U.S. District Court District of Montana (Butte) CIVIL DOCKET FOR CASE #: 2:15-cv-00022-DWM

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Disability Rights Montana v. Batista et al Assigned to: Judge Donald W. Molloy Case in other court: 9th Circuit, 15-35770 Cause: 42:1983 Civil Rights Act

Date Filed: 05/15/2015 Jury Demand: None Nature of Suit: 555 Prisoner Petitions (Prison Condition) Jurisdiction: Federal Question

Plaintiff
Disability Rights Montana Inc., on behalf of all prisoners with serious mental illness confined to the Montana State Prison

represented by Adrian Ann Miller SULLIVAN MILLER LAW PLLC 3860 Avenue B, Suite C East Billings, MT 59102 406-403-7066 Fax: 406-294-5702 Email: adrian.miller@sullivanmiller.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey A. Simmons FOLEY & LARDNER LLP 150 East Gilman Street, Suite 5000 Madison, WI 53703-1482 608-257-5035 Fax: 608-258-4258 Email: jsimmons@foley.com TERMINATED: 03/13/2020 LEAD ATTORNEY PRO HAC VICE

Kyle A. Gray HOLLAND & HART PO Box 639 Billings, MT 59103-0639 406-252-2166 Fax: 252-1669 Email: kgray@hollandhart.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew D. Lee FOLEY & LARDNER LLP MADISON 150 East Gilman Street, Suite 5000 Madison, WI 53703-1482 608-258-4203 Fax: 608-258-4258 Email: mdlee@foley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alexander H. Rate AMERICAN CIVIL LIBERTIES UNION OF MONTANA P.O. Box 1968 Missoula, MT 59806 406-204-0287 Email: ratea@aclumontana.org ATTORNEY TO BE NOTICED
Anna C. Conley MISSOULA COUNTY ATTORNEY 200 W Broadway, County Courthouse Missoula, MT 59802 406-258-4737 Email: aconley@missoulacounty.us TERMINATED: 03/01/2017
James Park Taylor ACLU OF MONTANA 241 E. Alder PO Box 9138 Missoula, MT 59807 406-549-6159 Fax: 406-549-5177 Email: jpt42@hotmail.com TERMINATED: 08/14/2019
Jon E. Ellingson Attoney At Law 141 North Ave. East Missoula, MT 59801 406-546-9084

Email: jonelling@gmail.com TERMINATED: 08/14/2019

V.
Defendant
Reginald Michael in his official capacity as Director of the Montana Department of Corrections

represented by William L. Crowley BOONE KARLBERG, P.C. 201 West Main Street, Suite 300 PO Box 9199 Missoula, MT 59807-9199 406-543-6646 Fax: 549-6804 Email: bcrowley@boonekarlberg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen E. Ambrose MONTANA DEPARTMENT OF CORRECTIONS P. O. Box 201301 Helena, MT 59620-1301 406-444-4152 Fax: 444-1494 Email: cambrose@mt.gov ATTORNEY TO BE NOTICED
Mary Cile Glover Rogers BOONE KARLBERG, P.C. 201 West Main Street, Suite 300 PO Box 9199 Missoula, MT 59807-9199 406-454-6646 Fax: 406-549-6804 Email: mgloverrogers@boonekarlberg.com TERMINATED: 05/08/2017
Natasha Prinzing Jones BOONE KARLBERG, P.C. 201 West Main Street, Suite 300 PO Box 9199 Missoula, MT 59807-9199 406-543-6646

Defendant
Lynn Guyer in his official capacity as warden of Montana State Prison

Fax: 549-6804 Email: npjones@boonekarlberg.com ATTORNEY TO BE NOTICED
Thomas J. Leonard BOONE KARLBERG, P.C. 201 West Main Street, Suite 300 PO Box 9199 Missoula, MT 59807-9199 406-543-6646 Fax: 549-6804 Email: tleonard@boonekarlberg.com ATTORNEY TO BE NOTICED
represented by William L. Crowley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen E. Ambrose (See above for address) ATTORNEY TO BE NOTICED
Mary Cile Glover Rogers (See above for address) TERMINATED: 05/08/2017
Natasha Prinzing Jones (See above for address) ATTORNEY TO BE NOTICED
Thomas J. Leonard (See above for address) ATTORNEY TO BE NOTICED

Date Filed

#

05/15/2015 1

Docket Text
COMPLAINT against Mike Batista, Leroy Kirkegard, filed by Disability Rights Montana. (Attachments: # 1 Civil Cover Sheet) (ELL, ) (Entered: 05/15/2015)

05/15/2015

2 Summons Issued as to Mike Batista, Leroy Kirkegard. Originals mailed to cnsl for service. (ELL, ) (Entered: 05/15/2015)

05/15/2015

Filing fee: $ 400.00, receipt number 0977-1588328 (ELL, ) (Entered: 05/15/2015)

05/15/2015

3 Corporate Disclosure Statement by Disability Rights Montana. (ELL, ) (Entered: 05/15/2015)

05/18/2015

4 JOINT DISCOVERY PLAN by Disability Rights Montana. (Ellingson, Jon) (Entered: 05/18/2015)

05/20/2015

5 Order Setting: motions to dismiss complaint filed by 6/5/2015, response filed by 7/3/2015, and reply filed by 7/24/15. All other pretrial deadlines will be set by further order of the court. Signed by Judge Sam E Haddon on 5/20/2015. (DED, ) (Entered: 05/20/2015)

05/20/2015

6 NOTICE of Appearance by William L. Crowley on behalf of Mike Batista, Leroy Kirkegard (Crowley, William) (Entered: 05/20/2015)

05/20/2015 7

NOTICE of Appearance by Thomas J. Leonard on behalf of Mike Batista, Leroy Kirkegard (Leonard, Thomas) (Entered: 05/20/2015)

05/20/2015

8 NOTICE of Appearance by Mary Cile Glover Rogers on behalf of Mike Batista, Leroy Kirkegard (Glover Rogers, Mary) (Entered: 05/20/2015)

06/01/2015

9 NOTICE of Appearance by Colleen E. Ambrose on behalf of All Defendants (Ambrose, Colleen) (Entered: 06/01/2015)

06/05/2015 10

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Mary Cile Glover Rogers appearing for Defendants Mike Batista, Leroy Kirkegard (Glover Rogers, Mary) Modified on 8/19/2015 Martin-Lake Asso to report for hearing (DED, ). (Entered: 06/05/2015)

06/05/2015

11 Brief/Memorandum in Support re 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Mike Batista, Leroy Kirkegard. (Glover Rogers, Mary) (Entered: 06/05/2015)

06/23/2015

12 MOTION Jeffrey A. Simmons to Appear Pro Hac Vice ( Filing fee $ 250 receipt number MTX900008510.) Jon E. Ellingson appearing for Plaintiff Disability Rights Montana (Attachments: # 1 Affidavit, # 2 Text of Proposed Order) (Ellingson, Jon) (Entered: 06/23/2015)

06/23/2015

13 MOTION Mathew D. Lee to Appear Pro Hac Vice ( Filing fee $ 250 receipt number MTX900008510.) Jon E. Ellingson appearing

