UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
John Doe, et al.
v. Civil No. 18-cv-1039-LM Opinion No. 2023 DNH 058 P Commissioner, New Hampshire Department of Health and Human Services
ORDER
Four individual plaintiffs bring this class action against the Commissioner of
the New Hampshire Department of Health and Human Services. In the First
Amended Complaint, which is the operative complaint, Plaintiffs’ only remaining
claim challenges the Commissioner’s practice of boarding individuals experiencing
mental health crises in hospital emergency departments without procedural due
process, Count I. The Commissioner moves to dismiss Count I on the ground that it
is moot in light of the New Hampshire Supreme Court’s decision in Doe v.
Commissioner, 174 N.H. 239 (2021) (referred to as “Jane Doe”). In response,
Plaintiffs move to file a Second Amended Complaint to remedy any possibility of
mootness. Plaintiffs also ask the court to hold the Commissioner’s motion to
dismiss in abeyance until the court decides their motion to amend.
For the reasons explained below, Plaintiffs’ motion to amend is construed as
a motion to supplement and is granted as to Count I and denied as to Counts II and
III. The decision on the motion to supplement resolves the issues raised in
Plaintiffs’ motion to hold in abeyance and the Commissioner’s motion to dismiss.
Therefore, the court denies those motions. BACKGROUND
Count I alleges that the Commissioner’s boarding practice violates Plaintiffs’
procedural due process rights under the Fourteenth Amendment because they are
not provided due process while being detained in hospital emergency departments
under an involuntary emergency admission (“IEA”) certificate. Doc no. 78 ¶¶ 97-
109. Plaintiffs bring this claim in the context of the IEA procedures under RSA
135-C:27-33. Under that statutory framework, an IEA-certified patient is entitled
to a probable cause hearing within three days after admission to the mental health
services system, RSA 135-C:31, I. In conjunction with the hearing, the patient 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.
Prior Proceedings
A brief history of the prior proceedings is helpful to frame the current
motions.1 In May 2019, the court granted a group of New Hampshire hospitals
leave to intervene in the action as plaintiffs.2 The Hospitals assert claims against
the Commissioner arising from the Commissioner’s boarding practice.
1 The court assumes familiarity with the lengthy background of this case, which the court has provided in more detail in prior orders. See, e.g., Doe v. Commissioner, --- F. Supp. 3d ---, 2023 WL 2186458 (D.N.H. Feb. 23, 2023); Doe v. Commissioner, 2021 WL 27009 (D.N.H. Jan. 4, 2021); Doe v. Commissioner, 2020 WL 7481735 (D.N.H. Dec. 18, 2020); Doe v. Commissioner, 2020 WL 2129717 (D.N.H. May 4, 2020); Doe v. Commissioner, 2020 WL 2104826 (D.N.H. May 1, 2020); Doe v. Commissioner, 2020 WL 2079310 (D.N.H. Apr. 30, 2020); see also Doe v. Shibinette, 16 F.4th 894 (1st Cir. 2021).
2 In this order, the court will refer to the hospital plaintiffs as “Hospitals.”
2 Plaintiffs initially named Honorable David D. King, the Administrative
Judge of the Circuit Court, as a necessary party. Judge King moved to dismiss the
claims against him. In August 2019, the court granted the motion to dismiss Judge
King from the case due to a lack of jurisdiction. Doc. no. 100.
The Commissioner then moved to dismiss Plaintiffs’ claims based on a lack of
jurisdiction due to sovereign immunity. In April 2020, for the purposes of deciding
the Commissioner’s motion to dismiss, this court analyzed the statutory framework
of the IEA-certification process to determine the meaning of the word “admission”
under the statute. The court held that “admission” of IEA-certified patients into the
state’s mental health services system occurs when the IEA certificate is completed,
as opposed to when the patient is delivered to a designated receiving facility.3 Doe
v. Commissioner, 2020 WL 2079310, at *9 (D.N.H. Apr. 30, 2020). Despite the
court’s ruling, the Commissioner continued to maintain that she had no obligation
to provide probable cause hearings unless and until an IEA-certified patient was
delivered to a designated receiving facility. Based on that view, the Commissioner
continued the psychiatric boarding practice without probable cause hearings.
