying instead on various mandatory provisions in the CIDA. See Pl.’s Opp’n at 33–35. For example, Seth cites § 71304.01, which states that “[p]roceedings for the commitment of a person found incompetent in a criminal case shall be commenced by the filing of a written petition by the District.” Id. at 34 (emphasis in original) (quoting D.C. Code § 7-1304.01 (2018)). That provision merely sets out how commitment proceedings may be initiated; it does not require that the District initiate commitment proceedings in every given case. Similarly, Seth cites the requirement in § 71304.07 that “[t]he District shall present clear and convincing evidence that shows that the person whose commitment is sought is likely to cause injury to others as a result of an intellectual disability if allowed to remain at liberty.” Id. at 34–35 (emphasis in original) (quoting D.C. Code § 7-1304.07(b) (2018)). That requirement is only triggered, however, upon the District’s filing of a petition “pursuant to § 7-1303.04(b-1),” D.C. Code § 7-1304.07(b), which is discretionary. Seth also relies on § 7-1303.12a to argue that his “commitment to federal prison . . . is, by definition, not permitted by CIDA,” Pl.’s Opp’n at 35, because the hearing on a commitment petition must occur “no later than 90 days from the date on which the finding is made that the individual is incompetent and not likely to gain competence in the foreseeable future,” D.C. Code § 7-1303.12a(d), otherwise the individual must be placed in a DDS facility rather than a jail or prison, id. Again, that hearing is required only when the District opts to file a commitment petition. If the District chooses not to file such a petition, that ninety-day limitation
38

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does not apply. Thus, even if the CIDA did include an implied private right of action in federal court for claims like Seth’s, Seth would not have stated a claim under that Act. Accordingly, his CIDA claim shall be dismissed.
D. Seth’s Motion for an Order to Bureau of Prisons Directing Expert Access to FMC Butner to Interview the Plaintiff
Seth has also filed a motion requesting an order to the BOP directing expert access to FMC Butner to interview him for purposes of this lawsuit. See generally Pl.’s Mot. On July 2, 2018, Seth requested that FMC Butner approve a visit by one of his experts so that the expert could evaluate him; officials at FMC Butner granted that request without requiring a court order. Id. ⁋ 5. On August 1, 2018, following the same procedures used to schedule the first expert’s request, Seth’s counsel requested permission for a visit by a second expert, Dr. Jeffrey C. Holden, “to evaluate the impact of [Seth’s] current placement in a correctional facility on his emotional and mental health.” Id. ⁋ 6. This time, FMC Butner “stated that the FMC Butner warden would not approve [the expert’s] interview with [the Seth] without a court order.” Id. ⁋ 7. Seth thus filed the pending motion, seeking “an order directing the warden of FMC Butner to allow Dr. Holden to access FMC Butner so that he may interview Mr. Seth.” Id. at 6. The defendants contend that Seth’s motion is premature as “no scheduling order governing discovery has been issued, and defendants have moved to dismiss the Complaint in its entirety,” Defs.’ Opp’n Pl.’s Mot. (“Defs.’ Opp’n”) at 2, ECF No. 25, and that nonparty BOP should be given an opportunity to be heard on Seth’s motion, id. at 3. The BOP has taken no position on the motion. See Pl.’s Reply Supp. Mot. Access, Ex. A, Email from Michael Bredenberg (BOP) to Donald Salzman, dated Aug. 30, 2018, at 1, ECF No. 26-1.
Given the resolution of the defendants’ motion to dismiss, Seth has no further need for discovery in connection with this litigation. Accordingly, his motion is denied as moot.
39

Case 1:18-cv-01034-BAH Document 28 Filed 09/28/18 Page 40 of 40 IV. CONCLUSION
For the foregoing reasons, the defendants’ Motion to Dismiss the Plaintiff’s Complaint is granted. Accordingly, the plaintiff’s Motion Requesting an Order to Bureau of Prisons Directing Expert Access to Federal Medical Center Butner to Interview Plaintiff is denied as moot. An appropriate Order accompanies this Memorandum Opinion.
Date: September 28, 2018 _______________________ BERYL A. HOWELL Chief Judge
40

 
 Case 1:18-cv-01034-BAH Document 29-1 Filed 10/26/18 Page 1 of 75

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARKELLE SETH,

)

Old North Carolina Highway 75

)

Butner, N.C. 27509

)

) CIVIL ACTION NO:

Plaintiff,

)

)

vs.

)

)

The DISTRICT OF COLUMBIA,

)

Karl A. Racine, Attorney General

)

Office of the Attorney General

)

441 4th Street, N.W., Suite 630 South

)

Washington, D.C. 20001

)

)

The D.C. DEPARTMENT ON DISABILITY )

SERVICES,

)

250 E Street, S.W.

)

Washington, D.C. 20024, and

)

)

ANDREW REESE, in his

)

official capacity as Director of the D.C.

)

Department on Disability Services,

)

250 E Street, S.W.

)

Washington, D.C. 20024

)

)

Defendants.

)

)

AMENDED COMPLAINT

Markelle Seth, by and through his attorneys, brings this Amended Complaint against the

District of Columbia; the D.C. Department on Disability Services (“DDS”); and Andrew Reese,

in his official capacity as Director of DDS for violating Title II of the Americans with

Disabilities Act of 1990, 42 U.S.C. § 12131 et seq. (“ADA”), Section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794(a) (“Section 504”), the D.C. Human Rights Act of 1997, D.C.

Code § 2-1401.01 et seq. (“DCHRA”), and the Citizens with Intellectual Disabilities Civil Rights

Case 1:18-cv-01034-BAH Document 29-1 Filed 10/26/18 Page 2 of 75
Restoration Act of 2015, D.C. Code § 7-1301.01 et seq. (“CIDA”).
I. INTRODUCTION 1. The District of Columbia, by and through DDS1, the agency responsible for
providing services to D.C. citizens with intellectual and developmental disabilities, has
abandoned Markelle Seth (“Markelle”)—a young man deemed eligible for Defendants’ services
and found by a judge of this Court to have “the auditory comprehension of a first-grade
student”—leaving him to languish indefinitely in a federal prison in North Carolina in violation
of state and federal law. 2. Markelle is a D.C. resident with intellectual disability2 currently in federal prison
despite not having been convicted of any crime and despite Defendants’ obligation to provide
him with services and treatment in the most integrated setting appropriate to his needs.
1 All references to DDS refer to DDS, its Director, Andrew Reese, and the District of Columbia. DDS is acting on behalf of the District of Columbia as the government agency charged with providing services for D.C. citizens with intellectual and developmental disabilities.
2 Plaintiff uses the term “intellectual disability” in place of “mental retardation” except when directly quoting others or referencing names of organizations. Although the latter term appears in some evidence, case law, and statutory language, it is offensive to many persons and has been replaced by more sensitive and appropriate terminology. See Rosa’s Law, Pub. L. No. 111-256, 124 Stat. 2643 (2010) (changing entries in the U.S. Code from “mental retardation” to “intellectual disability”); Hall v. Florida, 134 S. Ct. 1986, 1990 (2014) (“This opinion uses the term ‘intellectual disability’ to describe the identical phenomenon. This change in terminology is approved and used in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders, one of the basic texts used by psychiatrists and other experts . . . .” (citations omitted)); Robert L. Schalock et al., The Renaming of Mental Retardation: Understanding the Change to the Term Intellectual Disability, 45 Intellectual & Developmental Disabilities 116 (2007). This complaint also uses person-first language, describing the person before the disability, consistent with D.C. Code § 2-632 (People First Respectful Language Modernization Act of 2006). 2

Case 1:18-cv-01034-BAH Document 29-1 Filed 10/26/18 Page 3 of 75
3. Markelle has now endured over four years of confinement in local and federal jails and prisons, despite Defendants’ legal obligation to provide services and treatment to Markelle via civil commitment pursuant to the D.C. statute that governs situations exactly like this one, and corresponding federal law obligations to accommodate Markelle’s intellectual disability in the most integrated setting appropriate. DDS’s own prior director acknowledged, and continues to stand by, the agency’s legal obligations in this case, noting that “the decision by DDS to allow Mr. Seth to languish and regress in federal custody rather than carry out its mission and mandate [is] inexplicable other than as a matter of discrimination.” (Declaration of Laura L. Nuss ¶ 24 [hereinafter Nuss Decl.] (attached hereto as Exhibit 1).)
4. Indeed, DDS’s own retained expert stated that Markelle can and should be returned to the District, where he can be placed in a supervisory program without posing a danger to himself or others. DDS—ignoring its own expert’s recommendation—has reneged on its legal commitment to do so, despite having both the legal obligation and practical capacity to do so. Markelle does not seek to be released unsupervised in the District of Columbia. Rather, DDS is obligated to place him in a supervised program, which can and would effectively address the fact that, in the absence of such supervision, he could present a risk of engaging in sexually inappropriate behavior with minors.
5. Because of his disability, Markelle is entitled, under federal and D.C. law, to receive from Defendants supervised disability-related services in the most integrated setting appropriate for him in his home community. Defendants provide these services to District residents with mental illness but fail to do so for D.C. residents with intellectual disability. The District can provide these services in a manner consistent with the requirements of public safety as it is charged to do under law. Defendants’ actions violate the ADA, Section 504, DCHRA,
3

Case 1:18-cv-01034-BAH Document 29-1 Filed 10/26/18 Page 4 of 75
and CIDA, and should be enjoined. 6. Defendants have within the District’s Medicaid waiver system all the services
necessary to safely and effectively serve Markelle in the community. Supporting individuals with intellectual and developmental disabilities (“I/DD”) who have committed criminal offenses, including sexual offenses, is common practice throughout the United States. 3 People in Markelle’s situation can live successfully in the community without presenting a harm to others, provided they receive appropriate training, treatment, and supervision, they can learn appropriate sexual behavior. In light of the development and implementation of safe and successful community-based treatment, services models and evidence-based practices, states across the country serve people with disabilities in the community. Defendants have available services sufficient to safely serve individuals with I/DD and complex behavioral needs, including problematic sexual behaviors. In addition to being a violation of state and federal law, Defendants’ failure to meet its obligation to serve Markelle in this case flies in the face of decades of evidence-based research and successful practice in the field of disability services, finding that people with I/DD in institutional settings can be safely served in the community, even where they may present problematic behaviors. (See Thaler Decl. ¶¶ 3-4, 17, 19-20, 22, 26, 31; Declaration of Robert L. Denney ¶¶ 8, 10 [hereinafter Denney Decl.] (attached hereto as Exhibit 3); Nuss Decl. ¶¶ 16, 21.)
7. On October 3, 2014, when Markelle was twenty years old, he was charged in
3 For instance, in Pennsylvania alone, over 300 individuals with I/DD and a history of having committed a sexual offense are being successfully supported by provider agencies in the community throughout the Commonwealth. (Declaration of Nancy Thaler ¶ 26 [hereinafter Thaler Decl.] (attached hereto as Exhibit 2).) 4

Case 1:18-cv-01034-BAH Document 29-1 Filed 10/26/18 Page 5 of 75
Superior Court for the District of Columbia with sexual offenses involving children who lived in
his household. Almost immediately, it became clear that Markelle, who had previously been
found incompetent in a juvenile proceeding, had an intellectual disability and likely was not
competent for trial. On October 16, 2014, the U.S. Attorney’s Office simultaneously dismissed
the Superior Court prosecution and initiated new charges in federal district court, styling the
allegations to allege a federal offense, production of child pornography. Upon information and
belief, the U.S. Attorney’s Office later acknowledged that the move to federal court was made specifically in order to avoid a Jackson finding4 being entered in D.C. Superior Court that would
trigger the District of Columbia civil commitment process.
8. In federal court, as in Superior Court, it was quickly recognized that Markelle is
an individual with intellectual disability and a series of evaluations ensued to determine his
competency to stand trial. While those evaluations were pending, Markelle, through his counsel,
applied to DDS for a determination of his eligibility for supervised disability-related services
4 A Jackson finding is a reference to a court’s finding, pursuant to Jackson v. Indiana, 406 U.S. 715 (1972), that a defendant incompetent to stand trial, and unlikely to become competent, cannot be confined indefinitely. In Jackson, the Supreme Court held that a defendant committed solely on the basis of incompetency “cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.” Id. at 738. Prior to this ruling, virtually all states allowed the automatic and indefinite commitment of incompetent defendants. The Court ruled that holding defendant Jackson (who had intellectual disability and was deaf) to a “more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses” deprived him of equal protection. Id. at 716. The Court also concluded that, “[a]t the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Id. at 738. Thus, the ruling identified the necessity of either initiating civil commitment or releasing a defendant whose competence is not likely to be restored. Id. 5

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available through the District’s Medicaid program. That request sought to ensure that, if Markelle were found by the court to be incompetent to stand trial and unlikely to be restored to competency, he would be eligible to be served in the most integrated setting appropriate in his community via the District of Columbia’s civil commitment mechanism and in compliance with federal law, rather than remaining in prison without having been convicted of a crime.
9. In 2015, DDS began a comprehensive evaluation of Markelle. Based on his welldocumented history of intellectual disability, he was found eligible for DDS’s services. The agency next identified and referred him to an existing DDS service provider, which accepted him and began to develop a program to provide him with services and treatment in the community once his competency proceedings were concluded. DDS later retained an expert to determine if the recommended program could properly meet Markelle’s needs while protecting the safety and security of the community. During that process, which extended through 2017, DDS repeatedly and unequivocally informed Markelle and his counsel, in writing and orally, that in accordance with its obligations under state and federal law it planned to commence civil commitment proceedings in order to provide him with supervised community-based services 5 through a selected provider, if and when this Court were to conclude that Markelle was incompetent to stand trial on the pending criminal charges and dangerous. (Nuss Decl. ¶¶ 6, 14, 18.)
5 CIDA defines “community-based services” as “non-residential specialized or generic services for the evaluation, care and habilitation of persons with intellectual disabilities, in a community setting, directed toward the intellectual, social, personal, physical, emotional or economic development of a person with an intellectual disability. Such services shall include, but not be limited to, diagnosis, evaluation, treatment, day care, training, education, sheltered employment, recreation, counseling of the person with an intellectual disability and his or her family, protective and other social and socio-legal services, information and referral, and transportation to assure delivery of services to persons of all ages who have intellectual disabilities.” D.C. Code § 7-1301.03(5). 6

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10. DDS was aware that if it did not move to take responsibility for Markelle, he would be subject to the federal civil commitment process and continued incarceration in the BOP, an outcome they indicated they agreed should be avoided. (E-mail from Mark D. Back, Gen. Counsel, DDS, to Lisa Greenman et al. (May 12, 2017, 16:03 EST) [hereinafter M.Back Email 1] (attached hereto as Exhibit 4).)
11. In recognition of its obligations under CIDA to provide supports and services for individuals with intellectual disability precisely in these circumstances, DDS identified an appropriate structure and plan for comprehensive supervised habilitative services in the community that would meet both Markelle’s needs and the needs and interests of the community, including any danger that would be posed if Markelle were placed unsupervised into the community. DDS’s expert issued a series of detailed reports containing a comprehensive plan to both serve and supervise Markelle outside of correctional facilities and within existing supervised programs with which DDS has contracted for services for other individuals with intellectual disability charged with sexual or other serious offenses, who may present a danger to the community if unsupervised.
12. In December 2016, based on multiple evaluations described below and a two-day evidentiary hearing, this Court found that Markelle was not competent to stand trial due to his intellectual disability and that there was no reasonable likelihood that he would ever become competent to stand trial. Following that finding, the Court was obligated, pursuant to 18 U.S.C. §§ 4246, 4248, to send Markelle back to BOP to determine (1) whether he was dangerous as a result of a mental condition and (2) whether his home state of D.C. would take responsibility for his care and custody. It was anticipated by all, including counsel for DDS, who had attended Markelle’s competency hearing and each of the prior status conferences in federal district court,
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that the answers to both of these questions was yes. At that point, pursuant to CIDA and its express acknowledgment of its obligations to Markelle, DDS should have begun civil commitment proceedings in the D.C. Superior Court.
13. Instead of following through on its commitment to Markelle, DDS reneged on its prior explicit commitments, ignored the recommendations of its own expert, and abdicated its legal responsibility to Markelle. As a result, Markelle remains incarcerated in a federal prison even though he has not been and cannot be convicted of the crime for which he was charged. Because DDS improperly refused to serve Markelle, the Warden of FMC Butner was required to file a certificate of dangerousness stating that “suitable arrangements for State placement are not available.” As a result, the United States Attorney General filed a petition for federal civil commitment in the Eastern District of North Carolina which that court subsequently granted; as a result, Markelle faces indefinite incarceration in the Federal Bureau of Prisons (“BOP”).
14. While Markelle was at Butner for his dangerousness study, DDS was fully aware of the likelihood that he would be found dangerous. Dangerousness was not a new fact or a surprise; it was in fact the premise and foundation for all of the planning that had been done for his DC commitment. (See Nuss Decl. ¶ 6.) Markelle’s history and the allegations regarding his conduct with children were well known by DDS. (See id.) The mechanics of the federal civil commitment had been discussed with Markelle’s criminal defense counsel and DDS was aware that the BOP would cooperate with DDS, as called for under the federal statute, when the District had finalized planning for Markelle’s care and custody.
15. During his federal incarceration, Markelle has been confined almost continuously in either disciplinary segregation or administrative detention. Regardless of semantics, the experience for Markelle has been solitary confinement: confinement to his cell for a minimum of
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22 hours each day, and frequently longer. Although in 2017 he periodically cycled back and forth between the prison’s general population and confinement in such “segregation,” records show that since early 2018, he has not been housed in general population at all. Markelle is in near-continuous solitary confinement because his intellectual disability—which includes poor executive functioning skills and impulsivity, among other challenges—makes it difficult for him to follow institutional rules, leading authorities to frequently discipline him by placing him in solitary confinement. (Declaration of Marisa C. Brown ¶¶ 37-39 [hereinafter Brown Decl.] (attached hereto as Exhibit 5); Denney Decl. ¶ 18.) Overall, he is unable to participate in any meaningful programming. For example, the “pet therapy” Markelle receives consists of him reaching through the food slot of his cell to pet dogs. (Denney Decl. ¶ 19.) Markelle also receives a weekly check-in from a mental health counselor, who speaks to him through the window on his cell door.
16. Markelle’s experience in prison is predictable. It is well established that the problematic behavior of individuals with I/DD often worsens within the rigid confines of prison life. People with I/DD may have considerable difficulty understanding the purpose behind rules and the consequences for violating rules, and be frightened by the lack of supportive behavior from prison personnel. For those who cannot effectively communicate their dissatisfaction verbally, they may act out how they are feeling in ways that do not conform with the rules. For those who have experienced trauma, such as Markelle, this environment can be particularly destructive. (Thaler Decl. ¶ 23; Denney Decl. ¶ 9.)
17. Markelle is a young man who began life at three months of age removed from his family and placed in foster care. He has experienced abuse and abandonment, and the absence of positive role models or adult guidance. His intellectual disability limits his ability to understand
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the world around him without professional guidance and supervision. Life in a correctional facility compounds his trauma, and will exacerbate his existing anxiety and intellectual disability stemming from abuse, head trauma and neglect. (Thaler Decl. ¶ 32.) If Markelle continues to be incarcerated, he will likely have continuing behavior problems resulting in increased levels of frustration or anger and a growing record of infractions, making it less likely that prison staff will ever agree to his release. Markelle is, thus, currently stuck in a Catch 22: the longer he remains in prison, the more harm he will experience and the more behavior problems he is likely to develop. (Thaler Decl. ¶ 34; Denney Decl. ¶ 9; Nuss Decl. ¶ 23.)
18. Should Markelle be provided rehabilitative services in the District, DDS and provider staff will be able to help him address these deficits in constructive ways, including via de-escalation techniques. His failure to advance in his social skills within the prison environment is not indicative of his potential for success within a community-based program that is tailored to his individual needs. (Denney Decl. ¶ 20.) Community settings can be much more easily individualized and designed to avoid triggers that may cause an individual’s challenging behaviors. (Thaler Decl. ¶¶ 24-25.) In contrast, in the rigid prison environment, Markelle only has the opportunity to fail. (Brown Decl. ¶ 40.) This continued segregation is likely to have a negative long-term impact on Markelle’s mental health and lead to the deterioration of his daily living skills. (Id. ¶¶ 37-38.) The vicious cycle Markelle is currently experiencing of triggers and punishments followed by triggers and more punishment is precisely what justifies prioritizing people in Markelle’s situation for community placements rather than prisons. (Thaler Decl. ¶
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33.) Butner’s Federal Medical Center6 is a prison first and cannot provide Markelle with what he needs, as the design, service provision, and staffing models of Butner virtually ensure his continued failure and incarceration by forcing him to remain in an environment in which he only has the opportunity to learn additional criminal style behaviors, rather than the pro-social behaviors required to effectively function in society. (Denney Decl. ¶¶ 9, 21.)
19. As a direct result of DDS’s failure to initiate civil commitment proceedings in the District of Columbia where he could receive the supervised habilitative services to which he is entitled, Markelle now endures federal civil commitment—including regular solitary confinement—in a federal prison for the foreseeable future, if not for the rest of his life.
20. Authorities for the BOP have stated that they would send Markelle back to the District of Columbia, as they are required to do by federal statute, if the appropriate local agency were prepared to take responsibility for his supervised care and treatment.
21. DDS has both a mandate and the capacity to provide Markelle with the services and supports he needs to be supervised successfully in the community. (Brown Decl. ¶¶ 5, 2224, 33-36, 41; Nuss Decl. ¶ 1.) DDS’s own retained expert has recommended it do so in this case, and it has created specific plans for the supervised care and custody of Markelle. In other states throughout the country, people in Markelle’s situation are routinely served in communitybased settings. Community safety is achieved through very close supervision with 24-hour staff and few other residents. (Thaler Decl. ¶ 26; Denney Decl. ¶ 10.) Because the District is failing to fulfill its legal mandate to provide such services to Markelle, his civil rights are being violated,
6 Markelle was transferred to Federal Medical Center, Devens, on or around October 25, 2018, while counsel was finalizing this filing. Accordingly, all references to conditions in federal prison and FMC Butner include his current incarceration at FMC Devens. 11

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his mental and physical health are being damaged, and his safety and future are at risk. (See Brown Decl., ¶ 41; Denney Decl. ¶¶ 9, 24; Nuss Decl. ¶ 24.)
22. Upon information and belief, the District of Columbia, through the Department of Behavioral Health, regularly provides community-based supervisory services to D.C. residents who are found not competent to stand trial due to mental illness, but fails to do so for those with intellectual disability, such as Markelle. D.C. law provides distinct mechanisms to civilly commit citizens who are found not competent to stand trial for one of two reasons: mental illness or intellectual disability. The District freely serves the former group, citizens found not competent to stand trial with a primary diagnosis of mental illness, pursuant to the Ervin Act, Mental Health Civil Commitment Act of 2002, D.C. Code § 21-501 et seq. (“Ervin Act”), which charges the District’s Department of Behavioral Health with this responsibility. The Ervin Act’s counterpart, CIDA, similarly charges DDS with providing services for citizens with intellectual disability found not competent to stand trial due to their intellectual disability. Despite having a statutory mandate to serve these citizens and the resources to do so, DDS has failed to act for Markelle. As explained in further detail below, although D.C. law provides, through the Ervin Act and CIDA, similar mechanisms to serve individuals found incompetent, the District’s implementation of those laws through DBH and DDS provides actual commitment and services only for those diagnosed with mental illness who are provided for by DBH, and abandons those with intellectual disability who can only look to DDS.
23. DDS is expressly tasked with serving individuals who present a potential danger to the community if unsupervised, and DDS has been aware from the outset of its review that if he were not supervised, Markelle could present a risk to himself or others. Indeed, CIDA specifically provides that only individuals who present the highest level of risk (defendants
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charged with a crime of violence or a sex offense) meet the criteria for civil commitment. The statute thus charges DDS with responsibility for a challenging population. The failure by DDS to fulfill its mandate as to individuals with intellectual disability, when similarly situated individuals with mental illness are provided with supervisory habilitative services, constitutes improper discrimination on the basis of disability under state and federal law.
24. Finally, the remedy sought here is appropriate because civil commitment is primarily a state, not a federal, function. Federal civil commitment exists only as a last resort for dangerous individuals for whom no state provision for care and custody exists. D.C. civil commitment allows for the provision of person-centered services and supports in the community, while federal civil commitment is akin to a lifelong prison sentence. Moreover, because DDS is able to care for and supervise Markelle, its failure to do so violates federal and D.C. law, and it cannot abdicate its responsibility to the federal government.
II. PARTIES 25. Plaintiff Markelle Seth is an individual with intellectual disability currently confined to federal custody after being found incompetent to stand trial and not capable of being returned to competency. Markelle is a resident of the District of Columbia. 26. Defendant District of Columbia is the jurisdiction that oversees DDS and the Department of Behavioral Health, both of which are city government agencies. 27. Defendant DDS is the D.C. government agency responsible for providing information, approval, placement, oversight and coordination, and funding for services to people with intellectual disability in the District. 28. Defendant Andrew Reese is the Director of DDS. In this role, Defendant Reese oversees the administration of the agency.
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29. Whenever Plaintiff uses the word “Defendants” in this Amended Complaint, he means all Defendants, their agents, employees, and all those acting in concert with them or at their direction.
III. JURISDICTION AND VENUE 30. This Court has general jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal question jurisdiction). This court has supplemental jurisdiction to consider state law claims under 28 U.S.C. § 1367. 31. Venue is proper in this Court pursuant to 28 U.S.C. § 1391.
IV. FACTS A. Markelle Has Experienced Instability, Trauma, and Intellectual Disability. 32. Markelle was born in November 1993, and raised in the District. He was removed from his mother’s care through neglect proceedings commenced in D.C. Superior Court when he was three months old. When the District’s Child and Family Services Agency (“CFSA”) took custody of Markelle, he weighed less than he did at his birth. He was then placed in St. Ann’s Infant Home, an orphanage, rather than a family home. Markelle spent time in two separate foster care homes before he was placed with his father in 1997, at the age of three. 33. Markelle experienced childhood seizures from infancy until he was about six years old. Markelle had significant delays in reaching developmental milestones, including not being able to sit up on his own until age four and not being able to crawl until age five. He also had significant speech delays. 34. Markelle also experienced significant challenges in school. He was identified as having a disability and placed in special education classes during elementary school. He was
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bullied by other students because of his disability. At some point during his attendance in a D.C. Public School, Markelle received an Individualized Education Program (“IEP”) under the Individuals with Disabilities Education Act (“IDEA”) that focused on supporting his learning activities across a broad array of areas, including math, reading, and writing, providing speech and language services, and behavioral supports.
35. For middle school and high school, Markelle was placed in Options Public Charter School (“Options”), a notoriously dysfunctional, segregated special education school in the District. In twelfth grade, Markelle’s standardized testing scores reflected math skills at a fourth-grade level, reading skills at a second-grade level, and writing skills at a first-grade level.
36. The school deemed Markelle unable to earn a high school diploma and placed him on the certificate track. Although the federal IDEA entitled him to receive a full complement of special education services until he turned twenty-two, Options encouraged Markelle to leave school at age eighteen. This action deprived him of his full special educational entitlement. Markelle should have been eligible for DDS services upon his exit from school, but he was not offered such services until his counsel insisted upon them, following his arrest. Defendants washed their hands of all responsibility to assist Markelle and seek to continue to avoid their responsibility.
B. Markelle Is an Individual with Intellectual Disability. 37. As defined by the American Association on Intellectual and Developmental Disabilities (“AAIDD”) and adopted by the District of Columbia, the definition of intellectual
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disability has three prongs: (1) significantly impaired intellectual functioning; 7 (2) adaptive behavior deficits in conceptual, social, and/or practical skills; and (3) onset of the disability before age eighteen. AAIDD, Definition of Intellectual Disability, http://aaidd.org/intellectualdisability/definition (last visited Oct. 25, 2018); see D.C. Code § 7-1301.03(2), (15A).
38. In a letter dated March 20, 2015, DDS expressly found Markelle “eligible to receive services through the DDA service delivery system” as a person with intellectual disability.
39. Markelle receives federal Supplemental Security Income benefits based on his disability, and he has been evaluated and found eligible for services as an adult with intellectual disability by Defendant DDS. Multiple evaluations over many years have confirmed this diagnosis. In finding him incompetent for trial, see infra paras. 37-40, a judge of this Court found that Markelle’s full scale IQ “hovers somewhere between fifty-three and sixty-five, landing at the bottom one percent of his age group regardless of where in that range it
7 An IQ of approximately 70–75 or lower demonstrates significant impairment of intellectual functioning. See AAIDD, Intellectual Disability: Definition, Classification, and System of Supports (11th ed. 2010) [hereinafter Classification Manual]; American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013). The U.S. Supreme Court has rejected arbitrary cutoffs for IQ scores in making the intellectual disability determination, stating that “[i]ntellectual disability is a condition, not a number” and [c]ourts must recognize, as does the medical community, that the IQ test is imprecise,” Hall, 134 S. Ct. at 2001, and the standard error of measurement “means that an individual’s score is best understood as a range of scores on either side of the recorded score.” Id. at 1995. Markelle’s IQ score range of 53–65, see supra para. 31, unequivocally meets the first prong of the definition of intellectual disability. 16

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falls.”8 Magistrate Judge Harvey’s Report and Recommendation at 33, United States v. Seth, No. 14-mj-608 (BAH/GMH) (D.D.C. Dec. 1, 2016), Dkt. 75 [hereinafter Magistrate’s Report] .
40. One component of Markelle’s intellectual disability diagnosis is his poor executive functioning skills. Executive functioning refers to self-regulating and control functions of the brain that direct and organize behavior. Markelle experiences problems in selfinhibiting, self-monitoring, self-evaluating, flexible problem-solving, and self-awareness. (Brown Decl. ¶ 40.) Markelle’s intellectual disability can, at times, also result in a short attention span, poor frustration tolerance, impulsivity, and challenges foreseeing consequences. (Denney Decl. ¶ 18.) In addition, some individuals with I/DD who exhibit inappropriate sexual behaviors, including Markelle, lack information about or opportunities for appropriate sexual expression and intimacy, lack social skills and information about appropriate sexual behavior, and misunderstand social boundaries and rules. At times, some individuals with I/DD may engage in sexual activity with individuals who are not of an appropriate age, which is known as “age discordant sex play.” (Thaler Decl. ¶ 21.)
C. Markelle Was Arrested and Charged but This Court Determined Markelle is Not Competent to Stand Trial.
41. Markelle was arrested on October 2, 2014, and on October 3, 2014, he was charged in D.C. Superior Court with sex offenses involving children in his household. The impact of Markelle’s disability on his competence quickly became obvious to the parties and the court, at which point the U.S. Attorney’s Office, in an effort it later acknowledged was intended
8 Magistrate Judge Harvey’s conclusions were adopted without objection from either party by Chief Judge Beryl Howell on December 22, 2016. Order, United States v. Seth, No. 14-mj608 (BAH/GMH) (D.D.C. Dec. 22, 2016), Dkt. 77 [hereinafter Dec. 22, 2016 Order]. 17

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to avoid Superior Court competency and commitment proceedings, dismissed the Superior Court prosecution and began a new prosecution against Markelle in federal court. On October 15, 2014, a complaint was filed in the U.S. District Court for the District of Columbia charging Markelle with one count of production of child pornography for allegedly using his cell phone to videotape two children in his household engaging in sexual behavior with him, in violation of 18 U.S.C. § 2251(a).
42. Shortly following his arrest, competency proceedings were initiated due to Markelle’s obvious intellectual disability. Although a criminal complaint was filed in federal district court, the government never proceeded to seek an indictment in the case.
43. Markelle was sent to a Federal Bureau of Prisons facility in New York for the competency evaluation. The BOP psychologist concluded he was incompetent to stand trial, which neither the defense nor prosecution disputed. In accordance with the federal statute, after being returned to the District, Markelle was next sent to a BOP facility in Butner, North Carolina, for an opinion on whether he could be “restored” to competence.
44. This series of transitions from the District to New York, back to the District, and then on to North Carolina was extremely hard for Markelle, who faces challenges to functioning successfully in a correctional environment under the best of circumstances. As described more fully herein, he spent virtually the entire period of the two BOP competency evaluations in solitary confinement.
45. Markelle was also physically harmed while in the District’s custody during the interval between those evaluations. During a search of his cell at the D.C. Jail, Markelle protested and became upset when correctional officers touched his belongings. The officers responded with physical force and fractured his skull, which required sutures. Following
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intervention from counsel, Markelle was moved to the Correctional Treatment Center. There he was provided special housing on a medical unit with older and physically unwell prisoners in an effort to keep him safe. His case manager, Charlene Reid, testified at Markelle’s competency hearing that he behaved in a childlike way. She explained that the warden made an exception to the rules in order for Markelle to be allowed to have crayons to draw in a coloring book. May 16, 2016 Transcript of Competency Hearing – Day 1 at 29-34, United States v. Seth, No. 14-mj608 (BAH/GMH) (D.D.C. June 7, 2016), Dkt. 67.
46. After a four-month incarceration at FMC Butner during which the BOP undertook to restore Markelle to competence, he was returned to the District. Following a contested evidentiary hearing, Magistrate Judge G. Michael Harvey decided that Markelle “lacks the capacity to understand, think through, and answer even the most basic questions about the legal process and the case against him.” Magistrate’s Report, supra para. 39, at 37. The Court concluded that due to “an incurable deficiency in oral comprehension and mental processing,” Markelle is “incapable of being restored to competency for the foreseeable future.” Id. at 39-40.
47. The court found Markelle “has consistently demonstrated that he has the auditory comprehension of a first grade student” and that “having [him] stand trial would be akin to putting a seven-year-old in the courtroom and expecting them to understand the language, ideas, and theories likely to be discussed.” Id. at 39. During the hearing, Markelle was engrossed in coloring books, sticker books, word searches, and dot-to-dot activities. The Court noted that Markelle at times would “cover[] his ears as if to prevent himself from hearing testimony that he did not like, [behavior] that suggests he lacks a rational understanding of how to contribute to his defense and conduct himself in a courtroom.” Id. at 26, 38.
48. After a two-day evidentiary hearing, during which both sides presented evidence 19

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and experts, Magistrate Judge Harvey issued a Report and Recommendation on December 1, 2016, finding Markelle incompetent to stand trial and not restorable to competency in the foreseeable future.
49. On December 22, 2016, Chief Judge Beryl Howell issued an order adopting Magistrate Judge Harvey’s Report and Recommendation. Chief Judge Howell also remanded Markelle into the Attorney General of the United States’ custody pursuant to 18 U.S.C. § 4246, the federal civil commitment statute, for purposes of psychological examination to determine if Markelle’s release would create a risk of substantial bodily injury or harm to another person. Markelle was transferred back to FMC Butner. Dec. 22, 2016 Order, supra note 7.
50. While federal law mandated that this Court order a dangerousness study following the finding that Markelle was not restorable, the ball was now in the District government’s court: if, as planned and expected, DDS had advised the warden of FMC Butner that the District was prepared to provide a suitable placement for Markelle and take responsibility for his care and custody, no certificate of dangerousness would or could have been issued and Markelle would have been returned to the District of Columbia. D.C. Code § 4246(a).
51. Instead of advising the BOP that it was prepared to civilly commit Markelle and had a provider (Wholistic Services) lined up to serve Markelle in a highly structured and closely supervised community program developed in accordance with the recommendation of its own retained expert (Matthew Mason Ph.D.), and enforced by a DC Superior Court civil commitment order under CIDA, DDS sat on its hands. The agency said nothing, knowing the consequence of such silence would be issuance by the Warden of FMC Butner of a certificate of dangerousness based on there being no available state placement and a finding of dangerousness by BOP’s expert, Dr. Kristina Lloyd, that was similarly both expected and inevitable. DDS had long
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known the likelihood of both of these eventualities if they did not intervene to bring Markelle back to his home jurisdiction. It was specifically in order to avoid this outcome that DDS had agreed to move for commitment as soon as possible following a Jackson finding. (Nuss Decl. ¶¶ 6,18; M.Back E-mail 1, supra para. 10.)
52. Markelle remained at FMC Butner until, at his 18 U.S.C. § 4246 civil commitment hearing, he was found to be dangerous if released unsupervised. Prior to the § 4246 hearing, Markelle’s counsel filed a motion to stay the proceedings pending resolution of the complaint filed in this lawsuit, as one of the elements required for federal civil commitment under § 4246—namely, whether suitable arrangements for State custody for Markelle are available in the District—was being actively litigated in this lawsuit. Judge Britt denied the motion to stay, finding that the availability of state placement options was not at issue in the § 4246 hearing. Order, United States v. Seth, Case No. 5:17-HC-02090-BR (E.D.N.C. May 17, 2018), Dkt. 30. At the May 24, 2018 federal civil commitment hearing, no evidence was presented regarding the availability of suitable state placement options, as Judge Britt had previously ruled that the government did not need to prove this element, nor was it at issue in this proceeding. Declining to make a broad ruling as to the availability of state placement, Judge Britt acknowledged the District’s inaction and found that, “Upon the request of the Attorney General, the Court finds that the state placement is not available. This court finds, as I am only able to find, that the Attorney General has sent a letter to the District of Columbia requesting state placement and that letter has not been responded to.” May 24, 2018 Competency Hearing at 46, United States v. Seth, Case No. 5:17-HC-02090-BR (E.D.N.C. June 7, 2018), Dkt. 34 [hereinafter 2018 Competency Hearing]. Markelle remains committed indefinitely to BOP custody.
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D. DDS Initially Agreed, Pursuant to its State and Federal Legal Obligations, to Place Markelle in a Community-Based Program and Took Significant Steps in Furtherance of That Commitment.
53. In early 2015, prior to his “restoration” evaluation at Butner, Markelle’s defense lawyers—anticipating that he would eventually be found incompetent and unrestorable and would then require civil commitment due to dangerousness if released unconditionally—applied to DDS to determine Markelle’s eligibility. Counsel provided documentation concerning Markelle’s disability, history of neglect, his multiple psychological evaluations, and his criminal charges, among other information. Counsel also explained in detail how the federal civil commitment process worked and how the District could, by doing its planning up front, minimize the time Markelle spent in an inappropriate and harmful prison setting. DDS’s thenDirector, Laura Nuss, acknowledged Markelle’s eligibility for services and the agency’s duty to provide them to him through the civil commitment process and in accordance with state and federal law. From the beginning of the agency’s correspondence regarding Markelle, the agency was aware of the potential for a dangerousness finding and the public safety risks that could exist should Markelle be released to the community unsupervised. (E-mail from Laura Nuss, Director, DDS, to Lisa Greenman (Mar. 12, 2015, 17:11 EST) (attached hereto as Exhibit 6); see Nuss Decl. ¶ 6.)
54. On March 12, 2015, Director Nuss confirmed that a favorable eligibility determination was forthcoming and that DDS would proceed with civil commitment. Id. She wrote, “I encourage you to continue working with DDS and DDS/DDA9 staff identified in the
9 DDS is composed of two administrations that are tasked with overseeing and coordinating services for residents with disabilities through a network of private and non-profit providers: 22

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emails below to develop a person-centered approach to supporting MS [Markelle Seth] in the context of the court proceedings and the formal commitment process. I am copying our General Counsel to ensure that we move forward together on MS’s behalf.” Id. Counsel for Markelle had expressly raised a concern that the sensitive nature of the criminal charges against Markelle and the appropriate consideration of public safety, and Director Nuss confirmed awareness of this: “We regularly work on forensic cases with the USAO and understand the process well.” Id.
55. In further correspondence with DDS on March 12, 2015, counsel for Markelle again focused DDS attention on the public safety issues that were raised in Markelle’s case: “We would like, ideally, to reach out to the USAO together with DDA and give them an understanding of what commitment would look like for MS — in particular, given their legitimate public safety interests, the degree of supervision and support that could be counted on. . . . I know that DDA generally prefers to avoid commitment, but in this situation I believe it’s the only way to satisfy public safety concerns . . . .” (E-mail from Lisa Greenman to Laura Nuss, Director, DDS (Mar. 12, 2015, 18:38 EST) (attached hereto as Exhibit 7).)
56. On March 13, 2015, DDS’s General Counsel, Mark Back, responded and acknowledged that DDS planned to move for civil commitment of Markelle in order to remove him from federal prison, writing in an email, “we will need to work together to get a suitable Jackson finding in order to move forward with commitment in the Habilitation Court.” (E-mail from Mark D. Back, Gen. Counsel, DDS to Lisa Greenman (Mar. 13, 2015, 10:01 EST) [hereinafter M.Back E-mail 2] (attached hereto as Exhibit 8).)
57. On March 20, 2015, DDS sent a letter formally documenting that Markelle was
Developmental Disabilities Administration (“DDA”) and Rehabilitation Services Administration (“RSA”).
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eligible for its services based on his intellectual disability. 58. In April 2015, DDS sent a letter to Markelle stating that as soon as his
competence status was resolved, DDS would initiate civil commitment proceedings in the District. In its April 17, 2015 letter, Musu Fofana, a Program Manager with DDS, acknowledged that:
a. Markelle is an individual with intellectual disability who is eligible to receive DDS services;
b. Markelle was determined to be incompetent to stand trial for the abovementioned crimes; and
c. “once [DDS has] a Jackson finding from the federal court, DDS/DDA will work with your attorneys and the federal authorities in filing for civil commitment in the Mental Health and Habilitation Branch of the D.C. Superior Court’s Family Division.” Letter from Musu M. Fofana, Program Manager, DDS, to Markelle Seth (Apr. 17, 2015) (emphasis added) (attached hereto as Exhibit 9).
59. Given the prior correspondence and the applicable legal standards that require dangerousness as a prerequisite to commitment and that make commitment available only for a subset of the most dangerous crimes, when DDS agreed to seek civil commitment of Markelle here in the District, it was well aware of and prepared to account for the risks Markelle would present if placed into the community unsupervised. (Nuss Decl. ¶¶ 18, 20, 21.)
60. On April 23, 2015, two DDS case managers met with Markelle at the District’s Correctional Treatment Facility to work on the person-centered plan that is part of DDS’s process of developing an Individual Support Plan (“ISP”). DDS policy requires that an ISP: “1.
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[s]upports the person to achieve individually defined outcomes and goals in the most integrated community setting appropriate to his or her needs; 2. [s]upports the person to exercise positive control over their life; 3. [e]nsures delivery of services in a manner reflecting personal preferences and choices and respecting what is important to and for the person; and 4. [s]upports the person’s health and well-being.”10
61. On July 13, 2015, DDS’s then-Director Nuss and other DDS staff, including thenDeputy Director Holly Morrison and the agency’s General Counsel, Mark Back, met to discuss Markelle’s case. At that meeting, Director Nuss explained to Markelle’s criminal defense counsel that DDS is accustomed to managing a wide range of behavioral challenges with its clients and it was prepared and equipped to address any issues presented by Markelle, including public safety issues, pursuant to its obligations under state and federal law.
62. Following that meeting, on August 6, 2015, DDS Deputy Director Morrison notified Markelle’s counsel by email that DDS had identified a service provider, Benchmark Human Services (“Benchmark”), to serve Markelle and that DDS would be conducting a formal assessment to determine the parameters of a plan for Markelle. (E-mail from Holly Morrison, Deputy Director, DDA, to Lisa Greenman & Mark D. Back (DDS) (Aug. 6, 2015, 18:03 EST) (attached hereto as Exhibit 10).) DDS explained that Benchmark had a history of working successfully with complex and challenging DDS clients and had a proven track record of successfully serving in the community individuals with intellectual and other developmental
10 DDS/DDA, 2017-DDA-POL001, Policy: Person Centered Planning Process and Individual Support Plans 3 (2017), https://dds.dc.gov/sites/default/files/dc/sites/dds/ publication/attachments/2017-DDA-POL001%20Person%20Centered%20Planning%20 Process%20and%20Individual%20Support%20Plans%20Policy.pdf. 25

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disabilities whose behavior had brought them into contact with the criminal justice system, including individuals who presented dangerous sexual behaviors.
63. On August 12, 2015, DDS Deputy Director Morrison emailed Benchmark’s President for Residential Services and asked him to arrange an assessment of Markelle. (E-mail from Holly Morrison, Deputy Director, DDA, to Lisa Greenman & Doug Beebe (Aug. 12, 2015, 20:12 EST) (attached hereto as Exhibit 11).)
64. From August 2015 through early 2017, first with Benchmark and later with Wholistic Services, which replaced Benchmark as the provider agency, DDS worked on developing a plan for Markelle’s transition from the criminal justice system into the District’s civil commitment system, which was expected to take place as soon as the issue of competency was resolved.
65. DDS, through Benchmark, its contractor, retained an expert, Dr. Matthew Mason, a licensed Psychologist and Board-Certified Behavior Analyst and an expert in developmental disabilities, to evaluate Markelle and decide on the components of a service plan that “will both meet his needs and also account for concerns regarding the safety of others that are raised by the allegations [in the criminal case].” Benchmark Human Services, Draft Description of Services for Mr. Markelle Seth 1 (2016) (emphasis added) [hereinafter Benchmark Service Plan] (attached hereto as Exhibit 12). Dr. Mason has extensive experience working with individuals with intellectual disability who present sexual behavior problems.
66. Dr. Mason’s 2016 report explicitly addressed the potential risks of Markelle’s receipt of community-based services. After interviewing Markelle and reviewing his history, Dr. Mason concluded that Markelle would be “responsive to and appropriate for placement in a highly structured and supervised [minimum of one-to-one, round-the-clock supervision]
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community-based residential program,” and determined specifically “that a more restrictive setting would not be necessary.” Id. It was DDS’s expert’s professional opinion, based on years of experience addressing similar concerns with respect to individuals with intellectual and developmental disabilities, that Markelle’s behavioral issues, whether sexual or otherwise, could be readily and safely managed in a community setting. Dr. Mason noted that “Benchmark has safely and successfully served individuals similar to and more behaviorally challenging than Mr. Seth in community settings with appropriate structure, staffing and programming.” Id.
67. Dr. Mason’s plan outlined various safety mechanisms that he recommended to be employed in a community residence for Markelle, but concluded that the most important feature of a plan would be that it have a high degree of engagement for Markelle:
From Benchmark’s experience working with individuals with profiles similar to Mr. Seth, it is clear that while the above safety precautions are necessary and appropriate, the most essential keys to a successful and safe experience for Mr. Seth will be engagement in activities that are meaningful to him, ensuring staff assigned to supervise him are welltrained and supported, providing high levels of supervision, as well as continuous oversight and evaluation of program services. Building with Mr. Seth’s active involvement a home and a way of life that he is invested in will be the surest way to achieve success and meet the needs of both Mr. Seth and his community. Id. at 4. 68. Dr. Mason’s proposal also recommended that Markelle be provided with other services available in the community, including, in particular, sexuality education tailored to the needs of a person with his disability that is available through the DDA Health Initiative. The leadership of that program met with Markelle and indicated their ability and willingness to provide him services. (Brown Decl. ¶¶ 26, 29.) 69. Planning meetings to discuss services for Markelle and Dr. Mason’s
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recommendations were held in late 2015 and early 2016 at DDS’s offices and included several DDS staff members, Dr. Mason, and Markelle’s criminal defense counsel. Marisa Brown, director of the DDA Health Initiative at Georgetown University’s Center for Child and Human Development participated as well. When Markelle’s competency hearing in federal court was postponed from January to May 2016, DDS determined that remaining planning for services should also be postponed, to be resumed once there was a Jackson finding.
70. The determination that Markelle was unrestorable to competence was made on December 22, 2016, when Judge Howell adopted Judge Harvey’s findings and held that Markelle could not restored to competence in the foreseeable future. Dec. 22, 2016 Order, supra note 7. At this point, although it was understood that Markelle would, by operation of statute, be sent to Butner for a dangerousness evaluation, Defendant DDS was expected to proceed with filing for civil commitment and finalizing a habilitation plan for Markelle. However, in the interim period, Defendant Reese had replaced Laura Nuss as Director of DDS. Instead of proceeding with a petition for civil commitment pursuant to its legal obligations, Defendant Reese requested that a new risk assessment of Markelle be prepared.
71. Defendant Reese retained Dr. Mason to prepare a new risk assessment of Markelle. On February 24, 2017, Dr. Mason issued a comprehensive report, finding that Markelle “can be safely and successfully supported in the community” in a “highly structured, closely supervised community based program” that would “provide for community safety while ensuring that Markelle has every opportunity to succeed and to avoid re-offending.” Matthew Mason, Risk Assessment Report for Markelle Seth 15 (Feb. 24, 2017) (attached hereto as Exhibit 13). DDS provided a copy of this report to Markelle’s criminal defense counsel.
72. Dr. Mason’s 2017 report also addressed safety concerns, including Markelle’s 28

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behavior while he has been held in custody in correctional facilities. Dr. Mason found that “although numerous and frequent, Mr. Seth’s problematic behaviors appeared relatively low in intensity and brief in duration.” Id. at 6. He noted that prison staff described Markelle’s behavioral outbursts as “immature and impulsive” and that Markelle responded well and generally quickly to “de-escalation strategies during these outbursts” and demonstrated remorse after he calmed down. Id. Dr. Mason noted that Markelle frequently reached out to others to assist with problem-solving and calming, which demonstrated his “interest in establishing supportive alliances.” Id.
73. Dr. Mason reported that correctional facility staff described Markelle as “collaborative and outgoing” but also required a high degree of monitoring given his difficulty understanding and adhering to rules. Id. at 7. The correctional facility staff agreed that Markelle had difficulty following rules “not because he was a hardened criminal or oppositional in nature, but rather because he was immature, impulsive and had a strong desire for immediate gratification.” Id. at 11. Staff described Markelle as “a likeable person with a sense of humor and playfulness.” Id.
74. Dr. Mason further reported that Markelle was not preoccupied with children or “deviant” sexuality. Id. at 12. Prison staff noted that “although he was vulnerable to being taken advantage of by other inmates, he was not likely to try to take advantage of others, to attempt to develop relationships for the purposes of gaining sexual favor, or to otherwise act in a sexually predatory manner.” Id.
75. Dr. Mason analyzed the results from the administration of a number of risk assessment instruments, including instruments designed to assess the risk of sexual violence. Dr. Mason found that Markelle’s cognitive, behavioral and emotional characteristics were not
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unusual, but instead are common in individuals with intellectual disability. Dr. Mason concluded that Markelle’s prior and current behavior, including his sexual misconduct, was not based on an “underlying psychopathic condition.” Id. at 14. Rather, such behaviors were “a function of inappropriate supervision” after having been placed in a position of caring for children, and “more opportunistic than predatory in nature, and influenced by his limitations in cognition and self-management.” Id. Dr. Mason found that Markelle’s sexual abuse charges stemmed, in part, “from a lack of supervision by responsive adults and from having been affirmatively placed in a position of caring for children.” Id. at 15.
76. Dr. Mason recognized that Markelle would “need significant mentoring and supervision to function effectively in the community, especially with regards to following accepted norms of social behavior and engaging in safe sexual practices.” Id. at 14. He found that Markelle did not appear to be “a flight risk . . . and his desire for social engagement, approval and need for supportive relationships are important compensatory strengths.” Id.
77. Dr. Mason recommended the following criteria for a community-based placement for Markelle:
a. Markelle should be placed in a highly structured community-based residential program with “at least 1:1 staffing on a 24-hour basis” and with full and consistent daily schedule of employment and other meaningful activities. Staff assigned to Markelle should be thoroughly trained on his strengths and weaknesses, on the nature of his offenses, and on “non-negotiable safety practices.” Markelle should “not live or work in areas with unsupervised access to children” and his behavior in the community must be monitored to prevent any unsupervised contact with minors. 30

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b. Markelle should reside in a lower density neighborhood that promotes effective monitoring of exits.
c. DDS should develop comprehensive plans for Markelle that include behavioral management, crisis management, supportive psychiatric care, intensive counseling, psychosexual assessment and related sexual education, and self-management plans for Markelle.
d. Staff working with Markelle should be trained on the importance of using positive programming strategies to help address Markelle’s social deficits and challenges in problem-solving that stem from his intellectual disability.
78. Dr. Mason stated that community supports for Markelle were appropriate and likely to be effective:
Mr. Seth has demonstrated the capacity for establishing appropriate emotional ties, empathy and a desire to please others; these traits are indicators that he will be able to develop lasting, useful relationships with community-based staff and other supportive adults in his life. . . . . Based upon my extensive experience with many individuals with a variety of sexual behavioral problems, it is my opinion that Mr. Seth will respond well to supervision and supports. Mr. Seth’s sociability, eagerness to please and willingness to create alliances with responsible adults are highly indicative that he will succeed if provided with appropriately designed supportive living and work environments that incorporate effective supervision. Id. at 15.
79. Dr. Mason’s recommendations, prepared at the request of Defendant DDS, were endorsed by a subsequent evaluation prepared by a second expert, Dr. Stephen Hart, who was retained by Markelle’s lawyers. Dr. Hart is an internationally-renowned forensic psychologist
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and researcher specializing in risk assessment, whose achievements include the development of some of the risk assessment tools used by BOP and other experts who evaluated Markelle.
80. In his June 18, 2017 report, which was provided to DDS, Dr. Hart reviewed both Dr. Lloyd’s dangerousness study and Dr. Mason’s report and recommendations. Report from Stephen D. Hart, Threat Assessment Specialist, Protect Int’l Risk and Safety Servs. Inc, to Lisa Greenman, re: U.S. v. Markelle Seth (June 18, 2017) (attached hereto as Exhibit 14). Dr. Hart rejected Dr. Lloyd’s formulation and strongly endorsed the risk management plans proposed by Dr. Mason, noting Dr. Mason’s expertise in intellectual disability and praising the individually tailored and workable nature of Dr. Mason’s recommendations. He found that, consistent with best practices:
the plans were based on a comprehensive assessment of risk factors; an individualized, integrative case formulation; identification of plausible scenarios; and attention to strategic, tactical, and logistical considerations. The plans also reflect a deep understanding of intellectual disability in general and the needs of Mr. Seth more specifically. Second, the management plans are remarkable or noteworthy for being feasible (i.e. available, accessible, and affordable), attentive to Mr. Seth’s unique risk, need, and responsivity factors (i.e., appropriate), and consented to by Mr. Seth (i.e., acceptable). Id. at 9-10.
81. Dr. Hart also discussed Markelle’s history of behavior problems while held in various correctional facilities, noting that they were minor, connected to Markelle’s intellectual disability, and a result of an inappropriate environment and a lack of trained staff. According to Dr. Hart, Markelle’s institutional history involved:
[I]ncidents that were primarily reactive in nature and minor in seriousness. Examples include minor rule violations (e.g., wearing the wrong clothes, not sharing a communal television with others) and problems dealing with interpersonal stress or conflict (e.g., rude or disruptive behavior when
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Id. at 10.

interacting with staff or fellow residents). Such incidents are expected when dealing with people with intellectual disability, especially when they are placed in closed living environments that lack the programs and trained staff to deal with their special needs (e.g., through contingency management, verbal de-escalation, and so forth).

82. Dr. Hart agreed with Dr. Mason’s conclusion that Markelle’s sexual misconduct was not consistent with an underlying psychopathic condition. Rather, Dr. Hart concluded that Markelle’s actions were more likely attributable to “restricted opportunity for sexual contact with age appropriate peers, along with deficiencies in judgment and impulse control” and which were “exacerbated by a lack of appropriate intervention and supervision.” Id. at 6-7.
83. Overall, both Dr. Mason’s and Dr. Hart’s recommendations were consistent with well-established, evidence-based practices regarding the elements required to provide appropriate services and treatment for individuals like Markelle in the community in a manner that allows for individual growth and community safety. (Thaler Decl. ¶¶ 28, 34.)
84. While BOP’s expert, Dr. Lloyd, found, in contrast, that Markelle posed a public safety risk and could not return to the District, her determination ignored the comprehensive support plan and recommendations developed by DDS’s expert regarding how Markelle could be safely served in the community upon return to D.C. and how D.C. has the appropriate capacity and experience to provide such services. Her evaluation was based on the assumption that Markelle would be returned to the community at large without supervision. The level of supervision recommended by Dr. Mason and Dr. Hart—and incorporated into Wholistic’s proposed service plan—has proven successful
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for hundreds of similar individuals in other states, but was not addressed in Dr. Lloyd’s assessment. (Thaler Decl. ¶ 35.)
E. Per its Obligations under State and Federal Law to Serve Markelle in the Most Integrated Setting Appropriate, DDS Identified a Community-Based Provider Ready to Accept Markelle and Suitable for His and the Community’s Needs.
85. While Markelle’s competency proceedings were pending, Benchmark ceased operations in the District of Columbia. Wholistic Services, Inc. (“Wholistic”)—a DDS-certified, D.C.-based provider of supportive services to individuals with intellectual and developmental disabilities, including supported living, behavioral supports, and supported employment—was therefore asked to assess Markelle for placement in its program. Wholistic conducted a comprehensive assessment of Markelle, and expressed its willingness and ability to provide an appropriate program to Markelle. In February 2017, Miatta Thomas, Chief Administrative Officer of Wholistic, informed DDS that Wholistic could provide services to Markelle to successfully support him and eventually help transition him into the community.
86. In August 2017, after DDS canceled planned group meetings to discuss Markelle’s program, Wholistic provided DDS with a detailed Proposal for Transition, Safety and Support Services for Markelle (“Wholistic Proposal”), (attached hereto as Exhibit 15). Wholistic characterized its Proposal as a “draft” but also indicated that it was ready to be put it into final form, subject to review by DDS. In its Proposal, Wholistic stated that:
a. “Wholistic has safely and successfully served people similar to and more behaviorally challenging than Markelle in community settings with appropriate structure, staffing and programming.” Wholistic Proposal at 7.
b. Wholistic has “a proven track record of successfully serving people with 34

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intellectual and other developmental disabilities who have been involved in the criminal justice system, in particular people who have a history of dangerous sexual behaviors.” Id. at 6. c. Wholistic had taken into consideration the seriousness of the charges brought against Markelle and the risk that insufficient supervision could present. Id. at 87. Wholistic expressed confidence that it could account for this public safety risk, noting that Markelle would be subject to “a high level of supervision 24/7” in order to protect both Markelle and members of the community. Id. at 9. 88. Wholistic’s Proposal addresses each of the recommendations and criteria identified by DDS’s expert, Dr. Mason, for a successful supervised community-based placement for Markelle. Specifically, Wholistic proposed: a. Training its staff related to Markelle’s specific safety and crisis management needs, including training in essential strategies for supporting individuals with intellectual disability, in order to address Markelle’s needs, as well as strategies to manage the risks that someone with Markelle’s history and disabilities could pose to the community. See id. at 5-6, 8-9. b. Placing Markelle in highly structured residential setting with at least 1:1 staffing on a 24-hour basis. Wholistic recognizes that increased staffing levels, such as a 2:1 supervision, may be necessary for up to the first year, and is ready to provide that level of supervision, if necessary. Wholistic notes that a residential placement with no more than one other housemate would be best for Markelle, given his history of multiple placements (foster care, homelessness) and his difficulties in institutional settings interacting with
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others. See id. at 7-8. c. Providing vocational services to Markelle, including a thorough evaluation of
his skills and interests, and assistance with resume building, interview skills, and completing job applications. Wholistic indicates that if Markelle gains employment, staff would continue 1:1 supervision of him, and would coach Markelle and his employer and co-workers to ensure the safety of Markelle and others. See id. d. Training staff to use a mentoring model to supervise Markelle, including demonstrating desired behaviors, using non-directive coaching strategies, and other methods, all within a framework of non-negotiable safety rules and limits. Wholistic states that Markelle would be fully informed of the supervision and safety requirements of his placement, and the consequences to him for violating those rules, including the potential for loss of community placement and liberty, and potentially incarceration. See id. at 8. e. Developing a behavioral health and other professional services plan for Markelle. Wholistic identified a specific university-based program in Washington, D.C., with extensive expertise in the assessment and training related to sexual behavior, a psychiatrist to perform a psychiatric consultation for Markelle, and a psychologist to address Markelle’s individual therapeutic needs and issues, including his history of abuse, the development of appropriate relationships, improving his self-management skills, and building his self-esteem. Wholistic also proposes retaining a registered nurse to monitor Markelle’s medical care needs on a weekly basis. See id. at 9.
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89. The plan proposed by Wholistic offers the necessary components of a successful service plan for Markelle, as agreed upon by experts in the field. It includes adequate supervision and training and assures community safety, while addressing potential crisis events such as elopements or behavioral incidents and providing Markelle with opportunities to grow, learn, and engage in meaningful activities. (Brown Decl. ¶¶ 34-35; Thaler Dec. ¶¶ 30, 31; Denney Decl. ¶¶ 8, 10, 25.) As of the date of this filing, Wholistic remains willing and able to provide the recommended supervisory services to Markelle.
F. DDS Reneged on Its Commitment and Obligation to Provide Markelle with Community-Based Supports and Services Pursuant to D.C.’s Civil Commitment Statute.
90. On April 22, 2016, Ms. Nuss departed DDS and Defendant Reese took over leadership of the agency as its Director.
91. Upon information and belief, DDS has decided not to provide community-based services and supports to Markelle via the civil commitment mechanism pursuant to its obligations under D.C. Code § 7-1301.01 et seq. This inaction constitutes not just an unfortunate reversal of circumstances for Markelle, but a violation of state and federal law.
92. As a result of DDS’s violation of the law, on April 14, 2017, FMC Butner’s warden filed a certificate of mental disease in Markelle’s federal civil commitment case in the Eastern District of North Carolina, noting that “suitable arrangements for State custody are not available.” Judge Britt held the following:
Upon the request of the Attorney General, the Court finds that the state placement is not available. This court finds, as I am only able to find, that the Attorney General has sent a letter to the District of Columbia requesting state placement and that letter has not been responded to.
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2018 Competency Hearing, supra para. 52, at 46. As Judge Britt had previously held that the availability of state placement options was not at issue in the absence of a District response, the Wholistic proposal and the availability or appropriateness of DDS services for Markelle was not considered or decided.
G. Markelle Struggles Within a Correctional Setting and Is Frequently Subjected to Solitary Confinement Due to His Intellectual Disability.
93. Markelle has been held at FMC Butner on two separate occasions. He was transferred to FMC Butner for the first time in April 2015 and spent four months there while the BOP endeavored to render him competent for trial, following which he was returned to the District of Columbia in September 2015. In January 2017, after this Court concluded that Markelle is neither competent to stand trial nor restorable to competency in the foreseeable future, Markelle was returned to FMC Butner, where he remains today.
94. Markelle, and other individuals like him who are awaiting civil commitment proceedings or who have already been civilly committed, are held at FMC Butner alongside incarcerated inmates who have been convicted and are serving their prison sentences in the facility, as well as inmates who are held in pretrial detention.
95. Because FMC Butner is a correctional institution, its inmates are expected to follow numerous rigid rules that govern every aspect of their daily lives. When inmates fail to follow institution rules, they are subjected to disciplinary measures that can include loss of privileges and/or disciplinary or administrative segregation in separate segregation areas.
96. Administrative and disciplinary segregation are essentially forms of solitary confinement. While in segregation, inmates are confined to their cells, except for short periods of time when they are allowed to leave their cells for recreation. Their interactions with other
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inmates and staff are limited. 97. As a result of his intellectual disability, and in particular, his poor executive
functioning skills, Markelle has struggled to comply with FMC Butner’s rules, which do not contemplate the needs of individuals with intellectual and developmental disabilities. (Brown Decl. ¶¶ 39-40; Denney Decl. ¶ 18.) He has been disciplined for not following orders from correctional officers and staff, for talking back or being disrespectful to correctional officers and staff, and for singing loudly while listening to music using headphones. Markelle has also been disciplined for carrying a pop-tart back to his cell from the dining hall, failing to tuck in his clothes, wearing the wrong uniform shirt, refusing to buckle his belt, wearing earbuds in the prison hallways, and other similar behavior. Markelle has also gotten into several conflicts with other inmates at FMC Butner as a result of, for example, disputes over which television shows to watch when he has wanted to watch cartoons.
98. When Markelle has violated FMC Butner’s rules, he has experienced a range of disciplinary consequences, including losing his phone privileges for months at a time, confiscation of his MP3 player and radio, and suspension of his commissary privileges.
99. Of utmost concern, Markelle has been placed in segregation on numerous occasions, even for apparently minor infractions, such as speaking disrespectfully to an officer. When confined in this manner, Markelle is locked alone in a cell for a minimum of 22 to 23 hours a day. When the institution is short-staffed he is not afforded the opportunity to leave the cell where he is confined at all. Each weekend he remains locked down for the full 48 hours. Markelle was in segregation for virtually the entirety of the four-month period of his restoration evaluation. See Magistrate’s Report, supra, at 13. He has been in segregation for almost the entire period since he was returned to Butner in January 2017.
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100. For an individual with an intellectual disability, such as Markelle, solitary confinement is recognized as being a particularly toxic setting that not only fails to provide equal access to programs, services and activities, but can cause additional long-lasting harm to his mental health and on his ability to perform daily living skills.11 (Brown Decl. ¶¶ 37-38; Denney Decl. ¶¶ 22-24.)
101. FMC Butner does not have programs to meet Markelle’s needs as an individual with intellectual disability and does not provide specific habilitation programming geared toward people with intellectual disability. (Brown Decl. ¶ 40; Denney Decl. ¶¶ 9, 22]. As DDS’s own expert, Dr. Mason, made clear, Markelle has had difficulty following institutional rules and interacting properly with staff and other inmates because of challenges related to his intellectual disability.
102. It is well-established that the problematic behavior of individuals with I/DD often worsens within the rigid confines of prison life. People with I/DD may have considerable difficulty understanding the purpose behind rules and the consequences for violating rules and be frightened by the lack of supportive behavior from prison personnel. Those who cannot effectively communicate their dissatisfaction verbally may act out how they are feeling in ways that do not conform with the rules. For those who have experienced trauma, such as Markelle, this environment can be particularly destructive. (Thaler Decl. ¶ 23.)
103. Markelle is a young man who began life at three months of age removed from his
11 In a landmark decision, the court in Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995) concluded that for vulnerable prisoners, including those with intellectual disability, preexisting mental illness and brain damage, “placing them in the SHU [Solitary Housing Unit] is the mental equivalent of putting an asthmatic in a place with little air to breathe.” Id. at 1265. 40

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family and placed in foster care. He has experienced abuse and abandonment, the absence of positive role models or adult guidance. His intellectual disability limits his ability to understand the world around him without professional guidance and supervision. Life in a correctional facility has likely compounded his trauma, and exacerbated his existing anxiety and related mental illness stemming from abuse, head trauma and neglect.12 (Thaler Decl. ¶ 32.) If Markelle continues to be incarcerated, he will likely have continuing behavior problems resulting in increased levels of frustration or anger and a growing record of infractions, making it less likely that prison staff will ever agree to his release. The longer Markelle remains in prison, the more harm he will experience and the more behavior problems he is likely to develop. (Thaler Decl. ¶ 34.)
104. Within this highly restrictive setting, Markelle is unable to maintain consistent communications with his legal team, as his legal calls are not permitted with regularity and are routinely monitored by BOP staff. Legal calls at FMC Butner occurred in Markelle’s counselor’s office. Markelle’s counselor listens to his legal calls and intercedes to reprimand Markelle for discussing issues with his attorneys that she feels are “non-legal” including discussions regarding his pending disciplinary hearings and his resulting confinement in the Solitary Housing Unit.
105. Dr. Mason recommended positive, non-directive programming strategies for Markelle. Specifically, he noted:
12 Markelle’s counsel sought permission from FMC Butner for a psychologist to evaluate the harm to Markelle from solitary confinement. But FMC Butner has refused access. (Mot. Requesting An Order to BOP Directing Expert Access to Fed. Med. Ctr. Butner to Interview Pl., Sept. 4, 2018, Dkt. 24.) 41

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[T]he most essential keys to a successful and safe experience for Mr. Seth will be engagement in activities that are meaningful to him, ensuring staff assigned to supervise him are well-trained and supported, providing high levels of supervision, as well as continuous oversight and evaluation of program services. Building with Mr. Seth’s active involvement a home and a way of life that he is invested in will be the surest way to achieve success and meet the needs of both Mr. Seth and his community. Benchmark Service Plan, supra para. 65, at 4. This type of skills acquisition and behavior support is not present at FMC Butner and is not possible to achieve in such a setting. 106. Community settings can be much more easily individualized and designed to avoid triggers that may cause an individual’s challenging behaviors. (Thaler Decl. ¶¶ 24-25.) In contrast, in the rigid prison environment, Markelle only has the opportunity to fail. (Brown Decl.¶ 40.) This continued segregation is likely to have a negative long-term impact on Markelle’s mental health and lead to the deterioration of his daily living skills. (Brown Decl. ¶ 37-38.) The vicious cycle Markelle is currently experiencing at Butner of triggers and punishments followed by triggers and more punishment is precisely what justifies prioritizing people in Markelle’s situation for community placements rather than prisons. (Thaler Decl. ¶ 33; Denney Decl. ¶¶ 18-22.) 107. In addition to the conditions of his confinement within the institution, Markelle’s confinement at FMC Butner has placed him far away from his family and circle of support in the District of Columbia. Because Markelle’s family, and in particular his father, with whom he maintains a close relationship, is financially unable to travel from the District to North Carolina, they are unable to see and interact with Markelle and provide him with additional support that could help lead to his re-integration into the community. 108. In sum, FMC Butner cannot provide the community-based and personalized services through which Markelle may be rehabilitated and to which Markelle is legally entitled.
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(Denney Decl. ¶¶ 9, 22, 24.)
H. DDS Would be Able to Serve Markelle Without Undue Hardship . 109. As a result of the Evans v. Bowser, No. 1:76-cv-00293-ESH (D.D.C.) class action lawsuit filed in 1976 to remedy the constitutionally deficient level of care, treatment, education, and training provided to residents of Forest Haven—the District’s former institution for people with intellectual and developmental disabilities—the institution closed in 1991 and the D.C. government 13 was charged with developing a quality support services delivery system for District residents with intellectual and developmental disabilities. (Brown Decl. ¶¶ 10, 11d, 31.) Since 1991, the District has provided residents with intellectual and developmental disabilities services in small, community-based programs. DDS’s mission statement notes that it seeks to “provide innovative high quality services that enable people with disabilities to lead meaningful and productive lives as vital members of their families, schools, workplaces and communities in every neighborhood in the District of Columbia.” DDS Mission Statement, Dep’t on Disability Servs., https://dds.dc.gov/page/dds-mission-statement (last visited Oct. 25, 2018). DDS states that it is committed to person-centered service planning and delivery and community integration. 110. Defendant’s Developmental Disabilities Administration (DDA) is comprised of an integrated network of service divisions charged with a continual planning process that considers changes in service needs and provides ongoing support through their technical assistance to community-based service providers. DDA has well-established systems that are inter-related with their network of contracted, community-based, disability service providers to
13 The agency responsible for this work at the time was known as the Mental Retardation and Developmental Disabilities Administration. In 2006, this agency was replaced with DDS. 43

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ensure appropriate service planning that provides safeguards for the individual with a disability, the staff that support the individual, and the community into which the individual is integrated. (Brown Decl. ¶¶ 19, 23.)
111. DDA is designed to serve, and does serve, many individuals whose intensive needs would present risk to their own safety or the safety of the community if they were not appropriately supported and supervised. DDA is able to serve individuals whose challenges include physically aggressive behaviors, risk of absconding, and intensive medical and mental health needs. While most individuals served by DDA do not require round-the-clock or one-toone supervision, DDA can and does provide this level of service to a significant number of individuals. (Brown Decl. ¶ 24; Nuss Decl. ¶¶ 3, 5, 15, 19, 21.]
112. DDA’s service planning for individuals with complex needs is dynamic and ongoing. When problems arise, there are a range of mechanisms for responding, including crisis management, changing the service plan, or changing the service site to a setting that is more restrictive, whether temporarily or long-term. And, in those cases in which it becomes necessary, out of state residential programs and institutions that further limit an individual’s liberty and access to the community can be and are accessed by DDA. DDA has the ability to manage behavioral and other challenges through a continuum of care that ranges from less intensive to more intensive and from less restrictive to more restrictive. By design, there is no person with I/DD whose needs cannot be accommodated, because DDA has a virtually unlimited ability to select the environment and staffing level required by the individual’s needs. (Brown Decl. ¶ 24; Thaler Decl. ¶¶ 31, 36; Nuss Decl. ¶ 3.)
113. Upon information and belief, in coordination with DBH, DDS provides supervised community-based services to individuals with co-existing diagnoses of mental illness
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and intellectual disability who have faced similar criminal charges and whose behavioral challenges and corresponding risks are at least equivalent to those posed by Markelle’s intellectual disability and associated behavioral issues. The proposal from Wholistic Services, Inc. identifies two such individuals whom it successfully serves and who have been successfully served in the community for many years. One was found incompetent in connection with a charge of murder and the other was found incompetent on charges involving sexual contact with children. Both are diagnosed with a serious mental illness as well as intellectual disability. A mental illness diagnosis allows DBH to step in and coordinate services in conjunction with DDS, whereas DDS alone is charged with providing services to individuals with only an intellectual disability diagnosis. However, DDS refuses to provide such services to individuals, such as Markelle, who have only a diagnosis of intellectual disability. As noted above, DDS’s own expert has found that DDS can treat and serve Markelle, and DDS committed to doing so following the Jackson determination.
114. Upon information and belief, DDS has the capacity to plan and monitor individualized services for Markelle and has contracted with providers who are capable of executing DDS’s plans. It is impossible to guarantee outcomes, but the provider network in the District of Columbia, and DDS in particular, is well-prepared to address, and has a track record of serving, individuals who present risks similar to and greater than Markelle. (Brown Decl. ¶ 23; Thaler Decl. ¶¶ 3, 29, 36; Nuss Decl. ¶¶ 4, 18, 21.)
115. Upon information and belief, Defendant District of Columbia, through the Department of Behavioral Health, and pursuant to the Ervin Act, regularly provides communitybased services to D.C. residents with mental illness who have been found incompetent, but is refusing to serve Markelle through the Department on Disability Services, pursuant to CIDA.
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116. Upon information and belief, in just the last fiscal year, 40 Ervin Act petitions seeking civil commitment of incompetent defendants with mental illness were filed through the Department of Behavioral Health, and many of those individuals are currently being served in the community by the District. The contrast with filings for citizens with intellectual disabilities is stark. In the last seven years, only two petitions seeking commitment to DDS for individuals with intellectual disability under D.C. Code 7-1303.04(b-1), the CIDA provision for postJackson defendants, have been filed, and both of these were initiated under unusual circumstances.
117. Upon information and belief, in 2011, an experienced DDS staff member indicated that, notwithstanding the 2002 amendments, DDS did not intend to exercise any longer its authority to commit and serve incompetent individuals with intellectual disability. The legislative history of the 2002 amendments reflects an expectation that one to two individuals per year would be subject to a post-Jackson commitment to DDS, Kathy Patterson, Chairperson, Committee on the Judiciary, Bill 14-616, the “Civil Commitment of Citizens with Mental Retardation Amendment Act of 2002” 17-19, Council of the District of Columbia, (June 3, 2002), http://lims.dccouncil.us/Download/329/B14-0616-COMMITTEEREPORT.pdf [hereinafter D.C. Council Report]; however, DDS has only filed petitions for commitment of two individuals in the past seven years.
118. In effect, the District has returned to functioning as it did prior to the 2002 amendment (and its predecessor emergency legislation), when the Ervin Act was available for civil commitment of incompetent defendants with mental illness but there was no parallel provision under which incompetent defendants with intellectual disability (but without a serious mental illness diagnosis) could be committed and served. The statute that was passed by the
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Council to accomplish this express goal—to serve people in exactly Markelle Seth’s position—is being ignored rather than implemented by DDS. The District thus deprives individuals with intellectual disability of access to needed services, while individuals with mental illness are petitioned for commitment and served by the Department of Behavioral Health.
119. The unusual circumstances of the two petitions for commitment by DDS filed since 2011 under D.C. Code 7-1303.04(b-1) reinforce the claim that DDS is no longer willing to move to commit and serve individuals with intellectual disabilities who have been found incompetent. One of those cases was filed after May 1, 2018 (the date Markelle’s Complaint was filed) and, upon information and belief, that petition was filed by the Office of the Attorney General, in the name of the D.C. Attorney General, over DDS’s objections. In the other case, filed in 2014, the respondent, who had severe disabilities, was already a DDS client at the time he was charged with the offense for which he was found incompetent. Thus, upon information and belief, with the exception of two unusual cases, between 2011 and the present DDS has not moved for civil commitment of any incompetent defendant.
120. Only Defendants know how many individuals with intellectual disability the District has failed to serve as a result of DDS’s refusal to implement CIDA. However, based on the estimate in 2002 that CIDA would result in one to two incompetent individuals with intellectual disability per year being civilly committed and served by DDS, DDS has failed to meet its obligations to between six and 13 people in the last seven years alone, in addition to Markelle.
121. Although Defendant District of Columbia has the legal authority and obligation, financial ability and appropriate programming to provide community-based services for incompetent defendants with intellectual disability, they have discriminated against Markelle by
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ignoring the authority and responsibility imposed by the D.C. Council in CIDA. 122. DDS’s failure to exercise its authority and responsibility under CIDA flies in the
face of D.C. Code § 7-1304.01, which, as its legislative history makes clear, was designed precisely for situations like Markelle’s. As such, there is no legitimate reason for DDS not to file a civil commitment petition in Markelle’s case as a means of complying with its obligations under state and federal law to serve and treat Markelle in the most integrated setting appropriate to his needs.
V. LEGAL FRAMEWORK A. By Failing to Provide Markelle with Services and Treatment in the Most
Integrated Setting Appropriate for Him, Defendants Have Violated Title II of the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973. 123. Congress enacted the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”), to provide a clear and comprehensive mandate for the elimination of discrimination against people with disabilities and to provide strong and consistent standards for identifying and addressing such discrimination. 42 U.S.C. § 12101(b)(1), (2). The ADA is based on Congress’s findings that: (1) “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem,” id. § 12101(a)(2); (2) “individuals with disabilities continually encounter various forms of discrimination, including . . . relegation to lesser services, programs, activities, benefits, jobs, or other opportunities,” id. § 12101(a)(5); and (3) “discrimination against individuals with disabilities persists in such critical areas as . . . institutionalization . . . and access to public services,” id. § 12101(a)(3).
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124. In relevant part, the ADA defines a “disability” as “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). The ADA defines “major life activities” as including “learning, reading, concentrating, thinking, [and] communicating,” as well as major bodily functions, such as brain function. Id. § 12102(2)(A), (B). The regulations implementing Title II of the ADA make clear that intellectual disability “will virtually always be found to impose a substantial limitation on a major life activity.” 28 C.F.R. § 35.108(d)(2)(ii), (iii)(C). Markelle has a disability as defined in the ADA, and is entitled to the protections of the ADA.
125. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Title II applies to all services, programs, and activities of public entities. See id. Defendants are public entities and must comply with Title II of the ADA.
126. Congress directed the Attorney General of the United States to promulgate regulations enforcing Title II of the ADA and to provide guidance on their content. 42 U.S.C. § 12134. The regulations specify that it is unlawful discrimination for a public entity to: (1) “[a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others,” 28 C.F.R. § 35.130(b)(1)(ii); (2) “[p]rovide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others,” id. § 35.130(b)(1)(iii); (3) fail to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities,” id. § 35.130(d) (“the integration mandate”),
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which the Attorney General has defined as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible,” 28 C.F.R. pt. 35, App. B; or (4) “utilize criteria or methods of administration . . . [t]hat have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.” Id. § 35.130(b)(3)(ii).
B. The District Has Intentionally Discriminated Against Markelle by Treating Him Differently from Individuals with Mental Illness.
127. The Defendants’ failure to serve Markelle, while serving individuals with mental illness, constitutes disparate treatment of Markelle on the basis of his intellectual disability. The multiple individuals with mental illness whom the District has served whose alleged conduct was similar to the allegations against Markelle, DDS’s desire “to leave as small a footprint as possible[;]” DDS’s plan to pursue a parallel DC civil commitment despite its awareness that Markelle had a pending federal civil commitment; and DDS’s ultimate refusal to civilly commit Markelle combine to create a strong inference that DDS’s ultimate failure to serve Markelle was not because of the charges against Markelle or his potential dangerousness but was because of discrimination against Markelle due to his intellectual disability.
128. Evidence of the Defendants’ disparate treatment of Markelle on the basis of intellectual disability includes:
a. Upon information and belief, in the last fiscal year (October 1, 2017 through September 30, 2018), the District filed 40 petitions for civil commitment under the Ervin Act following a Jackson finding that a criminal defendant was not competent to stand trial (and not likely to become competent) as a result of mental illness. By contrast, in the last seven years, the District filed only two petitions 50