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

for Plaintiff Disability Rights Montana (Attachments: # 1 Affidavit, # 2 Text of Proposed Order) (Ellingson, Jon) (Entered: 06/23/2015)
14 ORDER granting 12 Motion to Appear Pro Hac Vice for Attorney Jeffrey A. Simmons for Disability Rights Montana. Signed by Judge Sam E Haddon on 6/24/2015. (ELL, ) (Entered: 06/24/2015)
15 ORDER granting 13 Motion to Appear Pro Hac Vice for atty Mathew D. Lee. Signed by Judge Sam E Haddon on 6/24/2015. (ELL, ) Modified on 6/24/2015 Cpy of Afdt sent to TO in GF for input into CM/ECF (ELL, ). (Entered: 06/24/2015)
16 Letter to cnsl Lee re ECF Registration with copy of Order Granting PHV. (ELL, ) (Entered: 06/24/2015)
17 RESPONSE to Motion re 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 07/02/2015)
18 AFFIDAVIT in Opposition re 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Declaration of Jeffrey A. Simmons filed by Disability Rights Montana. (Attachments: # 1 Exhibit Demand Letter) (Simmons, Jeffrey) (Entered: 07/02/2015)
19 NOTICE of Acknowledgment of Pro Hac Vice Order by Disability Rights Montana (Simmons, Jeffrey) (Entered: 07/16/2015)
20 NOTICE of Acknowledgment of Pro Hac Vice Order by Disability Rights Montana (Lee, Matthew) (Entered: 07/16/2015)
21 REPLY to Response to Motion re 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Mike Batista, Leroy Kirkegard. (Glover Rogers, Mary) (Entered: 07/24/2015)
22 ORDER Setting Hearing on Motion 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Contract Court Reporter is Needed, Motion Hearing set for 9/3/2015 at 10:00 AM in Helena, MT before Judge Sam E Haddon. Signed by Judge Sam E Haddon on 8/19/2015. (ELL, ) (Entered: 08/19/2015)
23 Emergency MOTION for Leave to Appear by telephone at hearing on motion to dismiss Jeffrey A. Simmons appearing for Plaintiff

09/02/2015 09/03/2015 09/03/2015
09/03/2015 09/04/2015 09/08/2015

Disability Rights Montana (Simmons, Jeffrey) (Entered: 09/02/2015)
24 AFFIDAVIT in Support re 23 Emergency MOTION for Leave to Appear by telephone at hearing on motion to dismiss filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 09/02/2015)
25 ORDER granting in part 23 Motion for Leave to Appear Telephonic at 9/3/2015 hearing Signed by Judge Sam E Haddon on 9/3/2015. Phone call placed to Mr. Simmons advising of Order. (DED, ) (Entered: 09/03/2015)
26 MINUTE ENTRYMinute Entry for proceedings held before Judge Sam E Haddon: Motion Hearing held on 9/3/2015 re 10
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Mike Batista, Leroy Kirkegard. Mr. Ellingson present in courtroom and Mr. Simmons present telephonically on behalf of Plainitff. Paulette Kohman present for Defendants in CV14-25 and Thomas Leonard present for Defendants in CV-14-25 and CV-15-22. Court will approach motions separately and hear arguments in CV-14-25 and then CV-15-22. Court hears from Ms. Kohman, Mr. Ellingson responds, and Ms. Kohman replies; Mr. Ellingson presents a sur-reply. Court finds facts pleaded are sufficient to allow matter to proceed, and denies Defendants 12(b)(6) Motion to be Dismiss. Court hears argument regarding CV-15-22 matter. Mr. Leonard heard on behalf of Defendants, Mr. Ellingson responds, and Mr. Leonard replies. Court presents its findings and grants Defendants Rule 12(b)(6) Motion to Dismiss Hearing commenced at 10:39 and concluded at 11:31. (Court Reporter Julie Lake.) (Law Clerk: Carolyn Sime), (Hearing held in Helena) (DED, ) (Entered: 09/03/2015)
27 ORDER granting 10 Motion to Dismiss for Failure to State a Claim. This case is DISMISSED. Signed by Judge Sam E Haddon on 9/3/2015. (ELL, ) (Entered: 09/03/2015)
28 TRANSCRIPT DESIGNATION ORDER FORM by Disability Rights Montana for proceedings held on 09/03/2015 before Judge Sam E. Haddon. Court reporter Julie Lake. Transcript due by 9/4/2015. (Simmons, Jeffrey) (Entered: 09/04/2015)
29 TRANSCRIPT DESIGNATION ORDER FORM by Mike Batista, Leroy Kirkegard for proceedings held on 09/03/2015 before Judge

09/08/2015
10/01/2015 10/02/2015 11/11/2015 11/16/2015 11/17/2015

Hon. Sam E. Haddon. Court reporter Julie Lake. Transcript due by 10/16/2015. (Leonard, Thomas) (Entered: 09/08/2015)
30 TRANSCRIPT of Motion to Dismiss held on September 3, 2015, before Judge Haddon. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER, the Clerks Office or the court reporter NOTICE: A NOTICE OF INTENT TO REQUEST REDACTION MUST BE FILED WITHIN 14 DAYS OF THIS FILING. Contact Court Reporter Julie Lake, 406-5436477. Transcript Redaction Procedures . Redaction Request due 9/29/2015. Redacted Transcript Deadline set for 10/9/2015. Release of Transcript Restriction set for 12/7/2015. (ELL, ) (Entered: 09/08/2015)
31 NOTICE OF APPEAL as to 27 Order on Motion to Dismiss for Failure to State a Claim by Disability Rights Montana. Filing fee $ 505.00 - Rcpt no. MTX9-8854. (Attachments: # 1 Exhibit Representation Statement) (Simmons, Jeffrey) Modified on 10/1/2015 to add receipt number. Regenerated NEF (APP, ). (Entered: 10/01/2015)
32 USCA Case Number 15-35770 and Time Schedule Order for 31 Notice of Appeal, filed by Disability Rights Montana. (ELL, ) (Entered: 10/02/2015)
33 Unopposed MOTION to Include Portions of Record from Case No. 2:14-CV-25 in the Record on Appeal Jeffrey A. Simmons appearing for Plaintiff Disability Rights Montana (Attachments: # 1 Exhibit Proposed Order) (Simmons, Jeffrey) (Entered: 11/11/2015)
34 ORDER granting 33 Motion To Include Portions of the Record from Case No. 2:14-cv-25-SEH in the Record on Appeal. Signed by Judge Sam E Haddon on 11/16/2015. (ELL, ) (Entered: 11/16/2015)
35 NOTICE/Docket Sheet from CV-14-25-BU-SEH re 34 Order on Motion for Miscellaneous Relief. Pursuant to Court Order the following documents are included in the record from Disability Rights Montana, Inc, v Opper, et al CV-14-25-BU-SEH: (Attachments: # 1 Docket No 1 - Complaint, # 2 Docket No 16 Joint Answer, # 3 Docket No 17 - Motion to Dismiss, # 4 Docket No 18 - Brief/Memorandum in Support of Motion to Dismiss, # 5 Docket No 21 - Response to Motion to Dismiss, # 6 Docket No 33 - Order, # 7 Docket No 42 - Amended Complaint, # 8 Docket No 45 - Joint Answer, # 9 Docket No 46 - Motion to Dismiss, # 10 Docket No 53 - Order Setting Status Conference, # 11 Docket

05/08/2017 07/19/2019 08/12/2019 08/13/2019 08/14/2019 08/14/2019 09/10/2019 09/10/2019

