REVISED DECEMBER 14, 2005

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-31137

UNITED STATES

Plaintiff - Appellee

versus

DEDRICK REGINALD WHITE

Defendant - Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

Before HIGGINBOTHAM, WIENER & DENNIS, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Dedrick Reginald White appeals an order of

the district court that he be involuntarily medicated. Concluding

that this case is not ripe for appellate review because the

Plaintiff-Appellee the United States failed to exhaust the

administrative procedures required, we vacate and remand.

I. FACTS & PROCEEDINGS

White was indicted on charg es of (1) assaulting a postal

carrier, and in so doing placing the postal carrier in jeopardy by

the use of a semi-automatic rifle, (2) using, carrying, and

brandishing that rifle during the assault, and (3) being a felon in United States Court of Appeals

Fifth Circuit 

## F I L E D

November 21, 2005

Charles R. Fulbruge III

Clerk1 See 18 U.S.C. §§ 2114, 924(c)(1)(A)(ii), and 922(g)(1).

2 p ossession of a firearm. 1 If convicted, White faces a mandatory

minimum sentence of 15 years imprisonment. At his initial

appearance, White stipulated to detention in East Baton Rouge

Parish Prison (“EBRPP”).

Whi te then filed a motion for a mental examination to

determine his competency to s tand trial. The district court

ordered Dr. John Bolter of Baton Rouge to conduct a psychiatric and

psychological examination, but White refused to participate in the

examination. White was then transferred to the Federal Medical

Center in Fort Worth, Texas, for an examination. The staff at the

Medical Center was unable to render an opinion as to White’s

compe tency because White again refused to participate in the

examination. Finally, White was transferred to the Federal Medical

Center in Butner, North Carolina, where the staff evaluated him and

concluded that he is incompetent to stand trial. Accordingly, on

August 19, 2002, the district court found White incompetent to

stand trial and committed him to the custody of the Attorney

General for hospitalization and treatment according to the

provisions of 18 U.S.C. § 4241.

The government subsequently had White transferred back to

EBRPP and sought an order of th e court to have White medicated

involuntary. Two grounds were advanced: (1) White is d angerous to

himself and others, and (2) medication is necessary and appropriate2 Sell v.U.S. , 539 U.S. 166, 176-77 (2003).

3 Id.

4 U.S. v. City of Jackson, Miss. , 359 F.3d 727, 731 (5th Cir.

2004).

5 18 U.S.C. § 4241(d).

3 to render him c ompetent to stand trial. The district court held

that involuntary medication was warranted on both grounds.

II. ANALYSIS

A. Jurisdiction

Involuntary m edication orders such as the one at issue here

conclusively decide the disputed question and resolve an important

issue. 2 We therefore have jurisdiction under the collateral order

d octrine over White’s appeal of the district court’s order

authorizing prison authorities to administer antipsychotic

medication to him on an involuntary basis. 3

B. Standard of Review

We review the district court’s findings of fact for clear

error and conclusions of law de novo

. 4

C. Applicable Law

Under 18 U.S.C. § 4241, if a district court finds a criminal

defendant incompetent to stand trial, the court must commit the

defendant to the custody of the Attorney General. 5 Then, the

Attorney General must hospitalize the defendant in “a suitable

facility” for a time (1) sufficient to determine wh ether the6 Id. at § 4241(d)(1)-(2).

7 Washington v. Harper , 494 U.S. 210, 222, 227 (1990)

(dangerousness); Sell , 539 U.S. at 179-80 (competence).

8 28 C.F.R. § 549.43.