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for DDS commitment following a Jackson finding of incompetence based on intellectual disability. Upon information and belief, these two petitions involved extenuating circumstances that forced the District to overcome its usual resistance to serving individuals with intellectual disability in Markelle’s circumstances. b. Upon information and belief DDS avoids serving people with intellectual disability who have been involved in the criminal justice system by: (i) refusing to evaluate such individuals for habilitation services; (ii) determining them ineligible for habilitation services based on subjective criteria or based on the District’s incorrect assertion that federally incarcerated individuals with intellectual disability, unlike individuals with mental illness, are no longer residents of the District; and/or (iii) refusing to move to civilly commit such individuals. c. The District was well aware of any danger posed by Markelle in 2015, 2016, and 2017, as reflected, inter alia, in its experts’ reports, well before the North Carolina federal court concluded that Markelle would be dangerous if returned unsupervised to the District. (Nuss Decl. ¶ 6.) d. Upon information and belief, and based on publicly available data regarding the budget for DDS, budget allocations to DDS to fulfill its mandate have increased every year since 2016. Gov’t of the District of Columbia, A Fair Shot: FY 2019 Proposed Budget and Financial Plan, Vol. 4, Pt. III (Mar. 21, 2018), https://cfo.dc.gov/sites/default/files/dc/sites/ocfo/publication/attachments/DC_OC FO_FY19_Budget_V4_WEB_0.pdf. Accordingly, there is no budgetary reason for DDS to have refused to serve Markelle. (Nuss Decl. ¶ 5.) e. Upon information and belief, at no time during the period relevant to Markelle’s
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case has there been a waiting list for DDS services. Accordingly, lack of programmatic capacity cannot be a legitimate reason for DDS to refuse to serve Markelle. (Id.) f. In correspondence with counsel for Markelle on March 13, 2015, DDS’s General Counsel described a conversation with Assistant General Counsel for DDS Richard Williams about how best to obtain a suitable Jackson finding “in order to move forward with commitment in the Habilitation Court.” M.Back E-mail 2, supra para 58. He then asked Markelle’s counsel to: “please reach back out” to his colleague “to discuss. We would like to leave as small a footprint as possible on this matter.” Id. Upon information and belief, this statement reflects both DDS’s willingness in 2015 to civilly commit Markelle and its simultaneous preference that others remain unaware of this action regarding Markelle’s case, evidencing DDS’s bias against serving individuals with intellectual disability. g. As late as 2017, after the Attorney General had commenced the civil commitment process in the Eastern District of North Carolina, the DDS General Counsel emailed Markelle’s counsel about ongoing planning for Markelle’s civil commitment by DDS in the District of Columbia. “Mr. Seth has a [sic] status in his DC federal case (by videophone) on July 21st and a hearing in the NC federal case on September 26th. It is possible to move up the various court dates if we have the planning piece in place and the idea is to get MS out of confinement as soon as possible within the timing realities of the two commitment processes.” M.Back E-mail 1, supra para. 10. 129. These facts create a strong inference that the District’s different treatment of
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Markelle, who has an intellectual disability, compared to its treatment of similarly situated individuals with mental illness is based on his disability and based solely on his disability.
C. The District’s Policies Have a Discriminatory Disparate Impact on Individuals with Intellectual Disability.
130. The Defendants’ specific practice of regularly seeking civil commitment in the District of Columbia for individuals with mental illness while not doing so for individuals with intellectual disability also constitutes unlawful disparate impact discrimination.14 See supra para. 104(a). Even if the Defendants’ decision-making in relation to individuals charged with sexual offenses involving minors were facially neutral, the Defendants’ practices have had a disparate (and therefore unlawful) impact. See id.
a. Upon information and belief, in just the last fiscal year, 40 individuals with mental illness who were incompetent for trial were the subject of petitions for commitment under the Ervin Act by DBH. While some of those cases have not yet been resolved, of the 19 that have been, five individuals received inpatient commitments and 14 received outpatient commitments in the community. In contrast, upon information and belief, there have been only two new petitions filed under the post-Jackson provision of CIDA in the last seven years.
b. Although DDS does serve some individuals in the community who were
14 Here, “individuals with mental illness” also includes individuals with a dual diagnosis of both mental illness and intellectual disability. This is in contrast to individuals diagnosed solely with intellectual disability, like Markelle. A dual diagnosis allows the District to assume responsibility through the Department of Behavioral Health, while a diagnosis of intellectual disability alone relegates individuals to the care and custody of the Department on Disability Services. 53

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previously found incompetent to stand trial on serious charges, or who had other criminal justice system involvement, most of those individuals have come to DDS through another District agency, such as DBH or CFSA, under circumstances that would not permit DDS to reject serving them. For example, efforts to reduce the census at St. Elizabeth’s Hospital resulted in DBH clients with both mental illness and intellectual disability being moved to the community to receive services from DDS in the community. (Nuss Decl. ¶¶ 14, 15.) c. Upon information and belief, there are as few as two instances in the last seven years in which the District sought civil commitment for an individual found to be incompetent based primarily on intellectual disability. In one of those instances, the individual already was receiving services from DDS at the time of the criminal charge. In the other instance, DDS initially was unwilling to seek civil commitment and the Office of the Attorney General overruled DDS and filed for commitment itself. The small number of these cases and manner in which the District responds to them, compared with the manner in which the District addresses similarly situated individuals with mental illness, demonstrate the bias that the District has against individuals with intellectual disability.
D. The District Has Failed to Reasonably Modify its Policies, Procedures and Practices to Accommodate Markelle.
131. The Defendants’ failure to place Markelle in an appropriately supervised program in the District of Columbia also constitutes an unlawful failure to reasonably modify its policies, procedures, and practices to accommodate him. A failure to reasonably modify occurs when (1) the plaintiff has a disability for the purposes of the Rehabilitation Act” or the ADA; (2) the
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public entity “had notice of his disability”; and (3) the public entity denied his request for a reasonable modification of its policies, procedures or practices necessary to accommodate his disability. All of these criteria have been met here:
a. Plaintiff alleges at paragraphs 33 to 40 above that he was determined to have intellectual disability within the meaning of the Rehabilitation Act and ADA;
b. Plaintiff alleges at paragraphs 53 to 89 above that since at least March 2015, Defendants have had notice of Plaintiff’s disability and his request for appropriately supervised habilitation services.
c. Plaintiff alleges at paragraphs 85 to 89 above that Wholistic could provide appropriately supervised habilitation services. Implementation of Wholistic’s proposal is reasonable on its face, particularly in light of the services available through the District’s services system and in light of the services the District makes available to similarly situated individuals with mental illness.
d. Plaintiff alleges at paragraphs 90 to 92 above that, notwithstanding Wholistic’s formal proposal (which expressly addresses issues of dangerousness and public safety), and the fact that Defendants would serve Markelle if he had a mental illness, Defendants have denied Plaintiff’s request for reasonable accommodation.
e. Although it is not Plaintiff’s burden to so prove, upon information and belief, providing the services proposed by Wholistic, in accordance with the District’s own experts’ recommendations, would not pose an undue burden (or hardship) or fundamental alteration for the District, nor create a direct threat to the health or safety of others.
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E. The District Refuses to Serve Markelle in the Most Integrated Setting Appropriate for Him.
132. The Supreme Court has held that discrimination prohibited under Title II of the ADA includes the unnecessary isolation or segregation of persons with disabilities. In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the Court held that public entities must provide community-based services to persons with disabilities when (1) such services are appropriate, as determined by treatment professionals; (2) the affected persons do not oppose community-based treatment; and (3) community-based services can be reasonably accommodated, taking into account the resources available to the public entity and the needs of others who are receiving disability services from the entity. Id. at 607. The Supreme Court explained that its holding “reflects two evident judgments.” Id. at 600. First, “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. Second, “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 601.
a. As alleged above in paragraphs 71-89 and 109-122, appropriately supervised community based services are appropriate for Markelle;
b. In fact, Defendant DDS so determined in March 2015. See paragraphs 53 to 89. c. Each of the Defendants’ own experts has determined that supervised community-
based services available to the District are appropriate for Markelle; d. The subsequent decision by DDS not to provide services to Markelle in a
community-based setting, in contradiction to its own experts’ recommendations,
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is not sufficient to satisfy the Olmstead standard, that community based services are not “appropriate.” First, DDS has articulated no finding that such services are not appropriate for Markelle and has provided no explanation for its change in position. Second, the determination of whether a community-based setting is appropriate for an individual with a disability is an objective standard not within the discretion of the agency’s non-medical staff. Third, Plaintiff alleges that DDS’s change in position is based on improper assumptions about and bias against individuals with intellectual disability or other impermissible factors separate from the genuine appropriateness of serving Markelle. e. As alleged in paragraphs 53 to 89 and 93 to 108, Markelle does not oppose a supervised community-based program. f. As alleged in paragraphs 109 to 122, Defendants have the ability to place Markelle in a supervised community-based program without their experiencing undue hardship, or fundamental alteration, or his posing a direct threat. 133. Congress specifically authorized individuals who believe their Title II ADA rights are being violated to bring an action in a United States District Court. 42 U.S.C. § 12133 (incorporating the remedies and enforcement procedures available under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., which includes a private right of action). 134. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“Section 504”) provides: “No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” Id.
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135. An individual with a disability is any person who has a disability as defined in § 12102 of the ADA, as described above. 29 U.S.C. § 705. Defendants’ programs, services, and activities receive Federal financial assistance. Accordingly, Defendants are subject to the nondiscrimination requirements of Section 504.
136. Congress directed that Title II of the ADA be interpreted in a manner consistent with Section 504, 42 U.S.C. §§ 12134(b), 12201(a), and the courts have followed this directive. See, e.g., Yeskey v. Pa. Dep’t of Corr., 118 F.3d 168, 170 (3d Cir. 1997), aff’d sub nom. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998).
F. By Treating Markelle Differently from Similarly Situated Individuals with Mental Illness, Failing to Reasonably Modify Policies to Accommodate Markelle, and Failing to Provide Markelle with Services and Treatment in the Most Integrated Setting Appropriate, Defendants Have Violated the D.C. Human Rights Act of 1977.
137. The D.C. Human Rights Act of 1977, D.C. Code § 2-1401.01 et seq. (“DCHRA”), defines “disability” identically to the ADA. Id. § 2-1401.02(5A).
138. Discriminating on the basis of disability is proscribed by the DCHRA. Id. § 21401.01. The DCHRA provides: “Every individual shall have an equal opportunity to participate fully in the economic, cultural and intellectual life of the District and to have an equal opportunity to participate in all aspects of life, including, but not limited to, in employment, in places of public accommodation, resort or amusement, in educational institutions, in public service, and in housing and commercial space accommodations.” Id. § 2-1402.01.
139. The DCHRA further notes, “it shall be an unlawful discriminatory practice for a District government agency or office to limit or refuse to provide any facility, service, program, or benefit to any individual on the basis of an individual’s actual or perceived . . . disability.” Id.
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§ 2-1402.73. 140. The statute provides for a private right of action and damages. Id. § 2-1403.16.
“The D.C. courts have always looked to cases from the federal courts in interpreting the D.C. Human Rights Act, and have followed, wherever applicable, precedents from the federal courts’ treatment of comparable civil rights statutes.” Paralyzed Veterans of Am. v. Ellerbe Becket Architects & Eng’rs, P.C., 950 F. Supp. 393, 405 (D.D.C. 1996).
G. By Failing to Petition for Markelle’s Civil Commitment in Order to Provide Him with Services and Treatment in the Most Integrated Setting Appropriate, Defendants Have Violated D.C.’s Citizens with Intellectual Disabilities Civil Rights Restoration Act of 2015.
141. In 2002, the Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978, (renamed in 2012 to D.C.’s Citizens with Intellectual Disabilities Civil Rights Restoration Act of 2015, D.C. Code § 7-1301.01 et seq. (“CIDA”)), was amended to establish a civil commitment procedure for individuals with intellectual disability who have been charged with a violent crime or sex offense but found incompetent to stand trial to achieve the “dual goals of protecting public safety while also safeguarding individual civil liberties and developing appropriate treatment programs.”15 D.C. Council Report, supra para. 117, at 9-10 (emphasis added). The D.C. Council Committee Report for CIDA stated that the legislation “is modeled after the Ervin Act provisions that govern civil commitment in the context of individuals who have been found incompetent to stand trial due to mental illness,” since the Ervin Act does not
15 The Disability Services Reform Amendment Act of 2018, D.C. Act 22-277, which amends CIDA, was enacted on March 12, 2018. This bill eliminates civil commitment for most individuals with intellectual disability moving forward, but keeps intact the current procedures regarding individuals like Markelle who are found incompetent to stand trial in criminal cases.
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address those who are found incompetent due to intellectual disability. See D.C. Council Report, supra para. 117, at 4.
142. The Ervin Act, originally passed in 1964, was updated in 2002 to ensure that individuals with mental illness receive treatment in the least restrictive, most integrated setting appropriate. The Act was also amended to provide for regular review of an individual’s commitment to ensure restrictions are lifted as soon as possible. The District’s Department of Behavioral Health is responsible for providing services to D.C. residents with mental illness who are subject to the Ervin Act.
143. CIDA was amended after two separate incidents in which individuals with intellectual disability were charged with violent offenses, were deemed incompetent to stand trial without the possibility of restoration of competence, and were not eligible for civil commitment under the Ervin Act because they did not have mental illness. Both individuals continue to receive services successfully in the community from DDS.
144. The CIDA legislation is the result of many years of efforts by the D.C. Council, in conjunction with advocates from the D.C. disability and civil rights communities, to ensure that individuals in Markelle’s situation receive needed supports and services in the least restrictive setting while simultaneously employing safeguards to preserve public safety in a way that provides the greatest possible protection of their civil rights.16 Indeed, the Council Report
16 In the 2002 D.C. Council Committee Report for the law, Chairperson of the Committee on the Judiciary Kathy Patterson noted that the new iteration of the bill “emphasize[s] a civil rather than criminal approach to the issue.” D.C. Council Report, supra para. 117, at 9. The Report recounts the testimony of various community members, which included sex educators and civil and disability rights advocacy groups. The input from the collective testimony included the following points that were later incorporated into the statute: (1) intellectual disability is not causally related to violence; (2) though the individual’s disability does not 60

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explicitly describes these “dual goals” in explaining the purpose of the law and how it was
developed. D.C. Council Report, supra para. 117, at 9-10.
i. Purpose of D.C.’s Citizens with Intellectual Disabilities Act 145. The law’s Statement of Purpose requires that any treatment, supports, and
services must be provided in the least restrictive setting in a manner that is individually tailored
and geared toward maximal community integration:
[T]he design and delivery of care and habilitation services for persons with intellectual disabilities shall be directed by the principles of normalization, and therefore: (1) Community-based services and residential facilities that are least restrictive to the personal liberty of the individual shall be established for persons with intellectual disability at each stage of life development; (2) The use of institutionalization shall be abated to the greatest extent possible; (3) Whenever care in an institution or residential facility is required, it shall be in the least restrictive setting; and (4) Persons placed in institutions shall be transferred to community or home environments whenever possible, consistent with professional diagnoses and recommendations.
D.C. Code § 7-1301.02(b).
146. CIDA defines “least restrictive alternative” as
that living and/or habilitation arrangement which least inhibits a person’s independence and right to liberty. It shall include, but not be limited to, arrangements which move an individual from: (A) More to less structured living; (B) Larger to smaller facilities; (C) Larger to smaller living units;
change over time, individuals with intellectual disability benefit from sex education and other behavioral supports that teach about appropriate sexual conduct; (3) the legislation should not be enacted without a study of similar legislation throughout the country and a close examination of best practices, such as in the states of Washington and Vermont; (4) the legislation must focus on plans that target behavior and provide appropriate treatment options; and (5) any treatment plans created by the legislation should be individualized and tailored to the needs of the specific person.
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(D) Group to individual residences; (E) Segregated from the community to integrated with community living and programming; and/or (F) Dependent to independent living. Id. § 7-1301.03(16); see also id. § 7-1305.03. 147. CIDA further provides that an individual subject to civil commitment under the statute “shall be provided with the least restrictive and most normal living conditions possible consistent with preventing the person from causing injury to others . . . . Individuals shall be taught skills that help them learn how to effectively utilize their environment and how to make choices necessary for daily living and . . . refrain from committing crimes of violence or sex offenses.” Id. § 7-1305.02. The statute also provides for an annual court hearing to review the individual’s commitment in the event it is no longer appropriate, id. § 7-1304.11(a-1), a private right of action, id. § 7-1305.13, and damages, id. § 7-1305.14. Sovereign immunity does not bar an action under CIDA. Id. § 7-1305.13(c).
ii. CIDA’s Application to Individuals with Intellectual Disability Charged with a Crime
148. In line with CIDA’s requirements, all of DDS’s services for individuals who are civilly committed are provided in the least restrictive setting. Although Markelle would require intensive, 24-hour supports, civil commitment under D.C. law would allow him to receive these services in his home community in the most integrated setting appropriate for his needs.
149. CIDA provides that in the instance of an individual found incompetent in a criminal case, “the District shall have no more than 30 days from the date on which the finding is made that the person is incompetent and not likely to gain competence in the foreseeable future in which to file a petition . . . . For extraordinary cause shown, the Court may extend the period
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of time within which the petition must be filed.”17 Id. § 7-1303.12a(a). Markelle was found incompetent by this court in December 2016.
150. Absent any extraordinary justification, DDS has refused to petition for Markelle’s commitment for over a year and has indicated that it has no plans to do so in the foreseeable future. Unless DDS acts pursuant to its legal obligations, Markelle will remain incarcerated indefinitely in a setting in which he is subjected to solitary confinement, deprivation of privileges, and other disciplinary measures due to his disability in a prison setting that is inappropriate for the supports and treatment he requires.
H. Markelle’s Federal Civil Commitment Does Not Excuse the Defendants’ From Carrying Out Their Obligations.
151. Although civil commitment of incompetent defendants is typically a state function, as outlined above, federal law, 18 U.S.C. § 4246, provides that a federally charged defendant who is found incompetent to stand trial may be civilly committed by the federal government if, and only if, (1) he is found dangerous as a result of a mental condition, and (2) his home state refuses to take responsibility for his care and custody. Federal civil commitment results in confinement by the BOP in a federal prison hospital until the prison authorities determine that it is safe to release the individual.
17 The statute governing federal civil commitment, 18 U.S.C. § 4246(d), see discussion infra Section VI, also contemplates that the process of getting the state to take responsibility for a defendant found incompetent may be an ongoing process, noting that the Attorney General will have custody over the individual until the state “will assume such responsibility” and requiring the Attorney General to “continue periodically to exert all reasonable efforts to cause such a State to assume such responsibility for the person’s custody, care, and treatment.” 18 U.S.C. § 4246(d).
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152. Federal law recognizes the strong preference for returning an individual to his/her own state for commitment. 18 U.S.C. § 4246(d) states:
The Attorney General shall release the person to the appropriate official of the State in which the person is domiciled or was tried if such State will assume responsibility for his custody, care, and treatment. The Attorney General shall make all reasonable efforts to cause such a State to assume such responsibility. If, notwithstanding such efforts, neither such State will assume such responsibility, the Attorney General shall hospitalize the person for treatment in a suitable facility, until (1) such a State will assume such responsibility; or (2) the person’s mental condition is such that his release, or his conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment would not create a substantial risk of bodily injury to another person or serious damage to property of another; whichever is earlier. The Attorney General shall continue periodically to exert all reasonable efforts to cause such a State to assume such responsibility for the person’s custody, care, and treatment.
153. The BOP’s evaluation concluded that Markelle “is currently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to the property of another.” Because DDS has failed to petition for Markelle’s commitment or indicate its willingness to accept responsibility for his care and custody, the BOP concluded that “suitable arrangements for State custody are not available,” even though, as described above, they clearly are if only DDS would act to provide them. As a result, a petition for federal civil commitment was filed in the Eastern District of North Carolina on April 28, 2017.
154. The petition for federal civil commitment was granted on May 24, 2018. At this federal civil commitment hearing, no evidence was presented regarding the availability of suitable state placement options, as the court had previously ruled that the government did not need to prove this element, nor was it at issue in this proceeding. Declining to make a broad
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ruling as to the availability of state placement, the court held that, “Upon the request of the Attorney General, the Court finds that the state placement is not available. This court finds, as I am only able to find, that the Attorney General has sent a letter to the District of Columbia requesting state placement and that letter has not been responded to.” 2018 Competency Hearing, supra para. 52, at 46.
155. Pursuant to 18 U.S.C. § 4246(d), BOP can only retain custody of Markelle until (1) such a State will assume such responsibility; or (2) the person’s mental condition is such that his release, or his conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment would not create a substantial risk of bodily injury to another person or serious damage to property of another; whichever is earlier.
Currently, Markelle’s release under a prescribed regimen of medical, psychiatric, or psychological care or treatment, such as that proposed by Wholistic, would not create a substantial risk of bodily injury to another person. Having no basis on which to decline to release Markelle, BOP will presumably do so as soon as Defendants authorized payment for those services.18 Thus, neither the federal court’s civil commitment decision nor the BOP’s current custody of Markelle poses a barrier to the Defendants’ exercise of their responsibility to serve Markelle in the community.
156. The circumstances here weigh overwhelmingly in favor of Markelle’s civil commitment in the District: (1) DDS has authority and responsibility to petition for Markelle’s civil commitment to provide him with supports and services in the most integrated setting
18 Indeed, in the absence of civil commitment by the District, BOP may already have an obligation to release Markelle because he has been prescribed a regimen of services that will avoid any substantial risk of harm to the public. Upon Markelle’s release, he will be entitled to Wholistic’s services, for which he has already been found eligible, and the District will have no ability to civilly commit or oversee the success of those services. 65

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appropriate in his home state pursuant to CIDA; (2) DDS’s own expert agrees that Markelle can and should be served in the community; and (3) a community-based provider in the District of Columbia with the capacity to do so has offered to serve Markelle.
157. By refusing to fulfill their legal obligation to petition for custody of Markelle and provide services to him in the most integrated setting appropriate to his needs, Defendants, the District of Columbia, DDS, and its Director, Andrew Reese, have caused Markelle to remain in federal prison at FMC Butner—often in solitary confinement—in violation of Title II of the ADA, 42 U.S.C. § 12131 et seq., Section 504, 29 U.S.C. § 794(a), the DCHRA, D.C. Code § 21401.01 et seq., and CIDA, D.C. Code § 7-1301.01 et seq. Defendants violated Markelle’s rights from the time he was found not restorable to competency by refusing to serve him, and they have violated his rights every day since then. Every day that Defendants fail to fulfill their legal obligation to provide community-based services to Markelle in his home state is another day that he is forced to languish in federal prison indefinitely without having been convicted of a crime.
158. CIDA was passed as part of an intentional and deliberative effort to place responsibility on DDS for the exact scenario faced by Markelle. The law—explicitly concerned with the dual goals of protecting public safety while also safeguarding civil liberties and developing appropriate treatment programs—plainly requires DDS to provide Markelle with services in the most integrated setting appropriate to his needs in a way that simultaneously ensures public safety and the protection of his civil rights. Defendants’ failure to fulfill their obligation under this law guarantees Markelle’s continued placement in federal prison in violation of the ADA, Section 504, DCHRA, and CIDA.
VI. CAUSES OF ACTION COUNT 1: VIOLATION OF THE AMERICANS WITH DISABILITIES ACT
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159. The allegations of paragraphs 1 to 158 above are incorporated herein. 160. Markelle is a “qualified individual with a disability” as defined in the ADA, 42 U.S.C. § 12131(2); see id. § 12102(1). Markelle’s intellectual disability substantially limits multiple major life activities, such as caring for oneself, learning, reading, concentrating and thinking, and DDS has determined him to be eligible for disability services. Moreover, with appropriately tailored support systems such as those described above, Markelle can be served in the community without posing a threat to the health or safety of others. 161. Defendant DDS is a public entity subject to the ADA. Id. § 12131(1). 162. By refusing to follow through on its determination that Markelle is eligible for DDS services and can reasonably be served in the community, and by failing to move to civilly commit Markelle, DDS is depriving him the benefits of its programs, activities, and services in violation of Title II of the ADA, id. § 12132. 163. Specifically, Defendants are, on the basis of his intellectual disability, excluding Markelle from participation in or denying him the benefits of the services, programs, or activities of the District, or subjecting him to discrimination, including by:
(i) Denying Markelle the opportunity to participate in or benefit from an aid, benefit, or service;
(ii) Affording Markelle an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Providing Markelle with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; 67

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(iv) Providing different or separate aids, benefits, or services to Markelle than are provided to others unless such action is necessary to provide Markelle with aids, benefits, or services that are as effective as those provided to others;
(v) Otherwise limiting Markelle in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
See 28 C.F.R. § 35.130(a), (b)(1). 164. Defendants are intentionally treating Markelle differently from similarly situated
individuals with mental illness on the basis of his intellectual disability. Upon information and belief, the District of Columbia regularly provides community-based supervisory services to D.C. residents who are found not competent to stand trial due to mental illness through the Department of Behavioral Health, but is failing to do so for those with intellectual disability, such as Markelle. Despite having both the resources to serve these citizens and a statutory mandate to do so, DDS has failed to act for Markelle.
165. In addition, Defendants are denying Markelle the opportunity to participate in services, programs, or activities that are not separate or different from those offered to others, id. § 35.130(b)(2), and utilizing criteria or methods of administration—
1. That have the effect of subjecting Markelle to discrimination on the basis of disability; or
2. That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to Markelle. 68

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See id. § 35.130(b)(3)(i)-(ii). 166. DDS is also imposing or applying “eligibility criteria that screen out or tend to
screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying [a] service, program, or activity,” without showing that “such criteria [are] necessary for the provision of the service, program, or activity being offered.” Id. § 35.130(b)(8).
167. Finally, DDS is failing to “administer services, programs, and activities in the most integrated setting appropriate to [Markelle’s] needs.” See id. § 35.130(d); id. § 35.152(b)(2); see also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).
168. In Olmstead, the Court determined “that, under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id. at 607.
169. A state cannot escape its Olmstead responsibilities by simply claiming that it does not have a plan in place to serve individuals with disabilities in the most integrated setting appropriate to their needs. Rather, if such a plan is missing, the state must create one in order to comply with its ADA obligations. Interpreting Olmstead otherwise turns the law on its head and renders it meaningless as any state could easily evade responsibility by claiming that it does not have a plan to serve individuals in the community, relegating people with disabilities to segregated, institutional placements in clear violation of the law. This situation is precisely what Olmstead and the ADA seek to safeguard against.
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170. As in Olmstead, numerous professionals, including DDS’s own professionals, who have treated and evaluated Markelle, have concluded that he can and should be served in the community, Markelle wants to return to and be treated in the District, and there are communitybased options available to him that can both meet his needs and provide for the community’s security.
171. By refusing to serve Markelle, DDS leaves him in a federal prison facility—often in segregated housing—that is unable to provide the necessary treatment, safe facilities, and integrated services required by the ADA. See supra paras. 98-106.
172. Defendants have failed to comply with the nondiscrimination requirements of the ADA and the integration mandate of the ADA, based on Markelle’s disability.
173. Community-based services for Markelle can be reasonably accommodated, taking into account the resources available to the District and the needs of others who are receiving disability services from the District. Defendants’ actions in violation of the ADA were intentional.
174. Defendants’ actions in refusing to serve Markelle are intentional and as a result of Defendants’ violations of the ADA, Markelle has suffered harm.
175. Unless enjoined by the Court, Defendants will continue to violate the ADA rights of Markelle.
COUNT 2: VIOLATION OF SECTION 504 OF THE REHABILITATION ACT 176. The allegations of paragraphs 1 to 175 above are incorporated herein. 177. Markelle is a “qualified individual with a disability” as defined in Section 504, 29
U.S.C. § 794, et seq., Markelle’s intellectual disability substantially limits multiple major life activities, such as caring for oneself, learning, reading, concentrating and thinking, and DDS has
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determined him to be eligible for disability services. 178. Discrimination on the basis of disability is prohibited by Section 504: “No
otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” Id. § 794(a).
179. DDS and the District are recipients of Federal financial assistance. 180. As set forth above, Defendants have discriminated against Markelle solely because of his intellectual disability. In doing so, they have denied him the benefits of its federally funded programs. 181. Defendants’ actions in refusing to serve Markelle are intentional and Markelle has suffered harm as a result.
COUNT 3: VIOLATION OF THE D.C. HUMAN RIGHTS ACT 182. The allegations of paragraphs 1 to 181 above are incorporated herein. 183. Markelle is an individual with a disability under the DCHRA, which defines “disability” identically to the ADA. D.C. Code § 2-1401.02(5A). 184. It is a violation of the DCHRA to discriminate on the basis of disability. Id. § 21401.01. The DCHRA provides: “Every individual shall have an equal opportunity to participate fully in the economic, cultural and intellectual life of the District and to have an equal opportunity to participate in all aspects of life, including, but not limited to, in employment, in places of public accommodation, resort or amusement, in educational institutions, in public service, and in housing and commercial space accommodations.” Id. § 2-1402.01. The statute further notes that “it shall be an unlawful discriminatory practice for a District government
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agency or office to limit or refuse to provide any facility, service, program, or benefit to any individual on the basis of an individual’s actual or perceived . . . disability.” Id. § 2-1402.73.
185. Defendants have discriminated against Markelle on the basis of his intellectual disability in violation of the DCHRA.
186. Community-based services for Markelle can be reasonably accommodated, taking into account the resources available to the District and the needs of others who are receiving disability services from the District. As a result of Defendants’ violations of the DCHRA, Markelle has suffered harm.
187. Unless enjoined by the Court, Defendants will continue to violate the DCHRA rights of Markelle.
COUNT 4: VIOLATION OF THE CITIZENS WITH INTELLECTUAL DISABILITIES ACT
188. The allegations of paragraphs 1 to 187 above are incorporated herein. 189. Pursuant to the dual goals for which it was established, CIDA requires that the District petition for civil commitment for individuals with intellectual disability found incompetent to stand trial and not likely to gain competence in the foreseeable future in a criminal case within 30 days of such a finding absent a showing of extraordinary cause. Id. § 71303.12a(a). Once the person is committed, the statute requires that individuals with intellectual disability be
provided with the least restrictive and most normal living conditions possible . . . . This standard shall apply to dress, grooming, movement, use of free time, and contact and communication with the community . . . . Individuals shall be taught skills that help them learn how to effectively utilize their environment and how to make choices necessary for daily living and . . . to refrain from committing crimes of violence or sex offenses.
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Id. § 7-1305.02. 190. This Court issued a finding of incompetence to stand trial in December 2016.
DDS has an obligation to petition for Markelle’s civil commitment to provide him with supports and services in the most integrated setting appropriate in his home state. Instead, Markelle has been held in federal custody for over a year, frequently placed in solitary confinement and subjected to a number of other harsh conditions and deprivation of privileges at FMC Butner, an unnecessarily harsh, inappropriate, and restrictive treatment placement.
191. CIDA requires DDS to provide Markelle with treatment and supervision services in the community in the most integrated setting appropriate to his needs in a way that simultaneously ensures public safety and the protection of his civil rights. Defendants’ failure to fulfill their obligation under this law guarantees Markelle’s continued placement in federal prison in violation of the law.
VI. PRAYER FOR RELIEF WHEREFORE, Markelle prays that judgment be entered in his favor and against Defendants as follows:
A. Declaring that the Defendants’ actions described above constitute violations of the Americans with Disabilities Act of 1990, Section 504 of the Rehabilitation Act of 1973, the D.C. Human Rights Act of 1997, and the Citizens with Intellectual Disabilities Civil Rights Restoration Act of 2015;
B. Granting preliminary and permanent injunctive relief requiring Defendants to promptly accept physical and legal custody of Markelle within a reasonable period of time, not to exceed thirty (30) days;
C. Awarding compensatory and punitive damages to Markelle including his out-of73

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pocket losses, emotional damages, and other harms caused by the Defendants’
discriminatory conduct, from the time that Defendants failed to meet their
obligation to civilly commit Markelle to the present;
D. Awarding attorneys’ fees and costs incurred in the prosecution of this action;
E. Granting such other and further relief as the Court may deem just and proper.
Respectfully submitted this 26th day of October, 2018.
/s/ Donald P. Salzman Donald P. Salzman, D.C. Bar No. 479775 Daniel W. J. Becker, D.C. Bar No. 1024373 Gary DiBianco, D.C. Bar No. 458669 Rebecca M. Murday, N.Y. Bar No. 5584743, D.C. Bar Application Pending, Motion for Pro Hac Vice to Be Filed 1440 New York Avenue, N.W. Washington, D.C. 20005-2111 Tel: (202) 371-7983 Fax: (202) 393-5760 Donald.Salzman@probonolaw.com
/s/ Eve L. Hill Eve L. Hill, D.C. Bar No. 424896 BROWN GOLDSTEIN & LEVY, LLP 120 East Baltimore Street, Suite 1700 Baltimore, Maryland 21202 Tel: (410) 962-1030 Fax: (410) 385-0869 EHill@browngold.com
/s/ Robert D. Dinerstein Robert D. Dinerstein, D.C. Bar No. 373443 AMERICAN UNIVERSITY, WASHINGTON COLLEGE OF LAW, DISABILITY RIGHTS LAW CLINIC 4300 Nebraska Avenue, Y-202 Washington, D.C. 20016 Tel: (202) 274-4141 Fax: (202) 274-0659 RDiners@wcl.american.edu
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Case 1:18-cv-01034-BAH Document 29-1 Filed 10/26/18 Page 75 of 75 /s/ Shira Wakschlag Shira Wakschlag, D.C. Bar No. 1025737 THE ARC OF THE UNITED STATES 1825 K Street, N.W., Suite 1200 Washington, D.C. 20006 Tel: (202) 534-3708 Fax: (202) 534-3731 Wakschlag@thearc.org
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Laura L. Nuss
Accomplished and visionary executive leader in government and non-profit administration with record of success in planning and executing organizational and systems-wide change. Advanced significant person-centered thinking and No Wrong Door grant initiatives from planning to implementation. Extensive experience in HCBS program design. implementation and management in multiple states to advance community integration, inclusion, employment and self-determination. Designed and managed quality assurance and improvement systems at the state and provider level, including critical incidents, mortality review, provider certification and monitoring, and risk analysis and management. Lifelong advocate in support of persons with developmental disabilities and their families skilled in expanding and improving stakeholder engagement and provider relations.
Education  M.S., Community Systems Planning and Development The Pennsylvania State University, University Park, PA  B.S., Administration of Justice The Pennsylvania State University, University Park, PA
Employment History
Senior Program Analyst, New Editions Consulting, Inc., Falls Church, VA (October 2017 to present) Provides expert review and technical assistance support for the Centers for Medicare and Medicaid Services Home and Community-Based Services Settings Rule implementation contract. Reviews state documents, providing comments and feedback for CMS. Provides individual state TA in response to states’ needs and with CMS approval. Develops and presents webinars and conference presentations on topic related to HCBS and the Settings rule.
Principal, LNUSS Group, Silver Spring, MD (May 2016 to present) Technical assistance and consulting services in Medicaid policy, LTSS systems change, Olmstead compliance, person-centered thinking transformation, finance strategies and rate setting, stakeholder engagement, WIOA, inclusive employment and support strategies, and, quality and performance management for federal, state and local government and private organizations. Clients:
• Colorado Office of Community Living, Department of Health Care Policy and Finance • D.C. Department on Disability Services • Delaware Division of Developmental Disabilities Services • DOJ Independent Reviewer • Econsys: DOL/Office of Disability Employment Policy- Subject Matter Expert • Foothold Technology, NY, NY- Senior Advisor • Liberty Healthcare Corporation

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• Maryland Developmental Disabilities Administration • New Editions Consulting: CMS Technical Assistance Contract- Expert Consultant • New Mexico Developmental Disabilities and Supports Division • Ohio Department of Developmental Disabilities • U.S. State Department, International Disabilities Rights Speaker Program • Utah Disability Rights
Director, Department on Disability Services, Government of the District of Columbia, Washington, DC (June 2010 to April 2016) Cabinet level appointment leading agency employing 400+ skilled and professional staff for Department encompassing the Developmental Disabilities Administration, combined Vocational Rehabilitation Services Administration and federal Disability Determination Division for the District.
• Created innovative information, performance, and quality management systems to support the Plan for Compliance and Conclusion of a 40-year-old federal class action (Evans v. Bowser), and ID/DD HCBS quality assurance requirements. Submitted final certifications resulting in successful conclusion of the case in January 2017.
• Implemented system-wide, multi-year Person-Centered Thinking and Employment First! initiatives for the public and private sector in advance of the 2014 HCBS Settings rules to support systems change to increase employment, community integration and choice outcomes. Ensured timely submission of STP and HCBS supporting amendments.
• Led cross-agency innovations in WIOA and No Wrong Door initiatives, braiding and blending resources and business process improvements. Designed and implemented cross-agency person-centered planning and thinking training and practices across No Wrong Door partners.
• Multiple systems change efforts led to jump from 48th to 8th in UCP inclusion rankings over an eight-year span.
Deputy Director, Department on Disability Services, Government of the District of Columbia, Washington, DC (August 2007 to May 2010) Designed and implemented system and organizational reforms for a newly organized Developmental Disabilities Administration.
 Increased service recipients by 52% and budget by 300% in the HCBS waiver program with no increase to the local (state) budget through local and HCBS 1915(c) waiver program and finance revisions. Reduced reliance on ICF/IID model of care by 40%.
 Designed and implemented enhanced quality assurance and improvement systems for the IDD service system to meet CMS 1915 (c) HCBS waiver assurances. Transitioned provider monitoring/certification to private vendor to increase transparency and focus on outcome measures.
 Designed and implemented a new organizational structure and led system reform efforts to bring closure to an outstanding penalty phase of a federal class action litigation (Evans v. Fenty) and proceed to a Plan for Compliance and Conclusion in 2010.

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 Designed and implemented innovated health care collaborations and initiatives with local Medical Schools and the UCEDD to increase medical provider capacity, improve skills of ID/DD service community, and enhance direct clinical services and medical professional education to improve health care services to persons with ID/DD.
Consultant, Premier Government Solutions, Mechanicsburg, PA. (January 2007 to August 2007)
 Researched and designed a 1915(c) renewal HCBS waiver application for the District of Columbia, Department on Disability Services.
Director of Strategic Leadership, Connecticut Department of Developmental Services, Hartford, CT (July 2003 to July 2007). Provided executive leadership in Medicaid operations, policy development, quality assurance, staff development and information management to drive system reform for $900M organization.
 Developed and implemented two new 1915 (c) HCBS waivers to promote self-direction and new individualized home and community-based services.
 Managed the design and implementation of a new quality assurance and improvement system for HCBS services and web-based information management system to support data driven decision-making.
 Designed a fiscal strategy to create a $40M waiting list initiative as part of effort to successfully settle pending WL/HCBS class action, and, led fee-for-service payment structure systems change.
Regional Director, Connecticut Department of Developmental Services, Bridgeport, CT (February 2002 to June 2003) Led all aspects of the regional ID/DD system providing public and private contracted services with an annual operating budget of $85M in support of more than 3,000 children and adults.
Branch Head, Operations and Fiscal Management, North Carolina State Developmental Disabilities Section, Raleigh, NC (1999 to 2002) Led fiscal and information system policy and planning, Medicaid policy, HCBS waiver management, waiting list management, and technical assistance for developmental disability services serving 22,000 children and adults with an operating budget of $850M.
Coordinator/Consultant, PIER-Consumer Family Satisfaction Team, Media, PA (1998 to1999)
Progressive Mid to Executive Non-Profit Management, Elwyn, Inc. and Barber Resources for Delaware Valley, Southeastern PA (1984 to 1998)
Principal Investigator  Level of Need and Resource Allocation: Independence Plus Initiative, October 2003September 2007, Centers for Medicare and Medicaid Services. In collaboration with the CT UCEDD, designed a level of need and risk assessment tool to establish individual budgets in self-directed HCBS services, meet the risk assessment

Case 1:18-cv-01034-BAH Document 29-2 Filed 10/26/18 Page 14 of 14
requirements for HCBS person-centered planning and support waiting list prioritization for services.  Quality Assurance and Improvement: Systems Change Grant, October 2003- September 2007, Centers for Medicare and Medicaid Services. Designed a new quality assurance and improvement system for HCBS services, wrote an RFP for the supporting information management system and managed the development phase with the IT contractor.
Teaching Experience Instructor, Probation, Parole and Community Field Services, Independent Learning Division, Penn State University, University Park, PA (1983 to 1994)
Affiliations
NASDDDS Alumni Member NASDDDS Board Member 2009 – 2016, Board President 2015-2016 APSE Member RCM of Washington, Inc., Board Member Shared Horizons, Board Member

Case 1:18-cv-01034-BAH Document 29-3 Filed 10/26/18 Page 1 of 25
Exhibit 2

Case 1:18-cv-01034-BAH Document 29-3 Filed 10/26/18 Page 2 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARKELLE SETH,

)

Plaintiff,

)

)

vs.

)

)

The DISTRICT OF COLUMBIA,

)

)

The D.C. DEPARTMENT ON DISABILITY )

SERVICES, and

)

)

ANDREW REESE, in his

)

official capacity as Director of the D.C.

)

Department on Disability Services,

)

)

Defendants.

)

)

CIVIL ACTION NO: 1:18-cv-01034

DECLARATION OF NANCY THALER

I, Nancy Thaler, declare under penalty of perjury that:

1. I have over 47 years of experience working in the field of services for people with intellectual and developmental disabilities (“IDD”). I have over 19 years’ experience working for and leading state government agencies that oversee, fund, design, and provide services for people with IDD. In this capacity, I have overseen the development of a system of community services that can support all people with IDD, including people with complex needs and behavioral needs. I also have been a direct provider and administrator of services for people with IDD both in the community and in institutions. Additionally, I have more than 10 years of experience working with states across the country on improving their IDD systems.

2. I have reviewed the Complaint and Exhibits in this case, including the Draft Description of Services prepared by Benchmark Human Services (Complaint Exhibit 2) and the Proposal for Transition, Safety & Support Services prepared by Wholistic Home and Community Based Services, Inc. (Complaint Exhibit 3, “Wholistic Proposal”) for Markelle Seth. I have also

Case 1:18-cv-01034-BAH Document 29-3 Filed 10/26/18 Page 3 of 25
reviewed Mr. Seth’s Complaint against the District of Columbia; the D.C. Department on Disability Services; assessments completed by Matthew Mason, Ph.D., BCBA-D, LBA, Stephen D. Hart, Ph. D, Manuel E. Gutierrez, Psy.D., and Katrina P. Lloyd, Psy. D.; the Competency to Stand Trial Evaluation by Samantha E. Dimisa Ph.D.; the Neuropsychological examination report completed by Robert L. Denney, Psy.D., ABPP; the April 17, 2015 planning letter to Mr. Seth from Musu Fofana, Program Manager from the D.C. Dept. on Disability Services; a set of 2017 incident reports prepared by the Dept. of Justice’s Federal Bureau of Prisons; and the August 4, 2017, letter from Laura L. Nuss, former Director of DDS regarding Mr. Seth.
3. Based on my decades of experience and expertise, it is my expert opinion that state systems, such as the Department on Disability Services (“DDS”) system in the District of Columbia, can serve people with IDD and complex behavioral needs, including problematic sexual behaviors, such as Markelle Seth, in a fashion that allows them to live successfully in the community while simultaneously ensuring community safety.
4. States across the country are already serving people with the most complex needs in the community. The District of Columbia has available services sufficient to safely serve individuals with IDD with problematic sexual behaviors in the community. Yet, the District of Columbia has inexplicably decided to rely on the federal Bureau of Prisons to serve Markelle Seth even though it has community-based services available to meet his needs and the needs of his community. The District’s decision in this case is contrary to decades of evidence-based research and successful practice in the field of disability services, to the District’s own capabilities, and to its own goals for serving people with IDD in the community.
5. I offer the following information and opinions based upon my significant expertise and experience, as described above, and included in my C.V., which is attached to this Declaration as Attachment 1. I am not being compensated for my work in this case.

Case 1:18-cv-01034-BAH Document 29-3 Filed 10/26/18 Page 4 of 25
Professional Experience
6. I was, until September 7, 2018, the Deputy Secretary of the Office of Developmental Program (“ODP”) in the Commonwealth of Pennsylvania, a position which I had held since June 2015. As the head of ODP, I was responsible for the administration of the state’s system of community services and state-operated institutions, which serve more than 55,000 children and adults with IDD. As Deputy Secretary, I was responsible for all activities related to policy development, service design and standards, budget development, financial management, quality management, and the operation of the state’s community-based service system for people with disabilities through four federally funded Medicaid Waiver programs, one Medicaid managed care program and the federally funded Intermediate Care Facilities for Person with Intellectual Disabilities (ICF/ID) program. It has long been a priority of the Commonwealth of Pennsylvania to expand community services to ensure that all people with disabilities, including people with complex behavioral needs and problematic sexual behaviors, are given the opportunity to receive the services they need to live safe and integrated lives in the community.
7. I previously held this same position – which was then called the Deputy Secretary for Pennsylvania’s Office for Mental Retardation (OMR) – from 1993 to 2003. During that time period, I oversaw a significant expansion of community-based services in Pennsylvania, coupled with the transition of over 1,800 people with IDD from institutions to the community. We closed ten state-operated institutions: three very large facilities (serving 250 to 400 people) and seven large facilities (serving 50 to 100 people). We also transitioned to the community over 300 individuals from private institutions that subsequently closed. During my tenure as Deputy Secretary of OMR, there was a more than 58% reduction in the number of people with IDD served in institutions operated or funded by Pennsylvania. During this time, Pennsylvania also began the development of a statewide network of support for individuals with IDD and problematic behavior including sexual behavior, conducted training institutes on serving such individuals in the community, and developed a manual, training curriculum, and risk assessment tools designed to guide agencies and staff to serve individuals with IDD and problematic sexual

Case 1:18-cv-01034-BAH Document 29-3 Filed 10/26/18 Page 5 of 25
behaviors in the community.1 These resources and training programs have been continually expanded with additional training programs provided on line and through training vendors. In addition, there are numerous clinical treatment centers that specialize in treatment and support to enable offenders to live successfully in the community.
8. From 1987 to 1993, prior to the appointment as the Deputy Secretary of OMR, I served in OMR as the Director of the Bureau of Community Programs. In that capacity, I administered the state’s system of community services, including residential settings, vocational training, family support services and case management services for over 55,000 children and adults.
9. Before my return to state government in Pennsylvania, I served from 2007 to 2015 as the Executive Director of the National Association of State Directors of Developmental Disabilities Services (“NASDDDS”). NASDDDS is a national organization, founded in 1964, that promotes and assists states in developing effective, person-centered service delivery systems for people with IDD. All 50 states and the District of Columbia are currently members of NASDDDS. NASDDDS provides extensive technical assistance and resources to state agencies regarding best practices in serving individuals with IDD, including best practices for serving individuals accused or convicted of sex offenses, individuals leaving incarceration, and individuals who pose safety risks. NASDDDS tracks trends in states’ delivery of IDD services and offers a forum for the development of significant state and federal policy initiatives. States often requested technical assistance from NASDDDS to help them design and implement changes in their services systems so that individuals in institutions could be offered the opportunity to receive services in the community.
10. I have extensive knowledge of the operations and capabilities of DDS. During my tenure, the NASDDDS staff and I worked with the District of Columbia on several projects. In 2007, I was asked by DDS to conduct a review of the District’s developmental disability system from an administrative point of view, to determine whether the infrastructure of DDS was
1 Safer Options Manual: A Road Map to Treatment and Community Safety: Pennsylvania’s Office of Developmental Programs (2010 ed.).

Case 1:18-cv-01034-BAH Document 29-3 Filed 10/26/18 Page 6 of 25
adequate to operate a system of services that can be expected to achieve positive outcomes for the people it serves, including health and safety, participation in community life. The report was submitted as evidence in the Evans v. Washington case. On June 30, 2010 I provided testimony for the Council of the District of Columbia on the appointment of the Director of DDS. In 2011, Chas Moseley, the NASDDDS Associate Executive Director led a study under my supervision on the expansion of service eligibility for DDS and the Developmental Disabilities Council. The result was a report “Assessment and Analysis of the Service Needs of Washington, D.C. Residents with Intellectual and Developmental Disabilities.” In 2015, the District of Columbia was enrolled in and received technical assistance from the NASDDDS federally funded Community of Practice (COP) for Supporting Families of Individuals with Intellectual and Developmental Disabilities.
11. I also have extensive expertise in designing and implementing systems to monitor the quality and safety of community-based services. When I was Deputy Secretary for OMR, I was responsible for designing and implementing a quality management system for ensuring that Pennsylvania’s community service system met the needs of service recipients and their communities, kept them healthy and safe, and facilitated their integration in the community. From 2003 to 2005, I served in the United States Department of Health and Human Services as the Director for Quality Improvement at the Centers for Medicare and Medicaid Services (“CMS”) Center for State and Medicaid Operations (“CSMO”). I was hired for this position because of my nationally-recognized work on designing and implementing a strong and effective quality management system for community services in Pennsylvania. In my position with CMS, I was responsible for the national quality-improvement strategy in the Medicaid Home and Community-Based Services (“HCBS”) Waiver program. In that capacity, I oversaw the development of a new HCBS waiver application (still in effect today) that requires states to develop and report on key components of their quality assurance systems, including: provider qualifications, individual care planning, health and safety outcomes, and performance measures. In my most recent position as Deputy Secretary of ODP, I continued to oversee Pennsylvania’s quality management system.

Case 1:18-cv-01034-BAH Document 29-3 Filed 10/26/18 Page 7 of 25
12. Finally, I have more than 16 years’ experience as a provider of services for people with IDD, including individuals with complex medical and behavioral needs. I began my career in 1971 as a direct service professional providing daily supervision and training for children with IDD. I also supervised small residential settings and served as a facility administrator for a large (70+ beds) institution for people with IDD known as an Intermediate Care Facility (“ICF”). I first began providing services to individuals transitioning from an institution to the community in 1974, following an order by a federal district court requiring Pennsylvania to develop community placements for people transitioning from one of the state’s institutions, the Pennhurst State School and Hospital. From 1974 to 1978, I served as a houseparent in a group home serving six individuals, three of whom were individuals transitioned from Pennhurst State Center. Over the next decade, including through the closure of Pennhurst in 1987, I took on supervisory and then administrative roles, overseeing the development and management of many community homes that served individuals transitioning from Pennhurst to the community.
13. During the last six years, I have provided testimony in litigation four times. In January 2018, I submitted an affidavit in Pendleton et al. v. JEVS et al. evaluating a service model known as Life Sharing, its value in supporting individuals to live in the community and the application of Department of Labor rules to the service model. In March 2016, I submitted a declaration in United States v. Georgia (N.D. Ga.) opining about the state of Georgia’s ability to serve people with IDD in community-based settings pursuant to a settlement with the United States under the Americans with Disabilities Act and Olmstead. In November 2015, I testified in court regarding behavioral interventions for people with IDD and significant behavioral needs on behalf of the Commonwealth of Massachusetts in Judge Rotenberg Center v. Massachusetts Department of Developmental Services (Bristol County Probate Court). In May 2012, I submitted a declaration in United States v. Virginia (E.D. Va.), about whether a settlement agreement between the Commonwealth of Virginia and the U.S. Department of Justice to address the state’s violations of the Americans with Disabilities Act and Olmstead met prevailing standards for state systems serving individuals with IDD in United States v. Virginia (E.D. Va).

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People with IDD, Including People with Complex Behavioral Needs and Problematic Sexual Behaviors, Can Be Served Safely in the Community
14. Over the last fifty years, there has been a steady and significant increase in demand for community-based services for persons with IDD and their families. In the 1970s and 1980s, through the development of family support services, residential services, vocational training programs, recreational programs, and educational opportunities, many people with IDD transitioned from institutions and started becoming part of the community. Admissions to state institutions declined rapidly as, for more and more families, the concept of institutionalization was simply not considered for their children with disabilities. More and more evidence mounted that community living was, in fact, possible for all people, including people who were once believed to require institutional care or incarceration.
15. The federal government established the Medicaid HCBS Waiver program in 1981, making federal funding available to states for community-based services through the Medicaid program. Currently, the Medicaid HCBS waivers generally comprise the central package of services states and the District of Columbia use to serve individuals with IDD in their own communities.
16. Due to the significant development of community-based systems over the past several decades, even individuals with very significant support needs (including individuals who are non-verbal and need complete assistance with functions such as eating and bathing), complex medical conditions (such as those requiring feeding tubes and tracheostomy care) and challenging behaviors (such as aggression, self-injurious behavior, destructive behavior, or sexually inappropriate behavior) can live safely and successfully in the community with appropriate services and supports. Each of the 711,974 individuals who were served by HCBS services in 2013 had disabilities severe enough to be eligible for an institutional level of care, but these individuals instead were successfully served in the community with supportive services.
17. As evidenced through my own experience and confirmed by national data, individuals in the community have the same complex medical conditions, the same severity of disability and the same behavioral issues as individuals in institutions. In fact, based on my more

Case 1:18-cv-01034-BAH Document 29-3 Filed 10/26/18 Page 9 of 25
than 45 years of experience transitioning individuals from institutions to the community, every person with IDD currently in an institution, including Markelle Seth, could be served safely and successfully in the community if the right services and supports are put in place. National data reveals that today there are 1.23 million people with IDD receiving services – less than 20,000 are in state institutional settings. This drop in institutional census from a high in 1967 of over 194,000 individuals to less than 20,000 today combined with the fact that 14 states have no stateoperated institutions at all, underscores the fact that everyone, regardless of their disabilities or presenting challenges, can be and are being supported in the community in the United States.2
18. The outcomes for individuals with IDD in community-based services are virtually always better than the outcomes for individuals in institutions or prisons. A recent report from the National Council on Disability surveying the research concluded that individuals in small community settings, such as in their own apartment, a host home, or a very small group home “exhibited the best-developed adaptive behavior and the least challenging behavior” compared to individuals who were institutionalized.3
19. Whereas, years ago, community-based treatment and services for individuals with IDD and problematic behavior including sexual behaviors were largely unavailable, extensive research and experience across the country have led to the development and widespread implementation of safe and successful community-based treatment and service models, and evidence-based practices, and expert providers of such services are now available in the District of Columbia and across the country.
20. Serving individuals in the community who have serious co-occurring psychiatric issues and significant behavioral needs is also common. Approximately 32.9% of individuals with IDD served by state agencies have a mental health disorder.4 Individuals who have
2 Larson, S., In-Home & Residential Supports for Persons with Intellectual or Developmental Disabilities: Status and Trends Through 2016: Residential Information Systems Project Report University of Minnesota (2108), available at https://risp.umn.edu/sites/risp.umn.edu/files/2018-08/RISP2016_WEB.pdf. 3 National Council on Disability, “Home and Community-Based Services: Creating Systems for Success at Home, at Work and in the Community” at 30 (Feb. 24, 2015), available at https://www.ncd.gov/publications/2015/02242015. 4 Including Individuals with Intellectual/Developmental Disabilities and Co-Occurring Mental Illness Challenges that Must Be Addressed in Health Care Reform; NADD Position Statement 2013

Case 1:18-cv-01034-BAH Document 29-3 Filed 10/26/18 Page 10 of 25
challenging behaviors including aggression, self-injurious behavior, property destruction, compulsive overeating, and socially or sexually inappropriate behavior can be successfully served in the community. Supervision in residential living arrangements, in the District as well as elsewhere, is typically 24 hrs. a day, seven days a week and can include intensive 1:1 or higher levels of staffing. Specific behavioral supports can be designed around the individual’s needs and specialized training and support for caregivers are all strategies that are routinely used in the community.
21. In my experience, and based on decades of research, individuals with IDD who exhibit inappropriate sexual behaviors often lack information about or opportunities for appropriate sexual expression and intimacy, lack social skills and information about appropriate sexual behavior, and misunderstand social boundaries and rules. In addition, individuals with intellectual and developmental disabilities are far more likely than non-disabled individuals to have themselves been the victim of sexual abuse. The US Dept. of Justice reports that individuals with IDD are seven times more likely to experience sexual abuse than people without disabilities.5 In many cases, the experience of sexual abuse causes trauma and confusion about what is appropriate sexual behavior. Individuals who have been victims of sexual abuse may also imitate behavior, particularly when not treated for their own trauma. In some cases, individuals with IDD engage in sexual activity with individuals who are not of an appropriate age, which is sometimes called “age discordant sex play.”
22. People with IDD who have committed sexual offenses can live successfully in the community, without presenting harm to others. They can learn appropriate sexual behavior. The keys to success are supervision, treatment and training.
23. Experience and research also confirm that an individual’s challenging behaviors may improve once the individual is provided with appropriate supports in the community. 6 The
5 Abused and Betrayed: Joseph Shapiro, National Public Radio 2018, available at https://www.npr.org/series/575502633/abused-and-betrayed. 6 Lakin, C., University of Minnesota Research and Training Center on Community Living, Policy Research Brief, Outcomes of Deinstitutionalization for People with Intellectual and/or Developmental Disabilities: Third Decennial Review of U.S. Studies, 1977-2010, at 8-9, available at https://ici.umn.edu/products/prb/212/212.pdf.

Case 1:18-cv-01034-BAH Document 29-3 Filed 10/26/18 Page 11 of 25
individual’s problem behaviors may be aggravated by the daily aspects of life in a prison or other institution: rigid routines that allow little personal control over the activities of daily life; adults mandated to eat, sleep, and move through a predetermined schedule that is created to manage groups of people; and the lack of stimulating activity, which results in boredom often stimulates rebellious and non-compliant behavior. People with IDD may have considerable difficulty understanding the purpose behind rules and the consequences for violating rules and be frightened by the lack of supportive behavior from prison personnel. People who cannot effectively communicate their dissatisfaction with words may simply act it out. Very often, institutional residents’ behavior is a result of, or a reaction to, abuse or trauma they may have experienced.
24. Community settings can be easily individualized and designed to avoid the specific triggers that cause an individual’s challenging behaviors, including those that are the result of previous experiences of abuse. In Pennsylvania, one population prioritized for community placement is people with the most significant behavioral needs, precisely because of how problematic the inflexible institutional or prison environment is for these individuals and how community settings can be more tailored to an individual’s needs and triggers.
25. For example, discipline reports indicate that Mr. Seth has been punished with solitary confinement for conflicts arising because he was not able to watch his preferred television programs. While such a strong television preference may create a problem in an institutional setting, it is unlikely to arise in a community-based program such as that proposed by Wholistic because Mr. Seth would not be in a group setting sharing a television with many other residents. In addition, to the extent conflict did arise, Wholistic’s trained staff have tools to de-escalate conflicts and teach positive social behaviors without resorting to isolation.
26. Supporting individuals with IDD who have committed criminal offenses in the community, including those who have committed sexual offenses, is common practice throughout the United States. In Pennsylvania alone, over 300 individuals with IDD and a history of having committed a sexual offense are being successfully supported by over ten different community provider agencies across the Commonwealth. The program model has two

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equally important components: community safety and the person’s growth and development through treatment and support services. Community safety is achieved through very close supervision which is typically living in a small home with no more than one or two other individuals and having staff present at all times. As early as the 1980s, a model for supporting and treating sex offenders with intellectual disabilities was developed in Lancaster County.7
Components of a Successful Program to Safely Serve Individuals with IDD and Problematic Sexual Behaviors in the Community
27. With over four decades of experience with deinstitutionalization, IDD professionals know how to successfully serve individuals with IDD and problematic sexual behaviors in the community.
28. Based on my over 45 years of experience and the success of programs in Pennsylvania, the most critical components of an effective treatment plan for an individual with IDD and problematic sexual behaviors such as those Markelle Seth has displayed are the following:
a. an experienced therapist within the treatment team b. coordination with the criminal justice system if applicable c. regular on-going staff training d. knowledge of the offending cycle e. supervision and safety plans f. identification and addressing red flag behaviors, understanding thinking errors /
cognitive distortions / triggers / targets and disclosure g. mental health assessment and services appropriate to a diagnosed mental health
disorder h. a small residential setting with 24-hour staff supervision and no more than 2
housemates who are carefully screened to assure compatibility and safety; location to vulnerable populations must be evaluated
7 Lancaster County Pennsylvania, Mentally Retarded Offenders Program, White and Wood 1986 The Prison Journal Volume: 66 issue: 1

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i. the use of person-centered planning practices to assist the person in developing interests and skills, to maintain good health and wellness, to participate in community life in a way that is safe, to maintain connections to family members, to find a way to contribute to the community, preferably through employment
j. assessment of elopement potential with plan for deterrence, supervision and management
k. access to technology for communication, supervision and safety l. crisis management plan
The District of Columbia Has the Capacity to Serve Individuals with IDD and Problematic Sexual Behaviors in its Community-Based System
29. The District of Columbia has the services available within its system to provide the necessary components of a successful service plan for a person with IDD and inappropriate sexual behaviors such as Mr. Seth.
30. The service plan proposed by Wholistic Home and Community Services is thoughtful and offers the necessary components of a successful service plan for an individual with IDD and problematic sexual behaviors such as Mr. Seth. Wholistic’s plan includes services from a psychiatrist as well as a therapist and behavior specialist, and will provide sexuality education through the Georgetown University Center for Child and Human Development, the District’s University Center for Excellence in Developmental Disabilities. Wholistic’s plan includes 1:1 staffing in a single residence with no more than one additional resident. Given Mr. Seth’s enjoyment of the company of other adults, the introduction of an additional resident is both prudent and supportable. The agency is prepared to provide 2:1 staffing in the initial months until they know Mr. Seth well and can reliably predict his behavior pattern. The daily interaction with Mr. Seth is based on a mentoring model which will provide him with respect as well as modeling for appropriate behavior. With the addition of a formal behavioral assessment and planned interventions, and a highly structured daily routine, Mr. Seth will be continually engaged in meaningful and appropriate activity through which he can grow and develop healthy behavior. Wholistic is prepared to hold certain privileges contingent on meeting behavior goals using an evidence-based approach that respects Mr. Seth’s rights. The

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Wholistic proposal offers a complete approach to supervision of Mr. Seth, assuring safety in the community and addressing crisis events such as elopements or behavioral incidents.
Conclusion
31. For the last 30 or more years, states have substantially improved their systems of services and evidence-based practices to serve individuals with IDD and problematic sexual behaviors. We now know from extensive research and national experience what it takes to effectively and safely serve such individuals in their communities. Pennsylvania and many other states serve numerous people with IDD and problematic sexual behaviors in the community through their Medicaid waiver programs. The District of Columbia has within its Medicaid waiver system all the services necessary to safely and effectively serve such individuals in the community. The service plan proposed by Wholistic Home Services includes the critical components necessary to serve such an individual including adequate supervision and training.
32. Mr. Seth is a young man who began life at three months of age removed from his family and placed in foster care. He has experienced abuse and abandonment, the absence of positive role models or adult guidance. His intellectual disability limits his ability to understand the world around him without professional guidance and supervision. Life in a correctional facility will compound his trauma, and will exacerbate his existing anxiety and related mental illness stemming from abuse, head trauma and neglect.
33. The evaluations of Dr. DiMisa (2014), Dr. Denney (2015), Dr. Lloyd, (2015, 2017) and Dr. Mason (2017) underscore Mr. Seth’s significant limitations, his history of abuse and trauma and his inability to participate in his own defense. These evaluations also describe Mr. Seth’s difficulty adjusting to the rigid and unforgiving demands of a prison environment and how infractions have been punished with extended solitary confinement and removal of privileges. This illustrates the kind of vicious cycle of triggers and punishment followed by triggers and more punishment that justifies prioritizing people like Mr. Seth for community rather than institutional placement.

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34. I agree with Dr. Hart’s (2017) conclusion that if Mr. Seth continues to be incarcerated without appropriate services, he will likely have continuing behavior problems resulting in increased levels of frustration or anger and a growing record of infractions, making it less and less likely that prison staff will perceive him as compliant and agree to his release. In short, the longer Mr. Seth remains in prison, the more harm he will experience, the more behavior problems he is likely to develop, and the more difficult it will be for him to transition to the community. However, I also agree with Dr. Mason that a carefully designed and appropriately staffed community-based program focused on Mr. Seth’s learning, behavioral and emotional needs has is highly likely to succeed in preventing his re-offending. Wholistic has developed a proposed program meeting all the criteria identified by Dr. Mason to achieve that goal.
35. Dr. Lloyd, a prison psychologist, opines that Mr. Seth would be a danger in the community. Her evaluation is based on the assumption that he would be returned to the community at large without supervision or control. However, according to the materials I have reviewed, Mr. Seth would not be unsupervised in the community and the terms of his liberty would be subject to a court order of civil commitment. Rather, the Wholistic proposal would have Wholistic determine the location of Mr. Seth’s living facility and directly control it, supervise activities that Mr. Seth engages in 24 hours a day with staff supervision for all waking and sleeping hours. This level of constant supervision has proven to be successful for hundreds of similar offenders and will keep the community safe and Mr. Seth from reoffending.
36. It should also be noted that if for any reason Mr. Seth were to abscond from his placement, or if his behavior in the community were to reach a point where a higher level of restriction or even confinement were necessary to protect him or the safety of the community, DDS has access to a continuum of care that includes a continuum of restriction. Locally, there are crisis beds and hospital units where intervention can take place. And, should longer term restriction become necessary, DDS has the ability to place Mr. Seth in an out of state residential program or institution. Nothing in the extensive materials I have reviewed suggests a need for such a restrictive setting for Mr. Seth, but these options are available if necessary.

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37. Placement into a properly located, well supervised, experienced community program, such as that proposed by Wholistic, will assure the safety of all members of the community at large and will offer Mr. Seth an opportunity to be free from abuse and trauma, and to be rehabilitated during his adult life. I declare under penalty of perjury that the foregoing is true and correct. Executed on this 26th day of September, 2018.
_________________________________ Nancy Thaler

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Case 1:18-cv-01034-BAH Document 29-3 Filed 10/26/18 Page 18 of 25

NANCY R. THALER
~3~
▪ Developing and maintaining a working relationship with consumers, families, advocacy groups, providers of service, and county governments, including involvement in planning and policy development
▪ Developing a Quality Management Program and a state-wide training program for service providers and employees in county government
▪ Representing the Commonwealth in state and federal litigation, providing testimony in trials and negotiating settlement agreements

National Association of State Directors of Developmental Disabilities Services Alexandria, Virginia
As Executive Director, Responsibilities Include: ▪ Working with the Board of Directors, ▪ Strategic planning ▪ Hiring, directing and evaluating personnel ▪ Managing the operating budget ▪ Direct the activities of the association

2007 – 2015

Liberty Healthcare Corporation

2006 – 2007

Bala Cynwyd, Pennsylvania

As Vice President of Operations, responsibilities included:

▪ Consultation to government agencies and private organizations on

Medicaid Waivers, organizational planning and operations,

program design, policies and procedures, and Quality Management

▪ Expert Witness on behalf of state agencies related to waiting list

litigation, Medicaid Waiver operations and institutional closings

▪ ICF/MR facility management

Northwestern Management Services Company

2005 – 2006

Harrisburg, Pennsylvania

As Senior Advisor for MR Services, Quality and Development,

Responsibilities included:

▪ Consultation to outside government agencies and private

organizations on Medicaid Waivers, organizational planning and

operations, program design, policies, procedures, and Quality

Management.

▪ Direct technical assistance to NHS Human Services, an affiliate

organization, on Mental Retardation/Developmental Disability

program design, policies, operating procedures and training

▪ Direct technical assistance to NHS Human Services on quality

Case 1:18-cv-01034-BAH Document 29-3 Filed 10/26/18 Page 19 of 25

NANCY R. THALER
~4~
practices in foster care, juvenile justice, and behavioral health services.

Centers for Medicare and Medicaid Services (CMS)/

2003 – 2005

Center for State and Medicaid Operations (CSMO)

Baltimore, Maryland

As Director for Quality Improvement, responsible for national quality-

improvement strategy in the Medicaid Home and Community-Based

Waiver Program serving over 750,000 individuals in 50 states and

territories. Responsibilities included:

▪ Designing:

- Requirements for the Home and Community Based Waiver

Program

- Protocol and procedures for federal oversight of state programs

and assist in their implementation

- New work flow processes for CMS review and approval of

state applications and CMS review and renewal of state

programs

▪ Directing:

- Technical assistance to states

▪ Developing:

- Policy analysis and recommendations for CMS officials

Commonwealth of Pennsylvania

1993 – 2003

Harrisburg, Pennsylvania

Department of Public Welfare / Office of Mental Retardation

Appointed by Governor Robert P. Casey 1993

Appointed by Governor Tom Ridge 1995

As Deputy Secretary for Mental Retardation, administered

Pennsylvania's system of community services and state-operated

facilities for over 80,000 children including birth – 3 Early

Intervention Services and adults with disabilities.

Responsibilities included:

▪ Managing

- a budget of $2 Billion in state and federal funds

- 4,000 employees in administrative roles and in state institutions

- organizational change involving significant expansion of the

service system and the closing of six public institutions

▪ Strategic planning, policy, and developing legislative proposals

▪ Maintaining a working relationship with Federal funding agencies,

including The Centers for Medicare and Medicaid Services, the

Federal Department of Education, state departments and agencies

▪ Maintaining a working relationship with elected officials in the

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NANCY R. THALER
~5~
Pennsylvania State General Assembly and Congress ▪ Representing the Governor and the Secretary of the Department of
Public Welfare to the public and the press ▪ Developing and maintaining a working relationship with
consumers, families, advocacy groups, providers of service, and county governments, including involvement in planning and policy development ▪ Developing a Quality Management Program and a state-wide training program for service providers and employees in county government ▪ Developing a web-based Information System with applications for client, financial, and quality management for over 10,000 users throughout the Commonwealth ▪ Representing the Commonwealth in state and federal litigation, providing testimony in trials and negotiating settlement agreements

Commonwealth of Pennsylvania

1986 – 1993

Harrisburg, Pennsylvania

Department of Public Welfare / Office of Mental Retardation

As Director of the Bureau of Community Programs, administered

Pennsylvania’s system of community services consisting of residential

options, vocational training, family support services, early

intervention, and case management services for 55,000 children and

adults. Responsibilities included:

▪ Planning, policy development, licensing, resource allocation, and

the implementation and evaluation of community services

▪ Supervising 80 professional staff in a central and four regional

offices

▪ Providing direction to 45 County Mental Health/Mental

Retardation Programs

▪ Managing a community services budget of over $500 Million

▪ Maintaining working relationships with statewide consumer,

advocacy, and service provider organizations

▪ Representing the Office of Mental Retardation in meetings with

elected officials and the public

Ken-Crest Services

1985-1987

Plymouth Meeting, Pennsylvania

As Director of Residential and Vocational Services, responsible for

hiring and supervising directors, establishing a quality assurance

program, planning and implementing new programs, and representing

Ken-Crest to the public. Responsibilities included administering:

▪ Residential programs serving children and adults with disabilities,

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NANCY R. THALER
~6~
including Intermediate Care Facilities for the Mentally Retarded and Community Living Programs in three counties in Delaware ▪ Vocational programs including two sheltered workshops and a supported employment program serving over 140 people

Ken-Crest Services

1981-1985

Plymouth Meeting, Pennsylvania

As Director of River Crest Center, supervised an Intermediate Care

Facility for the Mentally Retarded serving 77 children and adults, and a

vocational training program for 110 adults. Responsibilities included:

managing daily operations - including a residential summer camp

serving 140 children and adults - supervising staff, developing

budgets, and representing River Crest to the community

Ken-Crest Services

1978-1981

Plymouth Meeting, Pennsylvania

As Director of the Community Living Program, supervised 15 group

homes serving 50 individuals. Responsibilities included: supervising

staff, overseeing daily operations, developing budgets, and

representing Ken-Crest to the community

Ken-Crest Services

1974-1978

Philadelphia, Pennsylvania

As Program Manager/Houseparent, provided a home, with my

husband, for six children and adolescents with developmental

disabilities which included creating a home environment, caring for

daily needs, managing medical care, attending parent-teacher meetings,

and writing individual plans of instruction to encourage growth and

development

Ken-Crest Services/River Crest

1972-1974

Mont Clare, Pennsylvania

As Childcare Worker, provided daily supervision and training to a

group of teenage girls with developmental disabilities in a small

private facility

Keystone Residence

1971-1972

Scranton, Pennsylvania

As Childcare Worker, provided supervision and developmental

training to toddlers with developmental disabilities in a small private

residential facility

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NANCY R. THALER
~7~

Lackawanna Intermediate Unit

1971-1972

Scranton, Pennsylvania

As Special Education Teacher, taught general studies and music to

children and adolescents with disabilities

Related Experience/Organizations:
2014 - present National Advisory Board of the College of Direct Support, a web-based learning management system managed by Elesvier, designed for people providing long term care in community-based settings.
2012 - present Board Member Parent to Parent USA, an organization dedicated to assisting parents of children with disabilities to meet other parents with like experiences in order to establish peer support.
2006 - 2012 Board Member of the Council on Quality and Leadership, a private accreditation body that provides training and consultation to organizations serving people with developmental disabilities.
2003 Participant at Invitational Conference to establish National Goals, State of Knowledge Research Agenda for Persons with Intellectual and Developmental Disabilities sponsored by nine federal agencies and 16 national organizations
2000-2003 Board Member of the Home and Community Based Services Network, a federal Health and Human Services initiative to promote high quality consumer-directed services in integrated settings in the states
1999-2001 President of the National Association of State Directors of Developmental Disabilities Services, Inc. (NASDDDS)
1995-2001 Board Member NASDDDS
1994-1996 Member of the National Steering Committee on Managed Care for Related Older Persons and Persons with Disabilities: National Academy for State Health Policy
1985-1987 President (and Board Member) of the Pennsylvania Association of Resources for People with Mental Retardation, a provider trade association

1981-1985 President (and Member) of the Montgomery County Mental Retardation Providers Association

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NANCY R. THALER
~8~
1982-1984 Board Member Montgomery County ARC (Association for People with Mental Retardation)
1975-1978 Member of the Philadelphia Right to Education Task Force
Guest Lecturer/ Instructor:
2004 - present Lecturer: National Leadership Consortium, University of Delaware 2004 Guest Lecturer: University of Pennsylvania/Graduate School of Public Administration 2000-2004 Guest Speaker: Temple University Partners in Policy Making 2002-2003 Guest Lecturer: Penn State Human Services Program 2002 Guest Lecturer: Developmental Disabilities Lecture Series: The Boggs Center of The University of Medicine and Dentistry of New Jersey, Robert Wood Johnson Medical School 1995 Instructor: The Summer Institute at McGill University - Montreal 1994 Retreat facilitator: New England State MR/DD Directors Retreat
Public Speaking:
Keynote speeches and presentations before numerous professional organizations at the local, state, and national level including:
▪ National Associations: American Association on Mental Retardation (AAMR); The Association for Persons with Severe Handicaps (TASH) The ARC of the United States; National Home and Community Based Services Conferences;
▪ Centers for Medicare and Medicaid Services ▪ State government agencies ▪ National advocacy, provider, and consumer organization events ▪ Television interviews both local and national

Publications:

The Role of the U.S. Department of Justice in Enforcing the ADA’s Integration Mandate with Dan Berland Impact Volume 28 No. 1 Winter 2015
NASDDDS: 50 Years of History Future Directions in State Policy: The Path Ahead National Association of State Directors of Developmental Disabilities Services

2015 2014

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NANCY R. THALER
~9~

Shared Living Guide with Robin Cooper and Kara LeBeau National Association of State Directors of Developmental Disabilities Services

2011

The Role of State Developmental Disability Systems: Evolving to meet the Needs of Those We Serve Autism Advocate Second Edition 2010, Vol. 59, No. 2

2010

Constructing the New Service Paradigm: Responding to Today’s Challenges (North Carolina Medical Journal November/December Volume 70, Number 6)

2009

Health Care Reform: Long-Term Services and Supports for Citizens with Developmental Disabilities with Dan Berland And Charles Moseley National Association of State Directors of Developmental Disabilities Services

2008

Managing in an Economic Downturn National Association of State Directors of Developmental Disabilities Services

2008

The Dangers of a Literal Interpretation (TASH Connections; Volume 31, Issue Numbers 5/6, May/June)

2004

Measure for Measure: Person-Centered Quality Assurance:

2000

Balancing Individual Choice and Control with Personal Health and Safety:

A State Administrator’s Perspective

with co-author Robert Gettings

(Wingspread Conference Proceedings)

Community Services Reporter Vouchers: A Funding Mechanism Worth Exploring with co-author Marsha Blanco (National Association of State Directors of Developmental Disabilities Services; Vol. 3, No. 8)

1996

Forward to Learning to Listen: Positive Approaches And People with Difficult Behavior by Herbert Lovett (Brookes Publishing, Inc.)

