UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
John Doe, et al.
v. Civil No. 18-cv-1039-JD Opinion No. 2021 DNH 001 Commissioner, New Hampshire Department of Health and Human Services
O R D E R
Four individual plaintiffs brought suit, challenging
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 individuals
who experience mental health crises and seek treatment in
hospital emergency rooms.1 The New Hampshire Hospital
Association and twenty hospitals (“the hospitals”) were granted
leave to intervene in the action to bring claims against the
Commissioner.2 The Commissioner moves to dismiss the hospitals’
remaining claims for lack of subject matter jurisdiction,
asserting sovereign immunity under the Eleventh Amendment and a
lack of standing. The hospitals object.
1 The plaintiffs’ action was filed as a putative class action against the Commissioner, and a plaintiff class has now been certified for purposes of the plaintiffs’ federal claim against the Commissioner, Count I.
2 The hospitals have voluntarily dismissed their state law claims, Counts IV and V, without prejudice. Background
The detailed factual background in this case, as alleged in
the hospitals’ amended complaint, was provided in the court’s
order denying the Commissioner’s previous motion to dismiss,
document number 148, and will not be repeated here.
The hospital plaintiffs are the New Hampshire Hospital
Association, Alice Peck Day Memorial Hospital, Androscoggin
Valley Hospital, Catholic Medical Center, Cheshire Medical
Center, Concord Hospital, Cottage Hospital, Elliot Hospital,
Frisbie Memorial Hospital, HCA Health Services of New Hampshire
(Parkland Medical Center and Portsmouth Regional Hospital),
Huggins Hospital, Littleton Hospital Association (Littleton
Regional Healthcare), LRGHealthcare (Franklin Regional Hospital
and Lakes Region General Hospital), Mary Hitchcock Memorial
Hospital, Monadnock Community Hospital, New London Hospital,
Southern New Hampshire Medical Center, Speare Memorial Hospital,
Upper Connecticut Valley Hospital, Valley Regional Hospital, and
Weeks Medical Center. The hospitals name the Commissioner in
her official capacity as the defendant in this case.
The hospitals’ allege that the Commissioner requires the
hospitals to examine, evaluate, and board psychiatric patients,
who are subject to involuntary emergency admission (“IEA”)
certification, until such time as they are transported to a
2 designated receiving facility. The hospitals bring three
federal claims against the Commissioner, pursuant to 42 U.S.C.
§ 1983, alleging that the Commissioner’s practice of boarding
IEA-certified persons in their emergency departments is
violating their constitutional rights.
In Count I, the hospitals allege that the Commissioner’s
boarding practice constitutes an unlawful taking of their
property for public use in violation of the Fifth and Fourteenth
Amendments. In Count II, they allege that the practice
interferes with their possessory rights in their emergency
departments which constitutes an unreasonable seizure of their
property in violation of the Fourth Amendment. In Count III,
they allege that the practice violates their rights to
procedural and substantive due process under the Fourteenth
Amendment by seizing and taking their property and denying them
their fundamental right to use their emergency departments. The
hospital plaintiffs seek a declaration that the Commissioner’s
practice violates their federal constitutional rights and a
permanent injunction against the practice. They also are
requesting nominal damages and attorneys’ fees and costs.
Discussion
The Commissioner moves to dismiss the hospitals’ claims on
the grounds that the claims are barred by sovereign immunity
3 under the Eleventh Amendment and that the hospitals lack
standing to bring the claims. The hospitals object, arguing
that the exception to sovereign immunity provided under Ex Parte
Young, 209 U.S. 123 (1908), applies to their claims. They also
argue that they have standing to bring their claims.