In May 2020, the court granted Plaintiffs’ motion for class certification. The
following class was certified:
As to Counts I, II, and III, a class is certified of all persons who are currently being, have been, or will be involuntarily detained in a non- DRF hospital under RSA 135-C:27–33 without having been given a probable cause hearing by the Commissioner of the Department of Health and Human Services of the State of New Hampshire within
3 The court also denied the Commissioner’s motion to dismiss the Hospitals’ claims based on the same statutory construction. Doe v. Commissioner, 2020 WL 2104826 (D.N.H. May 1, 2020).
3 three days (not including Sundays and holidays) of the completion of an involuntary emergency admission certificate.
Doc. no. 149, at 18-19. After the class was certified, Plaintiffs voluntarily dismissed
their state law claims in Counts II and III. End. Or. Nov. 2, 2020. Therefore, as
stated above, the only remaining claim is Count I, which alleges that Plaintiffs are
not provided due process after IEA certification in violation of the Fourteenth
Amendment.
In November 2020, the Commissioner again moved to dismiss Plaintiffs’
claim (and the Hospitals’ claims) based on sovereign immunity. The court denied
the motions (doc. nos. 201 & 203), and the Commissioner filed an interlocutory
appeal. While the appeal to the First Circuit was pending, the New Hampshire
Supreme Court issued a decision in a habeas corpus case involving another IEA-
certified patient who had been detained without a hearing in a hospital emergency
department. Jane Doe, 174 N.H. at 239-61.
The New Hampshire Supreme Court held, as this court had previously
determined, that upon completion of the IEA certificate, the IEA-certified patient is
admitted into “the state mental health services system under the supervision of the
Commissioner.” Jane Doe, 174 N.H. at 252. In light of the New Hampshire
Supreme Court’s decision, the Commissioner moved during the appeal at the First
Circuit to dismiss this case as moot. The First Circuit affirmed this court’s decision
denying the motion to dismiss based on sovereign immunity and remanded the case
for further proceedings on the mootness issue. Doe v. Shibinette, 16 F.4th 894, 905
(1st Cir. 2021).
4 Change in the Hearing Process
In response to the New Hampshire Supreme Court’s decision in Jane Doe, the
New Hampshire Circuit Court anticipated an increase in IEA petitions and began to
implement administrative procedures to process the petitions. Doc. no. 233-1, at 2-
3. As expected, an increase occurred. The filings included petitions for IEA-
certified patients who were being held in hospital emergency departments. Id. In
March 2022, following discussions “among state officials from the New Hampshire
Executive Branch and Judicial Branch,” the New Hampshire Circuit Court
implemented a revised process for IEA petitions. The new process allowed probable
cause hearings to be conducted by telephone from the hospital emergency
departments and designated receiving facilities where IEA-certified patients were
being held. Id. As a result of the new procedure, 99% of patients who are admitted
to the state mental health services system currently receive telephonic probable
cause hearings within 3 days of the completion of the IEA certificate. Id. at 4 ¶ 15.
Additionally, Plaintiffs contend that the Commissioner and Judge King have
begun to schedule all probable cause hearings with the Circuit Court in Concord
rather than with Circuit Courts located in the same area as the hospital or
designated receiving facility where the patient is detained. Plaintiffs argue in
support of their motion to amend that the change in location makes it far more
difficult for IEA-certified patients to consult with counsel before and during the
hearings. Doc. no. 250 at 6.
5 Hospitals’ Case
The Hospitals moved for summary judgment on Count II of their complaint.
Doc.no. 228. On February 23, 2023, the court granted the motion in part and issued
the following declaration:
The Commissioner has violated and continues to violate the Hospitals’ Fourth Amendment right (made applicable to the states through the Fourteenth Amendment) to be free from unreasonable seizures of their emergency departments though her conduct, policies, and practices that fail to allow IEA-certified patients to be immediately transported from the Hospitals’ emergency departments to designated receiving facilities.
