UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
John Doe, et al.
v. Civil No. 18-cv-1039-JD Opinion No. 2020 DNH 070 Commissioner, New Hampshire Department of Health and Human Services, et al.1
O R D E R
The individual plaintiffs filed a putative class action
that challenges practices used by the Commissioner of the New
Hampshire Department of Health and Human Services (“the
Commissioner”) and four New Hampshire hospitals to involuntarily
detain persons who experience mental health crises and seek
treatment in hospital emergency rooms.2 The Commissioner moves
to dismiss the individual plaintiffs’ claims. The plaintiffs
object.
1 Jeffrey A. Meyers was named as the Commissioner of the New Hampshire Department of Health and Human Services (“DHHS”) in the amended complaint, the motion to dismiss, and the objection. In the reply, Kerrin Rounds was identified as the Acting Commissioner of the New Hampshire Department of Health and Human Services. The DHHS website, www.dhhs.nh.gov/ocom/index.htm, states that Lori Shibinette is now the DHHS Commissioner, and she has been automatically substituted as the defendant in this case. Fed. R. Civ. P. 25(d).
2 The New Hampshire Hospital Association and twenty hospitals intervened in the action as plaintiffs and bring claims against the Commissioner of DHHS. The Commissioner’s motion to dismiss those claims is addressed in a separate order. Standard of Review
In considering a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), the court accepts the well-pleaded
factual allegations in the complaint as true and construes
reasonable inferences in the plaintiff’s favor. Breiding v.
Eversource Energy, 939 F.3d 47, 49 (1st Cir. 2019). “To
withstand a Rule 12(b)(6) motion, a complaint must contain
sufficient factual matter to state a claim to relief that is
plausible on its face.” Rios-Campbell v. U.S. Dept. of
Commerce, 927 F.3d 21, 24 (1st Cir. 2019) (internal quotation
marks omitted). The plausibility standard requires sufficient
factual allegations “to remove the possibility of relief from
the realm of mere conjecture.” Dumont v. Reily Foods Co., 934
F.3d 35, 44 (1st Cir. 2019) (internal quotation marks omitted).
The purpose of the plausibility standard is to “weed out cases
that do not warrant either discovery or trial.” Rios-Campbell,
927 F.3d at 24 (internal quotation marks omitted).
Background
Four named plaintiffs bring this putative class action,
challenging the practices of the Commissioner with respect to
involuntary emergency admissions of persons with mental illness.
Three of the plaintiffs, John Doe, Charles Coe, and Jane Roe,
have been granted permission to proceed under pseudonyms. The
2 fourth plaintiff, Deborah A. Taylor, is proceeding as the
guardian for her son, Scott Stephen Johnstone.
A. Practice of Psychiatric Boarding
Under New Hampshire law, persons, like the plaintiffs, who
experience mental health crises may be involuntarily admitted on
an emergency basis pursuant to RSA 135-C:27-33. The plaintiffs
allege they and other persons who experience mental health
crises are involuntarily detained in hospital emergency rooms,
pursuant to an IEA petition and certificate, without counsel, a
hearing, or any process for challenging the detention. They
allege that the hospitals are not equipped to provide treatment
while certified persons await admission to designated receiving
facilities.
The plaintiffs allege that on August 21, 2017, there were
seventy-one adults waiting for admission to designated receiving
facilities and that on May 25, 2017, there were twenty-seven
children waiting. Some persons have experienced waiting times
lasting up to four weeks. The plaintiffs further allege that
the Commissioner is aware of the problem but has failed to
correct it.
3 B. Experiences of Individual Plaintiffs
1. John Doe
John Doe was admitted to the emergency room at Southern New
Hampshire Medical Center (“SNHMC”) in Nashua, New Hampshire, on
November 5, 2018, after attempting suicide. SNHMC clinicians on
staff believed that Doe was refusing treatment and, for that
reason, completed a petition and a certificate for involuntary
emergency admission under RSA 135-C:28. Doe contends that the
clinicians were mistaken and that he was willing to be treated
for his mental health issues on an out-patient basis.
After the involuntary emergency admission (“IEA”)
certificate was completed, Doe was detained at SNHMC. SNHMC
renewed the IEA petition on November 8, 2018. After this action
was filed on Doe’s behalf, SNHMC changed Doe’s status to
voluntary admission, and the IEA petition and certificate were
rescinded. He was discharged on November 15, 2018, ten days
after the initial IEA petition and certificate were completed.
Doe did not receive a probable cause hearing during the ten days
of his detention at SNHMC.