No 58 - Order, # 12 Docket No 61 - Transcript, # 13 Docket No 66 Amended Complaint, # 14 Docket No 67 - Amended Complaint, # 15 Docket No 68 - Brief/Memorandum in Support re Amended Complaint, # 16 Docket No 70 - Order, # 17 Docket No 71 - Motion to Dismiss, # 18 Docket No 72 - Brief Memorandum In Support Re Motion To Dismiss, # 19 Response To Motion Re Motion To Dismiss, # 20 Docket No 78 - Reply to Response to Motion, # 21 Docket No 85 - Order, # 22 Docket No 89 - Motion, # 23 Docket No 90 - Brief Memorandum In Support Re Motion to Amend Correct, # 24 Docket No 93 - Order) For Docket No's 57, 84 and Minute Entry of 5/11/15 please see the Docket Sheet. (ELL, ) (Entered: 11/17/2015)
36 NOTICE of Withdrawal of Counsel: Mary Cile Glover Rogers withdrawing from the case, filed by Mike Batista, Leroy Kirkegard (Glover Rogers, Mary) (Entered: 05/08/2017)
37 OPINION of USCA as to 31 Notice of Appeal filed by Disability Rights Montana. REVERSED AND REMANDED. (NOS) (Entered: 07/19/2019)
38 MANDATE of USCA as to 31 Notice of Appeal. The judgment entered July 19, 2019, takes effect this date. (NOS) (Entered: 08/12/2019)
39 ORDER REASSIGNING CASE. Case reassigned to Judge Donald W. Molloy for all further proceedings. Signed by Judge Dana L. Christensen on 8/13/2019. (NOS) (Entered: 08/13/2019)
40 NOTICE of Substitution of Counsel by Disability Rights Montana (Rate, Alexander) (Entered: 08/14/2019)
41 NOTICE of Appearance by Natasha Prinzing Jones on behalf of Mike Batista, Leroy Kirkegard (Jones, Natasha) (Entered: 08/14/2019)
42 ANSWER to 1 Complaint (Second Amended) by Mike Batista, Leroy Kirkegard. (Leonard, Thomas) (Entered: 09/10/2019)
43 PRELIMINARY PRETRIAL CONFERENCE ORDER: Preliminary Pretrial Statement due by 10/9/2019. Joint Discovery Plan due by 10/9/2019. Statement of Stipulated Facts due by 10/9/2019. Pretrial Conference set for 10/16/2019 at 1:30 PM in the Russell Smith Courthouse, Missoula, MT before Judge Donald W. Molloy. Signed by Judge Donald W. Molloy on 9/10/2019. (dle) (Entered: 09/10/2019)

10/09/2019

44 JOINT DISCOVERY PLAN by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 10/09/2019)

10/09/2019

45 PRELIMINARY PRETRIAL STATEMENT by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 10/09/2019)

10/09/2019

46 PRELIMINARY PRETRIAL STATEMENT by Mike Batista, Leroy Kirkegard. (Leonard, Thomas) (Entered: 10/09/2019)

10/09/2019

47 STATEMENT OF STIPULATED FACTS by Mike Batista, Leroy Kirkegard. (Leonard, Thomas) (Entered: 10/09/2019)

10/16/2019

MINUTE ENTRY: Minute Entry for proceedings held before Judge Donald W. Molloy: Interim Pretrial Conference held on 10/16/2019. (Law Clerk: H. Garber), (Hearing held in Missoula) (dle) (Entered: 10/16/2019)

10/16/2019

48 SCHEDULING ORDER: Bench Trial set for 3/22/2021 at 9:00 AM in the Russell Smith Courthouse, Missoula, MT before Judge Donald W. Molloy. Final Pretrial Conference set for 3/22/2021 at 9:00 AM in the Russell Smith Courthouse, Missoula, MT before Judge Donald W. Molloy. Amended Pleadings due by 12/4/2019. Discovery due by 11/10/2020. Motions due by 12/8/2020. Proposed Pretrial Order due by 3/15/2021. Signed by Judge Donald W. Molloy on 10/16/2019. (dle) (Entered: 10/16/2019)

12/23/2019

49 AMENDED COMPLAINT against All Defendants, filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 12/23/2019)

12/27/2019

50 ORDER. IT IS ORDERED that on or before January 10, 2020, Disability Rights Montana shall SHOW CAUSE why the amended complaint should not be stricken. Signed by Judge Donald W. Molloy on 12/27/2019. (NOS) (Entered: 12/27/2019)

01/07/2020

51 RESPONSE TO ORDER TO SHOW CAUSE by Disability Rights Montana. (Attachments: # 1 Exhibit 1, Email Exchange, # 2 Exhibit 2, Redline of Amended Complaint) (Simmons, Jeffrey) (Entered: 01/07/2020)

01/08/2020 52

ORDER. IT IS ORDERED that Defendants Reginald Michael and Lynn Guyer shall file a response to the Amended Complaint pursuant to the Federal Rules of Civil Procedure. Signed by Judge Donald W. Molloy on 1/8/2020. (NOS) (Entered: 01/08/2020)

01/10/2020

53 ANSWER to 49 Amended Complaint by Lynn Guyer, Reginald Michael. (Leonard, Thomas) (Entered: 01/10/2020)

03/13/2020 06/02/2020
06/03/2020 09/02/2020 09/02/2020 09/02/2020 09/02/2020 09/08/2020

54 NOTICE of Withdrawal of Counsel: Jeffrey A. Simmons withdrawing from the case, filed by Disability Rights Montana (Simmons, Jeffrey) (Entered: 03/13/2020)
55 Joint MOTION to Stay Matthew D. Lee appearing for Plaintiff Disability Rights Montana (Attachments: # 1 Text of Proposed Order Proposed Order to Stay) (Lee, Matthew) (Entered: 06/02/2020)
56 ORDER denying 55 Motion to Stay. Signed by Judge Donald W. Molloy on 6/3/2020. (dle) (Entered: 06/03/2020)
57 Joint MOTION to Stay Matthew D. Lee appearing for Plaintiff Disability Rights Montana (Attachments: # 1 Text of Proposed Order Proposed Order) (Lee, Matthew) (Entered: 09/02/2020)
58 AFFIDAVIT/DECLARATION re 57 Joint MOTION to Stay Declaration of Kathryn A. Burns, M.D., M.P.H. by Disability Rights Montana. (Lee, Matthew) (Entered: 09/02/2020)
59 AFFIDAVIT/DECLARATION re 57 Joint MOTION to Stay Declaration of Thomas J. Leonard by Disability Rights Montana. (Lee, Matthew) (Entered: 09/02/2020)
60 AFFIDAVIT/DECLARATION re 57 Joint MOTION to Stay Declaration of Jim Salmonsen by Disability Rights Montana. (Lee, Matthew) (Entered: 09/02/2020)
61 ORDER re 48 Scheduling Order - RESETTING: Discovery due by 11/9/2021. Motions due by 12/7/2021. Proposed Pretrial Order due by 3/14/2022. Bench Trial RESET for 3/21/2022 at 9:00 AM in the Russell Smith Courthouse, Missoula, MT before Judge Donald W. Molloy. Final Pretrial Conference RESET for 3/21/2022 at 9:00 AM in the Russell Smith Courthouse, Missoula, MT before Judge Donald W. Molloy. 57 Joint MOTION to Stay DENIED as to request for stay. Signed by Judge Donald W. Molloy on 9/8/2020. (dle) (Entered: 09/08/2020)

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 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 15-35770 Nature of Suit: 3440 Other Civil Rights Disability Rights Montana, Inc v. Mike Batista, et al Appeal From: U.S. District Court for Montana, Butte Fee Status: Paid

Docketed: 10/01/2015 Termed: 07/19/2019

Case Type Information: 1) civil 2) private 3) null

Originating Court Information:

District: 0977-2 : 2:15-cv-00022-SEH

Court Reporter: Julie M. Lake, Court Reporter

Trial Judge: Sam E. Haddon, Senior District Judge

Date Filed: 05/15/2015

Date

Date Order/Judgment Date NOA

Order/Judgment:

EOD:

Filed:

09/03/2015

09/03/2015

10/01/2015

Date Rec'd COA:
10/01/2015

02/06/2019 81 Filed (ECF) Acknowledgment of hearing notice by Attorney Mr. Thomas J. Leonard for Appellees Mike Batista and Leroy Kirkegard. Hearing in Seattle on 03/07/2019 at 09:30 A.M. (Courtroom: SE 7th Flr Courtroom 2). Filer sharing argument time: No. (Argument minutes: 15.) Special accommodations: NO. Filer admission status: I certify that I am admitted to practice before this Court. Date of service: 02/06/2019. [11181413] [1535770] (Leonard, Thomas) [Entered: 02/06/2019 02:21 PM]
03/04/2019 82 Filed (ECF) Appellant Disability Rights Montana, Inc. citation of supplemental authorities. Date of service: 03/04/2019. [11215131] [1535770] (Simmons, Jeffrey) [Entered: 03/04/2019 02:32 PM]
03/07/2019 83 ARGUED AND SUBMITTED TO RONALD M. GOULD, RICHARD A. PAEZ and JANIS GRAHAM JACK. [11219789] (KRK) [Entered: 03/07/2019 01:33 PM]
03/07/2019 84 Filed Audio recording of oral argument. Note: Video recordings of public argument calendars are available on the Court's website, at http://www.ca9.uscourts.gov/media/ [11220364] (KRK) [Entered: 03/07/2019 04:35 PM]
03/29/2019 85 Filed (ECF) notice of appearance of Jonathan Robert Ference-Burke for Amicus Curiae - Pending NDRN. Substitution for Attorney Edward F. Roche for Amicus Curiae - Pending NDRN. Date of service: 03/29/2019.