1995

Impact: Institute on Community Integration: Quality Enhancement: A Commitment in Pennsylvania

1993

Case 1:18-cv-01034-BAH Document 29-3 Filed 10/26/18 Page 25 of 25

NANCY R. THALER
~10~
(University of Minnesota, Vol. 6, 2, Summer)

Awards/Recognition: Bethesda Lutheran Communities Pool of Bethesda Award

2012

New Jersey Association of Community Providers (NJACP) Public Leadership Award

2012

Outstanding Ally Award Autistic Self Advocacy Network

2011

The Autistic Self Advocacy Network (ASAN) Outstanding Ally Award

2011

Doctor of Humane Letters, Honoria Causa College Misericordia

2004

Censoni Award of Excellence in Public Services National Association of State Directors of Developmental Disabilities Services (NASDDDS)

2003

Leadership Award American Association on Mental Retardation (AAMR)

2003

Promising Practice Designation Centers for Medicare and Medicaid Services for: Pennsylvania’s Transformation of Supports for People with Mental Retardation Pennsylvania’s Independent Monitoring for Quality

2003

Professional Service Award The Arc of Allegheny County, Pennsylvania

2001

Vincent J. Fitzpatrick Leadership Award: The Arc of Montgomery County, Pennsylvania

2001

Chairman’s Award President’s Committee on Mental Retardation

1998

Award for Contribution to Non-Aversive Behavioral Intervention

1992

The National Association for People with Severe Handicaps (TASH)

Residential Service and Program Award The Arc of Montgomery County, Pennsylvania

1985

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Exhibit 3

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Robert L. Denney, PSY.D., ABPP
Board Certified in Clinical Neuropsychology Board Certified in Forensic Psychology
Neuropsychological Associates of Southwest Missouri 4350 S. National Avenue, Suite 116B Springfield, Missouri 65810 Phone: (417) 881-1810 Fax: 888-728-5456 e-mail: rdenney@forest.edu

CURRICULUM VITA

CLINICAL WORK EXPERIENCE

01/2015—Present: Independent Practice in Clinical Neuropsychology Neuropsychological Associates of Southwest Missouri 4350 S. National Avenue, Suite 116B Springfield, Missouri 65810 Phone: (417) 881-1810 Fax (417) 888-728-5456 Position: Neuropsychological evaluation and consultation

01/2012—01/2015: Independent Practice in Clinical Neuropsychology Forest Institute 2885 W. Battlefield Road Springfield, Missouri 65807 Phone: (417) 823-3477 Fax (417) 888-728-5456 Position: Neuropsychological evaluation and consultation

2/2000—12/2011:

U.S. Medical Center for Federal Prisoners P.O. Box 4000 Springfield, Missouri 65801-4000 Position: Licensed Psychologist: Forensic Psychology, Clinical Neuropsychology, Behavioral Medicine, Medical and Surgical Units

Psychological and neuropsychological evaluations and treatment on the medical and surgical units of a 1000 bed maximum security prison-hospital. This work also included providing forensic evaluation services to the U.S. District Courts for individuals experiencing significant medical/neurological disability. Taught didactic seminars on functional neuroanatomy, adult neuropathology, neuropsychological assessment, identifying organic disorders, and malingering organic mental illness to doctoral interns and post-doctoral fellows in an American Psychological Association approved clinical psychology internship program. Provided supervision of psychology interns in the area of neuropsychological evaluation and behavioral medicine. Performed crisis intervention and neuropsychological consultation as needed for mental health treatment and forensic services.

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Robert L. Denney, PSY.D., ABPP Curriculum Vita, 5/2015; page 2

12/91—2/2000:

U.S. Medical Center for Federal Prisoners Springfield, Missouri Position: Licensed Psychologist, Clinical & Forensic Neuropsychology, Mental Health Evaluation Unit

Psychological and neuropsychological evaluations and expert testimony for U.S. District Courts; taught didactic seminars on functional neuroanatomy, adult neuropathology, neuropsychological assessment, identifying organic disorders, malingering organic mental illness, and over-viewing psychoneuroimmunology to doctoral interns and post-doctoral fellows in an American Psychological Association approved clinical psychology internship program. Provided supervision of interns and post-doctoral fellows in the area of forensic evaluation with a neuropsychological emphasis. Evaluated mental status of sentenced federal prisoners upon referral from Bureau of Prisons facilities for their need of inpatient mental health treatment. Performed crisis intervention and neuropsychological consultation as needed for mental health treatment and medical/surgical patients in a 1000 maximum security prison-hospital.

07/91—07/94:

Independent contract--Missouri Rehabilitation Center Mt. Vernon, Missouri State funded head-injury rehabilitation hospital

Completed neuropsychological evaluations for the outpatient department, typically Missouri Department of Vocational Rehabilitation and insurance company referrals.

10/91—12/91:

U.S. Medical Center for Federal Prisoners Springfield, Missouri Position: Clinical Psychologist, Behavioral Medicine

In charge of psychological services to medical and surgical patients. Duties included consultation to medicine, surgery, neurology, and orthopedics; working with contract psychiatrists to provide psychiatric services; assessment and therapy with dialysis, HIV/AIDS, hypertension, and respiratory rehabilitation; supervision of a doctoral intern during the Behavioral Medicine rotation in an American Psychological Association approved clinical psychology internship.

10/90—10/91:

U.S. Medical Center for Federal Prisoners Springfield, Missouri Position: Doctoral Intern in Clinical Psychology

Rotations included mental health assessment and treatment, forensic assessment, and medical/surgical consultation and treatment. Also included was a six month, part-time rotation in Neuropsychological evaluation and treatment at the Missouri Rehabilitation Center and a six month, part-time rotation in adolescent drug and alcohol treatment at the Cox Medical CentersNorth, Adolescent Treatment Center.

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Robert L. Denney, PSY.D., ABPP Curriculum Vita, 5/2015; page 3

1989—1990:

Forest Institute of Professional Psychology 1322 S. Campbell Springfield, Missouri Position: Administrative Assistant for the Forest Family Clinic (now Robert J. Murney Clinic), a community mental health center

TEACHING APPOINTMENTS

01/10—Present:

Evangel University 1111 N. Glenstone Avenue Springfield, Missouri Position: Adjunct Professor Course: Combined graduate and undergraduate Physiological Psychology

01/96—Present:

School of Professional Psychology at Forest Institute 2885 W. Battlefield Springfield, Missouri Position: Professor by Distinction (Associate Professor 2002-2014, Adjunct Professor 1996-2002) and Director of Neuropsychology in this APA accredited clinical psychology (Psy.D.) program.

Doctoral level courses taught: — Functional Neuroanatomy & Neuropathology — Neuropsychological Assessment I: Adult
— Neuropsychological Intervention I: Adult Neuropathology & Remediation
— Neuropsychological Intervention II: Child Neuropathology & Remediation
— Advanced Neuropsychological Case Analysis & Report writing — Biopsychology

Previous doctoral level courses taught (as Director of Forensic Psychology): — Forensic Psychology: Overview of mental health case law and
forensic assessment
— Forensic Psychology: Advanced forensic case analysis and report writing

08/94—12/96:

Southwest Baptist University Springfield Extension Springfield, Missouri Position: Adjunct Professor, Department of Behavioral Sciences Undergraduate course taught: Elementary Statistics for the Behavioral Sciences

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Robert L. Denney, PSY.D., ABPP Curriculum Vita, 5/2015; page 4
EDUCATION
Forest Institute of Professional Psychology, Springfield, Missouri Doctor of Psychology (PSY.D.), Clinical Psychology, Magna Cum Laude, September 1991 Included Specialization Track in Clinical Neuropsychology Research dissertation: Hemispherical activation theory: Effects of repeated lateral orienting behavior on perceived sad affect among undergraduate dextrals.
Forest Institute of Professional Psychology, Springfield, Missouri Master of Arts (M.A.), Psychology, Magna Cum Laude, May 1989
Lutheran Bible Institute of Seattle Issaquah, Washington Bachelor of Youth Ministry (B.Ym.), June 1985
STATE LICENSURE
Licensed Psychologist in the state of Missouri: #R0316 (December 1992-currently active)
Licensed Psychologist in the state of Arizona: #1918 (December 1991-May 1993)
Certificate of Professional Qualification in Psychology (ASPPB): #4325 (July 11, 2013)
Interjurisdictional Practice Certificate (ASPPB): #4325 (July 11, 2013)
BOARD CERTIFICATION
Board Certified in Clinical Neuropsychology: American Board of Clinical Neuropsychology, an affiliate of the American Board of Professional Psychology (ABPP) (#5786, October 2003)
Board Certified in Forensic Psychology: American Board of Forensic Psychology, an affiliate of the American Board of Professional Psychology (ABPP) (#4814, March 1997)
PROFESSIONAL AFFILIATIONS
Fellow of the American Psychological Association, Division 40 – Clinical Neuropsychology (as of August 2012)
National Academy of Neuropsychology Executive Board member as Past-President (20102012)
President of the National Academy of Neuropsychology (2009)
President-Elect of the National Academy of Neuropsychology (2008)

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Fellow of the National Academy of Neuropsychology (as of June 30, 2004) National Academy of Neuropsychology Annual Conference Program Committee: Assistant Program Chair (2002), Program Co-Chair (2003), Program Chair (2004). Fellow of the American Academy of Clinical Neuropsychology (as of October 2003) Fellow of the American Academy of Forensic Psychology (as of March 1997) Member of Division 41 of the American Psychological Association: American Psychology-Law Society EDITORIAL BOARD ACTIVITY WITH PEER REVIEWED JOURNALS Member of the Editorial Board for The Clinical Neuropsychologist (01/2011 – present) Member of the Editorial Board for Applied Neuropsychologist (10/2010 – present) Member of the Editorial Board for the Archives of Clinical Neuropsychology (01/2010 – present) Member of the Editorial Board of the Journal of Forensic Neuropsychology (11/1997-7/2006) Ad hoc reviewer for the Journal of Head Trauma Rehabilitation Ad hoc reviewer for Neuropsychology Review Ad hoc reviewer for Psychological Reports: Perceptual and Motor Skills Ad hoc reviewer for Professional Psychology: Research and Practice Ad hoc reviewer for International Journal of Forensic Mental Health PUBLICATIONS Peer Reviewed Journal Publications Fazio, R. L., Sanders, James Forrest, & Denney, R. L. (2015). Comparison of Performance of
the Test of Memory Malingering and Word Memory Test in a criminal forensic sample. Archives of Clinical Neuropsychology, 30, 293-301. Armistead-Jehle, P., & Denney, R. L. (2015). The Detection of Feigned Impairment Using the WMT, MSVT, and NV-MSVT. Applied Neuropsychology: Adult, 22, 147-155. Dunham, K., Shadi, S., Sofko, C. A., Denney, R. L., & Calloway, J. (2014). Comparison of the

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Repeatable Battery for the Assessment of Neuropsychological Status Effort Scale and Effort Index in a dementia sample. Archives of Clinical Neuropsychology, 29, 633-641.
Fazio, R.L., Dunham, K., Griswold, S., & Denney, R. L. (2013). An improved measure of handedness: The Fazio Laterality Inventory. Applied Neuropsychology: Adult, 20, 197-202.
Eng, K., Rolin, S., Fazio, R.L., O’Grady, M., Biddle, C., & Denney, R. L. (2013). Finger Tapping: Why can’t we alternate hands? Applied Neuropsychology, 20, 187-191.
Hanson Misialek, L., Fazio, R. L., Denney, R. L., & Myers, W. G. (2013). Limited predictive accuracy of the Booklet Category Test in a criminal forensic sample. Applied Neuropsychology, 20, 77-82.
Fazio, R., Coenen, C., & Denney, R. L. (2012). The original instructions for the Edinburgh Handedness Inventory are misunderstood by a majority of participants. Laterality: Asymmetries of Body, Brain and Cognition, 17(1), 70-77.
Fazio, R. L., Pietz, C. P., & Denney, R. L. (2012). An estimate of the prevalence of autismspectrum disorders in an incarcerated population. Open Access Journal of Forensic Psychology, 69-80. http://www.forensicpsychologyunbound.ws/ -- 2012: 69-80.
Dionysus, K. E., Denney, R. L., & Halfaker, D. A. (2011). Detecting negative response bias with the Fake Bad Scale, Response Bias Scale, and Henry-Heilbronner Index of the Minnesota Multiphasic personality Inventory-2. Archives of Clinical Neuropsychology, 26, 81-88.
Heilbronner, R. L., Sweet, J. J., Morgan, J. E., Larrabee, G. J., Millis, S., & Conference Participants (Denney, R. L.) (2009). American Academy of Clinical Neuropsychology Consensus Conference Statement on the neuropsychological assessment of effort, response bias, and malingering. The Clinical Neuropsychologist, 23, 1093-1129.
D’Amato, C. P., & Denney, R. L. (2008). Diagnostic utility of the Rarely Missed Index (RMI) in detecting response bias in an adult male incarcerated Setting. Archives of Clinical Neuropsychology, 23, 553-561.
Downing, S. K., Denney, R. L., Spray, B. J., Houston, C. M., & Halfaker, D. A. (2008). Examining the relationship between the Reconstructed Scales and the Fake Bad Scale of the MMPI-2. The Clinical Neuropsychologist, 22, 680-688.
Ardolf, B. R., Denney, R. L., & Houston, C. M. (2007). Base rates of negative response bias and Malingered Neurocognitive Dysfunction among criminal defendants referred for neuropsychological evaluation. The Clinical Neuropsychologist, 21, 899-916.
Gassen, M., Pietz, C. A., Spray, B. J., & Denney, R. L. (2007). Accuracy of Megargee's Criminal Offender Infrequency (Fc) Scale in Detecting Malingering Among Forensic

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Examinees. Criminal Justice and Behavior, 34, 493-504.
Neller, D. J., Denney, R. L., Pietz, C. A., & Thomlinson, R. P. (2006). The relationship between trauma and violence in a jail inmate sample. The Journal of Interpersonal Violence, 21, 1234-1241.
Neller, D. J., Denney, R. L., Pietz, C. A., & Thomlinson, R. P. (2005). Testing the trauma model of violence. Journal of Family Violence, 20(3), 151-159.
Denney, R. L. (2003). Introduction. In R. L. Denney (Ed.), Special Issue on Criminal Forensic Neuropsychology. Journal of Forensic Neuropsychology, 3(4),1-3.
Sullivan, J. P., & Denney, R. L. (2003). Constitutional and Judicial Foundations in Criminal Forensic Neuropsychology. Journal of Forensic Neuropsychology, 3(4), 13-44.
Denney, R. L. (Ed.). (2003), Special Issue on Criminal Forensic Neuropsychology. Journal of Forensic Neuropsychology, 3(4).
Hom, J., & Denney, R. L. (Eds.). (2002). Detection of response bias in forensic neuropsychology: Part II [Special Issue]. Journal of Forensic Neuropsychology, 3(1/2).
Hom, J., & Denney, R. L. (Eds.) (2002). Detection of response bias in forensic neuropsychology: Part I [Special Issue]. Journal of Forensic Neuropsychology, 2(3/4).
Tucillo, J. A., DeFilippis, N. A., Denney, R. L., & Dsurney, J. (2002). Licensure requirements for interjurisdictional forensic evaluation. Professional Psychology: Research and Practice, 33, 377-383.
Denney, R. L., & Wynkoop, T. F. (2000). Clinical neuropsychology in a criminal forensic setting. Journal of Head Trauma Rehabilitation, 15(2), 804-828.
Wynkoop, T. F., & Denney, R. L. (1999). Exaggeration of neuropsychological deficit in competency to stand trial. Journal of Forensic Neuropsychology, 1(2), 29-53.
Denney, R. L. (1999). A brief Symptom Validity Testing procedure for Logical Memory of the Wechsler Memory Scale-Revised which can demonstrate verbal memory in the face of claimed disability. Journal of Forensic Neuropsychology, 1(1), 5-26.
Frederick, R. I. & Denney, R. L. (1998). Minding your “ps and qs” when using forced-choice recognition tests. The Clinical Neuropsychologist, 12(2), 193-205.
Denney, R. L. (1996). Symptom Validity Testing of remote memory in a criminal forensic setting. Archives of Clinical Neuropsychology, 11(7), 589-603.

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Books and Book Chapters
Denney, R. L., Fazio, R. L., & Greiffenstein, M. F. (in press). Clinical neuropsychology in criminal forensics. In J. E. Morgan & J. H. Ricker (Eds.) (2nd ed), Textbook of clinical neuropsychology. NY: Taylor & Francis.
Fazio, R. & Denney, R. L. (in press). Assessment of the Neurophysiological and Neuropsychological Bases for Violence. In C. A. Pietz & C. A. Mattson (Eds.) Offenders: Psychological constructs and evaluations. NY: Oxford University Press.
Denney, R. L. (2012). Criminal forensic neuropsychology and assessment of competency. In G. J. Larrabee (Ed.), Forensic Neuropsychology: A Scientific Approach (2nd ed.) (pp 438472). NY: Oxford University Press.
Denney, R. L. (2012). Criminal responsibility and other criminal forensic issues. In G. J. Larrabee (Ed.), Forensic Neuropsychology: A Scientific Approach (2nd ed.) (pp 473-500). NY: Oxford University Press.
DeJesus-Zayas, S. R., Buigas, R. & Denney, R. L. (2011). Evaluation of culturally diverse populations (pp. 248-265). In D. Faust (Ed.) Coping with Psychiatric and Psychological Testimony (6th ed.). NY: Oxford University Press.
Magaletta, P. R., Diamond, P. M., McLearen, A. M., & Denney, R. L. (2010). Traumatic brain injuries in correctional populations: Understanding and responding to an important need. In Managing Specific Populations in Jails and Prisons. Kingston, NJ: Civic Research Institute.
Denney, R. L. (2008). Evaluating Competency to Stand Trial and Sanity in the Face of Marked Amnesia and Claimed Psychosis. In J. E. Morgan & J. J. Sweet (Eds.). Neuropsychology of Malingering Casebook. New York: Taylor & Francis.
Denney, R. L., & Sullivan, J. P. (2008) (Eds.). Clinical Neuropsychology in the Criminal Forensic Setting. New York: Guilford Press.
Denney, R. L. (2008). Negative response bias and malingering during neuropsychological assessment in criminal forensic settings. In R. L. Denney & J. P. Sullivan (Eds.). Clinical Neuropsychology in the Criminal Forensic Setting (pp. 91-134). New York: Guilford Press.
Denney, R. L., & Sullivan, J. P. (2008). Constitutional, judicial, and practice foundations of criminal forensic neuropsychology. In R. L. Denney & J. P. Sullivan (Eds.). Clinical Neuropsychology in the Criminal Forensic Setting (pp. 1-29). New York: Guilford Press.
Marcopulos, B. A., Morgan, J. E., & Denney, R. L. (2008). Neuropsychological evaluation of competency to proceed. In R. L. Denney & J. P. Sullivan (Eds.). Clinical Neuropsychology in the Criminal Forensic Setting (pp. 176-203). New York: Guilford Press.

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Yates, K. F., & Denney, R. L. (2008). Neuropsychology in the assessment of mental state at the time of the offense. In R. L. Denney & J. P. Sullivan (Eds.). Clinical Neuropsychology in the Criminal Forensic Setting (pp. 204-237). New York: Guilford Press.
Sullivan, J. P., & Denney, R. L. (2008). A final word on authentic professional competence in criminal forensic neuropsychology. In R. L. Denney & J. P. Sullivan (Eds.). Clinical Neuropsychology in the Criminal Forensic Setting (391-400). New York: Guilford Press.
Denney, R. L. (2007). Assessment of malingering in criminal forensic neuropsychological settings. In K. B. Boone (Ed.), Assessment of Feigned Cognitive Impairment: A Neuropsychological Perspective (428-452). New York: Guilford Press.
Boyd, A. R., McLearen, A. M., Meyer, R. G., & Denney, R. L. (2007). Detection of Deception. Sarasota, FL: Professional Resource Press.
Bush, S. S., Connell, M. A., & Denney, R. L. (2006). Ethical Issues in Forensic Psychology: Key Concepts and Resources. Washington, DC: American Psychological Association.
Denney, R. L. (2005). Criminal forensic neuropsychology and assessment of competency. In G. J. Larrabee (Ed.), Forensic Neuropsychology: A Scientific Approach. (pp. 378-424). NY: Oxford.
Denney, R. L. (2005). Criminal responsibility and other criminal forensic issues. In G. J. Larrabee (Ed.), Forensic Neuropsychology: A Scientific Approach. (pp. 425-465). NY: Oxford.
Denney, R. L. (2005). Ethical challenges in forensic neuropsychology, section 1. In S. Bush (ed.), A Casebook of Ethical Challenges in Neuropsychology (pp. 15-22). Philadelphia, PA: Psychology Press/Taylor & Francis.
Denney, R. L. (2005). Gambling, Money Laundering, Competency, Sanity, Neuropathology, and Intrigue. In R. L. Heilbronner (Ed.) Forensic Neuropsychology Casebook (pp. 305-325). NY: Guilford.
McLearen, A. M., Pietz, C. A., & Denney, R. L. (2004). Evaluation of psychological damages. In W. O’Donohue & E. Levensky (Eds.), Forensic Psychology (pp. 267-299). NY: Academic.
Hom, J., & Denney, R. L. (Eds.) (2002). Detection of Response Bias in Forensic Neuropsychology. West Hazleton, PA: Haworth Press.
Published Abstracts
Rolin, S. N., Biddle, C., Fazio, R., & Denney, R. L. (2013). Comparison between MMPI-2 and

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MMPI-2-RF validity scale classification in a criminal population. The Clinical Neuropsychologist, 27, 597-598.
Dunham, K., Rolin, S., Sibson, J., Ogbeide, S., Glover, M., & Denney, R. L. (2012). Utility of the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS) in differentiating between types of dementia. Archives of Clinical Neuropsychology, 27, 587.
Deneen, T., Denney, R. L., Fisher, J., & Spray, B. (2012). The effectiveness of the MMPI-2-RF validity and cognitive/somatic scales in predicting symptom validity failure in TBI litigant tested for effort. Archives of Clinical Neuropsychology, 27, 642-643.
Dunham, K., Shadi, S., Sofko, C., & Denney, R. L. (2012). Preliminary look: Comparison of the Effort Index and Effort Scale on the RBANS. Archives of Clinical Neuropsychology, 27, 587.
Dunham, K., Warchol, A., Hunter, B., Shadi, S., Denney, R. L., & Nichols, C. (2012). Comparison of the Reliable Digit Span and Age-Corrected Scaled Score on the WISC-IV as a measure of effort in children. Archives of Clinical Neuropsychology, 27, 587-588.
Rolin, S., Higgins, K, & Denney, R. L. (2012). Utility of the Response Bias Scale (RBS) of the MMPI-2-RF in relation to structured malingering criteria in a criminal population. Archives of Clinical Neuropsychology, 27, 643.
Biddle, C., Fazio, R., Willett, K., Rolin, S., O’Grady, M., & Denney, R. (2011). Motor dysfunction profiles in a simulated chronic pain sample. Archives of Clinical Neuropsychology, 26, 559.
England, D., Denney, R., & Meyers, J. (2011). Differential diagnosis of TBI and PTSD using the Meyers Neuropsychological Battery. Archives of Clinical Neuropsychology, 26, 514.
Hanson Misialek, L., Fazio, R., Denney, R., & Myers, W. (2011). Efficacy of embedded validity indices of the Booklet Category Test in a criminal forensic population. Archives of Clinical Neuropsychology, 26, 562.
Fazio, R., Griswold, S., & Denney, R. L. (2010, October). Initial psychometric properties of the Fazio Laterality Inventory [Abstract]. Archives of Clinical Neuropsychology, 25, 529.
Sanders, F., Bailey, C. M., Denney, R. L. & Marcopulos, B. A. (2009). Performance of the Test of Memory Malingering (TOMM) and the Word Memory Test (WMT) in criminal medical and psychiatric settings [Abstract]. Archives of Clinical Neuropsychology, 24, 537.
Barber, A. P., Denney, R. L., & Deal, W. P. (2009). Validity of effort testing among individuals with mental retardation [Abstract]. Archives of Clinical Neuropsychology, 24, 537.
Triebel, K. L., Denney, R. L., & Halfaker, D. (2009). The utility of a short-Fake Bad Scale for detecting malingered neurocognitive dysfunction on the 370-item MMPI-2 [Abstract].

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Archives of Clinical Neuropsychology, 24, 536.
Umaki, T. M. & Denney, R. L. (2009). Neurocognitive deficits associated with the hepatitis C virus among incarcerated men [Abstract]. Archives of Clinical Neuropsychology, 24, 511.
Pipkin, S., Denney, R. L., & Hartman, D. (2008). Detecting exaggeration in neurocognitive functioning: Predicting Word Memory Test classification with the Structured Inventory of Malingered Symptomatology [Abstract]. Archives of Clinical Neuropsychology, 23, 748.
Denney, R. L., & Tyner, E. (2008). Effectiveness of Reliable Digit Span at differentiating definite malingering neurocognitive dysfunction from good effort mild and moderate TBI among adult male criminals [Abstract]. The Clinical Neuropsychologist, 22, 397.
Rosenstein, L. D., & Denney, R. L. (2007). Initial development of the Feigning Low Intelligence Test (FLIT) [Abstract]. The Clinical Neuropsychologist, 21, 403.
Sanders, J. F., & Denney, R. L. (2007). A comparison of the Test of Memory Malingering and the Word Memory Test in a criminal forensic population [Abstract]. The Clinical Neuropsychologist, 21, 403.
Ardolf, B., Denney, R. L., & Houston, C. M. (2005). Base rates of malingered neurocognitive dysfunction among criminals [Abstract]. Archives of Clinical Neuropsychology, 20, 886.
Downing, S. K., Denney, R. L., Tempelmeyer, T., Halfaker, D. A., & Houston, C. M. (2005). Examining the relationship between the Reconstructed Scales and the Fake Bad Scale in a personal injury population [Abstract]. Archives of Clinical Neuropsychology, 20, 885.
Triebel, K. L., & Denney, R. L. (2005). Reliability of the Lees-Haley Take Bad Scale in a population of personal injury litigants [Abstract]. Archives of Clinical Neuropsychology, 20, 886.
Fairman, J. C., Denney, R. L., Halfaker, D. A. (2003). Evaluation of negative response bias on the WAIS-III [Abstract]. Archives of Clinical Neuropsychology, 18, 782.
Van Gaasbeek, J. K., Denney, R. L., & Harmon, J. (2001). Another look at an MMPI-2 neurocorrective factor in forensic cases: Utility of the Fake Bad Scale [Abstract]. Archives of Clinical Neuropsychology, 16, 813.
Cunic, T. L., & Denney, R. L. (2001). Use of videotaped administrations as a method of establishing inter-rater reliability for the NCSE [Abstract]. Archives of Clinical Neuropsychology, 16, 819.
Denney, R. L., Feaster, T., Hughes, M., Estees, S., McKay, D., Mockenhaupt, S., Rooney, K., & Whisman, K. (1999). Recognition items on the WMS-III as a forced-choice test of negative response bias [Abstract]. Archives of Clinical Neuropsychology, 14(1), 97.

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Denney, R. L. (1997). A forced-choice recognition test for detecting negative response bias on the Wechsler Memory Scale-Revised [Abstract]. Archives of Clinical Neuropsychology, 12(4), 308.
Denney, R. L., & Scully, B. M. (1996). Exaggeration of neuropsychological impairment in Pick's Disease: A case study [Abstract]. Archives of Clinical Neuropsychology, 11(5), 382.
Denney, R. L., & Wynkoop, T. F. (1995). Exaggeration of neuropsychological deficits in pretrial evaluation: A case presentation [Abstract]. The Clinical Neuropsychologist, 9(3), 277.
Book and Test Reviews
Denney, R. L. (2011). Book Review: Forgiveness, Reconciliation, and Restoration: Multidisciplinary Studies from a Pentecostal Perspective by M. W. Mittelstadt & G. W. Sutton (Eds.) (2010). Pickwick Publications; Eugene, OR. Encounter: Journal for Pentecostal Ministry, Summer, Vol. 8.
Wynkoop, T. F., & Denney, R. L. (2005). Test Review: Green’s Word Memory Test (WMT) for Windows. Journal of Forensic Neuropsychology, 4, 101-105.
Denney, R. L. & Neller, D.J. (2002). Book Review: How to Identify Suicidal People: A Systematic Approach to Risk Assessment, by Thomas W. White. The Journal of Psychiatry & Law, 30(4) 605-606.
Denney, R. L. (2001). Book Review: The Evaluation and Treatment of Mild Traumatic Brain Injury, edited by Nils Varney and Richard Roberts. The Journal of Psychiatry & Law, 29, 195-198.
Wynkoop, T. F., & Denney, R. L. (2001). Test Reviews: Computerized Assessment of Response Bias (CARB), Word Memory Test (WMT), and Memory Complaints Inventory (MCI). Journal of Forensic Neuropsychology, 2(1), 71-77.
Denney, R. L. (1999). Test Review: Victoria Symptom Validity Test, Version 1.0. Journal of Forensic Neuropsychology, 1(1), 89-95.
OTHER PUBLICATIONS
Denney, R. L. (2010). Authentic Professional Competence in Clinical Neuropsychology (2009 NAN Presidential Address). Archives of Clinical Neuropsychology, 25(5), 457-467.
Hearne, B. M. (2005). Up Front–Competency and brain injury: An interview with Robert Denney, Psy.D. Special Issue: Is that Legal? Brain Injury and the Law. Premier Outlook: A periodical about brain injury, 5(2), 11-19.

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Denney, R. L. (2003). Competency to Stand Trial. Article published in APA Division 40, Division of Clinical Neuropsychology, Newsletter 40, Summer/Fall,
Barber, C., Denney, R. L., Duncan, S., & Landis, R. (1996). How to conduct a thorough and professional forensic evaluation: Training manual of the Federal Bureau of Prisons. This text/manual was developed for the training of Bureau of Prison's Psychologists to perform mental health evaluations for U.S. District Courts. Published by the Bureau of Prisons, Psychology Services, Central Office, Washington, DC.
PRESENTATIONS
Denney, R. L. (2014, March). The Mysterious and Often Perplexing Nature of Mild TBI and Persistent Post-Concussion Syndrome. Workshop presented on behalf of PsyBar, LLC, for the Custom Disability Solutions Group Reinsurance, South Portland, ME.
Denney, R. L. (2013, November). Clinical Neuropsychology for the Forensic Psychologist. Day long (7 CE Credit) workshop presented at Contemporary Issues in Forensic Psychology, Workshop Series of the American Academy of Forensic Psychology, Fort Lauderdale, Florida.
Denney, R. L. (2013, August). Validity and Deception in Neuropsychological Evaluations. Workshop presented on behalf of PsyBar, LLC, for The Standard Insurance Company, Portland, OR.
Greiffenstein, M. F. & Denney, R. L. (2013, June). Forensic Neuropsychology: From Foundational Knowledge to Advanced Practice. Three hour (3 CE Credit) workshop presented at the American Academy of Clinical Neuropsychology 11th Annual Conference, Chicago, Illinois.
Denney, R. L. (2013, April). The Mysterious and Often Perplexing Nature of Mild TBI and Persistent Post-Concussion Syndrome. Workshop presented on behalf of PsyBar, LLC, for the Prudential Insurance Company of America, Newark, NJ.
Denney, R. L. (2012, November). Moderator. Forensic Grand Rounds. Workshop presented at the 32nd Annual National Academy of Neuropsychology Conference, Nashville, TN.
Denney, R. L. (2012, June). Validity and Deception in Neuropsychological Evaluations. Workshop presented on behalf of PsyBar, LLC, for the Prudential Insurance Company of America, Newark, NJ.
Denney, R. L. (2012, February). Foundations of Ethical Neuropsychological Assessment for the Criminal Courts. Three hour (3 CE Credit) workshop presented at the 40th Annual Meeting of the International Neuropsychological Society, Montréal, Québec, Canada.
Denney, R. L. (2011, November). Moderator. Forensic Grand Rounds. Workshop presented at

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the 31st Annual National Academy of Neuropsychology Conference, Marco Island, Florida.
Denney, R. L. (2010, October). Moderator. Forensic Grand Rounds. Workshop presented at the 30th Annual National Academy of Neuropsychology Conference, Vancouver, British Columbia, Canada.
Denney, R. L. (2010, May). Clinical Neuropsychology for the Forensic Psychologist. Day long (7 CE Credit) workshop presented at Contemporary Issues in Forensic Psychology, Workshop Series of the American Academy of Forensic Psychology, Kansas City, Missouri.
Denney, R. L. (2009, November). NAN Presidential Address: Authentic Professional Competence in Clinical Neuropsychology. Presidential Address given at the 29th Annual Conference of the National Academy of Neuropsychology, New Orleans, Louisiana.
Denney, R. L. (2009, November). Moderator. Forensic Grand Rounds. Workshop presented at the 29th Annual National Academy of Neuropsychology Conference, New Orleans, Louisiana.
Denney, R. L. (2008, November). Foundations of Neuropsychological Assessment for the Criminal Courts. Three hour (3 CE Credit) workshop presented at the 28th Annual National Academy of Neuropsychology Conference, New York, New York.
Denney, R. L. (2008, November). Moderator. Forensic Grand Rounds. Workshop presented at the 28th Annual National Academy of Neuropsychology Conference, New York, New York.
Denney, R. L. (2008, June). Foundations of Neuropsychological Assessment for the Criminal Courts. Three hour (3 CE Credit) workshop presented at the American Academy of Clinical Neuropsychology 6th Annual Conference and Workshops, Boston, Massachusetts.
Denney, R. L. (2008, January). Clinical Neuropsychology for the Forensic Psychologist. Day long (7 CE Credit) workshop presented at Contemporary Issues in Forensic Psychology, Workshop Series of the American Academy of Forensic Psychology, San Antonio, Texas.
Denney, R. L. (2007, November). Moderator. Forensic Grand Rounds. Workshop presented at the 27th Annual National Academy of Neuropsychology Conference, Scottsdale, Arizona.
Denney, R. L. (2007, November). Forensic Pre-Conference 2: Neuropsychological assessment in the criminal forensic arena: Competencies, sanity, & Ethics. 2.5-hour (2.5 CE & CLE Credit) workshop presented at the 27th Annual National Academy of Neuropsychology Conference, Scottsdale, Arizona.
Denney, R. L. (2007, October). Malingering detection and ethics in forensic psychological assessment. 4.5 CE credit hour invited presentation at the Arkansas Psychological Association annual conference. Little Rock, Arkansas.
Denney, R. L. (2006, October). Moderator. Forensic Grand Rounds. Workshop presented at

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the 26th Annual National Academy of Neuropsychology Conference, San Antonio, Texas.
Denney, R. L. (2006, June). Matters of import in forensic neuropsychology: Can a panel of experts agree? - Moderator: Jerry Sweet, Ph.D. Panel: Larry Binder, Ph.D., Robert L. Denney, Psy.D., Manfred Greiffenstein, Ph.D., Robert L. Heilbronner, Ph.D. 4th Annual conference of the American Academy of Clinical Neuropsychology (AACN), Philadelphia, PA.
Denney, R. L. (2005, October). Moderator. Forensic Grand Rounds. Workshop presented at the 25th Annual National Academy of Neuropsychology Conference, Tampa, Florida.
Denney, R. L., & Sullivan, J. P. (2005, June). Constitutional/Judicial foundations for criminal forensic neuropsychology: Competency to confess and stand trial. Three hour (3 CE Credit) workshop presented at the 2005 American Academy of Clinical Neuropsychology workshops and annual meeting, Minneapolis, Minnesota.
Sullivan, J. P., & Denney, R. L. (2005, June). Rules of engagement – Considerations for the clinical neuropsychologist working in forensic areas. Three hour (3 CE Credit) workshop presented at the 2005 American Academy of Clinical Neuropsychology workshops and annual meeting, Minneapolis, Minnesota.
Denney, R. L. (2005, February). Criminal Forensic Neuropsychology: Ethical, Legal, & Practical Issues. Day long (7 CE Credit) workshop presented at Contemporary Issues in Forensic Psychology, Workshop Series of the American Academy of Forensic Psychology, Dallas, Texas.
Denney, R. L. & Sullivan, J. P. (2004, November). Constitutional and Judicial Foundations for Criminal Forensic Neuropsychology: Competency to Stand Trial and Confess. 3-hour (3CE Credit) workshop presented at the 24th Annual National Academy of Neuropsychology Conference, Seattle, Washington.
Denney, R. L. (2004, November). Moderator. Forensic Grand Rounds. Workshop presented at the 24th Annual National Academy of Neuropsychology Conference, Seattle, Washington.
Denney, R. L. (2002, October). Neuropsychological Assessment in the Criminal Forensic Arena: Competencies, Sanity, and Ethics. 3-hour (3CE Credit) Workshop presented at the 22nd Annual National Academy of Neuropsychology Conference, Miami Beach, Florida.
Denney, R. L. (2002, May). Forensic Issues: Assessment and Ethics. Pre-conference workshop provided at the 12th Annual Mental Health in Corrections Symposium, Kansas City, Missouri.
Denney, R. L. (2002, April). Forensic neuropsychology in criminal cases: Competency to stand trial and criminal responsibility. Invited address presented at the UCSD School of Medicine’s 12th Annual Nelson Butters’ West Coast Neuropsychology Conference: Interface

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between neuropsychology and law, La Jolla, California.
Denney, R. L. (2001, June). Symptom exaggeration and malingering: Theory and detection strategies. Presentation given during 11th Annual Mental Health in Corrections Symposium, Kansas City, Missouri.
Denney, R. L. (2001, June). Recent trends in scientific admissibility of mental health testimony. Presentation given during 11th Annual Mental Health in Corrections Symposium, Kansas City, Missouri.
Denney, R. L. (1998, October). Assessing Civil Competencies. Presentation given to psychology and rehabilitation staff at Cox Medical Centers-South, Springfield, Missouri.
Denney, R. L. (1998, August). Assessing Feigned Cognitive Impairment. Presentation given to Bureau of Prisons forensic psychologists, Washington, D.C.
Denney, R. L. Junk Science and Admissibility of Neuropsychological Evidence. Presentation given during Neurolitigation: Analyzing Brain Injury Claims. A program of Continuing Legal Education: The State Bars of New Mexico and Arizona, Albuquerque, New Mexico. July 9, 1999. The University of Denver School of Law, Denver, CO. June 25, 1999. The George Mason University School of Law, Arlington, VA. June 10, 1999. The State Bars of Nevada and Oregon, Caesar’s Palace, Las Vegas, NV. May 22, 1999. The State Bar of Kansas, University of Kansas, Kansas City, KS. April 24, 1999. The State Bar of New Mexico, Albuquerque, New Mexico. August 8, 1998.
Denney, R. L. Clinical Neuroanatomy and Neuropathology. Presentation given during Neurolitigation: Analyzing Brain Injury Claims. A program of Continuing Legal Education: The State Bars of New Mexico and Arizona, Albuquerque, New Mexico. July 9, 1999. The University of Denver School of Law, Denver, CO. June 25, 1999. The George Mason University School of Law, Arlington, VA. June 10, 1999. The State Bars of Nevada and Oregon, Caesar’s Palace, Las Vegas, NV. May 22, 1999. The State Bar of Kansas, University of Kansas, Kansas City, KS. April 24, 1999. The State Bar of New Mexico, Albuquerque, New Mexico. August 8, 1998.
Denney, R. L. Neuroimaging: Radiological imaging techniques for the brain. Presentation given during Neurolitigation: Analyzing Brain Injury Claims. A program of Continuing Legal Education: The State Bars of New Mexico and Arizona, Albuquerque, New Mexico. July 9, 1999. The University of Denver School of Law, Denver, CO. June 25, 1999. The George Mason University School of Law, Arlington, VA. June 10, 1999.

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The State Bars of Nevada and Oregon, Caesar’s Palace, Las Vegas, NV. May 22, 1999.
Denney, R. L. (1998, August). The Inadequate Evaluation. Presentation given during Neurolitigation: Analyzing Brain Injury Claims. A program of Continuing Legal Education of The State Bar of New Mexico, Albuquerque, New Mexico. August 8, 1998.
Denney, R. L. (1997, November). Critical Issues in Criminal Forensic Neuropsychology: Competency to Stand Trial and Sanity Evaluations. Two hour presentation at the 17th Annual Convention of the National Academy of Neuropsychology, Las Vegas, Nevada.
Reuterfors, D., Mrad, D., & Denney, R. L. (1997, February). The impact of the Tarasoff decision and the Missouri Bradley v. Ray case on Missouri mental health practitioners' duty to warn and protect. Presentation given to Ozark Area Psychological Association, Springfield, Missouri.
Denney, R. L. (1996, May). Identifying feigned amnesia by using the Symptom Validity Testing Paradigm. Symposium conducted at the Sixth Annual Mental Health in Corrections Symposium, Kansas City, Missouri.
POSTER PRESENTATIONS
Biddle, C., Fazio, R. L., & Denney, R. L. (2014, February). The effect of hand restraints on forensic neuropsychological evaluations. Poster presented at the 42nd Annual Meeting of the International Neuropsychological Society, Seattle, Washington.
Dunham, K. J., & Denney, R. L. (2014, February). Introduction to a new profile analysis on the Medical Symptom Validity Test. Poster presented at the 42nd Annual Meeting of the International Neuropsychological Society, Seattle, Washington.
Dunham, K. J., Rolin, S. N., Sibson, J. M., Ogbeide, S. A., & Denney, R. L. (2014, February). Specificity for cognitively impaired individuals on the RBANS Effort Scale and Effort Index. Poster presented at the 42nd Annual Meeting of the International Neuropsychological Society, Seattle, Washington.
Sofko, S., Dunham, K. J., Shadi, S., Denney, R. L., & Fazio, R. L. (2014, February). A rarely missed items index for the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS). Poster presented at the 42nd Annual Meeting of the International Neuropsychological Society, Seattle, Washington.
Dunham, K., Rolin, S., Sibson, J., Ogbeide, S., Glover, M., & Denney, R. L. (2012, November). Utility of the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS) in differentiating between types of dementia. Poster presented at the 32nd Annual Conference of the National Academy of Neuropsychology, Nashville, Tennessee.

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Deneen, T., Denney, R. L., Fisher, J., & Spray, B. (2012, November). The effectiveness of the MMPI-2-RF validity and cognitive/somatic scales in predicting symptom validity failure in TBI litigant tested for effort. Poster presented at the 32nd Annual Conference of the National Academy of Neuropsychology, Nashville, Tennessee.
Dunham, K., Shadi, S., Sofko, C., & Denney, R. L. (2012, November). Preliminary look: Comparison of the Effort Index and Effort Scale on the RBANS. Poster presented at the 32nd Annual Conference of the National Academy of Neuropsychology, Nashville, Tennessee.
Dunham, K., Warchol, A., Hunter, B., Shadi, S., Denney, R. L., & Nichols, C. (2012, November). Comparison of the Reliable Digit Span and Age-Corrected Scaled Score on the WISC-IV as a measure of effort in children. Poster presented at the 32nd Annual Conference of the National Academy of Neuropsychology, Nashville, Tennessee.
Rolin, S., Higgins, K, & Denney, R. L. (2012, November). Utility of the Response Bias Scale (RBS) of the MMPI-2-RF in relation to structured malingering criteria in a criminal population. Poster presented at the 32nd Annual Conference of the National Academy of Neuropsychology, Nashville, Tennessee.
Dunham, K., Warchol, A., & Denney, R. L. (2012, March). Can We Trust Kids? A Review of Effort Measures in Pediatric Populations. Poster presented at the 2012 conference of the Missouri Psychological Association, St. Louis, Missouri.
Dunham, K., Shadi, S., & Denney, R. L. (2012, March). Review of the Use of Symptom Validity Measures for Neurocognitive Dementias. Poster presented at the 2012 conference of the Missouri Psychological Association, St. Louis, Missouri.
Biddle, C., Fazio, R., Willett, K., Rolin, S., O’Grady, M., & Denney, R. (2011, November). Motor dysfunction profiles in a simulated chronic pain sample. Poster presented at the 31st Annual Conference of the National Academy of Neuropsychology, Marco Island, Florida.
England, D., Denney, R., & Meyers, J. (2011, November). Differential diagnosis of TBI and PTSD using the Meyers Neuropsychological Battery. Poster presented at the 31st Annual Conference of the National Academy of Neuropsychology, Marco Island, Florida.
Hanson Misialek, L., Fazio, R., Denney, R., & Myers, W. (2011, November). Efficacy of embedded validity indices of the Booklet Category Test in a criminal forensic population. Poster presented at the 31st Annual Conference of the National Academy of Neuropsychology, Marco Island, Florida.
Mack, J., Sparks, A., Dunham, K., & Denney, R. L. (2011, June). Sensitivity of the Green Battery (WMT, MSVT, & NV-MSVT) to simulated dementia. Poster presented at the 9th Annual AACN Conference & Workshops, Washington, DC.

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Biddle, C., Willett, K., O’Grady, M., Rolin, S., Fazio, R., & Denney, R. L. (2011, June). Finger Tapping: Why can’t we alternate hands? Poster presented at the 9th Annual AACN Conference & Workshops, Washington, DC.
Fazio, R., Griswold, S., & Denney, R. L. (2010, October). Initial psychometric properties of the Fazio Laterality Inventory. Poster presented at the 30th Annual Conference of the National Academy of Neuropsychology, Vancouver, British Columbia, Canada.
Umaki, T. M. & Denney, R. L. (2009, November). Neurocognitive deficits associated with the hepatitis C virus among incarcerated men. Poster presented at the 29th Annual Conference of the National Academy of Neuropsychology, New Orleans, Louisiana.
Sanders, F., Bailey, C. M., Denney, R. L. & Marcopulos, B. A. (2009, November). Performance of the Test of Memory Malingering (TOMM) and the Word Memory Test (WMT) in criminal medical and psychiatric settings. Poster presented at the 29th Annual Conference of the National Academy of Neuropsychology, New Orleans, Louisiana.
Barber, A. P., Denney, R. L., & Deal, W. P. (2009, November). Validity of effort testing among individuals with mental retardation. Poster presented at the 29th Annual Conference of the National Academy of Neuropsychology, New Orleans, Louisiana.
Triebel, K. L., Denney, R. L., & Halfaker, D. (2009, November). The utility of a short-Fake Bad Scale for detecting malingered neurocognitive dysfunction on the 370-item MMPI-2. Poster presented at the 29th Annual Conference of the National Academy of Neuropsychology, New Orleans, Louisiana.
Pipkin, S., Denney, R. L., & Hartman, D. (2008, November). Detecting exaggeration in neurocognitive functioning: Predicting Word Memory Test classification with the Structured Inventory of Malingered Symptomatology. Poster presented at the 28th Annual Conference of the National Academy of Neuropsychology, New York, New York.
Denney, R. L., & Tyner, E. (2008, June). Effectiveness of Reliable Digit Span at differentiating Definite Neurocognitive Dysfunction from good effort mild and moderate TBI among adult male criminals. Poster presentation at the 6th Annual conference of the American Academy of Clinical Neuropsychology, Boston, Massachusetts.
Dionysus, K. E., Denney, R. L., & Halfaker, D. (2008, June). A comparison of the validity scales of the MMPI-2 and the RBS 28. Poster presentation at the 6th Annual conference of the American Academy of Clinical Neuropsychology, Boston, Massachusetts.
Downing, S. K, Denney, R. L., Spray, B. J., & Halfaker, D. A. (2007, November). The performance of the MMPI-2 Reconstructed Scales among personal injury litigants feigning impairment. Poster presented at the 27th Annual Conference of the National Academy of Neuropsychology, Scottsdale, Arizona.

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Rosenstein, L. D., & Denney, R. L. (2007, June). Initial development of the Feigning Low Intelligence Test (FLIT). Poster presentation at the 5th Annual conference of the American Academy of Clinical Neuropsychology, Denver, Colorado.
Sanders, J. F., & Denney, R. L. (2007, June). A comparison of the Test of Memory Malingering and the Word Memory Test in a criminal forensic population. Poster presentation at the 5th Annual conference of the American Academy of Clinical Neuropsychology, Denver, Colorado.
D’Amato, C. P., & Denney, R. L. (2007, February). The Diagnostic Utility of the Rarely Missed Index in Detecting Response Bias in an Adult Male Incarcerated Setting. Poster presented at the 35th Annual conference of the International Neuropsychology Society, Portland, Oregon.
Ardolf, B. R., Denney, R. L., & Houston, C. M. (2005, October). Base rates of malingered neurocognitive dysfunction among criminals. Poster Presentation at the 25th Annual National Academy of Neuropsychology Conference, Tampa, FL.
Schnakenberg-Ott, S. D., Denney, R. L., & Ryan, J. J. (2004, November). Utility of WAIS-III Incidental Learning to detect negative response bias in a sample of civil and criminal litigants. Poster presented at the 24th Annual National Academy of Neuropsychology Conference, Seattle, WA.
Collins-Johns, K., Powers, B. K., Denney, R. L., Cannedy, R. C. (2002, May). Comparison of Carlson Psychological Survey Chemical Abuse Scale and Substance Abuse Screening Inventory-3 in an Inmate Population. Poster presented at the 12th Annual Mental Health in Corrections Symposium, Kansas City, Missouri.
Van Gaasbeek, J. K., Denney, R. L., & Harmon, J. (2001, November) Another look at an MMPI-2 neurocorrective factor in forensic cases: Utility of the Fake Bad Scale. Poster presented at 21st Annual Conference of the National Academy of Neuropsychology, San Francisco, CA.
Cunic, T. L., & Denney, R. L. (2001, November). Use of videotaped administrations as a method of establishing inter-rater reliability for the NCSE. Poster presented at 21st Annual Conference of the National Academy of Neuropsychology, San Francisco, CA.
Burger, C. M., Denney, R. L., & Lee, K. E.(2000, November). The Kaufman Short Neuropsychological Assessment Procedure and the Halstead Reitan Neuropsychological Battery: A comparison using participants referred by Vocational Rehabilitation. Poster presented at the 20th Annual Conference of the National Academy of Neuropsychology, Orlando, Florida.
Hughes, M., Denney, R. L., & Cannedy, R. (2000, March) Competency of juveniles to stand trial in criminal court. Poster presented at the American Psychology-Law Society Biennial

Case 1:18-cv-01034-BAH Document 29-4 Filed 10/26/18 Page 28 of 28
Robert L. Denney, PSY.D., ABPP Curriculum Vita, 5/2015; page 21
2000 conference, New Orleans, Louisiana.
Denney, R. L., Feaster, T., Hughes, M., Estees, S., McKay, D., Mockenhaupt, S., Rooney, K., & Whisman, K. (1998, November) Recognition items on the WMS-III as a forced-choice test of negative response bias. Poster presented at the 18th Annual Conference of the National Academy of Neuropsychology, Washington, DC.
Denney, R. L. (1996, October). A forced-choice recognition test for detecting negative response bias on the Wechsler Memory Scale-Revised. Poster presented at the 16th Annual Conference of the National Academy of Neuropsychology, New Orleans, Louisiana.
Denney, R. L., & Scully, B. M. (1995, November). Exaggeration of Neuropsychological Impairment in Pick's Disease: A Case Study. Poster presented at the 15th Annual Conference of the National Academy of Neuropsychology, San Francisco, California.
Denney, R. L., & Wynkoop, T. F. (1995, August) Exaggeration of Neuropsychological Deficits in Pretrial Evaluation: A Case Presentation. Poster presented at the American Psychological Association 103rd Annual Convention, New York, New York.

Case 1:18-cv-01034-BAH Document 29-5 Filed 10/26/18 Page 1 of 2
Exhibit 4

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From: Back, Mark (DDS) mark.back@dc.gov Subject: Planning meeting for MS on May 22nd?
Date: May 12, 2017 at 4:03 PM To: Lisa Greenman (greenmanlisa@gmail.com) greenmanlisa@gmail.com, Fofana, Musu (DDS) musu.fofana@dc.gov, Burrage, Theresa (DDS) theresa.burrage@dc.gov, Reaves, Jeremy (DDS) jeremy.reaves@dc.gov, VanHorn, Yolanda (DDS) yolanda.vanhorn@dc.gov Cc: Morris, Thomas (DDS) thomas.morris@dc.gov, Woodland, Winslow (DDS) winslow.woodland@dc.gov, Williams, Richard (DDS) richard.williams@dc.gov
The purpose of this email is to determine if we can get a mee5ng scheduled for the a6ernoon of May 22nd to discuss planning for Markelle Seth. Lisa Greenman, one of MS’s aAorneys, has already contacted Wholis5c’s MiaAa Thomas and Georgetown’s MaA Mason and they are available. So, are DDS staﬀ available on May 22nd in the a6ernoon? If not, please work together to get a mutually agreeable date and 5me.
You should not need Richard Williams or me for these mee5ngs but we are available should the need arise. The federal government already has ﬁled a pe55on for commitment in the U.S. District Court for the Eastern Division of North Carolina and Richard is preparing a pe55on for his commitment in the MHab Court here in DC. Mr. Seth has a status in his DC federal case (by videophone) on July 21st and a hearing in the NC federal case on September 26th. It is possible to move up the various court dates if we have the planning piece in place and the idea is to get MS out of conﬁnement as soon as possible within the 5ming reali5es of the two commitment processes.
Many thanks.
MDB
Mark D. Back General Counsel D.C. Department on Disability Services One Independence Square 250 E Street, SW, 6th Floor Washington, DC 20024 (202) 730-1592
#ThriveByFiveDC kicks off this month! Learn more about Mayor Bowser’s commitment to early childhood and visit the District’s ﬁrst comprehensive child health and early learning website at ThriveByFive.dc.gov.

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Exhibit 5

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Sent via Email
Andrew Reese, Director Thomas “Jared” Morris, Deputy Director DC Department on Disability Services 250 E Street, SW Washington, DC 20024

July 27, 2017

Dear Andy and Jared,
I am writing today to express in writing what I have said to you in numerous conversations: I wholeheartedly support and encourage the DC Developmental Disability Administration (DDA) to move forward in developing a set of services that will bring Markelle Seth back here from the federal prison in North Carolina as soon as possible and provide him with a highly structured, closely supervised, community-based program. I am familiar with Markelle’s history. I have had lengthy and substantial inperson meetings with him and have read comprehensive evaluations including the most recent risk assessments. I also heard two entire days of courtroom testimony about him during his federal competency hearing and participated in earlier service planning discussions with DDA. I have no doubt that DDA is capable of serving Markelle safely in the community.
I first learned about Markelle’s situation when I was contacted by his attorney, Lisa Greenman in 2015, at the suggestion of Elizabeth Jones. Colleagues within the DC legal community had warned Ms. Greenman that DDA resisted meeting the support needs of people with intellectual disabilities who had come into contact with the criminal justice system. During our first conversation I explained to Ms. Greenman the significant progress DDA has made over the past 15 years in establishing not only a wide array of services, but also the capacity to establish and maintain quality standards among their providers, develop support plans that utilize the principles of person-centered thinking and offer an array of clinical supports through DDA in-house staff and contractors. Among other things, Ms. Greenman sought help identifying potential sources of sexuality education and other supports for Markelle.
At Ms. Greenman’s suggestion I visited Markelle at the DC Jail to meet Markelle to better understand if he would be able to benefit from sexuality education to learn and demonstrate the parameters of responsible adult behavior. I also met with him when he was having a dental problem but was fearful about allowing the dentist to treat him. It was easy to establish rapport with Markelle.. He is an extremely engaging young man who is engaging, receptive and eager for connection.

Georgetown University Center for Child & Human Development | Box 571485 | Washington, D.C. | 20057-1485 | 202-687-5000 | Fax: 202-687-1954 |gucdc@georgetown.edu

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Unfortunately Markelle is an example of what happens to people with intellectual disability when they are not afforded supports either at home or through what should be their civilly protected right to a free and appropriate education. Markelle attended a charter school that was notorious for the way it disserved special education students and instead of receiving special education services he was entitled to until his 22nd birthday, was actually “graduated” early, before he was even 18 years old. He was not transitioned into services through RSA and/or DDA, was permitted to become his own representative payee for SSI in spite of being unprepared to make decisions for himself, and was given responsibilities for which he was not prepared. The District’s safety net systems failed Markelle.
Having worked alongside staff from the DC Bureau of Community Services, the Mental Retardation and Developmental Disabilities Administration, and more recently the Developmental Disabilities Administration, I know the capabilities of the DDA to plan and monitor individualized services, and providers who are capable of executing the plans. Similarly, I am aware of the range of individual challenges that DDA providers are able to manage and I’m confident Markelle does not fall outside that range. A certain amount of risk is inherent in the nature of the work we do, and Markelle’s disability related behavioral challenges present issues the developmental disability community is familiar with and well prepared to address. DDA already has a track record of serving individuals who present risks similar to and greater than Markelle.
The District asserted in filings on the Evans’ case that it has the capability to provide comprehensive, community-based services to a wide range of people with intellectual disabilities, not only the Class members. Supporting Markelle in the community is part of the fulfillment of that assertion.
In addition, I would like to make sure you are aware of the ways the DDA Health initiative can assist in supporting Markelle. Markelle would be appropriate for a referral to the DDA Health Initiative health educator who can work with him to provide education about adult sexuality and the management of his healthcare. With the continuation of the Trauma Informed Initiative, Dr. Matt Mason can work with the assigned provider to support the delivery of services that address Markelle’s trauma, including his extended incarceration without the benefit of appropriate supports. From a clinical perspective, I want to underscore that remaining in the criminal justice system is harmful to Markelle.
Our chosen life’s work puts us in the position to help a lot of people and do a lot of good. It is rare, however to have the opportunity to impact social justice in the manner that could happen for Markelle Seth. The right thing to do is to effect his community placement as soon as possible. Thankfully, after years of extraordinary effort, the District can say that they do have the capacity to do it well.
Sincerely,
Marisa Brown MSN, RN Director, DDA Health Initiative cc: Lisa Greenman; Mark Back
Georgetown University Center for Child & Human Development | Box 571485 | Washington, D.C. | 20057-1485 | 202-687-5000 | Fax: 202-687-1954 |gucdc@georgetown.edu

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Cultural Competence Initiative for the Substance Abuse and Mental Health Services Administration (SAMSHA) Project. Collaborates with other team members to provide training and technical assistance to System of Care sites funded by SAMSHA, with a focus on the role of family members in the development of policies and services that are family-directed and culturally and linguistically competent.

1996-2002

Project Coordinator: DC Linkages, funded by the Office of Special Education Programs, U.S.

Department of Education. Coordinates all activities of a project designed to build the capacity to

identify refer and provide a continuum of services for young children with disabilities living in low-

income communities in the District of Columbia.

1998-2002

Project Coordinator: Knock on Every Door, funded by the D.C. Early Intervention Program,

Department of Social Services. Coordinates all activities of a project designed to enhance the

accessibility of developmental screening for infants and toddlers residing in temporary shelter and

facilitate their referral for eligibility determination for early intervention services.

1994-2001

Training Coordinator: Training Initiatives Project/Person Centered Planning, funded by the

Administration on Developmental Disabilities. Responsible for coordinating training activities

designed to assure that individuals with developmental disabilities and their families have increased

opportunities for choice and control over their lives by building the capacity of the District’s service

delivery system to provide person-centered and culturally competent services and supports.

1989 - 1993 Georgetown University/University Affiliated Program, Washington, DC, funded through Administration on Developmental Disabilities, DHHS. Coordinator: "Making a Difference in the Lives of Individuals who are Developmentally Disabled" Training for Direct Service Personnel.

1993 -1996

Project Coordinator: Knock on Every Door, funded by the Hasbro Children's Foundation,

this project developmentally screens and assesses children birth to 5 years of age who reside in

emergency shelter. Coordinates all interdisciplinary team activities including coordination with

appropriate city officials. Responsibilities include the planning and coordination of a day care training

program for parents in emergency shelter.

1991- 1992

Georgetown University, University Affiliated Program, Washington, DC, funded by a

contract the DC Commission on Mental Health. Clinical Nurse Specialist, Mental Health

outreach clinic for people with mental retardation. Responsible for nursing assessment and case

management within an interdisciplinary team.

2005-2010

Sexuality Educator (consultant) Paul VI Options Program. Classroom teaching of sexuality issues within the context of Catholic teaching to high school students with intellectual disabilities. Curriculum included events that were occurring in real-time for the students and their teachers and families. Eventually prepared classroom teachers to assume this role.

1985 - 1989

Alexandria (Virginia) Mental Health and Mental Retardation Services Board. Nursing consultant to an intermediate care facility for individuals with mental retardation

1983 - 1989

Georgetown University/ University Affiliated Program, Washington, DC. * Coordinator for "Incorporation of Genetics into Clinical Practice". * Nursing Consultant to the Bureau of Community Services Contract. * Nurse Educator with the "Community Health Nurse Training Project".

1977 - 1980 National Children's Center, Inc., Washington, DC. Chief Nurse.

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1976 - 1977 1973 - 1976
Licensure: Education:

Central Wisconsin Center for Developmentally Disabled, Madison, Wisconsin. Staff Nurse.

Portsmouth Naval Hospital, Portsmouth, Virginia. Navy Nurse Corps Office, Staff and Charge Nurse.

Licensed as a registered nurse in the District of Columbia and Virginia

Master of Science, Nursing Bachelor of Science, Nursing

George Mason University, 1984 Niagara University, 1973

Teaching Activities:
Guest panelist: Knowledge Sharing Workshop Afghan Disability Rights Conference: From Policy to Programming – public health models in developmental disability. Washington, DC, May 24, 2017
Faculty: Providing High Quality Health Care Experiences for Individuals With Intellectual and Developmental Disabilities, May 25, 2016 for Otpum Health Education.
Faculty: International Conference on Clinical Ethics Consultation. End of Life Decisions for People with Intellectual Disabilities, May 20, 2016.
Guest Faculty: Georgetown University Law Center. Understanding End of Life Decision-Making with and for People with Significant Intellectual Disabilities, Fall Semesters 2013, 2014, 2015.
Faculty: Ontario Partnership on Aging and Developmental Disabilities, Advanced Care Planning Workshop, Understanding End of Life Decision-Making with and for People with Significant Intellectual Disabilities, March 12, 2015.
Guest panelist: New Perspectives: Supporting Individuals with intellectual and Development Disabilities Through Life-Ending Illness, Grief and Loss, Hospice Foundation of America, 2013.
Faculty: Meeting the Health Care Needs of Individuals with Developmental Disabilities, Georgetown University Department of Family Medicine, Resident lecture, 2007-2011
Faculty: DC Health Resources Partnership, provided community education to registered and licensed practical nurses and other members of interdisciplinary teams with focus on the following topics: endof-life planning, nursing assessment, positive behavioral supports, transition of care, patient safety, dementia and community health supports.
Faculty: Policy Academy: Transforming Mental Health Care for Children and Families through Planning, Policy and Practice, National Training and Technical Assistance Center for Children’s Mental Health, Georgetown University Center for Child and Human Development. August 2005.
Faculty: Training Symposium for Nurses Providing Services to Individuals Who Experience Mental Retardation and Other Developmental Disabilities in the District of Columbia. Quality Trust for Individuals with Disabilities, December 2004.
Guest Faculty: New Jersey Department of Developmental Disabilities Workshop Series: Achieving Organizational Cultural Competence: Implications for Programs that Support Individuals with Developmental Disabilities and their Families. November 2002
Guest Faculty: Training Institutes, National Technical Assistance Center for Children’s Mental Health Center for Child Health and Mental Health Policy, Georgetown University, Developing Local Systems
3

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of Care for children and Adolescents with Emotional Disturbances and their Families: Family Involvement and Cultural Competence. Presented two workshops dedicated to adolescents on transition issues from school to adult services.
Workshop Presenter: “Warning Signs that May Indicate Developmental Delay and Disabilities for Infants, Toddlers and Preschool Children.” National Health Service Corps Annual Conference Series, 2000.
Guest Faculty: Training Institutes, National Technical Assistance Center for Children’s Mental Health Center for Child Health and Mental Health Policy, Georgetown University, Developing Local Systems of Care in a Managed Care Environment, June 1998
Guest Faculty: Faculty Leadership Program, Summer Institute, University of Oklahoma Health Sciences Center.
Course Coordinator/Lecturer: "Making a Difference in the Lives of Individuals with Developmental Disabilities". Includes course development and implementation of a District-wide project to improve the education of personnel providing direct-care services to persons with developmental disabilities.
Lecturer: "Incorporation of Genetics into Clinical Practice". Professional Continuing Education for Nurses and Other Allied Health Professionals.
Course Coordinator/Lecturer: "Knock on Every Door" Child Care Aide Training Program. Includes course development and implementation of a 4-week training program for men and women who have been homeless. Coordination with DC Department of Employment Services to transition to employment or additional training.

Public Service:

Former Member: Human Rights Committees: Alexandria, VA and District of Columbia Disability Services Administration and National Children’s Center, Washington, DC.

Former Member: Ready for Kindergarten Workgroup, DC Promise Neighborhood Initiative

Former Chair-elect:

Healthy Families/Thriving Communities Collaborative Council, Washington, D.C.

Former Board Member: Midnortheast Family Collaborative, Washington, D.C.

Former Member: Midnortheast Family Strengthening Collaborative: Steering Committee Member. Represents Georgetown University Child Development Center in planning for community-based services that will ensure through a strength-based approach that children and families are assisted in accessing resources that will have a direct effect on the reduction of child abuse and child neglect.

Former Chair: Fairfax County Public Schools Advisory Committee for Students with Disabilities

Former Chair: Virginia State Special Education Advisory Committee

Former Chair: Parents and Children Coping Together (Statewide support network for families of children and adolescents with emotional and behavioral disorders)

Scholarship and Research:

4

Case 1:18-cv-01034-BAH Document 29-6 Filed 10/26/18 Page 16 of 16

Publications:
(Peer-Reviewed Journal Brown, M., Jacobstein, D., Seyoung Yoon, I, Anthony, B. and Bullock, K. (2016). Systemwide Initiative Documents Robust Health Screening for Adults with Intellectual Disability. Intellectual and Developmental Disabilities, 54 (5) 354-365.

(Chapter Contribution)

Brown, M. (2014). The professional nursing role in support of people with intellectual and developmental disabilities. Rubin and Crocker 3rd Edition: Health Care for people with Intellectual and Developmental Disabilities across the lifespan edited by I Leslie Rubin, Joav Merrick, Donald E Greydanus and Dilip R Patel

(Peer-Reviewed Journal) Brown, M & Censullo, M. (2007). Supporting safe transitions from home to health care settings for individuals with intellectual disabilities. Topics in Geriatric Rehabilitation, 24 (20) 74-85.

(Issue Brief)

Brown, M., Perry, D & Goode, T. (2003). Effective Collaboration between Universities and Communities: Making a Difference for Young Children and their Families. Washington, D.C.: Georgetown University Center for Child and Human Development, University Center for Excellence in Developmental Disabilities.

(Planning Guide)

“A Planner’s Guide: Infusing Principles, Content and Themes Related to Cultural and Linguistic Competence into Meetings and Conferences” (2000). Georgetown University Child Development Center, Washington, D.C. National Center for Cultural Competence.

(Non-refereed Journals) "Advocates for Health" Nursing Times, 87(21), May 22, 1991, 62-64. "Silent Pain" Nursing Times, 87(6), February 6, 1991, 62-65.

(Chapter Contributions)

"Nursing Assessment" and "Supporting Positive Behavior" in Roth, S. and Morse, J. Eds. (1994). A Lifespan Approach to Nursing Care for Individuals with Developmental Disabilities. Baltimore, Md: Paul H. Brookes Publishing.

(Monograph)

Taylor, T., & Brown, M. (1996). Young children and their families who are homeless: A University Affiliated Program's Response. Georgetown University/University Affiliated Program: Washington, D.C.

5

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Exhibit 6

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Exhibit 7

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Exhibit 8

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Exhibit 9

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Exhibit 10

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Exhibit 11

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Exhibit 12

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610 East Landis Ave. Vineland, NJ 08360 Phone: (856) 457-8001 Fax: (856) 457-7353 BenchmarkHS.com
Draft Description of Services for Mr. Markelle Seth
Purpose
Mr. Markelle Seth is a 22-year-old African American male diagnosed with Mild Intellectual Disability. He currently is being housed at the District of Columbia’s Correctional Treatment Facility in Washington, DC. Mr. Seth has been charged with enticing person(s) under the age of eighteen to engage in sexually explicit conduct with the purpose of producing visual depictions. A report dated 12/22/2014 by forensic Psychologist Samantha Dimisa, PhD, from the Metropolitan Correctional Center in New York determined Mr. Seth to be not competent to stand trial. This finding is currently being challenged in federal court. In the event that the court upholds this finding, DC’s Developmental Disability Administration is seeking to place Mr. Seth in a program that will both meet his needs and also account for concerns regarding the safety of others that are raised by the allegations referenced above.
This document provides a broad outline of services proposed to meet the habilitation and safety needs of Mr. Seth and the community by Benchmark Human Services. It is understood that DDA referred Mr. Seth to Benchmark because this agency has a proven track record of successfully serving individuals with intellectual and other developmental disabilities who have been involved in the criminal justice system, in particular individuals who have a history of dangerous sexual behaviors.
This plan has been developed based on: one in-person meeting with Mr. Seth; two meetings with DDA; review of records including psychological evaluations performed by DC Superior Court, the Federal Bureau of Prisons (2 evaluations) and a neuropsychologist retained by Mr. Seth’s counsel, as well as D.C. Superior Court records relating to Mr. Seth’s Neglect proceedings and Juvenile proceedings in Family Court.
Residential Services
A review of Mr. Seth’s developmental, educational, legal, family and social history suggests that he would be responsive to and appropriate for placement in a highly structured and supervised community-based residential program, and that a more restrictive setting would not be necessary. Benchmark has safely and successfully served individuals similar to and more behaviorally challenging than Mr. Seth in community settings with appropriate structure, staffing and programming.
Clinical and other interviews indicate that Mr. Seth enjoys the company of others – particularly of other adults, whose approval he seeks. His history of multiple placements, including foster care and homelessness, and his interactions with others in these placements, however, suggests that a venue with no more than one to three housemates should be considered.

DRAFT Program Description n Seth, Markelle n Revised 02-12-2016

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610 East Landis Ave. Vineland, NJ 08360 Phone: (856) 457-8001 Fax: (856) 457-7353 BenchmarkHS.com

Given Mr. Seth’s most recent history of alleged sexual misconduct, a highly structured (i.e., schedule driven) community-based residential program with significant staff supervision (i.e., at least 1:1 staffing on a 24-hour basis) is recommended.
In light of Mr. Seth’s apparent willingness to live in the community, participate in his own rehabilitation and to acquire the life skills expected of an independent adult to the extent he is able, a mentoring/teaching style program is recommended where he will fully participate in daily living activities. Opportunities for advancing his independence skills on daily living tasks (i.e., hygiene, home maintenance, cooking, cleaning, laundry, shopping, budgeting, functional reading and writing) will be emphasized with a path to more independent living in the future to the extent that is indicated by the level of his functioning and appropriate consideration for the safety of others. These opportunities will be supplemented by intense behavioral management, ongoing supervision and counseling.
As with any individual who in enrolled in this program, the goal is to impart the necessary safety and self-management skills to Mr. Seth so that he may achieve increasing independence in his own community. There is no set time frame for Mr. Seth achieving access to increased independence, as it will be based on his progress.
Vocational Services
Services for Mr. Seth will include vocational supports during the working day. Staff working with Mr. Seth will function as job coaches – their main focus is to help prepare Mr. Seth for the work force. This preparation will begin with a thorough assessment of Mr. Seth’s skills and interests, followed by resume building, completing job applications and teaching interview skills. The goal is to provide real work opportunities in the community within a year. Once employed, job coaches will participate in work activities with Mr. Seth – remaining present with him on site – to ensure his continued coaching and safety for himself and others.
Staffing and Supervision
Direct support staff will be carefully selected for their experience in working with individuals with intellectual disabilities who have a history of court involvement. In addition to required basic training related to supporting individuals like Mr. Seth (i.e., fundamental rights, personcentered planning, developmental disabilities, medication administration, first aid, aging across the lifespan, sexual development), staff will be provided with advanced training on topics such as positive behavior supports, legal involvement, and counseling and teaching strategies.
Initial staffing levels may be recommended or established by the court; however, given the history of Mr. Seth’s involvement in the legal system, 2:1 staffing supports may be provided during the first six months if deemed necessary, and this level of supervision will be regularly reviewed. It is anticipated that Mr. Seth will be able to transition to 1:1 staff supervision within one year, with further changes in supervision dependent on his success in the program under the auspices of DDA and/or the court. Supervision should be provided to ensure that staff are

DRAFT Program Description n Seth, Markelle n Revised 02-12-2016

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610 East Landis Ave. Vineland, NJ 08360 Phone: (856) 457-8001 Fax: (856) 457-7353 BenchmarkHS.com

close enough to protect Mr. Seth and others from possible harm. Typically, in a two to fourperson home, at least two awake-overnight staff members are provided.
Behavioral Health & Related Services
Mr. Seth will have ongoing access to behavioral health services from Benchmark, which will include the development of a behavior support plan designed to prevent/manage undesired behaviors while describing methods to teach alternative behaviors. An interim behavior support plan will be developed during Mr. Seth’s transition into community-based learning to be followed by the development of a comprehensive plan based on a functional assessment as soon as is feasible. Benchmark emphasizes positive behavior supports in the development and implementation of behavioral supports; while certain privileges may be made contingent on Mr. Seth meeting behavioral goals, no aversive interventions are utilized. Such an approach is consistent with evidence-based best practices in the field of developmental disabilities.
Consultations with professional services will be sought in the community, such as psychiatric care, psychosexual assessment and training, and counseling as needed. Georgetown University’s Center for Child & Human Development has offered to provide consultation to Benchmark to explore Mr. Seth’s needs, particularly in regards to assessment and education of sexual behavior.
Nursing Care
Mr. Seth’s medical needs will be monitored on a weekly basis by a consulting registered nurse. All routine medical care will be provided in the community.
Safety
Benchmark recognizes that Mr. Seth’s successful participation in a community-based program is dependent on keeping him safe and preventing harm to members of his community. In addition to a high level of supervision 24/7, staff will be trained in essential strategies for supporting individuals with developmental disabilities (i.e., overview of developmental disabilities, fundamental rights and preventing abuse and neglect, development across the lifespan, dual diagnoses, positive behavior supports, sexual development and behavior, health care management, essential lifestyle planning, etc.), and also in crisis management strategies using the Mandt System. Mandt is a comprehensive and integrated system of de-escalating undesired behavior (up to and including hands-on physical management if safety requires it) while supporting the emotional, psychological and physical safety of the individual and the people around the individual.
A variety of other safety support will be initiated, such as on-call services with managers and senior staff available around the clock to assist with potential crisis events, adjusting the physical layout of the home to reduce the potential risk of harm, and providing each client with their own bedroom to ensure privacy and a safe haven. Benchmark will also work with DDA to

DRAFT Program Description n Seth, Markelle n Revised 02-12-2016

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610 East Landis Ave. Vineland, NJ 08360 Phone: (856) 457-8001 Fax: (856) 457-7353 BenchmarkHS.com
ensure clarity regarding the protocol that would be followed in the event of an elopement, including notification of law enforcement as well as DDA, so that an order for custody could be obtained. Benchmark has experience utilizing all of these measures.
From Benchmark’s experience working with individuals with profiles similar to Mr. Seth, it is clear that while the above safety precautions are necessary and appropriate, the most essential keys to a successful and safe experience for Mr. Seth will be engagement in activities that are meaningful to him, ensuring staff assigned to supervise him are well-trained and supported, providing high levels of supervision, as well as continuous oversight and evaluation of program services. Building with Mr. Seth’s active involvement a home and a way of life that he is invested in will be the surest way to achieve success and meet the needs of both Mr. Seth and his community.
Person Centered Planning
Mr. Seth’s services will be driven by the philosophy of person centered planning, which is a set of approaches designed to assist individuals plan their life and desired supports to increase their personal self-determination and improve their own independence. As part of this philosophy, an “essential lifestyle plan” will be developed with Mr. Seth to help him discover and attain what matters most to him and identify what supports might be needed. Supportive team discussions related to health and safety (e.g., both the safety of Mr. Seth as well as community safety) with direct input from Mr. Seth are an integral part of essential lifestyle planning.