2. Charles Coe
Charles Coe’s family brought him to the emergency room at
Concord Hospital on July 20, 2018, because he was experiencing
significant anxiety. Although Coe thought he would be admitted
4 voluntarily, Concord Hospital personnel completed a petition and
an IEA certificate. Coe was placed in the psychiatric ward.
He asked to be released on July 25, but Concord Hospital
refused. Instead, hospital personnel completed another petition
and IEA certificate. Coe then was transferred to a wing of the
hospital for behavioral health emergencies. The hospital
renewed the IEA certificate three times. He was not provided a
probable cause hearing during that time.
Coe hired an attorney who challenged his involuntary
admission by filing a petition for a writ of habeas corpus on
August 3. The hospital released Coe on August 8. Merrimack
County Superior Court issued an order on the habeas petition on
August 9. The court ruled that that if a new IEA petition were
filed as to Coe, he would have to be released or provided a
probable cause hearing within three days pursuant to RSA 135-
C:31, I. Doe v. Concord Hospital, No. 217-2018-CV-00448
(Merrimack Cty. Sup. Ct. Aug. 9, 2018).3
3. Jane Roe
Jane Roe had a contentious interaction with her adult
daughter on September 21, 2018. Her daughter called the police
3 In response to the hospital’s motion for reconsideration, the superior court issued an order on September 5, 2018, holding that the August 9 order had no preclusive effect because Doe’s petition had become moot.
5 and an ambulance. When Roe declined to go with the EMTs, they
injected her with a sedative and took her into custody. She was
taken to the emergency room at St. Joseph’s Hospital and was
involuntarily admitted pursuant to a petition and an IEA
certificate. The certificate was renewed six times through
October 9. Roe did not receive a probable cause hearing while
she was detained at St. Joseph’s Hospital.
Roe was transferred to New Hampshire Hospital on October
10, 2018. A probable cause hearing was scheduled there. When
Roe’s daughter was unavailable for the probable cause hearing,
however, Roe was released.
4. Deborah Taylor
Scott Stephen Johnstone was involuntarily admitted to the
emergency room at Memorial Hospital in North Conway under an IEA
petition and certificate on July 17, 2018. This was his third
involuntary emergency admission. His mother and guardian,
Deborah Taylor, completed the petition. Johnstone was detained
at Memorial Hospital for twenty-seven days while awaiting
admission to a designated treatment facility. The IEA
certificate was renewed eleven times during that period.
Johnstone was not provided a probable cause hearing while
detained at Memorial Hospital.
6 Taylor became concerned about the lack of treatment for
Johnstone’s mental illness and the conditions of his detention.
After Taylor told her story to political leaders in New
Hampshire and to the press, Johnstone was transferred to New
Hampshire Hospital on August 13, 2018. Following a hearing,
probable cause was found to keep him there for a month.
C. Claims by Individual Plaintiffs against the Commissioner
The individual plaintiffs bring three counts against the
Commissioner. In Count I, brought pursuant to 42 U.S.C. § 1983,
the plaintiffs allege that the Commissioner denied them
procedural due process in violation of the Fourteenth Amendment
to the United States Constitution. In Count II, the plaintiffs
allege that the Commissioner has violated their due process
rights under the New Hampshire Constitution, Part I, Article 15.
In Count III, the plaintiffs allege that the Commissioner
violated RSA 135-C:31, I by failing to provide them probable
cause hearings within three days after the IEA certificates were
completed.
For relief, the plaintiffs seek a declaration that the
Commissioner’s practice of not providing a probable cause
hearing to persons involuntarily detained in private hospitals
within three days after an IEA certificate is completed violates
7 RSA 135-C:31, I and the Due Process Clause of the Fourteenth
Amendment. They also seek a declaration that the Commissioner’s
practice violates Part I, Article 15 of the New Hampshire
Constitution. They ask the court to impose a preliminary and a
permanent injunction to require the Commissioner to provide
procedural due process to IEA-certified persons who are detained
in hospitals while waiting to be delivered to a designated
receiving facility.
D. Hearing
The court held a hearing on the motions to dismiss, by
videoconference, on April 2, 2020. Counsel for the
Commissioner, the Doe plaintiffs, and the hospital plaintiffs
participated in the hearing.
One issue concerning whether or not Monell v. Department of
Social Services, 436 U.S. 658 (1978), applies to the
circumstances of this case required additional briefing. That
briefing has been submitted.
Discussion
The Commissioner moves to dismiss the claims brought
against her on the grounds that the individual plaintiffs do not
allege state action in support of their § 1983 claim, Count I,
or comply with Federal Rule of Civil Procedure 8(a). The
8 Commissioner asks the court to decline to exercise supplemental
jurisdiction over the state law claims, Counts II and III.