(Party previously proceeding without counsel: No) [11246852] [15-35770] (Ference-Burke, Jonathan) [Entered: 03/29/2019 02:04 PM]
03/29/2019 86 Attorney Edward F. Roche in 15-35770 substituted by Attorney Jonathan R. Ference-Burke in 15-35770 [11246864] (QDL) [Entered: 03/29/2019 02:12 PM]
05/13/2019 87 Filed text clerk order (Deputy Clerk: AF): NATIONAL DISABILITY RIGHTS NETWORK, and TEN ADVOCACY AGENCIES' Motion to become amicus curiae (Docket Entry No. [21]) is granted. [11295716] (AF) [Entered: 05/13/2019 03:40 PM]
05/13/2019 88 Filed clerk order: The amicus brief [21] submitted by NDRN is filed. No paper copies are required at this time. [11295764] (KWG) [Entered: 05/13/2019 03:57 PM]
07/19/2019 89 FILED OPINION (RONALD M. GOULD, RICHARD A. PAEZ and JANIS GRAHAM JACK) REVERSED AND REMANDED. Judge: RMG Authoring. FILED AND ENTERED JUDGMENT. [11368999] (AKM) [Entered: 07/19/2019 07:43 AM]
08/12/2019 90 MANDATE ISSUED.(RMG, RAP and JGJ) [11393656] (QDL) [Entered: 08/12/2019 08:44 AM]

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 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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

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

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

2

DISABILITY RIGHTS MONTANA V. BATISTA

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

Opinion by Judge Gould

SUMMARY**

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

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

DISABILITY RIGHTS MONTANA V. BATISTA

3

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

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

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

4

DISABILITY RIGHTS MONTANA V. BATISTA

COUNSEL

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

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

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

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

DISABILITY RIGHTS MONTANA V. BATISTA

5

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

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

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

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

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

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

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

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

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

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

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

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

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13

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

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

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

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

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

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

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

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

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

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

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

 
 Case 2:14-cv-00025-SEH Document 66 Filed 05/08/15 Page 1 of 34

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

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

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

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

Attorneys for Plaintiff Disability Rights Montana, Inc.

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

DISABILITY RIGHTS MONTANA, )

INC., on behalf of all prisoners with

)

serious mental illness confined to the )

Montana State Prison,

)

)

Plaintiff,

)

)

vs.

)

)

MIKE BATISTA, in his official capacity )

as Director of the Montana Department )

of Corrections; LEROY KIRKEGARD, )

in his official capacity as warden of

)

Montana State Prison,

)

)

Defendants.

)

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

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Case 2:14-cv-00025-SEH Document 66 Filed 05/08/15 Page 2 of 34
For its Second Amended Complaint in this action, plaintiff Disability Rights Montana, Inc. (“DRM”) alleges as follows:
1. This is an action brought on behalf of all prisoners with serious mental illness who are confined to the Montana State Prison (“State Prison” or “Prison”). DRM brings claims on behalf of these prisoners pursuant to 42 U.S.C. § 1983 for ongoing violations of their constitutional right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
THE PARTIES 2. Plaintiff DRM is a not-for-profit Montana corporation and the authorized protection and advocacy agency for Montana pursuant to the federal Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq. Among other things, DRM is authorized by federal law to pursue legal remedies to ensure that individuals with serious mental illness in state institutions are protected from abuse and neglect. Because prisoners with serious mental illness are DRM’s constituents, DRM has associational standing to bring claims on behalf of prisoners with serious mental illness as alleged in this lawsuit. 3. Individuals who have received or are receiving mental health services, or their family members, are substantially involved in DRM’s governance, including serving on DRM’s board of directors. DRM’s board of directors is comprised of ten members, two of whom either have received or are receiving
4840-0163-3315.1