Doe v. Commissioner, --- F. Supp. 3d ---, 2023 WL 2186458, at *10 (D.N.H. Feb. 23,
2023). The court found that the Hospitals were entitled to injunctive relief but had
not proposed a sufficiently specific and detailed injunction. Id. The Hospitals and
the Commissioner have filed proposed injunctions, which are currently before the
court. The scope of injunctive relief and its potential effect on probable cause
hearings remains undecided.
Current Motions
In December 2022, the Commissioner moved to dismiss Plaintiffs’ claim as
moot. The Commissioner argues that the New Hampshire Supreme Court’s
decision in Jane Doe, 174 N.H. 239, and the Circuit Court’s telephonic hearing
procedures have provided the relief sought by Plaintiffs in Count I, rendering the
claim moot. Doc. no. 248.
In response, Plaintiffs moved to amend to add an express challenge to the
Circuit Court’s telephonic hearings but assert that the proposed change is merely a
clarification because the First Amended Complaint alleged a lack of meaningful
6 process in addition to challenging the timeliness of the probable cause hearings.
Plaintiffs also seek leave to add new parties and claims. Plaintiffs filed a separate
motion to hold the Commissioner’s motion to dismiss in abeyance until after the
court decides the motion to amend.
DISCUSSION
Plaintiffs ask the court to consider the motion to amend before the
Commissioner’s motion to dismiss, arguing that if the court permits their motion to
amend, the mootness problem raised by the Commissioner is cured. The
Commissioner argues that the court cannot consider Plaintiffs’ motion to amend
because their claim is moot, which deprives the court of jurisdiction. Thus, the
Commissioner urges the court to dismiss Count I as moot without considering the
motion to amend. Because the Commissioner challenges the court’s jurisdiction to
decide the motion to amend before the motion to dismiss, the court first addresses
that question.
I. Jurisdiction — Motion to Amend
“Article III of the Constitution restricts the power of federal courts to ‘Cases’
and ‘Controversies,’ [and therefore] ‘[t]o invoke the jurisdiction of a federal court, a
litigant must have suffered, or be threatened with, an actual injury traceable to the
defendant and likely to be redressed by a favorable judicial decision.’” Chafin v.
Chafin, 568 U.S. 165, 171–72 (2013) (quoting Lewis v. Continental Bank Corp., 494
U.S. 472, 477 (1990)). “The ‘case-or-controversy’ requirement subsists through all
7 stages of federal judicial proceedings, trial and appellate.” Id. at 172; Harris v.
Univ. of Mass. Lowell, 43 F.4th 187, 191 (1st Cir. 2022). “Mootness is a
jurisdictional defect, rooted in Article III case or controversy considerations.”
Horizon Bank & Tr. Co. v. Massachusetts, 391 F.3d 48, 52 (1st Cir. 2004).
“A court without jurisdiction is like a king without a kingdom: both are
powerless to act.” Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 16 (1st
Cir. 2018). For that reason, the court must resolve a jurisdictional issue before
proceeding further in a case. Id.; McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004);
see also Fed. R. Civ. P. 12(h)(3).
Some courts have concluded that, once a case becomes moot, the court lacks
jurisdiction to grant leave to amend under Federal Rule of Civil Procedure 15(a)(2),
even when the amendment is intended to cure the jurisdictional deficiency. See,
e.g., Gourneni v. Mayorkasu, 2021 WL 5178841, at *4 (D.D.C. Nov. 8, 2021);
Blanchard v. Lampert, 2018 WL 4760502, at *6 (D. Wyo. Feb. 20, 2018). Other
courts have considered motions to amend despite the jurisdictional issue of
mootness. See Laufer v. Dove Hess Holdings, LLC, 2021 WL 365881, at *4-*5
(W.D.N.Y Feb. 3, 2021) (concluding that plaintiff’s claim might be moot but granting
leave to amend to cure the defect); Baltimore v. Pruitt, 293 F. Supp. 3d 1, 7-8
(D.D.C. 2017) (holding that the court retained jurisdiction to consider a motion to
amend to cure mootness and citing cases).