Alternatively, the Commissioner challenges the state law claims
on the merits. The plaintiffs contend that their amended
complaint sufficiently alleges actionable claims.
I. Proper Party as Defendant
The plaintiffs name the Commissioner of DHHS in her
official capacity as the plaintiff in this case. The parties,
however, from time to time, also refer to DHHS and the state as
the defendant. It is understood by the parties that the
Commissioner in her official capacity is the proper party
defendant.
In their surreply, the plaintiffs argued that they “are
attributing liability to the State—through the Commissioner in
her official capacity—for an unconstitutional policy, practice,
and custom under Monell v. Department of Social Services, 436
U.S. 658 (1978).” Doc. no. 137, at *6. At the hearing, the
court questioned the plaintiffs’ reliance on Monell and gave
them an opportunity to brief the issue. The plaintiffs now
agree that Monell does not apply in § 1983 actions against a
state official sued in her official capacity. Therefore, the
plaintiffs’ argument based on Monell is considered withdrawn.
9 II. Rule 8(a)
The Commissioner asks the court to dismiss the individual
plaintiffs’ amended complaint on the ground that it violates the
requirement under Rule 8(a)(2) that a complaint must contain “a
short and plain statement of the claim showing that the pleader
is entitled to relief.” The Commissioner contends that the
amended complaint is “unnecessarily lengthy, repetitive, and
convoluted in light of the nature of this action and the relief
requested.” Doc. No. 103, at *16.
In support, the Commissioner charges that the complaint is
too long and has too many footnotes, that the paragraphs are too
long, that there are advocacy arguments with citations to
exhibits and hyperlinks to news articles, and that there are
charts included in the complaint and too many exhibits appended
to the complaint. Despite the cited problems, the Commissioner
states that the plaintiffs’ claims are straightforward and
summarizes them succinctly. In short, the Commissioner seeks
dismissal of the complaint not because it is difficult to
comprehend but instead because it provides too much information
and will take too long to answer.4
4The Commissioner also faults the plaintiffs for including allegations to show state action in support of their claim under § 1983. She argues that the plaintiffs are impermissibly attempting to negate a possible defense, which is the lack of state action. In the next section of the memorandum, however, the Commissioner argues that state action is an essential
10 The Commissioner has not provided sufficient grounds to
dismiss the complaint based on Rule 8. Cf. Currier v. Town of
Gilmanton, 2019 DNH 129, 2019 WL 3779580, at *2 (D.N.H. Aug. 12,
2019). That said, the complaint has 57 pages with 176
paragraphs and includes extraneous materials, which the
Commissioner challenges. In her answer under Rule 8(b)(1), a
defendant must state her defenses to each claim and must admit
or deny the allegations asserted against her. Denials “must
fairly respond to the substance of an allegation.” Fed. R. Civ.
P. 8(b)(2). On the other hand, if the defendant lacks knowledge
or information sufficient to determine whether an allegation is
true, she must so state, which has the effect of a denial. Fed.
R. Civ. P. 8(b)(5).
In this case, the Commissioner need not admit or deny
advocacy arguments, but she must identify those paragraphs that
she believes to be merely argumentative. She also need not
admit or deny specific exhibits attached to the complaint,
citations to websites, referenced media pieces, state court
proceedings, legislative history, charts that are reproduced in
the complaint, or other referenced materials. Where those
matters are pertinent to the substance of an allegation, the
element of a § 1983 claim and that the plaintiffs have not alleged state action. A complaint cannot be dismissed under Rule 8 for including allegations that are essential to state a cause of action under § 1983.
11 Commissioner must admit or deny the allegation but may note that
she takes no position on the truth or falsity of the cited
materials or information.
III. Section 1983 Claim, Count I, State Action
In Count I, the § 1983 claim, the plaintiffs allege that
the Commissioner’s psychiatric boarding practice violates their
right to procedural due process under the Fourteenth Amendment.
They further allege that they, and putative class members, have
been and will be detained in private hospitals pursuant to IEA
certificates under RSA 135-C:27-33 without timely due process,
including probable cause hearings. They seek a declaratory
judgment that the Commissioner’s psychiatric boarding practice
violates their due process rights, and they seek a prospective
injunction to require the Commissioner to provide timely
process, including hearings.
The two essential elements of a § 1983 claim are that “the
challenged conduct must be attributable to a person acting under
color of state law” and that “the conduct must have worked a
denial of rights secured by the Constitution or by federal law.”
Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997). The right
to due process under the Fourteenth Amendment requires that
“when a claim is proffered that threatens a person’s life,
liberty, or property, that person is entitled to notice and an
12 opportunity to be heard.” Vazquez-Robles v. CommoLoCo Inc., 757
F.3d 1, 2 (1st Cir. 2014). The Commissioner moves to dismiss
Count I on the ground that the plaintiffs have not alleged state
action that resulted in the deprivation of their due process
rights.
The Commissioner contends that, contrary to the plaintiffs’
allegations, she does not have a psychiatric boarding practice.
Instead, the Commissioner argues, the plaintiffs were detained
by private hospitals that acted voluntarily and in the exercise
of their discretion. The Commissioner asserts that she took no
action with respect to the plaintiffs and was not obligated to
take any action until they were delivered to a designated
The plaintiffs dispute the Commissioner’s view of the
involuntary emergency admission process. They argue that the
Commissioner has a constitutional duty under the Fourteenth
Amendment and a statutory duty under RSA 135-C:31, I to provide
for probable cause hearings to IEA-certified persons detained in
private hospitals and that, despite her duty to do so, the
Commissioner does not provide for the required hearings. In
support, they argue that IEA-certified persons are admitted to
the state mental health services system when an IEA certificate
is completed. The Commissioner’s failure to provide the
required process, including hearings, they contend, constitutes
13 state action that violates their rights to procedural due
process.
Even if it were assumed that the Commissioner’s theory of
voluntary participation by the hospitals is correct, that theory
would not resolve the state action issue. State action may be
found where a state actor has a duty to act but fails to do so.
Clark v. Taylor, 710 F.2d 4, 9 (1st Cir. 1983) (“Liability under
section 1983 may be imposed both for action that deprives a
plaintiff of a constitutional right and for failure to act, when
there is a duty to act, to prevent such a deprivation.”); accord
Goodall v. Worcester School Comm., 405 F. Supp. 3d 253, 270-71
(D. Mass. 2019). Therefore, if the Commissioner has a
constitutional and/or a statutory duty to provide for probable
cause hearings to IEA-certified persons who are detained in
private hospitals, but fails to do so, that failure to act would
constitute state action depriving the plaintiffs of due process.
For purposes of the motion to dismiss, the Commissioner
does not dispute that IEA-certified persons have both a
constitutional right and a statutory right to procedural due
process, including a probable cause hearing. See RSA 135-C:30;
Zinermon v. Burch, 494 U.S. 113 (1990); Addington v. Texas, 441
U.S. 418, 425-32 (1979); State v. Ploof, 162 N.H. 609, 622-24
(2011); In re Richard A., 146 N.H. 295, 298 (2001); In re Scott
L., 124 N.H. 327, 331 (1983). At the hearing, counsel for the
14 Commissioner agreed that if the statutory scheme were construed
to mean that a person is admitted to the mental health services
system when the IEA certificate is completed, a probable cause
hearing would be required within three days.
The Commissioner, however, disputes that admission occurs
when the IEA certificate is completed and disputes that an IEA-
certified person is in the custody of the Commissioner at that
time. The Commissioner argues instead that admission does not
occur until an IEA-certified person is physically delivered to a
designated receiving facility.
A. Statutory Framework
The “New Hampshire Public Health Mental Health Services
System” was established under and is governed by RSA chapter
135-C. The purpose of RSA chapter 135-C is
to enable the department of health and human services to: (a) Establish, maintain, and coordinate a comprehensive, effective, and efficient system of services for persons with mental illness. (b) Reduce the occurrence, severity and duration of mental, emotional, and behavioral disabilities. (c) Prevent mentally ill persons from harming themselves or others.
RSA 235-C:1, I; Petition of Sawyer, 170 N.H. 197, 200 (2017).
DHHS is required to “establish, maintain, implement, and
coordinate a system of mental health services under [RSA chapter
15 135-C].” RSA 135-C:3. The mental health services system “shall
be supervised by the Commissioner” of DHHS. Id.
The chapter states that “[a]ny person seeking services from
the state mental health services system may apply to an approved
community mental health program or to a receiving facility.”
RSA 135-C:12, I. In the event of a mental health emergency or
crisis, however, the DHHS website instructs persons seeking
services to go to the emergency department of a private hospital
or to a community mental health center. N.H.D.H.H.S.,
Involuntary Emergency Admissions (IEA), www.dhhs.nh.gov/dcbcs/
nhh/eligibility.htm (last visited April 9, 2020)
[http://perma.cc/PLG9-7ST9] (“DHHS website”). That directive is
necessary, according to the website, because DHHS does not
provide emergency services at New Hampshire Hospital or any
designated receiving facility.5 Id. The website also states
that “[b]ecause [New Hampshire Hospital] has a limited bed
capacity, the person may have to wait at the Emergency
Department or [community mental health center] until a bed at
[New Hampshire Hospital] becomes available.” Id.