I. Standard of Review
The Commissioner’s motion to dismiss challenges the court’s
subject matter jurisdiction and is brought pursuant to Federal
Rule of Civil Procedure 12(b)(1). Under Rule 12(b)(1), the
court construes the allegations in the complaint liberally,
treats all well-pleaded facts as true, and resolves inferences
in the plaintiffs’ favor. Jalbert v. U.S. Securities & Exchange
Comm’n, 945 F.3d 587, 590-91 (1st Cir. 2019). In addition to
the complaint, the court may consider other evidence submitted
by the parties without objection. Hajdusek v. United States,
895 F>3d 146, 148 (1st Cir. 2018). The plaintiff, as the party
invoking federal jurisdiction, bears the burden of showing that
subject matter jurisdiction exists when challenged by a motion
to dismiss on that ground. Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992).
4 II. Eleventh Amendment
The Commissioner contends that sovereign immunity under the
Eleventh Amendment bars the hospitals’ claims and that the
exception under Ex Parte Young does not apply. Specifically,
the Commissioner argues that the state is the real party in
interest. She also argues that Count III, which alleges a
violation of procedural and substantive due process, is based
solely on allegations that she is violating New Hampshire law.
Further, the Commissioner argues that the Eleventh Amendment
bars the hospital’s claim for nominal damages.
In the absence of consent by the state, the Eleventh
Amendment provides the state immunity from suit brought in
federal court by citizens of that state or another state.
Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984). When a state official is sued, the suit is barred if
“the state is the real, substantial party in interest.” Id. at
101. Congress’s enactment of 42 U.S.C. § 1983 did not waive
states’ sovereign immunity to suit in federal court. Spencer v.
N.H. St. Police, 2019 WL 1546995, at *1 (D.N.H. Apr. 9, 2019).
Any waiver of sovereign immunity must be express. Blanchette v.
Tretyakov, 2020 WL 4219787, at *3 (D. Mass. July 23, 2020).
“[A] suit challenging the constitutionality of a state
official’s action is not one against the State.” Pennhurst, 465
U.S. at 102. For that reason, claims for prospective injunctive
5 relief and declaratory judgments to stop an ongoing violation of
federal law by a state official may be brought against the state
official, sued in her official capacity. Va. Office for
Protection & Advocacy v. Stewart, 563 U.S. 247, 255-56 (2011)
(“VOPA”); Ex Parte Young, 209 U.S. at 156. While federal courts
are authorized to require state officials to conform to federal
law, they are not authorized to require state officials to
conform to state law. Pennhurst, 465 U.S. at 101-02.
A. Real Party in Interest
The Commissioner contends that the state is the real party
in interest for purposes of the hospitals’ claims. In support,
the Commissioner relies on the same arguments that she made in
her memorandum in support of her motion to dismiss the class
plaintiffs’ federal due process claim (Count I in their amended
complaint). See doc no. 186, at *8; compare doc. no. 186, at
*7-*16 with doc. no. 185, at *8-*17; see also doc. no. 197, ¶ 1.
The Commissioner argues that others are responsible for
providing actions and functions necessary to transfer IEA-
certified persons to designated receiving facilities and to hold
probable cause hearings. She contends that because she cannot
control all of the pertinent actors, the claims are brought
against the state and not against her in her official capacity.
6 1. Shared Responsibility
As the hospitals state in their amended complaint, under
New Hampshire law, “[t]he involuntary emergency admission of a
person shall be to the state mental health services system under
the supervision of the [DHHS] commissioner.” Am. Compl., doc.
no. 77, at *2 (quoting RSA 135-C:28, I). However, the state
does not provide emergency services for persons experiencing
mental health crises. Instead, as the hospitals allege, the
Commissioner directs such persons to the emergency departments
of private hospitals, where approved hospital personnel are
tasked with examining them and completing an IEA certificate if
necessary.3 When the Commissioner lacks space in a designated
receiving facility for an IEA-certified person, the Commissioner
requires the hospitals to board the person until space becomes
available. The hospitals further allege that the Commissioner
requires their personnel to conduct IEA examinations every three
days during the boarding period in order to issue new IEA
certificates. In addition, they allege that the Commissioner’s
failure to provide probable cause hearings for the IEA-certified
persons while they are boarded in hospital emergency rooms
contributes to the length of the boarding period.