Case 2:14-cv-00025-SEH Document 66 Filed 05/08/15 Page 3 of 34
mental health services, and three of whom have family members who have received or are receiving mental health services. DRM’s advisory council has eight members, seven of whom either have received or are receiving mental health services and one of whom has a family member who has received or is receiving mental health services.
4. Defendant Mike Batista is Director of the Montana Department of Corrections (“DOC”) and is sued in his official capacity. At all times relevant to this Second Amended Complaint, Director Batista was acting within the scope of his employment and under color of state law in his capacity as Director of DOC. Director Batista is directly responsible for the administration of the Prison and has authority to direct the housing, discipline, treatment and care of prisoners with serious mental illness at the Prison. In his official capacity, Director Batista is responsible for administering the policies and practices at issue with respect to the claims against him and has the authority to implement the relief sought in this action.
5. Defendant Leroy Kirkegard is Warden of the State Prison and is sued in his official capacity. At all times relevant to this Second Amended Complaint Warden Kirkegard was acting within the scope of his employment and under color of state law in his capacity as Warden. Warden Kirkegard is directly responsible for the administration of the Prison and has authority to direct the housing,
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Case 2:14-cv-00025-SEH Document 66 Filed 05/08/15 Page 4 of 34
discipline, treatment and care of prisoners with serious mental illness at the Prison. In his official capacity, Warden Kirkegard is responsible for administering the policies and practices at issue with respect to the claims against him and has the authority to implement the relief sought in this action.
6. Director Batista and Warden Kirkegard are referred to collectively as the “DOC Defendants.”
JURISDICTION AND VENUE 7. This court has jurisdiction over DRM’s claims pursuant to 28 U.S.C. §§ 1331 and 1343. 8. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), and is proper in this Division pursuant to Local Rule 3.2(b), inter alia, because the unlawful transfers from the State Hospital that are at issue in DRM’s claims against Richard Opper and John Glueckert, which were part of this action as originally filed, occurred in Deer Lodge County. 9. This Court has authority pursuant to 42 U.S.C. § 1983 to order injunctive and declaratory relief.
COUNT I Cruel and Usual Punishment in Violation of the
Eighth Amendment to the U.S. Constitution 10. DRM incorporates the allegations of paragraphs 1 - 9 as if fully restated here.
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11. DRM alleges that the DOC Defendants have subjected, and are continuing to subject, prisoners with serious mental illness to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
12. The DOC defines a “serious mental illness” as “a clinical disorder of thought, mood or anxiety included under Axis I of the DSM; e.g., schizophrenia, major depression, bi-polar disorder, PTSD, or panic disorder and inmates who were previously diagnosed with such mental illness unless there is certification in the record that the diagnosis has been changed or altered as a result of a subsequent mental health evaluation by a licensed mental health professional. It does not include personality disorders; i.e., borderline, antisocial, or paranoid personality disorders.” The DOC uses this definition for purposes of administering behavior management plans that it imposes as punishment for prisoners.
13. The DOC does not have a consistent method for categorizing prisoners with mental illness. For example, the State Prison’s Operational Procedure MSP 3.5.3 regarding Mental Health Cases in Locked Housing Status, addresses only “Severe Mental Health Problems,” which it defines broadly as “any organic, mental or emotional impairment, which has a substantial adverse effect on an inmate’s cognitive or volitional function.”
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14. A more appropriate definition of “serious mental illness,” that is accepted by mental health professionals and would better identify those prisoners who are adversely affected by the actions of the DOC Defendants alleged here, is as follows:
A. A current diagnosis or significant history of any of the following types of DSM-5 diagnoses, even if there are no current symptoms: 1. Schizophrenia 2. Delusional Disorder 3. Schizophreniform Disorder 4. Schizoaffective Disorder 5. Brief Psychotic Disorder 6. Substance/Medication-Induced Psychotic Disorder 7. Major Depressive Disorders 8. Bi-polar Disorder
B. Other DSM-5 Disorders that are commonly characterized by breaks with reality, or perceptions of reality, that lead the individual to experience significant functional impairment involving acts of self-harm or other behaviors that have a seriously adverse effect on life or on mental or physical health.
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C. A current diagnosis or history of an intellectual disability (including mental retardation), a dementia, traumatic brain injury or other cognitive disorder that results in a significant functional impairment involving acts of self-harm or other behaviors that have a seriously adverse effect on life or on mental or physical health.
D. A current diagnosis or history of a severe personality disorder that is manifested by episodes of psychosis or depression, and results in significant functional impairment involving acts of self-harm or other behaviors that have a seriously adverse effect on life or on mental or physical health.
15. Regardless, under any legitimate definition of “serious mental illness” the DOC Defendants are subjecting prisoners with serious mental illness to cruel and unusual punishment by engaging in at least the following practices:
a. placing prisoners with serious mental illness in various forms of solitary confinement for 22 to 24 hours per day for months and years at a time;
b. placing prisoners with serious mental illness on behavior management plans that involve solitary confinement and extreme restrictions of privileges;
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c. having no standards for determining whether placing a prisoner with serious mental illness in solitary confinement or on a behavior management plan will be harmful to the prisoner’s mental health;
d. engaging in a pattern of refusing to properly diagnose prisoners as suffering from serious mental illness;
e. engaging in a pattern of refusing to provide prisoners with medications for serious mental illness;
f. failing to have a system in place to review and evaluate the diagnosing and prescribing practices of its mental health staff;
g. failing to have a system to classify prisoners according to their mental health needs;
h. failing to adequately consider prisoners’ serious mental illnesses when making decisions about prisoners’ housing and custody levels; and
i. having no system in place for auditing, evaluating or ensuring the effectiveness of its mental health care program in treating prisoners with serious mental illness.
16. In 2011, the Prison Warden estimated that approximately one-fifth the Prison’s approximately 1,500 prisoners suffer from mental illness. The Prison’s
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staff psychiatrist has approximately 275 prisoners on his or her medication management caseload.
17. It is well known in the correctional community and in the mental health treatment community that subjecting prisoners to extended periods of solitary confinement is detrimental to their mental health.
18. For example, National Commission on Correctional Health Care Standards for Mental Health Services in Correctional Facilities, MH-E-07, states: “Inmates who are seriously mentally ill should not be confined under conditions of extreme isolation.”
19. Society of Correctional Physicians’ Position Statement on Restricted Housing of Mentally Ill Inmates states: “[P]rolonged segregation of inmates with serious mental illness, with rare exceptions, violates basic tenets of mental health treatment. Inmates who are seriously mentally ill should be either excluded from prolonged segregation status (i.e., beyond 4 weeks) or the conditions of their confinement should be modified in a manner that allows for adequate out-of-cell structured therapeutic activities and adequate time in an appropriately designed outdoor exercise area.”
20. In March 2015, United States Supreme Court Justice Anthony Kennedy, in testimony before the House Appropriation Subcommittee on Financial
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Services and General Government, said “Solitary confinement literally drives men mad.”
21. The DOC Defendants are aware of the fact that solitary confinement is detrimental to the health of prisoners with serious mental illness. In particular, the DOC Defendants are aware of the National Commission on Correctional Health Care Standards for Mental Health Services in Correctional Facilities, because the DOC Defendants have sought certification from that organization.
22. The State Prison uses at least four general forms of solitary confinement to punish prisoners with mental illness: administrative segregation, restricted administrative segregation, disciplinary detention, and behavior modification plans. All of the forms of solitary confinement involve subjecting the prisoner to being locked in his cell alone for 22 to 24 hours a day, seven days a week. The DOC Defendants refer to these forms of solitary confinement as “Locked Housing.”
23. In the least restrictive form of administrative segregation, prisoners are isolated in their cells at least 22 hours a day, five days a week, and 24 hours a day, two days a week. The out-of-cell time for prisoners in the least restrictive forms of administrative segregation consists of one hour per day alone in a dayroom adjoining his cell, and one hour per day in a small outdoor caged area by himself. If there is inclement weather, the one hour of outdoor recreation may be
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cancelled. If a prisoner is not feeling well or does not wake up during the designated one-hour outdoor recreation period, which is often the case for prisoners with serious mental illness, the prisoner may not receive his one hour of outdoor time.