5 Hospitals are required to be licensed under RSA chapter 151. RSA 151:2, I(a). With some exceptions, “[e]very facility licensed as a hospital under RSA 151:2, I(a) shall operate an emergency department offering emergency services to all persons regardless of ability to pay 24 hours every day, 7 days a week.” RSA 151:2-g.
16 Once a person seeks services at the emergency department of
a local hospital or a community mental health center, or
services are sought on a person’s behalf, the person is examined
and a determination is made as to whether that person meets the
criteria for involuntary emergency admission provided in RSA
135-C:27. Alternatively, if a “peace officer” takes a person
into protective custody because of his or her behavior, the
officer is required to transport the person “directly to an
emergency room of a licensed general hospital” or to another
place designated by the community mental health program serving
that area. RSA 135-C:28, III.
“The involuntary emergency admission of a person shall be
to the state mental health services system under the supervision
of the Commissioner.” RSA 135-C:28, I (emphasis added).
Admission to the mental health services system “may be ordered
upon the certificate” of an approved medical care provider at a
hospital emergency department or community mental health center
when the person examined meets the criteria of RSA 135-C:27.
RSA 135-C:28, I. The Commissioner keeps a list of medical
providers who are approved by her to administer IEA examinations
and to complete IEA certificates. RSA 135-C:28, I.
The “Petition and Certificate for Involuntary Emergency
Admission (IEA)” is a form that is available on the website
www.courts.state.nh.us and is designated “NHJB-2826-D”. Doc.
17 no. 103-2. The form includes sections for a petitioner’s
statement about the person’s dangerousness, for a witness’s
statement about the person’s dangerous acts or behaviors, and
for reports of the physical and mental examinations conducted by
medical providers.
The last part of the form is entitled the “State of New
Hampshire Certificate of Examining Physician or APRN for
Involuntary Emergency Admission.” In the certificate, the
approved medical provider certifies to the provider’s
qualifications, that the provider is not a relative of the
mentally ill person, and that the required examinations have
been performed. The provider then certifies that, in his or her
opinion, the criteria of RSA 135-C:27 are satisfied “as the
person is in such mental condition as a result of mental illness
that s/he poses a serious likelihood of danger to self or
others.” Doc. no. 103-2, at *8.
Once an IEA certificate is completed, “a law enforcement
officer shall, [unless an exception applies], take custody of
the person and shall immediately deliver such person to the
receiving facility.” RSA 135-C:29, I. If certain specified
situations arise “before custody of the person is accepted by a
law enforcement officer pursuant to RSA 135-C:29, the
certificate may be rescinded and the person who is the subject
of the certificate released.” RSA 135-C:29-a, I. “New Hampshire
18 hospital and any other facility approved by the Commissioner
shall be designated as receiving facilities for the care,
custody, and treatment of persons subject to involuntary
admissions.” RSA 135-C:26, I.
Designated receiving facilities are authorized to accept
“persons involuntarily admitted to the state mental health
services system” for “care, custody, and treatment.” RSA 135-
C:2, XIV. As is noted above, however, the Commissioner
acknowledges that designated receiving facilities may not be
available to accept IEA-certified persons, in which case private
hospitals are required to house those persons. 6
An IEA-certified person is entitled to a probable cause
hearing within three days after admission to the mental health
services system. RSA 135-C:31, I. In connection with the
6 The New Hampshire legislature is also aware of the problem of psychiatric boarding in private hospitals that is at issue in this case. The legislature has anticipated that DHHS may need to change its procedures in response to this case. Senate Bill 11, which became effective in July of 2019 and is codified in part at RSA 151:2-h, states: No later than 30 days following the first decision on the merits in Doe v. NH Department of Health and Human Services, et al. #1:18-CV-01039, or a court-approved agreement of all parties in the case, the commissioner of the department of health and human services shall initiate emergency rulemaking consistent with either the first decision on the merits or the court-approved agreement. The commissioner shall adopt such rules within 90 days of initiating rulemaking.
19 probable cause hearing, the person is entitled to notice of
certain rights, including the right to counsel and the right
“[t]o apply for admission on a voluntary basis.” RSA 135-C:30.
The person may also request a continuance of the hearing or
waive the hearing. RSA 135-C:31, II & III. At the probable
cause hearing, the burden is on the petitioner to show that
probable cause existed for the involuntary emergency admission.
RSA 135-C:31, I. The district court is required to render its
decision as soon as possible “but not later than the end of the
court’s next regular business day.” Id.