DRAFT Program Description n Seth, Markelle n Revised 02-12-2016

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Exhibit 13

Case 1:18-cv-01034-BAH Document 29-14 Matthew Mason, PhD, BCBA-D, LBA Licensed Psychologist, Board Certified Behavior Analyst 12007 Yellow Bell Lane, Columbia, MD 21044 drmattmason@yahoo.com

Filed 10/26/18

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RISK ASSESSMENT REPORT

I. IDENTIFYING INFORMATION

Client Name: Date of Birth: Referral Source: Referral Date: Name of Examiner: Report Date:

Markelle Seth November 29, 1993 Andrew Reese, Director, District of Columbia Dept. on Disability Services December 29, 2016 Matthew Mason, PhD, BCBA-D, LBA February 24, 2017

II. REASON FOR REFERRAL

Markelle Seth is a 23-year-old African American man who on 10-15-2014 was charged with violating Title 18, U.S.C., Section 2251(a), production of child pornography, involving the sexual abuse of two minors aged three and five. Following a competency hearing held in U. S. District Court in the District of Columbia on May 16 and May 17, 2016, Mr. Seth was found incompetent to stand trial and not restorable to competence due to his Intellectual Disability. Mr. Seth is now pending civil commitment proceedings. I was asked by Mr. Andrew Reese, Director, District of Columbia’s Department on Disability Services, to conduct a risk assessment for the purposes of determining Mr. Seth’s risk for reoffending and the recommended conditions that would be necessary to safeguard against his reoffending while being served in the community.

III. INFORMATION SOURCES

I interviewed Mr. Seth at the District of Columbia’s Central Detention Facility on January 18, 2017. I conducted the interview using the following semi-structured interviews as a framework:

1. The General Sexual Knowledge Questionnaire (GSKQ) is designed to assess an individual’s knowledge of sexual behavior across multiple key domains (physiology, sexual behavior, pregnancy, contraception, sexually transmitted diseases, sexual preference).
2. The Assessment of Risk and Manageability for Individuals with Developmental and Intellectual Limitations who Offend Sexually (ARMIDILO-S) is designed to assess dynamic

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factors of engagement in sexually offensive behavior with individuals with a borderline to mild intellectual impairment, with or without learning disabilities, who have offended sexually or have displayed sexually offensive behavior.
Additional information was gathered from the following sources:
1. Competency Evaluation Report (09-11-2011) by Justine Bradshaw, MA, and Michael Barnes, PhD, Superior Court of the District of Columbia, Family Court – Social Services Division, Washington, DC.
2. Competency to Stand Trial Evaluation Report (12-22-2014) by Samantha DiMisa, PhD, Federal Bureau of Prisons, MCC New York, NY.
3. Forensic Evaluation Report (08-24-2015) by Kristina Lloyd, PsyD, Federal Bureau of Prisons, Federal Medical Center, Butner, NC.
4. Neuropsychological Assessment Report (10-19-2015) by Robert Denney, PsyD, ABPP, Springfield, MO.
5. Report and Recommendation (12-01-2016), United States District Court for the District of Columbia, Case No. 14-mj-608 (BAH/GMH).
6. Order, United States District Court for the District of Columbia, Case No. 14-mj-608 (BAH/GMH).
7. U.S. District Court for the District of Columbia Criminal Complaint, Statement of Facts and related Discovery evidence regarding the 2014 instant charges.
8. Telephone interview with Ms. Charlene Reid, Case Manager, District of Columbia Correctional Treatment Facility on 01-23-2017.
9. Telephone interview with Ms. Bridget Tyler, Case Manager, District of Columbia Central Detention Facility on 01-25-2017.
10. Telephone interview with Mr. Stephen Roszel, LCSW, District of Columbia Central Detention Facility (Acute Care Unit) on 01-27-2017.
11. Discussions with Marisa Brown, RN, Program Director, and Erica Thomas, Health Educator, Georgetown University’s Center for Child and Human Development.
12. Disciplinary reports from the District of Columbia’s Central Detention Facility.
The above information was used to complete the following assessments:
1. The Sexual Violence Risk–20 (SVR-20) is a checklist of risk factors for sexual violence associated with sex offenders used to characterize an individual’s potential risk of committing sexual violence and to inform plans to manage that risk.

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2. The Static-99–Revised is an actuarial assessment for use with adult male offenders and is designed to predict the likelihood of future offending based on the history of the individual’s offenses.
I interviewed Mr. Seth on one prior occasion (12-15-2015) while he was being held at the District of Columbia’s Correctional Treatment Facility. At that time, I had been asked by Mr. Thomas Morris, Deputy Director, District of Columbia’s Developmental Disabilities Administration (DC DDA), to provide recommendations to DC DDA for recommendations concerning program structure and services for Mr. Seth should he be served by DDA. Subsequently, I observed Mr. Seth’s two-day competency hearing, which included testimony by two psychologists (one from the Bureau of Prisons and the other retained by Mr. Seth’s counsel) and by two correctional staff (a case manager and an education director) who had worked closely with Mr. Seth. I have also interviewed Mr. Seth’s counsel, Lisa Greenman, who has worked closely with Mr. Seth for over two years. I also contacted the U.S. Dept. of Justice prosecutors (Ms. Colleen Kennedy and Ms. Andrea Hertzfeld) and requested they provide information in their possession that should be considered in this risk assessment. As of the date of the filing of this report, the U.S. Attorney’s Office had inquired regarding the purpose of this assessment but had not provided any additional information for consideration; any such information that is further provided by the USAO will be considered as a supplement to this report as necessary.
IV. BACKGROUND HISTORY
The following information was derived from available records, and summarizes Mr. Seth’s complicated psycho-diagnostic, behavioral and legal history.
1. Psycho-Diagnostic
A review of available records indicates Mr. Seth has an early history of abuse/neglect (including failure to thrive) and infantile seizures. He has experienced multiple displacements (e.g., living with relatives, placed in foster care, living in a homeless shelter). Mr. Seth has sporadic contact with his father, mother, siblings and other family members. Mr. Seth attended a public charter high school in the District of Columbia and was identified during elementary grades with learning disabilities, and later identified with an Intellectual Disability (mild range). His Individual Education Plan (IEP) focused on supporting his learning activities across core academic areas (math, reading, writing), providing speech/language services and providing behavioral supports.

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Since 2011, Mr. Seth has participated in several psychological assessments as part of court petitioned competency assessments. Following Mr. Seth’s arrest for robbery and receipt of stolen property as a juvenile, a competency assessment was completed on September 28, 2011 by Ms. Bradshaw and Dr. Barnes from DC’s Family Court Social Services Division. In addition to concluding that Mr. Seth was not competent, the report indicated that Mr. Seth was functioning in the mild range of Intellectual Disability (with no other mental health or developmental diagnoses identified). The report noted that Mr. Seth “… exhibits pervasive delays in many areas of cognitive functioning as well as challenges in both his adaptive functioning for communication and socialization.” The report also noted that Mr. Seth’s “...inability to retain information throughout the Competency Evaluation was due, in part, to his inability to sustain attention, tendency to dose off, and difficulty processing information.”
Following Mr. Seth’s arrest in the instant matter on October 2, 2014, a competency assessment was ordered by the court and completed on December 22, 2014 by Dr. DiMisa of the Federal Bureau of Prisons at MCC New York. Cognitive skills and adaptive functioning were assessed, and the report concluded that Mr. Seth was functioning in the mild range of Intellectual Disability. Dr. DiMisa also offered a provisional diagnosis of Autism Spectrum Disorder. In addition to broad deficits in cognitive skills, Mr. Seth’s adaptive skills were rated extremely low in the areas of communication, functional academics, health and safety, self-care, self-direction and social skills. Relative strengths identified included the use of community resources and leisure behavior. The report also noted that Mr. Seth often did not exert adequate mental effort during parts of the assessment. During one portion of Mr. Seth’s evaluation at MCC New York, Mr. Seth was held in a locked cell “… due to his inability to function in general population,” particularly due to his lack of communication with others, withdrawal, intermittent compliance, low frustration tolerance, anger/agitation, and mild self-injurious behavior (e.g., head banging). Mr. Seth was also prescribed psychoactive medications to manage both anxiety (e.g., lorazepam) and aggressive behaviors (e.g., anti-psychotic haloperidol).
Mr. Seth was held at both the District of Columbia’s Correctional Treatment Facility (DC CTF) and the District of Columbia’s Central Detention Facility (DC CDF) prior to being sent to MCC New York for his competency assessment, and then following that assessment was returned to the DC CTF/CDF while awaiting transfer to the Bureau of Prisons Federal Medical Center located at Butner, NC. During his placement at these DC correctional facilities, Mr. Seth received mental health treatment for behavioral and mood instability, and was diagnosed with Mixed Depressive and Anxiety Disorder and Mood Disorder (Not Otherwise Specified). These conditions were principally treated with psychoactive medications (e.g., at various times mirtazapine, fluoxetine and buspirone for depression and anxiety).

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Mr. Seth was transferred to the Federal Medical Center in Butner, NC, on May 7, 2015, to determine whether he could be restored to competency. According to records, Dr. Lloyd conducted daily observations of Mr. Seth, and completed a competency assessment on August 24, 2015. Dr. Lloyd concurred with Mr. Seth’s previous diagnosis of Intellectual Disability, and did not find evidence to support a provisional diagnosis of Autism Spectrum Disorder. Dr. Lloyd did not find characteristics consistent with Anti-Social Personality Disorder and provided a “rule-out” diagnosis of Pedophilia (although also noted that Mr. Seth “...denied any thoughts, fantasies or behaviors consistent with that diagnosis.”). No cognitive testing or assessment of adaptive functioning was performed in connection with this evaluation. Throughout Mr. Seth’s six-week stay at the Federal Medical Center, it was reported that Mr. Seth displayed frequent behavioral problems, resulting in his repeated housing in an isolated cell. These problems included being oppositional or argumentative, not following established rules, engaging in property destruction, displaying low frustration tolerance, and difficulty sustaining attention. A behavioral support plan was developed but reportedly did not appear to impact these multiple behavioral concerns. It is notable that these behaviors, although frequent, appeared relatively mild and of brief duration. During his placement at the Federal Medical Center, Mr. Seth reported feeling anxious and depressed, and he was prescribed an anti-depressant medication (e.g., mirtazapine).
The most recent competency assessment was completed by Dr. Denney on October 19, 2015. Dr. Denney’s assessment included comprehensive neuropsychological testing and assessment of Mr. Seth’s adaptive functioning. This report indicated that Mr. Seth had significant impairments across all adaptive domains, as well as significant impairments in multiple cognitive areas including sustained attention, auditory processing, problem solving, abstract reasoning, mental flexibility, learning and retention, impulsivity, stress tolerance and emotional control. The report concluded that Mr. Seth was functioning in the mild range of Intellectual Disability, and, consistent with Dr. Lloyd’s evaluation, did not endorse a diagnosis of Autism Spectrum Disorder. Dr. Denney agreed with Dr. Lloyd and Dr. DiMisa that there was no evidence of Antisocial Personality Disorder. The report also identified several relative strengths in Mr. Seth’s cognitive profile, including verbal communication, focused attention and sociability. Dr. Denney noted that these strengths may give the false impression that Mr. Seth functions at a higher cognitive, emotional and adaptive level than is actual.
2. Behavioral
According to records, Mr. Seth had delays in developmental milestones such as walking and speaking, and suffered from infantile seizures for which he was medicated with phenobarbital

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until he was about six years old. Between the ages of three and six, he received physical and speech/language therapy from the National Children’s Center. He received special education services related to learning disabilities across core academic areas, speech/language deficits and behavioral support needs. As Mr. Seth progressed through school, he displayed increased challenging behaviors, including breaking school rules, stealing, poor attention and fighting with peers. He was also reported to have been bullied because of his disabilities. Some of Mr. Seth’s behaviors resulted in suspensions from school. Mr. Seth’s early records do not indicate any diagnosis or treatment related to mental health needs other than supports associated with his Individual Education Plan (IEP). There was a suggestion that his behavior deteriorated following the death of his grandmother in 2008 when he was 15 years old. Mr. Seth’s father indicated that Markelle had difficulties following the rules at home and often displayed poor hygiene. Mr. Seth participated in the DC Summer Youth Employment Program for several years, but each time was ejected from the program for not being able to follow directions.
During his time in custody in connection with this case, Mr. Seth frequently displayed challenging or interfering behaviors. These included noncompliance with established rules, refusal to follow directions, minor property destruction, minor self-injury, refusal to respond, low frustration tolerance, impulsivity, poor hygiene, and verbal abuse. Because these behaviors occurred in an environment of incarceration where strict adherence to rule following is a requirement, Mr. Seth was often punished by being physically managed, having privileges restricted, and being removed from the general population and placed in isolation.
Although numerous and frequent, Mr. Seth’s problematic behaviors appeared relatively low in intensity and of brief duration. Prison staff characterized Mr. Seth’s behavioral outbursts as immature and impulsive. Frequently they related to conflicts over control of a communal television. Mr. Seth reportedly responded well to de-escalation strategies during these outbursts, and he typically de-escalated quickly and often expressed remorse after calming. Frequently, Mr. Seth would reach out to preferred jail staff or his counsel, Ms. Greenman, to assist with problem solving or calming, demonstrating an interest in establishing supportive alliances. Otherwise, Mr. Seth received little or no formal psychotherapy throughout his incarceration to address his mental or behavioral health needs.
It is crucial to appreciate that Mr. Seth’s Intellectual Disability encompasses multiple permanent deficits in his cognition, adaptive skills, emotional dyscontrol, and executive functioning; these deficits are significant contributing factors to his behavioral profile, including his sexually inappropriate behavior. Also, Mr. Seth’s cognitive, behavioral and emotional traits have repeatedly been characterized as those of an immature child as opposed to those of a “hardened” offender.

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Mr. Seth seeks out positive attention and approval from others, is friendly and sociable. He is talkative, shows concern for others and has a sense of humor. Despite his circumstances, Mr. Seth presents as an upbeat and optimistic person, and does not give the impression of resisting supervision or supports. During several meetings with nursing and sexual health education staff from Georgetown University’s Center for Child and Human Development, Mr. Seth was described as collaborative and outgoing. Prison staff also describe Mr. Seth as immature in a childlike way, and not like a hardened or deceitful criminal. These traits suggest that Mr. Seth can establish trusting relationships with caregivers, an important factor in creating effective community-based supports.
3. Legal
As a child, Mr. Seth had two documented contacts with the juvenile justice system. Mr. Seth was arrested on or around March 7, 2011, at age 17, for simple assault; however, no charges were filed. On August 29, 2011, Mr. Seth was arrested on charges of unarmed robbery and associated receipt of stolen property. A delinquency petition was filed but was later dismissed after a court-ordered competency assessment completed on September 28, 2011 by Ms. Bradshaw and Dr. Barnes from DC’s Family Court Social Services Division determined that Mr. Seth was incompetent and not likely to attain competence. This report concluded that Mr. Seth lacked the ability to follow court proceedings and assist in his own defense, largely due to poor cognitive skills (limited attention, difficulty processing information, low frustration tolerance) and due to a marginal understanding of courtroom procedures and roles. On January 22, 2009, a custody order was filed alleging second degree child sex abuse on August 28, 2008, when Mr. Seth was 14 years old; the Attorney General moved to quash the custody order and dismiss the case, and from available records it does not appear Mr. Seth was ever arrested or charged.
As an adult, Mr. Seth was arrested and charged for several minor offenses prior to the current charge. On July 28, 2012, Mr. Seth was arrested for second degree theft in Maryland, and a warrant was issued on January 6, 2014 for failure to appear. On March 14, 2014, Mr. Seth was arrested in the District of Columbia for second degree theft and sentenced to unsupervised probation. On April 14, 2014, he was arrested for failure to pay a DC Metro fare, and on April 24 for unlawful entry; the disposition of these last two charges is unknown but presumed to have not been prosecuted based on Mr. Seth’s available records.
On October 2, 2014, a month before his 21st birthday, Mr. Seth was arrested in DC on the instant charge of first degree child sex abuse for which he was subsequently charged with production of child pornography. The alleged victims were members of a household Mr. Seth

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had been incorporated into by a man he called his “godfather,” whom he’d met at a homeless shelter, and were ages three and five at the time. The discovery materials provided by the prosecution reference other children living in that household who may have been involved as well, though no charges pertaining to other victims were filed. The discovery materials also describe a May 2014 incident involving Mr. Seth and his younger sister, then age 10. In that instance, the child’s adoptive mother reported overhearing sexually explicit telephone conversations between Mr. Seth and his sister in which they spoke of plans for having sexual contact and referred to having had such contact in the past. The report also refers to an allegation dating to 2009, in which the adoptive mother reported that Mr. Seth was observed masturbating next to his sister. It appears neither incident was charged.
The October 2014 federal charge led to a series of competency assessments. The competency assessment completed on December 22, 2014 by Dr. DiMisa of the Federal Bureau of Prisons at MCC New York concluded that Mr. Seth was not competent to stand trial and stated that Mr. Seth, “… does not possess a rational and factual understanding of the proceedings against him, does not have the capacity to assist legal counsel in his defense, and cannot adequately make decisions regarding his legal strategy.” Based on this conclusion, which was based on findings consistent with those of Mr. Seth’s juvenile competency assessment from 2011, Mr. Seth was found incompetent by the Court on March 27, 2015.
Mr. Seth was transferred to the Federal Medical Center in Butner, NC, on May 7, 2015, for treatment towards restoration of his competency. Following Mr. Seth’s participation in restoration activities, an August 24, 2015 competency assessment by Federal Bureau of Prisons psychologist Dr. Lloyd concluded that Mr. Seth was competent to stand trial. A subsequent competency assessment completed on October 19, 2015 in the District of Columbia by Dr. Denney concluded that Mr. Seth was not competent to stand trial and unlikely to be restorable based on Mr. Seth’s inability to participate and contribute to his own defense in the context of his intellectual disability.
Following a competency hearing on May 16-17, 2016, the U.S. District Court for the District of Columbia ruled on December 22, 2016 that Mr. Seth was not competent to stand trial and unlikely to be restorable. The ruling was based on the December 1, 2016 Report and Recommendations entered by the magistrate judge in the case. Mr. Seth has since been transferred from DC’s Central Detention Facility back to the Federal Medical Center in Butner, NC, for a dangerousness assessment and consideration of federal civil commitment.

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V. CLIENT INTERVIEW
Mr. Seth arrived at the interview room at the District of Columbia’s Central Detention Facility dressed in an orange jumpsuit, white t-shirt and white running shoes. He arrived handcuffed with a belly chain. Ms. Lisa Greenman, Mr. Seth’s legal counsel, was also present during the interview, and informed Mr. Seth and me that either of us could ask her to leave at any point during the interview. Ms. Greenman requested from the escorting jail officer that Mr. Seth be uncuffed for the duration of the interview but this request was refused.
I explained to Mr. Seth the purpose of the evaluation, which was to determine Mr. Seth’s risk of reoffending and whether there were conditions that could permit him to reside safely in the community. I informed him that the results of this assessment were not confidential, and that the results and my opinion may be shared with his legal counsel, the Court, and the District of Columbia’s Department on Disability Services. Mr. Seth indicated that he understood the limits on confidentiality and expressed his willingness to participate. I encouraged Mr. Seth to answer my questions thoroughly and honestly to the best of his abilities and he indicated his intent to do the best he was able.
Mr. Seth is of average build and height and was wearing an orange jumpsuit that was slightly wrinkled and an undershirt that was somewhat dirty. He appeared clean, reported recently having had a haircut and was clean-shaven. Mr. Seth uses glasses for reading but the frames were reportedly broken; he carried the lenses for his glasses in his waistband but did not use them during the interview. He displayed a broad range of normal affect and mood, with a normal rate of speech with no problems in articulation. No unusual mannerisms were observed during the interview. He denied suicidal ideation and did not report false sensory perceptions. Mr. Seth reported his overall mood to be positive, although he reported being prescribed an antidepressant (e.g., fluoxetine) due to periods of depression (although he also stated that he did not consistently take his medication).
Throughout the interview, which lasted between three and one-half to four hours, Mr. Seth was attentive and answered all questions posed to him. Several times he did call out to other inmates who walked past the interview room to express brief niceties, and each time he apologized for being distracted and continued with the interview. Mr. Seth was well-oriented during the interview, and appeared fully alert throughout.
The interview began with a review of Mr. Seth’s general understanding of sexuality using the General Sexual Knowledge Questionnaire (GSKQ), which included questions related to physiology, sexual behavior, pregnancy, contraception, sexually transmitted diseases and sexual

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preferences. Mr. Seth’s answers on the GSKQ indicated a basic and inconsistent knowledge of sexuality. He attempted to answer every question, although early on he appeared hesitant and self-conscious. Mr. Seth appeared to struggle understanding some questions because of unfamiliar terminology, although he answered all probe questions accurately and responded to alternative phrasing of some questions. While Mr. Seth was able to accurately identify various body parts of depictions of male and female figures, he demonstrated only a basic knowledge of the biological functions related to sexual development and function. For example, he appeared familiar with the term “puberty” and described it in terms of transitioning from childhood to adulthood, but he was unable to accurately describe the physiological changes that accompany this transition. Mr. Seth demonstrated a general knowledge of male and female functions regarding sexual intercourse and masturbation, but lacked comprehensive knowledge. For example, Mr. Seth correctly defined what the term “virgin” meant (e.g., “Someone who never had sex.”) but did not know what the term “incest” meant; he was not familiar with the terms “ejaculation” or “erection” but was familiar with colloquial equivalents (e.g., “coming” and “hard on”). Mr. Seth could describe how women become pregnant, but not the physiological indications of pregnancy or when a woman is more likely to become pregnant. Mr. Seth has a basic understanding of some forms of contraception (such as condoms and the pill) and where to obtain contraception. He has a poor understanding of sexually transmitted diseases, although he did identify that using a prophylactic can prevent STDs. Finally, Mr. Seth identified an interest in both men and woman, and understood the difference between heterosexual and homosexual behavior. Mr. Seth’s total score on the GSKQ was 55 out of a maximum score of 110. This score is within the average range of scores for individuals who are diagnosed with an Intellectual Disability and who have not received formal treatment for sexual misconduct (typical scores for this population range between 37 to 57 with a mean of 47). In comparison, the typical range of scores for individuals without an Intellectual Disability is between 76 and 90 with a mean of 82.
Mr. Seth’s responded openly to questions based on the Assessment of Risk and Manageability for Individuals with Developmental and Intellectual Limitations who Offend Sexually (ARMIDILO-S), which assesses the dynamic risk of engagement in sexually offensive behaviors. The ARMIDILO-S identifies characteristics that may either increase the likelihood of reoffending (risk factors) or decrease that likelihood (protective factors). The ARMIDILO-S was designed specifically for the assessment of individuals with Intellectual Disabilities. Information gathered from staff interviews and record reviews were also used to identify these factors. Mr. Seth’s responses were made in the context of a more than two-year period of incarceration, most of which was spent at the District of Columbia’s Central Detention Facility (CDF) or Correctional Treatment Facility (CTF). These environments are highly structured and secure; minor deviations from routine or rules are met with outcomes such as isolation, reduced

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mingling with other inmates, and reduced access to preferred activities or areas. Mr. Seth’s behavior was inherently restricted by the physical environment (containment) and by continuous supervision.
Mr. Seth acknowledged during the interview that he had had difficulty complying with established rules and the routine at the DC CDF/CTF and at the Federal Medical Center. While stating that he had positive relationships with many of the staff who work at the DC CDF/CTF, he expressed a dislike for what he referred to as strict rules and a lack of freedom, and said he often got into trouble breaking the smallest of rules such as not tucking in his shirt. Mr. Seth tended to respond to interview questions with concrete answers and limited insight into his plight. For example, he stated that he was looking forward to his transfer to the Federal Medical Center in Butner, NC, explaining that it was a “...better facility with a larger yard and more food.” When I pointed out that he would be farther away from his family and friends, and that there is a possibility that he may be held at the Federal Medical Center for a long period of time, this did not seem to change his opinion.
As interviewed staff consistently noted, Mr. Seth required a high degree of monitoring while at the DC CDF/CTF – more so than other inmates – reportedly because he had such difficulty understanding and adhering to rules. Staff members concurred that Mr. Seth had difficulty following rules not because he was a hardened criminal or oppositional in nature, but rather because he was immature, impulsive and had a strong desire for immediate gratification. Staff members also described Mr. Seth as a likable person with a sense of humor and playfulness that was very childlike, with a typically positive attitude.
Mr. Seth described himself as easy to provoke and become angry, and this matches the description from staff. Staff also described him as emotionally volatile, highly impulsive, argumentative with a tendency to sulk and refuse to interact when he did not get his needs immediately met. Staff also described Mr. Seth as highly distractible, and said he had great difficulty learning even the smallest unfamiliar task or rule (he required almost continuous supervision and frequent reminders).
Although he is friendly, socially inclined, and clearly enjoys interacting with others, Mr. Seth has had difficulty developing relationships with other inmates as a result of his emotional immaturity and behavioral dysregulation. Mr. Seth’s poor self-regulation and immature coping style was consistent while incarcerated; this is not surprising given his cognitive limitations and the limited supportive therapy that has been provided during this period.

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Mr. Seth did not endorse being sexually deviant or otherwise preoccupied with sexual activities. Prison staff members agreed with this characterization, noting that although he was vulnerable to being taken advantage of by other inmates, he was not likely to try to take advantage of others, to attempt to develop relationships for the purposes of gaining sexual favor, or to otherwise act in a sexually predatory manner. Mr. Seth denied any interest in children. Mr. Seth was able to understand the requirement that he maintain distance from children should he be allowed to live in the community, although he did express concern about children who might be in distress. Prison staff members concurred that Mr. Seth has not expressed an interest in children.
Mr. Seth denied that using substances was a problem, stating that he did not like alcohol but he had smoked “weed” (e.g., marijuana) every few weeks when he lived in the community. He further stated that he had been smoking weed when he was arrested for charges of child sexual abuse (although there is no evidence in the record of this). Staff members noted that Mr. Seth did not acquire or use any illicit substances while incarcerated.
While discussing the possibility of community placement, Mr. Seth expressed his fear of being harmed while living in the community. He asked whether he could carry a pocket knife for selfdefense. When it was explained to him that carrying any weapon would likely be forbidden if he were to participate in a community-based program, Mr. Seth asked if he could instead carry chemical mace. When provided with the same explanation that he would not be allowed to carry any weapon, he asked how he would be kept safe. When I explained to Mr. Seth that if he resided in the community, he would be fully staffed and it would be his community-based staff’s responsibility to keep him safe, he appeared comforted. He did add, however, that he would wear a belt “just in case.” Mr. Seth did not express resistance to being supervised, although he did express a preference for staff who listened to his needs. Mr. Seth appeared to understand that he would require 24-hour supervision in order to live in the community, and he stated that he would cooperate with staff and supervision requirements.
A small, core group of prison staff worked consistently with Mr. Seth at the DC CDC/CTF (e.g., two case managers, a social worker, and a supervising officer). This core support group described Mr. Seth as more vulnerable and immature compared to other inmates, and that he was singled out for additional attention by this core group to keep him safe at both facilities. Throughout his time at the CTF, he was housed in the Medical Unit not because he was ill, but because prison staff believed that separating Mr. Seth would protect him from harm by other inmates and the medical unit offered more frequent supervision and support with a lower staffto-inmate ratio. At the CDF, Mr. Seth was housed on the Mental Health Unit.

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Risk factors that may contribute to Mr. Seth’s reoffending include noncompliance with supervision and rules, emotional dysregulation, impulsiveness and poor coping skills. Protective factors that may reduce Mr. Seth’s risk of reoffending include a high level of supervision, consistent application of rules, positive relationships with supervising and therapeutic staff, lack of sexual misconduct and sexual preoccupation when in a supervised setting, and lack of substance use/abuse. Mr. Seth’s willingness to engage with responsible and supervising adults, his admittance to his sexual misconduct, and his ability to develop therapeutic relationships are also important protective factors.
VI. RISK ASSESSMENT SCALES
The Sexual Violence-20 (SVR-20) is a checklist that was developed for use in criminal or forensic settings where an individual has committed or is alleged to have committed an act of sexual violence (defined as “actual, attempted or threatened sexual contact with a person who is nonconsenting or unable to give consent”). While the SVR-20 is not an actuarial or predictive tool, it is designed to estimate the relative risk (e.g., Low, Medium or High) of sexual re-offending and identify risk factors associated with the likelihood of future sexual violence. The SVR-20 has been used with individuals with and without Intellectual Disabilities.
According to the SVR-20, Mr. Seth’s risk factors include sexual deviation (e.g., sexual abuse of minors), a history of having himself been a victim of child abuse, presence of major mental illness (which according to the SVR-20 includes both mood instability and intellectual disability), relationship problems (in particular with family members), employment problems (lack of sustained employment), past nonviolent offenses (regardless of arrest or conviction), high density sexual offenses (multiple victims and/or occurrences), and unrealistic plans following discharge from incarceration. As part of the SVR-20, the Psychopathy Check List–Revised (PCLR) was also completed, and indicated that Mr. Seth does not present with psychopathic traits. The risk factors identified in the SVR-20 are consistent with information contained in available records, from information gathered from interviews with staff and others, and from discussions with Mr. Seth. According to the SVR-20, the overall rating of Mr. Seth’s risk for future sexual violence is within the Low to Moderate range.
The Static-99 Revised is an actuarial assessment for use with adult male offenders and is designed to predict the likelihood of future offending based on the history of the individual’s offenses. Relevant risk factors that were identified by the Static-99 included Mr. Seth’s relative young age at the time of the alleged offense, his victims being unrelated to Mr. Seth, one of the victims being male, and Mr. Seth not having been in a long-term intimate relationship (e.g., at least two years). Although Mr. Seth has been involved with the legal system as a juvenile and a

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young adult (his arrest in this case came about two months before his 21st birthday), this involvement did not result in related convictions (primarily due to lack of competency or charges not being filed). The Static-99 places Mr. Seth in the Above Average range of risk for reoffending. Individuals in this risk range are predicted to have a 5-year recidivism rate of 17.3% (with a 95% confidence interval of 14.5% to 20.5%). This prediction assesses historical and “static” factors only and does not incorporate contextual factors such as the effect of supervision or supports that would be provided to Mr. Seth should he be placed in the community subject to court ordered civil commitment.
VII. RISK SUMMARY
To provide for community safety while ensuring that Mr. Seth has every opportunity to succeed and to avoid re-offending, it is my recommendation that he be served in a highly structured, closely supervised community-based program. Mr. Seth’s cognitive, behavioral and emotional characteristics are not uncommon among individuals diagnosed with an Intellectual Disability. Mr. Seth’s prior and current behavior does not appear to be based in an underlying psychopathic condition, and his sexual misconduct appears to be a function of inappropriate supervision and deficits associated with Intellectual Disability. A carefully designed and appropriately staffed community-based program focused on Mr. Seth’s learning, behavioral and emotional needs has, in my opinion, a high likelihood of success in preventing his re-offending.
Developmentally, Mr. Seth has a serious history of trauma and neurodevelopmental deficits. His early childhood experiences include serious abuse/neglect, and are coupled with delays in physical development, broad learning disability, and comprehensive deficits in cognitive and executive functioning. Mr. Seth’s has serious and permanent limitations in learning, memory, making reasoned choices, and language processing. This means that he will need significant mentoring and supervision to function effectively in the community, especially with regards to following accepted norms of social behavior and engaging in safe sexual practices.
Behaviorally, Mr. Seth has serious and long-standing difficulties with impulsivity, sustained attention, and need for immediate gratification. His limited coping skills (coupled with serious cognitive deficits) often result in undesired behaviors including noncompliance with rules, withdrawal from others, verbal abuse/threats, minor physical aggression, and minor property misuse. Mr. Seth does not appear to be a flight risk, however, and his desire for social engagement, approval and need for supportive relationships are important compensatory strengths. His sexually inappropriate behavior appears more opportunistic than predatory in nature, and influenced by his limitations in cognition and self-management.

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Emotionally, Mr. Seth demonstrates significant dysregulation, resulting in mood shifts that are often disproportionate to the circumstances. Mr. Seth appears to have an underlying mood disorder (anxiety and/or depression), although it is unclear whether this is primarily a result of an underlying neurological problem, a history of abuse/neglect, a history of displacement, or his incarceration (although quite probably it is the result of a combination of these factors). Mr. Seth will need significant therapeutic supports to manage his emotional needs, including counseling, psychiatric assessment, and mentoring. In addition, targeted counseling and education to address his sexual behavior and related self-management is necessary. Mr. Seth has demonstrated the capacity for establishing appropriate emotional ties, empathy and a desire to please others; these traits are indicators that he will be able to develop lasting, useful relationships with community-based staff and other supportive adults in his life.
Environmentally, Mr. Seth’s child sexual abuse charges stem, in part, from a lack of supervision by responsible adults and from having been affirmatively placed in a position of caring for children. Continuous supervision at home, in the workplace and any other place he visits in the community is mandatory. This of course includes ensuring unsupervised access to children does not occur.
VIII. RECOMMENDATIONS
It is my opinion, based on the above information, that with appropriate services in place, Mr. Seth can be safely and successfully supported in the community. Based upon my extensive experience with many individuals with a variety of sexual behavioral problems, it is my opinion that Mr. Seth will respond well to supervision and supports. Mr. Seth’s sociability, eagerness to please and willingness to create alliances with responsible adults are highly indicative that he will succeed if provided with appropriately designed supportive living and work environments that incorporate effective supervision.
In order for Mr. Seth to successfully integrate into a community placement, avoid sexual reoffending and minimize other problem behaviors, a number of support strategies should be incorporated.
1. Community Supports. Mr. Seth should participate in a highly structured (i.e., schedule driven) community-based residential program with at least 1:1 staffing on a 24-hour basis. Consistent and continuous supervision is the most effective predictor of preventing sexual re-offending. A comprehensive understanding of Mr. Seth’s strengths and weaknesses by staff is essential to supporting Mr. Seth’s self-management and safety skills required to maintain his placement in the community. Staff should be thoroughly trained on the nature

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of Mr. Seth’s offenses and on non-negotiable safety practices. Mr. Seth should not live or work in areas with unsupervised access to children, and his behavior in the community must be monitored to prevent any unsupervised contact with minors. Mr. Seth has a strong desire to connect with others and can be highly sociable; it would be of benefit to his continued social development to share his living space with no more than one other individual. Any other individual being considered for cohabitation should be carefully screened for mutual compatibility, and the addition of a housemate should in no way interfere with the safety goals of Mr. Seth’s services or his supervision requirements.
The second most effective predictor of preventing re-offending is providing a full and consistent daily schedule of employment and other meaningful activities. It is essential that Mr. Seth acquire and maintain fulfilling employment. Mr. Seth has very limited work experience, and he has experienced job failure in the past. Employment support staff or job coaches must conduct a thorough job skill assessment and assist Mr. Seth in applying for and acquiring meaningful work. While working, Mr. Seth will require continuous supervision for the foreseeable future. His round-the-clock staffing will ensure that he has such support while at work (or job training) and throughout his daily activities. Mr. Seth’s work supervision must be consistent and carefully coordinated with residential supervision.
2. Safety Supports. Mr. Seth’s residential program should establish prudent environmental safeguards. These should include selecting a residence that limits access to children but allows access to other community resources. In practical terms, this means Mr. Seth should reside in a lower-rather than higher-density neighborhood if possible (e.g. a residence in a house or a smaller apartment building as opposed to a large apartment complex). A residence that promotes effective monitoring of exits is important, as is creating a safe and welcoming home environment. A residence that is equipped with window and door chimes is encouraged. Likewise, employment training or work activities should not include activities that allow unsupervised contact with minors, and work environments must allow continuous supervision.
3. Counseling & Psychiatric Supports. Mr. Seth’s support services should include the development of a comprehensive behavioral management plan, a crisis management plan, supportive psychiatric care, intensive counseling services, and a thorough psychosexual assessment and related sexual education. Engagement in mental health counseling is strongly recommended for Mr. Seth to address issues of past abuse, displacement and sexually inappropriate behavior. Any counselor to whom Mr. Seth is referred should have experience in treating victims of abuse and/or Post-Traumatic Stress Disorder and experience working with individuals with intellectual disability. Issues that should be

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addressed in this setting include past abuse, relationships, self-management, sexually appropriate behavior, and self-esteem. Mr. Seth would benefit from consultation with a health and sexuality educator who could further assess Mr. Seth’s education needs and develop a sexual behavior safety protocol. Mr. Seth should also participate in a psychiatric evaluation to determine whether medication is appropriate to support his emotional and behavioral variability (although this will not teach adaptive behaviors).
4. Crisis Management. A carefully constructed, comprehensive crisis management plan should be developed for Mr. Seth. The overall goal of this plan should be to first avoid or prevent crises from occurring, and then to manage crisis behaviors that will ensure the safety of the community and Mr. Seth. Staff will be required to participate in DDS-approved behavior intervention procedures (e.g., Mandt, CPI, or Positive Behavior Strategies); however, additional training or supervision in crisis responding may be required. Antecedent conditions and precursor behaviors must be monitored, identified and prevented or mitigated, and step-wise procedures for a variety of possible scenarios must be created to ensure continued community safety is maintained. Additional crisis management supports should be available and protocols for accessing them should be described clearly in the plan and well understood by staff, such as temporarily increasing staffing or supervision, using a crisis response team, providing on-site de-escalation supports from a qualified mental health professional, and accessing emergency psychiatric care (which may also be defined in a behavior support plan).
5. Self-Management. Mr. Seth’s community-based program must be capable of addressing Mr. Seth’s developmental and behavioral needs and of ensuring the safety needs of his community. Initially, supports for Mr. Seth will be externally mediated (e.g., through staff supervision, scheduled activities and environmental design). The long-range goal for Mr. Seth will be to establish sufficient self-management over his own behavior so that he will be able to live and work in the least restrictive setting possible. Strategies to transfer external control to self-management (internal control) should be implemented over time. Increasing his range of coping strategies will help Mr. Seth deal more effectively with everyday challenges and is a necessary component of learning self-management skills.
6. Non-Directive Strategies. Often, behavior problems are a reflection of the conflict between an individual’s needs for gratification and the environment in which the individual must live, go to work or otherwise follow rules and engage with the community. Non-directive strategies should be incorporated into Mr. Seth’s day to address potential conflicts.
For example, if a problem arises, staff should avoid phrasing expectations as unilateral

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demands and elicit cooperation by offering reminders or asking him to choose an action from a list of options. When Mr. Seth is challenged or ordered by others, he is more likely to engage in an aggressive response (usually verbal threats, refusal or property misuse). Staff should be willing to rephrase requests, be nonconfrontational, find different ways of communicating a message, or allow Mr. Seth additional time to process information. Operationally, this means defusing the “staff-client” power struggle and adopting the role of a mentor or teacher rather than guard or enforcer. Mr. Seth has shown himself to respond positively to interventions from a trusted source (e.g., his case manager at the CTF) even when he is emotionally escalated, and he has a history of reaching out to trusted adults to assist him in de-escalating (e.g., his counsel Ms. Greenman). Mr. Seth should be permitted to engage with trusted individuals in order to problem solve provided this does not violate programmatic or safety rules, compromise supervision or interfere with therapeutic relationships.
Another example of a non-directive strategy is to “train loosely”, where opportunities to instruct on skills are not restricted to training trials. Instead, instruction should be provided whenever and wherever the opportunity presents itself. The purpose of using this strategy is to expand the learning process during opportunistic times and locations where the skills are required.
To be sure, these non-directive strategies must be provided within a framework in which specific safety rules and limits are non-negotiable. Mr. Seth must be fully informed of requirements of supervision, of restrictions on contacts with minors, and on following established rules and routines. Mr. Seth must also be made aware of the consequences of violating such rules, which may include loss of community placement and liberty, and potential incarceration.
7. Positive Programming Strategies. Challenging behavior frequently occurs in settings that lack the opportunities for and instruction in adaptive, age-appropriate behavior. Creating an environment of positive programming will make it more feasible to effectively and directly address Mr. Seth’s challenging behaviors. For example, a person who is taught the difference between demeaning criticism and well-intended feedback may act differently in response to the feedback received from others; this empowers the person to maintain socially effective control over their world. Mr. Seth’s disruptive behavior may also be related to the misperception of social cues. In other words, due to limited comprehension of social cues, he may perceive certain events as being threatening and result in a forceful reaction. An effective intervention would include helping Mr. Seth discriminate between threatening and non-threatening events.

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Some of Mr. Seth’s challenging behaviors reflect his inability to cope with undesired events such as delay in gratification, denial of desired outcomes, or the requirement to perform a non-preferred activity. If Mr. Seth is to lead a full life, from time to time he will face the disappointments everyone must face, such as not getting something that he wants, when he wants it, being told by somebody that a relationship is not possible, being criticized or reprimanded, etc. In the face of these events and the emotions they understandably arouse, Mr. Seth’s coping skills have not had the opportunity to develop much beyond juvenile responses; he is unlikely to develop much beyond this level through experiencing "natural consequences." Thus, direct teaching on discriminating social cues, learning to self-identify arousal levels, and engaging in coping and self-calming strategies are important positive programming goals.
Mr. Seth appears to negotiate his needs with staff in the face of desiring immediate outcomes. While some amount of negotiation is a necessary part of life, it must be made explicit to Mr. Seth that certain things are non-negotiable. These limits should be based on essential safety practices, such as avoiding substance use, following prescribed physician orders, following supervision requirements, prohibiting unapproved visitor access to his residence, remaining in the presence of designated staff and avoiding unsupervised contact with minors. It will be helpful to involve Mr. Seth in discussions of the contracts or rules that will govern his behavior as well as the consequences for rule violations. Such discussions should follow the principles of positive programming practices.
If you have additional questions regarding this report, please contact me at any time.
Respectfully Submitted,
Matthew Mason, PhD, BCBA-D, LBA Licensed Psychologist

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Exhibit 14

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June 18, 2017
Lisa Greenman Attorney At Law 5636 Connecticut Avenue NW #42290 Washington, DC 20015
Re: U.S. v. Markelle Seth
Dear Ms. Greenman,
As per your request, I have reviewed several forensic mental health reports completed over the years to provide an independent opinion of Mr. Seth’s violence risk based on them.
In reaching findings and forming opinions, I reviewed the following forensic mental health evaluation reports, provided by you:
1. Competency evaluation report by Justine A. Bradshaw, MA, and Michael E. Barnes, PhD, dated 28 September 2011 (“Bradshaw & Barnes, 2011”).
2. Competency evaluation report by Samantha E. DiMisa, PhD, and Elissa R. Miller, PsyD, dated 22 December 2014 (“DiMisa & Miller, 2014”).
3. Forensic evaluation report by Kristina P. Lloyd, PsyD, dated 24 August 2015 (“Lloyd, 2015”).
4. Neuropsychological examination report by Robert L. Denney, PsyD, dated 19 October 2015 (“Denney, 2015”), which incorporated information from the District of Columbia public school system from the 2010/2011 school year (“DC public schools, 2010/2011”), the District of Columbia Central Detention Facility from 2015 (“DC CDF, 2015”), and a psychological evaluation by Joette James, PhD, from 2015 (“James, 2015”).
5. Risk assessment report by Matthew Mason, PhD, dated 24 February 2017.
6. Forensic evaluation report by Manuel E. Gutierrez, PsyD, dated 6 March 2017.
7. Forensic evaluation report by Kristina P. Lloyd, PsyD, dated 11 April 2017.
Suite 210, 736 Granville St., Vancouver, BC Canada V6Z 1E4 Office: +1 778 819 7036 | Toll-Free: +1 877 736 0805 www.protect-international.com

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As my task was to review existing forensic mental health reports, I did not review primary information sources myself or interview Mr. Seth. The reports I received, and the information contained in them, were sufficient for me to reach findings and form opinions.
With respect to my qualifications, I have provided a complete curriculum vitae to you under separate cover. Briefly, I obtained BA, MA, and PhD degrees in psychology at the University of British Columbia. I have been on faculty in the Department of Psychology at Simon Fraser University since 1990, and have held the rank of Professor since 2001. I have also been a Visiting Professor in the Faculty of Psychology at the University of Bergen in Norway since 2000. My expertise is in the field of clinical-forensic psychology, with a special focus on the assessment of violence risk and psychopathic personality disorder. I have co-authored more than 215 books, chapters, and articles. I have served as editor of two scientific journals; a member of the editorial board of seven journals; and ad hoc reviewer for more than 30 journals, as well as numerous granting agencies. I have been an executive committee member of several professional organizations, including President of the American Psychology-Law Society (Division 41 of the American Psychological Association), President of the International Association of Forensic Mental Health Services, and a Director of the Canadian Association of Threat Assessment Professionals. I have received various distinctions for this professional work, including the Career Achievement Award from the Society of Clinical Psychology (Division 12 of the American Psychological Association), the Saleem Shah Award for Early Career Research Excellence in Psychology and Law from the American Psychology-Law Society (Division 41 of the American Psychological Association) and the American Academy of Forensic Psychology, and the Distinguished Achievement Award from the Association of Threat Assessment Professionals. I have been qualified to give expert testimony in the Federal Court of Canada and the superior courts of the provinces of Alberta, British Columbia, Manitoba, and Ontario; and in the states of Arizona, California, Florida, Illinois, Iowa, Kansas, Missouri, Texas, Washington, and Wisconsin. I have also been qualified to give expert testimony before various parliamentary committees, inquests and inquiries, tribunals, and review boards in Canada and the United Kingdom. I have consulted to corrections, law enforcement, national security, health care, and other government agencies around the world, including in the United States.
Method
Violence is defined herein as actual, attempted, or threatened psychological or physical harm of another person, including intimidation or fear-inducing behaviour. This definition encompasses acts that would constitute criminal offenses against persons, as well as other offenses that are committed to further violence. Violence risk assessment is the process of evaluating people to characterize the risks that they will commit violence in the future (e.g., the nature, severity, imminence, frequency, and likelihood of future violence), as well as the steps that could be taken to minimize these risks.
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To prepare this report, my work involved two phases. In the first, I summarized the previous forensic mental health reports; the results of this phase are presented below as my Findings. In the second, I interpreted the findings to reach my own conclusions about the violence risks posed by Mr. Seth and the management of those risks; the results of this phase are presented below as my Opinions.
Findings
For the purpose of forming opinions, I assumed the following to be true, based on the information I reviewed:
1. Mr. Seth has problems related to major mental disorder.
a. He suffered from a seizure disorder from infancy until he was about 6 years old. He was treated with medications, and also received physical therapy and speech therapy for associated developmental disabilities.
b. He has generalized deficits in basic cognitive functions, including attention and concentration, as well as significant learning problems. He attended school but was placed in special education classes. Despite attending school until he was about 17 years old, according to standardized testing his overall academic achievement is between the 1st and 4th grade levels (DC public schools, 2010/2011; Bradshaw & Barnes, 2011; James, 2015; Denney, 2015).
c. He has generalized deficits in problem-solving, planning, and reasoning. According to standardized testing, his overall intellectual abilities are “extremely low,” falling in the bottom 1% of the general population (Bradshaw & Barnes, 2011; DiMisa & Miller, 2014; James, 2015; Denney, 2015).
d. He has generalized deficits in adaptive functions, including in the areas of self-care, finances, social skills, and interpersonal relations. His hygiene, oral comprehension, and reading ability are poor. He has problems with insight and empathy; although he has the capacity to appreciate mental states, he also has difficulties at times understanding the reasons for his own behavior and its impact on others. He is susceptible to manipulation by others. His ability to regulate his own emotions and behavior is poor, and he easily becomes agitated, frustrated, distressed, and angry. On occasion, when under stress, he may have experienced suicidal thoughts, as well as transitory perceptual and thought disturbance. He is unable to live on his own; since moving out of his family home when he was about aged 18, he has lived with various family members, in homeless shelters, or with acquaintances. According to standardized testing, his overall level of adaptive functions is “extremely low,” falling in the bottom 1% of the general population (Bradshaw & Barnes, 2011; DiMisa & Miller, 2014;
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Denney, 2015).
e. He has generalized deficits with respect to competency to stand trial, including a limited understanding of the legal system generally and the trial process specifically, as well as limited capacity to communicate with counsel and assist in his own defense. He has been considered incompetent to stand trial by evaluators on multiple occasions (Bradshaw & Barnes, 2011; DiMisa & Miller, 2014; James, 2015; Denney, 2015) and, on another occasion, as impaired but competent with accommodations (Lloyd, 2015).
Based on the overall pattern of symptoms outlined above, Mr. Seth was consistently diagnosed as suffering from intellectual disability (ID), also known as intellectual developmental disorder or mental retardation, of at least mild severity (Bradshaw & Barnes, 2011; DC CDF, 2015; DiMisa & Miller, 2014; Lloyd, 2015; Denney, 2015; Gutierrez, 2017; Lloyd, 2017).
Based on symptoms outlined above related to social skills and mood, Mr. Seth was diagnosed by some evaluators with comorbid mental disorders, including provisional (i.e., possible) autism spectrum disorder (DiMisa & Miller, 2014), mixed depressive and anxiety disorder (DC CDF, 2015), and unspecified mood disorder (Lloyd, 2015).
2. Mr. Seth has some problems related to personality. On one hand, he is often warm, pleasant, and cooperative and does not express generalized procriminal or antiauthority attitudes. On the other hand, starting in adolescence and persisting into adulthood, he is at times angry, uncooperative, rude, disruptive, or aggressive, and had contact with the criminal justice system on several occasions. Evaluators consistently concluded, however, that despite these problems Mr. Seth does not meet diagnostic criteria for conduct disorder or personality disorder (Bradshaw & Barnes, 2011; DiMisa & Miller, 2014; Lloyd, 2015; Denney, 2015; Gutierrez, 2017; Lloyd, 2017).
3. Mr. Seth has possible problems with substance use. On one hand, his substance use is limited to marijuana, there is limited evidence that marijuana use has impaired his functioning, past evaluators did not diagnose him with substance use disorder (Bradshaw & Barnes, 2011; DiMisa & Miller, 2014; Lloyd, 2015; Denney, 2015), and he has not been referred for substance use treatment. On the other hand, more recently he was diagnosed with mild cannabis abuse based on reports indicating he may have used marijuana on a frequent basis (Gutierrez, 2017; Lloyd, 2017).
4. Mr. Seth has possible problems with paraphilic disorder. Specifically, there was disagreement among recent evaluators concerning whether he should be diagnosed with pedophilic disorder (Gutierrez, 2017, and Lloyd, 2017; but cf. Mason, 2017). On one hand, he does not acknowledge deviant sexual
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preferences, thoughts, fantasies, or urges involving children. On the other hand, he has a history of sexual contact with children.
5. Mr. Seth poses a risk for violence and sexual violence in the community that is clinically significant (i.e., requires management), if he were to be released into the community without appropriate management plans:
a. According to a standardized psychological test widely used as an adjunct in risk assessment, the Hare Psychopathy Checklist-Revised (PCL-R; Hare, 2003), Mr. Seth was given scores that are clearly below the diagnostic cutoff for psychopathic personality disorder (Mason, 2017; Lloyd, 2017). Notwithstanding this, there is disagreement concerning whether the scores he was given reflect some elevated risk for general violence (Mason, 2017; Lloyd, 2017).
b. According to an actuarial test of risk for general violence, the Violence Risk Appraisal Guide-Revised (VRAG-R; Rice, Harris, & Lang, 2013), Mr. Seth has a score that indicates about a 37% likelihood of general violence in the community over 5 years (Lloyd, 2017).
c. According to a set of structured professional guidelines for assessing risk of general violence, Version 3 of the Historical-Clinical-Risk Management20 (HCR-20 V3; Douglas, Hart, Webster, & Belfrage, 2013), Mr. Seth has a number of risk factors that indicate an overall risk for general violence that is high (Lloyd, 2017).
d. According to an actuarial test of risk for sexual violence, the Static-99 Revised (Static-99R; Phenix et al., 2016), Mr. Seth has a score that indicates about a 15% to 21% likelihood of sexual violence in the community over 5 years (Gutierrez, 2017; Mason, 2017).
e. According to two sets of structured professional guidelines for assessing risk of sexual violence, the Sexual Violence Risk-20 (SVR-20; Boer, Hart, Kropp, & Webster, 1997) and the Assessment of Risk and Manageability of Individuals with Developmental and Intellectual Limitations who Offend Sexually (ARMIDILO-S; Boer et al., 2013), Mr. Seth has a number of risk factors that indicate an overall risk for sexual violence that is low to moderate (Mason, 2017).
6. Mr. Seth does not have self-generated plans for the future that would effectively mitigate the risks he poses, and indeed lacks the capacity to develop such plans (Mason, 2017; Gutierrez, 2017; Lloyd, 2017). But detailed and feasible management plans have been developed specifically for and in collaboration with Mr. Seth that involve placement in a highly structured, closely supervised, community-based program (Mason, 2017). These plans take into account the risks he poses, as well as his treatment and supervision needs.
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Opinions
Mental Disorder
(a) Intellectual Disability
There was unanimous agreement in the forensic mental health reports I reviewed that Mr. Seth meets diagnostic criteria for mild intellectual disability. I accept the accuracy of this diagnosis; the evidence supporting it is abundant, coming from diverse sources, including appropriate standardized testing, over a period of many years.
(b) Other Major Mental Disorder
Three evaluators concluded that Mr. Seth meets diagnostic criteria for comorbid major mental disorders, based on his problems related to social skills and mood regulation. I do not accept the accuracy of these diagnoses, for several reasons. First, two of the diagnoses were for “unspecified” (i.e., unclear or inchoate) mental disorders. Second, one of the diagnoses was “provisional” (i.e., uncertain or unconfirmed). Third, and most importantly, it is simply unnecessary to posit the existence of comorbid major mental disorders, as the social skills and mood regulation problems on which those diagnoses are based are entirely consistent with and better accounted for by intellectual disability. Authoritative treatises—such as the Diagnostic Manual-Intellectual Disability (DM-ID; Fletcher, Loschen, Stavrakaki, & First, 2007) and its recent revision (DM-ID-2; Fletcher, Barnhill, & Cooper, 2017)—provide guidelines for diagnosis of comorbid major mental disorder in people with intellectual disability; however, there was no indication that the evaluators who diagnosed Mr. Seth with comorbid major mental disorder were familiar with or relied on such guidelines.
(c) Substance Use Disorder
Two evaluators concluded that Mr. Seth meets diagnostic criteria for mild cannabis abuse. I do not accept the accuracy of this diagnosis. Although these evaluators provided evidence that Mr. Seth used cannabis, they did not provide evidence that it caused functional impairment beyond that which is clearly attributable to his intellectual disability.
(d) Paraphilic Disorder
Two evaluators concluded that Mr. Seth meets diagnostic criteria for paraphilic disorder, specifically, pedophilic disorder. I do not accept the accuracy of this diagnosis. Although these evaluators provided evidence that Mr. Seth has a history of sexual contact with children, they did not provide additional evidence of pedophilic interest or preference (e.g., persistent sexual thoughts, images, fantasies, urges, or physiological arousal involving sex with children) and indeed both acknowledged he denied such interest or preference. In the absence of such evidence, and based on the nature of the sexual contact that has been alleged, it is more likely that Mr. Seth’s sexual contact with children was due to restricted opportunity for sexual contact with age appropriate peers,
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along with deficiencies in judgment and impulse control, all of which in turn are a consequence of his intellectual disability; furthermore, these problems were exacerbated by a lack of appropriate intervention and supervision. This pattern of sexual contact among people with intellectual disability with children, sometimes referred to as pseudo-paraphilia or “counterfeit deviance,” has been recognized in the literature on sexual offenders for decades. Authoritative treatises present guidelines for the diagnosis of paraphilic disorder in people with intellectual disability (e.g., DM-ID, DM-ID-2), but there was no indication that the evaluators who diagnosed Mr. Seth with paraphilic disorder were familiar with or relied on such guidelines.
Risk Assessment
(a) PCL-R
I have special expertise with respect to the PCL-R. I assisted in its development; in addition, I have conducted research evaluating its reliability and validity, conducted many professional training workshops on its use, and given expert testimony about it or based on it.
Dr. Mason scored the PCL-R to assess traits of psychopathic personality disorder as part of his administration of the SVR-20. He gave a total score he interpreted as indicating a “low” risk for violence—which, in the context of the SVR-20, is a total score < 20. In her most recent evaluation, Dr. Lloyd (2017) administered the PCL-R as a violence risk assessment tool and gave a total score of 25.3; she interpreted this as indicating “high” risk for violence. Although I believe the PCL-R ratings given by Dr. Lloyd are too high and interpreted incorrectly, it is important to emphasize that Dr. Mason and Dr. Lloyd agree that Mr. Seth is not psychopathic according to the PCL-R (i.e., his total score is clearly below the diagnostic cutoff of > 30), and indeed agree that he does not meet diagnostic criteria for any personality disorder.
I do not accept the accuracy of the PCL-R total score given by Dr. Lloyd, for several reasons. First, it appears that she omitted one PCL-R item, apparently Item 17, and subsequently adjusted or prorated her raw total score up from 24 to 25.3. I found sufficient evidence in the information provided in the forensic mental health evaluations, including those of Dr. Lloyd, to rate all 20 PCL-R items. If I am correct that Dr. Lloyd omitted Item 17, the net effect in this particular case was to artificially inflate the obtained total score by 1.3 points and change her interpretation of the score from “average” to “high” risk. Second, Dr. Lloyd gave Mr. Seth ratings that were too high on several PCL-R items. It has been recognized for some years in the literature that there are potential difficulties scoring the PCL-R in people with intellectual disability (e.g., Morrissey et al., 2010), and guidelines have been developed to assist evaluators (e.g., Morrissey, 2006), but there was no indication that Dr. Lloyd was familiar with or relied on such guidelines. When I rated the PCL-R based on the information summarized in the various forensic mental health evaluations, I found evidence for a high score for 6 items, a moderate score for 7 items, and a low score for 7 items. Overall, the total score I gave was 19 points out of a possible 40—considerably lower than that given by Dr.
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Lloyd but consistent with the “low” score given by Dr. Mason.
I also do not accept Dr. Lloyd’s interpretation of the PCL-R total scores she obtained. First, the PCL-R is not intended to assess risk in isolation, but rather to assess psychopathic personality disorder as part of a comprehensive and contextualized evaluation (e.g., Hart & Storey, 2013). Second, the literature on psychopathic personality disorder exercises caution when using the PCL-R to assess people with intellectual disability due to limited research supporting its meaningfulness in that population (e.g., Morrissey & Hollin, 2011), but there was no indication that Dr. Lloyd was familiar with or relied on this literature. Third, Dr. Lloyd incorrectly interpreted the PCL-R total score she gave Mr. Seth as indicating a high risk for violence. But even if one accepts the accuracy of the original score she reported (i.e., 25.3), it indicates average risk, not high risk; furthermore, if one accepts the accuracy of the PCL-R score given by Dr. Mason and me (i.e., < 20), then it indicates low risk.
(b) VRAG-R
As the VRAG-R was administered only by Dr. Lloyd, there was no disagreement among evaluators concerning it. I was not able to evaluate the accuracy of the VRAG-R score reported by Dr. Lloyd, as she did not provide details of same. That said, I do not accept the usefulness of the VRAG-R in this case. First, the VRAG-R is a statistical profile that provides general expectations regarding recidivism risk based on limited historical information. It does not constitute a comprehensive or contextualized assessment. Second, there is no body of research that supports the accuracy of the VRAG-R (i.e., cross-validation or calibration research by independent researchers) either for offenders generally or for people with intellectual disability more specifically. Dr. Lloyd seems to imply in her report that research on the original VRAG can be used to support the validity of the VRAG-R, but this is not the case.
(c) HCR-20 V3
I have special expertise with respect to the HCR-20. I assisted in the development of it; in addition, I have conducted research evaluating its reliability and validity, conducted many professional training workshops on its use, and given expert testimony about it or based on it.
As the HCR-20 was administered only by Dr. Lloyd, there was no disagreement among the other evaluators concerning it. That said, I do not accept her HCR-20 findings or her interpretation of those findings. First, the literature on the HCR-20 recognizes that special consideration may be required when assessing people with intellectual disability (Johnston, 2002), and clinical guidelines have been published focusing specifically on the use of the HCR-20 with intellectually disabled sex offenders (Boer, Frize, Pappas, Morrissey, & Lindsay, 2010), but there was no indication that Dr. Lloyd was familiar with or relied on this literature. Second, it appears that Dr. Lloyd completed only Steps 1 and 2 of the HCR-20 administration procedure, omitting Steps 3 through 7. Completion of these latter steps is essential for rating the presence of the Risk Management factors,
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as well as for rating the relevance of all the risk factors, developing an individualized formulation of violence risk, and identifying plausible scenarios of future violence. Third, Dr. Lloyd gave Mr. Seth ratings on the Risk Management factors that were too high. This was because she based her ratings solely on Mr. Seth’s self-generated plans, rather than on the release plans detailed by Dr. Mason and accepted by Mr. Seth.
(d) Static-99R
There was no disagreement among the three most recent forensic mental health evaluations concerning Mr. Seth’s score on the Static-99R. I reviewed the Static-99R scores reported by the most recent evaluators and accept their accuracy. That said, I do not accept the usefulness of the Static-99R in this case. The Static-99R is a statistical profile that provides general expectations regarding recidivism risk based on limited historical information. It is not intended to be used in isolation to assess risk, but rather intended to be administered and interpreted as part of a comprehensive or contextualized assessment.
(e) SVR-20 and ARMIDILO-S
I have special expertise with respect to the SVR-20. I assisted in the development of it; in addition, I have conducted research evaluating its reliability and validity, conducted many professional training workshops on its use, and given expert testimony about it or based on it. I am also familiar with the ARMIDILO-S, which was developed by one of the co-authors of the SVR-20. As the SVR-20 was administered only by Dr. Mason, there was no disagreement among evaluators concerning it. I accept Dr. Mason’s SVR-20 and ARMIDILO-S findings, as well as his interpretation of those findings.
Risk Management
As Dr. Mason was the only person to identify a set of management plans that would be, in his opinion, necessary and reasonably sufficient to effectively mitigate the risks posed by Mr. Seth, there was no disagreement among evaluators concerning it. The recommendations with respect to supervision included 24-hour 1:1 staffing, specially trained staff, no more than one housemate, a busy schedule of daily activities, and no unsupervised access to children. The recommendations with respect to intervention included safety supports for the home setting, counseling and psychiatric supports, sexuality education, and a clear crisis management protocol.
I accept the validity of the management plans outlined by Dr. Mason, for two reasons. First, consistent with best practice, the plans were based on a comprehensive assessment of risk factors; an individualized, integrative case formulation; identification of plausible scenarios; and attention to strategic, tactical, and logistical considerations. The plans also reflect a deep understanding of intellectual disability in general and the needs of Mr. Seth more specifically. Second, the management plans are remarkable or noteworthy for being feasible (i.e., available, accessible, and affordable), attentive to Mr. Seth’s unique risk, need, and responsivity factors (i.e., appropriate), and consented to
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by Mr. Seth (i.e., acceptable).
Summary
In my opinion, there are four factors that account for the disagreements between evaluators—and, in particular, between Dr. Mason and Dr. Lloyd—with respect to the nature and management of risks posed by Mr. Seth. First, Dr. Lloyd did not sufficiently take into account Mr. Seth’s intellectual disability when evaluating his mental health problems. As a consequence, she may have inaccurately diagnosed him with substance use disorder and paraphilic disorder. Second, Dr. Lloyd placed too much weight on Mr. Seth’s recent history of behavior problems in custody. That history includes incidents that were primarily reactive in nature and minor in seriousness. Examples include minor rule violations (e.g., wearing the wrong clothes, not sharing a communal television with others) and problems dealing with interpersonal stress or conflict (e.g., rude or disruptive behavior when interacting with staff or fellow residents). Such incidents are expected when dealing with people with intellectual disability, especially when they are placed in closed living environments that lack the programs and trained staff to deal with their special needs (e.g., through contingency management, verbal de-escalation, and so forth). Third, Dr. Lloyd did not develop an adequate integrative formulation of Mr. Seth’s violence risk. As a consequence, she failed to recognize that most of his risk factors (e.g., interpersonal problems, employment problems, problems with insight) are not independent but rather reflect a single underlying risk factor—namely, intellectual disability. Fourth, Dr. Lloyd did not adequately consider options for risk management of Mr. Seth. As a consequence, her report focuses on the risks he poses assuming he does not receive special supervision and intervention. For these reasons, I prefer and agree with the opinions about risk and risk management proffered by Dr. Mason as opposed to those proffered by Dr. Lloyd.
In my opinion, then, this appears to be a rather typical case of a young man with intellectual disability who has had some problems with delinquent or antisocial conduct. The primary risk factors are intellectual disability and attitudes that support or condone criminality and violence; all the other risk factors appear to play a less important role and some (e.g., problems with relationships, employment, insight, instability) are simply the natural consequences of intellectual disability. The primary scenarios of future violence in the community involved a repeat or continuation of past problems including: (a) sexual contact with children with whom he is acquainted, and (b) intimidating or assaultive behavior that is reactive in nature and of mild to moderate seriousness. Effective management of these risks appears to require a structured, closely supervised community based program staffed by people with special skills and experience managing those with intellectual disability. The overall risk of violence and sexual violence in the community appears to be low, assuming implementation of management plans as outlined by Dr. Mason. To be clear, Mr. Seth will almost certainly have adjustment problems, including occasional conduct problems, of the sort one expects when dealing with people with intellectual disability; however, the management plan should be sufficient to effectively mitigate his risks related to the two scenarios identified (i.e., sexual contact with children and intimidating or assaultive behavior).
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Finally, following on the above, it is my opinion that placement in a correctional institution will do nothing to mitigate the risks for violence in the community posed by Mr. Seth. First, he requires specialized services delivered by trained staff. These are not readily available in correctional institutions. Second, he requires long-term services in the community. Time-limited services delivered in an institutional setting are neither necessary nor sufficient to ensure stable adjustment in the community. I am concerned that (continued) placement in a correctional institution may actually lead to iatrogenic risk. That is, if Mr. Seth is denied access to appropriate services, he is likely to have continuing problems with behavior in the institution that may result in increased levels of frustration or anger, an ever-growing record of institutional infractions, and worsened relations with staff. Put differently, placement in a correctional institution may increase his risk—actual or perceived—rather than decrease it, making it less likely that he will be perceived as suitable for release.
Declaration All opinions expressed in this report are mine, and I hold them with a reasonable degree of professional certainty. I do not have any relationships with the authors of the forensic mental health evaluations or commercial interests in the outcome of this case that would constitute a conflict of interest (actual, potential, or perceived) or that would otherwise prevent me from rendering objective and fair opinions in this matter. Sincerely,
Stephen D. Hart, PhD
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References
Blasingame, G. D., Boer, D. P., Guidry, L., Haaven, J., & Wilson, R. J. (2014). Assessment, treatment, and supervision of individuals with intellectual disabilities and problematic sexual behaviors. Beaverton, OR: Association for the Treatment of Sexual Abusers. Available from: www.atsa.com
Boer, D. P., Frize, M., Pappas, R., Morrissey, C., & Lindsay, W. R. (2010). Suggested adaptations to the HCR‐20 for offenders with intellectual disabilities. In L. A. Craig, W. R. Lindsay, & K. D. Browne (Eds.), Assessment and treatment of sexual offenders with intellectual disabilities: A handbook (pp. 177-192). Chichester, UK: Wiley.
Boer, D. P., Haaven, J. L., Lambrick, F., Lindsay, W. R., McVilly, K. R., Sakdalan, J., & Frize, M. (2013). ARMIDILO-S manual, Web Version 1.1. Available at: http://armidilo.net/
Boer, D. P., Hart, S. D., Kropp, P. R., & Webster, C. D. (1997). Manual for the Sexual Violence Risk – 20: Professional guidelines for assessing risk of sexual violence. Burnaby, Canada: Mental Health, Law, & Policy Institute, Simon Fraser University.
Douglas, K. S., Hart, S. D., Webster, C. D., & Belfrage, H. (2013). HCR-20V3: Assessing risk for violence. Burnaby, Canada: Mental Health, Law, and Policy Institute, Simon Fraser University.
Fletcher, R. J., Barnhill, J., & Cooper, S. (Eds). (2017). Diagnostic Manual-Intellectual Disability (DM-ID-2): A textbook of diagnosis of mental disorders in persons with intellectual disability. New York: NADD Press.
Fletcher, R. J., Loschen, E., Stavrakaki, C., & First, M. (Eds). (2007). Diagnostic Manual-Intellectual Disability (DM-ID): A clinical guide for diagnosis of mental disorders in persons with intellectual disability. New York: NADD Press.
Hare, R. D. (2003). Manual for the Hare Psychopathy Checklist-Revised. Toronto: MultiHealth Systems.
Hart, S. D., & Storey, J. S. (2013). Clinical and forensic issues in the assessment of psychopathy. In I. Weiner & R. K. Otto (Eds.), The handbook of forensic psychology, 4th ed. (pp. 556-578). New York: Wiley.
Johnston, S. J. (2002). Risk assessment in offenders with intellectual disability: The evidence base. Journal of Intellectual Disability Research, 46 (s1), 47-56.
Morrissey, C. (2006). Assessment of psychopathy in offenders with intellectual disabilities. Unpublished doctoral dissertation, Department of Health Sciences,
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Case 1:18-cv-01034-BAH Document 29-15 Filed 10/26/18 Page 14 of 14 University of Leicester, Leicester, United Kingdom Morrissey, C., Cooke, D., Michie, C., Hollin, C., Hogue, T., Lindsay, W. R., & Taylor, J. L. (2010). Structural, item, and test generalizability of the Psychopathy Checklist—Revised to offenders with intellectual disabilities. Assessment, 17, 1629. Morrissey, C., & Hollin, C. (2011). Antisocial and psychopathic personality disorders in forensic intellectual disability populations: What do we know so far? Psychology, Crime & Law, 17, 133-149. Phenix, A., Fernandez, Y., Harris, A. J. R., Helmus, M., Hanson, R. K., & Thornton, D. (2016). Static-99R coding rules, revised–2016. Available at: http://www.static99.org/pdfdocs/Coding_manual_2016_v2.pdf Rice, M. E., Harris, G. T., & Lang, C. (2013). Validation of and revision to the VRAG and SORAG: The Violence Risk Appraisal Guide—Revised (VRAG-R). Psychological Assessment, 25, 951-965.
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Exhibit 15

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Proposal for Transition, Safety and Support Services for Markelle Seth

Company Name: Contact: Address:
Phone: Email:

Wholistic Home and Community Based Services, Inc. Miatta Thomas, Maheni John Suite G-1 680 Rhode Island Avenue, NE Washington, DC 20002 202-832-8787 and 202-329-6362 miatta.thomas@wholisticservicesinc.com maheni.john@wholisticservicesinc.com

I. About Wholistic Services

Wholistic Services was started over twenty-five years ago by a management team who already had many years of experience supporting people with multiple disabilities and with the community integration process. Since its inception, Wholistic has been providing a range of services in the District of Columbia to persons diagnosed with Developmental and Intellectual disabilities. We specialize in providing quality, person-centered services and supports to adults with all levels of intellectual impairment who also experience significant sensory, physical, behavioral and/or medical challenges. Of particular relevance to serving Mr. Seth, we also have substantial and successful experience serving individuals diagnosed with mild intellectual disability who require a high degree of supervision because dangerous behavior led them to be involved in the criminal justice system. Wholistic’s name embodies our service philosophy. This philosophy, the total approach, is how our agency supports those with Developmental and Intellectual Disabilities in the most integrated and inclusive settings, consistent with safety of the individual and the community and with evidence based best practices.

Currently, Wholistic provides Intermediate Care Facilities for the Intellectually Disabled in eight homes, all of whom experience moderate to profound levels of intellectual impairment. Two of the homes have 24-hour nursing and serve medically fragile people. In addition, Wholistic operates Supported Living sites, a Residential Habilitation site, Individualized Day Services and a Day Habilitation service for the afore-mentioned population.

Key features of Wholistic’s organizational experience and history include the following:

 A Knowledgeable, Stable, and Hands-On Management Team: The management staff of Wholistic consists of a dedicated group of professionals with many years of direct, handson experience in providing clinical and life skill supports. Upper management can be

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found regularly in the programs ensuring a strong system of internal oversight is in place and evident. House managers, nurses and QIDP staff are held accountable for their performance and leadership in providing safe and effective community services.
 Staff Experience and Stability: Our programs experience low staff turnover. At the direct support level the average staff has been with Wholistic for over two years. The QIDP/House managers average five years at Wholistic, and senior management averages ten years. New staff members are almost exclusively recruited through word of mouth based on known reputation. This organizational experience and stability extends to our clinical teams as well and ensures that the high quality of services and supports provided is consistent and reliable.
 History of Responsible Expansion: Wholistic has expanded gradually over the past 25 years, ensuring that senior level Wholistic staff has always been available to support the development of new services and settings. We have considerable experience in transitioning people who require intensive or pervasive supports and who may be very sensitive and vulnerable to change. Wholistic has always followed a model of gradual and responsible expansion, both to maintain our quality of services and to maintain fiscal integrity for the organization. Although we have experienced a number of payment problems in the District over the past years, they have never posed a threat to the fiscal soundness of the organization, the welfare of the people we serve, or the staff who serve them. Wholistic has never missed or delayed a payroll, nor have we ever failed to satisfy our facility leases or our obligations to other vendors such as day placements.

 Reputation for Quality Services and Supports: Wholistic has a long record in the District of providing reliable, competent and caring service to the people we serve. We provide effective transitioning, service planning, and coordination of care, community integration and program implementation for many people who face complex challenges. Wholistic has a history of maintaining high levels of compliance with federal and local regulations and policies, as well as a reputation of responsiveness to oversight agencies when concerns are identified.
 Experience with Vulnerable People: Since the organization began, Wholistic has served people with intense medical, behavioral and physical needs. Two of the eight homes currently run by Wholistic (Lawrence and Perry Street) serve medically fragile people and provide skilled levels of nursing on a 24 hour basis. The oversight history for those Wholistic programs confirms that the high quality services and supports provided are reliable and consistent.
 Protection of Safety, Health and Management Rights: Over the last 25 years of providing services to the District’s most vulnerable adult citizens, our strong management oversight and dedicated, seasoned staff ensure that Wholistic reports and

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thoroughly investigates all incidents and alerts and that problem situations are remedied in a timely manner.
Wholistic has been approved by the Department of Health to provide Medicaid Waiver Services for several years now. The Wholistic team was active in the roundtable process when Waiver service rules were developed at DDA, and is excited to be part of the selfdirected, flexible service model that is available through waiver.
II. Examples of Successful Services to Court-Involved Individuals
Currently, Wholistic provides support to two persons whom have had substantial engagement with the criminal justice system.
AF is a 36 year old male who, in 2001, at age 19, was found incompetent to stand trial on charges involving inappropriate and dangerous sexual relations with young children and was ordered into the DDA system. He is mildly intellectually disabled and also has an Axis I diagnosis of bipolar disorder. AF was mandated to have 24 hours 7 day per week supervision and to be supported at a 1:1 staffing ratio at all times. Since being admitted to Wholistic, AF has blossomed. He resides in a two-bedroom apartment in a low density and communal neighborhood. His home is decorated to his liking and reflects his personal taste and style. AF is an avid gamer and has a complete gaming system set up in his room and living room. His staff are trained at least quarterly on key areas of support for AF to include behavior supports, Crisis Management and nutrition needs. AF is working on improving his food preparation skills and healthier eating. He cleans and maintains his home with little assistance from staff. He is fully responsible for his laundry and often coaches his roommate on how to complete laundry and other activities of daily living. AF lives a meaningful life and is engaged in activities of his interest. This year alone, he participated in track and field, volleyball and bocce ball in the Special Olympics, winning the silver medal in volleyball. He is an avid bowler and belongs to a bowling league made up of persons without disabilities. AF participates in an employment readiness program and volunteers at a local food bank once a week. He vacations yearly with friends and regularly makes CD compilations of varying types that he sells to friends and neighbors. Since his admission to Wholistic, he has had no interaction with the criminal justice system. He is thriving and hopes to obtain a job working at a grocery store. AF has been committed to District of Columbia since December of 2002. He has received sexuality education that has helped him to understand that the actions that led to his commitment were wrong. He likes his staff and his full and busy schedule, which is based on his interests, preferences, strengths, likes and dislikes. This individualized, person centered plan, combined with consistent and well trained staff, has created an environment that has allowed AF to thrive and not to resist the limits on his personal freedom. While there are inevitably issues and problems that arise, timely and appropriate interventions consistent with his crisis plan and behavior support plan are implemented by AF’s well trained staff. This clear and consistent approach to behavior management has also contributed to AF’s success.

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Another example of a successful transition from the criminal justice system into community based supports facilitated by Wholistic is BB. BB is a 54 year old male who was found incompetent in connection with a murder charge many years ago. BE has a diagnosis of psychotic disorder in addition to intellectual disability. Prior to his release into our services, BB spent a substantial period of time in St. Elizabeth’s Hospital and the DC Jail. BB is six feet four inches tall and a man of stature. BB resides in a vibrant and culturally diverse part of the city. He lives in a spacious one bedroom apartment. His home is tastefully decorated and reflects his style. BB loves music and always has something playing in the background when he is home. His days consist of participating in Individualized Day Services four days a week and working as a janitor in a shopping mall for three hours, one day a week. Individualized day services are community based services that are specifically tailored to the needs of the person utilizing a choice driven process. We believe that when people have a meaningful say in how they spend their days, they are more inclined to engage and thrive and the problems that arise are less frequent and of lower magnitude. BB receives 24 hours daily 1:1 staffing services. Staff are trained at least quarterly on his needs to specifically include his behavior support plan and crisis prevention plan. Since BB’s release into community based supports, he has spent time teaching himself the piano (he prefers to be self-taught and is quite accomplished), being an active member of his church, learning to prepare exquisite meals for himself and family, spending time with his sister and volunteering at a local recycling plant. BB hopes to obtain a more full time job as a janitor. BB began receiving services from Wholistic May 2nd of 2017 after a transition process initiated in October 2016. Over the course of eight months, Wholistic, with the support of DDA and BB’s legal team, assembled a team of exceptional professionals and clinicians. The team met regularly with BB, though he was incarcerated, to develop and implement a detailed plan to ensure a smooth transition into the community. Most of these steps are mentioned below and would be utilized to ensure an effective transition for Mr. Seth. One of the key components of the transition was a meticulous analysis of the person-centered thinking process and identification of what was important to and important for BB. This process also engendered understanding of how to best manage conditions that may create adversity and/or stress and how to empower BE to make good decisions and live a meaningful life in his community.