24. Prisoners with serious mental illness who are placed in solitary confinement receive no therapy for their mental illness. The primary contact with mental health staff while they are in solitary confinement consists of weekly rounds by mental health technicians. Each visit during weekly rounds typically lasts no more than a few minutes and is conducted at the prisoner’s cell door, where other prisoners and corrections officers can hear what is said. As a result, prisoners with serious mental illness are often reluctant to share their mental health concerns during those rounds. The futility of this process causes prisoners with serious mental illness to suffer additional stress.
25. In more restrictive forms of administrative segregation and in restricted administrative segregation, prisoners are locked in their cells at least 23 hours per day, five days a week, and 24 hours a day, two days a week. Prisoners in these forms of solitary confinement receive one hour of outdoor recreation time five days a week. Again, if the prisoner is not feeling well or asleep, or if there is inclement weather, the prison may not receive the one hour of outdoor recreation time.
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26. Disciplinary detention is among the most extreme forms of solitary confinement imposed at the Prison. Disciplinary detention is referred to by prisoners and Prison staff as “The Hole.” The Hole is total isolation. Prisoners sent to The Hole are subjected to 24-hour isolation in their cell. Some cells used for The Hole have blacked-out windows, resulting in a total absence of natural light. Prisoners placed in The Hole cannot make phone calls or have visitors. They cannot participate in religious services or rehabilitative treatment programs. They receive no mental health therapy. They receive no indoor or outdoor recreation time whatsoever. The only out-of-cell time given to prisoners in The Hole consists of three, ten-minute showers per week.
27. Behavior management plans (“BMPs”) are a form of punishment that involves a combination of solitary confinement and extreme reduction in privileges. Under a BMP, a prisoner is kept in 24-hour isolation. A prisoner on a BMP starts out by having all of his prison clothing removed and being given just a mattress, blanket, and a suicide smock. At the start of a BMP all meals consist of a tasteless loaf of food (“nutraloaf”) delivered on a paper towel, and the prisoner is not allowed any running water in his cell. A guard must flush the toilet for the prisoner, and the prisoner must ask for water to wash his hands. In extreme forms of BMPs, prisoners must go to the bathroom through a grate on the floor.
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28. Staff at the Prison has placed individual prisoners with serious mental illness on BMPs numerous times, without modifying the BMP to account for the prisoner’s mental illness or the failure of previous BMPs to alter the prisoner’s behavior.
29. Although the Prison’s formal policies call for Prison mental health staff to certify that “[t]he inmate’s present behavior is not the direct result of an Axis I serious mental disorder” before placing a prisoner on a BMP, the DOC and the Prison have no standards to guide mental health staff in making that determination and do not require mental health staff to document the factual bases for their decisions. Under the Prison’s policies, Prison mental health staff certify prisoners in advance to be subjected to BMPs at any time during the following six months.
30. Rather than protect prisoners with serious mental illness from the damaging effects of BMPs, mental health staff sometimes encourage the use of BMPs for such prisoners. In one instance, a Prison mental health staff person wrote to prison staff that two individuals sentenced Guilty But Mentally Ill would be “good candidates” for BMPs at the Prison.
31. The Prison regularly places prisoners with serious mental illness in all of the forms of solitary confinement described above for weeks and months at a
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time. Some prisoners with serious mental illness have spent years in various forms of solitary confinement during their time at the Prison.
32. Prisoners with serious mental illness at the Prison receive little, if any, meaningful interaction with mental health clinicians. The Prison offers group therapy with mental health staff to only a very small percentage of the prisoners with serious mental illness, none of whom are in solitary confinement. An even smaller percentage of prisoners with serious mental illness receive individual therapy at the Prison.
33. For the vast majority of prisoners with serious mental illness, their interaction with mental health staff at the Prison consists of non-confidential weekly cell checks by mental health technicians at the cell door. Prisoners’ written requests for additional mental health care are regularly denied. The futility of requesting additional mental health care exacerbates prisoners’ mental illnesses.
34. The DOC Defendants fail to respond appropriately to threats of suicide by prisoners with serious mental illness. The Prison’s most common response to a prisoner expressing thoughts of suicide is to place a prisoner on a BMP. This response causes prisoners to be reluctant to admit to thoughts of suicide and, as a result, increases the risk of suicide.
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Representative Examples of Prisoners With Serious Mental Illness Who Have Experienced Cruel and Unusual Punishment 35. Below are examples of the experiences of nine prisoners who suffered from serious mental illness and were subjected to solitary confinement and improper mental health care at the State Prison. The examples demonstrate an ongoing pattern of behavior at the Prison that indicates that numerous prisoners with serious mental illness – not just the nine identified below – have been subjected to cruel and unusual punishment and that all prisoners with serious mental illness at the Prison are at significant risk for suffering cruel and unusual punishment in the future. James Larson 36. James Larson was sentenced Guilty But Mentally Ill (“GBMI”) in 2006. Among the reasons the Judge gave for the sentence was that “[t]he Defendant has substance and mental health issues and [the Montana State Hospital] is the best facility to address those conditions.” The Montana Department of Public Health and Social Services placed Mr. Larson at the State Hospital, where he was diagnosed as schizophrenic and put on antipsychotic medications. 37. Mr. Larson arrived at the Prison in 2008. From 2008 to 2012, Prison mental health staff repeatedly acknowledged his diagnosis of schizophrenia and he was prescribed multiple antipsychotic medications. Despite that diagnosis, Prison staff repeatedly placed Mr. Larson in solitary confinement and subjected him to
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BMPs for threatening self-harm. Mr. Larson told Prison mental health staff that he wanted to cry when he was in solitary confinement and that he did not “do hole time well.” He said that in solitary confinement “all I do is suffer unmitigated hell in these cells all the time.”
38. Despite his GBMI sentence and his previous diagnoses of suffering from serious mental illness, in 2012 Prison mental health staff decided that Mr. Larson was faking his mental illness and decided to taper off his antipsychotic medications.
39. Mr. Larson is currently confined to the Prison’s Locked Housing unit. 40. The DOC Defendants are aware of the cruel and unusual punishment Mr. Larson has been subjected to because he exhausted his administrative remedies regarding inadequate mental health care at the Prison through an appeal to the DOC Director. James Patrick 41. In 2002, a district court judge found James Patrick Guilty But Mentally Ill. In 2007, DPHHS transferred Mr. Patrick to the State Prison. Since arriving at the Prison, Mr. Patrick has spent over three years in solitary confinement for “bizarre” and “disruptive” behavior. For two months, Mr. Patrick was placed in the Prison’s Mental Health Treatment Unit (“MHTU”) where, despite his previous diagnoses of serious mental illness, Prison mental health staff
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concluded that his problems were behavioral and stemmed from immaturity and other unknown sources. As a result, Prison staff transferred Mr. Patrick back to solitary confinement.
42. Prison staff have continuously refused to consider Mr. Patrick’s mental illness when addressing his behavior. Prison staff have placed Mr. Patrick on BMPs approximately 25 times for acts including actual and threatened selfharm, smearing feces in his cell, banging his head until it bled on his cell door while asking for real food instead of nutraloaf, crying and saying people on the floor were talking to him, attempting suicide, cutting himself with a broken deodorant stick, and hitting his cell door and screaming “help me help me” for 20 minutes. Mr. Patrick has spent weeks in 24-hour isolation in disciplinary detention for similar behaviors.
43. In 2012, Prison mental health staff discontinued Mr. Patrick’s antipsychotic medications, which he had taken for many years, after he temporarily refused to take them. Mr. Patrick’s subsequent requests for medications were denied. While unmedicated, Mr. Patrick was found guilty of multiple rule violations for bizarre behavior and self-harm and was subjected to BMPs, disciplinary detention and administrative segregation.
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Shaun Morrison 44. Shaun Morrison has received diagnoses of serious mental illness throughout his life, including major depressive disorder. He also has a long history of extreme self-harm. He has cut himself on numerous occasions, resulting in hospitalizations and near loss of life due to blood loss. In addition to cutting himself, he has also bitten through his own skin, ripped stitches, and reopened wounds with foreign objects. 45. In 2006, Mr. Morrison was sentenced Guilty But Mentally Ill. That same year, DPHHS transferred him to the State Prison. 46. While at the Prison, Mr. Morrison spent two months at the MHTU. During that time, he filled out a “treatment planning worksheet,” in which he listed the following ways Prison mental health staff could help him: “Be there to talk to me when I’m having problems. Groups with homework. Give me stuff to do so I can keep myself and my mind busy.” 47. Instead, Prison staff transferred him to solitary confinement because the MHTU could not manage his self-harm behavior. Despite his GBMI sentence and previous diagnoses of mental illness, Prison staff said that Mr. Morrison had “no mental health history that would preclude an ad seg placement.”