B. Admission to the Mental Health Services System
The Commissioner’s duty to provide due process, including a
probable cause hearing as required under RSA 135-C:31, I, arises
when a person is admitted into the mental health services system
and into the custody of the Commissioner. The plaintiffs
contend that admission occurs when an IEA certificate is
completed. The Commissioner contends that admission does not
occur until an IEA-certified person is delivered to a designated
The parties’ dispute raises a legal issue about the meaning
of “admission” as used in RSA 135-C:31, I. The New Hampshire
Supreme Court has not interpreted “admission” for purposes of
20 RSA 135-C:31, I.7 Both the plaintiffs and the Commissioner
contend that the pertinent statutory language is unambiguous,
although they urge different constructions.8
1. Statutory Construction
Because RSA chapter 135-C is New Hampshire law, this court
applies the rules of statutory construction used by the New
Hampshire Supreme Court. See United States v. Burghardt, 939
F.3d 397, 407-08 (1st Cir. 2019). The New Hampshire Supreme
7 In Doe v. Concord Hospital, No. 2018-CV-448, at *5 (Merr. Cty. Sup. Ct. Aug. 9, 2018), the court, in a thoughtful opinion, recognized the liberty interest of a person subject to involuntary emergency civil commitment procedures under RSA 135- C:28, which implicated federal and state due process requirements. The court found that RSA 135-C:31 was the procedure provided to address those due process concerns. Id. at *6. The court concluded that the petitioner’s due process rights were being violated by detaining IEA-certified persons without providing a hearing within three days after the first IEA certificate was completed. Id. at *1. That decision, however, is not a binding interpretation of RSA 135-C:31. O’Connor v. Oakhurst Dairy, 851 F.3d 69, 72 (1st Cir. 2017). Further, the Merrimack County Superior Court held, on reconsideration, that the August 9 decision would have no preclusive or binding effect. Doe v. Concord Hospital, No. 2018-CV-00448, at *7-*8 (Merrimack County Sup. Ct. Sept. 5, 2018). On the other hand, while the decision is not binding or preclusive, this court can consider its reasoning in addressing the issues in this case.
8 During the hearing, counsel for the Commissioner raised the possibility of certifying a question of statutory construction to the New Hampshire Supreme Court. The court directed counsel to confer on the issue and held a telephone conference. No party requested certification. After considering the matter, the court has concluded that certification is not necessary.
21 Court “first look[s] to the language of the statute itself, and,
if possible, construe[s] that language according to its plain
and ordinary meaning.” State v. Folley, --- A.3d ---, 2020 WL
122727, at *7 (N.H. Jan. 10, 2020). The court construes “all
parts of a statute together to effectuate its overall purpose
and to avoid absurd or unjust results.” State v. Salimullah, --
- A.3d ---, 2020 WL 122712, at *2 (N.H. Jan. 10, 2020). In
addition, the court construes statutory language “in light of
the policy sought to be advanced by the entire statutory
scheme.” State v. Mfataneza, 172 N.H. 166, 169 (2019).
Whenever it is reasonably possible, statutory language must be
construed “to avoid bringing it into conflict with the
constitution.” State v. Paul, 167 N.H. 39, 44-45 (2014).
a. Purpose
RSA chapter 135-C (“the chapter”) was enacted by the New
Hampshire legislature to enable DHHS to “[e]stablish, maintain,
and coordinate a comprehensive, effective, and efficient system
of services for persons with mental illness.” RSA 135-C:1,
I(a). The policies, practices, and procedures laid out in the
chapter are intended to create a comprehensive and efficient
system for addressing mental health issues and treatment needs
and for accomplishing the purposes and goals of the chapter.
One of the important purposes of the mental health system is to
22 “[p]revent mentally ill persons from harming themselves or
others.” Id. at I(c).
b. Procedures
The chapter’s statutory purpose is effectuated through the
procedures set forth at RSA 135-C:27-33, which provide for
involuntary emergency admissions to the mental health services
system. Involuntary emergency admission is a progressive
process involving several steps that affect a person’s status in
the mental health services system.
A person experiencing a mental health crisis is first
examined and evaluated at a hospital emergency room or at a
community mental health center to determine whether s/he poses
“a likelihood of danger to himself [herself] or others.” RSA
135-C:27, I. The approved medical care providers conduct
physical and mental evaluations. If the person is found to meet
the criteria provided in RSA 135-C:27, the provider completes an
IEA certificate.
Completion of the IEA certificate carries with it immediate
significant consequences. Certification establishes at the
outset that the person is likely to be a danger to himself,
herself, or others. Because of that determination, the person
is admitted to “the state mental health services system under
23 the supervision of the Commissioner” and is at that point placed
in the custody and control of the Commissioner. RSA 135-C:28,
I.