The issue of whether a district court has jurisdiction to consider a motion to
amend when the court lacks jurisdiction over the claim as pleaded in the complaint
arose in Yan v. ReWalk Robotics Ltd., 973 F.3d 22, 27 (1st Cir. 2020). In that case,
8 Yan brought claims under the Securities and Exchange Acts as a proposed class
action, and – although no class was certified – the court appointed Yan as lead
plaintiff. Id. at 29. The defendant moved to dismiss on the merits and for a lack of
standing. Id. at 30. The court granted the motion to dismiss the Securities Act
claims on the merits. Id. The court then determined that Yan lacked standing to
bring the Exchange Act claims. Id. The court denied the motion to dismiss the
Exchange Act claims without prejudice to allow Yan an opportunity to brief the
standing issue and to move to amend to establish standing. Id. Yan briefed the
standing issue and moved to amend the complaint to substitute a new lead plaintiff
for the Exchange Act claims. Id. The district court concluded that Yan had not
shown that he had standing and denied the motion to amend, concluding that
because Yan lacked standing, the court lacked jurisdiction to consider the motion to
amend. Id.
On appeal, the First Circuit affirmed dismissal of the claims on the merits
and for lack of standing. Id. at 27. As to Yan’s motion to amend, however, the First
Circuit disagreed with the district court’s conclusion that it lacked jurisdiction to
consider the motion to amend. Id. at 36. The First Circuit noted that “some courts
suggest this formalistic approach is correct” but held that “[t]he better-reasoned
authority, . . . allows a court to entertain and grant a motion to amend filed by a
plaintiff who lacks standing to pursue the claim pleaded.” Id. The First Circuit
stated: “that authority includes the Supreme Court,” citing Sierra Club v. Morton,
405 U.S. 727, 735 (1972). The Yan court also cited Adams v. Watson, 10 F.3d 915,
9 919-25 (1st Cir. 1993), where the circuit reversed a district court’s denial of a
motion to amend to add facts to cure a jurisdictional defect as to standing.
Both the First Circuit and the Supreme Court have concluded that a lack of
standing does not preclude a defendant from seeking leave to amend the complaint
to cure the jurisdictional defect. Sierra Club, 405 U.S. at 735; Yan, 973 F.3d at 36.
Although the jurisdictional defect in Yan and Sierra Club was a lack of standing
rather than mootness, the jurisdictional consequence is the same. See
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006) (“The doctrines of
mootness, ripeness, and political question all originate in Article III’s ‘case’ or
‘controversy’ language, no less than standing does.”). In this case, however, there is
no need to resolve the jurisdictional issue that the Commissioner raises because
Plaintiffs also ask to supplement the First Amended Complaint under Federal Rule
of Civil Procedure 15(d).
II. Amendment and Supplementation
Plaintiffs move to amend the First Amended Complaint under Federal Rule
of Civil Procedure 15(a)(2) to add H.M. and J.S. as plaintiffs, to add Judge King as a
defendant, and to add to Count I challenges to the telephonic hearings that were
implemented during the last year. They also move to add claims under the
Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act
with H.M and J.S. as plaintiffs and Judge King and the Commissioner defendants.
The Commissioner objects to the motion to amend.
10 In addition to seeking to amend under Rule 15(a)(2), Plaintiffs invoked Rule
15(d) for leave to supplement the First Amended Complaint. Doc. no. 268 at 3.
Rule 15(d) authorizes the court to “permit a party to serve a supplemental pleading
setting out any transaction, occurrence, or event that happened after the date of the
pleading to be supplemented.” Plaintiffs ask to supplement the First Amended
Complaint with allegations, claims, and parties for the purpose of addressing the
new telephonic hearing procedures that were implemented after the First Amended
Complaint was filed.