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48. At one point, Prison mental health staff discontinued Mr. Morrison’s medications, based on the staff’s conclusion that “he appears to do as well/poorly, whether on or off Rx.”
49. The Prison’s most common response to Mr. Morrison’s acts of selfharm has been to place him on a BMP. He has spent significant periods of time on BMPs in 24-hour isolation, often in a padded cell. The longer he spent in solitary confinement and on BMPs, the worse his self-harm episodes became.
50. In July 2011, Mr. Morrison stated to Prison mental health staff that he had “been in locked housing for way too long” and was “wound up,” “stressed,” and worried about doing “something stupid” that would get him into trouble.
51. Upon being moved out of solitary confinement, in August 2011, Mr. Morrison murdered another prisoner. Mr. Morrison was found guilty of homicide and sentenced to the DOC for life without the possibility of parole.
Cory Weis 52. Cory Weis was diagnosed with bipolar disorder and schizophrenia and received various medications for those illnesses before arriving at the Prison. When the Judge sentenced him to the Prison, she recognized Mr. Weis’s mental health issues and “highly recommend[ed] that he be considered for placement in the mental health block at the Prison because that seems to me that that’s going to be the best place for [him].”
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53. Despite the Judge’s express recommendation, Mr. Weis was never placed in the MHTU at the Prison. Prison records suggest that Mr. Weis spent more than half of his time at the Prison in solitary confinement. The Prison’s mental health staff stated that Mr. Weis had “no known history of psychiatric problems or symptoms that would preclude Administrative Segregation for inappropriate behavior.”
54. Within weeks of arriving at the Prison, Mr. Weis told staff that he was hearing voices telling him to do things to himself and he threatened to kill himself. Shortly thereafter, Mr. Weis was disciplined for smearing feces on himself, but a Prison therapist concluded that the conduct was not the result of a serious mental illness. A little more than a month later, Mr. Weis was disciplined for banging his head against the wall and spreading feces on himself. In response, Prison mental health staff authorized placing Mr. Weis in solitary confinement and authorized the use of a BMP. During his seven months at the Prison, Mr. Weis met with the Prison psychiatrist just once, more than four months after his arrival.
55. Seven months after arriving at the Prison, Mr. Weis was found dead in his cell as a result of hanging.
Marty Hayworth 56. Marty Hayworth was diagnosed with multiple serious mental illnesses before arriving at the Prison, including schizophrenia. Mr. Hayworth hears the
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voice of a dog named Gene who directs him to harm himself. Mr. Hayworth has repeatedly attempted to take out his own eyes.
57. Despite his previous diagnoses of serious mental illness, Prison staff have refused to acknowledge that Mr. Hayworth is mentally ill. Prison mental health staff has described Mr. Hayworth’s attempts to take his own eyes out and swallow objects as “manipulative” and “characterological,” rather than symptoms of mental illness.
58. In 2012, the Prison psychiatrist diagnosed Mr. Hayworth as malingering (i.e. faking) mental illness. The psychiatrist also discontinued all of Mr. Hayworth’s medications without meeting with him or investigating possible reasons for noncompliance. Mr. Hayworth’s stated reason for refusing to take his medications was “the outerspace people and Gods and I don’t need any mental health medication.” Subsequently, Mr. Hayworth received approximately 40 disciplinary violations, which Prison custody staff attributed to “medication noncompliance.”
59. Prison mental health staff has repeatedly approved standard disciplinary measures for Mr. Hayworth’s behavior for many years. Since 2005, Mr. Hayworth has spent years in solitary confinement at the Prison. He reports feeling like a “young kid locked up in a closet” when he is in solitary. He spreads feces in his cell to “keep bad spirits away,” and engages in self-harm. He has been
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repeatedly disciplined and restrained for self-harm and behavior such as smearing feces, drinking Ajax, and swallowing glass.
60. In April 2015, Mr. Hayworth contacted DRM to tell them that he believed Prison staff were constructing a cross on which to crucify him.
Paul Parker 61. Paul Parker has long-standing diagnoses of mental illness, including bi-polar disorder, post-traumatic stress disorder, and major depression. For many years, Mr. Parker has taken lithium for his bi-polar disorder, as well as antidepressants and antipsychotic medications. 62. Prison staff have repeatedly ignored Mr. Parker’s mental illnesses when addressing his behavior and making his housing assignments. Mr. Parker has spent more than eight years in solitary confinement. In solitary confinement, Prison mental health staff has observed Mr. Parker decompensating. After years in solitary confinement, Mr. Parker has expressed concern regarding his ability to reintegrate into the general prison population. 63. Prison staff have repeatedly placed Mr. Parker in 24-hour isolation on BMPs for threatening to slice his throat, threatening to stab himself with pens, biting his arm and wrist and smearing the blood on the floor “to make the situation look worse than it actually was,” smearing blood on his cell, and writing a message in blood about wanting to die.
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64. Prison mental health staff refuse to acknowledge the existence of Mr. Parker’s mental illness. In 2012, mental health staff concluded that Mr. Parker was biting and picking at his arm “for the purpose of manipulating staff and receiving mental health services at his leisure.” They also concluded that his act of smearing blood on walls was “malingering his depression to gain attention.”
65. Prison staff have been deliberately indifferent to the harmful effect of solitary confinement on Mr. Parker. In a 2011 document, Prison staff wrote that they were placing Mr. Parker in solitary confinement with the goals of: “learn to deal with depression,” “learn to refrain from this type of behavior by working on his ‘people skills’ and thinking before he reacts,” and finding ways to “occupy his mind.”
66. After Mr. Parker met with the Prison psychiatrist, the psychiatrist wrote: “I think most of his complaints were involving being in locked housing but I explained to him that there wasn’t anything I could do about that.”
67. In 2012, the Prison psychiatrist concluded that Mr. Parker did not have bi-polar disorder, despite previous diagnoses of that illness. The psychiatrist then discontinued Mr. Parker’s lithium prescription and refused to restart it.
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Walter Taylor 68. Walter Taylor is 70 years old and has received several mental illness diagnoses during his life, including schizophrenia, bi-polar disorder, major depression and personality disorders. 69. Mr. Taylor’s mental illness manifests itself in, among other things, numerous acts of extreme self-mutilation. Over many years, Mr. Taylor has swallowed safety pins, razor blades, paper clips, needles, spoons, nails, and tacks. He has also inserted objects into his penis, including paper clips, foil and copper wires. Mr. Taylor has had over 30 stomach surgeries for swallowing foreign objects. 70. Prison staff views Mr. Taylor’s acts of self-harm as “manipulative” and “not the result of serious mental illness.” Prison staff have housed Mr. Taylor in solitary confinement for several years, and have placed him on BMPs numerous times in response to his acts of self-harm. 71. From approximately 2005 to 2012, Mr. Taylor was prescribed a combination of medications that worked well for him, including Prozac, Lithium, Seroquel and Propranolol. During this time he engaged in few self-harm behaviors and worked as a janitor in the prison.
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72. In approximately 2012, however, the Prison psychiatrist decided that Mr. Taylor was not suffering from a serious mental illness and discontinued all of Mr. Taylor’s medications.
73. Without his medications, Mr. Taylor began engaging in self-harm, including swallowing paperclips in 2013.
74. In August 2013, Mr. Taylor was denied parole. In the report to the parole board, his case manager stated, “I am unable to support a release at this time without an extensive mental health component and an updated positive psychological report.”
Cleveland Boyer 75. Cleveland Boyer was 23-years old when he was sent to the Prison in February 2013. Prior to arriving at the Prison, he had spent two years at Yellowstone County Detention Facility (“YCDF”), where medical and mental health staff noted that he suffered from anxiety and depression and prescribed him antidepressants. 76. In June 2011, Mr. Boyer’s mother died in a house fire. A few days later, he attempted to commit suicide by slashing his neck twice with a razor at YCDF. 77. Upon arriving at the Prison, Mr. Boyer informed medical and mental health staff of his suicide attempt, that he suffered from mental illness, that he
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believed he had bi-polar disorder and schizophrenia, and that he had been prescribed several medications for his mental illness. Nevertheless, Prison mental health staff determined that he had “no significant” mental health needs.