Following certification, the statute requires that an IEA-
certified person be delivered immediately to a designated
receiving facility.9 The statute does not provide any procedure
for holding a person indefinitely pending delivery to a
designated receiving facility. There is also no statutory
requirement for re-examination, re-evaluation, or re-
certification of the person when that person is delivered to a
designated receiving facility, which underscores the conclusion
that admission to the mental health services system has already
occurred before delivery, that is, at the time of certification.
The statute also provides for another critically important
procedure, a probable cause hearing, which “shall” be held
within three days of certification.10 As the statutory
procedures are designed to work, the probable cause hearing is
9 The parties dispute the meaning and implications of the phrase “immediately deliver such person to the receiving facility” and whether that would allow for long-term detention by a hospital. RSA 135-C:29, I. Because admission into the mental health system triggers the probable cause hearing requirement, it is not necessary to address that dispute.
10An IEA-certified person must be notified of certain rights and procedures that precede a probable cause hearing. RSA 135-C:30.
24 to be held after the IEA-certified person has been delivered to
a designated receiving facility. RSA 135-C:31, I.
At the probable cause hearing, the district court
determines whether “there was probable cause for involuntary
emergency admission.” RSA 135-C:31, I (emphasis added). The
petitioner bears the burden of showing that probable cause
existed. Id. The court determines whether there was probable
cause to involuntarily admit the certified person on an
emergency basis because that person “posed a likelihood of
danger to himself or others.” In other words, at the probable
cause hearing the court evaluates whether probable cause existed
at the time of certification.
The statutory procedure described above establishes a
process that is intended to progress logically through a series
of steps: 1) admission to the state mental health services
system occurs upon completion of the IEA certificate at which
point the certified person is placed in the custody of the
Commissioner; 2) the person is immediately delivered to a
designated receiving facility; and 3) within three days of
admission, a probable cause hearing is to be held and the
district court determines whether there was probable cause for
the involuntary emergency admission.
25 c. Commissioner’s Construction
The Commissioner argues that admission does not occur until
an IEA-certified person is delivered to a designated receiving
facility. Based on that construction, the Commissioner contends
that she has no duty to provide for probable cause hearings
until three days after a person is delivered to a designated
receiving facility.11
The Commissioner has proposed a construction of the
statutory procedure for involuntary emergency admission that
ignores the significance of the certification process and the
logical progression of events provided by RSA 135-C:27-33.
Certification is the mandatory first step in the admission
11The Commissioner also argues that IEA-certified persons are not in custody but are at liberty and may be released until delivery to a designated receiving facility. In support, she relies on RSA 135-C:39, I. RSA 135-C:39, however, applies only to procedures for involuntary admissions that do not involve an emergency. A person subject to admission to the mental health services system under the involuntary admission procedures, RSA 135-C:34- 54, is not subject to an IEA certificate and has not been found to be a likely danger to himself or others. Instead, a petition for involuntary admission, which is not an emergency, is filed with the probate court, which then conducts a hearing. It is pending this hearing that the person is “at liberty.” Therefore, RSA 135-C:39, on its face, when viewed in its statutory context (RSA 135-C:34-54), provides no support for the Commissioner’s theory that IEA-certified persons are at liberty and may be released. Furthermore, it would make neither common nor medical sense to allow the release of a person, certified to pose a likely danger to himself or others, pending delivery to a designated receiving facility.
26 process, which changes the legal status of the IEA-certified
person. An IEA-certified person could not be taken into custody
and delivered to a designated receiving facility without first
being admitted to the mental health services system. The
Commissioner’s construction apparently views certification as an
independent event, detached from the rest of the statutory
procedure, that does not carry with it any consequences
requiring the Commissioner’s involvement.12
When construing the meaning of statutory language, the
court must look at RSA chapter 135-C as a whole because there is
12The Commissioner asserts that she has no duty to an IEA- certified person because private hospitals voluntarily participate in the IEA-certification process and the approved medical care providers have discretion not to complete IEA certificates. She argues that hospitals are free to turn away persons experiencing mental health crises, without conducting an evaluation under RSA 135-C:28. She further argues that if hospitals want to avoid the rigors of psychiatric boarding, their providers should exercise their discretion not to complete IEA certificates. This is an unusual position to take given the purpose and goals of RSA chapter 135-C. For many reasons, hospitals and medical care providers are not at liberty to refuse to examine persons who come to hospital emergency departments. Indeed, as the DHHS website shows, the Commissioner relies on private hospitals to provide those emergency services. The Commissioner does not argue that the hospitals and medical care providers have improperly completed certificates or that the completed certificates are invalid. Even if the hospitals and medical care providers were acting as volunteers, which the Commissioner has not shown, once an IEA certificate is properly completed, the certified person is admitted into the state’s mental health services system and is in the custody of the Commissioner. Therefore, the Commissioner cannot escape her statutory duty by arguing that the hospitals and medical care providers are merely volunteers.