9 Id.

4 defendant will regain competence within a reasonable time, and, if

so, (2) for an additional period until the defendant’s “mental

condition is so improved that trial may proceed,” so long as “the

court finds that there is a substantial pr obability” that the

defendant will regain competence. 6

Although inmat es have a significant liberty interest in

avoiding the administration of unwanted medication, prison

officials may administer such medication under limited

circumstances t o, inter alia , render the inmate non-dangerous or

competent to stand trial. 7 “Title 18 U.S.C. § 4241... and federal

court decisions require that certain procedures be followed” before

the medication is involuntarily administe red to a person in the

custody of the Attorney General. 8 28 C.F.R. § 549.43 outlines the

“administrative due process procedures” that “must be provided to

the inmate” and “must be followed after a person is committed for

hospitalization and prior to administering involuntary treatment,

including medication.” 9

Specificall y, when an inmate refuses medication, he is

entitled to an administrative hearing at the facility to determine10 Id. at § 549.43(a).

11 Id. at § 549.43(a)(1) and (3).

12 Id. at § 549.43(a)(4).

13 Id. at § 549.43(a)(2).

14 Id. at § 549.43(a)(5).

15 Id. at § 549.43(a)(6).

5 whether he may be medicated against his will. 10 The facility staff

must inform the inmate of “the date, time , place, and purpose of

the hearing, includ ing the reasons for the medication proposal,”

and “a psychiatrist who is not currently involved in the diagnosis

o r treatment of the inmate” must conduct the hearing. 1 1 In

addition, the inmate’s treating psychiatrist or clinician “must be

present at the hearin g and must present clinical data and

background information relative to the need for medication.” 12 The

inmate has the right, inter alia

, “to appear at the hearing, to

present evidence, to have a staff representative, [and] to request

witnesses.” 1 3 At the conclusion of the hearing, the conducting

psychiatrist must determine whether “medi cation is necessary in

order to attempt to make the inmate competent to stand trial or is

necessary because the inmate is dangerous to [him]self or others”

and “prepare a written report regarding the decision.” 14 The

facility must provide a copy of the report to the inmate, and the

inma te may appeal the decision to the facility administrator. 1 5

“The administrator shall ensure that the inmate received all16 Id.

17 Taylor v. U.S. Treasury Dept. , 127 F.3d 470, 475 (5th Cir.

1997).

18 Myers v. Bethlehem Shipbuilding Corp. , 303 U.S. 41, 50-51

(1938).

19 Taylor , 127 F.3d at 476-77.

20 Id.

21 Id. at 477.

6 necessary procedural protections and that the justification for

involuntary treatment or medication is appropriate.” 16

Although § 4241 does not expressly mandate exhaustion of

administrative procedures, “the jurisprudential doctrine of

exhaustion [still] controls.” 17 This “long settled rule of judicial

administration” serves several important purposes. 18 For example,

it permits the agency to develop the factual background of the case

and apply its expertise, and, at the same time, it conserves scarce

judicial resources. 19 Furthermore, it prevents general disregard

for agency procedu res that could ultimately weaken the agency’s

effectiveness. 20 Consequently, a court should excuse the failure

to exhaust administrative procedures only “in extraordinary

circumstances.” 21 Extraordinary circumstances typically arise when

the administrative process would be inadequate or futile, the

claimant challe nges the legality of the administrative process

itself, or the claimant has advanced a constitutional challenge

that would remain after the completion of the administrative22 Id.

23 See U.S. v. Morgan , 193 F.3d 252, 263 (4th Cir. 1999)

(observing that “§ 549.43 requires that a determination of

whether to forcibly medicate an inmate be made in the context of

an administrative hearing”).

7 process. 22

D. Merits

In this case, the government made an end run around the

regulatory scheme laid out in § 549.43 and sought an order directly

from the district court authorizing involuntary medication, first

on the basis of dangerousness, and, in the alternative, on the

basis of competence to stand trial. The government advances no

extraordinary circumstances to excuse its f ailure to exhaust the

administrative procedure in § 549.43. In fact, the government

advances no reason at all to justify its failure to follow the

prescribed procedure. Moreover, in disregarding the administrative

procedure req uired by § 549.43, the government ignores the

unequivocal, mandatory language of t he regulation that is

specifically tailored to protect the inmate’s due process rights.