III. Key Elements of Support Plan for Markelle Seth
Mr. Seth is a 23-year-old man who will be transitioning from the Federal Medical Center in Butner, NC. Mr. Seth has been continuously incarcerated at the DC Jail, the DC Correctional Treatment Facility or at FMC Butner since his arrest on October 2, 2014 in DC on the instant charge of first degree child sex abuse for which he was subsequently charged with production of child pornography. He has been found incompetent to stand trial. Mr. Seth has been extensively evaluated to include assessments of competence, a comprehensive neuropsychological evaluation and risk assessments. Those prior evaluations have been considered and integrated into the development of this plan. Mr. Seth is diagnosed with Mild Intellectual Disability and demonstrates significant weaknesses in language comprehension

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and executive functioning including impulse control, problem solving and frustration tolerance. While during his incarceration Mr. Seth has been prescribed anti-depressant medication on occasion for anxiety and depression, he does not present with chronic and persistent mental illness. He is currently not receiving psychoactive medications and has never received formal mental health services or sexuality education in the community. The rate of behavioral concerns, such as verbal outbursts, aggression and oppositional behavior is not clear but is estimated to be low to moderate. If not appropriately supervised, Mr. Seth presents a risk of engaging in sexually inappropriate behavior with children. This is obviously a matter of significant concern and has been accounted for in this plan.
In order to ensure a smooth and appropriate transition for Markelle Seth, Wholistic proposes:
1. Pre-Transition Review (some of this has already been completed)
a) Conduct record reviews for Mr. Seth, and review all recent reports and recommendations for services.
b) Meet with Mr. Seth, family members, advocates, lawyers, providers, service coordinator and other available support team members (i.e., Georgetown University Center for Child and Human Development) to clarify the immediate and long-term needs and preferences of Mr. Seth.
c) Begin selection of staff, management and clinicians who will provide direct support and services.
2. Transition Planning
a) Identify staff development and preliminary training needs, medical assessment or consultation needs, ongoing support needs, and services or supports that may yet need to be developed or scheduled.
b) Create initial safety related protocols including crisis management plan, behavior support plan, health care plan, supervision protocols (e.g., one-to-one and/or two-toone supervision), and environmental safety plan.
c) Identify suitable residential location based on risk assessment recommendations. d) Provide initial training to identified staff and management regarding community
transition, safety and habilitation needs for Mr. Seth. e) Schedule intake assessments with psychological and psychiatric consultants, mental
health counselor and sexual health educator. f) Cross-train crisis support team members.
3. Transition
a) Complete orientation meeting with support team within 24-hours of transition to community residence.
b) Identify non-negotiable rules with Mr. Seth and create behavioral contract.

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c) Conduct structured behavioral assessments and observations to establish baseline behavior rates, identify functions of targeted behaviors and develop a behavioral support plan within two weeks of transition period.
d) Conduct vocational assessment and develop plan for employment within one month of transition period.
e) Complete nursing assessment and nursing plan of care within one week of transition period.
f) Complete diagnostic, psychiatric and mental health assessments within two weeks of transition period.
g) Complete required modifications to the living environment to enhance safety within two weeks of transition period.
h) Schedule and conduct initial person-centered Individual Support Plan within 30 days of transition period.
i) Create daily schedule of activities with input from Mr. Seth within 30 days of transition period.
j) Identify appropriate and safe leisure activities and locations. k) Conduct at least weekly quality reviews of services.
4. Staff Support, Development and Oversight Stabilization
a) Ensure that staff are trained to the point of competence on ISP’s, BSP’s and HMCP’s and can demonstrate implementation of all health and safety related care plans and protocols.
b) Provide additional ongoing training to staff on key informational and support strategies, such as sexual development, risk monitoring, highly effective supervision, de-escalation strategies, mentoring, identifying at-risk behaviors, facilitating selfmanagement skills, training “loosely.”
c) Conduct staff meetings at least monthly or as needed and include supports from partnering agencies and consulting professionals.
d) Develop a staffing schedule that ensures high quality supervision and rotates relief and crisis staff on a regular basis.
e) Ensure continued oversight and contact with managing staff (house manager, QIDP, professional staff, senior management).
f) Review critical behavioral and mental health data on a bi-weekly basis or as needed (utilize standardized measurement tools).
g) Identify opportunities to increase Mr. Seth’s self-management and safety skills on a continuous basis.
IV. Description of Safety and Community-Based Supports
It is understood that DDA referred Mr. Seth to Wholistic because this agency has a proven track record of successfully serving people with intellectual and other developmental disabilities who have been involved in the criminal justice system, in particular people who have a history of dangerous sexual behaviors.

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1. Residential Services
A review of Mr. Seth’s developmental, educational, legal, family and social history suggests that he would be responsive to and appropriate for placement in a highly structured and supervised community-based residential program and that a more restrictive setting would not be necessary. Wholistic has safely and successfully served people similar to and more behaviorally challenging than Mr. Seth in community settings with appropriate structure, staffing and programming. Given Mr. Seth’s most recent history of alleged sexual misconduct, a highly structured (i.e., schedule driven) community-based residential program with significant staff supervision (i.e., at least 1:1 staffing on a 24-hour basis) is recommended.
Clinical and other interviews indicate that Mr. Seth enjoys the company of others – particularly of other adults, whose approval he seeks. His history of multiple placements, including foster care and homelessness, and his interactions with others in these placements however, suggests that a venue with no more than one housemate should be considered at present. Any other individual being considered for cohabitation should be carefully screened for mutual compatibility, and the addition of a housemate should in no way interfere with the safety goals of Mr. Seth’s services or his supervision requirements.
In light of Mr. Seth’s apparent willingness to live in the community, participate in his own rehabilitation and to acquire the life skills expected of an independent adult to the extent he is able, a mentoring/teaching style program is recommended where he will fully participate in daily living activities. Opportunities for advancing his independence with skills of daily living (i.e., hygiene, home maintenance, cooking, cleaning, laundry, shopping, budgeting, functional reading and writing) will be emphasized with a path to more independence in the future to the extent that is indicated by the level of his functioning and appropriate consideration for the safety of others. These opportunities will be supplemented by intense behavioral management, ongoing supervision and counseling. A comprehensive weekly schedule of activities will be created and revised as necessary to promote consistency of staffing, supervision and support planning (see attached sample weekly schedule).
As with any person who is participating in this program, the goal is to impart the necessary safety and self-management skills to Mr. Seth so that he may achieve increasing independence. There is no set time frame for Mr. Seth achieving access to increased independence, as it will be based on his progress. As described below, Mr. Seth will be supervised by staff at all times, including when he is in his residence.
2. Vocational Services
Services for Mr. Seth will include vocational supports during the working day. Staff working with Mr. Seth will function as job coaches – their main focus is to help prepare Mr. Seth for the work force. This preparation will begin with a thorough assessment of Mr.

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Seth’s skills and interests followed by resume building, completing job applications and teaching interview skills. The goal is to provide real work opportunities in the community within a year. Once employed, job coaches will participate in work activities with Mr. Seth – remaining present with him on site and providing continuous 1:1 supervision – to ensure his continued coaching and safety for himself and others. Employment support staff or job coaches must be trained, consistent and carefully coordinated with residential supervision.
3. Staffing and Supervision
Direct support staff will be carefully selected for their experience in working with people with intellectual disabilities who have a history of court involvement. In addition to required basic training related to providing support (i.e., fundamental rights, personcentered planning, developmental disabilities, medication administration, first aid, aging across the lifespan, sexual development), staff will be provided with advanced training on topics such as positive behavior supports, legal involvement, and counseling and teaching strategies.
Staffing ratios may be as high as 2:1 during the first several months if deemed necessary, and this level of supervision will be closely reviewed. It is anticipated that Mr. Seth will be able to transition to 1:1 staff supervision within one year or less, dependent on his success in the program. Supervision will be provided in such a way as to ensure that staff are always close enough to protect Mr. Seth and others from possible harm. Typically, in a two- to fourperson home, at least two awake-overnight staff members are provided.
Staff will utilize a mentoring model, which incorporates demonstrating desired behaviors, using nondirective coaching strategies to avoid power struggles, and using incidental teaching strategies; these strategies must be provided within a framework in which specific safety rules and limits are non-negotiable. Mr. Seth will be fully informed of requirements of supervision, restrictions on contacts with minors and unapproved visitors, adhering to established rules, avoiding use of illicit substances, and following scheduled routines. Mr. Seth will also be made aware of the consequences of violating such rules, which may include loss of community placement and liberty, and potential incarceration.
An on-call crisis team will be created and trained to respond to any crises that occur in order to support Mr. Seth’s safety and his identified team. Crisis team members will be included in all required and routine staff trainings related to Mr. Seth’s support needs. Crises team members will also be rotated through routine service schedules to ensure ongoing familiarity with Mr. Seth and his progress.
4. Behavioral Health and Related Services
Mr. Seth will have ongoing access to behavioral health services from Wholistic, which will include the development of a behavior support plan designed to prevent/manage undesired behaviors while describing methods to teach alternative behaviors. An interim behavior

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support plan will be developed during Mr. Seth’s transition into community-based learning to be followed by the development of a comprehensive plan based on a functional assessment as soon as is feasible. Wholistic emphasizes positive behavior supports in the development and implementation of behavioral supports; while certain privileges may be made contingent on Mr. Seth meeting behavioral goals, no aversive interventions are utilized. Such an approach is consistent with evidence-based best practices in the field of developmental disabilities.
Consultations with professional services will be sought in the community, such as psychiatric care, psychosexual assessment and training, and counseling as needed. Georgetown University’s Center for Child & Management Development has offered to provide consultation to Wholistic to explore Mr. Seth’s needs, particularly in regards to assessment and education of sexual behavior. Psychiatric consultation will be provided by Ron Koshes, MD, via a private contract for services with Wholistic. Behavioral and associated therapeutic services will be provided by Rebecca Yount, PsyD to address issues such as history of abuse, development of appropriate relationships, improving selfmanagement skills, sexually appropriate behavior, and building self-esteem.
5. Nursing Care
Mr. Seth’s medical needs will be monitored on a weekly basis by a registered nurse under the supervision of Wholistic. All routine medical care will be provided in the community.
6. Safety and Crisis Management
Wholistic recognizes that Mr. Seth’s successful participation in a community-based program is dependent on keeping him safe and preventing harm to members of his community. In addition to a high level of supervision 24/7, staff will be trained in essential strategies for supporting people with developmental disabilities (i.e., overview of developmental disabilities, fundamental rights and preventing abuse and neglect, development across the lifespan, dual diagnoses, positive behavior supports, sexual development and behavior, health care management, essential lifestyle planning, etc.).
Antecedent conditions and precursor behaviors to critical behaviors will be identified, monitored, and prevented or mitigated, and step-wise procedures for a variety of possible scenarios must be created to ensure continued community safety is maintained. Additional crisis management supports will be available to staff, such as temporarily increasing staffing or supervision, using a crisis response team, providing on-site de-escalation supports from a qualified mental health professional, and accessing emergency psychiatric care (which may also be defined in a behavior support plan). Staff will receive training in crisis management strategies using the CPI System. CPI is a comprehensive and integrated system of de-escalating undesired behavior (up to and including hands-on physical management if safety requires it) while supporting the emotional, psychological and physical safety of the person and the people around the person

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Case 1:18-cv-01034-BAH Document 29-16 Filed 10/26/18 Page 11 of 13

A variety of other safety support will be initiated, such as on-call services with managers and senior staff available around the clock to assist with potential crisis events, adjusting the physical layout of the home to reduce the potential risk of harm, and providing Mr. Seth with his own bedroom to ensure privacy and a safe haven. Wholistic will also work with DDA to ensure clarity regarding the protocol that would be followed in the event of an elopement, including notification of law enforcement as well as DDA. Wholistic has experience utilizing all of these measures.
From Wholistic’s experience working with people with profiles similar to Mr. Seth, it is clear that while the above safety precautions are necessary and appropriate, the most essential keys to a successful and safe experience for Mr. Seth will be engagement in activities that are meaningful to him, ensuring staff assigned to supervise him are welltrained and supported, providing high levels of supervision, as well as continuous oversight and evaluation of program services. Building, with Mr. Seth’s active involvement, a home and a way of life that he is invested in will be the surest way to achieve success and meet the needs of both Mr. Seth and his community.
Additionally, non-negotiable safety limits on Mr. Seth’s behavior and activities will be established, monitored and enforced. As an example, Mr. Seth should not have access to areas where unsupervised contact with minors is likely and his behavior in the community must be monitored to prevent any such contact. Mr. Seth’s residence should be located in a neighborhood that limits access to children but allows access to other community resources. In practical terms, this means Mr. Seth should reside in a lower-rather than higher-density neighborhood if possible (e.g. a residence in a house or a smaller apartment building as opposed to a large apartment complex). A residence that promotes effective monitoring of exits is important, as is creating a safe and welcoming home environment. A residence that is equipped with window and door chimes is encouraged.
7. Person Centered Planning
Mr. Seth’s services will be driven by the philosophy of person centered planning, which is a set of approaches designed to assist people in planning their life and desired supports to increase their self-determination and improve their independence. As part of this philosophy, an “essential lifestyle plan” will be developed with Mr. Seth to help him discover and attain what matters most to him and identify what supports might be needed. Supportive team discussions related to health and safety (e.g., both the safety of Mr. Seth as well as community safety) with direct input from Mr. Seth are an integral part of essential lifestyle planning.
The long-range goal for Mr. Seth will be to improve self-management of his behavior so that he will be able to live and work in the least restrictive setting possible. Increasing his range of coping strategies will help Mr. Seth deal more effectively with everyday challenges and is a

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necessary component of learning self-management skills. Strategies to improve his selfmanagement will be identified and incorporated into his person-centered plan.

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Case 1:18-cv-01034-BAH Document 29-16 Filed 10/26/18 Page 13 of 13

V. Sample Weekly Activity Schedule

Time 7:00 am to
7:30 am
7:30 am to 8:30 am
8:30 am to 9:00 am
9:00 am to 10:00 am
10:00 am to 11:00 am
11:00 am to Noon
Noon to 1:00 pm

Tuesday

Tuesday

Wednesday

Thursday

Friday

Saturday

Sunday

Wake Up, Medications,
Breakfast

Wake Up, Medications,
Breakfast

Wake Up, Medications,
Breakfast

Wake Up, Medications,
Breakfast

Wake Up, Medications,
Breakfast

Sleep Late

Sleep Late

Hygiene

Hygiene

Hygiene

Hygiene

Hygiene

Wake Up,

Prepare for Day Prepare for Day Prepare for Day Prepare for Day Prepare for Day Medications,

Breakfast

Wake Up, Medications,
Breakfast

Depart Home 816 Easley Street

Depart Home 816 Easley Street

Depart Home 816 Easley Street

Depart Home 816 Easley Street

Depart Home

Hygiene

Hygiene

816 Easley Prepare for Day Prepare for Day

Street

Psychiatrist 35 K. St NW

Job Prep 900 Wayne
Avenue

Job Prep 900 Wayne
Avenue

Job Prep 900 Wayne
Avenue

Job Prep 900 Wayne
Avenue

Depart Home 816 Easley Street

Depart Home 816 Easley Street

Job Prep 900 Wayne
Avenue

Job Prep 900 Wayne
Avenue

Job Prep 900 Wayne
Avenue

Job Prep 900 Wayne
Avenue

Job Prep 900 Wayne
Ave

Mall

Church

8661 Colesville 8900 Georgia

Road

Avenue

Job Prep 900 Wayne
Avenue

Job Prep 900 Wayne
Avenue

Job Prep 900 Wayne
Avenue

Job Prep 900 Wayne
Avenue

Job Prep 900 Wayne
Avenue

Mall

Church

8661 Colesville 8900 Georgia

Road

Avenue

Lunch

Lunch

Lunch

Lunch

Lunch

Lunch

Lunch

1:00 pm to 2:00 pm
2:00 pm to 3:00 pm
3:00 pm to 3:30 pm
3:30 pm to 4:30 pm

Bowling 11207 New Hampshire Ave
Bowling 11207 New Hampshire Ave
Return Home 816 Easley Street
Leisure In Home

Basket Ball 200 Denver
Court
Basket Ball 200 Denver
Court
Return Home 816 Easley Street
Leisure In Home

Counseling 680 Rhode Island Ave
Counseling 680 Rhode Island Ave
Return Home 816 Easley Street
Leisure In Home

Basket Ball 200 Denver
Court
Basket Ball 200 Denver
Court
Return Home 816 Easley Street
Leisure In Home

Sex Education Georgetown University
Sex Education Georgetown University
Return Home 816 Easley LSetirseuert e In Home

Gym 8616 Cameron
Street
Gym 8616 Cameron
Street
Return Home 816 Easley LSetirseuert e In Home

Groceries 12011 Georgia
Avenue
Groceries 12011 Georgia
Avenue
Return Home 816 Easley
Street
Leisure In Home

4:30 pm to 5:00 pm

Dinner Preparation

Dinner Preparation

Dinner Preparation

Dinner Preparation

Dinner Preparation

Dinner Preparation

Dinner Preparation

5:00 pm to 6:00 pm

Dinner

Dinner

Dinner

Dinner

Pizza Party

Dinner

Dinner

6:00 pm to 7:00 pm

Clean Up Medication

Clean Up Medication

Clean Up Medication

Clean Up Medication

Clean Up Medication

Clean Up Medication

Clean Up Medication

7:00 pm to 9:00 pm

Leisure In Home

Leisure In Home

Leisure In Home

Leisure In Home

Leisure In Home

Leisure In Home

Leisure In Home

9:00 pm to 10:00 pm

Hygiene, Prepare for
Bed

Hygiene, Prepare for
Bed

Hygiene, Prepare for
Bed

Hygiene, Prepare for
Bed

Hygiene, Prepare for
Bed

Hygiene, Prepare for
Bed

Hygiene, Prepare for
Bed

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 Case 1:18-cv-01034-BAH Document 36 Filed 05/08/19 Page 1 of 23

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARKELLE SETH, Plaintiff, v.
DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 18-1034 (BAH) Chief Judge Beryl A. Howell

MEMORANDUM OPINION The plaintiff, Markelle Seth, seeks to alter or amend the portion of this Court’s judgment entered on September 28, 2018, see Seth v. District of Columbia, No. 18-cv-1034 (BAH), 2018 WL 4682023 (D.D.C. Sept. 28, 2018) (“2018 Decision”), that dismissed with prejudice his complaint seeking to require the defendants, the District of Columbia, District of Columbia Department on Disability Services (“DDS”), and Andrew Reese, in his official capacity as Director of DDS (collectively, “defendants”) to “promptly accept physical and legal custody of” Seth, Compl. at 48, ECF No. 1, based on four alleged violations of federal and local antidiscrimination laws, including Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 794; the District of Columbia Human Rights Act of 1997 (“DCHRA”), D.C. CODE § 2-1401.01 et seq.; and the Citizens with Intellectual Disabilities Civil Rights Restoration Act of 2015 (“CIDA”), D.C. CODE § 7-1301.01 et seq. As support for reconsideration, Seth asserts that dismissal of his Complaint with prejudice was “clear error,” Pl.’s Mot. to Alter or Amend Judgment & Mot. for Leave to File Am. Compl. (“Pl.’s Mot.”) at 2, ECF No. 29, particularly since he now “possesses additional facts that further support his claims and that specifically
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address this Court’s concerns” with his original complaint, id. He therefore seeks leave to file an Amended Complaint, a copy of which is attached to his motion. See Pl.’s Mot., Attachment 1, Proposed Am. Compl. (“Proposed Am. Compl.”), ECF No. 29-1. For the reasons explained below, Seth’s Motion to Alter or Amend the Judgment is denied, and his Motion for Leave to File an Amended Complaint is therefore denied as moot. I. BACKGROUND
The 2018 Decision laid out this matter’s statutory framework and procedural history in some detail, see 2018 Decision at *1–8, and thus only the essentials are recounted here.
A. Competency Proceedings in the District of Columbia and the Eastern District of North Carolina
Seth, a “resident of the District of Columbia with an intellectual disability,” id. at *3, was arrested on October 16, 2014 and “charged in this Court with ‘one count of production of child pornography for allegedly using his cell phone to videotape two children in his household engaging in sexual behavior with him, in violation of 18 U.S.C. § 2251(a),” id. at *4 (quoting Compl. ¶ 32). On October 23, 2014, Seth’s counsel requested an examination of Seth’s mental competency pursuant to 18 U.S.C. § 4241(a), which motion was granted. Id. Over the next several years, the parties followed the three-stage statutory process that the Insanity Defense Reform Act of 1984 (“IDRA”), Pub. L. No. 98-473, 98 Stat. 2057, establishes to determine whether an individual “is a long-term incompetent and sufficiently dangerous to require indefinite institutionalization.” United States v. Weissberger, 951 F.2d 392, 395–96 (D.C. Cir. 1991) (citing 18 U.S.C. § 4241(d)); see also 2018 Decision at *2–3 (describing this statutory framework).
Since December 22, 2016, following this Court’s adoption, “without objection” from either Seth or the government, of a Magistrate Judge’s Report and Recommendation that Seth “is
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incapable of being restored to competency in the foreseeable future,” Seth has been in the custody of the Attorney General at FMC Butner, in North Carolina. See 2018 Decision at *5 (quoting Order (Dec. 22, 2016) at 1–2, United States v. Seth, No. 14-mj-608 (D.D.C. Dec. 22, 2016), ECF No. 77). On April 11, 2017, FMC Butner psychologist Dr. Kristina Lloyd concluded that Seth was “suffering from a mental disease or defect as the result of which his release to the community would create a substantial risk for bodily injury to another person or serious damage to the property of another.” Id. (internal quotation marks and citation omitted). Three days later, the Complex Warden at FMC Butner executed a “certificate of dangerousness” pursuant to 18 U.S.C. § 4246, citing Dr. Lloyd’s conclusions, and stating that “suitable arrangements for State custody are not available.” Id. (internal quotation marks and citation omitted). This certificate was filed, on April 28, 2017, in the District Court for the Eastern District of North Carolina, the district where FMC Butner is located. Id.
On May 24, 2018, a competency hearing was held in the Eastern District of North Carolina, after which the Court entered an order finding “by clear and convincing evidence” that Seth was “presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to the property of another,” id. at *6 (quoting E.D.N.C. Commitment Order (“E.D.N.C. Commitment Order”) at 1, United States v. Seth, No. 17-hc-2090 (E.D.N.C. May 25, 2018), ECF No. 32), and that state placement was not available in the District of Columbia, id. (internal quotation marks and citation omitted). Seth was therefore committed to the custody and care of the Attorney General, pursuant to 18 U.S.C. § 4246. Id. (internal quotation marks and citation omitted).
Although Seth is committed to the custody of the Attorney General, the IDRA provides that a person “shall” be released “to the appropriate official of the State in which the person is
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domiciled or was tried if such State will assume responsibility for his custody, care, and treatment.” 18 U.S.C. § 4246(d). The Attorney General “shall make all reasonable efforts to cause such a State to assume responsibility,” id., and must hospitalize the person for treatment in a suitable facility until the State assumes responsibility or the person may be released without creating a substantial risk of bodily injury to another person or serious damage to property of another, whichever occurs first. Id. § 4246(d)(1)–(2). The Attorney General must “continue periodically to exert all reasonable efforts to cause such a State to assume such responsibility for the person’s custody, care, and treatment.” Id. § 4246(d).
“[A]t any time during [the] person’s commitment,” his counsel or legal guardian may “file with the court that ordered the commitment a motion for a hearing to determine whether the person should be discharged” from the facility, so long as no motion is filed within 180 days of a court determination that the person should continue to be committed.” Id. § 4247(h). For the period of almost one year since Seth has been committed at FMC Butner, no such motion has been filed.
B. Efforts for Seth’s Placement in D.C. Community-Based Program While Seth’s federal competency and civil commitment proceedings were ongoing, his counsel made efforts to have him placed in a community-based program within the District of Columbia. 2018 Decision at *6–7. Beginning in March 2015, DDS and its then-Director Laura Nuss indicated that Seth was eligible for DDS services and DDS made plans to move for civil commitment of Seth. See id. at *6. Prior to Seth’s competency hearing in this Court in May 2016, id. at *5, defendant Reese replaced Nuss as the Director of DDS, and requested that a new risk assessment of Seth be prepared, id. at *7. DDS’s expert, Dr. Matthew Mason, subsequently found, on February 24, 2017, that Seth could be safely supported in a highly structured, closely supervised
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community-based program, id., which conclusion was endorsed, on June 18, 2017, by Dr. Stephen Hart, an expert retained by Seth, id. Between these two reports, however, FMC Butner’s expert Dr. Lloyd concluded that Seth’s release to the community would create a substantial risk for bodily injury to another person or serious damage to the property of another, prompting the Complex Warden of FMC Butner to file a certificate of dangerousness, resulting in a judicial order finding, by clear and convincing evidence, that Seth’s release would create a substantial risk of bodily injury to another person or serious damage to the property of another. Id. Since that judicial order, which relies in part on a finding that suitable state arrangements are not available, DDS has not attempted to take responsibility for Seth’s care. This local agency inaction has led to this lawsuit.
C. Procedural History Seth filed his original civil complaint in this action on May 1, 2018, after the Complex Warden of FMC Butner issued a certificate of dangerousness but before the Eastern District of North Carolina held a competency hearing. The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) on June 14, 2018, see Defs.’ Mot. to Dismiss, ECF No. 19, which motion was fully briefed as of July 26, 2018. Seth did not move for leave to amend his complaint at any point prior to issuance of the September 28, 2018 Decision granting the defendants’ motion to dismiss. The complaint was dismissed with prejudice as to all counts. See Order (Sept. 28, 2018) at 1, ECF No. 27. The federal and state antidiscrimination claims were dismissed because Seth failed to establish that he was discriminated against based on his disability, let alone based solely on his disability. 2018 Decision at *12–13 (ADA and RA claims); id. at *15 (DCHRA claim). Although Seth made much of DDS’s apparent change of position regarding accepting responsibility for his care, he offered nothing to suggest that DDS, an organization whose
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purpose is to provide services for individuals with disabilities, changed its position as a result of Seth’s disability rather than as a result of other factors, inter alia, a change in leadership at DDS, possible budgetary strains, and, most significantly, certification by the warden at FMC Butner and a holding by the Eastern District of North Carolina, based on clear and convincing evidence, that Seth posed a substantial risk of causing bodily injury to another person or serious damage to the property of another if released into the community. See id. at *12. Likewise, Seth’s unjustified isolation claim failed because he could not offer sufficient indications that community placement was appropriate or could be reasonably accommodated, in light of the dangerousness finding in the Eastern District of North Carolina—a finding that may only issue if suitable arrangements for state custody or care are unavailable. See id. at *13–14. “In the absence of suitable arrangements in the District, the [unjustified isolation] test is not satisfied.” Id. at *14. Notably, the Court pointed out that Seth has not challenged the dangerousness finding in the Eastern District of North Carolina by filing a motion for discharge under 18 U.S.C. § 4247(h) and has not challenged his continuing custodial status by initiating a habeas proceeding under 18 U.S.C. § 4247(g). See id. at *14 n.12 (“[A]lthough Seth has failed to state a claim under the antidiscrimination laws, alternative avenues for relief remain open.”). Moreover, the Court noted that although Seth’s unjustified isolation claim relied in part on United States v. Ecker, 489 F. Supp. 2d 130 (D. Mass. 2007), in which the court “direct[ed] the government to provide a detailed report within six months . . . identifying all reasonable efforts exerted to cause the [state] to assume custody,” of a defendant committed to the care of the Attorney General, id. at 137 “[s]uch relief is not available in [Seth’s] antidiscrimination case” as Seth sued only local government parties. 2018 Decision at *14 n.12.
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Seth’s CIDA claim was dismissed with prejudice because the CIDA does not create a private right of action in federal court for individuals, such as Seth, who have not been determined intellectually disabled through the process set out by the CIDA, which process entails a discretionary decision on the part of the District to file a commitment petition in the Superior Court of the District of Columbia. See id. at *15–17. Once again, the Court pointed out that Seth had not pursued his CIDA claim by challenging the District’s inaction in the Superior Court of the District of Columbia. See id. at *17 n.15 (“[W]hile Seth does not have a federal right of action to enforce his rights under the CIDA, such an action may be available in the Superior Court of the District of Columbia.” (citing D.C. CODE § 7-1305.13(a)).
D. Plaintiff’s Motion to Amend or Alter the Judgment and for Leave to Amend the Complaint
Rather than pursuing any alternative avenue of relief available to him in the Eastern District of North Carolina or in the Superior Court of the District of Columbia, Seth has returned once again to this Court, with the same claims, hoping for a different result.1 Specifically, Seth moves to vacate the portion of the September 28, 2018 judgment dismissing his claims with prejudice, contending that dismissal with prejudice was clear error and that such dismissal is only permitted when there is no set of facts that he could possibly adduce to meet the pleading standards, whereas Seth now “possesses significant evidence . . . that reinforce[s] his claims.” Pl.’s Mem. at 7–8. The defendants counter that “dismissal with prejudice was appropriate and leave to amend should be denied because there are no factual allegations consistent with those

1

The plaintiff, failing to acknowledge or, apparently, to pursue these alternative avenues for relief, accuses

the Court of leaving Seth “in a hopeless ‘catch 22’ situation in which he has no meaningful avenue for relief,” Pl.’s

Mem. in Supp. of Mot. to Alter or Amend Judgment & Mot. for Leave to File Am. Compl. (“Pl’s Mem.”) at 4, ECF

No. 29, and “in cruel and hopeless limbo,” id. at 16. In light of the plaintiff’s allegations that “he is experiencing

significant harm from [his] placement,” id. at 2, counsel would be well advised to consider carefully the full range of

options available. See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, No. 18-5116, 2019 WL

1907230, at *6 (D.C. Cir. Apr. 30, 2019) (“[Plaintiff’s] failure to pursue these alternatives causes [his] cries of

unfairness to ring hollow.”).

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previously pled that could cure the deficiencies in the original Complaint.” Defs.’ Opp’n to Pl.’s Mot. to Alter or Amend Judgment & Mot. for Leave to File Am. Compl. (“Defs.’ Opp’n”) at 1, ECF No. 31. Further, the defendants assert that leave to amend should be denied because granting that relief now would be both unduly prejudicial and futile, as the Proposed Amended Complaint fails to cure the deficiencies warranting dismissal in the first place. Id. at 6. For the reasons explained below, Seth’s motion is denied. II. LEGAL STANDARD
Rule 59(e) allows a party to file “[a] motion to alter or amend a judgment.” FED. R. CIV. P. 59(e). “A Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). As the D.C. Circuit recently stressed, “the reconsideration or amendment of a judgment is nonetheless an extraordinary measure.” Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018). A Rule 59(e) motion “may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment,” id. (quoting Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008)), and “is ‘not a vehicle to present a new legal theory that was available prior to judgment,’” id. (quoting Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012)). Thus, “Rule 59(e) is not available to a party who ‘could have easily avoided the outcome, but instead elected not to act until after a final order had been entered.’” Id. at 220 (quoting Ciralsky v. CIA, 355 F.3d 661, 665 (D.C. Cir. 2004)).
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When a Rule 59(e) motion seeks review of dismissal of a complaint, and is accompanied by a proposed amended complaint that purports to cure the deficiency prompting the original dismissal, the proper procedure requires the plaintiff first to “satisfy Rule 59(e)’s more stringent standard,” Firestone, 76 F.3d at 1208, before Federal Rule of Civil Procedure “15(a)’s liberal standard for granting leave to amend governs,” id.; see also Osborn v. Visa Inc., 797 F.3d 1057, 1062 (D.C. Cir. 2015) (noting that “[a]s a technical matter, the District Court lack[s] authority to rule on the merits of the Rule 15(a) motion [if] it did not modify its final judgment dismissing [the case]”). At the same time, the D.C. Circuit has instructed that “the Rule 59(e) motion should be granted” “if the dismissal of the complaint with prejudice was erroneous[,] that is, the Rule 59(e) motion should be granted unless ‘the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.’” Brink v. Cont'l Ins. Co., 787 F.3d 1120, 1128 (D.C. Cir. 2015) (quoting Firestone, 76 F.3d at 1209). III. DISCUSSION
In urging reconsideration under Rule 59(e), Seth argues that dismissal of his complaint with prejudice was erroneous for two reasons. First, he complains that the reasons for dismissing with prejudice were not adequately explained in the 2018 Decision. Pl.’s Mem. at 7–9. Second, he argues that he now possesses “significant evidence” supporting his claims, id. at 8, illustrating that he is able to allege “other facts consistent with the challenged pleading,” id. at 5 (quoting Firestone, 76 F.3d at 1209), which facts cure the complaint’s prior deficiencies. Each of these arguments is addressed in turn.
A. Dismissal with Prejudice was Both Warranted and Adequately Explained According to Seth, the dismissal of his complaint with prejudice must be in error because “the Memorandum Opinion identifies numerous possible areas where additional or other facts could cure the supposed defects in [Seth’s] original Complaint.” Id. at 9. He presses this point
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in his reply, which largely consists of tables matching deficiencies identified in the prior ruling with new allegations contained in the Proposed Amended Complaint that purport to address each such deficiency. See Pl.’s Reply to Defs.’ Opp’n (“Pl.’s Reply”) at 6–10, ECF No. 32.
Seth errs in assuming that the recitation in the 2018 Decision of certain facts he failed to elucidate was an indication that such facts could cure the complaint. They cannot. The central reason that his federal and state antidiscrimination claims were dismissed with prejudice is that he could not allege sufficient facts suggesting that he was denied DDS services due to his disability, rather than due to the fact—barely acknowledged in his complaint—that he had been deemed by a federal court, by clear and convincing evidence, to be a danger to the community. See 2018 Decision at *11–14. As the defendants argue, this fact, which remains unchallenged in the Eastern District of North Carolina, “undermines any allegation—that was pled or could be pled—suggesting that the District failed to act for plaintiff . . . because he has an intellectual disability.” Defs.’ Opp’n at 5 (internal quotation marks and citation omitted). The emphasis, in the original ruling, on the dangerousness finding by the warden at FMC Butner and by the Eastern District of North Carolina offered sufficient explanation why “the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency” in the complaint, and therefore provided sufficient explanation as to why the federal and state antidiscrimination claims were dismissed with prejudice. See Firestone, 76 F.3d at 1209 (internal quotation marks and citation omitted); He Depu v. Yahoo! Inc., 334 F. Supp. 3d 315, 321 n.8 (D.D.C. 2018) (“[T]he amended allegations must be consistent with plaintiffs’ pleading, not with issues noted by the Court.”).
The dangerousness finding was also the foundation for the dismissal with prejudice of Seth’s unjustified isolation claim. See 2018 Decision at *14. In light of the Eastern District of
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North Carolina’s finding, by clear and convincing evidence, that Seth’s release to the community would pose a substantial risk of causing bodily injury and that state placement was not available, Seth could allege no facts that the state’s treatment officials had determined that community placement was now appropriate or could be reasonably accommodated. Id. at *13–14. As noted in the prior ruling, the Rehabilitation Act does not require that any benefit extended to one category of handicapped persons be extended to all other categories, see id. at *14 (citing Traynor v. Turnage, 485 U.S. 535, 549 (1988)), nor does the IDRA provide for judicial review as to whether suitable arrangements for state custody are in fact available, id. (citing United States v. Wigren, 641 F.3d 944, 946 (8th Cir. 2011)).2 Notwithstanding Seth’s frustration with the District’s refusal to serve him, given the conditional language of the IDRA, the Attorney General is not required to release a committed person to the District in the absence of the District’s willingness to assume responsibility for that person’s custody, care, or treatment, id., and thus the decision to dismiss Seth’s unjustified isolation claim with prejudice was warranted and adequately explained.
Finally, Seth’s CIDA claim was dismissed with prejudice based on the conclusion that no private right of action in federal court is provided for individuals, such as Seth, who have not

2

Seth protests that because the District determined in March 2015 that “carefully supervised

community-based services are appropriate,” Pl.’s Mem. at 13, the “subsequent decision by DDS not to provide

services to [Seth] is not a determination by DDS sufficient to satisfy the Olmstead v. L.C. ex rel. Zimring, 527 U.S.

581 (1999) standard[] that community based services are not ‘appropriate,’” id. at 13–14. These arguments have

already been rejected, 2018 Decision at *14, and Seth offers no citation to undermine the cases relied upon, such as

Wigren, 641 F.3d at 946–47, which held that the IDRA does not provide for judicial review of or establish standards

for determining whether suitable arrangements for state custody are available, nor does it endow the committed

person with a judicially enforceable right to state custody. See also United States v. Johnson, 453 F. App’x 664, 667

(8th Cir. 2012) (holding that the government is not required to put on proof on the matter of state custody aside from

the initial certification by the warden). Further, whatever quarrel Seth has with DDS’s “unilateral[]” decision that

state placement is not appropriate, Pl.’s Mem. at 14, this assessment was ratified by the Complex Warden at FMC

Butner and the Eastern District of North Carolina. See 2018 Decision at *6 (noting that the Eastern District of North

Carolina found that “state placement is not available” in the District (quoting Competency H’rg Tr. (May 24, 2018)

at 46:19, United States v. Seth, No. 17-hc-2090 (E.D.N.C. June 7, 2018), ECF No. 34)); id. at *14 & n.12 (“[T]his

Court would be hard-pressed to order [Seth’s] release,” which was part of the relief Seth requested in his complaint,

see Compl. at 48, “given the finding of dangerousness in the Eastern District of North Carolina.”).

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been determined intellectually disabled through the process set out in the CIDA and because the CIDA does not obligate the District to petition for Seth’s commitment. See id. at *15–17. Under the Cort v. Ash test, Seth could not establish that the CIDA provided an implied right of action in federal court for individuals who had not been determined by the Superior Court of the District of Columbia to have an intellectual disability, nor could he overcome the discretionary nature of the petition provision in the CIDA, which establishes that the District is not required to file a petition for civil commitment every time an individual is found incompetent in a criminal case. See id. at *16–17 (citing Cort v. Ash, 422 U.S. 66, 78 (1975)). Seth does not even attempt to offer new evidence consistent with his challenged pleading, relying instead on a new legal argument that the CIDA’s legislative history shows that Seth is “one of the class for whose especial benefit the statu[t]e was created.” Pl.’s Reply at 10–11 (emphasis in original) (citing Proposed Am. Compl. ¶¶ 141, 144 (discussion of the Committee Report for 2002 amendments to the CIDA)). By contrast, Seth’s memorandum in opposition to the defendants’ motion to dismiss his original complaint argued that “[t]here is no need to look to the Committee Report to discern CIDA’s purpose.” Pl.’s Mem. in Opp’n to Defs.’ Mot. to Dismiss at 31, ECF No. 21. The legislative history Seth now relies on addresses only one of the relevant Cort v. Ash prongs and, in any event, is consistent with this Court’s conclusion that the CIDA’s legislative history indicates that this local statute only affords rights to those determined to be intellectually disabled after a petition is filed in Superior Court. See 2018 Decision at *16. Thus, Seth’s CIDA claim “suffers the same legal deficiency that existed in the [original] Complaint.” Defs.’ Opp’n at 10. Seth’s attempt to relitigate his CIDA claim demonstrates that he cannot allege additional facts consistent with the challenged pleading, and therefore dismissal with prejudice was appropriate.
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B. Seth’s “New” Evidence Demonstrates that Reconsideration is Not Warranted Consideration of the new factual allegations proffered by Seth only reinforces the conclusion that dismissal with prejudice was appropriate in the first place and that reconsideration is not warranted now. “[R]econsideration is only appropriate when ‘the moving party shows new facts or clear errors of law which compel the court to change its prior position.’” Carter v. Wash. Metro. Area Transit Auth., 503 F.3d 143, 145 n.2 (D.C. Cir. 2007) (quoting Nat’l Ctr. for Mfg. Scis. v. Dep’t of Def., 199 F.3d 507, 511 (D.C. Cir. 2000)). Reconsideration motions may not be used to “relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co., 554 U.S. at 485 n.5 (internal quotation marks and citation omitted). In other words, the evidence presented in a reconsideration motion must be “newly discovered or previously unavailable despite the exercise of due diligence.” Johnson v. District of Columbia, 266 F. Supp. 3d 206, 211 (D.D.C. 2017) (internal quotation marks and citation omitted). “Courts routinely deny Rule 59(e) motions where all relevant facts were known or should have been known by the party prior to the entry of judgment.” Id.; see also SEC v. Bilzerian, 729 F. Supp. 2d 9, 15 (D.D.C. 2010) (denying Rule 59(e) motion where “new evidence” was “not newly available; it is simply newly received”). Seth’s new factual allegations were neither unavailable, within the meaning of Rule 59(e), prior to entry of judgment, nor are they sufficient now to compel a different result. He protests that “some” of the additional evidence he wishes to offer was “unavailable at the time this action was initiated,” Pl.’s Reply at 1 (emphasis added), but that is not the governing standard under Rule 59(e), which asks whether the evidence could have been raised “prior to the entry of judgment,” Exxon Shipping Co., 554 U.S. at 485 n.5 (emphasis added). Although Seth insists that it “should come as no surprise” that he “continued to identify evidence and witnesses
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while litigating the motion to dismiss,” Pl.’s Reply at 12, he fails to explain why either his continued investigation or the defendants’ motion to dismiss never prompted him to move to amend the complaint prior to entry of the judgment, either as of right under Federal Rule of Civil Procedure 15(a)(1)(B), or with the consent of the party or judicial approval under Federal Rule of Civil Procedure 15(a)(2). See Defs.’ Opp’n at 6–7 (noting this lack of explanation).
Regardless, Seth’s proffered evidence, even if deemed “previously unavailable despite the exercise of due diligence,” Johnson, 266 F. Supp. 3d at 211, does not “compel the court to change its prior position,” Carter, 503 F.3d at 145 n.2. First, the 2018 Decision critically assessed Seth’s allegation regarding DDS “utilizing criteria or methods of administration” for its services, which criteria allegedly “have the effect of subjecting [Seth] to discrimination on the basis of disability,” Compl. ¶ 133, for not “provid[ing] . . . further details on these criteria, how they affected him, or the defendants’ motivations for imposing such criteria.” 2018 Decision at *11. To address this criticism, Seth alleges that he can now present “statements made in communications by DDS employees creat[ing] a strong inference that their motivation was to discriminate against [Seth].” Pl.’s Mem. at 10. As support, Seth points to a single email communication from a DDS employee in 2015 indicating that DDS wanted “to leave as small a footprint as possible” in committing Seth, see Pl.’s Reply at 6 (citing Proposed Am. Compl. ¶¶ 127, 128), which Seth interprets to “reflect[] both DDS’s willingness in 2015 to civilly commit [Seth] and its simultaneous preference that others remain unaware of this action . . . evidencing DDS’s bias against serving individuals with intellectual disability,” Proposed Am. Compl. ¶ 128. According to Seth, this email, together with evidence that the District provides community-based services to individuals with mental illness who are dangerous and has the capacity of serving individuals such as Seth who have an intellectual disability and are dangerous, is sufficient to
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create an inference that the District’s ultimate refusal to accept responsibility for Seth was motivated by discrimination on the basis of his intellectual disability. Pl.’s Mem. at 10; Pl.’s Reply at 6–8.
Although, at the motion-to-dismiss stage, the complaint’s factual allegations and reasonable inferences to be drawn from those facts are assumed to be true, Niskey v. Kelly, 859 F.3d 1, 5 (D.C. Cir. 2017), Seth still offers insufficient facts to support a reasonable inference that a desire “to leave as small a footprint as possible” in providing community-based services to a man accused of sexual activities with children reflects discrimination on the basis of Seth’s disability, as opposed to common-sense concerns about the community’s possible reaction to Seth’s potential (later confirmed) dangerousness. See Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 69 (D.C. Cir. 2015) (a claim may be rendered plausible when the facts alleged in the complaint eliminate other, legitimate reasons and thus lead to a reasonable inference of discrimination).3

3

Seth posits that “it does not take much pleading to withstand a motion to dismiss in the discrimination

context,” Pl.’s Reply at 4 (internal quotation marks and alteration omitted) (quoting Brown v. District of Columbia,

No. 16-cv-0947 (EGS), 2017 WL 4174417, at *2 (D.D.C. Sept. 18, 2017)), citing a refrain from a racial

discrimination case holding that “’I was turned down for a job because of my race’ is all a complaint has to say to

survive a motion to dismiss,” id. (quoting Sirmans v. Caldera, 138 F. Supp. 2d 14, 21 (D.D.C. 2001) (internal

citation omitted)). Sirmans, which is not binding on this Court, was decided before Bell Atl. Corp. v. Twombly, 550

U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which are. See Sirmans, 138 F. Supp. 2d at 21 (citing

Conley v. Gibson, 355 U.S. 41, 45–46 (1957)). In any event, the cases Seth relies on, such as Brown, which

involved a pro se plaintiff, whose pleadings are provided more leeway, 2017 WL 4174417, at *2, or Alston v.

District of Columbia, 561 F. Supp. 2d 29, 39 (D.D.C. 2008) (cited at Pl.’s Mem. at 7 n.2), are distinguishable.

Indeed, Seth has been warned previously that “Alston’s continuing guidance regarding the analysis of a motion to

dismiss is . . . questionable” since it was decided before the Supreme Court’s decision in Iqbal. See 2018 Decision

at *13 n.11. Regardless, unlike plaintiffs who may be able to “state a facially plausible claim,” Rudder v. Williams,

666 F.3d 790, 794 (D.C. Cir. 2012), without reference to anticipated justifications or defenses, see Alston, 561 F.

Supp. 2d at 39 (“There is no mention in the complaint of any causes other than the ‘extent and severity of her

disabilities.’”), Seth must, even in his complaint, acknowledge the dangerousness certification at FMC Butner and

the dangerousness finding in the Eastern District of North Carolina. These legitimate, non-discriminatory reasons

for the DDS’s actions, together with Seth’s failure to allege sufficient facts demonstrating that DDS’s actions were

nonetheless taken because of his disability, supported dismissal with prejudice in the first instance, and support

denial of the motion to alter or amend the judgment now.

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Second, in response to the 2018 Decision’s footnote that Seth had utterly failed to develop any legal theory distinguishing Seth’s intellectual disability from mental illness as the “crux” of his discrimination claims, see 2018 Decision at *12 n.9, Seth says that he can offer evidence “show[ing] that Defendants have a track record of providing similar services to individuals with behaviors similar to his own but who have different disabilities.” Pl.’s Mem. at 10. As support, he alleges that the defendants “filed more than 40 petitions to civilly commit individuals found not competent to stand trial as a result of mental illness, while . . . avoid[ing] civilly committing and serving people with intellectual disability under similar circumstances.” Id. at 15; see also Pl.’s Mot. at 2–3 (citing the District’s practice of “regularly” seeking to civilly commit individuals with mental illness “who are determined incompetent and dangerous” under the Ervin Act, D.C. CODE §§ 21-501, et seq., while “refus[ing] to serve people with intellectual and developmental disabilities in the same situation,” under the CIDA). Seth suggests that this data supports a disparate impact theory, apparently because he “identif[ies] a specific practice that, while facially neutral, nonetheless had a disproportionate adverse effect on a protected class of individuals.” Pl.’s Reply at 7 (quoting 2018 Decision at *12 (quoting Anderson v. Duncan, 20 F. Supp. 3d 42, 54 (D.D.C. 2013) (internal quotation marks and alteration omitted))).
Seth notes discrepancies between the number of individuals served by the Ervin Act and the CIDA, but offers no evidence suggesting that “the practice in question caused individuals to suffer the offending adverse impact because of their membership in a protected group.” Anderson, 20 F. Supp. 3d at 54 (quoting Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 994 (1988) (internal quotation marks and alterations omitted)). Although individuals served by the Ervin Act have mental illness, whereas those served by the CIDA have intellectual or developmental disabilities, this is not the only distinction among the populations. See Heller v.
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Doe, 509 U.S. 312, 322–24 (1993) (concluding that a state had a rational basis for requiring a lower standard of proof for commitments for “mental retardation” than for mental illness, as “mental retardation is easier to diagnose” and “[m]ental retardation is a permanent, relatively static condition . . . so a determination of dangerousness may be made with some accuracy based on previous behavior”). Seth states that “[u]pon information and belief, in just the last fiscal year, 40 Ervin Act petitions seeking civil commitment of incompetent defendants with mental illness were filed,” Proposed Am. Compl. ¶ 116, compared to only two petitions filed under the CIDA in the last seven years, id., yet he provides no further citation for this information, or any way to compare commitments under the Ervin Act and the CIDA with an estimated population of defendants with mental illness compared to defendants with intellectual disabilities. See Anderson, 20 F. Supp. 3d at 54 (a prima facie case of disparate impact requires “statistical evidence of a kind and degree sufficient to show that the practice in question caused” adverse impact because of membership in a protected group (internal quotation marks and citations omitted)). Notably, the Ervin Act provides a process for the involuntary commitment of individuals with mental illness who, because of their mental illness, are found “likely to injure [themselves] or other persons if not committed,” even if that person has not been arrested in connection with a criminal case, D.C. CODE § 21-541(a), whereas the CIDA was recently amended to prohibit new commitments other than commitments of persons found incompetent in a criminal case. See D.C. CODE §§ 7-1303.04; 7-1303.12a(a); Proposed Am. Compl. ¶ 141 n.15; Disability Services Reform Amendment Act of 2018, D.C. Act 22-227 (2018). These differences among the Ervin Act and the CIDA require more than surface-level statistics comparing commitments under the two acts, which serve different populations, of different sizes, with potentially different levels of immediate risk to the public. Seth’s statistics are therefore
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inadequate to “show that the practice in question caused individuals to suffer the offending adverse impact because of their membership in a protected group.” Anderson, 20 F. Supp. 3d at 54 (internal quotation marks and alternation omitted); see also Figueroa v. Tillerson, 289 F. Supp. 3d 212, 230 (D.D.C. 2018) (without proper statistical analysis, “the Court has no basis on which to assess whether any disparity . . . may be caused by the challenged [practice] rather than the randomness of chance, the overall small number of [members of the protected class], or some other factor”); Defs.’ Opp’n at 8 (“[P]laintiff’s comparison is unavailing because he attempts to compare distinct populations and commitments that are governed by differing statutes.”).
Third, Seth argues that the defendants “were fully aware of [Seth’s] potential dangerousness throughout the planning process [so] their decision not to initiate commitment and custody proceedings was not premised on the FMC Butner’s Warden’s Certificate of Dangerous[ness] filed on April 28, 2017.” Pl.’s Mem. at 13. He notes that in May 2017, a month after the dangerousness certificate and a year before the Eastern District of North Carolina commitment proceeding, DDS communicated that “the idea is to get [Seth] out of confinement as soon as possible within the timing realities of the two commitment processes.” Id. (quoting email communications between DDS and Seth’s counsel). Indeed, Seth cites former DDS Director Nuss for the proposition that “there would be no need or basis for civil commitment in the absence of a dangerousness finding.” Pl.’s Mot., Ex. 1, Decl. of Laura L. Nuss (“Nuss Decl.”) at ¶ 6, ECF No. 29-2. This background, Seth argues, “create[s] a strong inference that DDS’s ultimate failure to serve [Seth] was not because of the charges against [him] or his potential dangerousness but was instead discrimination against [Seth] due to his intellectual disability.” Pl.’s Mem. at 13.
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Seth’s evidence of DDS’s planning process offers nothing to contradict the history already recounted in the 2018 Decision, which noted that the District and Seth’s attorneys had been discussing and planning for Seth’s eventual commitment since at least February 2015, a process that entailed multiple assessments of Seth’s competency and potential risk to the community. 2018 Decision at *4–6. The 2018 Decision also acknowledged that dangerousness was a consideration for the District in determining whether to exercise discretion to seek a civil commitment. See id. at *16 (citing the Committee Report for an amendment to the CIDA, the Civil Commitment of Citizens with Mental Retardation Amendment Act of 2002, D.C. Bill 14-616, which explained that the purpose of the Act was to “ensure public safety and protect the community from individuals who may be dangerous to others without treatment or supervision” (internal quotation marks and citation omitted)). What Seth once again fails to grapple with is that planning for responsibility for an individual whose “potential dangerousness” is known, Pl.’s Mem. at 13, is not equivalent to planning for responsibility for an individual who has been declared, by clear and convincing evidence, to pose a substantial risk of injury to the community. Seth attempts to argue that his “potential dangerousness” was a constant throughout DDS’s consideration of his placement in order to draw the inference that the District’s action (or inaction) can only be explained as discrimination on the basis of his intellectual disability. He has it exactly backwards. Seth’s intellectual disability was a constant; what changed was the certainty of his dangerousness. In light of Seth’s failure, once again, to offer facts supporting an inference that DDS’s ultimate refusal to exercise its discretion to file a petition for his civil commitment was an action taken on the basis of his disability, his “new evidence” on this front offers no reason to alter or amend the judgment.
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Fourth, Seth avers that “publicly available budget data shows DDS’s budget allocations have increased year over year every year since 2016, and . . . at no time during the relevant time period has DDS had a waiting list for its services.” Id. at 15; see also Nuss Decl. at ¶ 5 (noting that the District is required to provide services to all individuals who are eligible for services under a waiver program and that there was a funded slot available when Seth was found eligible for DDS services). This data, according to Seth, rebuts the 2018 Decision’s finding that his original complaint “offers no reason to think that [DDS’s] change [of position regarding Seth’s care] was made by reason of his disability, rather than, for example, budgetary choices made by the new leadership or FMC Butner’s Certificate of Dangerousness.” 2018 Decision at *12. This data was neither unavailable within the meaning of Rule 59(e) prior to the entry of judgment nor does it compel a different outcome. Even without any budgetary strain, Seth has failed to offer evidence supporting an inference that DDS’s refusal to accept responsibility for Seth’s care was because of his disability, as opposed to concerns—which may not have been alleviated by budget increases Seth cites—shared by new leadership in light of Seth’s dangerousness finding.
Finally, Seth offers to present new allegations and declarations “from former high-level public officials . . . who explain that the District has public systems capable of serving [him] safely in the community. . . . [and that Seth] is not only an excellent candidate for communitybased placement but that incarcerating him indefinitely in a corrections facility unequipped to meet his unique needs is extremely harmful to his well-being.” Pl.’s Mem. at 15. Even though Seth has not established that he now possesses evidence that was unavailable prior to the entry of judgment, the supporting exhibits and declarations he proffers in support of reconsideration have been carefully considered, including the statement from Nuss, the former director of DDS, that based on her knowledge “the decision by DDS to allow [Seth] to languish and regress in federal
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custody rather than carry out its mission and mandate remains inexplicable other than as a matter of discrimination and refusal to alter a usual way of working in order to accommodate an individual’s needs.” Nuss Decl. ¶ 24. Seth’s situation remains undeniably troubling, 2018 Decision at *1, and may even raise questions about the Attorney General’s compliance with the statutory obligation to encourage the District to accept responsibility for Seth’s care, id. at *14 n.12 (citing the Attorney General’s obligation, under 18 U.S.C. § 4246(d), to “continue periodically to exert all reasonable efforts to cause [the] State to assume . . . responsibility for the person’s custody, care, and treatment”). Yet, no evidence Seth now offers changes the conclusion in the 2018 Decision that Seth has failed to show that DDS’s refusal to serve him was an action taken “at least in part ‘because of,’ not merely ‘in spite of’ its adverse effects upon an identifiable group.” Pers. Adm’r of Mass v. Feeney, 442 U.S. 256, 279 (1979). Despite Nuss’s experience and declarations, her inference of discrimination is “unsupported by the facts set out in the complaint.” Attias v. Carefirst, Inc., 865 F.3d 620, 627 (D.C. Cir. 2017) (internal quotation marks and citation omitted). See also Defs.’ Opp’n at 9 (“[O]ne agency director’s willingness to accept responsibility for a dangerous individual does not mean a subsequent director’s unwillingness to do so must have been motivated by discriminatory animus; plaintiff is demanding an inference [of discrimination] that does not logically follow the facts pled.” (emphasis in original)).
Seth, in an attempt to show that he was discriminated against on the basis of his disability, continues to overlook and minimize an inescapable fact about his particular disability: he was found “by clear and convincing evidence,” to be “suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to the property of another.” E.D.N.C. Commitment Order at 1. It is
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because of that substantial risk, and the District’s refusal to exercise its discretion to commit him, that he was committed to the care of the Attorney General. Seth has tried valiantly to cobble together facts supporting an inference that DDS refused to provide him care because of his disability, as opposed to because of his dangerousness, but he has once again failed to do so. “To survive a motion to dismiss, [plaintiff] must allege in [his] complaint ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ In other words, [plaintiff] must do more than allege ‘facts that are merely consistent with a defendant’s liability’ or raise only ‘a sheer possibility that a defendant has acted unlawfully.’” Citizens for Responsibility & Ethics in Wash., 2019 WL 1907230, at *4 (internal quotation marks and citations omitted) (quoting Iqbal, 556 U.S. at 678). Even taking Seth’s “new evidence” into account, he fails to state a claim for relief that would survive a motion to dismiss, and therefore his motion to amend or alter the judgment must be denied.
C. Even if Reconsideration Were Warranted, Leave to Amend Would Be Futile “Federal Rule of Civil Procedure 15(a) provides that leave to amend shall be ‘freely give[n]’ when ‘justice so requires.’ But after entry of judgment, a court has no obligation to grant leave to amend unless a plaintiff first satisfies ‘Rule 59(e)’s more stringent standard for setting aside that judgment.’” Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 17 (D.C. Cir. 2015) (alteration in original) (quoting Ciralsky, 355 F.3d at 673). Where the plaintiff fails to meet this “stringent standard,” the motion for leave to file an amended complaint is properly denied as moot. See id. at 18 (citing Ciralsky, 355 F.3d at 673); Osborn, 797 F.3d at 1062 (“As a technical matter, the District Court lack[s] authority to rule on the merits of [a] 15(a) motion [when] it [does] not modify its final judgment.”). Seth’s failure to meet the stringent Rule 59(e) standard is sufficient reason to deny his motion for leave to amend under Rule 15(a).
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Nevertheless, “even if [Seth had established that] dismissal with prejudice was error, the remedy at this point would be to grant reconsideration, dismiss without prejudice, and allow [Seth] to amend his Complaint.” Strumsky v. Wash. Post Co., 922 F. Supp. 2d 96, 106 (D.D.C. 2013). Yet, as noted, supra Section III.B, evaluation of the Proposed Amended Complaint confirms that even if the motion to alter or amend the judgment were granted, this case would not survive a motion to dismiss, and thus granting leave to file an amended complaint “would appear to be an ‘empty exercise’ in which courts are not required to engage.” Strumsky, 922 F. Supp. 2d at 106 (quoting Norman v. United States, 467 F.3d 773, 775 (D.C. Cir. 2006)); see also Confederate Mem’l Ass’n, Inc. v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993) (“[T]he law does not require the doing of vain things.”). Under Rule 15, a motion to amend may be denied “on grounds of futility where the proposed pleading would not survive a motion to dismiss.” In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 215 (D.C. Cir. 2010). For the reasons discussed above, the “new” facts Seth alleges fail to cure the deficiencies in his complaint, and therefore granting leave to amend would be futile. IV. CONCLUSION
For the foregoing reasons, Seth’s Motion to Alter or Amend Judgment and Motion for Leave to File Amended Complaint, ECF No. 29, is DENIED. An order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: May 8, 2019
__________________________ BERYL A. HOWELL Chief Judge
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 USCA Case #19-7057 Document #1820624

Filed: 12/17/2019 Page 1 of 77

ORAL ARGUMENT NOT YET SCHEDULED
Case No. 19-7057 ____________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
_____________________________________________________________
MARKELLE SETH, Appellant
v.
The DISTRICT OF COLUMBIA, et al., Appellees.
_____________________________________________________________
On Appeal from the United States District Court for the District of Columbia
_____________________________________________________________
BRIEF FOR APPELLANT MARKELLE SETH _____________________________________________________________
Donald P. Salzman Counsel of Record
Gary DiBianco Rebecca M. Murday Leila Naghibi Lauren A. Eisenberg 1440 New York Avenue, N.W. Washington, D.C. 20005-2111 (202) 371-7000 Donald.Salzman@probonolaw.com Counsel for Appellant Markelle Seth
December 17, 2019
(Additional counsel are listed in the overleaf.)

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Eve L. Hill BROWN GOLDSTEIN & LEVY LLP 120 East Baltimore Street, Suite 1700 Baltimore, Maryland 21202 (410) 962-1030 EHill@browngold.com
Robert D. Dinerstein AMERICAN UNIVERSITY, WASHINGTON
COLLEGE OF LAW DISABILITY RIGHTS LAW CLINIC 4300 Nebraska Avenue, Y-202 Washington, D.C. 20016 (202) 274-4141 rdiners@wcl.american.edu
Shira Wakschlag THE ARC OF THE UNITED STATES 1825 K Street, N.W. Suite 1200 Washington, D.C. 20006 (202) 534-3708 Wakschlag@thearc.org
Counsel for Appellant Markelle Seth

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................ v CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED
CASES....................................................................................... xi CORPORATE DISCLOSURE STATEMENT .................................xiii GLOSSARY ...................................................................................... xiv JURISDICTIONAL STATEMENT ..................................................... 1 INTRODUCTION AND STATEMENT OF ISSUES ......................... 1 QUESTIONS PRESENTED................................................................. 5 STATEMENT OF THE CASE ............................................................ 5
A. Statutory and Regulatory Background: the District’s Obligation To Offer Services in the Community ............................................................ 5
B. Statement of Facts................................................ 11 1. Mr. Seth’s Charges, Commitment, and Incarceration .............................................. 11 2. The District’s Disability Services System. 19
C. Procedural History ............................................... 22 SUMMARY OF ARGUMENT .......................................................... 26 ARGUMENT ...................................................................................... 30
I. THE DISTRICT COURT ERRED IN CONCLUDING THAT MR. SETH FAILED TO PLEAD FACTS SHOWING DEFENDANTS VIOLATED HIS RIGHT TO RECEIVE SERVICES IN THE MOST INTEGRATED SETTING APPROPRIATE. ................................ 30
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A. Mr. Seth Sufficiently Alleged that the District Failed to Serve Him in the Most Integrated Setting Appropriate .................. 32
B. Violation of Olmstead does not Require Allegations that Defendants’ Officials (As Opposed to Treating Professionals) Believe Community-Based Services to be Appropriate................................................ 33
C. Mr. Seth Properly Pleaded the District Can Accommodate his Needs in a More Integrated Setting....................................... 36
D. The Federal Civil Commitment Does Not Excuse the District from its Obligations to Mr. Seth. .................................................... 40
II. THE DISTRICT COURT ERRED IN FAILING TO ACCEPT MR. SETH’S FACTUAL ALLEGATIONS AS TRUE AND DRAW ALL INFERENCES IN HIS FAVOR AND INSTEAD BASING DISMISSAL ON FACTUAL DEFENSES.......................................................... 43
A. The District Court Improperly Required Mr. Seth to Plead that Defendants’ Facially Discriminatory Policy was Carried Out for Intentionally Discriminatory Reasons ....... 45
B. The District Court Improperly Relied on Possible Defenses as a Basis to Dismiss Appellant’s Complaint............................... 53
III. THE DISTRICT COURT ERRED BY DISMISSING MR. SETH’S CLAIMS WITH PREJUDICE AND DENYING HIS MOTION TO ALTER OR AMEND THE JUDGMENT AND AMEND THE COMPLAINT.............................. 56
CONCLUSION................................................................................... 58
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Cases

TABLE OF AUTHORITIES

Abdus-Abdus–Sabur v. Hope Village, Inc., 221 F. Supp. 3d 3 (D.D.C. 2016) .............................................................. 43

Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) ................................................................ 52

Alexander v. Choate, 469 U.S. 287 (1985) ................................................................................. 49

American Council of the Blind v. Paulson, 525 F.3d 1256 (D.C. Cir. 2008) .......................................................... 49, 53

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................. 30

Belizan v. Hershon, 434 F.3d 579 (D.C. Cir. 2006) .................................................................. 56

Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999) .................................................................. 54

Brown v. District of Columbia, 322 F.R.D. 51 (D.D.C. 2017), rev'd, 928 F.3d 1070 (D.C. Cir. 2019) ...................................................... 33

Brown v. District of Columbia, 928 F.3d 1070 (D.C. Cir. 2019) .............................................. 6, 7, 8, 33, 38

Brown v. Sessoms, 774 F.3d 1016 (D.C. Cir. 2014) ......................................................... 31, 55

Caribbean Broadcasting System, Ltd. v. Cable & Wireless PLC, 148 F.3d 1080 (D.C. Cir. 1998) ............................................................... 56

Chenari v. George Washington, 847 F. 3d 740 (D.C. Cir. 2017) ................................................................ 53

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Community Services, Inc. v. Wind Gap Municipal Authority, 421 F.3d 170 (3d Cir. 2005) ...................................................................... 46
Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996)..................................................................... 53
Dadian v. Vill. of Wilmette, 269 F.3d 831, (7th Cir. 2001)................................................................... 37
E.E.O.C. v. Wal-Mart Stores, Inc., 477 F.3d 561 (8th Cir. 2007)..................................................................... 37
Ecker v. United States, 575 F.3d 70 (1st. Cir. 2009) .................................... 11
EEOC v. Lockheed Martin Corp., 116 F.3d 110 (4th Cir. 1997)..................................................................... 56
Erickson v. Board of Governors of State Colleges & Universities For Northeastern Illinois University, 207 F.3d 945 (7th Cir. 2000)..................................................................... 50
Etheridge v. FedChoice Federal Credit Union, 789 F. Supp. 2d 27 (D.D.C. 2011) ............................................................ 52
Feemster v. BSA Ltd. Partnership, 548 F.3d 1063 (2008) ............................................................................... 46
Firestone v. Firestone, 76 F.3d 1205 (D.C. Cir. 1996) ........................................................... 56, 57
Frederick L. v. Department of Public Welfare of Pennsylvania, 422 F.3d 151 (3d Cir. 2005) ....................................................................... 7
Gordon v. U.S. Capitol Police, 778 F.3d 158 (D.C. Cir. 2015) ................................................................. 31
Harris v. D.C. Water & Sewer Authority, 791 F.3d 65 (D.C. Cir. 2015) ................................................................... 30
Harris v. Ladner, 127 F.3d 1121 (D.C. Cir. 1997) ............................................................... 31
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Henrietta D. v. Bloomberg, 331 F.3d 261 (3d Cir. 2003) ..................................................................... 51
Howell v. Gray, 843 F. Supp. 2d 49 (D.D.C. 2012) ..................................................... 50, 51
International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. Johnson Controls, Inc., 499 U.S. 187 (1991)) ................................................................................. 47
Jackson v. Indiana, 406 U.S. 715 (1972) .................................................................................... 9
Jarrell v. U.S. Postal Service, 753 F. 2d 1088 (D.C. Cir. 1985) ............................................................... 57
L.C. ex rel. Zimring v. Olmstead, 138 F.3d 893 (11th Cir. 1998), aff'd in part, vacated in part, remanded by, Olmstead , 527 U.S. 581 (1999)................................................................ 34
Larkin v. State of Michigan Department of Social Services, 89 F.3d 285 (6th Cir. 1996) ...................................................................... 46
Lee v. Corrections Corp. of America, 61 F. Supp. 3d 139 (D.D.C. 2014) ............................................................ 44
Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2d Cir. 2001) ...................................................................... 37
M.J. v. District of Columbia, 401 F. Supp. 3d 1 (D.D.C. 2019) .............................................................. 55
Marshall County Health Care Authority v. Shalala, 988 F.2d 1221 (D.C. Cir. 1993) ................................................................ 17
McDonnell-Douglas v. Green, 411 U.S. 792 (1973) .................................................................................. 31
McElwee v. County of Orange, 700 F.3d 635 (2d Cir. 2012) ...................................................................... 52

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Nunes v. Wal–Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999)................................................................... 37
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) ................................................................ 2, 6, 7, 33, 34
Pennsylvania Protection & Advocacy, Inc. v. Pennsylvania Department of Public Welfare, 402 F.3d 374 (3d Cir. 2005) ........................................................................ 7
Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) ................................................................................. 49
Pierce v. District of Columbia, 128 F. Supp. 3d 250 (D.D.C. 2015) .......................................................... 44
Raytheon Co. v. Hernandez, 540 U.S. 44 (2003) .............................................................................. 31, 54
Rudder v. Williams, 666 F.3d 790 (D.C. Cir. 2012) .................................................................. 57
Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005)..................................................................... 7
Serrano v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012)..................................................................... 53
Steimel v. Wernert, 823 F.3d 902 (7th Cir. 2016) ...................................................................... 37
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985) .................................................................................. 46
Other Authorities
Bureau of Prisons, FMC Butner Admissions & Orientation Handbook (2009), https://www.bop.gov/locations/institutions/buh/BUH_ aohandbook.pdf ......................................................................................... 18

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Kathy Patterson, Chairperson, Committee on the Judiciary, Bill 14-616, the “Civil Commitment of Citizens with Mental Retardation Amendment Act of 2002”, Council of the District of Columbia, (June 3, 2002), http://lims.dccouncil.us/Download/329/B14-0616COMMITTEEREPORT.pdf ..................................................................... 21
U.S. Dep't of Justice, Examples and Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act (2017), https://www.ada.gov/cjta.html........................................................ 8
Statutes and Regulations 18 U.S.C. § 4246..................................................................................... 14, 39 18 U.S.C. § 4246(a) ...................................................................................... 11 18 U.S.C. § 4246(d) .......................................................................... 11, 40, 42 28 C.F.R. § 35.103(a) ................................................................................... 48 28 C.F.R. § 35.104(4) ................................................................................... 38 28 C.F.R. § 35.130(b)(1)......................................................................... 44, 45 28 C.F.R. § 35.130(b)(3)......................................................................... 44, 49 28 C.F.R. § 35.130(b)(7)(i)....................................................................... 6, 55 28 C.F.R. § 35.130(b)(7); (2)........................................................................ 44 28 C.F.R. § 35.130(d) ..................................................................................... 6 28 C.F.R. § 35.139(b) ................................................................................... 38 28 C.F.R. § 35.164 ........................................................................................ 55 28 U.S.C. § 1331............................................................................................. 1 29 U.S.C. § 794(a) .......................................................................................... 2 42 U.S.C. § 12101(a)(2), (3), (5) .................................................................... 6

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42 U.S.C. § 12131 et seq. ........................................................................... 2, 6 42 U.S.C. § 12132......................................................................................... 49 D.C. Code § 2-1401.01 et seq......................................................................... 2 D.C. Code § 21-501 et seq .............................................................................. 9 D.C. Code § 7-1301.02 et seq......................................................................... 2 D.C. Code § 7-1301.03(14C)........................................................................ 10 D.C. Code § 7-1303.04(a-1)(1)..................................................................... 10 D.C. Code § 7-1303.04(b-1) ......................................................................... 10 D.C. Code § 7-1303.12a ............................................................................... 10 D.C. Code § 7-1304.06a ............................................................................... 39 D.C. Code §7-1304.06a(d)............................................................................ 13

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to D.C. Circuit Rule 28(a)(1), Appellant certifies as follows: A. Parties The Appellant is Markelle Seth. The Appellees are the District of Columbia, the D.C. Department on Disability Services (“DDS”), and Andrew Reese. The following parties intend to file a joint brief as amicus curiae in this case: (i) University Legal Services; (ii) Quality Trust for Individuals with Disabilities; and (iii) Washington Lawyers Committee for Civil Rights and Urban Affairs.1 B. Rulings Under Review The rulings under review are the district court’s order of September 28, 2018, granting the Defendants’ motion to dismiss and the Court’s order of May 8, 2019, denying Plaintiff’s motion to alter or amend judgment and Plaintiff’s motion for leave to file an Amended Complaint.
1 Other amici curiae may file separate briefs with the consent of the parties.
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C. Related Cases This case is related to United States v. Seth, No. 1:14-mj-00608-BAHGMH-1 (D.D.C. filed Oct. 15, 2014), in which Mr. Seth was found permanently incompetent to proceed.

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CORPORATE DISCLOSURE STATEMENT University Legal Services is a non-profit, tax-exempt organization incorporated in the District of Columbia. University Legal Services has no parent corporation and no publicly held company has 10% or greater ownership. Disability Rights DC is a division of University Legal Services.
Quality Trust for Individuals with Disabilities (Quality Trust) is a nonprofit, tax-exempt organization incorporated in the District of Columbia. Quality Trust has no parent corporation and no publicly held company has 10% or greater ownership.
Washington Lawyers Committee for Civil Rights and Urban Affairs is a non-profit, tax-exempt organization incorporated in the District of Columbia. It has no parent corporation and no publicly held company has 10% or greater ownership.

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ADA BOP CIDA
DBH DCHRA DDS FMC ID

GLOSSARY Americans with Disabilities Act of 1990 Federal Bureau of Prisons Citizens with Intellectual Disabilities Civil Rights Restoration Act of 2015 D.C. Department of Behavioral Health D.C. Human Rights Act D.C. Department on Disability Services Federal Medical Center Intellectual Disability

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JURISDICTIONAL STATEMENT This is an appeal from a final judgment dismissing the Complaint. (J.A. 74.) This Court has jurisdiction pursuant to 28 U.S.C. § 1291. Mr. Seth filed a timely notice of appeal following the district court’s May 8, 2019 denial of his timely motion pursuant to Fed. R. Civ. P. 59 on June 7, 2019. The district court had subject matter jurisdiction of Mr. Seth’s ADA and Rehabilitation Act claims pursuant to 28 U.S.C. § 1331.
INTRODUCTION AND STATEMENT OF ISSUES This case challenges the District of Columbia’s (“D.C.”) abandonment of one of its citizens to indefinite confinement in a federal prison. Markelle Seth is a D.C. resident with intellectual disability (“ID”) who was charged with a crime in D.C. federal court but found incompetent to stand trial and not restorable to competency. Therefore, he has not been and never will be convicted of that charge. Under these circumstances, the federal government must release Mr. Seth into the custody of his home state, here D.C., unless that state has no suitable arrangements for his care. By its own medical professionals’ admissions, D.C. does have suitable arrangements for Mr. Seth’s care. But D.C. has abandoned Mr. Seth, a young man found “to have the auditory comprehension of a first-grade student” (J.A. 75.), to languish
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in a federal prison without necessary services, often in solitary confinement, for five years, with no hope of release.
Mr. Seth sued the District, its Department on Disability Services (“DDS”), and DDS Director Andrew Reese in his official capacity (together, “Defendants” or “the District”), alleging violations of Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131 et seq. (“ADA”), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“Section 504”), the D.C. Human Rights Act of 1977, D.C. Code § 21401.01 et seq. (“DCHRA”),2 and the Citizens with Intellectual Disabilities Civil Rights Restoration Act of 2015, D.C. Code § 7-1301.02 et seq. (“CIDA”). He asserted that Defendants are violating his rights under these laws, as well as the Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), to receive public services and treatment in the most integrated setting appropriate to his needs. (J.A. 74.)
Mr. Seth alleged that the District could readily provide him with a highly supervised living arrangement and treatment as part of its existing service system, providing him greater community integration without

2 The prima facie case requirements for these claims are identical for purposes of this brief and they will be referred to throughout as the “ADA” claims.
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presenting any unreasonable public risk. Fully aware of his criminal charges, the District found Mr. Seth eligible for its community-based services, secured a provider to deliver them, and agreed to provide them, but then revoked its agreement without explanation. DDS’ prior director has stated that “the decision by DDS to allow Mr. Seth to languish and regress in federal custody rather than carry out its mission and mandate [is] inexplicable other than as a matter of discrimination.” (J.A. 291, 373.) Mr. Seth’s legal claim is straightforward: the District violated the ADA by leaving him in federal prison when it could provide him a more integrated living arrangement without any fundamental alteration of its programs or any undue burden.
The district court noted this is a “troubling situation” (Id. 11), but nonetheless dismissed Mr. Seth’s Complaint with prejudice. The Court acknowledged that a plaintiff need not plead a prima facie case of discrimination, but nonetheless ruled that Mr. Seth failed to offer evidence that Defendants engaged in discrimination by reason of Mr. Seth’s disability. The Court speculated, instead, that budgetary choices or dangerousness considerations motivated the District’s actions. (Id. 34-35) The Court held that Mr. Seth’s Olmstead claim was insufficient because Defendants do not believe community placement is appropriate or that the placement can be
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reasonably accommodated. (Id. 38-39.) In relying on speculative facts and reasoning, the district court deviated from its obligation, on a motion to dismiss, to take allegations in the Complaint as true.
Compounding its error, the district court refused to allow Mr. Seth to amend his Complaint to address the Court’s hypothesized justifications for the District’s actions. It improperly held that Mr. Seth’s federal civil commitment—which should have triggered the District’s obligation to assume custody for Mr. Seth—instead released the District from its obligations. (Id. 39-40.) The Court appeared to believe—wrongly—that the claims here amounted to a collateral challenge to the validity of the federal commitment order. They did not. The federal court that civilly-committed Mr. Seth did not have before it any evidence—and thus did not rule on the issue—of whether he would be too dangerous for a community setting if provided available services by the District. Mr. Seth alleged that he would not be; no court has found otherwise. Here, Mr. Seth alleged that the District can provide him with services that will accommodate him and preserve community safety, and that the federal government will transfer Mr. Seth to the District once the District accepts custody. Those allegations should not have been questioned on a motion to dismiss.