“Amended and supplemental pleadings differ in two respects. The former
relate to matters that occurred prior to the filing of the original pleading and
entirely replace the earlier pleading; the latter deal with events subsequent to the
pleading to be altered and represent additions to or continuations of the earlier
pleadings.” 6A Charles Alan Wright et al., Federal Practice and Procedure § 1504,
254-55 (3d ed. 2010). Plaintiffs’ motion to amend addresses only matters that
occurred after the First Amended Complaint was filed and, for that reason, is more
properly construed as a motion to supplement under Rule 15(d). See id. at 255
(“Parties and courts occasionally confuse supplemental pleadings with amended
pleadings and mislabeling is common. These misnomers are not of any significance,
however, and they do not prevent the court from considering a motion to amend or
supplement under the proper portion of Rule 15.”). Therefore, the court will treat
Plaintiffs’ motion to amend as a motion to supplement under Rule 15(d).
Whether the court construes the motion under Rule 15(a)(2) or 15(d),
Plaintiffs face an additional hurdle in this case. Because Plaintiffs filed their
11 motion after the deadline for amendment had passed, they must show good cause to
modify the schedule to allow consideration of their motion. Fed. R. Civ. P. 16(b)(4);
O’Brien v. Town of Bellingham, 943 F.3d 514, 527 (1st Cir. 2019).
A. Rule 16(b)(4) - good cause
“The ‘good cause’ standard focuses on both the conduct of the moving party
and the prejudice, if any, to the nonmovant.” Miceli v. JetBlue Airways Corp., 914
F.3d 73, 86 (1st Cir. 2019). A protracted delay in moving to amend, which causes
prejudice to the opponent, without justification is likely to result in denial of the
motion. Id. On the other hand, good cause is shown if new material facts emerge or
are discovered in the case that could not reasonably have been discovered earlier.
See Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 327 (1st Cir.
2008) (affirming that good cause was lacking where material facts were known to
plaintiff when previous complaint was filed); Clark v. City of Los Angeles, 2022 WL
17220036, at *6 (C.D. Cal. Feb. 9, 2022) (finding good cause where facts giving rise
to amendments could not reasonably have been known to plaintiff before discovery);
Cardwell v. Davis Polk & Wardwell LLP, 2021 WL 4434935, at *40 (S.D.N.Y. Sept.
23, 2021) (holding that diligence to support good cause was shown when new facts
are discovered that could not reasonably have been known sooner).
The deadline for amendment of pleadings was March 24, 2022. Doc. no. 219
(subsequent scheduling changes did not affect that deadline, see doc. no. 230-1).
The new telephonic hearing procedures were implemented at the same time, in
12 March of 2022. The Commissioner moved to dismiss Plaintiffs’ claim as moot on
December 7, 2022. The motion to amend was filed on February 6, 2023.
The Commissioner argues – based on mootness issues the Commissioner
raised during the appeal – that Plaintiffs could have and should have moved to
amend immediately after the First Circuit remanded the case in November 2021.
Specifically, the Commissioner argued to the First Circuit that the New Hampshire
Supreme Court’s decision in Jane Doe rendered Plaintiffs’ claim moot. However,
Jane Doe involved an individual who was seeking a writ of habeas corpus under
state law. Jane Doe 174 N.H. at 246; see also Doe, 16 F.4th at 905. In Jane Doe,
the New Hampshire Supreme Court resolved an issue of state law that was the
basis of the decision in that case and is material to Plaintiffs’ claim in this case:
the Commissioner’s obligations under RSA 135-C:27-33 with respect to probable
cause hearings. Plaintiffs here, however, are a class seeking an injunction based on
federal law (the Fourteenth Amendment) to stop the Commissioner’s practice of
leaving IEA-certified patients in hospitals’ emergency departments without
hearings. Moreover, although the First Circuit remanded the mootness issue for
this court to decide, the Commissioner waited more than a year to move to dismiss
on mootness.
When the Commissioner and Judge King implemented telephonic hearing
procedures in March of 2022, the relevant circumstances changed. Given the
proximity of the amendment deadline to the implementation of the telephonic
hearing procedures, it would not be reasonable to expect Plaintiffs to have moved to
amend their complaint to challenge the new procedures before the deadline.