27 a presumption that the legislature intended to create a
harmonious plan or system to address a particular issue, in this
case, the medical needs of those experiencing a mental health
crisis. Contrary to the Commissioner’s construction,
certification is, significantly, the first step in the process
by which persons in need of emergency mental health services are
involuntarily admitted into the mental health services system
and are placed in the custody and control of the Commissioner.
For the reasons explained above, the statutory procedure
provided in RSA 135-C:27-33 on its face does not support the
Commissioner’s construction of when admission occurs and when
probable cause hearings are to be held. Instead, the plain and
ordinary meaning of RSA 135-C:31, I, read in light of RSA
chapter 135-C’s purpose and in the context of the involuntary
emergency admission procedure as a whole, is that “an
involuntary emergency admission,” for purposes of triggering the
time for a probable cause hearing, occurs when an IEA
certificate is completed.
The court rules that involuntary emergency admission into
the mental health services system, as provided by RSA 135-C:27-
33, occurs when an IEA certificate is completed. Following
certification, the statutory procedures require immediate
delivery of the certified person to a designated receiving
28 facility and a probable cause hearing within three days after
certification.
2. Application
As alleged by the plaintiffs in this case, the statutory
procedures are not working properly. The designated receiving
facilities do not have space to accommodate all of the IEA-
certified persons who should be delivered to those facilities.
As a result, IEA-certified persons are boarded in private
hospitals while waiting for space in designated receiving
facilities. While they wait, those persons are not provided
treatment or probable cause hearings.
Irrespective of the facilities problem, the Commissioner
has a duty mandated by statute to provide for probable cause
hearings within three days of when an IEA certificate is
completed. A failure to comply with this statutory duty
constitutes state action. Clark, 710 F.2d at 9.
B. Result
In support of Count I, the plaintiffs allege that the
Commissioner has not provided for probable cause hearings to IEA
-certified persons housed in private hospitals. They further
allege that the Commissioner’s failure to comply with her
statutory duty has resulted in prolonged detentions in violation
29 of the IEA-certified persons’ due process rights. In light of
the court’s construction of the procedures set forth in RSA 135-
C:27-33, the plaintiffs’ allegations are sufficient to allege
state action for purposes of Count I. The court need not
consider the other theories of state action.
IV. State Law Claims, Counts II and III
Because the court has not dismissed the plaintiffs’ § 1983
claim, the Commissioner’s request that the court decline to
exercise supplemental jurisdiction over the state law claims
fails. In addition, the Commissioner moves to dismiss Count II,
which alleges violation of the plaintiffs’ rights to due process
under the New Hampshire Constitution, on the ground that state
action is lacking. As is explained above, the plaintiffs’
allegations that the Commissioner has failed to provide for
probable cause hearings within three days after the completion
of an IEA certificate allege state action for purposes of this
case.
The Commissioner moves to dismiss Count III, which alleges
violation of RSA 135-C:31, I, on the ground that the statute
does not require a hearing until after a person is delivered to
a designated receiving facility. The court has construed RSA
135-C:31, I to require a probable cause hearing within three
30 days after completion of an IEA certificate. Therefore, the
Commissioner’s motion as to Count III fails.
V. Summary
• The Commissioner did not show grounds to dismiss the
amended complaint based on Federal Rule of Civil
Procedure 8(a).
• In accordance with RSA 135-C:27-33, involuntary
emergency admission to the state mental health services
system occurs when an IEA certificate is completed.
• The Commissioner has a statutory duty to provide IEA-
certified persons with probable cause hearings within
three days after an IEA certificate is completed.
• The plaintiffs allege that the Commissioner has failed
to provide for probable cause hearings to IEA-certified
persons while they are boarded in hospital emergency
rooms.
• As alleged, the Commissioner’s failure to provide for
statutorily required hearings is state action for
purposes of the plaintiffs’ claims in Counts I and II.
• Because the court rejects the Commissioner’s
construction of the statutory procedure, the
31 Commissioner’s grounds for dismissing Count III also
fail.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (document no. 103) is denied.
SO ORDERED.
______________________________ Joseph A. DiClerico, Jr. United States District Judge
April 30, 2020
cc: Counsel of record