3 As a condition of their licenses, hospitals in New Hampshire are required to operate emergency departments seven days a week and twenty-four hours per day. RSA 151:2-g.
7 The hospitals allege that the Commissioner, in her official
capacity, is violating their Fourth, Fifth, and Fourteenth
Amendment rights through her policies and practices with respect
to persons who are experiencing mental health crises and are
certified for involuntary emergency admission to the mental
health services system. They allege that the Commissioner’s
boarding practice is a taking without just compensation in
violation of the Fifth Amendment, constitutes unreasonable
interference with their possessory interest in their emergency
departments in violation of the Fourth Amendment, and violates
their procedural and substantive due process rights protected
under the Fourteenth Amendment.
The Commissioner is responsible for supervising and
administering the state’s mental health services system and the
participation of others in the process does not relieve her of
that responsibility. See discussion in doc. no. 201, at *12-
*15.
2. Other Arguments
Similarly, the Commissioner’s other arguments in support of
her position that the state is the real party defendant were
addressed in the prior order and were decided against her. See
doc. no. 201, at *15-*19. Her argument that the circuit court
is responsible for providing hearings does not implicate the
state as the real party in interest. See id. at *15-*16. Any
8 purported disruption in the Commissioner’s boarding practice in
order to conform her policies and practices to constitutional
requirements does not convert the hospitals’ claims into claims
against the state. See id. at *16-*18. Further, funding that
is ancillary to an injunction to stop violations of plaintiffs’
constitutional rights does not make the claims fall outside the
exception to sovereign immunity provided by Ex Parte Young. See
id. at *18-*19.
Therefore, the Commissioner in her official capacity is the
defendant in this case.
B. State Law or Federal Law
As is noted above, the exception provided by Ex Parte Young
does not apply to claims seeking enforcement of state law.
Pennhurst, 465 U.S. at 106. The Commissioner argues that the
hospitals’ due process claim in Count III alleges only a
violation of state law, RSA chapter 135-C.4 In support, she
cites one part of the hospitals’ requests for relief in their
amended complaint and states in her reply that the claim is
based solely on allegations of state law violations.
4 The Commissioner does not challenge Counts I or II on the ground that the hospitals allege only a violation of state law.
9 1. Relief Requested
In Count III of their amended complaint, the hospitals
state that they “seek a declaration that [the Commissioner’s]
conduct, policy and practice violate the Hospitals’ Fourteenth
Amendment substantive and procedural due process rights.” Doc.
77, ¶ 112. They also “seek a permanent injunction enjoining
[the Commissioner] from continuing [her] policy, and practice.”
Id. As part of the final section of the amended complaint in
the request for relief, which the Commissioner cites, the
hospitals ask the court to declare violations of their
constitutional rights and seek an injunction to stop the
Commissioner’s alleged violations of state law. Doc. 77, at
*32-*33.
Although the request at the end of the amended complaint is
limited to an injunction to stop violations of state law, in
Count III, the hospitals have requested an injunction to stop
the Commissioner’s continuing violation of their Fourteenth
Amendment due process rights and ask for a declaratory judgment
that the Commissioner is violating their Fourteenth Amendment
rights. Therefore, the Commissioner is mistaken that the
hospitals failed to request relief based on federal law. As
previously stated, although a federal court cannot enjoin
violations of state law, under Ex Parte Young, a federal court
10 can enjoin a state official sued in her official capacity from
continuing to violate the federal constitution.
2. Violations of State Law
To the extent the Commissioner challenges Count III as
alleging only a violation of state law, that is not the claim
the hospitals allege. In Count III, the hospitals allege that
the Commissioner’s boarding practice is violating their
substantive and procedural due process rights protected by the
Fourteenth Amendment.