13 Instead, it was reasonable for Plaintiffs to assess the new telephonic hearing
procedures before seeking leave to amend the complaint.4 And, it was the
Commissioner’s motion to dismiss in December 2022 that precipitated the motion to
amend. Although Plaintiffs filed the motion to amend 10 ½ months after the
deadline for amendment, they have shown good cause for the delay.
The deadline for the close of discovery was February 28, 2023. Doc. no. 230-1.
The Commissioner argues that additional discovery will be necessary if the
complaint is amended, which will cause delay, but she has not shown that she will
be prejudiced. Plaintiffs argue that – because discovery is not complete – the
discovery deadlines would have to be extended even without the proposed
amendments.
The Commissioner’s opposition to discovery and her repeated jurisdictional
challenges and appeal have long delayed discovery in this case. See, e.g., doc. no.
177 (compelling Commissioner to participate in a discovery conference); doc. no. 212
(granting Commissioner's motion to stay the case pending her appeal). The court
concludes that, in these circumstances, Plaintiffs have acted diligently. The delay
caused by the supplements to challenge the telephonic hearings will not prejudice
the Commissioner.
For these reasons, Plaintiffs have shown good cause to modify the scheduling
order to consider their motion under Rule 15(d).
4 In addition, it appears that the hearing procedures were modified after March 2022. Those modifications include no longer providing videoconference hearings at designated receiving facilities and consolidating all IEA hearings at the Circuit Court in Concord.
14 B. Rule 15(d) - supplementation
Rule 15(d) “was designed to combat ‘the rigid and formalistic view that where
the original complaint fails to state a claim upon which relief can be granted, leave
to serve a supplemental complaint must be denied.’” United States ex rel. Gadbois
v. PharMerica Corp., 809 F.3d 1, 5 (1st Cir. 2015). “In keeping with this spirit of
flexibility, courts generally have read Rule 15(d) to include defects in subject matter
jurisdiction among the deficiencies that may be corrected through a supplemental
pleading.” Id. at 5. For that reason, a complaint that lacks subject matter
jurisdiction may be supplemented to cure that deficiency. Id. at 6; see also Am.
Civil Liberties Union of Miss., Inc. v. Finch, 638 F.2d 1336, 1346-47 (5th Cir. 1981)
(reversing district court decision dismissing claims as moot and remanding for
plaintiffs to supplement the complaint under Rule 15(d)); Channing Bete Co., Inc. v.
Greenberg, 2022 WL 43692, at *11-*12 (D. Mass. Jan. 5, 2022) (allowing
supplementation under Rule 15(d) to cure mootness); Frye v. Gardner, 2020 DNH
213, 2020 WL 7246532, at *7 (D.N.H. Dec. 9, 2020) (stating that the court would
have discretion to allow supplementation under Rule 15(d) to cure mootness); 6A
Charles Alan Wright et al., Federal Practice and Procedure § 1505 (3d ed. 2010)
(supplementation allowed to cure jurisdictional defects).
Proposed supplementation must address events that occurred after the prior
complaint was filed. Gadbois, 809 F.3d at 7. Rule 15(d) may be used to add new
parties as well as new allegations and claims. 6A Federal Practice and Procedure
§§ 1506 & 1507. “[C]ourts customarily have treated requests to supplement under
Rule 15(d) liberally.” Gadbois, 809 F.3d at 7.
15 Supplementation should not be allowed, however, if it would cause undue
delay in the case. Id. “In the last analysis, a district court faced with a Rule 15(d)
motion must weigh the totality of the circumstances, just as it would under Rule
15(a).” Id. Those circumstances may include futility, prejudice to the opposing
party, and unreasonable delay before moving to supplement.” Id.
Before considering the specific supplements that Plaintiffs propose, the court
finds that the totality of the circumstances weighs in favor of allowing Plaintiffs to
supplement the First Amended Complaint to address the telephonic hearing
procedures. There is no dispute that the procedures were implemented after the
current complaint was filed. Those facts support and relate back to the procedural
due process sought in Count I of the current complaint, with additional allegations
that telephonic hearings do not provide meaningful hearings.