78. The Prison psychiatrist dismissed the seriousness of Mr. Boyer’s suicide attempt, writing: “Boyer reports that he attempted suicide in 2011 by cutting his throat when his mother dies [sic]. However, I actually couldn’t even see a scar so it must not have been very serious.”
79. Two months after seeing the psychiatrist and just three months after arriving at the Prison, Prison staff placed Mr. Boyer in solitary confinement for 90 days as a result of rule violations. Mr. Boyer was released from solitary confinement on August 14, 2013. Nine days later corrections officers found him dead in his cell. Although no cause of death has been announced, medical staff who attempted to resuscitate Mr. Boyer were concerned that he had overdosed on drugs.
Matthew Brandemihl 80. Matthew Brandemihl was 32 years old when he was sent to the Prison from Gallatin County jail on or about May 12, 2014. Approximately one week before he was scheduled for transfer to the Prison, Mr. Brandemihl attempted suicide in his cell by biting a hole in his wrist approximately two inches in diameter. Questioned by a police officer at the hospital later that day, Mr.
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Brandemihl stated that he believed he was the son of God and has been alive for one thousand years, and that his brother was the devil and becomes a spirit and possesses other people’s bodies in order to torment him, and tells him to commit acts of destruction.
81. Mr. Brandemihl started taking the antidepressant Citalopram to treat an apparent anxiety disorder approximately three days before this suicide attempt.
82. According to Prison records, during his clinical intake at the Prison, Mr. Brandemihl complained that “a device has been drilled into, or implanted into my head” and appeared “sad” and “depressed.” The nurse who evaluated him, however, did not recommend a psychiatric evaluation or treatment, psychological testing, or placement in a mental health group.
83. On June 20, 2014, Mr. Brandemihl became agitated during a trip to the infirmary and refused to leave when asked. When confronted by corrections officers, Mr. Brandemihl declared that his name was “Jesus” and accused Prison staff of trying to poison his food and water. The prison investigator recommended discipline for Mr. Brandemihl instead of mental health treatment, concluding that his behavior was “not symptomatic of a mental illness that would prevent knowledge of his actions.” Mr. Brandemihl was sentenced to 11 days in Locked Housing.
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84. In 2014, the Prison psychiatrist concluded that Mr. Brandemihl’s behavior and psychotic beliefs were evidence of “just frank malingering and being uncooperative” and the side effects of past substance abuse. He made no recommendations for mental health treatment or medication for Mr. Brandemihl.
85. In July 2014, Mr. Brandemihl attempted suicide again by trying to chew through his arm and wrist. In response, Prison staff placed Mr. Brandemihl in Locked Housing. In an e-mail dated July 8, 2014, Prison staff wrote, “the mental health department feels [Mr. Brandemihl] knowingly, willingly, and purposely engaged in self-harm behavior and should be held accountable for his actions.”
86. Later that month, Mr. Brandemihl again tried to commit suicide by chewing through his arm and wrist and taking approximately 50 multivitamin tablets. On that same day, corrections officers observed Mr. Brandemihl drinking out of the toilet in his cell after he had fallen and hit his head on it. Rather than prescribe mental health treatment for Mr. Brandemihl, Prison officials placed him on a BMP for “hindering” prison staff and once again sent him to a Locked Housing unit. Prison records show that the “hindering” charge was based on the fact that attending to Mr. Brandemihl’s suicide attempt “caused the day to day operations of the unit to fall behind schedule.”
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87. Medical records indicate that Mr. Brandemihl informed the medical professional who treated him at Deer Lodge Hospital following this incident that he bit his wrists and tried to suck his own blood “out of fear of metals in his blood.” These records also show that Deer Lodge Hospital recommended that Mr. Brandemihl receive “psychiatric follow up at the prison.”
88. At his subsequent disciplinary hearing, Mr. Brandemihl was found guilty of infractions for engaging in self-harm and for obstructing and hindering prison staff. He was sentenced to 11 days in Locked Housing.
89. On August 4, 2014, a doctor treating Mr. Brandemihl observed that he suffered from “apparent persecutory delusions” and requested that his mental health be assessed “ASAP.” According to prison records, the only action taken was to send a “mental health technician” to perform a wellness check on Mr. Brandemihl.
90. On September 23, 2014, Mr. Brandemihl was found sleeping in his cell near a plastic bag filled with blood. He refused to be handcuffed when directed by the corrections officers. Instead, he began flushing objects down the toilet in his cell. As a result, he was again transferred to Locked Housing and placed in solitary confinement.
91. Shortly thereafter, Mr. Brandemihl was found dead in his Locked Housing cell. Although the official cause of death has not been released, prison
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records indicate his body was found on the floor “laying in a pool of blood under his blankets.” When prison staff found Mr. Brandemihl’s body, they noted the blood on the floor had dried, his skin was cold, and rigor mortis had already begun to set in, all of which indicated he had been dead for several hours.
92. The Defendants are well-aware that the Prison’s treatment and care of prisoners with serious mental illness does not satisfy constitutional requirements. In its 2003 decision in Walker v. State, 2003 MT 134, 316 Mont. 103, 68 P.3d 872 (Mont. 2003), the Montana Supreme Court made it very clear that the Prison has a constitutional obligation to provide prisoners with appropriate mental health treatment and to eliminate disciplinary practices that exacerbate prisoners’ mental illnesses. The Court concluded that the Prison’s “behavior management plans” and living conditions constitute cruel and unusual punishment when they exacerbate the prisoner’s mental health condition.
93. In 2009, the DOC faced another lawsuit, Katka v. State, No. BDV 2009-1163 (1st Jud. Dist. Ct., Lewis and Clark Co.) challenging the Prison’s treatment and discipline practices for juveniles with mental illness. The DOC resolved Katka by entering into a 2012 settlement agreement requiring the Prison to implement changes regarding its housing and treatment of prisoners with serious mental illness and treatment of suicidal prisoners. Throughout discovery in that
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case, Prison officials heard from mental health experts addressing the deficiencies in the Prison’s use of solitary confinement and inadequate mental health treatment.
94. In addition, Prisoners with serious mental illness regularly request and grieve the level of mental health care they are provided, including the negative impact of isolation, mental health staff discontinuing their needed medications and mental health staff ignoring previous diagnoses. In 2012 alone, a Prison staff member publicly stated that mental health staff answered over 2,000 mental health requests. Several prisoners have appealed the inadequacy of the mental health treatment they receive to the Prison Warden and ultimately to the DOC Director.
95. In addition, DRM has repeatedly informed Prison officials of the serious deficiencies in the Prison’s treatment of prisoners with serious mental illness.
96. On February 26, 2014, DRM sent Director Batista a letter describing many of the facts alleged in this Second Amended Complaint. To DRM’s knowledge, to date, the DOC Defendants have not made any modifications in their treatment of prisoners with serious mental illness.
97. Given their knowledge of these practices, and their knowledge of the serious harm that can be caused by these practices, and their refusal to change these practices, the DOC Defendants have been deliberately indifferent to the
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serious medical needs of prisoners with serious mental illness at the Montana State Prison.
PRAYER FOR RELIEF WHEREFORE, plaintiff Disability Rights Montana, Inc. prays for an order and judgment in which this Court: A. Exercises continuing jurisdiction over this action; B. Issues declaratory judgment that the DOC Defendants’ acts violate the Eighth Amendment to the U.S. Constitution, and that these acts and omissions continue to cause an ongoing risk of the violation of those rights; C. Issues injunctive relief to stop the constitutional violations described above, including injunctive relief that:
1. Requires the DOC Defendants to take immediate steps to ensure that individuals with serious mental illness incarcerated at the Montana State Prison receive constitutionally adequate mental health care;
2. Enjoins the DOC Defendants from placing prisoners with serious mental illness in solitary confinement;
D. Retains jurisdiction of this case until the DOC Defendants have fully complied with the orders of this Court, and there is a reasonable assurance that the DOC Defendants will continue to comply in the future absent continuing jurisdiction;
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E. Awards reasonable attorneys’ fees, litigation expenses, and costs
pursuant to 42 U.S.C. § 1988 and 42 U.S.C. § 12205; and
F. Orders all other relief the Court deems appropriate.
Respectfully submitted this 8th day of May, 2015.
s/Jeffrey A. Simmons Jeffrey A. Simmons (Pro Hac Vice) Foley & Lardner LLP 150 East Gilman Street Madison, WI 53703-1482 Telephone: (608) 258-4267 Email: jsimmons@foley.com
s/Jon E. Ellingson Jon E. Ellingson James Park Taylor ACLU of Montana 241 E. Alder Missoula, MT 59807 Telephone: (406) 549-6159 Email: jpt42@hotmail.com
jonelling@gmail.com
Anna Conley Attorney At Law P.O. Box 9101 Missoula, MT 59807 Telephone: (406) 830-0367 Email: anna@annaconley.com
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Kyle A. Gray Adrian A. Miller Holland & Hart LLP 401 N. 31st Street, Suite 1500 Billings, MT 59101-1277 Telephone: (406) 252-2166 Email: kgray@hollandandhart.com
aamiller@hollandhart.com
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