Although the hospitals refer to the state statutory
requirement that the Commissioner immediately transport IEA-
certified persons to designated receiving facilities, that
reference is not the basis of the hospitals’ claim but rather
refers to the Commissioner’s responsibilities under state law.
The constitutional violation they allege is that IEA-certified
persons are not transported to designated receiving facilities
in a timely fashion and instead the Commissioner requires the
hospitals to board those persons in hospital emergency
departments indefinitely without any state procedure to allow
the hospitals to challenge that boarding practice. As such, the
hospitals allege a federal claim that the Commissioner’s
boarding practice violates the due process clause of the
11 C. Nominal Damages
In addition to declaratory and injunctive relief, the
hospitals seek an award of nominal damages in their federal
claims (Counts I, II, and III). The Commissioner moves to
dismiss the claims for nominal damages as barred by sovereign
immunity. The hospitals did not object or even address that
part of the motion to dismiss.
The Commissioner, when sued in her official capacity, is
entitled to sovereign immunity from suit brought in federal
court by citizens of New Hampshire. Pennhurst, 465 U.S. at 100.
That immunity includes a bar against nominal damages. Am. Civil
Liberties Union of Mass. V. U.S. Conference of Catholic Bishops,
705 F.3d 44, 53 n.7 (1st Cir. 2013). The hospitals cite no
exception to sovereign immunity that would permit that relief
here.
Therefore, the hospitals’ claims for nominal damages are
dismissed.
II. Standing
The Commissioner contends that the hospitals lack Article
III standing to maintain their federal claims. Under Article
III of the Constitution, federal courts are limited to deciding
“‘cases and controversies of the sort traditionally amenable to,
12 and resolved by, the judicial process.’” Amrhein v. eClinical
Works, LLC, 954 F.3d 328, 330 (1st Cir. 2020) (quoting Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998)). Part
of the case or controversy requirement is that plaintiffs must
have standing to maintain the claims alleged. Id.
“To have standing, a plaintiff must present an injury that
is concrete, particularized, and actual or imminent; fairly
traceable to the defendant’s challenged action; and redressable
by a favorable ruling.” Dept. of Commerce v. New York, 139 S.
Ct. 2551, 2565 (2019). The Commissioner does not challenge the
existence of the hospitals’ injury. She contends that the
hospitals failed to allege an injury that is fairly traceable to
her actions or that the injury is likely to be redressed by the
injunction she seeks.
A. Fairly Traceable
The Commissioner contends that the hospitals’ injuries are
not fairly traceable to her because they allege that a number of
third parties, rather than the Commissioner, caused them. When
a plaintiff’s injury depends on a causal chain of events that
includes the independent actions of third parties along with the
defendant, the resulting injury may not be fairly traceable to
the defendant. Dantzler, Inc. v. Empresas Berrios Inventory &
Operations, Inc., 958 F.3d 38, 48 (1st Cir. 2020). The causal
13 chain is broken when actions or decisions by independent third
parties might or might not occur, so that the cause of the
anticipated injury to the plaintiff is merely speculative.5
Id. For that reason, when an injury is indirect, the plaintiff
may have a difficult time showing a causal chain. Id.
In support, the Commissioner points to paragraphs in the
hospitals’ amended complaint which she contends show that the
injuries were caused by third parties. In the referenced
paragraphs, the hospitals cite a 2017 report about the numbers
of psychiatric patients waiting in hospital emergency
departments, discuss a failed pilot program to provide probable
cause hearings, and allege that DHHS’s ten year plan proposes
that the hospitals provide probable cause hearings for IEA-
certified persons. Those allegations do not establish, as the
Commissioner represents, that the hospitals allege injury caused
by others’ actions.