The timing of the motion does not show undue delay, given the recent
implementation of the telephonic hearing procedures. Although supplementation
may require additional discovery, the Commissioner has not shown that the time
necessary will prejudice her defenses.
C. Plaintiffs’ proposed supplements to the First Amended Complaint
Plaintiffs seek leave to supplement the First Amended Complaint to add
allegations, parties, and claims arising from the telephonic hearing procedures. The
court addresses the proposed supplements below.
16 . 1. Due Process - Count I
For Count I, Plaintiffs seek leave to add two named plaintiffs, H.M. and J.S.,
who allege that they were detained subject to IEA certificates after the new
telephonic hearing procedures were implemented.5 They also seek leave to add
Judge King as a defendant. They allege in the proposed supplemented complaint
that the Commissioner and Judge King have denied the Plaintiffs “constitutionally
adequate procedural due process” in the following ways: “by holding probable cause
hearings by teleconference, and systematically denying class members’ requests for
hearings by videoconference;” “by implementing a policy centralizing hearings in
Concord that has denied Plaintiffs and the members of the Plaintiff Class access to
counsel;” and “by failing to provide each patient with timely notice and a copy of the
patient’s IEA petition.” Doc. no. 250-2, ¶¶ 227, 228, & 229.
Plaintiffs previously alleged in support of Count I that the Commissioner was
violating due process by detaining them on IEA certificates while they waited for
space in a designated receiving facility. The original allegations include the lack of
notice: of the petition, access to counsel, the option to be admitted voluntarily, and
an opportunity to contest detention. See doc. no. 78 ¶¶ 17, 19, 25, 33, 65, 80, 101, &
105. Plaintiffs’ proposed supplements challenge the new telephonic procedures as
violating their due process rights by failing to provide meaningful hearings. For
relief, Plaintiffs seek both a declaration that the new procedures violate their rights
5 H.M. and J.S. were granted leave to proceed under pseudonyms. End. Or. Feb. 22, 2023.
17 to due process and a permanent prospective injunction to halt use of those
procedures.
a. New plaintiffs
The Commissioner objects that the proposed supplements change and
broaden the scope of Count I. She contends that the case has been focused on the
timing of the probable cause hearings, which has been resolved, and that the
proposed supplements to address the new procedures would be prejudicial.
Although the case has focused on the timeliness of IEA probable cause hearings,
Plaintiffs allegations were not limited to timeliness. The new allegations that the
Commissioner denied H.M. and J.S. due process by requiring telephonic probable
cause hearings are closely related to Plaintiffs’ due process claim in Count I of the
First Amended Complaint.
The Commissioner has not shown that the allegations about the new
telephonic hearing procedures and the addition of H.M. and J.S. (who experienced
those procedures) will prejudice her ability to defend against the due process claim
in Count I. See, e.g. HCC Specialty Underwriters, Inc. v. Woodbury, 2017 DNH
245, 2017 WL 6001746, at *3-*4 (D.N.H. Dec. 4, 2017) (holding that defendant did
not show prejudice although amendment based on new evidence would require
change in trial strategy). Plaintiffs are granted leave to supplement the complaint
to add H.M. and J.S. as plaintiffs in Count I and to add the allegations that address
the new procedures related to the telephonic hearings.
18 b. New defendant
Plaintiffs also seek leave to add Judge King as a defendant in Count I. The
Commissioner notes that Judge King was dismissed from the case in 2019. In the
First Amended Complaint, Plaintiffs did “not allege any actions or failures to act by
the Circuit Court or Judge King that have violated their rights.” Doc. no. 100 at 7.
They asserted no claims against Judge King and sought no relief from him. Id.
Instead, at that time, Plaintiffs intended to “join” Judge King in the action in order
to avoid anticipated logistical problems if the Commissioner were ordered to provide
probable cause hearings. Id. The court granted Judge King’s motion to dismiss
because Plaintiffs did not “allege a justiciable case or controversy as to Judge King
or the Circuit Court.” Id. at 8.