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QUESTIONS PRESENTED 1. Did the district court err in concluding that Mr. Seth failed to plead facts showing that the District violated his right to receive services in the most integrated setting appropriate under the ADA, Section 504, and the DCHRA? 2. Did the district court err in ruling that Mr. Seth’s federal civil commitment excused the District from its obligations under the ADA and Olmstead? 3. Did the district court err in failing to accept Mr. Seth’s factual allegations as true and instead considering non-discriminatory alternative reasons for the District’s actions that were not pleaded in the Complaint? 4. Did the district court err in dismissing Mr. Seth’s claims with prejudice and then denying his motion to alter or amend the judgment and file an amended complaint?
STATEMENT OF THE CASE
A. Statutory and Regulatory Background: the District’s Obligation To Offer Services in the Community
This lawsuit involves the District’s affirmative duty to offer habilitative services in the most integrated setting appropriate to Mr. Seth, a qualified individual with a disability. That duty arises from the integration

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mandate of Title II of the ADA, 42 U.S.C. § 12131 et seq., and its implementing regulations, as construed by Olmstead. The integration mandate advances one of the ADA’s core purposes—ending the isolation and segregation of people with disabilities and ensuring they receive treatment in the most integrated settings appropriate to their needs. See Olmstead, 527 U.S. at 588-89 (citing 42 U.S.C. § 12101(a)(2), (3), (5)).
Title II of the ADA prohibits disability discrimination by public entities such as the District in the provision of public services, programs, and activities. 42 U.S.C. § 12132. Specifically, it mandates that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Id. Public entities must administer their programs “in the most integrated setting appropriate to the needs of qualified individuals with disabilities,” 28 C.F.R. § 35.130(d). A public entity must also make “reasonable modifications” to its programs unless it demonstrates that such modifications “would fundamentally alter” the programs. 28 C.F.R. § 35.130(b)(7)(i); see also Brown v. District of Columbia, 928 F.3d 1070, 1077 (D.C. Cir. 2019).
In Olmstead, the Supreme Court applied these requirements, holding
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public entities must offer people with disabilities services in the community, rather than in institutions whenever appropriate. It held that “unjustified institutional isolation of persons with disabilities is a form of discrimination,” 527 U.S. at 600, and the ADA requires community placement for any person who wants it and is capable of community living. Id. at 602.
Olmstead holds that public entities have the affirmative obligation to provide community-based, rather than institutional, care for people with disabilities where they can reasonably do so. A public entity contending it cannot reasonably provide community-based care must demonstrate that as an affirmative defense. See Brown v. District of Columbia, 928 F.3d at 1077; Frederick L. v. Dep’t of Pub. Welfare of Pa., 422 F.3d 151, 157 (3d Cir. 2005); Sanchez v. Johnson, 416 F.3d 1051, 1067-68 (9th Cir. 2005); Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 381-82 (3d Cir. 2005).
The integration mandate applies to individuals entangled in the criminal justice system, like Mr. Seth. As the U.S. Department of Justice—

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the federal agency tasked with implementing ADA Title II—states:3
States, counties, and cities, which often administer both criminal justice and disability service systems, have obligations under the ADA to ensure people with mental health disabilities or I/DD receive services in the most integrated setting appropriate to their needs. Services such as scattered-site supported housing, Assertive Community Treatment (ACT), crisis services, intensive case management, respite, personal care services, behavior support, nursing care, peer support, and supported employment services can support a jurisdiction’s efforts to divert people with these disabilities from the criminal justice system and serve them in their communities.
State and local governments must prevent unnecessary institutionalization of people with disabilities. Governments have complied with this obligation by using community-based treatment services to keep people with disabilities out of the criminal justice system…they ensure that their disability service systems offer sufficient community-based services and support criminal justice entities to coordinate with, and divert to, community-based services.
See also Brown v. District of Columbia, 928 F.3d at 1087 (rejecting
concurrence limiting scope of Olmstead to particular facts of that case and
noting that “Olmstead drew the line between ‘institutions’ and ‘community
settings,’” i.e., Olmstead applies to circumstances broader than the specific
facts applicable to the plaintiffs in that case.)
Indeed, in the criminal justice context, Olmstead complements the

3 U.S. Dep’t of Justice, Examples and Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act(2017), https://www.ada.gov/cjta.html.
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analysis set out in Jackson v. Indiana, 406 U.S. 715 (1972). In Jackson, the Supreme Court held that a criminal defendant committed solely because of incompetency “cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.” Id. at 738. Under a “Jackson finding,” a defendant incompetent to stand trial and unlikely to become competent in the foreseeable future cannot be confined indefinitely, as this confinement would amount to a life sentence without any criminal conviction and deprive him of equal protection. Id. at 730.
In accordance with the Jackson and Olmstead frameworks, the District has two statutory schemes for civil commitment of individuals with disabilities who have been found incompetent to stand trial. The “Ervin Act” provides for civil commitment and community-based treatment of persons found incompetent and dangerous to themselves or others due to mental illness. D.C. Code § 21-501 et seq. The District’s Department of Behavioral Health (“DBH”), which provides services to citizens with mental illness, administers the Ervin Act, and annually petitions for civil commitment of approximately 40 individuals who have been found incompetent and dangerous by virtue of mental illness. (J.A. 108-109.)

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CIDA,4 provides a similar system of civil commitment and community-based services for those with intellectual disability who are found incompetent and dangerous to themselves or others. D.C. Code § 71303.04(b-1) (“For a person found incompetent in a criminal case, a written petition by the District may be filed with the Court to have the person committed to a facility”); § 7-1303.12a (“(a) In the case of a person found incompetent in a criminal case, the District shall have no more than 30 days from the date on which the finding is made that the person is incompetent and not likely to gain competence in the foreseeable future in which to file a petition pursuant to § 7-1303.04(b-1).”)5 CIDA aims to ensure that

4 CIDA was enacted as the Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978. It was renamed in 2015, and recently amended and renamed the Disability Services Reform Amendment Act of 2018. Significantly, the 2018 amendment eliminates civil commitment for most individuals with ID, making services voluntary rather than compulsory, but retains court-ordered commitment for individuals like Mr. Seth who are found incompetent in criminal cases alleging dangerous offenses. D.C. Code § 7-1303.04(a-1)(1) (“Except as provided in subsection (b-1) of this section, no person shall be newly committed under this chapter on or after May 5, 2018.”). The statute is referred to as “CIDA” throughout this brief.
5 Only incompetent defendants charged with the most serious offenses— crimes of violence and sex offenses—are eligible for civil commitment under CIDA. D.C. Code § 7-1301.03(14C). Consistent with the statute’s focus on the liberty and dignity of individuals with ID, those charged with less serious crimes must be served in the community without civil commitment.
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individuals in precisely Mr. Seth’s situation receive needed supports and services in integrated settings while simultaneously preserving public safety. DDS is responsible for serving individuals with ID subject to CIDA.
Civil commitment is typically a state function. See Ecker v. United States, 575 F.3d 70 (1st. Cir. 2009). Federal law provides that a federally charged defendant who is found incompetent to stand trial may be civilly committed by the federal government if, and only if, (1) he is found dangerous as a result of a disability, and (2) his home state refuses to take responsibility for his care and custody. 18 U.S.C. § 4246(a). When federal commitment occurs, federal law recognizes an ongoing strong preference for returning the individual to his own state, requiring the Attorney General to “continue periodically to exert all reasonable efforts to cause such a State to assume such responsibility for the person’s custody, care, and treatment.” 18 U.S.C. § 4246(d). Federal civil commitment results in confinement by the federal Bureau of Prisons (“BOP”) until the home state accepts care and custody or federal authorities determine it is safe to release the individual.
B. Statement of Facts 1. Mr. Seth’s Charges, Commitment, and Incarceration
Mr. Seth is a twenty-six-year-old man with ID. (J.A. 75, 129.) He has remained in federal prison for over five years without any hope of release,
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despite never having been convicted of a crime, although he alleges, and the District’s medical professionals and others agree, that the District can safely and reasonably provide him supervised living in a more integrated environment.
In 2014, Mr. Seth was charged in federal court with sexual offenses involving children living in the house where he resided. (Id. 76). 6 The court ordered an evaluation to determine Mr. Seth’s competency to stand trial. (Id. 76, 126.) While the evaluation was pending, Mr. Seth applied to DDS for disability-related services. (Id. 76.) In early 2015, DDS and its then-Director, Laura Nuss, acknowledged his eligibility for services and the District’s duty to provide them. (Id. 77, 86.)The District agreed that, once Mr. Seth was found incompetent by the court, the District would “work with your attorneys and the federal authorities in filing for civil commitment…” (Id. 88.) The District was aware of Mr. Seth’s charges and the public safety risks he might pose. (Id. 87-89.) Indeed, “dangerousness” is a legal prerequisite for the civil commitment proposed by the District. D.C. Code §7-

6 Mr. Seth was initially charged in D.C. Superior Court. Competence concerns arose immediately, and shortly thereafter the government’s motion to dismiss without prejudice was granted and the U.S. Attorney’s Office initiated the federal court prosecution. J.A. 292-293.

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1304.06a(d). In July 2015, Director Nuss confirmed that DDS was prepared to
address any risks presented by Mr. Seth, including public safety issues. (Id. 88.) The following month, DDS identified a service provider, Benchmark Human Services (“Benchmark”), and stated that it would conduct a formal assessment to develop a plan for Mr. Seth. (Id. 89.) Dr. Matthew Mason—a licensed Psychologist and Board-Certified Behavior Analyst and expert in individuals with ID presenting sexual behavior problems—evaluated Mr. Seth to identify the components of an appropriate service plan. (Id. 89-90.)
Dr. Mason concluded that Mr. Seth would be “responsive to and appropriate for placement in a highly structured and supervised [minimum of one-to-one, round-the-clock supervision] community-based residential program,” (Id. 90), and determined “that a more restrictive setting would not be necessary.” He noted that “Benchmark has safely and successfully served individuals similar to and more behaviorally challenging than Mr. Seth in community settings with appropriate structure, staffing and programming” and observed that his history of abuse and neglect, combined with a lack of consistent intervention and supports for his disability throughout his life, contributed to his behavior. (Id. 90-100, 462.) Dr. Mason developed a plan for comprehensive habilitative services available from the District’s existing
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programs that would meet Mr. Seth’s needs and ensure community safety. (Id. 90-91.)
In December 2016, Magistrate Judge Harvey found Mr. Seth incompetent to stand trial and incapable of being restored to competency, observing that Mr. Seth “consistently demonstrated that he has the auditory comprehension of a first grade student” and that “having [him] stand trial would be akin to putting a seven-year-old in the courtroom…” (Id. 85, 162.) Chief Judge Howell adopted these conclusions and remanded Mr. Seth to federal custody pursuant to 18 U.S.C. § 4246 to determine if Mr. Seth’s release would risk harm to another person. (J.A. 86.) He was sent to FMCButner for this evaluation. (Id.)
In April 2016, Defendant Reese replaced Laura Nuss as Director of DDS, and the District abruptly changed its position. Instead of proceeding with civil commitment, Reese requested a new evaluation from Dr. Mason. (Id. 91.) Dr. Mason conducted a comprehensive risk assessment and concluded for a second time that Mr. Seth “can be safely and successfully supported in the community” in a “highly structured, closely supervised community-based program” that would “provide for community safety while ensuring that Markelle has every opportunity to succeed and avoid reoffending.” (Id. 91, 467.) Dr. Mason concluded Mr. Seth’s behavior,
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including his sexual misconduct, was not based on an “underlying psychopathic condition” but a “function of inappropriate supervision” while placed in a position of caring for children and was “more opportunistic than predatory in nature, and influenced by his limitations in cognition and selfmanagement.” (Id. 93.)
Dr. Mason recommended community-based placement for Mr. Seth, including one-to-one staffing on a 24-hour basis; a consistent daily schedule of employment and other meaningful activities; thorough staff training; safeguards to avoid unsupervised contact with minors; and comprehensive plans for behavioral management, crisis management, supportive psychiatric care and counseling, psychosexual assessment and related sexual education, and self-management plans. (Id. 93-94.) Dr. Mason concluded: “Based upon my extensive experience with many individuals with a variety of sexual behavioral problems, it is my opinion that Mr. Seth will respond well to supervision and supports. Mr. Seth’s sociability, eagerness to please and willingness to create alliances with responsible adults are highly indicative that he will succeed if provided with appropriately designed supportive living and work environments that incorporate effective supervision.” (Id. 94, 482.)

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In February 2017, Wholistic Services, Inc. (“Wholistic”) informed the District that it could provide services to Mr. Seth after Benchmark ceased operations. (Id. 95-96.) In August 2017, Wholistic provided the District with a “Proposal for Transition, Safety and Support Services” incorporating each of Dr. Mason’s recommendations. (Id. 96-98,170.)
Despite the opinion of its own expert and a second expert,7 and the availability of appropriate services from its service providers, the District did not petition for civil commitment. (J.A. 98.) When contacted by the Warden of FMC-Butner about taking custody of Mr. Seth, the District did not respond. (J.A. 98, 309; Official Transcript of Competency Hearing at 46, United States v. Seth, Case No. 5:17-HC-02090-BR (E.D.N.C. filed June 7,

7 Dr. Stephen Hart, an internationally renowned forensic psychologist, later endorsed Dr. Mason’s recommendations. In his June 2017 report, Dr. Hart noted Dr. Mason’s proposed risk management plans “reflect a deep understanding of intellectual disability in general and the needs of Mr. Seth more specifically…the management plans are remarkable or noteworthy for being feasible (i.e., available, accessible and affordable), attentive to Mr. Seth’s unique risk, need, and responsivity factors (i.e., appropriate), and consented to by Mr. Seth (i.e., acceptable).” (J.A. 95.) Dr. Hart agreed that Mr. Seth’s sexual misconduct was not consistent with an underlying psychopathic condition and was more likely attributable to “restricted opportunity for sexual contact with age appropriate peers, along with deficiencies in judgment and impulse control” and were “exacerbated by a lack of appropriate intervention and supervision.” (Id. 94.)
(cont’d)
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2018) [hereinafter 2018 Competency Hearing]8.) Federal authorities, therefore, found that “suitable arrangements for State custody are not available,” (J.A. 98), and filed a petition for federal civil commitment under 18 USC § 4246 in the U.S. District Court for the Eastern District of North Carolina. On May 24, 2018, after Mr. Seth’s Complaint in the current case was filed, Judge Britt in the Eastern District of North Carolina found:
Upon the request of the Attorney General, the Court finds that the state placement is not available. This court finds, as I am only able to find, that the Attorney General has sent a letter to the District of Columbia requesting state placement and that letter has not been responded to. (J.A. 309; 2018 Competency Hearing, supra at 46.) Judge Britt made no finding regarding the availability or appropriateness of services in the District’s service system or the dangerousness Mr. Seth would pose if such services were made available. (J.A. 309; Order, United States v. Seth, No. 5:17-HC-2090-BR (E.D.N.C. filed May 24, 2018).) As a result, Mr. Seth has been held in federal prison medical centers9

8 The court may take judicial notice of matters of public record, such as prior court proceedings. See Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1228 (D.C. Cir. 1993). Accordingly, the Court should take judicial notice of the related proceedings in the Eastern District of North Carolina, see United States v. Seth, No. 5:17-hc-2090-BR (E.D.N.C. filed Apr. 28, 2017).
9 Despite the designation as “Medical Centers,” the BOP facilities at Butner, NC, and Devens, MA, are prisons. See Bureau of Prisons, FMC
(cont’d)
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and has spent the majority of his incarceration in “segregation” (also known as solitary confinement) because his disability makes it challenging for him to follow institutional rules. (J.A. 99-100, 296.) For an individual with ID, solitary confinement is a particularly toxic setting that not only fails to provide equal access to programs, services and activities, but can cause additional harm. (J.A. 100-101, 297.) In contrast to the services Dr. Mason recommended for Mr. Seth in the community, he has received extremely limited services in prison. He has largely been confined to his cell for twenty-two hours per day. (Id. 100, 296-297.)
Occasional “pet therapy” has consisted of reaching through the food slot of his cell door to pet a dog and weekly visits from a mental health counselor may involve speaking through the door’s window. (Id. 101-102, 297.) The District’s refusal to take responsibility for Mr. Seth’s care thus deprives him of necessary services and forces him to live in an unnecessarily restrictive setting.

Butner Admissions & Orientation Handbook at 1 (2009), https://www.bop.gov/locations/institutions/buh/BUH_ aohandbook.pdf (“The mission of … (FMC Butner) is to provide protection to society by providing confinement services for committed offenders.”). They do not provide habilitation programming geared toward people with ID. (J.A. 34, 405-406.)
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2. The District’s Disability Services System DDS serves many individuals whose intensive needs present risk to their safety or the safety of the community unless they are appropriately supported and supervised. (Id. 332, 365-367, 370-372, 438.) DDS can serve individuals with physically aggressive behaviors, risk of absconding, and intensive medical and mental health needs. (Id. 332.) Although most do not require round-the-clock or one-to-one supervision, DDS can and does provide that level of service to a significant number of individuals. (Id.) When problems arise, there are a range of mechanisms for responding, including crisis interventions, changing the service plan, or changing the service site. (Id.) Prior to moving to dismiss the Complaint, the District never provided a reason for denying Mr. Seth services. (Id. 98, 344-45.) DDS’ budget was sufficient to serve Mr. Seth in 2015, when it originally agreed to do so, and has increased every year since. (Id. 339, 366.) Programmatic capacity is also not an issue: the District identified providers capable of meeting his needs and at no time during Mr. Seth’s incarceration has there been a waiting list for services. (Id. 339.) Mr. Seth’s Complaint alleged that, if his incapacity were caused by mental illness instead of—or in addition to—ID, the District likely would
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provide him the services he requires. (Id. 79, 103.) The District regularly provides community-based services to D.C. residents with mental illness found incompetent to stand trial, but refuses to provide Mr. Seth (and likely others with ID) the very same services. (Id.) In just the 2017-2018 fiscal year, DBH filed 40 Ervin Act petitions seeking civil commitment of incompetent defendants with mental illness, and the District currently serves many of those individuals in the community. (Id. 80, 334) In coordination with DBH, DDS provides supervised community-based services to individuals diagnosed with both mental illness and ID who faced similar charges and whose behavioral challenges and risks are at least equivalent to those posed by Mr. Seth. (Id. 299-301, 332.) Wholistic’s proposal identified two individuals whom it has successfully served in the community for many years. (Id. 173-74.) One was found incompetent in connection with a charge of murder and the other on charges involving sexual contact with children. Both are diagnosed with mental illness and ID. (Id.) The only relevant difference between their situations and Mr. Seth’s is that their mental illness diagnoses allowed DBH to coordinate services in conjunction with DDS, whereas DDS alone is charged with providing services to individuals, such as Mr. Seth, with only ID and, left to its own devices, DDS refuses to provide such services.
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In the last seven years, the District has filed only two petitions seeking commitment to DDS under CIDA, and both were initiated under unusual circumstances.10 (Id. 334, 342.) The legislative history of the applicable CIDA provision reflects an expectation that one to two individuals per year would be subject to such commitment to DDS (Id. 334-335.), Kathy Patterson, Chairperson, Committee on the Judiciary, Bill 14-616, the “Civil Commitment of Citizens with Mental Retardation Amendment Act of 2002” 17-19, Council of the District of Columbia, (June 3, 2002), http://lims.dccouncil.us/Download/329/B14-0616COMMITTEEREPORT.pdf [hereinafter “D.C. Council Report”].
Supporting individuals with ID charged with criminal offenses— including sexual offenses—in the community is “common practice throughout the United States.” (J.A. 388-389.) (a national expert in serving individuals with ID). The District’s existing service system can serve Mr. Seth safely, as attested to by its own expert (Dr. Mason) (Id. 89-94, 501.), its former director (Ms. Nuss) (Id. 364.), and a national expert on ID services

10 Under CIDA, petitions for commitment are filed in the name of the District and typically are filed on behalf of DDS. D.C. Code § 7-1303.04. One of those cases was filed by the Office of the Attorney General over DDS’s objections. In the other, the respondent was already a DDS client at the time he was charged with the offense for which he was found incompetent.
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(Ms. Thaler). (Id. 378.) Yet, the District refuses to serve him. The District’s refusal is “contrary to decades of evidence-based research and successful practice in the field of disability services, to the District’s own capabilities, and to its own goals for serving people with [ID] in the community.” (Id. 292, 370, 378, 380, 386, 385-387, 391, 405-406.)
C. Procedural History On May 1, 2018, Mr. Seth sued Defendants, alleging that, by failing to provide the community-based services he needs, Defendants violated the ADA, Section 504, the DCHRA, and CIDA. Specifically, Mr. Seth alleged that the District (1) failed to serve him in the most integrated setting appropriate, (2) failed to reasonably modify its policies and practices to accommodate him, (3) treated him differently from similarly situated individuals with mental illness, and (4) utilized eligibility criteria that have a discriminatory disparate impact on individuals with ID. (Id. 74.) Defendants moved to dismiss, arguing that their failure to serve him was not due to discrimination but rather was because Mr. Seth was committed under the federal statute. (Id. 201.) The district court granted Defendants’ motion to dismiss with prejudice, ruling that Mr. Seth failed to state a claim. The court acknowledged that at the motion to dismiss stage a plaintiff need not prove a
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prima facie case of discrimination and need only allege that he is a qualified individual with a disability; that the public entity denied him the benefits of or prohibited him from participating in the entity’s services; and that denial or prohibition was by reason of his disability. (Id. 29.) Nonetheless, the court ruled that Mr. Seth had “failed to sufficiently establish that the defendants engaged in any of these purported forms of discrimination ‘by reason of his disability.’” (Id. 30.)
The court further ruled Mr. Seth’s Olmstead claim was insufficient because he “failed to offer sufficient indications that the defendants believe ‘community placement is appropriate’ or that ‘the placement can be reasonably accommodated.’” (Id. 38-39 (emphasis added).) The court then speculated: “Although the defendants may, at one time, have believed that community-based services would be an appropriate alternative for Seth, their decision not to move forward with accepting responsibility for his custody, care, and treatment indicates that they no longer find community-based treatment appropriate.” (Id. 39.)
The court stated that Mr. Seth had “offered no evidence that the defendants’ decision not to initiate commitment and custody proceedings was made based on his disability.” (Id. 37 (emphasis added).) Instead, it speculated that “budgetary choices made by the new [DDS] leadership or
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FMC Butner’s Certificate of Dangerousness” motivated the District’s actions. (Id. 35.)
Without citing legal authority, the court focused on Mr. Seth’s federal civil commitment as overriding the District’s civil rights obligation to serve Mr. Seth: “[Plaintiff’s] argument rests on the assumption that ‘the defendants are obligated to provide services to [Seth] despite his being in federal custody and his federal civil commitment.’…No such obligation exists.” (Id. 39.) Although the Attorney General’s conduct is not at issue in this case, the court also noted: “the Attorney General is not required to release a civilly committed person to the District in the absence of the District’s willingness to assume responsibility for that person’s custody, care, and treatment.” (Id. 40.)
Pursuant to Federal Rule of Civil Procedure 59(e), Mr. Seth filed a motion to alter or amend the dismissal with prejudice, requested leave to file an Amended Complaint, and submitted a proposed Amended Complaint setting out additional allegations that responded to the speculative nondiscriminatory bases for Defendants’ actions identified by the Court. (J.A. 526.) Specifically, Mr. Seth’s Proposed Amended Complaint alleged: dangerousness was not a barrier to the District’s civil commitment and services (indeed, the District was aware of the public safety issues when it
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determined that he was eligible and appropriate for civil commitment and community-based services), (Id. 269, 310, 312, 316, 338, 343; the District faced no budgetary or programmatic capacity barriers to serving Mr. Seth, (Id. 339); and additional facts demonstrating the disparate impact of the District’s policies on residents with ID found incompetent versus those with mental illness in similar circumstances. (Id. 263, 289.) Mr. Seth included in his proposed Amended Complaint (Id. 289.), declarations supporting his allegations from Laura Nuss (Id. 364); Nancy Thaler (Id. 378); Dr. Robert Denney (former BOP psychologist) (Id. 403); and Marisa Brown (former director of the District’s Developmental Disabilities Administration Health Initiative) (Id. 433).
The district court denied Mr. Seth’s motion, finding the “central reason” Mr. Seth’s claims failed was that “he could not allege sufficient facts suggesting that he was denied DDS services due to his disability, rather than due to the fact…that he had been deemed by a federal court, by clear and convincing evidence, to be a danger to the community.” (Id. 60.) In rejecting Mr. Seth’s new allegations, the court relied on Judge Britt’s finding of dangerousness—made after Mr. Seth’s Complaint was filed—as an overriding nondiscriminatory basis for the District’s decision. (Id. 60-61.) The court stated “this fact, which remains unchallenged in the Eastern
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District of North Carolina, ‘undermines any allegation—that was pled or could be pled—suggesting that the District failed to act for plaintiff . . . because he has an intellectual disability.’” (Id. 60 (emphasis added).) It continued: “Seth has failed to offer evidence supporting an inference that DDS’s refusal to accept responsibility for Seth’s care was because of his disability, as opposed to concerns…in light of Seth’s dangerousness finding.” (Id. 70 (emphasis added).) “In light of [Judge Britt’s] finding, by clear and convincing evidence, that Seth’s release to the community would pose a substantial risk of causing bodily injury and that state placement was not available, Seth could allege no facts that the state’s treatment officials had determined that community placement was now appropriate or could be reasonably accommodated.” (Id. 60-61.) The court concluded that “whatever quarrel Seth has with DDS’s ‘unilateral[]’ decision that state placement is not appropriate, …, this assessment was ratified by the Complex Warden at FMC Butner and [Judge Britt].” (Id. 61 n.2 (citation omitted).)
Finding, therefore, that amending the complaint would be futile, the court denied the motion.
SUMMARY OF ARGUMENT Mr. Seth alleged that the District violates the ADA by leaving him, a citizen with intellectual disability found incompetent to stand trial, in federal
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prison when it could provide him a more integrated living arrangement with appropriate services. The district court erred by dismissing Mr. Seth’s Complaint with prejudice for failing to provide evidence that was not Mr. Seth’s burden even to allege at the motion to dismiss stage.
Mr. Seth’s Complaint more than sufficiently alleged discrimination under the ADA, Section 504, and DCHRA. Mr. Seth alleged that the District could readily arrange for community-based care for him, utilizing its existing service system and without presenting any unreasonable public risk, but chooses not to do so. Further, he alleged that the District found him eligible for its community-based services, secured a provider to deliver those services, and agreed to civilly commit him and provide those services, but then revoked its agreement without explanation, all of which demonstrates that the services he seeks are reasonable. The court’s dismissal with prejudice was based on several erroneous legal premises.
First, the court erred in concluding that Mr. Seth failed to plead facts showing the District violated his right to receive services in the most integrated setting appropriate. Mr. Seth properly pleaded that he is unnecessarily confined in a federal prison when he could reasonably be served in the community with the services deemed necessary by the District’s medical professionals. In finding otherwise, the court resolved at
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the pleading stage the essential factual questions the parties are disputing, i.e., whether the District can meet Mr. Seth’s needs in its current programs. Further, the court erroneously found dispositive that the Defendants, D.C. officials, did not believe community-based treatment was appropriate. But the question is whether qualified medical professionals—not District officials—have determined that community-based services are appropriate based on their medical expertise. Otherwise, the Olmstead “right” to receive care in the least restrictive environment that medical professionals deem suitable would be meaningless, as state political officials could simply decide that treatment is not appropriate. The court also erroneously shifted the burden to Mr. Seth to allege facts demonstrating that serving him would not constitute an undue burden, fundamental alteration, or direct threat when these are affirmative defenses for which the District bears the burdens of production and persuasion.
Second, the court erred in finding that the federal civil commitment of Mr. Seth excuses the District from its obligations to him. Not so. By refusing to respond to the federal government’s request for state placement, the District denied the North Carolina court the opportunity even to consider whether Mr. Seth could be safely served in the community. The district court improperly gave dispositive weight to the Judge Britt’s finding of
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dangerousness, relying on this decision rather than accepting Mr. Seth’s allegations as true. In doing so, the court misunderstood Mr. Seth’s allegations, which challenged the District’s failure to provide Mr. Seth with community-based services and did not contend that the U.S. Attorney General failed to make reasonable efforts to return him to District custody.
Third, the court erred in dismissing Mr. Seth’s claims based on speculation that the District’s actions could have been motivated by nondiscriminatory factors, such as budgetary limitations, FMC Butner’s Certificate of Dangerousness, or the North Carolina civil commitment order. The court misapplied well-established pleading standards, which required the court to take Mr. Seth’s factual allegations as true and construe all inferences in his favor, and misunderstood the substantive elements of disability discrimination claims. The court believed the District could only have violated the ADA if its discrimination was motivated by Mr. Seth’s disability, but no such motivation is required to establish liability. Under the ADA, an alleged non-discriminatory reason for the defendant’s actions begins the inquiry rather than ends it and, regardless, none of these factual questions can be resolved at the motion to dismiss stage.
Fourth, the court erred in dismissing Mr. Seth’s claims with prejudice and denying his motion to alter or amend the judgment. The standard for
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dismissing a complaint with prejudice is extraordinarily high. Even if the court had correctly identified alternative nondiscriminatory bases for the District’s actions, it incorrectly denied Mr. Seth leave to amend to address those alternatives. He presented sufficient facts to support all of the allegations the court found lacking.
This Court should vacate the district court’s judgment and remand for further proceedings.
ARGUMENT I. THE DISTRICT COURT ERRED IN CONCLUDING
THAT MR. SETH FAILED TO PLEAD FACTS SHOWING DEFENDANTS VIOLATED HIS RIGHT TO RECEIVE SERVICES IN THE MOST INTEGRATED SETTING APPROPRIATE. The district court erred in dismissing this case on the pleadings. “To survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “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.” Id.; see also Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015). In assessing whether a plaintiff has alleged a claim that is plausible on its face, the court must accept as true all

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the well-pleaded allegations in the complaint and “draw all inferences in [the plaintiff’s] favor.” Harris v. Ladner, 127 F.3d 1121, 1123 (D.C. Cir. 1997).
With respect to allegations of disparate treatment, under the McDonnell-Douglas v. Green, 411 U.S. 792, 802-04 (1973), framework for establishing racial discrimination,11 this Court has held that a plaintiff can “raise an inference of discrimination by showing ‘that she was treated differently from similarly situated employees who are not part of the protected class.’” Brown v. Sessoms, 774 F.3d 1016, 1022 (D.C. Cir. 2014) (citation omitted). If the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate “some legitimate, nondiscriminatory reason” for the action, which the plaintiff can still rebut by proving the employers’ justification is “merely pretext for discrimination.” Id. at 102223 (citation omitted); see also Gordon v. U.S. Capitol Police, 778 F.3d 158, 161–62 (D.C. Cir. 2015).
This Court has been clear that “[a]t the motion to dismiss stage, the district court cannot throw out a complaint even if the plaintiff did not plead the elements of a prima facie case.” Brown v. Sessoms, 774 F.3d at 1023

11 See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 50-52 (2003) (applying the McDonnell-Douglas burden-shifting framework in the context of the ADA).
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(citation omitted). Mr. Seth’s Complaint adequately stated a claim that the District’s failure to petition for civil commitment and provide him available community-based services pursuant to its own treating professionals’ opinions violated the ADA. Contrary to the court’s assumption, Judge Britt’s finding that Mr. Seth was subject to federal civil commitment did not ratify the District’s failure to serve him and does not stand in the way of his civil rights claims. The District’s failure to serve Mr. Seth constitutes discrimination on the basis of his disability under unjustified segregation, disparate treatment, disparate impact, and reasonable modification theories of discrimination under the ADA. Any budgetary or capacity constraints or dangerousness concerns are affirmative defenses unsuitable for resolution at the motion to dismiss stage.
A. Mr. Seth Sufficiently Alleged that the District Failed to Serve Him in the Most Integrated Setting Appropriate
Mr. Seth properly pleaded a claim that he is unnecessarily confined in a federal prison when he could reasonably be served in the community. In finding otherwise, the district court improperly resolved at the pleading stage the essential factual question at issue in this case, i.e., whether the District can appropriately meet Mr. Seth’s needs in its current programs. The court appeared to believe that the North Carolina court already resolved that question in the District’s favor, but it did not.
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To plead unnecessary segregation under Olmstead, a plaintiff must show that (1) “treatment professionals have determined that community placement is appropriate;” (2) “the transfer from institutional care to a less restrictive setting is not opposed by the affected individual;” and (3) “placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Olmstead, 527 U.S. at 587. Mr. Seth met each of those elements. As a preliminary matter, all parties agree that the second element—Mr. Seth’s non-opposition to transfer—was met. (J.A. 38.)
This Court recently agreed with the conclusion that “[t]he District has little to be proud of regarding its historic inability to comply with Olmstead’s integration mandate.” Brown v. District of Columbia, 928 F.3d at 1084 (quoting Brown v. District of Columbia, 322 F.R.D. 51, 96 (D.D.C. 2017), rev’d, 928 F.3d 1070 (D.C. Cir. 2019)). Here, the District has the capacity to serve Mr. Seth, but simply refuses.
B. Violation of Olmstead does not Require Allegations that Defendants’ Officials (As Opposed to Treating Professionals) Believe Community-Based Services to be Appropriate

With respect to the first element, Mr. Seth pleaded that the District’s own treating professionals determined that Mr. Seth can and should be

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served in a community placement. (J.A. 86–99. ) That should have ended the analysis at the pleading stage.
The court erroneously found it dispositive that the named defendants—i.e., people who are not treating medical professionals—“no longer find community-based treatment appropriate.” (Id. 39.) The Complaint did not—and need not— allege the Defendants’ beliefs. More fundamentally, even if their views had been alleged, the views of unidentified District officials or attorneys cannot override the views of treating professionals.
Olmstead itself makes that principle crystal clear. There, state officials objected all the way to the Supreme Court to the plaintiffs being served in the community. The Supreme Court found it improper to defer to these uninformed views, reasoning: “When ‘a disabled individual’s treating professionals find that a community-based placement is appropriate for that individual, the ADA imposes a duty to provide treatment in a community setting—the most integrated setting appropriate to that patient’s needs.’” 527 U.S. at 595 (emphasis added) (quoting L.C. ex rel. Zimring v. Olmstead, 138 F.3d 893, 902 (11th Cir. 1998), aff’d in part, vacated in part, remanded by, Olmstead , 527 U.S. 581 (1999)). The question is whether qualified medical professionals have determined that community-based services are
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appropriate for an individual based on their medical expertise. See id. If it were otherwise, Olmstead’s “right” to receive care in the least restrictive environment would be dependent on a state’s political whims, i.e., it would be no right at all.
In this case, Defendants’ own medical professionals made the determination—repeatedly, and so far unchallenged with competent evidence—that Mr. Seth can be appropriately served in an integrated setting. The district court erroneously believed that Dr. Kristina Lloyd—the BOP (not the District) psychologist who testified in the federal civil commitment proceeding—found otherwise, but she did not. Dr. Lloyd’s assessment did not challenge Dr. Mason’s recommendations regarding how Mr. Seth could be safely served in the community with appropriate support from the District (nor would it be expected to, since that court was not presented with that question). Even if Dr. Lloyd’s opinion were relevant to the Olmstead analysis (it is not), it would merely create a disputed question of material fact, not a basis for dismissal.
The unsupported, hypothetical opinions of unidentified state officials with no apparent medical qualifications, and the incorrectly presumed opinion of a BOP psychologist with no basis to assess the District’s

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available services, in no way justify dismissing Mr. Seth’s claims. Yet, the court found those opinions determinative as a matter of law.
C. Mr. Seth Properly Pleaded the District Can Accommodate his Needs in a More Integrated Setting.
Mr. Seth pleaded that the District can reasonably provide him necessary public services (i.e., supervised care that ensures public safety) in a more integrated setting pursuant to CIDA, which was designed to serve individuals precisely in Mr. Seth’s situation. Among other things, the Complaint alleged that the District’s treating professional—Dr. Mason— found (following a comprehensive assessment) that Mr. Seth is not a predator, that he would be “responsive to and appropriate for placement in a highly structured and supervised [minimum of one-to-one, round-the-clock supervision] community-based residential program,” and that “a more restrictive setting would not be necessary.” (J.A. 90.) Mr. Seth further alleged that providers with appropriate experience and expertise in D.C. are willing to serve him, that the District’s own expert found these services could reasonably address any public safety concerns, and that the District agreed to provide such services before inexplicably changing its mind. (Id. 98.) Thus, Mr. Seth sufficiently alleged that the requested community-based services are reasonable and available.

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The court erred in relying on the North Carolina court’s
dangerousness finding, apparently on the erroneous assumption that this
determination made it impossible for Mr. Seth to plausibly plead that he can
safely receive services in a more integrated setting. (Id. 61.) The court
erroneously required Mr. Seth to prove that serving him would not be an
undue burden or fundamental alteration and would not constitute a direct
threat—affirmative defenses on which the District bears the burdens of
production and persuasion. See, e.g., Steimel v. Wernert, 823 F.3d 902, 916 (7th Cir. 2016) (fundamental alteration); Lovejoy–Wilson v. NOCO Motor
Fuel, Inc., 263 F.3d 208, 220-21 (2d Cir. 2001) (direct threat and undue
burden); E.E.O.C. v. Wal-Mart Stores, Inc., 477 F.3d 561, 571 (8th Cir.
2007) (direct threat); Dadian v. Vill. of Wilmette, 269 F.3d 831, 840-41 (7th
Cir. 2001) (direct threat); Nunes v. Wal–Mart Stores, Inc., 164 F.3d 1243,
1247 (9th Cir. 1999) (direct threat).
As this Court has held:
Although the [Olmstead] Court did not expressly declare that the State bears the burden of proving the unreasonableness of a requested accommodation once the individual satisfies the first two requirements, we believe it does…A State that cannot demonstrate it has [an adequate Olmstead] plan in place….must make every modification to its policies and procedures requested by an institutionalized disabled individual who wishes to, and could, be cared for in the community, unless the modification would be so costly as to require an unreasonable transfer of the State’s limited resources away from other
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disabled individuals…The district court’s formulation led it to require Plaintiffs to meet a burden they should not have been made to shoulder.
Brown v. District of Columbia, 928 F.3d at 1077-79 (emphasis in the
original).
Indeed, were the District actually concerned that Mr. Seth poses a
direct threat12 to the health or safety of others, the ADA requires the District
to
make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
28 C.F.R. § 35.139(b).
The district court, rather than hold the District to its burden, placed the
burden on Mr. Seth and ignored his allegations—clarified in the proposed
Amended Complaint—that a dangerousness finding not only does not
extinguish the District’s obligation to civilly commit and serve him, but was,
in fact, a predicate to the District’s ability to civilly commit him under

12 Defined as a “significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures.” 28 C.F.R. § 35.104(4).
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CIDA. A person with ID cannot be civilly committed in the District (or under 18 U.S.C. § 4246) unless it is proven he or she is dangerous. D.C. Code § 7-1304.06a (“(d) If the Court or jury finds that the person does not have an intellectual disability or that the person is not likely to cause injury to others as a result of the person’s intellectual disability if allowed to remain at liberty, the Court shall dismiss the petition.”) The District consistently expressed awareness of a potential federal dangerousness finding throughout Mr. Seth’s eligibility determination and planning process and nevertheless repeatedly indicated its willingness to serve him in the community in line with Dr. Mason’s recommendations. The subject of the current case is the availability of appropriate services that will allow Mr. Seth to return safely to his community and the District’s ADA obligation to provide them, utilizing the mechanism CIDA created precisely for this situation.
As alleged in the Complaint, the District’s expert already concluded twice that Mr. Seth poses no such threat, provided he receives the reasonable supports and services readily available within the District’s existing service system. Judge Britt’s order regarding dangerousness did not conclusively determine this factual dispute.

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D. The Federal Civil Commitment Does Not Excuse the District from its Obligations to Mr. Seth.
The court determined that Judge Britt’s civil commitment order “ratified” and precluded any challenge to the District’s decision not to serve Mr. Seth. According to the court, Judge Britt’s dangerousness finding required dismissal of Mr. Seth’s unjustified isolation claim, as it “undermines any allegation—that was pled or could be pled—suggesting that the District failed to act for plaintiff . . . because he has an intellectual disability.” (J.A. 60 (citing Defs.’ Opp’n 5)). The court ruled that Judge Britt’s findings were so inconsistent with Mr. Seth’s allegations, they justified refusing to accept those allegations’ truth. No such inconsistency exists.
Judge Britt did not rule on the questions posed in this case. To the contrary, the District, by refusing to respond to the federal government’s request, precluded Judge Britt from considering whether Mr. Seth could be safely served in the community. Accordingly, Judge Britt did not contemplate, much less rule on, Mr. Seth’s dangerousness if provided the services available in the District’s system. And BOP authorities would be obligated by statute to return Mr. Seth to the District if it were prepared to take responsibility for his care and treatment. 18 U.S.C. § 4246(d).

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All Judge Britt found, on the limited facts before him, three weeks after Mr. Seth filed his Complaint in the current case, was that (i) no state placement had been made available, and (ii) Mr. Seth’s release (in the absence of such state placement) created a potential for risk. He made no substantive finding about whether the District could suitably serve Mr. Seth, but rather found that no suitable state placement was available, based on the FMC-Butner Warden’s certification that DC did not respond to his letter. Order, United States v. Seth, Case No. 5:17-HC-02090-BR (E.D.N.C. filed May 17, 2018) [hereinafter “Order Denying Stay”]; 2018 Competency Hearing, supra at 25, 45-46.
Nor did Judge Britt make any finding that Mr. Seth would be a danger to the community if appropriate community-based services were provided to him by the District. Indeed, because of the District’s failure to respond to the Warden’s inquiries, the court had no evidence before it of the availability of appropriate District services, of their effect on dangerousness, or of the District’s obligations under the ADA and CIDA. Order Denying Stay, supra at 3.13

13 Nor could Mr. Seth plausibly bring evidence of the effect of available services to Judge Britt’s attention in the absence of the District’s willingness to provide them.
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The district court appeared to believe Mr. Seth’s claims were a collateral challenge to Judge Britt’s finding and to the Attorney General’s decision not to release Mr. Seth unsupervised. (J.A. 60-61.) The court misunderstood Mr. Seth’s allegations, which challenged the District’s failure to provide him with services in the most integrated setting appropriate and did not contend that the Attorney General acted improperly.
The district court misunderstood the import of Judge Britt’s dangerousness finding, which triggered D.C.’s obligation to serve Mr. Seth under the federal civil commitment scheme and CIDA rather than extinguish it. The federal civil commitment statute expresses a clear preference for states to assume responsibility for their citizens, and, if the state does so, requires the federal government to transfer custody. 18 U.S.C. § 4246(d). CIDA provides the District the authority to take such custody through civil commitment.
And the ADA requires the District to affirmatively ensure that its citizens receive public services in the most integrated setting appropriate. The statutes do not contemplate that a state, by refusing to respond to federal requests, can wash its hands of any obligation; if states were permitted to do so with impunity, the federal civil commitment scheme would not work as intended and the rights of people with disabilities to be served in the most
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integrated setting appropriate would be violated, as Mr. Seth’s were here. II. THE DISTRICT COURT ERRED IN FAILING TO ACCEPT MR. SETH’S FACTUAL ALLEGATIONS AS TRUE AND DRAW ALL INFERENCES IN HIS FAVOR AND INSTEAD BASING DISMISSAL ON FACTUAL DEFENSES Mr. Seth’s Complaint and Proposed Amended Complaint
comprehensively described how Defendants’ violated his rights under statutes that protect individuals with disabilities. The district court failed to accept his allegations as true and draw all inferences in his favor. Worse, rather than shifting the burden to Defendants to provide nondiscriminatory bases for their actions (the validity of which should be adjudicated later in the case), the court imagined hypothetical non-discriminatory reasons for the District’s actions and then dismissed the Complaint based on them.
To state a claim for violation of Title II of the ADA, “a plaintiff must allege: (1) that he is a “qualified individual with a disability”; (2) who “was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity”; and (3) that “such exclusion, denial of benefits, or discrimination was by reason of his disability.” Abdus-Abdus–Sabur v. Hope Village, Inc., 221 F. Supp. 3d 3, 8 (D.D.C. 2016) (quoting Lee v. Corr.

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Corp. of Am., 61 F. Supp. 3d 139, 142–43 (D.D.C. 2014))14 Mr. Seth properly alleged each element.
The court found that Mr. Seth failed to plead discrimination “because of disability,” but it did not properly apply that standard. Instead, the court essentially required Mr. Seth to plead animus, which is not required by the ADA. Discrimination “because of disability” can take several forms under the ADA. In addition to unjustified segregation, discrimination may be shown through evidence of: (1) failure to reasonably modify policies, practices, or procedures as necessary to avoid discrimination on the basis of disability, 28 C.F.R. § 35.130(b)(7); (2) disparate treatment, 28 C.F.R. § 35.130(b)(1) (prohibiting public entities from excluding, denying benefits, or providing unequal benefits on the basis of disability);15 or (3) disparate impact, 28 C.F.R. § 35.130(b)(3) (prohibiting public entities from utilizing criteria or methods of administration that have the effect of discriminating on the basis of disability) and (b)(8) (prohibiting public entities from

14 To state a claim under Section 504, a plaintiff must also allege that the defendant is a recipient of federal financial assistance. Pierce v. District of Columbia, 128 F. Supp. 3d 250, 266 (D.D.C. 2015).
15 Although the court added a claim entitled “intentional discrimination,” as discussed below, intent is not required for any form of discrimination under the ADA.
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imposing eligibility criteria that screen out or tend to screen out individuals with disabilities). Mr. Seth asserted all three forms of discrimination.
In dismissing Mr. Seth’s ADA claims, the court held: “the plaintiff ‘must establish that disability actually played a role in the decision making process and had a determinative influence on the outcome.’” (J.A. 33.) While it is true that the ADA prohibits disparate treatment and disparate impact discrimination “on the basis of disability,” 28 C.F.R. § 35.130(b)(1), the court confused the requirement that Mr. Seth’s disability have a causal influence on the outcome with a requirement that the Defendants have made their decisions because of his disability. It is sufficient that Mr. Seth alleged he is currently imprisoned in a federal facility because he has ID; he does not need to also plead that his ID motivated the District’s inaction.
A. The District Court Improperly Required Mr. Seth to Plead that Defendants’ Facially Discriminatory Policy was Carried Out for Intentionally Discriminatory Reasons
The court erred in requiring Mr. Seth to plead that D.C. intentionally treated Mr. Seth worse because of his disability. That is not an element of Mr. Seth’s claims.
Mr. Seth alleged that, in addition to violating the Olmstead integration mandate, the District’s refusal to serve him violated the ADA under theories of disparate treatment, disparate impact, and reasonable modification. In

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support of his disparate treatment claim, Mr. Seth alleged the District treats individuals with ID differently from, inter alia, similarly situated individuals with mental illness. (J.A. 69, 72, 95, 116.) Specifically, he alleged the District regularly provides community-based services to residents found incompetent and dangerous due to mental illness—through DBH pursuant to the Ervin Act—but fails to do so for those with ID through DDS pursuant to CIDA. (Id. 79.) He alleged that the only relevant differences between these individuals are the disabilities with which they are diagnosed (Id. 332-335.) and, accordingly, which District agency is responsible for their care. That is, Mr. Seth alleged that D.C. maintains a facially discriminatory policy, which is the essence of disparate treatment regardless of its subjective motivation.
A plaintiff who challenges a law based on facial discrimination need not allege—or ultimately prove—“malice or discriminatory animus of a defendant.” Cmty. Servs., Inc. v. Wind Gap Mun. Auth., 421 F.3d 170, 182 (3d Cir. 2005) (citation omitted). Indeed, “when a policy is ‘discriminatory on its face,’ the defendant’s motive is irrelevant,” Feemster v. BSA Ltd. Partnership, 548 F.3d 1063, 1070 (2008) (quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985)) see also Larkin v. State of Mich. Dep’t of Soc. Servs., 89 F.3d 285, 290 (6th Cir. 1996) (“the absence of a malevolent motive does not convert a facially discriminatory policy into a
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neutral policy with a discriminatory effect.” (quoting Int’l Union, United Auto. Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991))).
Alternatively, Mr. Seth alleged that, even if the District’s policy of not providing services to people with ID could be deemed facially neutral, it disparately harms (in the language of the ADA, “has the effect of” excluding) individuals with ID because of their disabilities. (J.A. 74.) The District’s policy results in people with mental illness receiving communitybased services, while people with ID are relegated to prison. (Id. 77 -78, 102-104, 116.) Mr. Seth alleged statistical evidence of such disparate impact. (Id. 300, 333-336).
Finally, Mr. Seth alleged that the District refused to reasonably modify its policies and practices to ensure that he would not suffer discrimination because of his disability. Specifically, he alleged that he requested the District to modify its usual practices to allow him access to appropriate services and that these modifications would be reasonable.
The district court erroneously found these allegations insufficient to plead that the District refused to serve Mr. Seth “on the basis of” his disability. The court interpreted “on the basis of” disability to mean the District could only have violated the ADA if its discrimination was
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motivated by Mr. Seth’s disability. (Id. 38-39) (Mr. Seth “failed to offer sufficient indications that the defendants believe ‘community placement is appropriate’ or that ‘the placement can be reasonably accommodated.’” (emphasis added)); id. 34 (Mr. Seth’s Complaint did not provide details about “defendants’ motivations” for discriminating against him and “Seth has not shown the defendants’ decision not to seek custody was made “because he is handicapped.” (emphasis added)); id. 37 (Seth “offered no evidence that the defendants’ decision not to initiate commitment and custody proceedings was made based on his disability.” (emphasis added)); id. 39 (Seth “failed to offer sufficient indications that the defendants believe ‘community placement is appropriate’ or that ‘the placement can be reasonably accommodated.” (emphasis added)).
Nowhere do the text, regulations, or judicial interpretations of the ADA require such motivation to establish liability, and governing precedent is to the contrary. The Supreme Court has instructed that Section 50416 does not require proof of discriminatory intent because “[d]iscrimination against the handicapped was perceived by Congress to be most often the product,

16 The ADA regulations provide that the ADA “shall not be construed to apply a lesser standard than the standards applied under [Section 504]…” 28 C.F.R. § 35.103(a).
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not of invidious animus, but rather of thoughtlessness and indifference—of benign neglect.” Alexander v. Choate, 469 U.S. 287, 295 (1985); Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1259 (D.C. Cir. 2008).
Title II of the ADA merely states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (emphasis added). It is enough, per the statute, for the disability to be the cause of the exclusion, denial, or discrimination; it need not also be the motivation. In particular, the ADA prohibits actions that have the effect of excluding, denying benefits or discriminating because of disability. 28 C.F.R. § 35.130(b)(3). The Title II regulation’s use of the phrase “on the basis of disability” does not mean a covered entity’s action (or inaction) was taken because of disability, or that the entity took action with intent to harm a person with a disability, or even knowledge that a person with disability would be harmed or that its actions would violate the law. Rather, “on the basis of disability” means the result of the defendant’s actions was harmful to the plaintiff because of his disability.
The court’s error is clear in its citation to Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) (J.A. 33), as the basis for its
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view that Mr. Seth needed to establish discriminatory purpose to prevail. Feeney is a constitutional equal protection case, not a statutory ADA case like the instant matter. A claim under the ADA, unlike one under the Equal Protection Clause, does not require intent or discriminatory purpose. See Erickson v. Bd. of Govs of State Colleges & Univs. For Ne. Ill. Univ., 207 F.3d 945, 949 (7th Cir. 2000) (“To see this, consider the role of intent. When a state law or practice does not expressly concern a particular characteristic …, but has a disparate impact on persons with that characteristic, the plaintiff in constitutional litigation must establish that the state intends to discriminate on the basis of that characteristic. See, e.g., [Feeney] …. Things are otherwise under the ADA, which not only demands accommodation (which forces the employer to consider, rather than ignore, disabilities) but also prohibits any rule or practice that has a disparate impact… 42 U.S.C. § 12112(b)(6). … Cases such as Feeney and Davis hold that the Equal Protection Clause does not forbid laws and practices that have a disparate impact; but the ADA does forbid them.” (emphasis added) (citations omitted)).
The court also relied on Howell v. Gray, 843 F. Supp. 2d 49, 59 (D.D.C. 2012), for the proposition that disability must “actually play[] a role” or have a “determinative influence on the outcome” to succeed under
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any theory of discrimination. (J.A 33.) However, Howell is irrelevant here. The plaintiff in Howell alleged that, because he had learning disabilities, the ADA required him to be provided more information about available services than was provided to people without disabilities. Howell 843 F. Supp. 2d at 52. The Howell plaintiff’s claim failed because there was no entitlement for anyone to receive post-secondary education benefits. Id. at 57. In other words, the plaintiff could not allege an ADA violation where the District denied the services at issue to everyone, regardless of disability. Mr. Seth, on the other hand, is alleging that the District failed to provide certain services to individuals with ID but did provide such services to others, including similarly situated individuals with mental illness.
The district court’s error is most clear with respect to the ADA’s requirement that covered entities provide reasonable modifications to policies and practices to accommodate disabilities. A plaintiff need not allege that a reasonable modification was denied because of disability. Rather, the modification only must have been needed because of the disability. Such a denial of an accommodation that is needed because of disability (and the resulting exclusion from service) is discrimination “because of disability.” Cf. Henrietta D. v. Bloomberg, 331 F.3d 261, 274 (3d Cir. 2003) (“[A] public entity is not only prohibited from affording to
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persons with disabilities services that are ‘not equal to that afforded others,’ or ‘not as effective in affording equal opportunity,’ but also cannot prevent a qualified individual with a disability from enjoying ‘any aid, benefit, or service,’ regardless of whether other individuals are granted access.” (citations omitted)).
As this Court has explained in the employment context,17 “When a disabled plaintiff alleges a failure to make a reasonable accommodation, … she need not explain why her employer has failed to accommodate her. The failure to accommodate is itself discriminatory. …The employer’s motivation for refusing the accommodation plays no part in that analysis, and therefore reasonable-accommodation claims are “not subject to analysis under McDonnell–Douglas.” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc) (citations omitted). The same analysis governs here. The District had notice of Mr. Seth’s disability, his potential for dangerousness absent supervision and supports, and his need for accommodation, and he pleaded facts that make it at least plausible that the

17 Reasonable accommodation claims under Title I of the ADA are analogous to reasonable modification claims under Title II. See, e.g., Etheridge v. FedChoice Fed.Credit Union, 789 F. Supp. 2d 27, 35 (D.D.C. 2011); McElwee v. Cty. of Orange, 700 F.3d 635, 640 & n.2 (2d Cir. 2012).
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accommodation was reasonable. Chenari v. George Washington, 847 F. 3d 740, 747 (D.C. Cir. 2017). That is all that is required at this stage.
Nor were Defendants’ motivations relevant to Mr. Seth’s disparate impact claims. Disparate impact discrimination, by definition, is not intentional. See, e.g., Serrano v. Cintas Corp., 699 F.3d 884, 892 (6th Cir. 2012). Rather, the ADA disparate impact regulations merely required Mr. Seth to allege that the District’s actions and eligibility criteria for community services “tend to” screen out people with ID because of their disabilities. Only the effect of the challenged policy, not the reason it was adopted, is relevant, and Mr. Seth sufficiently pleaded disparate effect. Paulson, 525 F.3d at 1267 (“Where the plaintiffs identify an obstacle that impedes their access to a government program or benefit, they likely have established that they lack meaningful access to the program or benefit.”); see also Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir. 1996) (facially neutral quarantine requirement for animals entering Hawaii disparately impacts individuals with disabilities who rely on service animals).
B. The District Court Improperly Relied on Possible Defenses as a Basis to Dismiss Appellant’s Complaint
In finding that Mr. Seth failed to show that the District’s actions were discriminatory by reason of his disability (J.A. 30, 32, 42), the court suggested the District’s actions could have been due to budgetary
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limitations, the FMC Butner Certificate of Dangerousness, or Judge Britt’s civil commitment order. These are defenses to be alleged and proven by Defendants and are factual questions that cannot be resolved at the motion to dismiss stage. (Id. 37-38.)
At the pleading stage, a plaintiff is not required to disprove all possible alternative motivations; he need only plead that defendant’s “unfavorable action gives rise to an inference of discrimination.” Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999); see also Raytheon, 540 U.S. 44. Mr. Seth is entitled to an opportunity to factually rebut such proposed explanations by showing they are pretextual. Raytheon, 540 U.S. 44 (applying the McDonnell-Douglas burden-shifting framework in the context of the ADA). And while he was not required to do so, Mr. Seth proposed an Amended Complaint demonstrating that the District in fact had no budgetary or programmatic capacity concerns (J.A. 339, 366.) Even if the District had made these arguments, resolution of such factual disputes is clearly inappropriate at the motion to dismiss stage. [see infra]
Compounding its error, the court failed to understand that, in an ADA claim seeking reasonable modifications, a purported non-discriminatory reason for the defendant’s actions begins the inquiry rather than ends it. A defendant must prove, as an affirmative defense, that it would be an undue
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burden to make the requested modification. See, e.g., 28 C.F.R. § 35.130(b)(7)(i) (“A public entity shall make reasonable modifications . . . unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” (emphasis added)); 28 C.F.R. § 35.164; Brown v. Sessoms, 774 F.3d at 1023; M.J. v. District of Columbia, 401 F. Supp. 3d 1, 12-13 (D.D.C. 2019) (at motion to dismiss stage “allegations that defendants failed to provide mandated services, which has the effect of segregating plaintiffs, are sufficient to state a claim of discrimination under Olmstead. . . plaintiffs have alleged that compliance with federal law. . . would not require a fundamental alteration to defendants’ service system, which is all that is required at this stage.”)
It is particularly inappropriate to find, as the court did, that the District acted because of Mr. Seth’s perceived dangerousness “instead of” his disability. That is not, in fact, an alternative explanation. Rather, the possibility that Mr. Seth could be dangerous in the wrong environment is the predicate for the relief he requests. Even assuming safeguards are necessary for his care, the real question in this case—which cannot be resolved on a motion to dismiss—is whether the District can reasonably provide those safeguards in the community rather than leaving Mr. Seth in federal prison.
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The District’s own expert has answered this question unequivocally in the affirmative. At most, Judge Britt’s order gave rise to a dispute of fact regarding whether Mr. Seth would be dangerous if provided appropriate services. Thus, dismissal was in error.
III. THE DISTRICT COURT ERRED BY DISMISSING MR. SETH’S CLAIMS WITH PREJUDICE AND DENYING HIS MOTION TO ALTER OR AMEND THE JUDGMENT AND AMEND THE COMPLAINT
The court abused its discretion in denying Mr. Seth leave to amend his Complaint to add the very factual details—ruling out hypothetical alternative reasons for the District’s actions—the court found lacking. A district court’s denial of a motion for leave to amend under Fed. R. Civ. P. Rule 15(a)(2) is reviewed for abuse of discretion, Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1083 (D.C. Cir. 1998), “bearing in mind that the rule is to be construed liberally.” Belizan v. Hershon, 434 F.3d 579 (D.C. Cir. 2006). A court’s refusal to grant a Rule 59(e) motion is also reviewed for abuse of discretion, a standard that is met where the district court committed a clear error of law or fact. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996); EEOC v. Lockheed Martin Corp., 116 F.3d 110, 112 (4th Cir. 1997). Here the court committed clear error by dismissing Mr. Seth’s original Complaint with prejudice.

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A dismissal with prejudice is warranted only when a trial court “determines that ‘the allegations of other facts consistent with the challenged pleading could not possibly cure the deficiency.’” Firestone, 76 F.3d at 1209 (emphasis added) (quoting Jarrell v. U.S. Postal Serv., 753 F. 2d 1088, 1091 (D.C. Cir. 1985)). The standard for dismissal with prejudice is extraordinarily high, as it operates as a rejection of the plaintiff’s claims on the merits. See Firestone, 76 F.3d at 1209; Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012).
That standard was not met here; the court based its conclusion that amendment would be futile on the erroneous belief that Judge Britt’s commitment order contradicted Mr. Seth’s Complaint. As discussed above, that conclusion was clear error. (J.A. 73.) The court misunderstood the import of Judge Britt’s commitment order, and its ruling cannot be defended.
Here, Mr. Seth’s proposed Amended Complaint, far from being futile, addressed the supposed deficiencies in his initial Complaint. The court’s initial opinion raised hypothetical nondiscriminatory bases for the District’s actions. Although, under the ADA, these arguments are affirmative defenses for which Defendants bear the burden of production and persuasion, Mr. Seth’s Proposed Amended Complaint addressed all these possible bases, including (1) correspondence showing District officials were well aware—
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when they originally found Mr. Seth eligible, agreed to civilly commit and serve him, and designed his service plan—of the public safety issues that his unsupervised release would pose and of the potential for a finding of dangerousness; (2) the District’s budget to provide services continually increased since 2016 and it had sufficient programmatic capacity to serve Mr. Seth; (3) data demonstrating the disparate impact of the District’s policies on residents with ID in contrast to residents with mental illness; and (4) declarations from experts demonstrating that the District could serve Mr. Seth safely in the community. (Id. 289.) While Mr. Seth was not required to address these possible alternative bases for the District’s actions, his proposed Amended Complaint would have negated the need to litigate that point, and he should have been granted leave to file it.
CONCLUSION For the above reasons, this Court should reverse the district court’s decision, vacate its entry of judgment for Defendants, and remand this case for further proceedings.

Respectfully submitted /s/ Donald P. Salzman
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Donald P. Salzman, D.C. Bar No. 479775 Gary DiBianco, D.C. Bar No. 458669 Rebecca M. Murday, D.C. Bar No. 1616394 Leila Naghibi, D.C. Bar No. 1009879 1440 New York Avenue, N.W. Washington, D.C. 20005-2111 Tel: (202) 371-7983 Fax: (202) 393-5760 Donald.Salzman@probonolaw.com
/s/ Eve L. Hill Eve L. Hill, D.C. Bar No. 424896 BROWN GOLDSTEIN & LEVY, LLP 120 East Baltimore Street, Suite 1700 Baltimore, Maryland 21202 Tel: (410) 962-1030 Fax: (410) 385-0869 EHill@browngold.com
/s/ Robert D. Dinerstein Robert D. Dinerstein, D.C. Bar No. 373443 AMERICAN UNIVERSITY, WASHINGTON COLLEGE OF LAW, DISABILITY RIGHTS LAW CLINIC 4300 Nebraska Avenue, Y-202 Washington, D.C. 20016 Tel: (202) 274-4141 Fax: (202) 274-0659 rdiners@wcl.american.edu
/s/ Shira Wakschlag Shira Wakschlag, D.C. Bar No. 1025737 THE ARC OF THE UNITED STATES 1825 K Street, N.W., Suite 1200 Washington, D.C. 20006
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Tel: (202) 534-3708 Fax: (202) 534-3731 Wakschlag@thearc.org
Counsel for Appellant

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REQUEST FOR ORAL ARGUMENT This appeal involves a complex factual record as well as multiple legal issues. Appellant respectfully submits that oral argument would benefit this Court’s consideration of this appeal.

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CERTIFICATE OF SERVICE
I hereby certify that on December 17, 2019, I electronically filed the foregoing Brief of the Appellant with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit by using the appellate CM/ECF system. I also hereby certify that participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

/s/ Donald P. Salzman Donald P. Salzman (D.C. Cir Bar No. 61958)
1440 New York Avenue N.W. Washington, D.C. 20001 (202) 371-7000
donald.salzman@probonolaw.com
Counsel for Appellant Markelle Seth

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CERTIFICATE OF COMPLIANCE I further certify that this brief complies with the type-volume limitation in Federal Rule of Appellate Procedure 32(a)(7)(B) because the brief contains 12,508 words, excluding exempted parts. This brief complies with the typeface and type style requirements of Federal Rule of Appellate Procedure 32(a)(5) and (6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2019 in Times New Roman 14 point.

/s/ Donald P. Salzman Donald P. Salzman (D.C. Cir. Bar No. 61958)
1440 New York Avenue N.W. Washington, D.C. 20001 (202) 371-7000
donald.salzman@probonolaw.com
Counsel for Appellant Markelle Seth

 
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ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________________

No. 19-7057 ____________________

MARKELLE SETH,

Appellant,

v.

DISTRICT OF COLUMBIA, et al.,

Appellees. ______________________________________________________

On Appeal from the United States District Court for the District of Columbia ______________________________________________________

BRIEF OF DISABILITY RIGHTS DC/UNIVERSITY LEGAL SERVICES, QUALITY TRUST, AND WASHINGTON LAWYERS COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS AS AMICI CURIAE IN SUPPORT
OF APPELLANT AND REVERSAL ________________________________________________________

David A. Reiser ZUCKERMAN SPAEDER LLP 1800 M Street, NW, Suite 1000 Washington, DC 20036 Tel: (202) 778-1800 dreiser@zuckerman.com

Sandy Bernstein Legal Director University Legal Services—
Disability Rights DC 220 I Street, NE, Suite 130 Washington, DC 20002 (202) 547-4747 Telephone (202) 547-2083 Facsimile (202) 547-2657 TTY sbernstein@uls-dc.org

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CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

A. Parties Appellant is Markelle Seth. Appellees are the District of Columbia,
the District of Columbia Department of Disability Services, and its Director, Andrew Reese, in his official capacity.

B. Rulings Under Review The rulings under review are the order of September 28, 2018 (ECF
28) granting the defendants’ motion to dismiss, and the order of May 8, 2019 (ECF 36), denying the timely motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59.

C. Related Cases This civil action is related to the criminal case in which Mr. Seth was
found permanently incompetent to stand trial. United States v. Seth, 1:14mj-00608-BAH-GMH-1 (D.D.C.).

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CORPORATE DISCLOSURE CERTIFICATE

University Legal Services is a non-profit, tax exempt organization incorporated in the District of Columbia. University Legal Services has no parent corporation and no publicly held company has 10% or greater ownership. Disability Rights DC is a division of University Legal Services.

Quality Trust for Individuals with Disabilities (Quality Trust) is a non-profit, tax-exempt organization incorporated in the District of Columbia. Quality Trust has no parent corporation and no publicly held company has 10% or greater ownership.

Washington Lawyers Committee for Civil Rights and Urban Affairs is a non-profit, tax-exempt organization incorporated in the District of Columbia. It has no parent corporation and no publicly held company has 10% or greater ownership.

D.C. CIRCUIT RULE 29(d) CERTIFICATE

Amici understand that other organizations intend to file briefs in support of Appellant. This brief addresses the capability of the District of Columbia agencies to assume responsibility for the care, custody and treatment of Appellant, as contemplated by 18 U.S.C. § 4246(d), drawing on the experience of amici with the

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operation of the local system of care for persons with intellectual disabilities. My understanding is that other anticipated amicus briefs will address different topics: the Olmstead standard; the appropriateness of prison confinement for Mr. Seth; and the academic research on the appropriate treatment of persons with intellectual disabilities. A separate brief is necessary to present information specific to the District’s ability to provide custody appropriate to risks that Appellant may present if released from federal custody in light of the federal commitment order.

/s/ David A. Reiser David A. Reiser

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii
INTERESTS OF AMICI CURIAE .............................................................................1
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................3
ARGUMENT .............................................................................................................6
THE DISTRICT COURT ERRED IN DISMISSING THE AMENDED COMPLAINT AS FUTILE BECAUSE OF THE FEDERAL COMMITMENT.....................................................................................6
A. The Amended Complaint Sufficiently Alleged Discrimination in Violation of the ADA. .....................................................................................6
B. The Federal Commitment Does Not Preclude Mr. Seth From Receiving Care, Custody and Treatment by the District.................................9
C. The District Can Provide Appropriate Care, Custody and Treatment ..........12
D. The District’s Invalid Reliance on the Federal Commitment For Its Refusal to Provide Services to Mr. Seth Supports An Inference of Discrimination ...........................................................................................23
CONCLUSION ........................................................................................................26

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TABLE OF AUTHORITIES
CASES
Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) .......................................................................6, 25
Amundson v. Wisconsin, 721 F.3d 871 (7th Cir. 2013)..................................................................................8
Brown v. District of Columbia, 928 F.3d 1070 (D.C. Cir. 2019) .............................................................................9
Davis v. Shah, 821 F.3d 231 (2d Cir. 2016) ...................................................................................9
Evans v. Bowser, 87 F. Supp. 3d 1 (D.D.C. 2015) .............................................................................5
Evans v. Fenty, 701 F. Supp. 2d 126 (D.D.C. 2010) .......................................................................5
Evans v. Williams, 206 F.3d 1292 (D.C. Cir. 2000) .............................................................................5
Geleta v. Gray, 645 F.3d 408 (D.C. Cir. 2011) .............................................................................25
Giles v. Transit Emps. Fed. Credit Union, 794 F.3d 1 (D.C. Cir. 2015)..................................................................................25
Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) ...................................................................................8
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .........................................................................................8, 25
Olmstead v. L.C. ex rel Zimring, 527 U.S. 581 (1999) .........................................................................................8, 22
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) .........................................................................................6, 25

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St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993) .........................................................................................6, 25
Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002) ...............................................................................................8
RULES Fed. R. Civ. P. 8(a).....................................................................................................8 Fed. R. Civ. P. 12(b)(6)..............................................................................................6 Fed. R. Civ. P. 50 .................................................................................................6, 25 Fed. R. Civ. P. 56 .......................................................................................................6
STATUTES AND REGULATIONS 18 U.S.C. § 4246 ....................................................................................... 3, 9, 10, 11 18 U.S.C. § 4246(d) ................................................................................ 8, 10, 11, 24 D.C. Code § 7-1303.4 ..............................................................................................10 D.C. Code § 11-502(3).............................................................................................10 D.C. Code § 21-545 .................................................................................................21 D.C. Mun. Regs., Tit. 29 § 1919 (2017) ..................................................................17
OTHER AUTHORITIES D.C. Council, Report on Bill 14-616, the “Civil Commitment of Citizens
With Mental Retardation Amendment Act of 2002” (June 3, 2002) ...................21 DDS Policy No. 2013-DDA-POL008, § 6.A (1). (Sept. 3. 2013) ...........................16 DDS Policy No. 2013-DDA-POL008 § 6.K (Sept. 3, 2013)...................................18 DDS Policy No. 2013-DDA-POL008 § 6.S (Sept. 3, 2013) ...................................19 DDS Policy No. 2018-DDA-POL004 § F(3) (Oct. 11, 2018) .................................19

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DDS Procedure No. 2012-DDA-SPCD- PR011 § 5A.(5)(c) (Jan. 11, 2013) ........19 DDS Procedure No. 2012-DDA-SPCD-PR011 § 5.C. (3) (Jan. 11, 2013) .............19 DDS Procedure No. 2013-DDA-H&W-PR016 § 3.C (7) (Sept. 3, 2013)...............18 DDS Procedure No. 2013-DDA-H&W-PR016 § 3.C (12) (Sept. 3, 2013).............18 DDS Procedure No. 2013-DDA-PR013 § 3.C.(1) (Sept. 3, 2013)..........................18 DDS Procedure No. 2013-DDA-PR013 § 3.E. (2) (Sept. 3, 2013) .........................19 DDS Procedure No. 2013-DDA-PR013 at § 3.E.(3) (Sept. 3, 2013) ......................18 DDS Procedure No. 2013-DDA-PR013 § 3.H (Sept. 3, 2013) ..............................19 DDS Procedure No. 2013-DDA-PR014 § 3.H (3) (Sept. 3, 2013)..........................18 DDS Procedure No. 2019-DDA-PROC-01 § 3.B (1-3) (March 8, 2019) ...............18 DDS Procedure No. 2019-DDA-PROC-01 § 3.B (6) (March 8, 2019)...................18 Dorothy Griffin, et al., “‘Counterfeit Deviance’ Revisited,” 26 J. of Applied
Research in Intellectual Disabilities 471 (Jan. 2013) ...........................................20 Quality Trust, Third Quarter Monitoring Summary, Apr. 1, 2019-
June 30, 2019 ........................................................................................................15 Yona Lunsky, et al., Sexual knowledge and attitudes of men with
intellectual disability who sexually offend, 32 J. of Intellectual & Developmental Disability 74-81 (June 2007) ......................................................19

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GLOSSARY

ADA

Americans with Disabilities Act

DBH

District of Columbia Department of Behavioral Health

DDA

District of Columbia Developmental Disabilities Administration

DDS

District of Columbia Department on Disability Services

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INTERESTS OF AMICI CURIAE Amici are District of Columbia non-profit corporations responsible for advocacy on behalf of persons with intellectual disabilities, under the District’s settlement of institutional reform litigation, under federal law, and as part of a mission to promote equality and civil rights. Amici are knowledgeable about the services available in the District of Columbia to provide care, custody and treatment to persons with disabilities who have been charged with criminal offenses and might present a risk to the community if released without adequate community supervision. The extensive experience of amici with the array of services available to persons with intellectual disabilities under the auspices of the District of Columbia Department on Disability Services (DDS) in particular supports the allegations in Mr. Seth’s amended complaint that DDS is fully capable of providing appropriate care, and that Mr. Seth’s continued confinement in a federal prison facility is unnecessary and therefore discriminatory.

Disability Rights DC is a division of University Legal Services and serves as the federally-mandated Protection and Advocacy Program for D.C. residents with disabilities. See 42 U.S.C. §§ 15043(a) (establishing Protection and Advocacy programs to advocate for individuals with developmental disabilities as a condition for receiving federal funding), 10802 (same for individuals with mental illness). Through individual representation, litigation and policy initiatives,

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Disability Rights DC advocates for the rights of D.C. residents with disabilities to receive quality services and supports in their communities and to be free from abuse, neglect and discrimination. Disability Rights DC has represented hundreds of individuals who receive services from the D.C. Department on Disability Services and was class counsel in the longstanding Evans v. Bowser class action litigation. See 87 F. Supp. 3d 1 (D.D.C. 2015).

Quality Trust for Individuals With Disabilities (Quality Trust). Quality Trust is an independent, non-profit advocacy organization focused on improving the lives of children and adults with disabilities and their families in the District of Columbia and beyond. Quality Trust was founded as part of a settlement in Evans v Bowser, the class action lawsuit that closed Forest Haven, the District’s institution for people with intellectual and developmental disabilities. Quality Trust was incorporated, and its Board of Directors was appointed by the Mayor in 2001. Quality Trust works with and on behalf of people with developmental disabilities through its monitoring, lay advocacy, and legal services programs. Its monitoring program focuses on people receiving supports and services from the Developmental Disabilities Administration (DDA) of the D.C. Department on Disability Services (DDS). Quality Trust monitors visit people where they live and spend their days to collect data and ensure that the required supports are in place.

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The Washington Lawyers’ Committee for Civil Rights and Urban Affairs is a non-profit civil rights organization established to eradicate discrimination and poverty by enforcing civil rights laws through litigation and public policy advocacy in the District of Columbia, Virginia and Maryland. In furtherance of this mission, The Washington Lawyers’ Committee represents some of the most vulnerable persons and populations. The Washington Lawyers’ Committee has an active docket of cases and matters related to the conditions of confinement of persons with mental illness and intellectual disabilities in prisons, jails and hospitals.

All parties have consented to the filing of this brief, which is therefore authorized by Rule 29(a)(2) of the Federal Rules of Appellate Procedure.1

INTRODUCTION AND SUMMARY OF ARGUMENT Congress intended commitment to a federal prison facility under 18 U.S.C.
§ 4246 to be a last resort for persons who have been found permanently
incompetent to stand trial for a federal offense and dangerous, if and only if a State
(including, for these purposes, the District of Columbia) will not assume
responsibility for the person’s care custody and treatment despite reasonable
1 No party’s counsel authored this brief in whole or in part; no party or party’s counsel contributed money that was intended to fund preparing or submitting the brief; and no person—other than the amici curiae, their members, or their counsel—contributed money that was intended to fund preparing or submitting the brief.
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efforts by the Attorney General to cause the State to assume that responsibility. Federal commitment is not a reason for a state to decline to provide care, custody or treatment to one of its residents.

Yet, in the face of an amended complaint alleging violation of the District’s obligations under the Americans with Disabilities Act and the Rehabilitation Act supported by declarations, expert reports and other exhibits, the district court dismissed Markelle Seth’s allegations of discrimination, conclusively attributing that decision instead to “the dangerousness finding by the warden at FMC Butner and by the Eastern District of North Carolina.” Mem. Op., JA 60 (May 8, 2019); Mem. Op., JA 37 (Sept. 28, 2018) (earlier ruling referring to “FMC Butner Warden’s Certificate of Dangerousness”). But those determinations by the warden and the district court with territorial jurisdiction over Federal Medical Center Butner cannot explain away the District’s refusal to take custody of Mr. Seth, because the District’s array of services for persons with intellectual disabilities is designed to, and does, provide care, custody and treatment for people like Mr. Seth who would be a danger without intensive supervision and support. Moreover, there is nothing inconsistent with the district court’s determination in the federal commitment case that Mr. Seth would be a danger if he were released into the

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community without support and concluding that he would not be danger under the program developed by the District’s own experts and contractors.2
Thanks in no small measure to the long-term oversight of the federal courts in the Evans litigation,3 the District of Columbia now has a system that is capable of providing effective care, custody and treatment for persons with intellectual disabilities. The District can, and often does, provide 1:1 and even 2:1 or 3:1 staffing when needed as part of an individualized behavioral support plan to assure community safety. The allegations of the amended complaint and the impressive and uncontradicted array of expert reports attached to and incorporated in the amended complaint preclude accepting the federal dangerousness finding as a basis for the District’s refusal to accept state custody of Mr. Seth.
The District’s reliance on a legally and factually invalid rationale for refusing to provide services to Mr. Seth strengthens his case for discrimination, because “[p]roof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional 2 See Tr., United States v. Seth, No. 5:17-HC-02090-BR at 22 (May 24, 2018) (noting Mr. Seth’s personal lack of release plans); id. at 25 (understanding “that there is no state placement available” for Mr. Seth); id. at 44 (government requesting the court to find “that state placement is not available in this case”); id. at 46 (judicial finding “that state placement is not available”). 3 See, e.g., Evans v. Williams, 206 F.3d 1292 (D.C. Cir. 2000); Evans v. Fenty, 701 F. Supp. 2d 126 (D.D.C. 2010); Evans v. Bowser, 87 F. Supp. 3d 1 (D.D.C. 2015).
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discrimination, and it may be quite persuasive.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (analyzing employment discrimination under the ADEA). “In an appropriate case, ‘[t]he factfinder’s disbelief of the reasons put forward by the defendant’ will allow it to infer intentional discrimination.’” Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998) (en banc) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). The district court was obligated to accept as true the discrimination allegations of the amended complaint—not the District’s contrary explanation—for purposes of deciding whether it was subject to dismissal under Rule 12(b)(6). But even if the district court had been weighing the District’s proffered explanation against evidence of discrimination on summary judgment under Rule 56 (as in Aka) or on a motion for judgment as a matter of law under Rule 50 (as in Reeves), dismissal would be improper when the District’s explanation is factually and legally invalid and therefore supports an inference of discrimination.