The hospitals’ position is that the Commissioner’s failure
to remove IEA-certified persons immediately after the
5The injury alleged in Dantzler was that the plaintiffs, shippers who used ocean freight carriers to import goods, were losing money because of fees charged by the freight carriers that were imposed to pay the fees collected from the freight carriers for the Puerto Rico Ports Authority’s scanning program. Dantzler, 958 F.3d at 42. The court found the injury was not fairly traceable to the Ports Authority because the plaintiffs’ allegations were only that the freight carriers might pass the cost along, not that they were required to do so. Id. at 48-49.
14 certificate is completed is an injury fairly traceable to her.
In response, the Commissioner focuses narrowly on the
transportation of IEA-certified persons. She argues that
transportation is not her responsibility and that instead
transport of IEA-certified persons is up to law enforcement,
which the hospitals could arrange themselves under RSA 135-C:63.6
The Commissioner’s theory misconstrues the hospitals’
allegations. Rather, the hospitals do not allege any failure on
the part of law enforcement to transport patients. The
hospitals are alleging that the Commissioner’s boarding
practice, which requires them to board IEA-certified persons
because they cannot be immediately transferred to designated
receiving facilities, violates their federal constitutional
rights.
To the extent others participate in the IEA-certification
process and in providing other actions and functions necessary
for mental health services, the ultimate responsibility for the
mental health services system falls on the Commissioner. The
hospitals allege that their injury is directly caused by the
Commissioner’s practice of directing persons experiencing mental
6 RSA 135-C:62 and :63 give authority to law enforcement officers to take custody of and transport IEA-certified persons “[e]xcept as provided in RSA 135-C:29.” The Commissioner has not shown how those statutes affect the hospitals’ claims in this suit.
15 health crises to private hospitals and then requiring the
hospitals to board IEA-certified patients indefinitely and to
renew the certificates every three days without providing
probable cause hearings. The injury as alleged by the hospitals
is fairly traceable to the Commissioner’s boarding practice.
B. Redressable by a Favorable Decision
To satisfy the redressability requirement, the hospitals
must allege facts to show “that the court can fashion a remedy
that will at least lessen [their] injury.” Dantzler, 958 F.3d
at 49. If the remedy sought depends mostly or entirely on the
actions of third parties, who are not parties in the case, the
court probably cannot provide a remedy to lessen the injury.
Id. When the plaintiff challenges a practice as
unconstitutional, a court can redress the injury by an
injunction without ordering any particular system or means by
which to change the challenged practice. Lyman v. Baker, 954
F.3d 351, 362 (1st Cir. 2020).
The Commissioner argues that the hospitals have not alleged
redressability because others would be involved in resolving the
issues raised by the hospitals’ claims. As is addressed above,
to the extent others may be involved in the procedures necessary
to eliminate the Commissioner’s boarding practice, the
Commissioner bears the ultimate responsibility for supervising
16 and administering the mental health services system and for
correcting any constitutional deficiencies that may be found to
exist. An injunction need not specify a specific means to
change the challenged practice, if it is found to violate the
constitution.
Further, as the hospitals point out, to be redressable,
they need only show that the relief they request would at least
lessen their injury. They contend that “[i]f a favorable ruling
only resulted in the Commissioner directing persons to commence
the IEA process with a visit to [New Hampshire Hospital], a
[designated receiving facility], or a local hospital emergency
department, the Hospitals’ injuries could be ameliorated.” Doc.
199, at *4. They also contend that a favorable ruling could
require the Commissioner to fill the available beds in
designated receiving facilities. In either event, the hospitals
argue, the result would reduce the number of IEA-certified
persons subject to boarding in their emergency departments. The
hospitals, therefore, have alleged a redressable injury.
The hospitals have standing to maintain their claims in
Counts I, II, and III.
17 Conclusion
For the foregoing reasons, the Commissioner’s motion to
dismiss (document no. 186) is granted as to the hospitals’
claims for nominal damages and is otherwise denied.
SO ORDERED.
______________________________ Joseph A. DiClerico, Jr. United States District Judge January 4, 2021
cc: Counsel of record.