The circumstances that Plaintiffs anticipated when they initially attempted
to join Judge King in the case have now occurred. In the proposed supplemented
complaint, Plaintiffs allege that Judge King has denied them due process by holding
telephonic due process hearings rather than videoconference hearings, by denying
them access to counsel when the hearings are held in the Circuit Court in Concord
rather than in Circuit Courts located near the facilities where they are detained,
and by failing to provide them notice of the hearings and copies of the IEA petitions.
They seek declaratory and injunctive relief against Judge King to stop the alleged
due process violations. Therefore, there is currently a justiciable case involving
Judge King.
Whether Eleventh Amendment immunity or any other defense would bar the
due process claim in Count I against Judge King is better addressed in the context
19 of a putative motion to dismiss or motion for summary judgment. The proposed
supplement to add Judge King as a defendant in Count I is allowed without
prejudice to Judge King’s ability to raise any appropriate defense.
2. ADA and Rehabilitation Act – Counts II and III
Plaintiffs also seek leave to supplement the complaint to add claims under
the ADA and Section 504 of the Rehabilitation Act against the Commissioner and
Judge King. They propose a Disability Subclass, with Deborah A. Taylor, H.M., and
J.S. as the representatives of “individuals with disabilities under the ADA and
Rehabilitation Act and who are currently being, have been, or will be involuntarily
detained under RSA 135-C:27-33 without receiving a probable cause hearing in
person or by videoconference.” Doc. no. 250-2 at 66. As proposed, they allege that
the Commissioner and Judge King regard the representatives and the Disability
Subclass as having a mental impairment, based on the IEA certification, and that
they have discriminated and continue to discriminate against the representatives
and the Disability Subclass by not providing in-person or videoconference hearings.
H.M. and J.S. seek compensatory damages. The Disability Subclass seeks
declaratory and injunctive relief.
The Commissioner contends that the addition of the new proposed claims
under the ADA and the Rehabilitation Act are prejudicial because they would
require the case to restart to address the new issues raised in those claims. The
court agrees that the ADA and Rehabilitation Act claims necessarily focus on new
facts and legal issues that are separate from the due process issues that have been
in the case from the beginning. The development of the disability claims and
20 defenses to those claims will require discovery and possibly expert witnesses that
are unrelated to the existing due process issues in this case. For those reasons, the
court does not permit Plaintiffs to add the disability claims to this case.
For these reasons, Plaintiffs’ motion to supplement to add Counts II and III
and the related Disability Subclass is denied.
III. Motion to Dismiss
In light of the court’s ruling on supplementation, Count I is not moot.
Therefore, the Commissioner’s motion to dismiss Count I is denied.
CONCLUSION
For the foregoing reasons, the Plaintiffs’ motion to hold in abeyance (doc. no.
251) is denied. Plaintiffs’ motion to supplement (doc. no. 250) is granted in part and
denied in part as provided in this order. The Commissioner’s motion to dismiss
(doc. no. 248) is denied.
Plaintiffs are granted leave to supplement the First Amended Complaint
(doc. no. 78) to add H.M. and J.S. as plaintiffs, to add David King, Administrative
Judge of the New Hampshire Circuit Court, as a defendant, and to add the proposed
allegations to Count I.
Plaintiffs are not granted leave to supplement to add Counts II and III or the
Disability Subclass.
Plaintiffs shall file a Second Amended Complaint with the supplementation
that is allowed in this order but without the allegations related to the disability
21 claims in Counts II and III. The Second Amended Complaint shall also delete the
individual plaintiffs’ claims against the hospitals that have been voluntarily
dismissed. Doc. no. 269. The Second Amended Complaint shall be filed within five
days of the date of this order.
Within 30 days after Judge King is served and has appeared in the case, the
parties shall submit a joint proposed scheduling order to address any dates and
deadlines to be changed in light of this order.
SO ORDERED.
______________________________ Landya B. McCafferty United States District Judge May 12, 2023
cc: Counsel of record.