ARGUMENT
THE DISTRICT COURT ERRED IN DISMISSING THE AMENDED COMPLAINT AS FUTILE BECAUSE OF THE FEDERAL COMMITMENT.
A. The Amended Complaint Sufficiently Alleged Discrimination in Violation of the ADA.
The amended complaint Mr. Seth sought to file (JA 289-363) (Oct. 26,
2018) alleged:
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 “[The responsible agency within DDS] DDA is able to serve individuals whose challenges include physically aggressive behaviors, risk of absconding, and intensive medical and mental health needs. While most individuals served by DDA do not require round-the-clock or one-to-one supervision, DDA can and does provide this level of service to a significant number of individuals.” Am. Compl. at ¶ 111.

 “DDA has a virtually unlimited ability to select the environment and staffing level required by the individual’s needs.” Id. at ¶ 112.

 Through coordination between DDS and the Department of Behavioral Health (DBH) the District “provides supervised community-based services to individuals with co-existing diagnoses of mental illness and intellectual disability who have faced similar criminal charges and whose behavioral challenges and corresponding risks are at least equivalent to those posed by [Mr. Seth]. . . . However, DDS refuses to provide such services to individuals, such as [Mr. Seth], who have only a diagnosis of intellectual disability.” Id. at ¶ 113.

 The District’s network of providers of services for persons with intellectual disabilities “is well-prepared to address, and has a track record of serving,

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individuals who present risks similar to and greater than [Mr. Seth].” Id. at ¶ 114.

The amended complaint further alleged that the District’s failure to provide services to Mr. Seth was a result of “discrimination against [him] due to his intellectual disability.” Id. at ¶ 127; see also ¶¶ 128, 164-65. Those allegations are supported by dozens of pages of reports from experts in the field which are attached to and incorporated into the amended complaint by reference. The proposed amended complaint as a whole amply and with far more specificity than Fed. R. Civ. P. 8(a) requires, alleges that the District could provide Mr. Seth with the “custody, care and treatment” in the place of his domicile called for by 18 U.S.C. § 4246(d), but refuses to do so because of his disability. Am. Compl. at ¶ 149 n.17. See Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002) (pleading standard for discrimination under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) framework). That is sufficient to state a disability discrimination claim.4 See Appellant’s Opening Br. at 6-7, 33, 43-45.

4 A disability discrimination claim does not require a comparison of all persons with disabilities on the one hand and all those without disabilities on the other. It is enough that the District is excluding a person with a disability from a program without statutorily-recognized grounds for doing so. Olmstead v. L.C. ex rel Zimring, 527 U.S. 581, 598-600 (1999); Henrietta D. v. Bloomberg, 331 F.3d 261, 273-74 (2d Cir. 2003). As Judge Easterbrook noted in Amundson v. Wisconsin, 721 F.3d 871, 874 (7th Cir. 2013): “‘discrimination’ as used in § 12132 includes
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B. The Federal Commitment Does Not Preclude Mr. Seth From Receiving Care, Custody and Treatment by the District.
The District of Columbia did not contend that it could not provide appropriate care for Mr. Seth if he was placed in the District’s custody rather than in a federal prison facility. Nor did the District dispute that it provides care, custody and treatment to many individuals who, like Mr. Seth, have been found incompetent to stand trial on serious charges. Rather, the District claimed that the federal commitment under 18 U.S.C. § 4246 somehow supplanted the District’s authority to provide services to Mr. Seth. JA 202 (claiming that Mr. Seth does not meet the requirement of District residency); id. at 203 (claiming that what distinguishes Mr. Seth is being committed to a federal facility and that Mr. Seth would be provided services “in the most integrated setting suitable to his needs” “[u]pon his release and return to the District”); id. at 519 (“the District has no legal obligation to provide services to plaintiff or assume custody, care and responsibility for him because he is committed to the U.S. Attorney General”).

*** undue institutionalization of disabled persons, no matter how anyone else is treated.” (citation omitted). Accord Davis v. Shah, 821 F.3d 231, 261 (2d Cir. 2016). This Court recently described the deinstitutionalization requirement in a decision applying that requirement to a class of persons with physical disabilities in Brown v. District of Columbia, 928 F.3d 1070, 1077 (D.C. Cir. 2019) (“because ‘unjustified isolation of persons with disabilities is a form of discrimination,’ the ADA and its implementing regulations ‘require placement of persons with mental disabilities in community settings rather than in institutions’ under certain circumstances”) (internal citation omitted).
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The District’s position that it cannot take custody of Mr. Seth because of the federal commitment stands the federal statutory scheme on its head. Federal commitment is intended to be a last resort to be invoked if the State of the defendant’s domicile cannot provide care, custody and treatment. The law expressly requires the Justice Department to make efforts to arrange for state rather than federal treatment: “[t]he Attorney General shall make all reasonable efforts to cause such a State to assume such responsibility.” There is no plausible reading of section 4246(d) as displacing the District’s authority to provide care for a defendant who was found incompetent to stand trial on a federal charge and was therefore subject to federal commitment when the state of the defendant’s domicile declines to assume responsibility for his custody.

The primary responsibility of the District rather than the federal government for Mr. Seth’s care, custody and treatment under section 4246 itself is reinforced in this case by the fact that Mr. Seth was originally charged in D.C. Superior Court with a local D.C. Code offense for which Mr. Seth would have been committed under local District of Columbia law if he was found incompetent to stand trial.5 That charge remains pending in all meaningful respects, notwithstanding that the United States Attorney dismissed the Superior Court charges without prejudice, because that was done with the intention of pursuing the local charges in district 5 See D.C. Code § 7-1303.4.
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court if Mr. Seth were found competent or restored to competency.6 See D.C. Code § 11-502(3) (district court has criminal jurisdiction over any local offense “joined in the same information or indictment with any Federal offense.”). The unique authority of the United States Attorney for the District of Columbia to shift cases from “state” to federal court does not alter the primacy of state custody under section 4246 for federal criminal defendants who cannot be brought to trial because of incompetency. Congress expressly made federal commitment even for purely federal offenses an option only when there was no state option. Here, the United States Attorney’s Office effectively transferred the “state” offense with which Mr. Seth was originally charged at the same time it filed a complaint alleging a federal offense. It would be inconsistent with the Justice Department’s obligation under section 4246(d) to encourage the state to assume responsibility to treat the United States Attorney’s administrative transfer of local charges from Superior Court to District Court as diminishing the role of the District of Columbia in providing care, custody and treatment to Mr. Seth, much less altogether precluding the District from doing so.

6 The prosecutor relied on the local charges as support for pretrial detention in federal court and explicitly stated that the government intended to pursue the local charges in federal court if Mr. Seth was restored to competency. United States v. Seth, Cr. No. 14-608, Tr. of Initial Appearance at 5 (Oct. 16, 2014).
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C. The District Can Provide Appropriate Care, Custody and Treatment.
The District has not claimed it cannot provide care, custody and treatment for Mr. Seth that would require the federal government to terminate his commitment, for good reason. It can. The District emerged from the aftermath of the Evans litigation with a highly capable system for providing individualized services to persons with intellectual disabilities without needlessly confining them to institutions, as the District had done for decades. Although the system is no longer under federal court supervision, it continues to receive close scrutiny from amici Quality Trust and University Legal Services.7 The District’s capacity to serve persons with intellectual disabilities includes the ability to provide close supervision to residents who might otherwise present a risk, including defendants found incompetent to stand trial on serious criminal charges like Mr. Seth.

7 Disability Rights DC, a division of amicus University Legal Services, “is the

federally-designated protection and advocacy program for people with disabilities

in the District of Columbia and is the Client Assistance Program under the

Rehabilitation Act.”

http://www.uls-dc.org/protection-and-advocacy-

program/disability-rights-dc/. It exercises responsibility under a number of federal

laws to advocate for persons with disabilities including specifically persons with

intellectual disabilities. Quality Trust was established and funded as part of the

settlement of the Evans litigation with the responsibility to monitor the quality of

the services the District provides for persons with intellectual disabilities. See

Consent Order, Evans v. Williams, No. 76-293, ECF 313 (Dec. 29, 1999) (setting

out mission, funding and access to information of Quality Trust).

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Indeed, at one time the District planned to provide services to Mr. Seth and its own expert determined that a community program was likely to be effective. JA 310-19, ¶¶ 53-78. Laura Nuss, the former director of the District’s Department on Disability Services (DDS), submitted a declaration in support of Mr. Seth’s amended complaint. She noted that, “[t]he District through DDS is already successfully serving people with the most complex needs, including those accused of or convicted of sexual offenses.” Decl. of Laura Nuss, JA 366 at ¶ 4. DDS uses a federal Medicaid waiver for Home and Community Based Services (HCBS) that “is designed to serve individuals with extraordinary needs.” Id. at ¶ 5. DDS provides services to “a few individuals who had a history of sexual offenses in community-based settings in the District” and “a few individuals who had been found incompetent to stand trial who were committed to DDS.” JA 370 at ¶ 14. DDS also worked with another District agency to provide care to persons with both mental illness and intellectual disability “who had been long-terms patients of St. Elizabeth[s] Hospital, under civil or criminal commitment,” including some who “had significant forensic histories and/or a history of violent behavior requiring careful, person-centered planning to ensure a successful transition to a safe setting for the individual and their community.” Id. at ¶ 15 DDS even had resources to place people with intellectual disabilities in more secure out-of-state facilities in the rare situation where its array of community-based services were insufficient.

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JA 370-71 at ¶¶ 16-17. Former DDS-Director Nuss opined that “[t]he plan developed by Wholistic [to care for Mr. Seth] is comprehensive and includes services from a psychiatrist, a therapist and behavior specialist in addition to intensive staff supervision. The District also has available crisis intervention services should that be necessary, although Mr. Seth’s clinical profile suggests that well trained staff should be successful in their own right.” JA 372 at ¶ 21. Her bottom-line conclusion: “Providing appropriate, closely supervised, residential, vocational and therapeutic services in a community setting can be accomplished while assuring the safety of the community in the District.” JA 373 at ¶ 25.

Likewise, Nancy Thaler, the former Deputy Secretary of Pennsylvania’s Office of Developmental Programs agreed that “state systems, such as [DDS] can serve people with IDD and complex behavioral needs, including problematic sexual behaviors, such as Markelle Seth, in a fashion that allows them to live successfully in the community while simultaneously ensuring community safety.” Decl. of Nancy Thaler, JA 380 at ¶ 3. Drawing on research concerning the disproportionate sexual abuse of persons with intellectual disabilities, the ensuing trauma, and “confusion about what is appropriate sexual behavior,” (JA 387 at ¶ 21) she opined that “[p]ersons with IDD who have committed sexual offenses can live successfully in the community, without presenting harm to others. They

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can learn appropriate sexual behavior. The keys to success are supervision, treatment and training.” Id. at ¶ 22.

Turning specifically to the District, Ms. Thaler opined that DDS “has services available within its system to provide the necessary components of a successful service plan for a person with IDD and inappropriate sexual behaviors such as Mr. Seth.” JA 390 at ¶ 29. The specific plan for Mr. Seth “offers the necessary components of a successful service plan” for him. Id. at ¶ 30. That includes 1:1 staffing, and even 2:1 staffing “in the initial months until they know Mr. Seth and can reliably predict his behavior pattern.” Id.8

The former director of Georgetown University’s DDA Health Initiative,
Marisa Brown, evaluated Mr. Seth’s suitability for treatment within DDS in light
of her extensive experience with the services available in the District. Decl. of
8 As part of its mission under the Evans decrees, amicus Quality Trust reviews the use of “restrictive controls” by DDS, including the use of staffing ratios of 1:1 or more. See n.7, supra 12; see also, Quality Trust, Third Quarter Monitoring Summary, April 1, 2019-June 30, 2019 (describing review of Restrictive Control Review Committee records).
Its preliminary analysis of fiscal year 2019 data shows DDS’ Restrictive Control Review Committee approved at least 282 behavioral service plans approved with a staffing ratio of 1:1 or more. Thirty-six plans were approved for a staffing ratio of 2:1. Three plans were approved for a 3:1 ratio. Twelve plans included a combination of 1:1 and 2:1 staffing. Similarly, records produced by DDS in response to a D.C. Freedom of Information Act request confirm that many behavioral support plans for persons in DDS custody who have been convicted, found not guilty by reason of insanity, or found incompetent to be tried for serious crimes including sex offenses provide for 1:1 or more staffing.
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Marisa C. Brown, JA 434-41. She noted that DDS successfully transitioned several men with intellectual disabilities and histories of sexually inappropriate behavior who had been confined at Forest Haven into community-based care. JA 438 at ¶ 24. Based on her interactions with him, in her opinion, “the system as it currently exists is entirely capable of meeting the needs of an individual like Markelle Seth.” Id. She noted that “It is not unusual” for DDS to provide the 1:1 round the clock staffing called for in the plan for Mr. Seth. JA 440 at ¶ 34. “There are a number of people for whom DDA provides this level of supervision to ensure their safety and the safety of the community.” Id. Her “extensive professional experience with DDS and I/DD services and [her] knowledge of Markelle and his record lead [her] to conclude that he is well-suited for community placement.” JA 441 at ¶ 41.

The District’s system is now designed to identify and meet the needs of persons with intellectual disabilities who, like Mr. Seth, may pose a risk of harmful behavior through individual behavioral support plans, as called for in the Evans litigation. See Dir.’s Certificate of Compliance, Evans v. Gray, No. 76-293, ECF 1487-1 (D.D.C. Sept. 5, 2014); Order approving Certificate of Compliance, Evans v. Gray, No. 76-293, ECF 1496 (D.D.C. Oct. 20, 2014).9 The elements of a plan, including intensive staffing, are readily available from DDS and are reimbursable
9 DDS Policy No. 2013-DDA-POL008, § 6.A (1). (Sept. 3. 2013). 16

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services under the District’s Medicaid Home and Community-Based Waiver for Individuals with Intellectual Disabilities. D.C. Mun. Regs., Tit. 29 § 1919 (2017). Funding from the Medicaid Waiver allows DDS to offer more intensive staffing to support persons with intellectual disabilities than DBH can provide to persons with mental illness in community settings, making the District’s refusal to provide care, custody and treatment to Mr. Seth because of dangerousness particularly untenable when it provides care under the Ervin Act to persons with mental illness who present similar or greater risks.

DDS uses a rigorous process to develop and implement behavioral support plans. A psychologist first conducts a functional assessment of the target behaviors to help understand why an individual engages in problematic behavior and whether there are any triggers to such behavior. The behavioral support plan lays out the target behaviors and the steps required of DDS and provider staff to keep both the individual and the community safe, including the staffing levels, duties and skills needed to implement the plan. The plan must be developed by a qualified expert. All staff working with individuals subject to a behavioral support plan receive training specific to the individual, and DDS requires evidence the

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assigned staff have achieved the necessary level of competence after training required to support the individual’s needs. 10

DDS conducts comprehensive annual reviews of individual plans to ensure they are appropriate and meet the agency’s requirements, including continued staff training.11 Staff must collect data on the individual’s behavior including any significant changes in behavioral functioning, including an unusually high or low frequency of problematic behaviors or a behavioral crisis and regularly forward that behavioral data to the developer of the plan. The behavioral support plan developer must draft a quarterly report that addresses the person’s progress, review of the behavioral data and clinical justification for continuing to restrict the individual. DDS Procedure No. 2013-DDA-PR013 at § 3.E.(3) (Sept. 3, 2013). In addition to the oversight required by providers and the oversight from the provider’s internal review process, DDS’ service coordinators monitor the services provided in an individual’s home and day programs to ensure that the necessary behavioral supports are in place. DDS requires that significant issues be reported to supervisors and entered into the agency’s Issue Resolution System. DDA can
10 See DDS Procedure No. 2013-DDA-H&W-PR016 § 3.C (7) (Sept. 3, 2013); Id. at § 3.C (12); DDS Policy No. 2013-DDA-POL008 § 6.K (Sept. 3, 2013); DDS Procedure No. 2019-DDA-PROC-01 § 3.B (1-3) (Mar. 8, 2019); id. at § 3.B(6). 11 DDS Procedure No. 2013-DDA-PR013 § 3.C.(1) (Sept. 3, 2013). The provider must submit evidence to DDS’ RCRC, documenting that staff have been trained. DDS Procedure No. 2013-DDA-PR014 § 3.H (3) (Sept. 3, 2013).
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sanction providers who do not comply with the requirements related to behavioral service plans, including staff training, data collection and proper implementation of the plans.12

DDS retained Dr. Matthew Mason to “conduct a risk assessment for the purposes of determining Mr. Seth’s risk for reoffending and the recommended conditions that would be necessary to safeguard against his reoffending while being served in the community.” Risk Assessment Report, JA 468. Dr. Mason conducted an extensive evaluation and concluded that “Mr. Seth’s child sexual abuse charges stem, in part, from a lack of supervision by responsible adults and from having been affirmatively placed in a position of caring for children.” JA 482. He found from psychological testing as well as other data that “Mr. Seth’s prior and current behavior does not appear to be based in an underlying psychopathic condition, and his sexual misconduct appears to be a function of inappropriate supervision and deficits associated with Intellectual Disability.” JA 481. “His sexually inappropriate behavior appears more opportunistic than predatory in nature, and influenced by his limitations in cognition and self-

12 DDS Procedure No. 2013-DDA-PR013 § 3.E.(2) (Sept. 3, 2013); DDS Policy No. 2018-DDA-POL004 § F(3) (Oct.11, 2018); DDS Procedure No. 2012-DDASPCD- PR011 § 5A.(5)(c) (Jan.11, 2013); id. at § 5.C.(3) ; DDS Policy No. 2013DDA-POL008 § 6.S (Sept. 3, 2013) and DDS Procedure No. 2013-DDA-PR013 § 3.H (Sept. 3. 2013).
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management.” Id. 13 Therefore, Dr. Mason concluded, “[c]ontinuous supervision at home, in the workplace and any other place he visits in the community is mandatory,” including “ensuring unsupervised access to children does not occur.” JA 482.

Dr. Mason concluded that “a carefully designed and appropriately staffed community-based program” would have a “high likelihood of success in preventing” Mr. Seth from committing new offenses. JA 481. Specifically, he recommended “at least 1:1 staffing on a 24-hour basis,” with careful monitoring to

13 The testimony in the federal commitment proceeding was consistent with the view that Mr. Seth’s behavior was tied to his disability and was fundamentally different from that of an adult who is sexually preoccupied with children. See May 24, 2018 Tr. at 27. Dr. Stephen Hart, an internationally-recognized expert in risk assessment, reviewed the evaluations of Mr. Seth performed by the other evaluators, including the staff at FMC Butner, and explicitly rejected the diagnosis of pedophilia reached by the Butner staff. JA 493-95.
Some researchers describe behavior driven by a low level of sexual knowledge among some persons with intellectual disabilities rather than what are generally classified as paraphilias as “counterfeit deviance.” See Dorothy Griffin, et al., “‘Counterfeit Deviance’ Revisited,” 26 J. of Applied Research in Intellectual Disabilities 471-80 (Jan. 21, 2013); Yona Lunsky, et al., Sexual knowledge and attitudes of men with intellectual disability who sexually offend, 32 J. of Intellectual & Developmental Disability 74-81, 32(2) (June 2007). Dr. Hart noted that in reaching a different conclusion, the Butner staff did not consult the guidelines that have been developed to diagnose paraphilias in persons with intellectual disabilities. JA 493. Dr. Hart also criticized the manner in which the Butner staff administered and interpreted certain psychological tests. Id. at 5-6. Cf. Report and Recommendation, United States v. Seth, No. 1:14-mj-608-BAHGMH, ECF 75 at 35 (D.D.C., Dec. 1, 2016) (rejecting scoring and interpretation of test by Butner staff for purposes of evaluating competency).
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“prevent any unsupervised contact with minors.” JA 482-83. He found “Mr. Seth’s sociability, eagerness to please and willingness to create alliances with responsible adults are highly indicative that he will succeed if provided with appropriately designed supportive living and work environments.” JA 482.

Dr. Robert Denney, a former Bureau of Prisons psychologist with extensive experience performing risk assessments, agreed that the kind of highly structured program recommended by Dr. Mason and developed for Mr. Seth by Wholistic Services would allow Mr. Seth to be treated in a community setting. Decl. of Robert L. Denney, JA 405 at ¶ 8, 409 at ¶ 24. “Mr. Seth does present risk,” he wrote, “but the type of risk he presents is narrow and manageable: he should not have unsupervised contact with children.” JA 405 at ¶ 8. With that proviso, Dr. Denney concluded that “this [risk] can be safely and effectively managed in a community setting given the proposed safeguards. It does not require confinement in a federal prison hospital.” Id.

In fact, the United States Attorney’s Office successfully lobbied the District government to create a formal mechanism for assuming custody of persons with intellectual disabilities who had been found incompetent to stand trial and might be a danger to the community if released, but who were not subject to commitment for mental illness under the Ervin Act. See D.C. Code § 21-545. The primary impetus

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was the then-recent case of an intellectually disabled District resident who was found incompetent to stand trial on charges that he engaged in oral sex with a fiveyear-old child. D.C. Council, Report on Bill 14-616, the “Civil Commitment of Citizens With Mental Retardation Amendment Act of 2002,” at 1-2 (summary of history of the bill), 17-19 (summary of testimony of Assistant U.S. Attorney Patricia Riley) (June 3, 2002).

The exhibits attached to the amended complaint include a proposal by Wholistic Home and Community Based Services, Inc. to provide care, custody and treatment for Mr. Seth under contract with DDS and in response to the requirements identified by Dr. Mason. Proposal for Transition, Safety and Support Services, JA 502-513. The Wholistic proposal describes its successful treatment of two clients with intellectual disabilities who had been found incompetent to stand trial on serious criminal charges. The first, identified as AF, was committed to DDS in 2002 and required to have round the clock supervision and at least 1:1 staffing at all times in light of “charges involving inappropriate and dangerous sexual relations with young children.” JA 504. The staff assigned to AF “are trained at least quarterly on key areas of support for AF to include behavior supports.” Id. “Since his admission to Wholistic [AF] has had no interaction with the criminal justice system.” Id. Despite his intellectual disability, AF “has

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received sexuality education that has helped him to understand that the actions that led to his commitment were wrong.” Id.

Wholistic also described BB, who “was found incompetent in connection with a murder charge many years ago.” JA 505. BB was diagnosed as having a “psychotic disorder” as well as intellectual disability and was treated for a substantial period of time at St. Elizabeths Hospital. Id. Like AF, BB “receives 24-hour daily 1:1 staffing services.” Id. BB attends church, volunteers at a recycling plant, and hopes to obtain work as a janitor. Id.

Those examples from the record before the district court confirm that DDS’s capability is not merely theoretical. The District operates a robust continuum of services capable of providing effective care, custody and treatment to persons who would present risks if released without proper supervision.

D. The District’s Invalid Reliance on the Federal Commitment For Its Refusal to Provide Services to Mr. Seth Supports An Inference of Discrimination.
The district court’s ruling that the District’s refusal to assume responsibility
for his care, custody and treatment is explained by the North Carolina district
court’s dangerousness finding rather than disability discrimination in violation of
Olmstead is erroneous. See JA 60. The district court ruled it would be futile to
allow Mr. Seth to file his amended complaint because “this case would not survive

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a motion to dismiss.” JA 73. But that conclusion was based on rejecting his discrimination claim on the ground that the District’s refusal to provide services was explained by something other than discrimination—the federal dangerousness finding and commitment. Yet neither the federal commitment nor the dangerousness finding is an impediment to treating Mr. Seth in the District. As a matter of law, 18 U.S.C. § 4246(d) favors (rather than precludes) state custody; the North Carolina district court’s federal commitment order was based on the unavailability of state custody, not Mr. Seth’s unsuitability for care, custody and treatment in the District. As a matter of fact, there is at the very least a disputed issue raised by the amended complaint whether Mr. Seth could be successfully cared for by DDS. The district court’s factual findings in no way suggest that the kind of individualized treatment readily available to the District would not be adequate to provide appropriate care custody and treatment for Mr. Seth. The district had no basis for rejecting as a matter of law allegations of the amended complaint that were amply supported by the expert reports attached to and incorporated into the complaint.

Because the federal commitment order cannot explain the District’s refusal to assume custody of Mr. Seth, the Court is left with only one explanation for its actions: that the District is denying him participation in a program because of the nature of his disability. When, as in this case, the explanation defendant gives for
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an action challenged as discriminatory is not credible, courts applying the McDonnell Douglas framework may infer from “disbelief of the reasons put forward by the defendant” that the true explanation for the action is unlawful discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993); Aka v. Washington Hosp. Ctr., 156 F.3d at 1294. In Aka, this Court reversed the grant of summary judgment on ADA-based employment discrimination claims where the evidence allowed a jury to discredit the employer’s non-discriminatory explanation and to use that discredited explanation as affirmative evidence of discrimination. This Court applied similar reasoning in overturning the grant of summary judgment on a Title VII retaliation claim in Geleta v. Gray, 645 F.3d 408 (D.C. Cir. 2011).14 Likewise, in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), the Supreme Court overturned the entry of judgment as a matter of law under Rule 50 where the affirmative evidence of discrimination in combination with inferences the jury was permitted to draw if it discredited the employer’s proffered explanation for the employment decision supported a verdict in favor of

14 In Giles v. Transit Emps. Fed. Credit Union, 794 F.3d 1 (D.C. Cir. 2015), it was the employee’s theory of discrimination (that she had been fired to avoid increases in health insurance premiums rather than for poor performance) that was factually and legally invalid. Id. at 10-12 (employer did not know costs of employee’s treatment and there is no evidence that her treatment led to increase or that it was temporally connected to her termination). In Giles, the employee’s attack on the defendant’s proffered reason for its action was inconsistency, but the circumstances including the contemporaneous firing of other employees supported the explanation and the other evidence of discrimination was weak. Id. at 13-14.
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the employee under the ADEA. Thus, the District’s unreasonable attempt to attribute its refusal to offer Mr. Seth care custody and treatment to the federal commitment would be sufficient to prove discrimination at trial. It is certainly not a basis for dismissing the complaint at the pleading stage as insufficient on the basis of the District’s invalid explanation, as the district court did in this case.

CONCLUSION The judgment should be reversed and the case remanded with instructions to permit Mr. Seth to file and pursue the claims in the amended complaint.

December 19, 2019

Respectfully submitted,

By: /s/ David A. Reiser David A. Reiser ZUCKERMAN SPAEDER LLP 1800 M Street, NW, Suite 1000 Washington, DC 20036 (202) 778-1800 dreiser@zuckerman.com

Sandy Bernstein Legal Director University Legal Services—
Disability Rights DC 220 I Street, NE, Suite 130 Washington, DC 20002 (202) 547-4747 sbernstein@uls-dc.org

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CERTIFICATE OF COMPLIANCE

I hereby certify that: (1) This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) & 32(a)(7)(B) because it contains 6,221 words, excluding the parts of the brief exempted by 32(a)(7)(B)(iii), and (2) This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because it was prepared in a proportionally spaced typeface using MS Word in Times New Roman 14 Point Font.

/s/ David A. Reiser David A. Reiser

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CERTIFICATE OF SERVICE

I certify that on December 19, 2019, I caused a true copy of the foregoing brief of Amici Curiae to be delivered electronically via the Court’s CM/ECF system.

/s/ David A. Reiser David A. Reiser

 
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ORAL ARGUMENT NOT YET SCHEDULED
No. 19-7057
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
________________
MARKELLE SETH Plaintiff- Appellant.
v. DISTRICT OF COLUMBIA, et al.,
Defendants-Appellees.

On Appeal from the United States District Court for the District of Columbia, No.18-cv-1034 (Howell, J.)

BRIEF OF DISABILITY SERVICES EXPERTS AS AMICI CURIAE IN SUPPORT OF APPELLANT MARKELLE SETH AND REVERSAL

Brian Wolfman 600 New Jersey Avenue, NW Washington, DC 20001 202-661-6582 wolfmanb@georgetown.edu

Prianka Nair Sarah Lorr Disability and Civil Rights Clinic Brooklyn Law School 250 Joralemon Street Brooklyn, NY 11201 718-780-7994 prianka.nair@brooklaw.edu sarah.lorr@brooklaw.edu

December 18, 2019

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CERTIFICATE OF PARTIES, RULINGS, RELATED CASES, FILING OF SEPARATE BRIEF
As required by 28(a)(1) and 29(d), counsel for amici curiae, Prianka Nair and Sarah Lorr of the Disability and Civil Rights Clinic at Brooklyn Law School and Brian Wolfman, hereby certify as follows:
A. Parties, Intervenors, and Amici Curiae All parties and amici curiae who appeared before the district court appear in Plaintiff-Appellant’s brief. The parties appearing in this Court include those listed in Plaintiff-Appellant’s brief and the amici curiae listed in Defendants-Appellees’ brief.
B. Ruling Under Review An accurate reference to the ruling at issue appears in Plaintiff-Appellant’s brief.
C. Related Cases Counsel is aware of no currently pending related case.
D. Separate Brief All parties have consented to the filing of this brief.1 Pursuant to D.C. Circuit Rule 29(d), amici curiae certify that a separate brief is necessary to provide the perspective of experts in the provision of community-based services to individuals with intellectual and developmental disability concerning (1) the rights of individuals with disabilities

1 No counsel for a party authored this brief in whole or in part, and no person other than the amici curiae, their members, or their counsel contributed money that was intended to fund the preparation or submission of this brief. See Fed. R. App. P. 29(a)(4)(E).
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who face discrimination in the legal system; (2) the importance of continuing to remove obstacles that interfere with access to government programs and services; and (3) the rights of people with disabilities to live successfully in community-based settings.

/s/Brian Wolfman Prianka Nair Sarah Lorr Brian Wolfman
Counsel for amici curiae

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TABLE OF CONTENTS
CERTIFICATE OF PARTIES, RULINGS, RELATED CASES, FILING OF SEPARATE BRIEF ............................................................................................................... i TABLE OF CONTENTS ................................................................................................... iii TABLE OF AUTHORITIES ............................................................................................. iv GLOSSARY.......................................................................................................................... vii STATUTES AND REGULATIONS ................................................................................. 1 INTEREST OF THE AMICI CURIAE ............................................................................ 1 INTRODUCTION AND SUMMARY OF ARGUMENT ............................................ 2 ARGUMENT ......................................................................................................................... 3
I. Individuals with I/DD who exhibit sexually inappropriate behavior are most effectively treated in the community. ............................................................................... 3
A. Understanding individuals with I/DD who engage in inappropriate sexual behavior requires understanding the context............................................................... 3 B. Experts agree that individuals with I/DD who display sexually inappropriate behaviors are best treated in the community....................................... 7 II. The service plan for Mr. Seth is safe, appropriate, and similar to those offered by many states that provide community-based treatment to individuals with I/DD who exhibit inappropriate sexual behavior. ................................................................... 12 A. States routinely serve individuals with I/DD who exhibit inappropriate sexual behavior. ............................................................................................................. 12 B. Wholistic’s proposed plan has all the components to successfully and safely serve Mr. Seth in the community. ............................................................................... 15 C. Individuals with I/DD are disproportionally harmed in prison. .................. 17 CONCLUSION ................................................................................................................... 21 CERTIFICATE OF COMPLIANCE .............................................................................. 22 CERTIFICATE OF SERVICE ......................................................................................... 23

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TABLE OF AUTHORITIES

CASES
Madrid v Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995)....................................................... 19
STATUTES
Rosa’s Law, Pub. L. No. 111-256, 124 Stat. 2643 (2010) .................................................. 2
OTHER AUTHORITIES
Am. Ass’n on Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Support 5 (11th ed. 2010) ...................................... 2
The Arc Nat’l Ctr. on Crim. Just. & Disability, Sex Offenders with Intellectual/Developmental Disabilities: A Call to Action for the Criminal Justice Community, (2015), http://thearc.org/wp-content/uploads/2019/07/NCCJD-White-Paper2_Sex-Offenders-FINAL.pdf....................................................................................4, 5, 8
E-mail from David K. Attryde, MS LPC, Clinical Director, Resources for Human Development (Oct. 25, 2019), http://bit.ly/RHDDavidAttryde.........................13, 14
G.D. Blasingame, et al., Ass’n for the Treatment of Sexual Abusers, Assessment, Treatment, and Supervision of Individuals with Intellectual Disabilities and Problematic Sexual Behaviors (2014) ...........................................................................................................5, 8-10
Casey J. Clay et al., Behavioral Interventions for Inappropriate Sexual Behavior in Individuals with Developmental Disabilities and Acquired Brain Injury: A Review, 123 Am. J. on Intell. and Developmental Disabilities 245 (2018) ..................................................................... 2
Leam A. Craig, et al., Treating Sexual Offenders with Learning Disabilities in the Community: A Critical Review, 50 Int’l J. of Offender Therapy and Comp. Criminology 369 (2016) ............................................................................................................................................. 10
Letter from Jeff Cross, President, Public Solutions, Benchmark Human Services to Dr. David. A. Rotholz, Ph.D., BCBA-D (Oct. 11, 2019), http://bit.ly/benchmarkJeffCross.................................................................................. 14
Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U.J.L & Pol’y 235 (2006).................................................................................................................................. 19
Dorothy Griffiths et al., Counterfeit Deviance Revisited, 26 J. of Applied Research. in Intell. Disabilities 471 (2013) ............................................................................................. 3
Dorothy M. Griffiths & Paul Fedoroff, Persons with Intellectual Disabilities and Problematic Sexual Behaviors, 37 Psychiatr. Clin. N. Am. 195 (2014).................................................. 2
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Craig Haney, Mental Health Issues in Long-term Solitary and “Supermax” Confinement, 49 Crime & Delinq. 124 (2003) ...................................................................................... 19, 20
William R. Lindsay, et al., A Treatment Service for Sex Offenders and Abusers with Intellectual Disability: Characteristics of Referrals and Evaluation, 15 J. of Applied Res. in Intell. Disabilities, 166 (2002) ....................................................................................................... 5
William R. Lindsay & A.H.W. Smith, Responses to Treatment for Sex Offenders with Intellectual Disabilities: A Comparison of Men with 1-and 2-year Probation Sentences, 42 J. of Intell. Disability Res. 346 (1998) ................................................................................... 4, 5
Friedrich Losel et al., On the Effectiveness of Sexual Offender Treatment in Prisons: A Comparison of Two Different Evaluation Designs in Routine Practice (2019), https://journals.sagepub.com/doi/full/10.1177/1079063219871576........................ 8
Phillip L. Marotta, A Systematicic Review of Behavioral Health Interventions for Sex Offenders with Intellectual Disabilities, 29 Sexual Abuse: A J. of Res. and Treatment 148 (2017) ........................................................................................................................................... 4, 8
Glynis Murphy et al., Cognitive-Behavioural Treatment for Men with Intellectual Disabilities and Sexually Abusive Behavior: A Pilot Study, 51 J. of Intell. Disability Res. 902 (2007) ....... 6
Glynis Murphy et al., Effectiveness of Group Cognitive-Behavioral Treatment for Men with Intellectual Disabilities at Risk of Sexual Offending, 23 J. of Applied Res. in Intell. Disabilities, 537 (2010) ....................................................................................................... 9
Robert McGrath et al., The Safer Society, Current Practices and Emerging Trends in Sexual Abuser Management: The Safer Society 2009 North American Survey (2009), http://robertmcgrath.us/files/6414/3204/5288/2009_Safer_Society_North_Ameri can_Survey.pdf .................................................................................................................. 10
Joan Petersilia, California Pol’y Res. Cntr., Doing Justice? Criminal Offenders with Developmental Disabilities (2000)......................................................................................... 18
Jerry A. Rea et al., Assessing the Generalization of Relapse-Prevention Behaviors of Sexual Offenders Diagnosed with Intellectual Disability, 38 Behav. Modification 25 (2014). .......... 9
Margo Schlanger, Prisoners with Disabilities, in Reforming Criminal Justice: Punishment, Incarceration, and Release 295 (E. Luna ed., 2017) ............................................................ 18
Joseph Shapiro, Abused and Betrayed, National Public Radio (Jan. 2018), https://www.npr.org/series/575502633/abused-and-betrayed................................... 6
R.J. Stancliffe & K.C. Lakin, Costs and Outcomes of Community Services for People with Intellectual Disabilities (Paul H. Brookes, Ed.) (2005)...................................................... 14
Resources for Human Development, Our Programs, https://www.rhd.org/ourprograms ............................................................................................................................ 13
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Rebecca Vallas, Cntr. for Am. Progress, Disabled Behind Bars: The Mass Incarceration of People with Disabilities in America’s Jails and Prisons, Center for American Progress 3 (2016), https://cdn.americanprogress.org/wpcontent/uploads/2016/07/18000151/2CriminalJusticeDisability-report.pdf ......... 17
Karen M. Ward & Rebecca L. Bosek, Behavioral Risk Management: Supporting Individuals with Developmental Disabilities Who Exhibit Inappropriate Sexual Behaviors, 27 Res. & Prac. for Persons with Severe Disabilities 27 (2002)...............................................10-12
Daniel T. Wilcox, Treatment of intellectually disabled individuals who have committed sexual offences: A review of literature, 10 J. of Sexual Aggression 85 (2004).................................. 9
Robin J. Wilson et al., People with Special Needs and Sexual Behavior Problems: Balancing Community and Client Interests While Ensuring Effective Risk Management, 21 J. of Sexual Aggression 86 (2015) ...................................................................................................... 3, 4
U. of Hertfordshire, Intellectual Disability Policy in England, Intellectual Disability and Health, http://www.intellectualdisability.info/historic-articles/articles/intellectualdisability-policy-in-england .............................................................................................. 10
CASE RECORD
Decl. of Robert L. Denney, Ex. 3 to the Am. Compl. ........................................ 17, 18-21
Decl. of Laura N. Nuss, Ex. 1 to the Am. Compl ........................................ 12, 13, 16, 17
Decl. of Nancy Thaler, Ex. 2 to the Am. Compl. ................................................12, 17, 20
Proposal for Transition, Safety and Support Services for Markelle Seth, Wholistic Services, Inc., Ex.15 to the Am. Compl...................................................................15, 16
Report from Stephen D. Hart, Ph.D, Protect Int’l Risk and Safety Servs. Inc, re: U.S. v. Markelle Seth June 18, 2017, Ex. 14 to the Am. Compl.......................................... 16
Risk Assessment Report of Dr. Matthew Mason, PhD, BC-BA-D, LBA, Feb. 24, 2017, Ex. 13 to the Am. Compl. .......................................................... 6, 7, 15, 16, 18, 20

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ADA ATSA I/DD

GLOSSARY Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 Association for the Treatment of Sexual Abusers Intellectual and Development Disability

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STATUTES AND REGULATIONS Applicable statutes and regulations are listed in the Brief of Plaintiff-Appellant.
INTEREST OF THE AMICI CURIAE Amici curiae are experts in the delivery of services to people with intellectual and developmental disability (I/DD). They have a wealth of knowledge regarding best practices in the provision of supports and services for individuals with I/DD to live successfully in community-based settings. Amici curiae include
• Steven Eidelman, H. Rodney Sharp Professor of Human Services Policy and Leadership and Faculty Director of The National Leadership Consortium on Developmental Disabilities at the University of Delaware;
• Beverly Frantz, Ph.D., Criminal Justice and Healthy Sexuality Project Director, Temple University;
• David Rotholz, Ph.D., BCBA-D, a national expert on positive behavior support for persons with I/DD, past President of the American Association on Intellectual and Developmental Disabilities;
• Nancy Thaler, Special Assistant to the Secretary of Pennsylvania’s Department of Human Services, past Executive Director of the National Association of State Directors of Developmental Disability Services and Deputy Secretary of what is now the Pennsylvania Office of Developmental Programs.

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INTRODUCTION AND SUMMARY OF ARGUMENT In this lawsuit, Markelle Seth challenges the failure of the District of Columbia to provide him with supports and services in the most integrated setting appropriate. There is strong evidence that Mr. Seth, like many individuals with I/DD, can be safely treated in the community.2 Amici submit this brief to provide relevant information concerning the professional consensus regarding the occurrence of inappropriate sexual behavior among individuals with I/DD and the successful treatment of these individuals through individualized, community-based treatment programs.3

2 “Intellectual disability is characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18.” See Am. Ass’n on Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Support 5 (11th ed. 2010). Amici curiae use the term “intellectual disability” in place of “mental retardation” except when directly quoting or referencing names of organizations. See Rosa’s Law, Pub. L. No. 111-256, 124 Stat. 2643 (2010) (changing entries in the U.S. Code from “mental retardation” to “intellectual disability”). 3 The term “inappropriate sexual behavior” is used in this brief to discuss sexual behavior that is “unacceptably impinging on others, such as sexual offenses or abuse” as well as “sexualized challenging behavior.” The latter refers to behavior that “will subject a person to ridicule, legal risk, or would be deemed unacceptable by the community.” See Casey J. Clay et al., Behavioral Interventions for Inappropriate Sexual Behavior in Individuals with Developmental Disabilities and Acquired Brain Injury: A Review, 123 Am. J. on Intell. and Developmental Disabilities 245, 245 (2018). Experts and authors writing in this field also use phrases such as “problematic sexual behaviors” to describe this continuum of behavior. See, e.g., Dorothy M. Griffiths & Paul Fedoroff, Persons with Intellectual Disabilities and Problematic Sexual Behaviors, 37 Psychiatr. Clin. N. Am. 195 (2014). Unless specifically noted, we use these terms largely coextensively.
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ARGUMENT I. Individuals with I/DD who exhibit sexually inappropriate behavior are
most effectively treated in the community. A. Understanding individuals with I/DD who engage in inappropriate
sexual behavior requires understanding the context. Experts understand incidents of inappropriate sexual behavior among the community of adults with I/DD to be a nuanced issue, and there is broad recognition that individuals with I/DD who engage in sexually inappropriate behavior are not necessarily “sexually deviant.” Instead, experts have developed and studied the concept of “counterfeit deviance.” See, e.g., Dorothy Griffiths et al., Counterfeit Deviance Revisited, 26 J. of Applied Research. in Intell. Disabilities 471, 480 (2013) (“The primary concept involved in ‘counterfeit deviance,’ then, is that people with intellectual disabilities, because of their unique histories and unique living situations may engage in deviant behavior for reasons other than deviance.”).
Unique challenges associated with developing and building interpersonal relationships are believed to be one of the primary causes of inappropriate sexual behavior by individuals with I/DD. “It has long been known that people with intellectual disabilities . . . often have difficulty negotiating relationships, and that these difficulties extend to sexual conduct.” Robin J. Wilson et al., People with Special Needs and Sexual Behavior Problems: Balancing Community and Client Interests While Ensuring Effective Risk Management, 21 J. of Sexual Aggression 86, 89 (2015). These difficulties may be related to a misunderstanding of social boundaries and rules. See id. People with intellectual
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disability “may have diminished capacities regarding age discrimination, ability to give

or receive consent for sexual activities, experience sexual impulsivity or demonstrate

poor sexual problem-solving.” Id. Likewise, “[s]ex offenders with [I/DD] may lack the

skills necessary to effectively modulate emotions, endure distress, tolerate frustration,

communicate feelings, process new information, comprehend social norms and

accurately interpret socio-sexual cues.” Phillip L. Marotta, A Systematic Review of

Behavioral Health Interventions for Sex Offenders with Intellectual Disabilities, 29 Sexual Abuse:

A J. of Res. and Treatment 148, 151 (2017) (A Systematic Review); (citations omitted); see

also The Arc Nat’l Ctr. on Crim. Just. & Disability, Sex Offenders with

Intellectual/Developmental Disabilities: A Call to Action for the Criminal Justice Community, 3

(2015),

http://thearc.org/wp-content/uploads/2019/07/NCCJD-White-Paper-

2_Sex-Offenders-FINAL.pdf (NCCJD Report) (describing barriers in communication

that individuals with I/DD may experience, including understanding consequences and

expressing emotions, which can lead to inappropriate sexual behavior).

Other experts and scholars have recognized the related and “well documented

problem of identification of emotion in people with intellectual disability.” William R.

Lindsay & A.H.W. Smith, Responses to Treatment for Sex Offenders with Intellectual Disabilities:

A Comparison of Men with 1-and 2-year Probation Sentences, 42 J. of Intell. Disability Res.

346, 352 (1998). As explained by Lindsay and Smith, “[i]f there is difficulty in

recognizing emotions in oneself, then there may also be difficulty in recognizing sexual

arousal. There will be correspondingly greater problems in identifying emotions in 4

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others (e.g., victims).” Id. Studies have also noted sexual naivety and difficulty understanding “normal sexual relationships, lack of relationship skills, difficulty in mixing with the opposite sex, poor impulse control and susceptibility to the influence of others.” William R. Lindsay, et al., A Treatment Service for Sex Offenders and Abusers with Intellectual Disability: Characteristics of Referrals and Evaluation, 15 J. of Applied Res. in Intell. Disabilities, 166, 167 (2002) (Treatment Service) (citations omitted).
Lack of education about sexuality and sexual interactions are also a reason that individuals with I/DD may engage in inappropriate sexual behavior. See G.D. Blasingame, et al., Ass’n for the Treatment of Sexual Abusers, Assessment, Treatment, and Supervision of Individuals with Intellectual Disabilities and Problematic Sexual Behaviors, 4-5 (2014) (“ATSA Report”) (“[A] number of studies have shown that persons with [I/DD] have low levels of knowledge about sexuality . . . and experience greater problems negotiating consent for sexual interactions than persons without [I/DD] (although these issues can improve with appropriate interventions—see Dukes & McGuire, 2009).”). This lack of education—combined with a lack of opportunity to learn and practice appropriate sexual expression and intimacy—can create significant and lasting confusion. See NCCJD Report, 6 (“Individuals with [I/DD] may act improperly due to having poor social skills, poor impulse control, a lack of formal sex education, as well as a lack of opportunity to experiment sexually with peers”); id. at 7-8 (noting that the failure to receive sex education at home or at school can lead to inappropriate sexual behavior).
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Research also suggests that individuals with I/DD who engage in sexually inappropriate behavior may “come from chaotic, violent and neglectful families where parents often have criminal histories themselves.” See Glynis Murphy et al., CognitiveBehavioural Treatment for Men with Intellectual Disabilities and Sexually Abusive Behavior: A Pilot Study, 51 J. of Intell. Disability Res. 902, 903 (2007) (citations omitted) (CognitiveBehavioural Treatment). Research indicates that a “significant proportion of cases” involve intra-family conflict, parental separation, and marital discord. See A Treatment Service, 167. Likewise, they often have a history of sexual abuse as victims themselves. See Cognitive-Behavioural Treatment at 903; see also Joseph Shapiro, Abused and Betrayed, National Public Radio (Jan. 2018), https://www.npr.org/series/575502633/abused-andbetrayed (reporting that individuals with ID/D are seven times more likely to experience sexual abuse than people without disabilities).
Mr. Seth fits the profile of a person with I/DD who has offended for reasons other than “deviance.” Mr. Seth was abused and neglected as a child and was placed in foster care and lived in homeless shelters. In addition to broad deficits in cognitive skills, assessments of Mr. Seth reveal extremely low adaptive functioning, notably in the areas of communication, health and safety, and social skills. See Risk Assessment Report of Dr. Matthew Mason, PhD, BC-BA-D, LBA, 2-4, Feb. 24, 2017, Ex. 13 to the Am. Compl. (“Mason Report”). He exhibited “basic and inconsistent knowledge” with respect to sexuality and lacked comprehensive knowledge of biological functions related to sexual development. Id. at 10.
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However, Dr. Mason noted that factors that may reduce Mr. Seth’s risk of reoffending include “lack of sexual misconduct and sexual preoccupation when in a supervised setting.” Id. at 13. While in prison, Mr. Seth has not taken advantage of others to gain a sexual favor or acted in a predatory manner. Id. 12-13. Dr. Mason noted that Mr. Seth’s sexually inappropriate behavior was more opportunistic than predatory and was influenced by his limitations in cognition and self-management. Id. at 14. Dr. Mason further noted that prison staff who work consistently with Mr. Seth described him as “more vulnerable and immature compared to other inmates.” Id. at 12. Id. Dr. Mason noted “protective” factors that indicated that Mr. Seth would succeed in a community-based program included Mr. Seth’s willingness to engage with responsible and supervising adults and his ability to develop therapeutic relations. Id. at 13. Dr. Mason concluded that Mr. Seth possesses traits that would enable him to develop lasting, useful relationships with community-based staff and other adults in his life, namely, “the capacity for establishing appropriate emotional ties, empathy and a desire to please others.” Id. at 15.
B. Experts agree that individuals with I/DD who display sexually inappropriate behaviors are best treated in the community.
The professional literature demonstrates that most individuals with I/DD who display sexually inappropriate behaviors are most effectively—and safely—treated in the community. Though there is no single treatment model for sexual offenders with intellectual disabilities, the professional consensus is that treatment interventions

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should be provided in the community to be effective. As noted by the Association for
the Treatment of Sexual Abusers (“ATSA”):
Commitment and active engagement in the community (work, play, and personal attachments) and societal norms and values are important treatment focuses for persons with [intellectual disability and problematic sexual behaviors] . . . . The focus needs to be on physical and material surroundings that increase quality of life and, most importantly, on prosocial influences and full community integration (citation omitted).
ATSA Report, 17.
Of particular relevance here, sex-offender treatment received in the community
is recognized as more effective in preventing recidivism than sex-offender treatment in
prisons. See Friedrich Losel et al., On the Effectiveness of Sexual Offender Treatment in Prisons:
A Comparison of Two Different Evaluation Designs in Routine Practice, 17 (2019),
https://journals.sagepub.com/doi/full/10.1177/1079063219871576. “[T]he core
philosophy behind cognitive-behavioral skills-based treatment is diametrically opposed
to treating offenders in a prison context.” A Systematic Review, 151. To be rehabilitated,
“[o]ffenders must have ample opportunity to practice and generalize skills, for
contingency management, for stimulus aversion and for relapse prevention in real world
contexts.” Id. Research indicates that “treatment plans focusing on community
involvement, successful employment and positive self-image are generally more
effective than those that segregate and confine offenders and focus primarily on
acknowledging and suppressing problematic behavior.” See NCCJD Report, 1.

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The results of a significant study also support community-based treatment. See Jerry A. Rea et al., Assessing the Generalization of Relapse-Prevention Behaviors of Sexual Offenders Diagnosed with Intellectual Disability, 38 Behav. Modification 25 (2014). The study assessed community-based programs for males aged 18-28 who have an intellectual disability and committed sexual crimes against children. It found that, with proper supervision and trained staff, individuals can maintain an “enriched quality of life” while ensuring public safety. Id. at 42.
Other components of best practice treatment interventions are the use of cognitive, skill-based behavioral treatment. ATSA Report, 16. Cognitive behavioral therapy has been found to be extremely effective in treating individuals with I/DD who have sexually offended. Daniel T. Wilcox, Treatment of intellectually disabled individuals who have committed sexual offences: A review of literature, 10 J. of Sexual Aggression 85, 90 (2004); see also Glynis Murphy et al., Effectiveness of Group Cognitive-Behavioral Treatment for Men with Intellectual Disabilities at Risk of Sexual Offending, 23 J. of Applied Res. in Intell. Disabilities, 537, 549 (2010) (“Certainly, [cognitive behavioral] treatment should be on offer to more men with intellectual disabilities and sexually abusive behavior, so that the men can choose active treatment, rather than just long periods of tight risk management and close supervision, as in the past.”). In a study of a UK community-based program that used cognitive behavioral therapy to treat sex offenders with I/DD, participants demonstrated a significant increase in socialization skills, listening skills, sexual

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knowledge, and social responsibility. Leam A. Craig, et al., Treating Sexual Offenders with Learning Disabilities in the Community: A Critical Review, 50 Int’l J. of Offender Therapy and Comp. Criminology 369, 384 (2016).4

Another best practice identified by ATSA is the individualization of services to

meet the needs of each participant. ATSA Report, 16. Services must be tailored to

address the risk factors or triggers that directly relate to the individual’s likelihood of

reoffending and should also include post release monitoring, life skills training, and

community supports. See Karen M. Ward & Rebecca L. Bosek, Behavioral Risk

Management: Supporting Individuals with Developmental Disabilities Who Exhibit Inappropriate

Sexual Behaviors, 27 Res. & Prac. for Persons with Severe Disabilities 27, 27 (2002)

(Behavioral Risk Management); see also Robert McGrath et al., The Safer Society, Current

Practices and Emerging Trends in Sexual Abuser Management: The Safer Society 2009 North

American

Survey

91

(2009),

http://robertmcgrath.us/files/6414/3204/5288/2009_Safer_Society_North_America

n_Survey.pdf (“Programs should design and deliver services to meet clients’ special

needs because doing so increases the effectiveness of interventions . . . . Services should

4 In the United Kingdom, the term “learning disability” is the official term for “intellectual disability.” See U. of Hertfordshire, Intellectual Disability Policy in England, Intellectual Disability and Health, http://www.intellectualdisability.info/historicarticles/articles/intellectual-disability-policy-in-england.
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be delivered in a manner that matches an individual’s motivation, ability, learning style and personality characteristics.”).
A 2002 study demonstrates how, with enough support, “high risk” offenders with I/DD can be safely treated within the community. Behavioral Risk Management, 27, 39. The program involved 41 individuals, all high-risk sex offenders, who received wrap-around services within the community.5 Id. at 28. Participants’ behavioral patterns, adaptive and emotional functioning and sexual knowledge and interest were assessed. Id. at 29. For each participant, the program developed a risk management plan and arranged for support and supervision within the community. Id. Services included interventions such as cognitive-behavior therapy, the teaching of new skills and alternate behaviors, supervision and monitoring. Id. The goals of the program were “to ensure community safety, to increase the individual’s ability to live successfully in the community, and to reduce the time and cost of external management.” Id. Participants learned various skills, including coping strategies to avoid or self-manage risky situations (such as proximity to children) and social and sexual skills (including knowledge and attitudes and behaviors related to legal and safe sexual alternatives). Id. at 34-35. Over

5 Of these 41, 15 stopped participating the program due to a variety of factors, including individuals moving to another community, care providers and support teams not supporting the program, one death and incarceration for non-sexual offences. Behavioral Risk Management, 28.
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the ten-year course of development of the program, none of the participants committed a sexual offence. Id. at 39.
II. The service plan for Mr. Seth is safe, appropriate, and similar to those offered by many states that provide community-based treatment to individuals with I/DD who exhibit inappropriate sexual behavior. A. States routinely serve individuals with I/DD who exhibit inappropriate sexual behavior.
States have increasingly shifted from more expensive, outmoded institutions to less expensive, more effective community-based treatment for individuals with I/DD, including for those who present a wide range of “challenging” behavior, which can include sexually inappropriate behavior as well as physical aggression, property destruction, self-injurious behavior, and risk of flight. As explained by expert Laura N. Nuss, who served as D.C.’s Director of the Department on Disability Services from 2010 to 2016, the District of Columbia has the expertise and the capacity to serve individuals with I/DD exhibiting problematic behavior (including sexual misbehavior). See Decl. of Laura N. Nuss, ¶¶ 14-21, Ex. 1 to the Am. Compl. (“Nuss Decl.”). Nancy Thaler, who has 19 years’ experience leading government agencies, including as Pennsylvania’s Deputy Secretary of the Office of Developmental Programs and as a technical advisor to the District, agrees that “extensive research and experience across the country have led to the development and widespread implementation of safe and successful community-based treatment are not available in the District of Columbia and across the country.” Decl. of Nancy Thaler, ¶ 19, Ex. 2 to the Am. Compl. (“Thaler

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Decl.”). In Pennsylvania alone, over 300 individuals with I/DD and a history of sexual offenses are successfully supported by more than ten community provider agencies across the state. Id. ¶ 26.
Further, numerous nonprofit organizations working throughout the country also provide safe, structured, and supportive community-based services to individuals who, like Mr. Seth, have an I/DD and a history of inappropriate sexual behavior.
Resources for Human Development (“RHD”) is a national nonprofit that currently supports programs in fourteen states. See Resources for Human Development, Our Programs, https://www.rhd.org/our-programs. As of October 2019, RHD supports over 100 participants with I/DD who have histories of problematic sexual behavior, including the commission of serious sexual offenses. Participants in RHD programing are typically supported in community living arrangements: they live in neighborhood residences with other participants and staff support. These living arrangements are designed to encourage and facilitate increasing independent living skills acquisition and community engagement. Id. The risk of recidivism of these participants is assessed using evidence-based risk assessment tools that have been widely researched and used in accordance with ATSA standards. Participants are supervised as appropriate, which may involve 1:1 or 2:1 staffing ratios, if necessary for community safety. Participants also receive treatment with qualified and trained practitioners using evidence-based treatment models including cognitive behavioral
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therapy. See E-mail from David K. Attryde, MS LPC, Clinical Director, Resources for Human Development to Beverly Frantz, Ph.D. (Oct. 25, 2019), http://bit.ly/RHDDavidAttryde.
Benchmark Human Services (“Benchmark”) is another agency operating in more than a dozen states. Benchmark supports over 1,200 people in community-based residential programs, including people with I/DD who have engaged in inappropriate sexual behavior and serious assault. See Letter from Jeff Cross, President, Public Solutions, Benchmark Human Services to Dr. David. A. Rotholz, Ph.D., BCBA-D (Oct. 11, 2019), http://bit.ly/benchmarkJeffCross. In Indiana, Benchmark operates nine separate transitional homes, each with four residents. People with a history of sexually offenses make up 25-50% of the residents. In Missouri, Benchmark operates a community residential program that typically serves 25-30 individuals with “complex behavioral needs,” including seven individuals with histories of inappropriate sexual behavior. Benchmark has developed an extensive assessment and training protocol, as well as operational procedures that enable these individuals to participate in planned outings, community access, work, and family visits. Id.
In Minnesota, 5.2% of the 7,022 individuals receiving home and communitybased services exhibited severe inappropriate sexual behavior. See R.J. Stancliffe & K.C. Lakin, Costs and Outcomes of Community Services for People with Intellectual Disabilities, 100 (Paul H. Brookes, Ed.) (2005). In other words, more than 360 people with I/DD who
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have a history of severe inappropriate sexual behavior are being served in the community.
Wholistic Home and Community Services (“Wholistic”), the agency identified to serve Mr. Seth in this case, also offers programing in line with best practices. See Proposal for Transition, Safety and Support Services for Markelle Seth, Wholistic Services, Inc., 3-4, Ex.15 to the Am. Compl. (“Wholistic Services Plan”). In the proposal for Mr. Seth’s treatment, Wholistic described its experience effectively treating this population. For example, as Wholistic supported a 36-year-old man, A.F., with intellectual disability and an Axis I diagnosis of bipolar, who was found incompetent to stand trial on charges involving inappropriate and dangerous sexual relations with young children. Id. at 3. Under the structured support of Wholistic, he lives peacefully and safely in a two-bedroom apartment, participating in a job-readiness program and volunteering at a local foodbank. He has 24-hour 1:1 staff supervision. Since he started receiving services through Wholistic, he has had no interactions of any kind with the criminal-justice system. Id.
B. Wholistic’s proposed plan has all the components to successfully and safely serve Mr. Seth in the community.
Dr. Mason conducted detailed and extensive assessments of the risk Mr. Seth might pose in the community and recommended that Mr. Seth participate in a highly structured, community-based residential program with 1:1 staffing on a 24-hour basis. See Mason Report, 15. Dr. Mason found that Mr. Seth would require counseling and
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psychiatric supports, including sexual education and a behavior-management plan. Dr. Mason also recommended that Mr. Seth be provided with a daily schedule of employment and other meaningful activities. Id. at 16. With these supports, Dr. Mason stated that Mr. Seth “can be safely and successfully supported in the community.” Id. at 15. Dr. Mason’s recommendations were later endorsed by Dr. Stephen Hart—an internationally-renowned forensic psychologist. See Report from Stephen D. Hart, Ph.D, Protect Int’l Risk and Safety Servs. Inc, re: U.S. v. Markelle Seth, June 18, 2017, 9-10, Ex. 14 to the Am. Compl.
The plan Wholistic provides is precisely the kind of support recommended by Dr. Mason. Wholistic’s plan for Mr. Seth is extensive and includes a plan for intensive residential supports, vocational programming, services for a psychiatrist, a therapist, and a behavioral specialist, safety and crisis management plans, sexuality education, and person-centered planning. See Wholistic Services Plan, 4-11. Wholistic’s plan for Mr. Seth includes 1:1 staffing in a single residence with no more than one additional resident. Id. at 8.
Experts who have reviewed Wholistic’s plan for Mr. Seth have agreed that this plan would be effective in treating Mr. Seth while maintaining the safety of the community. Laura Nuss opined that the Wholistic plan provides “appropriate, closely supervised, residential, vocational and therapeutic services in a community setting … while assuring the safety of the community in the District,” thereby “offer[ing] Mr. Seth

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the opportunity for rehabilitation and freedom from further ongoing trauma.” Nuss Decl. ¶ 25. Nancy Thaler described Wholistic’s proposal as “a complete approach to supervision of Mr. Seth, assuring safety in the community and addressing crisis events such as elopements or behavioral incidents.” Thaler Decl. ¶ 30. Board-certified neuropsychologist, Dr. Robert L. Denney, who has extensive experience in assessing court-involved individuals with I/DD, and conducted a comprehensive neuropsychologist assessment of Mr. Seth, stated that “There is every reason to believe that Mr. Seth would not pose a danger and would thrive if released to a program such as the one …proposed by Wholistic Services Inc.” Decl. of Robert L. Denney, ¶ 10, Ex. 3 to the Am. Compl. (“Denney Decl.”).
C. Individuals with I/DD are disproportionally harmed in prison. The deficits in cognitive and adaptive functioning typical to a diagnosis of I/DD make life in prison excruciatingly difficult for a person with an I/DD. See Rebecca Vallas, Cntr. for Am. Progress, Disabled Behind Bars: The Mass Incarceration of People with Disabilities in America’s Jails and Prisons, Center for American Progress 3 (2016), https://cdn.americanprogress.org/wp-content/uploads/2016/07/18000151/ 2CriminalJusticeDisability-report.pdf. Prisoners with I/DD are at a serious risk of harm due to their susceptibility to abuse, manipulation, and exploitation. Deprived of necessary supports, services, and accommodations, they may not be able to read, write, or understand myriad prison rules. Id. Prisoners with disabilities may exhibit challenging behaviors that disrupt the running of the correctional facility. For instance, prisoners
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with I/DD are more likely to respond physically in threatening situations, rather than verbally. Joan Petersilia, California Pol’y Res. Cntr., Doing Justice? Criminal Offenders with Developmental Disabilities, 13 (2000). As a result of their behavioral challenges, and the lack of training for correctional officers to identify and interact with inmates with I/DD, inmates may be reclassified to a higher, more restrictive security level. Id. In fact, prisoners with I/DD are likely to incur more disciplinary sanctions, including a greater loss of privileges. See Margo Schlanger, Prisoners with Disabilities, in Reforming Criminal Justice: Punishment, Incarceration, and Release 295, 307-308 (E. Luna ed., 2017).
Mr. Seth’s experience has been consistent with the experience of many inmates with I/DD in a correctional setting in that he has been continuously punished for behaviors related to his disability. During one portion of his confinement, Mr. Seth was held in a locked cell “due to his inability to function in general population” including his low frustration tolerance, anger/agitation, withdrawal, and intermittent compliance—all behaviors related to his disability. See Mason Report, 4. He suffered a skull fracture following an altercation with prison guards. See Amended Complaint, at 18. His difficulty with communication, self-care, social skills, and self-direction has led him to engage in problematic behaviors, like refusing to follow instruction, minor selfinjury, impulsivity, and verbal abuse. Id. As noted by Dr. Denney, “[s]uch behaviors are disruptive in a correctional setting where conformity is required.” Denney Decl. ¶ 9. Unsurprisingly, the response to these behaviors has been punitive and harsh rather
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than therapeutic: Mr. Seth has spent the majority of his time in prison in solitary confinement with little connection to necessary programming or human contact. Id.
Placement in solitary confinement has a particularly debilitating effect on individuals with I/DD. Psychiatrist Dr. Stuart Grassian, whose observations and conclusions about solitary confinement have been cited by a number of federal courts, including Madrid v Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995), states that individuals who are the most severely affected by solitary confinement are those with neurological disorders or some other form of intellectual disability, who may suffer from florid psychotic delirium, severe hallucinatory confusion, disorientation, incoherence, and intense agitation and paranoia. Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U.J.L & Pol’y 235, 332 (2006).
Furthermore, the effects of solitary confinement are long lasting. Psychologist Dr. Craig Haney, who conducted research into the effect of the use of prolonged solitary confinement at California’s Pelican Bay, noted that inmates develop adaptations that are “dysfunctional and problematic” to cope in solitary confinement. Craig Haney, Mental Health Issues in Long-term Solitary and “Supermax” Confinement, 49 Crime & Delinq. 124, 139 (2003). For some inmates, the lack of social contact means that they “are literally at risk of losing their grasp on who they are, of how and whether they are connected to a larger social world.” Id. Others become disorientated and frightened by social contact. Id. at 140. These acutely dysfunctional responses to social contact
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become internalized and persist long after the prisoner’s time in isolation has ended, so that those without significant social and professional support “may never return to the free world and resume normal, healthy, productive social lives.” Id. at 141.
The use of measures like solitary confinement, reduced mingling with other inmates, and reduced access to preferred activities or areas has further destabilized Mr. Seth’s mental health and depriving him of the opportunity to develop the necessary communication and socialization skills that he requires. See Mason Report, 11. By contrast, community settings can be easily individualized and designed to avoid the specific triggers that cause an individual’s challenging behaviors. Thaler Decl. ¶ 24. For instance, Mr. Seth has been punished for conduct that arose when Mr. Seth was prevented from watching his preferred program on television. Nancy Thaler has pointed out that this would not be a problem in a community setting. Not only would it be unlikely that Mr. Seth would be in a group setting sharing a television, but Wholistic has trained staff with “tools to de-escalate conflict and teach positive social behaviors without resorting to isolation.” Id. ¶ 25.
Without access to appropriate rehabilitative programs or treatment, the continued confinement of Mr. Seth in a punitive environment that is unequipped to meet Mr. Seth’s disability-related needs is pointless and cruel. As noted by Dr. Denney, “the design, service provision and staff models of the [Federal Bureau of Prisons] virtually ensure continuing failure and continuing incarceration.” Denney Decl. ¶ 9. Dr.
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Denney voices the concern that continued incarceration would worsen Mr. Seth’s condition rather than improve in terms of potential risk of future violence upon release to the community. Id. ¶23. By contrast, in the community, services could be individualized to meet Mr. Seth’s needs and behaviors. He could learn necessary and positive social skills and develop the ability to live safely in the community under the supervision of trained staff.

CONCLUSION Amici curiae respectfully request that the Court vacate the district court’s
judgment and remand the case for further proceedings.

Dated: December 18, 2019

Respectfully submitted,

/s/Prianka Nair /s/Sarah Lorr Prianka Nair Sarah Lorr Disability and Civil Rights Clinic Brooklyn Law School 250 Joralemon Street Brooklyn, NY 11201 Tel: 718-780-7539
/s/Brian Wolfman Brian Wolfman 600 New Jersey Avenue, NW Washington, D.C. 20001 (202) 661-6582 wolfmanb@georgetown.edu

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CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitations of Federal Rule of Appellate Procedure 32(a)(7)(B) because this brief contains 5,147 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f). 2. This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 365 ProPlus in 14-point Garamond.

/s/Brian Wolfman__________ Prianka Nair Sarah Lorr Brian Wolfman
Counsel for amici curiae

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CERTIFICATE OF SERVICE I hereby certify that, on December 18, 2019, this Brief of Amicus Curiae in Support of the Plaintiffs-Appellant and Reversal was served through the Court’s ECF system on counsel for all parties.