In light of the existing administrative procedure and the

gov ernment’s failure to provide any explanation whatsoever for

bypassing that process, it was error for the district court to make

the initial det ermination to medicate White involuntarily. 2 3 We

therefore remand the action to the district court with instructions24 See U.S. v. Kourey , 276 F.Supp.2d 580, 581 (S.D.W.Va.

2003) (noting that “[t]he decision whether or not [to medicate

the defendant] is best left to the medical professionals at the

Butner Federal Medical Center acting in accordance with

established administrative due process procedures” and that

judicial review “has only been deemed appropriate after

exhaustion of the administrative procedure”).

25 539 U.S. at 182.

8 to order a due process hearing in accordance with § 549.43. 24

The government in sists that even if we cannot review the

district court’s order to medicate White involuntarily on grounds

of dangerousness, we may nevertheless review that court’s order to

medicate White to restore his competency to stand trial. The

government’s position is grounded in the Supreme Court’s

observation in Sell that deciding to administer forced medication

to restore competence involves “quintessentially legal questions of

trial fairness and competence.” 25 The government therefore contends

that, in making this statement, the Supreme Court overtur ned the

regulatory scheme laid out in § 549.43 as to t he issue of

involuntary medication to render a defendant competent for trial.

We disagree. The S ell Court was addressing an inmate’s substantive

right to be free from unwanted medication

—— not the procedural

protections of that right. We seriously doubt that the Court would

thus eviscerate an entire regulatory scheme designed to protect an

inmate’s due process rights by implication.

Ultimately, however, we need not address the go vernment’s

contention here, given the Supreme Court’s admoniti on in S ell to26 Id. at 183; U.S. v. Morrison , 415 F.3d 1180, 1185 (10th

Cir. 2005) (remanding action to district court to consider

involuntary medication to render the inmate non-dangerous before

considering it to render the inmate non-dangerous).

27 Sell , 539 U.S. at 182, 183 (quoting Riggins v. Nevada , 504

U.S. 127, 140 (1992) (Kennedy, J., concurring)).

28 Id. at 182.

29 Id. at 182 (citing, inter alia , various state statutory

schemes and 28 C.F.R. § 549.43).

9 consider whether involuntary medication is appropriate on grounds

of dangerousness before considering whether doing so would be

appropriate to restore an inmate’s competence to stand trial. 26 The

Court reasoned that medicating an inmate to alleviate dangerousness

will, in most cases, obviate the need to do so to restore his

competency, noting that the d angerousness inquiry is more

“‘objective and manageable’” than the competency inquiry. 27

Importantly, observed the Sell Court, “medical experts may find it

easier to provide an informed opinion about whether, given the risk

of side effects, particular drugs are medic ally appropriate to

control a patient’s potentially dangerous behavior... than to try

to balance the harms and benefits related to the more

quintessentially legal questions of trial fairness and

competence.” 28 Furthermore, “courts typically address involuntary

medical treatment as a civil matter” and justify it on

dangerousness grounds. 29

Even if the government’s position has merit, it is of no

moment in this proceeding. Nothing in S e ll casts doubt on §30 Washington v. Harper , 494 U.S. 210, 231 (1990).

10 549.43's applicability to the dangerousness inquiry. In fact, when

it reviewed a state’s involuntary medication administrative

procedure that is substantially similar to § 549.43, the Court

observed that “an inmate’s interests are adequately protected, and

perhaps better served, by allowing the decision to medicate to be

made by medical professionals rather than a judge.” 30

III. CONCLUSION

As the government bypassed the administrative procedure

requi red under the instant circumstances, the district court’s

order is not ripe for review. Accordingly, we vacate the district

court’s order authorizing the involuntary medication of the

defendant and reman d the case for further proceedings consistent

with this opinion, beginning with exhaustion of administrative

procedures.

VACATED and REMANDED for further consistent proceedings.