/s/Brian Wolfman__________ Prianka Nair Sarah Lorr Brian Wolfman
Counsel for amici curiae

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No. 19-7057
IN THE UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT

MARKELLE SETH, Plaintiff-Appellant,
v. THE DISTRICT OF COLUMBIA, D.C. DEPARTMENT ON DISABILITY
SERVICES, ANDREW REESE, Defendants-Appellees,

On Appeal from the United States District Court for the District for the District of Columbia The Honorable Chief Judge Beryl A. Howell, No. 1:18-cv-01034-BAH
BRIEF OF FORMER CORRECTIONS DIRECTORS AS AMICI CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL

Deborah M. Golden The Law Office of Deborah M. Golden 1415 H Street, NE Washington, DC 20002 Tel: 202.630.0332 Email: deb.golden@gmail.com
Counsel for Amici Curiae

Laura Rovner Nicole B. Godfrey Taylor Volkman, Student Attorney STUDENT LAW OFFICE University of Denver College of Law 2255 E. Evans Avenue, Suite 335 Denver, CO 80208 Tel: 303.871.6140 Email: lrovner@law.du.edu

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CERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES A. Parties The Appellant is Markelle Seth. Appellees are the District of Columbia, the
District of Columbia Department of Disability Services, and its Director, Andrew Reese, in his official capacity.
B. Rulings Under Review The rulings under review are the district court’s September 28, 2018 order granting the defendants’ motion to dismiss (ECF 28) and its May 8, 2019 order denying the appellant’s timely motion to alter or amend judgment pursuant to Fed. R. Civ. P. 59 (ECF 36). C. Related Cases This civil action is related to Mr. Seth’s criminal case in which he was found permanently incompetent to stand trial. United States v. Seth, 1:14-mj-00608-BAHGMH-1 (D.D.C.)
D.C. CIRCUIT RULE 29(d) CERTIFICATE Amici know that other amici curiae intend to file briefs in support of the Appellant. Each of these other briefs has a distinct focus: academic research regarding treatment of persons with intellectual disability; the Olmstead standard; and the capability of the agencies in the District of Columbia to take custody of and care for Appellant Markelle Seth. This brief provides the perspective of experienced

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corrections directors regarding the challenges people with intellectual disability like the appellant pose in a prison setting and the harms persons like Mr. Seth might experience while incarcerated, particularly if placed in solitary confinement like Mr. Seth. Given the distinct subject matter and expertise of the amici curiae, joining in a single brief would be impractical.
s/ Deborah M. Golden Deborah M. Golden

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................ iii
INTEREST OF AMICI CURIAE .......................................................................... 1
SUMMARY OF ARGUMENT.............................................................................. 3
ARGUMENT........................................................................................................... 5
I. PEOPLE WITH ID LIKE MR. SETH ARE DIFFICULT TO MANAGE IN PRISON AND DO NOT RECEIVE ADEQUATE TREATMENT WHILE INCARCERATED............................................................................. 6
A. AS A RESULT OF THEIR ID, INDIVIDUALS LIKE MR. SETH ARE OFTEN UNABLE TO COMPLY WITH THE VARIOUS DEMANDS OF PRISON LIFE, MAKING THEM DIFFICULT AND BURDENSOME TO MANAGE. ...................................................... 7
B. THE EXTENSIVE TREATMENT NEEDS OF PEOPLE LIKE MR. SETH EXCEED WHAT PRISONS ARE CAPABLE OF PROVIDING............................................................. 11
II. WHEN PEOPLE LIKE MR. SETH ARE CIVILLY COMMITTED TO PRISON, THEY OFTEN END UP IN LONG-TERM SOLITARY CONFINEMENT, WHERE THEY SUFFER SUBSTANTIAL PSYCHOLOGICAL HARM. ........................................................................ 15
CONCLUSION ..................................................................................................... 25
CERTIFICATE OF COMPLIANCE ................................................................. 27
CERTIFICATE OF SERVICE ........................................................................... 28

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TABLE OF AUTHORITIES
Cases Apodaca v. Raemisch, 586 U. S. ____ (2018), 2018 WL 4866124.......................... 4
Other Authorities
ACLU, Briefing Paper: The Dangerous Overuse of Solitary Confinement in the US (2014) ...................................................................................................... 20
Alan R. Felthous & Joseph D. Bloom, Jail-Based Competency Resotration, J. Of The Am. Acad. of Psychiatry and the Law Online 364 (2018) ................. 6, 13
Allen Beck, U.S. Department of Justice, Use of Restrictive Housing in U.S. Prisons and Jails, 2011-12 (2015) ....................................................................24ts
Anna L. S. Brandt, Treatment of Persons With Mental Illness in the Criminal Justice System: A Literature Review, 51 J. of Offender Rehabilitation 541 (2012) .................................................................................................................. 12
Bruce A. Arrigo & Jennifer Leslie Bullock, The Psychological Effects of Solitary Confinement on Prisoners in Supermax Units, 52 Int. J. of Offender Therapy and Comparitive Criminology 622 (2008)...................................... 19, 20
Chad S. Briggs et al., The Effect of Supermaximum Security Prisons on Aggregate Levels of Institutional Violence, 41 Criminology 1341 (2006) ......... 16
Christie Thompson, From Solitary to The Street: What Happens when Prisoners go From Complete Isolation to Complete Freedom In a Day?, The Marshall Project (Jun. 11, 2015) .................................................................. 20
Christie Thompson & Taylor Elizabeth Eldridge, Treatment Denied: The Mental Health Crisis in Federal Prisons, The Marshall Project, Nov. 21, 2018 ..................................................................................................................... 12
Christopher Zoukis, Prisons Don't Damage Only Prisoners; Guards at Risk of PTSD and Suicide, Too, Prison Legal News, June 8, 2018 ............................ 24
Craig Haney, A Culture of Harm: Taming the Dynamics of Cruelty in Supermax Prisons, Crim. Just. and Behavior, 956 (2008) .................................. 24

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Craig Haney, Mental Health Issues in Long-term Solitary and “Supermax” Confinement, 49 Crime & Delinq. 124 (2003)........................................ 19, 21, 25
Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique, 47 Crime & Just. 365 (2018) ....................................... 20, 21
Cynthia L. Blitz, et al., Physical Victimization in Prison: The Role of Mental Illness, Int. J. of L. & Psychiatry 385 (2008) ...................................................... 11
Daniel P. Mears & William D. Bales, Supermax Incarceration and Recidivism, 47 Criminology 1131 (2009) ........................................................... 20
David Lovell, et al., Recidivism of Supermax Prisoners in Washington State, 53 Crime & Delinq. 633 (2007) .......................................................................... 20
David Shapiro, Solitary Confinement in the Young Republic, 113 Harvard L. Rev. 542 (2019).................................................................................................. 16
E. Fuller Torrey, et al., More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States (Treatment Advocacy Center, 2010) ............................................................................................................................... 6
Elena Blanco-Suarez, The Effects of Solitary Confinement on The Brain, Psychology Today, February 27, 2019................................................................ 19
Elizabeth Bennion, Banning the Bing: Why Extreme Solitary Confinement is Cruel and Far Too Usual Punishment, 90 Ind. L.J. 741 (2015) ......... 8, 12, 15, 16
Erica Goode, Rethinking Solitary Confinement, N.Y. Times, March 11, 2012...... 16
Fatos Kaba, et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, Am. J. Pub. Health 442 (2014) ............................................................. 22
Grant H. Morris, et al., Competency to Stand Trial On Trial, 4 Hous. J. Health L. & Pol'y., 193 (2004)......................................................................................... 6
Hans Toch & Terry Kupers, Violence in Prisons, Revisited, 45.3 J. of Offender Rehabilitation 1 (2007)........................................................................................ 22
Jeffrey L. Metzner & Jamie Fellner, Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. Am. and the Law 104 (2010) ........................................................................................................... 18

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Joan Petersilia, Doing Justice? Criminal Offenders with Developmental Disabilities, California Policy Research Center (2000) ........................................ 8
John Woolredge & Benjamin Steiner, The Exercise of Power in Prison Organizations and Implications for Legitimacy, 106 J. of Crim. L. & Criminology 125 (2016)........................................................................................ 9
Justin George & Weihua Li, Epstein’s Death Highlights A Staffing Crisis in Federal Prisons, The Marshall Project, Aug. 14, 2019 ...................................... 12
Kenneth McGinnis et al., Report to the Federal Bureau of Prisons, Federal Bureau of Prisons: Special Housing Unit Review and Assessment (2014) ... ............................................................................................................ 7, 9, 17, 18
Lauren Brinkley-Rubenstein, et al., Association of Restrictive Housing During Incarceration With Mortality After Release, 1 Jama Open Network (2019) .................................................................................................................. 20
Leon Digard et al., Vera Institute of Justice, Rethinking Restrictive Housing: Lessons from Five U.S. Jail and Prison Systems (2018)......................... 16, 17, 23
M.H. Fisher, et al., Victimization of Individuals With Intellectual and Developmental Disabilities Across the Lifespan, 51 Int. Rev. of Res. In Developmental Disabilities 233 (2016)............................................................... 11
Margaret E. Loberg, Victimization of Inmates with Inellectual Disability: A Qualitative Study (2009) (unpublished Ph. D dissertation, Pacific Univ.) ......... 10
Margo Schlanger, Prisoners With Disabilities, In Reforming Criminal Justice: Punishment, Incarceration, and Release (2017) .................................................... 8
National Institute of Justice, Topical Working Group on the Use of Administrative Segregation in the U.S., 19 Oct. 2015 ........................................ 24
Paige St. John, Court-Appointed Expert Blasts California Effort on Prison Suicides, Los Angeles Times, Mar. 13................................................................ 23
Peter M Carlson & Judith Simon Garrett, Prison and Jail Administration, Practice and Theory (2008) ................................................................................ 10
Rick Raemisch & Kellie Wasko, Colorado Department of Corrections, Open the Door: Segregation Reforms in Colorado (2015) .......................................... 25

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Robert G. Thomas & R. Murray Thomas, Effective Teaching in Correctional Settings (2008)..................................................................................................... 10
Sal Rodriguez, Solitary Watch, Fact Sheet: The High Cost of Solitary Confinement (2011)............................................................................................. 23
Samarth Gupta, From Solitary to Society, Harvard Political Review, Feb. 7, 2016 ..................................................................................................................... 22
Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. of L. & Pol’y. 325 (2006).............................................................................. 19, 21
Stuart Grassian & Nancy Friedman, Effects of Sensory Deprivation in Psychiatric Seclusion and Solitary Confinement, 8 Int. J. of L. and Psychiatry 49 (1985) ........................................................................................... 19
Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 Am. J. of Psychiatry, 1450 (1983) .............................................................................. 19
Terry Allen Kupers, Solitary: The Inside Story of Supermax Isolation and How We Can Abolish It (2017), Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. of L. & Pol’y. (2006)............................................ 20
The Association of State Correctional Administrators & The Liman Center for Public Interest Law at Yale Law School, Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-In-Cell (2018) ............................................................................................................................. 23
United States Department of Justice Federal Prison System, FY 2019 Performance Budget Congressional Submission (2019) .................................... 12

BOP ID

GLOSSARY Bureau of Prisons Intellectual Disability

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RULE 29(a)(4)(e) STATEMENT Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(e), amici certify that no party’s counsel authored this brief in whole or in part and that no person or entity other than amici and their counsel made a monetary contribution to the preparation and submission of this brief.
INTEREST OF AMICI CURIAE Amici Curiae are former corrections directors and experts with extensive experience overseeing and managing prisons and prison systems. Amici are also intimately familiar with the use of prolonged solitary confinement. Amici believe the incarceration of people with intellectual disability (“ID”) like Markelle Seth in prison is deeply problematic—especially where, as here, those individuals have not been convicted of any crime and are housed in solitary confinement. Amici assert that most prisons are unable to properly house or treat people like Mr. Seth, and consequently, people like Mr. Seth are inherently difficult and burdensome for corrections staff to manage. Amici are concerned that—as is the case here— corrections staff will house people with ID in prolonged solitary confinement out of an actual or perceived lack of alternatives, causing severe psychological damage that produces counterproductive outcomes for rehabilitation and prison safety. Amici believe this brief will assist the Court by providing the perspective of experienced

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corrections administrators regarding the consequences of allowing people like Mr. Seth to remain civilly committed to prison.
Amici are: Martin F. Horn served as Secretary of Corrections of Pennsylvania from 1995 to 2000. He also served as Commissioner of the New York City Departments of Correction and Probation for seven years. Mr. Horn has also served as Executive Director of the New York State Sentencing Commission. Steve J. Martin is the former General Counsel/Chief of Staff of the Texas prison system and has served in Texas gubernatorial appointments to both a sentencing commission and a council for offenders with mental impairments. He coauthored Texas Prisons, The Walls Came Tumbling Down, and has written numerous articles on criminal justice issues. Richard Morgan was appointed Secretary of the Washington State Department of Corrections in 2016. He also was appointed to Washington State’s Parole Board and elected to the Walla Walla City Council, and he has served on the Board for the Washington State Coalition to Abolish the Death Penalty since 2012. Dan Pacholke is the former Secretary for the Washington State Department of Corrections (WDOC). He started his 33-year career as a Correctional Officer, working his way to the senior most position for the department. In 1985, he worked in one of the first intensive management units (IMUs) in WDOC, and 25 years later

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he led the efforts to reduce the use of IMUs that resulted in a 50% reduction of those housed in IMUs and an over 30% reduction in system-wide violence. This work is described in a 2016 Department of Justice Bureau of Justice Policy Brief, More than Emptying Beds: A Systems Approach to Segregation Reform.
Phil Stanley is the former Commissioner of the New Hampshire Department of Corrections, reporting directly to the Governor. He has served as Superintendent of three prisons in Washington State, as Regional Administrator, and Probation Officer. He is currently a consultant for jail operations.
Eldon Vail served as Secretary of the Washington Department of Corrections from 2007 until 2011. As Director, he successfully reduced violence in the state prison system and implemented a wide array of evidence-based programs, including an intensive treatment program for people in prison with a mental illness and a stepdown program for people held for long terms in solitary.
Amici have obtained the consent of all parties to the filing of this brief.
SUMMARY OF ARGUMENT Markelle Seth, a person with ID who has been found incompetent to stand trial and found by the District’s treating professionals to be treatable in the community, does not belong in prison. The civil commitment of persons like Mr. Seth to prison is morally objectionable, and his disability makes him and others like him difficult to manage and treat in a general population setting. This difficulty is

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driven by the simple fact that a prison is first, and foremost, a prison, not a treatment facility. As a result of their ID, individuals like Mr. Seth often struggle to understand, remember, or comply with the various demands of prison life and are at a substantial risk of victimization while in a general population setting. Further, their treatment and support needs exceed what most prisons are capable of or intend to provide.
The incarceration of individuals like Mr. Seth imposes a substantial burden on prisons, which frequently hold such individuals in prolonged solitary confinement out of a desire to prevent their disruptive behavior from interfering with prison administration. While in solitary confinement, people with ID suffer severe psychological trauma and deterioration as a result of their enhanced susceptibility to the toxic effects of prolonged isolation. This, in turn, can exacerbate any pre-existing behavioral, mental health, and/or intellectual capacity problems, making these individuals even more ill-suited for normal prison life. Accordingly, while incarcerated, intellectually disabled individuals like Mr. Seth will be trapped in a perpetual downward spiral of continued psychological damage and cyclical disciplinary problems that will virtually ensure that they languish in what “comes perilously close to a penal tomb.”1

1 Apodaca v. Raemisch, 139 S.Ct. 5, 10 (2018) (Sotomayor, J., respecting denial of cert.) (internal quotation omitted).
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ARGUMENT Mr. Seth has never been convicted of a crime and, consequently, has never been sentenced to prison. Nevertheless, since his arrest in October 2014, Mr. Seth has spent most of the last five years in solitary confinement at various prisons and jails. After an incompetency finding in December 2016, Mr. Seth was civilly committed to the custody of the Bureau of Prisons (“BOP”) and remains incarcerated at the Federal Medical Center in Devens, Massachusetts. Given the District’s refusal to take him in, Mr. Seth’s incarceration is seemingly indefinite, which is deeply troubling because Mr. Seth will likely remain in solitary confinement as a result of the BOP’s perceived or actual inability to house him in another setting. Amici, who have extensive experience managing prison systems and prisoners with a variety of needs, seek first to explain the challenge people with ID like Mr. Seth present in a prison setting. As a result of the prison environment’s inability to accommodate the complexities inherent to housing people like Mr. Seth, the civil commitment of people like Mr. Seth to prison imposes a significant burden on prison administration, while at the same time denying them the treatment that they need. Second, amici assert that without some form of specialized housing with staff trained to manage people with ID, people like Mr. Seth will often be held in prolonged solitary confinement as a result of an actual or perceived lack of alternatives. Further, while

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isolated, people with ID will suffer grave psychological harm resulting in counterproductive outcomes for rehabilitation and prison management. I. People with ID like Mr. Seth are Difficult to Manage in Prison and Do
Not Receive Adequate Treatment While Incarcerated. Normally, when an individual is found incompetent to stand trial, “that person is either committed to a state psychiatric hospital, or as occurs more recently, placed in a community treatment program.”2 Commitment to such programs outside of prison is a recognition of the fact that people found legally incompetent “deserve to be treated, not punished.”3 Similarly, the incarceration of people lacking competency undermines the punitive purpose of the prison environment because punitive measures like prison time are only “justifiably imposed [] if the defendant is capable of understanding why society views his or her conduct as morally reprehensible and appropriate for punishment.”4 Not only does the incarceration of people like Mr. Seth unjustly subject them to the inherently punitive nature of the prison environment, it also presents significant difficulties to prison administrators. First, as a result of most prisons’ lack

2 Alan R. Felthous & Joseph D. Bloom, Jail-Based Competency Restoration, J. of the Am. Acad. of Psychiatry and the Law Online, 364, 365 (2018). 3 E. Fuller Torrey, et al., More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States, 2 (Treatment Advocacy Center, 2010). 4 Grant H. Morris, et al., Competency to Stand Trial On Trial, 4 Hous. J. Health L. & Pol’y 193, 202 (2004).
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of knowledge and inability to accommodate their disability, people like Mr. Seth may be unable to safely function in an open prison population. Second, the treatment and support they require often exceed what prisons are capable of providing.
A. As a Result of Their ID, Individuals Like Mr. Seth Are Often Unable to Comply with the Various Demands of Prison Life, Making Them Difficult and Burdensome to Manage.
One of the most basic and omnipresent aspects of prison is an intricate system of rules and procedures that govern every aspect of a prisoner’s life. Prisoners must comply with many strict rules dictating where they can and must be in the prison at various times and when and where various activities are permitted. Many other rules and procedures govern dress code, visitation, access to various prison services, commissary, dining, religious practice, and what possessions a prisoner may keep, among other things. Prison staff require strict compliance with these rules, and violations are subject to a structured disciplinary process. This structure exists in order to create a safe, predictable, and functional prison environment, for both prisoners and staff. In order to maintain such an environment, “prison administrators depend heavily upon a cooperative and conforming inmate population.”5 However, for people with ID, this rigid structure makes prison life difficult; lacking the

5 Kenneth McGinnis et al., Report to the Federal Bureau of Prisons, Federal Bureau of Prisons: Special Housing Unit Review and Assessment, 26 (2014).
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capacity to understand, remember, or comply with the numerous demands of prison
life, people like Mr. Seth will frequently violate rules and protocol.
For people like Mr. Seth, the symptoms inherent in their ID “make it difficult
to conform to the highly regimented rules and procedures of the prison
environment.”6 Conformity is difficult because ID substantially limits many basic
cognitive skills required to understand and properly “comply with the prison
routine.”7 This means that while people like Mr. Seth are incarcerated, they may
frequently struggle to remember, understand, or comply with the various things that
correctional staff expect of them. Indeed, as Mr. Seth’s history in prison shows,
incarcerated individuals with ID will frequently violate the rules because their ID
inhibits their ability to comply with, remember, or even understand what prison rules
require. As noted by Dr. Denney, a long-time BOP psychologist and expert witness
in this case, Mr. Seth’s segregation is
not due to serious violence but due to a series of immature impulsive incidents that are directly related to the nature of his disability – short attention span, poor frustration tolerance, impulsivity, inability to foresee consequences (e.g., numerous petty issues like conflicts over television programming; wearing earbuds where not allowed; wearing the wrong uniform or wearing the uniform incorrectly (not buckling his belt); not
6 Elizabeth Bennion, Banning the Bing: Why Extreme Solitary Confinement is Cruel and Far Too Usual Punishment, 90 Ind. L.J. 741, 752 (2015); see also Margo Schlanger, Prisoners With Disabilities, In Reforming Criminal Justice: Punishment, Incarceration, and Release, 298–300 (2017). 7Joan Petersilia, Doing Justice? Criminal Offenders with Developmental Disabilities, California Policy Research Center, 23–24 (2000).
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standing for the count; speaking disrespectfully to an officer; pushing or hitting an inmate who grabbed a bag of chips from him).8 In an environment like prison where strict conformity and compliance are required, these types of behaviors are problematic. Conformity with rules—even less serious ones like those dictating when and where prisoners can use earbuds, wear certain clothes, and use a particular tone of voice with correctional officers—is required in order for prison staff to retain control; because they are significantly outnumbered by prisoners, control is necessary to ensure the safety of staff, which in turn allows them to protect prisoners from one another.9 The maintenance of stability and order in prisons may also be linked to reductions in recidivism.10 If staff make exceptions for individuals like Mr. Seth, they risk undermining their control over the prison environment. This is because the prison population’s perception of the legitimacy of staff authority often depends on whether rules are enforced “not just in particular instances, but consistently over time.”11 This theory of legitimacy is captured by the phrase “Firm, Fair, and Consistent,” a common correctional motto that references the practice of applying the rules in the same way every time, without consideration

8 Joint Appendix (“J.A.”) at 408. 9 McGinnis, supra note 5, at 26. 10 John Woolredge & Benjamin Steiner, The Exercise of Power in Prison Organizations and Implications for Legitimacy, 106 J. of Crim. L. & Criminology, 125, 160–61 (2016). 11Id. at 129.
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of individual circumstances.12 Staff believe that doing so best facilitates the management of an entire population of prisoners.13 While some staff members may want to exercise leniency with people, like Mr. Seth, who lack the capacity to comply with the rules, they are stuck between a rock and a hard place—carve out an exception for people like Mr. Seth and risk undermining their authority or enforce the rules equally and impose an unfair punishment. As Mr. Seth’s incarceration over the past five years shows, staff will typically choose the latter so that they do not jeopardize the stability and safety of the prison environment.
People like Mr. Seth may also be isolated for their own protection because their ID makes them vulnerable to victimization while housed in general population. “It has been reported that individuals with intellectual disabilities in [] general population are more likely to be maltreated (i.e., psychologically or physically abused)” than those without a disability.14 This maltreatment includes things like “extortion, exploitation, threats, and physical and sexual abuse,” which occurs because people like Mr. Seth often make for easy targets in a general population

12 Peter M Carlson & Judith Simon Garrett, Prison and Jail Administration, Practice and Theory, 524 (2008). 13 Robert G. Thomas & R. Murray Thomas, Effective Teaching in Correctional Settings, 81 (2008) (discussing the applicability of the “Firm, Fair, and Consistent” motto in the setting of prison educational programming). 14 Margaret E. Loberg, Victimization of Inmates with Intellectual Disability: A Qualitative Study, 14–15 (2009) (unpublished Ph. D dissertation, Pacific Univ.).
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setting.15 Accordingly, not only are individuals with ID difficult to manage because of their struggle to comply with the prison routine, but they also pose management problems because they require substantial supervision to keep them safe.
B. The Extensive Treatment Needs of People like Mr. Seth Exceed What Prisons are Capable of Providing.
In addition to the inability of most prisons to accommodate the various complexities of housing people with ID, like Mr. Seth, prisons also are typically unable to provide the treatment and support that such individuals require. While this is concerning for any prisoner, it is especially troubling for legally incompetent individuals like Mr. Seth, for whom commitment to a specialized, non-carceral treatment program is an option. The inability of prisons to treat individuals like Mr. Seth is partly driven by the fact that mental health staff in prisons are already stretched thin; it is also driven by the fact that prisons are first and foremost prisons, not treatment facilities intended to or capable of providing the level and type of care required by people like Mr. Seth.
Over recent decades, the demand for mental health services in prison has dramatically increased, a trend driven by the continual dismantling of state-run

15 M.H. Fisher, et al., Victimization of Individuals With Intellectual and Developmental Disabilities Across the Lifespan, 51 Int. Rev. of Res. In Developmental Disabilities, 233 (2016); Cynthia L. Blitz, et al., Physical Victimization in Prison: The Role of Mental Illness, Int. J. of L. & Psychiatry, 385 (2008).
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mental health hospitals and reductions in funding for services, leaving countless mentally ill individuals without treatment or adequate housing.16 Prisons often lack the resources, training, time, and appropriate infrastructure to provide adequate mental health services to their populations.17 There are also pervasive mental health staffing challenges in many prisons, something felt acutely by the BOP after the Trump administration ordered a hiring freeze in 2016.18 From 2016 to 2018, the BOP experienced 12 percent drop in of its workforce.19 In its 2019 Budget Report to Congress, the Department of Justice flatly stated that recruiting and retaining prison medical staff was among its greatest challenges.20 Understaffing has long been a problem for the BOP, to the point that a long-time BOP psychologist stated that the BOP’s catchphrase is “do more with less,” a theme embodied by anecdotes about

16 Bennion, supra note 6 at 748–49; see generally Daniel Yohanna, Deinstitutionalization of People with Mental Illness: Causes and Consequences, AMA J. of Ethics, (2013), https://journalofethics.amaassn.org/article/deinstitutionalization-people-mental-illness-causes-andconsequences/2013-10. 17 Anna L. S. Brandt, Treatment of Persons With Mental Illness in the Criminal Justice System: A Literature Review, 51 J. of Offender Rehabilitation, 541, 547–48 (2012). 18 See generally, Christie Thompson & Taylor Elizabeth Eldridge, Treatment Denied: The Mental Health Crisis in Federal Prisons, The Marshall Project, Nov. 21, 2018. 19 Justin George & Weihua Li, Epstein’s Death Highlights A Staffing Crisis in Federal Prisons, The Marshall Project, Aug. 14, 2019. 20 United States Department of Justice Federal Prison System, FY 2019 Performance Budget Congressional Submission, 10–11 (2019).
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psychologists being re-tasked to perform prisoner escorts and sitting in guard towers with high-powered rifles, thanks to system-wide staffing shortages.21
The seemingly insurmountable challenge to meet the vast mental health needs of prison populations is of crucial importance here because, before a prison attempts to engage in intensive treatment of individuals with expansive treatment needs, like Mr. Seth, “it should first ensure that it is meeting the mental health needs [of those] that are properly and traditionally within its purview.”22 This is because such a significant investment of time and resources into one person may further impede the prison’s ability to serve the rest of its population.23 Further, even when such a focused allocation of resources is possible, an individual’s treatment needs may simply exceed what is possible in a prison context. Ultimately, even if a prison invests significant resources into a person like Mr. Seth, such a concentration of resources could be fruitless and could impair its ability to deliver services to many other prisoners in need.
The treatment and support needs of individuals with ID like Mr. Seth are extensive, require a significant investment of personnel, and may well exceed what is possible in a prison setting. Mr. Seth’s circumstances are instructive on this point—recognizing that Mr. Seth requires treatment outside of the prison context,

21 Thompson, supra note 18. 22 Felthous, supra note 2, at 369. 23 Id.
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the District of Columbia, through a contracted service provider, developed a comprehensive plan for housing, supporting, and treating him.24 The proposal recommends housing Mr. Seth in a community-based program outside of prison, where he can receive extensive supervision and care.25 It further recommends that Mr. Seth be supervised, one-on-one, for twenty-four hours a day by staff specifically trained to de-escalate undesired behavior; that he receive daily assistance in developing basic life skills (hygiene, cleaning, and reading, among other things); that he visit a dedicated psychiatrist and behavioral psychologist; that staff be trained in specialized de-escalation techniques for individuals with ID; and that an individualized and dynamic treatment plan be created and followed.26 These are treatment services that any prison—even a specialized medical prison—will be incapable of providing due to a lack of resources, staff, time, and appropriate infrastructure. This has already been pointed out in this case by Dr. Denney, who opined that “the design, service provision, and staffing models of the BOP will virtually ensure” that Mr. Seth does not receive proper treatment, and that “even the Federal Medical Center [a facility designed to house prisoners requiring long-term and extensive medical care] is not equipped to provide the individualized services

24 See generally, J.A. at 170–82. 25 J.A. 174–76. 26 J.A. at 177.
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Mr. Seth needs.”27 Accordingly, while people like Mr. Seth are civilly committed to prison, they will not receive the treatment and support they need and are unlikely to make meaningful steps toward rehabilitation. Instead, these individuals are likely to be caught in a troubling cycle of disciplinary sanctions and victimization leading to long periods of solitary confinement and resulting psychological deterioration. II. When People like Mr. Seth Are Civilly Committed to Prison, They Often
End Up in Long-Term Solitary Confinement, Where They Suffer Substantial Psychological Harm. Prisons struggle to manage and care for individuals with ID who are civilly committed to their custody, and this struggle often results in practices that are deeply problematic because people with ID are often relegated to solitary confinement out of a perceived or actual lack of alternatives. While isolated, people like Mr. Seth suffer substantial psychological harm and are unable to engage in meaningful rehabilitation. The use of solitary confinement to house difficult-to-manage prisoners warrants some historical context. Over a century ago, America abandoned solitary confinement as a failed experiment begetting mental illness rather than rehabilitation.28 But in the 1980s, solitary confinement returned to America’s prisons, partly in reaction to the violence and disorder created by exploding prison

27 J.A. at 406. 28 Bennion, supra note 6 at 747-50 (2015).
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populations.29 Correctional officials believed they could pinpoint the “troublemakers” and the “worst of the worst” who most frequently engaged in prison violence and then isolate them to restore order.30 Many states and the Federal Bureau of Prisons built solitary confinement units and “supermax” prisons.31 They did so under the misguided belief that removing difficult prisoners from the general population and housing them in isolation—sometimes for years or decades—would reduce prison violence.32
As a result of this seismic shift in penal philosophy, solitary confinement has become engrained in correctional culture as a disciplinary sanction for prisoners who commit violations of prison rules.33 Punitive solitary confinement (sometimes referred to as “disciplinary segregation”) became a prevalent punishment for disruptive and non-violent disciplinary infractions.34 Underlying this development is the belief that non-violent, yet “highly disruptive” prisoners pose “significant challenges” to prison administration, and as a result, correctional staff habitually use

29 Id. 30 Chad S. Briggs et al., The Effect of Supermaximum Security Prisons on Aggregate Levels of Institutional Violence, 41 Criminology 1341, 1341-42 (2006). 31 Bennion, supra note 6, at 750-52. 32 Briggs, supra note 30, at 1342. 33 See generally, Erica Goode, Rethinking Solitary Confinement, N.Y. Times, March 11, 2012. 34 David Shapiro, Solitary Confinement In the Young Republic, 113 Harvard L. R. 542, 584–87 (2019); Leon Digard et al., Vera Institute of Justice, Rethinking Restrictive Housing: Lessons from Five U.S. Jail and Prison Systems, 15 (2018).
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solitary confinement to “mitigate the impact of highly disruptive offenders within the correctional system.”35 The use of solitary confinement to incapacitate “highly disruptive” prisoners has become so common that at many institutions, “low-level nonviolent offenses [are] among the most common infractions” punished with isolation.36
However, individuals like Mr. Seth, whose disruptive behavior is driven by a lack of intellectual capacity rather than intentional behavior, pose a difficult problem: How is a prison to deal with a person with ID who will likely never be capable of complying with the various demands of life in a typical prison setting? As Mr. Seth’s extensive time in isolation shows, even at the treatment-focused federal medical centers, the answer is often prolonged solitary confinement due to an actual or perceived “lack of proper placement options.”37
The likelihood that individuals like Mr. Seth will languish in isolation is especially problematic because it inhibits their treatment needs and rehabilitative goals. This is because isolation prevents the development and/or maintenance of social skills, life skills, and other abilities necessary to function properly in the real world and also severely disrupts the ability of mental health staff to provide

35 McGinnis, supra note 5, at 39. 36 Digard, supra note 34 at 15. 37 McGinnis, supra note 5, at 39.
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services.38 Again, Mr. Seth’s circumstances are instructive here: in his declaration, Dr. Denney observed that while in isolation, Mr. Seth will be unable to “improve his social functioning or to engage in more productive social interactions” because social skills “need to be learned by practicing with others rather than simply through education.”39 Similarly, while in isolation, prisoners are generally unable to participate in group recreation, socialization, therapeutic prison programming, and other rehabilitative prison experiences.40 While problematic for any prisoner, this lack of programming participation is particularly concerning for people like Mr. Seth who have been deemed too dangerous to be released unsupervised, as isolation will prevent them from taking meaningful steps toward shedding this designation. This, together with the psychological damage inflicted by isolation discussed below, can prevent individuals like Mr. Seth from taking the rehabilitative steps that might enable them to function in the real world. Accordingly, the outlook for individuals like Mr. Seth is bleak—while they remain civilly committed to prison, they will likely be isolated indefinitely.
Unfortunately, as amici have observed, solitary confinement not only interferes with the treatment goals of people with ID, it also can inflict substantial

38 Jeffrey L. Metzner & Jamie Fellner, Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. Am. Acad. of Psychiatry and the Law 104, 105 (2010). 39 J.A. at 409. 40 McGinnis supra note 5, at 29–30; J.A. at 408–09.
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psychological harm and pain. Extensive research documents the negative psychological effects of solitary confinement.41 While held in prolonged solitary confinement, even mentally resilient individuals “inevitably suffer severe psychological pain as a result of such confinement.”42 Study after study around the world and over decades have shown that the resulting damage is often horrific and exacerbates any underlying mental health issues.43 This research shows that deprivation of environmental and social stimuli inflicts “strikingly toxic” damage to brain function and often dramatically impairs an individual’s ability to interact with and understand the real world.44 Psychologists have opined that this damage can trigger the “appearance of acute mental illness in individuals who had previously

41 See e.g., Elena Blanco-Suarez, The Effects of Solitary Confinement on the Brain,

Psychology

Today,

February

27,

2019,https://www.psychologytoday.com/us/blog/brain-chemistry/201902/the-

effects-solitary-confinement-the-brain; Bruce A. Arrigo & Jennifer Leslie Bullock,

The Psychological Effects of Solitary Confinement on Prisoners in Supermax Units,

52 Int. J. of Offender Therapy and Comparative Criminology, 622 (2008)

(Psychological Effects); Craig Haney, Mental Health Issues in Long-term Solitary

and “Supermax” Confinement, 49 Crime & Delinq. 124 (2003)(Mental Health

Issues); Stuart Grassian & Nancy Friedman, Effects of Sensory Deprivation in

Psychiatric Seclusion and Solitary Confinement, 8 Int. J. of L. and Psychiatry, 49

(1985)

; Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 Am. J.

of Psychiatry, 1450 (1983)(Psychopathological Effects of Solitary Confinement).

42 Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. of L.

& Pol’y., 325, 354 (2006) (Psychiatric Effects).

43 See generally, Psychological Effects, supra note 41; Psychiatric Effects, supra

note 42; Mental Health Issues, supra note 41; Effects of Sensory Deprivation, supra

note 41; Psychopathological Effects of Solitary Confinement, supra note 41.

44 Psychiatric Effects, supra note 42 at 354.

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been free of any such illness,” and can result in “prolonged or permanent psychiatric disability, including impairments which may seriously reduce the inmate’s capacity to reintegrate into the broader community.”45 Further, a recent study showed that prisoners released from solitary confinement face dramatically increased mortality rates after release—people held in solitary confinement are 24% more likely to die within a year of release, 78% more likely to commit suicide, and 127% more likely to die from an opioid overdose within two weeks of release.46
Recognizing the tendency of solitary confinement to impair prisoners’ ability to reintegrate into general population and into the world outside prison, many state correctional systems have implemented programs intended to counteract these effects. These programs provide rehabilitation, therapy, socialization, and education opportunities to isolated prisoners, which enabled easier and more successful transitions out of solitary confinement.47 Although methods exist to ease the

45 Id. See also, American Psychiatric Association, Position on Position Statement on Segregation of Prisoners with Mental Illness, (2017); Christie Thompson, From Solitary to The Street: What Happens When Prisoners go From Complete Isolation to Complete Freedom In a Day?, The Marshall Project (Jun. 11, 2015); ACLU, Briefing Paper: The Dangerous Overuse of Solitary Confinement in the US, 10 (2014); Daniel P. Mears & William D. Bales, Supermax Incarceration and Recidivism, 47 Criminology 1131, 1135 (2009); David Lovell, et al., Recidivism of Supermax Prisoners in Washington State, 53 Crime & Delinq., 633, (2007). 46 Lauren Brinkley-Rubenstein, et al., Association of Restrictive Housing During Incarceration With Mortality After Release, 1 Jama Open Network (2019). 47 Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique, 47 Crime & Just. 384 (2018) (Systematic Critique); Terry Allen Kupers,
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transition out of solitary confinement, the psychological damage inflicted during isolation remains.
Psychologists have shown that it is common for isolated prisoners to develop memory problems and difficulties thinking clearly.48 Development of mood disorders and severe emotional sensitivity and instability are similarly common.49 As isolation continues, the social capacity of prisoners deteriorates as they become accustomed to an asocial life.50 As amici have observed, prolonged isolation can also cause a deterioration of impulse control, resulting in random violent outbursts that include destruction of personal property and self-mutilation.51 Psychologists have also documented that prisoners may begin to experience distortions to reality, including auditory and visual hallucinations, as their grip on reality fades.52
Amici also recognize the findings of psychologists that the harms of solitary confinement are doubly severe for individuals like Mr. Seth, who have underlying mental health issues or ID and often suffer “severe exacerbation of [those] previously existing mental condition[s].”53 Further, those with “borderline cognitive

Solitary: The Inside Story of Supermax Isolation and How We Can Abolish It 224– 33 (2017). 48 Systematic Critique, supra note 4, at 363 49 Mental Health Issues, supra note 41 at 365. 50 Id. at 373. 51 Psychiatric Effects, supra note 42, at 336. 52 Id. at 360. 53 Id. at 329.
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capabilities,” like Mr. Seth, “are especially at risk for severe psychopathologic reactions to” solitary confinement, including a dramatically increased chance of deterioration into various “confusional, agitated, hallucinatory psychoses.”54 Prisoners suffering through such psychoses have been known to “smear[] themselves with feces, mumbl[e] and scream[] incoherently all day and night, [] even descending into the horror of eating parts of their own bodies.”55
In addition to the horrific psychological consequences of solitary confinement, amici are aware of various studies showing that isolation puts prisoners at a dramatically higher risk for self-harm and suicide.56 A study of prisoners in New York found that prisoners in solitary confinement were 6.9 times more likely to engage in self-harm and 6.3 times more likely to engage in potentially fatal selfharm. These facts are particularly concerning when there is already a high prevalence of this behavior in normal prison settings.57 Others have found that “close to half of all successful suicides in prison occur among the six to eight percent of the prisoner population that is in isolated confinement at any given time.”58 In 2005, forty-four California prisoners successfully committed suicide—thirty-one of them were held

54 Id. at 348-49. 55 Id. at 351. 56 Samarth Gupta, From Solitary to Society, Harvard Political Review, Feb. 7, 2016. 57 See generally, Fatos Kaba, et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, Am. J. Pub. Health, 442 (2014). 58 Hans Toch & Terry A. Kupers, Violence in Prisons, Revisited, Hans, 45.3 J. of Offender Rehabilitation, 19 (2007).
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in solitary confinement.59 Around eight years later, data in an expert report showed that prisoners in California’s solitary confinement units were 33 times more likely to commit suicide.60
Recognizing the extensive harm inflicted by solitary confinement, multiple states implemented sweeping reforms to restrict the use of solitary confinement. In fact, over one-third of states have initiated restrictions on solitary confinement. Nine states—Colorado, Idaho, Maine, Mississippi, Nebraska, North Carolina, North Dakota, Oregon, and Washington—report system-wide reforms, reducing the population of prisoners in isolation from nearly 100,000 to approximately 60,000 in just four years.61 Prison officials—including amici—have developed strategies to reduce the influx of prisoners into solitary, including eliminating punitive isolation for minor infractions, and creating alternative housing for prisoners who need mental health treatment or protective custody.62 Unfortunately, these alternative methods of prison management have yet to be implemented in many correctional systems,

59 Sal Rodriguez, Solitary Watch, Fact Sheet: The High Cost of Solitary Confinement (2011). 60 Paige St. John, Court-Appointed Expert Blasts California Effort on Prison Suicides, Los Angeles Times, Mar. 13, 2013. 61 The Association of State Correctional Administrators & The Liman Center for Public Interest Law at Yale Law School, Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-In-Cell, 7, 10 (2018). 62 Digard, supra note 34, at 28.
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meaning that a great many people like Mr. Seth continue to languish in solitary confinement.
Not only does prolonged solitary confinement inflict horrific damage upon prisoners, it also creates counterproductive outcomes for prison administration in the form of increased rates of prison violence and disorder. The use of solitary confinement also exacts a high psychological cost from prison staff working these units, who are already at a high risk for alcoholism, post-traumatic stress disorder, and suicide.63 The cruelty and harshness inherent in solitary confinement units often results in staff normalizing dehumanization and the infliction of suffering, to the point that “culture of harm” emerges, wherein mutual animosity between prisoners and guards flourishes while the use of force proliferates.64 Perhaps unsurprisingly, studies show that as the use of solitary confinement increased, “[p]risons with higher rates of restrictive housing had higher levels of facility disorder.”65 Psychologists found that the pathology underlying the increase in disorder was caused by isolation,

63 Christopher Zoukis, Prisons Don’t Damage Only Prisoners; Guards at Risk of PTSD and Suicide, Too, Prison Legal News, June 8, 2018; National Institute of Justice, Topical Working Group on the Use of Administrative Segregation in the U.S., 19 Oct. 2015 (a panel of correctional experts noting that correctional officers working in solitary confinement units experience heightened trauma and a higher risk of perpetrating domestic violence). 64 Craig Haney, A Culture of Harm: Taming the Dynamics of Cruelty in Supermax Prisons, Crim. Just. & Behavior, 969–71 (2008). 65 Allen Beck, U.S. Dep’t of Justice, Use of Restrictive Housing in U.S. Prisons and Jails, 2011-12, 1 (2015), https://www.bjs.gov/content/pub/pdf/ urhuspj1112.pdf.
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which led prisoners to “occupy this idle time by committing themselves to fighting against the system.”66 The result is often the creation of a seemingly never-ending destructive cycle in which any behavioral, mental health, and/or capacity issues are exacerbated, leading to further disciplinary problems triggering extended isolation.67 For intellectually disabled individuals like Mr. Seth, who are held in solitary confinement as a result of the prison’s inability to accommodate the behavioral issues inherent in their disability, succumbing to such a destructive cycle is a virtual certainty. Accordingly, Mr. Seth’s civil commitment to BOP custody will “virtually ensure continuing failure and continuing incarceration.”68
CONCLUSION Civilly committing intellectually disabled individuals like Mr. Seth to prison is counterproductive, destructive, and burdensome to prison administration. Instead of placing these individuals in an environment designed to accommodate the various complexities of their disability and provide treatment, civil commitment to prison forces intellectually disabled individuals like Mr. Seth into an institutional environment that is ill-suited to address their various individualized needs and is unable to provide them treatment. As a result of a perceived or actual inability to

66 Mental Health Issues, supra note 41, at 140. 67 Rick Raemisch & Kellie Wasko, Colorado Department of Corrections, Open the Door: Segregation Reforms in Colorado, 2 (2015). 68 J.A. at 406.
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properly house and treat them, prison staff often will relegate people like Mr. Seth
to solitary confinement, where their mental state is likely to deteriorate, making
compliance with the demands of prison life, and accordingly, their ability to return
to society, even more difficult.69 Ultimately, civilly committing legally incompetent
and intellectually disabled people like Mr. Seth to prison traps them in a destructive
downward spiral of psychological deterioration in an inherently punitive
environment incapable of accommodating or treating their disability.
Dated: December 24, 2019
Respectfully submitted,
THE LAW OFFICE OF DEBORAH M. GOLDEN
s/ Deborah M. Golden Deborah M. Golden 1415 H Street, NE Washington, DC 20002 202.630.0332 deb.golden@gmail.com
Laura Rovner Nicole Godfrey Taylor Volkman, Student Attorney STUDENT LAW OFFICE University of Denver College of Law 2255 E. Evans Avenue, Suite 335 Denver, CO 80208 303.871.6441 lrovner@law.du.edu

69 Amici find these consequences doubly concerning for people like Mr. Seth, for whom a therapeutic alternative outside of prison is available.
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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of FRAP 32(a)(7)(B)

because it contains 5,975 words, excluding the parts of the brief exempt by FRAP

32(f).

This brief complies with the typeface requirements of FRAP 32(a)(5) and the

type style requirements of FRAP 32(a)(6) because it has been prepared in a

proportionally spaced typeface using Microsoft Office 365 Version 16.18 in 14-

point Times New Roman.

Dated: December 24, 2019

Respectfully submitted,

s/ Deborah M. Golden Deborah M. Golden

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the D.C. Circuit by using the

appellate CM/ECF system on December 24, 2019.

I certify that all participants in the case are registered CM/ECF users and that

service will be accomplished by the appellate CM/ECF system.

Dated: December 24, 2019

Respectfully submitted,

s/ Deborah M. Golden Deborah M. Golden

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ORAL ARGUMENT NOT YET SCHEDULED
CASE NO. 19-7057
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

MARKELLE SETH, Plaintiff-Appellant,
v.
DISTRICT OF COLUMBIA, D.C. DEPARTMENT ON DISABILITY SERVICES, and ANDREW REESE, Defendants-Appellees.

Appeal from the United States District Court for the District of Columbia, Case No. 18-1034 Honorable Beryl A. Howell

CORRECTED BRIEF OF AMICI CURIAE AUTISTIC SELF ADVOCACY NETWORK, CENTER FOR PUBLIC REPRESENTATION, CIVIL RIGHTS
EDUCATION AND ENFORCEMENT CENTER, DISABILITY RIGHTS ADVOCATES, DISABILITY RIGHTS EDUCATION AND DEFENSE FUND,
AND JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW IN SUPPORT OF APPELLANT AND REVERSAL

CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER Amy Farr Robertson 1245 E. Colfax Ave., Suite 400 Denver, CO 80218 Telephone: (303) 757-7901 Facsimile: (303) 872-9072

ROSEN BIEN GALVAN & GRUNFELD LLP Sanford Jay Rosen Gay Crosthwait Grunfeld Kara J. Janssen 101 Mission Street, Sixth Floor San Francisco, California 94105 Telephone: (415) 433-6830 Facsimile: (415) 433-7104 Attorneys for Amici Curiae

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CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, all amici curiae state that they are private 501(c)(3) non-profit organizations, that they are not publicly held corporations or other publicly held entities, and that they have no parent corporations. No publicly held corporation or other publicly held entity owns ten percent (10%) or more of any amicus organization. CERTIFICATE OF PARTIES, RULINGS, RELATED CASES, AND
FILING OF SEPARATE BRIEF Counsel for amici curiae hereby certify as follows: A. Parties, Intervenors, and Amici Curiae All parties and amici curiae who appeared before the district court appear in Appellant’s brief. The parties appearing in this Court include those listed in Appellant’s brief, amici listed herein, and any other amici who have not yet entered an appearance in this Court. B. Ruling Under Review References to the ruling at issue appear in Appellant’s brief. C. Related Cases This case is related to United States v. Seth, No. 1:14-mj-00608-BAHGMH1 (D.D.C. filed Oct. 15, 2014), in which Mr. Seth was found permanently incompetent to proceed.

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D. Separate Brief All parties have consented to the filing of this amicus brief.1 Pursuant to District of Columbia Circuit Rule 29(d), amici certify that this separate brief is necessary because it reflects a perspective not found in the parties’ briefs or in any of the other amicus briefs. Amici are six national disability rights organizations with extensive and substantial expertise in advocating for the inclusion and civil rights of people with disabilities, including people with intellectual disability. In particular, amici have substantial experience in the integration of people with disabilities into the community as required by the Americans with Disabilities Act, Rehabilitation Act, and the Supreme Court’s ruling in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). DATED: December 27, 2019 ROSEN BIEN GALVAN & GRUNFELD LLP
By: /s/ Sanford Jay Rosen Sanford Jay Rosen
Attorneys for Amici Curiae

1 Pursuant to Fed. R. App. P. 29(a)(4)(E), no party’s counsel authored this brief in whole or in part. No party or party’s counsel contributed money that was intended to fund preparing or submitting the brief. No person—other than the amici curiae, their members, or their counsel—contributed money that was intended to fund preparing or submitting the brief.

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TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT ..........................................................i
CERTIFICATE OF PARTIES, RULINGS, RELATED CASES, AND FILING OF SEPARATE BRIEF .....................................................................i
STATEMENTS OF INTEREST OF AMICI CURIAE..............................................1
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................4
ARGUMENT .............................................................................................................9
I. THE INTEGRATION MANDATE OF THE ADA AND THE REHABILITATION ACT APPLIES HERE. .................................................9
II. UNDER THE ADA AND REHABILITATION ACT, COVERED ENTITIES MUST CONDUCT AN INDIVIDUALIZED ASSESSMENT BASED ON OBJECTIVE EVIDENCE, WITH CONSIDERATION OF MITIGATING SUPPORTS AND ACCOMMODATIONS. ................................................................................ 19
III. APPELLANTS HAVE SATISFIED THE REQUIREMENTS OF RULE 8(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE..........22
CONCLUSION ........................................................................................................25
CERTIFICATE REGARDING LENGTH OF BRIEF AND TYPEFACE.............26
CERTIFICATE REGARDING DIGITAL SUBMISSION.....................................27
CERTIFICATE OF SERVICE ................................................................................28

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TABLE OF AUTHORITIES

Page

CASES Bay Area Addiction Research & Treatment, Inc. v. City of Antioch,
179 F.3d 725 (9th Cir. 1999) .........................................................................21 Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)...................................................................................9, 23 Brown v. D.C.,
928 F.3d 1070 (D.C. Cir. 2019).....................................................................17 Cleveland v. Policy Mgmt. Sys. Corp.,
526 U.S. 795 (1999).......................................................................................18 Disability Advocates, Inc. v. New York Coal. for Quality Assisted Living,
Inc., 675 F.3d 149 (2d Cir. 2012) ..........................................................................16 Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184 (E.D.N.Y. 2009) ...........................................................16 Dunn v. Dunn, 318 F.R.D. 652 (M.D. Ala. 2016)..................................................................10 Frederick L. v. Department of Public Welfare, 157 F. Supp.2d 509 (E.D. Pa. 2001)..............................................................16 Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997) ..................................................................... 21, 22 Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. 222 (S.D.N.Y. 1996) ......................................................... 22, 24 Ireland v. Anderson, No. 3:13-CV-3, 2014 WL 3732014, at *3 (D.N.D. July 25, 2014)...............13 Joseph S. v. Hogan, 561 F.Supp.2d 280 (E.D.N.Y.2008) ..............................................................16 Kriz v. 12th Judicial Dist. Bd. of Mental Health of Box Butte Cty., No. 4:05CV3254, 2008 WL 2568270, at *1 (D. Neb. June 25, 2008)... 13, 14 Long v. Benson, No. 08-cv-26 (RH/WCS), 2008 WL 4571904, at *2 (N.D. Fla. Oct. 14, 2008) ........................................................................................................16

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McClendon v. City of Albuquerque, No. 95 CV 24 JAP/KBM, 2016 WL 9818311, at *15 (D.N.M. Nov. 9, 2016) ..............................................................................................................10
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).......................................................... 4, 10, 14, 16, 17, 24
Pennsylvania Prot. & Advocacy, Inc. v. Pennsylvania Dep't of Pub. Welfare, 402 F.3d 374 (3d Cir. 2005) ..........................................................................17
Sch. Bd. of Nassau Cnty v. Arline, 480 U.S. 273 (1987)............................................................................ 7, 19, 20
Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002)...................................................................... 9, 22, 23, 24
United States v. Foy, 803 F.3d 128 (3d Cir. 2015) ............................................................................6
United States v. Seth, No. 5:17-HC-2090-BR, Order, ECF 32 (E.D.N.C. May 25, 2018) ..............18
United States v. Volungus, 595 F.3d 1 (1st Cir. 2010)................................................................................6
Van Orden v. Schaefer, No. 4:09CV00971 AGF, 2014 WL 5320232, at *6-7 (E.D. Mo. Oct. 17, 2014) ................................................................................................. 11, 12
STATUTES 18 U.S.C. § 4246 ................................................................................. 5, 6, 11, 12, 18 18 U.S.C. § 4246(d) ...................................................................................................6 28 C.F.R. § 35.130(d) ..........................................................................................7, 10 28 C.F.R. § 35.139 ...................................................................................................20 28 C.F.R. § 35.139(b) ................................................................................................7 28 C.F.R. § 35.152(b)(2)..........................................................................................10 29 U.S.C. § 705(20)(D)............................................................................................20 42 U.S.C. § 12101(a)(2).............................................................................................9 42 U.S.C. § 12101(a)(3).............................................................................................9 42 U.S.C. § 12101(a)(5)...........................................................................................10 42 U.S.C. § 12131 ....................................................................................................21

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42 U.S.C. § 12182(b)(3) ..........................................................................................20 Fed. R. App. P. 29(a)(4)(E)....................................................................................... ii
OTHER AUTHORITIES House Comm. On Education and Labor,
H.R. Rep. No. 485(II), 101st Cong., 2d Sess., 1990 WL 10079988 (1990) .............................................................................................................20 Margo Schlanger, Prisoners with Disabilities, in Reforming Criminal Justice: Punishment, Incarceration, and Release 295 (E. Luna ed., 2017) ................................................................................................................5 Rebecca Vallas, Cntr. for Am. Progress, Disabled Behind Bars: The Mass Incarceration of People with Disabilities in America’s Jails and Prisons, Center for American Progress 3 (2016)............................................5 Senate Comm. On Labor and Human Resources, S. Rep. No. 116, 101st Cong., 1st Sess., 1989 WL 1176422 (1989) ............20

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STATEMENTS OF INTEREST OF AMICI CURIAE Amici curiae have extensive expertise in advocating for the inclusion and civil rights of people with disabilities, including people with intellectual disability. Amici also have substantial experience in the integration of people with disabilities into the community as required by the Americans with Disabilities Act, Rehabilitation Act, and the Supreme Court’s ruling in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). Amici curiae include: The Autistic Self Advocacy Organization (ASAN) is a national, private, nonprofit organization, run by and for autistic individuals. ASAN provides public education and promotes public policies that benefit autistic individuals and others with developmental or other disabilities. ASAN’s advocacy activities include combating stigma, discrimination, and violence against autistic people and others with disabilities; promoting access to health care and long-term supports in integrated community settings; and educating the public about the access needs of autistic people. ASAN takes a strong interest in cases that affect the rights of autistic individuals and others with disabilities to participate fully in community life and enjoy the same rights as others without disabilities. The Center for Public Representation (CPR) is a public interest law firm that has been assisting people with disabilities for more forty years. It is both a statewide and national legal backup center that provides assistance and support to

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public and private attorneys who represent people with disabilities in Massachusetts, and to the federally-funded protection and advocacy programs in each of the States. CPR has litigated systemic cases on behalf of persons with disabilities in more than twenty states, and submitted amici briefs to the United States Supreme Court and many of the courts of appeals in cases seeking to enforce the constitutional and statutory rights of persons with disabilities, including the right to be free from discrimination under the ADA.
The Civil Rights Education and Enforcement Center (CREEC) is a national nonprofit membership organization based in Colorado whose mission is to defend human and civil rights secured by law, including laws prohibiting discrimination on the basis of disability. CREEC’s efforts to defend human and civil rights extend to all walks of life, including ensuring that people with disabilities have full and equal access to and receive equal treatment in the justice and carceral systems.
Disability Rights Advocates (DRA) is a non-profit, public interest law firm that specializes in high impact civil rights litigation and other advocacy on behalf of persons with disabilities throughout the United States. DRA works to end discrimination in areas such as access to public accommodations, public services, employment, transportation, education, and housing. DRA’s clients, staff and board of directors include people with various types of disabilities. With offices in

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New York City and Berkeley, California, DRA strives to protect the civil rights of people with all types of disabilities nationwide.
The Disability Rights Education & Defense Fund (DREDF), based in Berkeley, California, is a national nonprofit law and policy center dedicated to advancing and protecting the civil rights of people with disabilities. Founded in 1979 by people with disabilities and parents of children with disabilities, DREDF remains board- and staff-led by the community it represents. DREDF pursues its mission through education, advocacy and law reform efforts, and is nationally recognized for its expertise in the interpretation of federal civil rights laws protecting persons with disabilities.
The Judge David L. Bazelon Center for Mental Health Law is a national legal advocacy organization founded in 1972 to advance the rights of individuals with mental disabilities. Through litigation, policy advocacy, public education, and training, the Bazelon Center promotes equal opportunity for individuals with mental disabilities in all aspects of life, including community living, health care, housing, employment, education, parental and family rights, voting, and other areas. The Bazelon Center has litigated numerous cases involving the Americans with Disabilities Act’s integration mandate across the country.

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INTRODUCTION AND SUMMARY OF ARGUMENT Markelle Seth is a 26-year-old D.C. resident with intellectual disability.2 He was charged with a crime, but was found incompetent to stand trial and incapable of being restored to capacity under the Insanity Reform Defense Act (“IDRA”). Multiple disability services professionals – including several affiliated with defendants – have concluded that he can safely live and receive appropriate disability support services including supervision in the community, rather than spend years, if not decades in a federal correctional institution. Despite this, defendants refuse to provide such services, with the result that Mr. Seth is incarcerated in a federal prison, hundreds of miles from his family. Requiring a person with a disability who has not, and cannot, be tried and convicted of a crime to endure indefinite incarceration due to the failure to provide an appropriate placement violates the integration mandate of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act (“Rehabilitation Act”), and the Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). Mr. Seth’s Complaint set forth these facts and many others in great detail, and thus stated claims under the ADA and the Rehabilitation Act; the district court’s decision to the contrary was error.

2 Factual representations are taken from Mr. Seth’s Complaint, proposed Amended Complaint, and associated exhibits, which are presumed true given the procedural posture of the litigation.

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Mr. Seth has been detained in correctional institutions since he was charged at age 20 in October 2014,3 and is currently held in a Bureau of Prisons (BOP) correctional facility in Massachusetts. Mr. Seth will not be eligible for release at any foreseeable time without defendants’ offering a placement in D.C. because he has been civilly committed under the procedure set out in 18 U.S.C. § 4246. In federal prison, Mr. Seth is frequently disciplined and has been housed almost continuously in segregation due to his disability-related difficulties complying with institutional rules and instructions.4

3 Mr. Seth was arrested and charged with the production of child pornography using his cell phone and involving children in his household. There is persuasive evidence that his actions were intertwined with his intellectual disability and a lack of intervention and supervision at the time. Matthew Mason, Ph.D., an expert in treating individuals with intellectual disability who present problematic sexual behavior, evaluated Mr. Seth and found no evidence of a paraphilic disorder (pedophilia). Dr. Mason opined: “In the absence of such evidence, and based on the nature of the sexual contact that has been alleged, it is more likely that Mr. Seth’s sexual contact with children was due to restricted opportunity for sexual contact with age appropriate peers, along with deficiencies in judgment and impulse control, all of which in turn are a consequence of his intellectual disability; furthermore, these problems were exacerbated by a lack of appropriate intervention and supervision….” Proposed Amended Complaint, Exhibit 14, No. 1:18-cv01034-BAH, ECF 29-15 at 7-8 (D.D.C. Oct. 26, 2018).
4 Deficits in cognitive and adaptive functioning associated with a diagnosis of intellectual disability can make life in prison excruciatingly difficult. See Rebecca Vallas, Cntr. for Am. Progress, Disabled Behind Bars: The Mass Incarceration of People with Disabilities in America’s Jails and Prisons, Center for American Progress 3 (2016), https://cdn.americanprogress.org/wpcontent/uploads/2016/07/18000151/ 2CriminalJusticeDisability-report.pdf; See also Margo Schlanger, Prisoners with Disabilities, in Reforming Criminal Justice: Punishment, Incarceration, and Release 295, 307-308 (E. Luna ed., 2017)

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The IDRA provides that an individual in Mr. Seth’s position may be transferred from federal to state custody and care, “if such State will assume responsibility for his custody, care, and treatment.” 18 U.S.C. § 4246(d). State placements and services are preferable5 for a number of reasons, including that they: are in the person’s place of permanent residence, near family and other supports; allow the individual to receive disability-specific care provided by the state entity charged with the duty to care for and support individuals with disabilities; and rely upon state-funded and state-administered programs designed to meet the particular supervision and disability needs of the person (and, for that reason, may be less segregated and more integrated than a federal prison). For similar reasons, ongoing indefinite federal detention for persons like Mr. Seth is considered a last resort.6
Consistent with the IDRA’s preference for state custody and care, the ADA and Rehabilitation Act require that public entities provide services for disabled

(Prisoners with intellectual disability or developmental disability are likely to incur more disciplinary sanctions, including a greater loss of privileges.)
5 See United States v. Volungus, 595 F.3d 1, 10 (1st Cir. 2010) (IDRA expresses “clear preference for state placement, if and when available, of those committed federally”).
6 See United States v. Foy, 803 F.3d 128, 138 (3d Cir. 2015) (“ongoing detention under § 4246 after the initial recovery period has elapsed is a last resort -- it is only available if a person poses an ongoing danger to others in the “rare circumstances where [he] has no permanent residence or there are no state authorities willing to accept him for commitment.”)

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people like Mr. Seth in “the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). These laws further require covered entities to rely upon objective, empirical evidence in any decision to exclude a disabled individual from the community based upon a purported threat or other harms, including objective evidence of the impact of reasonable modifications and supports in mitigating any risks. 28 C.F.R. § 35.139(b). As both Congress and the Supreme Court have recognized, the emphasis on objective standards, including the mitigating effect of accommodations and supports, is critical; the placement and treatment of individuals with significant disabilities is characterized by institutionalization, and fraught with fears and stereotypes.7
Here, the safety and feasibility of state custody, and the provision of a less restrictive state residential program for Mr. Seth, has been repeatedly approved by defendants’ own retained expert and public health professionals, as well as by Mr. Seth’s expert. Disability service providers are prepared to implement the D.C. placement if permitted to do so. Nevertheless, defendants refuse to accept responsibility for the “custody, care and treatment” of Mr. Seth. As the district court summarized, “[t]he defendants do not dispute that they are public entities that

7 As further discussed infra in Section II, the integral nature of this concept – that the treatment of people with disabilities is fraught with fears and stereotypes – is explicitly acknowledged in Sch. Bd. of Nassau Cnty v. Arline, 480 U.S. 273 (1987), and in subsequent statutory elaborations.

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denied Seth the benefits of or prohibited Seth from participating in their services.” Memorandum Opinion, No. 1:18-cv-01034, ECF 28, at 21 (D.D.C. Sept. 28, 2019). Defendants offered no reason for their change of position regarding Mr. Seth’s transfer and placement until they took the position in litigation that Mr. Seth was not qualified.
The refusal to provide Mr. Seth a D.C. placement follows the appointment in September 2016 of defendant Andrew Reese as the new director of the Department on Disability Services, replacing Laura Nuss. Instead of petitioning for civil commitment after Mr. Seth was found permanently incompetent, as promised under Director Nuss’s leadership, defendant Reese ordered a new risk assessment of Mr. Seth by Matthew Mason, Ph.D.8 In his report issued on February 24, 2017, Dr. Mason concluded that Mr. Seth “can be safely and successfully supported … in a highly structured closely supervised” program that would “provide for community safety.” Others with expertise agreed.9 Defendant Reese apparently disregarded or disapproved of the assessment he had ordered; all meetings about Mr. Seth’s transfer to a D.C. residential program were thereafter canceled. Mr.

8 Dr. Mason is a licensed psychologist and certified behavioral analyst, and an expert in individuals with developmental and intellectual disabilities, including individuals with intellectual disability who present sexual behavior problems. His assessment of Mr. Seth included an analysis of various risk assessment instruments, including those designed to assess the risk of sexual violence.
9 As further discussed infra in Section I.

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Seth further alleges that others similarly situated with different disabilities—civilly committed individuals with psychiatric disabilities—are provided state placements through residential services and supports in D.C.10
Given the disconnect between the risk assessment by Dr. Mason and defendants’ position, the availability of the state placement, and the chain of events alleged, the Complaint states plausible claims of disability discrimination, including a plausible violation of the integration mandate, under the standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002). The district court erred in finding that Mr. Seth failed to state a cause of action.
ARGUMENT I. THE INTEGRATION MANDATE OF THE ADA AND THE
REHABILITATION ACT APPLIES HERE. In adopting the ADA, Congress found that “historically, society has tended to isolate and segregate individuals with disabilities,” and that “discrimination against individuals with disabilities persists in such critical areas as … institutionalization, … and access to public services[.]” 42 U.S.C. § 12101(a)(2), (3). Congress further found that “individuals with disabilities continually

10 Complaint, ECF 1 at ¶¶ 14, 95, 132; Proposed Amended Complaint, ECF 29-1 at ¶¶ 5, 22, 23, 113, 115, 116, 118, 127-130, 131(c), (d), 164

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encounter various forms of discrimination, including … segregation ….” 42 U.S.C. § 12101(a)(5). The U.S. Department of Justice (“DOJ”) regulations implementing Title II further require public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).
In Olmstead v. L.C. ex rel. Zimring, the Supreme Court held that the antidiscrimination provisions of the ADA provide individuals with mental disabilities a qualified right to live in the community rather than in an institution. Olmstead, 527 U.S. at 587. Community placement is in order when it is appropriate, the person does not oppose transfer to the community, and “when the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id. Following Olmstead, DOJ adopted a regulation explicitly applying the integration mandate to incarcerated and detained individuals. 28 C.F.R. § 35.152(b)(2) (requiring inmates and detainees to be “housed in the most integrated setting appropriate to the needs of the individuals.”). Courts routinely apply the principles of Olmstead to claims by individuals with disabilities experiencing unnecessary segregation in prison.11

11 See Dunn v. Dunn, 318 F.R.D. 652, 670 (M.D. Ala. 2016) (holding disabled prisoners separately from other prisoners “would be inconsistent with the ADA’s integration mandate”); McClendon v. City of Albuquerque, No. 95 CV 24 JAP/KBM, 2016 WL 9818311, at *15 (D.N.M. Nov. 9, 2016) (“Defendants may comply with the ADA by developing community-based programs for subclass

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Courts have also repeatedly recognized the application of the integration
mandate to the placement and treatment of civilly committed individuals in
detention.12 For example, in Van Orden v. Schaefer, the district court found that
civilly committed residents detained in the state’s Sexual Offender Rehabilitation
and Treatment Services (“SORTS”) facilities stated claims under integration
mandate of the ADA:
Plaintiffs allege that under the ADA, they have the right to live integrated lives, to not be segregated, to be in the custody of the least restrictive alternative for commitment, and to be treated equally to civilly committed residents of other Department programs with respect to opportunities for release and resources expended for care and treatment. Plaintiffs allege that Defendants violated these rights under the ADA by unjustifiably institutionalizing even those Plaintiffs whom Defendants conceded presented “no apparent risk”…, and by failing to provide Plaintiffs with the same access to funding, treatment, and opportunities for release provided to other Department residents committed for non-sex-related mental disabilities. …
The Court finds that Plaintiffs’ allegations that they are being unjustifiably institutionalized even when they present “no apparent risk,” without an effective working plan for placing them in less restrictive settings, and that they are not afforded the same access to treatment and opportunities for release as other civilly committed residents, state a plausible claim for disability discrimination under the ADA. …

members who would benefit from them. …to be ‘effective,’ those programs must comply with the ADA’s integration mandate.”).
12 Mr. Seth has been civilly committed pursuant to 18 U.S.C. § 4246. As discussed in footnote 2, Mr. Seth’s expert found that he does not have paraphilia. Mr. Seth has not been civilly committed under any program targeted specifically towards sex offenders.

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Whether Plaintiffs’ requests for alterations in funding, treatment, and opportunities for release or transfer to less restrictive settings constitute “reasonable accommodations” to avoid discrimination or are, alternatively, “fundamental alterations” of the state's services and programs are fact-intensive issues that require further development of the record. Van Orden v. Schaefer, No. 4:09CV00971 AGF, 2014 WL 5320232, at *6-7 (E.D.
Mo. Oct. 17, 2014) (internal citation omitted). Although, Mr. Seth is incarcerated
by an entity other than defendants, the federal BOP, as the district court held Mr.
Seth remains a resident of D.C.13 He is therefore qualified to receive a state
residential program and disability supports in D.C. – with the cooperation and
participation of D.C. officials. It is not unusual for people with significant
disabilities to be participants in, or qualified for, programs or services that rely
upon state and federal coordination.14 That Mr. Seth is in federal custody does not
lessen defendants’ responsibilities under the ADA. Holding otherwise would
undermine both the federal and state laws’ preference for state custody and
services and the ADA and Rehabilitation Act’s obligation to serve qualified

13 Mr. Seth is in federal custody because he was charged in federal court, which placed him under the scheme outlined the IDRA, at 18 U.S.C. § 4246. The BOP does not have the facilities or staff to offer a less restrictive state placement. The responsibility for state programs is allocated to the states.
14 In addition to the IDRA, other examples include services offered pursuant to the Individuals with Disabilities Education Act (IDEA), Medicaid, the Social Security Administration, and state vocational rehabilitation services programs managed by the federal Rehabilitation Services Administration.

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individuals with disabilities in the most integrated setting appropriate to their
needs.
Similarly, in Ireland v. Anderson, individuals who were civilly committed
without convictions for sexual offenses brought a case alleging that aspects of the
civil commitment system, including the state’s “failure to provide adequate
treatment in the least restrictive environment…” . Ireland v. Anderson, No. 3:13-
CV-3, 2014 WL 3732014, at *3 (D.N.D. July 25, 2014). The district court found
that the plaintiffs stated a claim under the ADA:
[P]laintiffs’ proposed second amended complaint contains numerous facts suggesting they were denied a public entity’s programs and services or were otherwise discriminated against because they are civilly committed as sexually dangerous individuals. … Plaintiffs allege that…[a]fter commitment they have “fewer services, facilities, and privileges” than inmates and more restrictions than other civilly committed individuals. Plaintiffs have pled enough facts to state a plausible claim under Title II of the ADA. Id. at *10 (citing, inter alia, allegations that sexually dangerous individuals’
treatment, services and activities are different from other civilly committed
individuals, including as to the “denial of … appropriate placements”).
In Kriz v. 12th Judicial Dist. Bd. of Mental Health of Box Butte Cty., the
court considered the claim of a civilly committed individual who alleged that he
was qualified to live in “intermediate or residential outpatient treatment” rather
than in an institution. Kriz v. 12th Judicial Dist. Bd. of Mental Health of Box Butte

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Cty., No. 4:05CV3254, 2008 WL 2568270, at *1 (D. Neb. June 25, 2008). Again,
the court found that the plaintiff stated a claim:
Unjustified institutional isolation of persons with disabilities is a form of discrimination that violates Title II of the ADA. Similarly, institutionalization without individual, reasoned professional assessment is discrimination that violates Section 504 of the Rehabilitation Act if it is supported by federal funds. … Plaintiff [ ] alleges that he has been discriminated against because of his disability. Liberally construed and taken as true, his allegations state claims under the ADA and the Rehabilitation Act. Id. at **4-5 (internal citations omitted).
Mr. Seth seeks the same opportunity as these other plaintiffs—to have the
chance to present his claims in federal court. But defendants argued, and the
district court agreed, that Mr. Seth failed to state a claim under Olmstead because
Mr. Seth “has failed to offer sufficient indications that the defendants believe
‘community placement is appropriate’ or that ‘the placement can be reasonably
accommodated.’” ECF 28 at 29-30.15 The district court erred in so ruling despite
well-pleaded factual allegations that must be accepted as true at this stage of the
litigation. The Complaint and proposed Amended Complaint allege that numerous
disability professionals – including several affiliated with defendants – consider a

15 See also ECF 28 at 30 (“Although the defendants may, at one time, have believed that community-based services would be an appropriate alternative for Seth, their decision not to move forward with accepting responsibility for his custody, care, and treatment indicates that they no longer find community-based treatment appropriate.”).

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more integrated supervised placement to be appropriate, safe, and feasible. These include: Matthew Mason, Ph.D.;16 Stephen Hart, Ph.D.;17 Laura Nuss, director of the D.C. Department on Disability Services until April 2016 (and currently the Deputy Commissioner of the Virginia Department of Behavioral Health & Developmental Services);18 additional DDS professionals, including Deputy Director Holly Morrison, Program Manager Musu Fofana, and caseworkers;19 the staff of Benchmark Human Services, a private disability services provider;20 the staff of Wholistic Services, Inc., a private disability services provider;21 Marisa C. Brown, M.S.N., R.N., retired director, The DDA Health Initiative at Georgetown University;22 Robert L. Denney, Psy.D, retired psychologist for the federal BOP;23 and Nancy Thaler, retired Deputy Secretary of the Office of Developmental Program for Pennsylvania.24

16 ECF 1 at ¶¶ 52-55 (citing February 12, 2016 service plan report of Mason), ¶¶ 58-65 (citing February 24, 2017 risk assessment evaluation of Mason). 17 Id. at ¶¶ 66-69 (citing June 18, 2017 risk assessment report of Hart). 18 Id. at ¶¶ 43, 48. 19 Id. at ¶¶ 46-50. 20 Id. at ¶¶ 49-52. 21 Id. at ¶¶ 70-74. 22 ECF 29-6 (Declaration). 23 ECF 29-4 (Declaration). 24 ECF 29-3 (Declaration).

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The ADA does not require a formal recommendation for community placement by the state’s own professionals. Rather, it allows for evidence regarding the appropriateness of a less restrictive placement to come from a “variety of sources.” Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 259 (E.D.N.Y. 2009), vacated on other grounds sub nom. Disability Advocates, Inc. v. New York Coal. for Quality Assisted Living, Inc., 675 F.3d 149 (2d Cir. 2012).25 Regardless, the question of a whether treatment professionals have determined that a less restrictive placement is appropriate is a question of fact. See, e.g., Pennsylvania Prot. & Advocacy, Inc. v. Pennsylvania Dep't of Pub.

25 While an Olmstead plaintiff must present evidence to show that a less restrictive placement is appropriate, the plaintiff is not limited solely to evidence showing a formal determination by a “treatment provider”. See Joseph S. v. Hogan, 561 F.Supp.2d 280, 291 (E.D.N.Y.2008) (finding that no eligibility determination from the “state's mental health professionals” is required, and noting that “it is not clear whether Olmstead even requires a specific determination by any medical professional that an individual with mental illness may receive services in a less restrictive setting, or whether that just happened to be what occurred in Olmstead”); Frederick L. v. Department of Public Welfare, 157 F. Supp.2d 509 (E.D. Pa. 2001) (declining to read Olmstead as requiring “a formal ‘recommendation’ for community placement,” and noting that “Olmstead does not allow States to avoid the integration mandate by failing to require professionals to make recommendations regarding the service needs of institutionalized individuals with mental disabilities”); see also Long v. Benson, No. 08-cv-26 (RH/WCS), 2008 WL 4571904, at *2 (N.D. Fla. Oct. 14, 2008) (noting that the State “cannot deny the right [to an integrated setting] simply by refusing to acknowledge that the individual could receive appropriate care in the community. Otherwise the right would, or at least could, become wholly illusory.”).

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Welfare, 402 F.3d 374, 385 (3d Cir. 2005) (Whether a community placement is appropriate is ‘a factual issue subject to substantial evidenti[ary] review’…) (internal citations omitted.) And whether a placement can be reasonably accommodated is a question of fact for which defendants bear the burden. Brown v. D.C., 928 F.3d 1070, 1077 (D.C. Cir. 2019) (“[T]he State bears the burden of proving the unreasonableness of a requested accommodation once the individual satisfies the first two requirements [in Olmstead].”). A defendant’s refusal through inaction to provide disability services in the most integrated setting is not synonymous with a determination by treatment professionals that such services and supports are not appropriate, or with a finding of fact that an appropriate residential setting cannot be reasonably accommodated. This conflation would end virtually every Olmstead case at the motion-to-dismiss stage. Here, Mr. Seth has alleged in sufficient detail that treatment professionals support his transfer to a supervised state disability program, and that the proposed placement could be reasonably, feasibly, and safely implemented.
While the district court noted that the federal commitment order found that “release from institutional care would ‘create a substantial risk of bodily injury to another person or serious damage to the property of another’” (ECF 28 at 30), the outcome of the federal civil commitment proceeding is not dispositive here. The Eastern District of North Carolina only assessed whether Mr. Seth was eligible to

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be released outright, that is, unconditionally and without supervision.26 The state residential program proposed for Mr. Seth at issue here, by contrast, is “a highly structured and supervised [minimum of one-to-one, round-the-clock supervision] community-based residential program.” ECF 1 at 17.27
Thus, the situation here is comparable to that in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), Mr. Seth’s two statuses—meeting the standards of commitment under 18 U.S.C. § 4246, and being qualified for a less restrictive, supervised state placement—“comfortably exist side by side.” Id. at 803. One status (commitment under 18 U.S.C. § 4246) considers Mr. Seth without the supervision and authority of a civil commitment under D.C. statute, and the other (release to a “state placement”) considers Mr. Seth with such supervision and

26 See United States v. Seth, No. 5:17-HC-2090-BR, Order, ECF 32 (E.D.N.C. May 25, 2018) (finding “that the respondent is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to the property of another.”) (emphasis added); Transcript, ECF 34 (E.D.N.C. May 24, 2018) (testimony of Dr. Kristina Lloyd: “[O]ne of the most concerning parts of Mr. Seth’s potential release to the community is his lack of release plan. … [A]ll of the [risk assessment] measures that were used indicate that Mr. Seth poses a significant risk of harm if released to the community unconditionally. … [W]e did send a letter requesting placement at the state level for Mr. Seth, but ultimately they have not provided us with the location for him.”).
27 See also ECF 1 at 17-18 (“Dr. Mason’s proposal also recommended that Markelle be provided with other services available in the community, including, in particular, sexuality education tailored to the needs of a person with his disability[.]”).

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authority. As a matter of law and logic, one does not determine the other. The district court below erred in relying on the federal commitment order to reach a separate and distinguishable assessment: whether Mr. Seth can reasonably, safely and feasibly be transferred to a supervised state placement. Mr. Seth sufficiently alleged that he can, and thus has stated a claim federal disability laws. II. UNDER THE ADA AND REHABILITATION ACT, COVERED
ENTITIES MUST CONDUCT AN INDIVIDUALIZED ASSESSMENT BASED ON OBJECTIVE EVIDENCE, WITH CONSIDERATION OF MITIGATING SUPPORTS AND ACCOMMODATIONS. A central and longstanding principle of disability rights jurisprudence is that covered entities must rely upon objective, empirical evidence in deciding to exclude a disabled individual. In Sch. Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273 (1987), the Supreme Court considered whether Gene Arline was qualified to be an elementary school teacher, despite her history of tuberculosis. The Court ruled that, to avoid disability discrimination, this determination required an “individualized inquiry” with “appropriate findings of fact” and “based on reasonable medical judgments given the state of medical knowledge, about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.” Arline, 480 U.S. at 287-88.

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Congress codified this direct threat analysis into both the Rehabilitation Act,
29 U.S.C. § 705(20)(D), and the ADA, 42 U.S.C. § 12182(b)(3).28 Regulations
adopted by the DOJ implementing Title II of the ADA set out the direct threat
standard from Arline:
In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. 28 C.F.R. § 35.139.
The question of whether and how individuals with disabilities who are
perceived to be a threat can live safely in a community often comes up in the
zoning context. In this context, as well, challenges brought to the exclusion by
people with disabilities require an objective, fact-intensive analysis that includes
the effects upon risk of reasonable modifications. In Bay Area Addiction

28 See also House Comm. On Education and Labor, H.R. Rep. No. 485(II), 101st Cong., 2d Sess., 1990 WL 10079988 (1990), at 34 (“The standard to be used in determining whether there is a direct threat is whether the person poses a significant risk to the safety of others or to property, . . . and that no reasonable accommodation is available that can remove the risk. … Making such a determination requires a fact-specific individualized inquiry resulting in a ‘wellinformed judgment grounded in a careful and open-minded weighing of the risks and alternatives.’”); Senate Comm. On Labor and Human Resources, S. Rep. No. 116, 101st Cong., 1st Sess., 1989 WL 1176422 (1989), at 25 (same).

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Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725 (9th Cir. 1999), the
Ninth Circuit described the application of the Arline test to a disputed zoning
determination that excluded a methadone clinic:
The court must first determine whether an individual poses a significant risk. If he does, the court must then ask whether there is a reasonable modification that would counteract the risk. If there is, the individual is qualified for purposes of § 12131. … Without speculating on the kind and quality of evidence needed to establish a significant risk, we note that in assessing the evidence, courts must be mindful of the ADA’s express goal of eliminating discrimination against people with disabilities. Id. at 736-37.
In reviewing the exclusion of disabled people, courts must consider all of the
evidence and opinions of relevant experts, and should not simply defer to the
administrative decisions of local officials, particularly where such decisions are
contrary to the recommendations of disability professionals. In Innovative Health
Sys., Inc. v. City of White Plains, the court found that “[a]lthough the City certainly
may consider legitimate safety concerns in its zoning decisions, it may not base its
decisions on the perceived harm from such stereotypes and generalized fears.”
Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 49 (2d Cir. 1997).
In Innovative Health, both the district court and appellate court noted that while the
zoning board denied any discriminatory intent, it disregarded the guidance of the
Commissioner of Building, and that this was among the factors indicating

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disability discrimination. Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. 222, 243 (S.D.N.Y. 1996); Innovative Health Sys., 117 F.3d at 42 (“Absent in their discussion, however, was any reference to the zoning ordinance or the Commissioner’s interpretation.”).
Here, Mr. Seth similarly seeks to show that local officials are excluding him from the community on the basis of his disability, contrary to the guidance of subject matter experts, including Dr. Mason who was retained by the defendants, and without due consideration of the mitigating impact on risk of the supervision, supports, and other characteristics of the proposed state placement. By dismissing the Complaint on the pleadings, the district court disregarded the careful factual development and analysis required under disability rights jurisprudence. III. APPELLANTS HAVE SATISFIED THE REQUIREMENTS OF RULE
8(A) OF THE FEDERAL RULES OF CIVIL PROCEDURE Mr. Seth’s Complaint and proposed Amended Complaint more than meet the requirements of Rule 8 of the Federal Rules of Civil Procedure and sufficiently state a claim under the ADA and Rehabilitation Act. In Swierkiewicz v. Sorema N. A., the Supreme Court overturned a dismissal on the pleadings based on a similar theory to that employed by the district court in this case – that “[Mr. Swierkiewicz] ha[d] not adequately alleged circumstances that support an inference of discrimination.” Swierkiewicz, 534 U.S. at 509; compare ECF 28 at 21 (“Seth has failed to sufficiently establish that the defendants engaged in any of these

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purported forms of discrimination ‘by reason of his disability.’”), 24 (“The plaintiff must [ ] allege some facts of discrimination that tend to show that the complainedof discrimination was based on, or based solely on, his disability.”). Mr. Swierkiewicz alleged that after six years as a chief underwriting officer, he was demoted by his employer, and that a less experienced younger French national was given his work and ultimately promoted to his prior position. Id. at 508. After his demotion, Mr. Swierkiewicz contended that he was excluded and isolated by his employer and later terminated after he sent a letter outlining his grievances and requested a severance package and alleged claims of national origin and age discrimination. Id. at 509.
The Supreme Court found that Mr. Swierkiewicz’s “complaint easily satisfies the requirements of Rule 8(a) because it gives respondent fair notice of the basis for petitioner’s claims,” as it set out his legal claims and “detailed the events leading to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination.” Id. at 514; see also Bell Atl. Corp., 550 U.S. at 570 (quoting from same passage and affirming that Swierkiewicz remains good law). Therefore, Mr. Swierkiewicz was not required to plead facts establishing a prima facie case of discrimination. Moreover, the Court reasoned, the precise requirements of a prima facie case can vary depending on the context noting that “[b]efore discovery has

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unearthed relevant facts and evidence, it may be difficult to define the precise formulation of the required prima facie case in a particular case. Given that the prima facie case operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading standard for discrimination cases.” Swierkiewicz, 534 U.S. at 512.
Here, as in Swierkiewicz, Mr. Seth’s Complaint gives defendants fair notice of the basis for his claims by detailing the events with relevant dates leading to defendants’ refusal to provide a state placement and Mr. Seth’s exclusion defendants’ programs and services. As in Swierkiewicz, the precise formulation of Mr. Seth’s affirmative case under discrimination and/or integration theories may depend upon the discovery of relevant facts and evidence. Nevertheless, the Complaint alleges why the proposed state placement was reasonable, safe, and feasible – and supported by treating and consulting professionals – under an Olmstead analysis. The Complaint and proposed Amended Complaint allege that Defendant Reese disregarded the determination of Dr. Mason, the very expert it hired to assess the appropriateness and safety of alternative placements. See Innovative Health Sys., 931 F. Supp. at 243 (noting that “defendants inexplicably failed to defer to the Commissioner of Building,” and that this was among the “constellation of factors leads to the conclusion that the defendants permitted illegal prejudices to influence their decision-making process, which is all that

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plaintiffs are required to show.”). The Complaint and proposed Amended Complaint further allege that defendants regularly provide dozens of state placements to similarly situated individuals with a different disability (mental illness), but virtually none to people with Mr. Seth’s disability (intellectual disability). Therefore both the Complaint and proposed Amended Complaint are sufficient under Rule 8.
CONCLUSION For the reasons set forth above, amici curiae respectfully request that this Court reverse the judgment of the district court.

DATED: December 27, 2019

Respectfully submitted,
ROSEN BIEN GALVAN & GRUNFELD LLP Sanford Jay Rosen Gay Crosthwait Grunfeld Kara J. Janssen
CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER
Amy Robertson
By: /s/ Sanford Jay Rosen Sanford Jay Rosen
Attorneys for Amici Curiae

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CERTIFICATE REGARDING LENGTH OF BRIEF AND TYPEFACE The undersigned counsel provides the following certifications required by
the Federal Rules of Appellate Procedure and/or the D.C. Circuit Rules: 1. As required by Rule 32(g) of the Federal Rules of Appellate
Procedure, I certify that this brief complies with the type-volume limitation of Rules 29(a)(5) and 32(a)(7)(B)(i) of the Federal Rules of Appellate Procedure because, excluding the parts of the document exempted by Fed. R. App. P. 32(f), this brief contains 6,382 words as calculated by the Microsoft Word 2016 software used to prepare the brief.
2. I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Times New Roman 14 point type.

By: /s/ Sanford Jay Rosen Sanford Jay Rosen
Attorneys for Amici Curiae

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CERTIFICATE REGARDING DIGITAL SUBMISSION I hereby certify that, with respect to the foregoing: 1. The hard copies to be submitted to the Court are exact copies of the version submitted electronically; and 2. The digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program.

DATED: December 27, 2019

ROSEN BIEN GALVAN & GRUNFELD LLP
By: /s/ Sanford Jay Rosen Sanford Jay Rosen
Attorneys for Amici Curiae

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CERTIFICATE OF SERVICE I hereby certify that, on December 27, 2019, this Corrected Brief of Amici Curiae in Support of the Plaintiffs-Appellant and Reversal was served through the Court’s ECF system on counsel for all parties.

By: /s/ Sanford Jay Rosen Sanford Jay Rosen
Attorneys for Amici Curiae

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