Nickolich v. Arizona Community Protection and Treatment Center

• Court: District Court, D. Arizona
• Decided: April 7, 2021
• Docket: 2:19-cv-04381
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Dushan Stephan Nickolich, II, No. CV-19-04381-PHX-ROS (JFM) 10 Plaintiff, 11 v. ORDER 12 Arizona Community Protection and 13 Treatment Center, et al., 14 Defendants.

15 Plaintiff Dushan Stephan Nickolich, II, who is civilly confined in the Arizona 16 Community Protection and Treatment Center (ACPTC), brought this civil rights action 17 pursuant to 42 U.S.C. § 1983. Defendant ACPTC Clinical Director Dr. Sheridyn Miller 18 answered but subsequently filed a Motion for Judgment on the Pleadings. (Doc. 37). 19 Plaintiff opposes the Motion. (Doc. 44). Plaintiff also filed a Motion for Summary 20 Judgment (Doc. 58). Both motions will be denied. 21 I. Background 22 In the First Amended Complaint, Plaintiff alleges he previously stipulated to 23 commitment at the ACPTC for the following mental health diagnoses: Exhibitionism and 24 Anti-Social Personality Disorder (ASPD) with Borderline and Narcissistic traits. (Doc. 5 25 at 4). On September 23, 2015, his Exhibitionism, Borderline, and Narcissistic disorders 26 were, allegedly, “resolved.” (Id.). Thus, Plaintiff’s ASPD is his “sole standing diagnosis.” 27 (Id.). 28 1 On February 15, 2019, during a treatment plan meeting, Plaintiff asked why he was 2 not receiving treatment for his ASPD and Defendant Dr. Miller stated “I do not believe 3 ASPD is treatable.” (Id.). Thereafter, Plaintiff submitted several written requests to 4 Defendant, asking her to explain why she did not believe his ASPD was treatable, but 5 Defendant did not respond. (Id.). Plaintiff alleges he is confined at ACPTC without access 6 to treatment that would eventually allow him to be released back into the community, 7 making his therapeutic confinement punitive and in violation of his due process rights. 8 (Id.). 9 On screening under 28 U.S.C. § 1915A(a), the Court determined Plaintiff stated a 10 Fourteenth Amendment Due Process Claim against Defendant and directed Defendant to 11 answer the claim. (Doc. 6). In its screening order the Court interpreted Plaintiff as seeking 12 only monetary relief although, as addressed below, it is possible Plaintiff also seeks 13 injunctive relief. Defendant answered the complaint and the Court issued a Scheduling 14 Order. (Docs. 8, 9). Defendant subsequently filed a motion for judgment on the pleadings 15 and Plaintiff filed a motion for summary judgment. (Docs. 37, 58). 16 II. Judgment on the Pleadings Standard 17 A Rule 12(c) motion for judgment on the pleadings is a “means to challenge the 18 sufficiency of the complaint after an answer has been filed.” New.Net, Inc. v. Lavasoft, 19 356 F. Supp.2d 1090, 1115 (C.D. Cal. 2004). It is “functionally identical” to a motion to 20 dismiss. Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 21 (9th Cir. 2011). Thus, a motion for judgment on the pleadings should be granted only 22 when, taking all the allegations in the complaint as true, there are not enough facts to state 23 a plausible claim for relief. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). In 24 conducting this inquiry, the Court must construe Plaintiff’s pro se filings liberally and 25 “afford [Plaintiff] the benefit of any doubt.” Id. 26 III. Discussion 27 Defendant posits four bases for judgment on the pleadings: (1) the Court should 28 abstain from exercising jurisdiction over this action pursuant to the Younger abstention 1 doctrine, (2) Plaintiff’s claims should be dismissed as Heck-barred, (3) Plaintiff fails to 2 state a claim, and (4) Defendant is entitled to qualified immunity. 3 A. Younger Abstention 4 The abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971), prevents 5 a federal court in most circumstances from directly interceding in ongoing state criminal 6 or quasi-criminal proceedings. If Younger abstention applies, “claims for injunctive and 7 declaratory relief are typically dismissed.” Herrera v. City of Palmdale, 918 F.3d 1037, 8 1042 (9th Cir. 2019). But “when a district court abstains from considering a damages claim 9 under Younger, it must stay—rather than dismiss—the damages action until state 10 proceedings conclude.” Id. 11 Defendant acknowledges the type of relief being sought is important in the context 12 of applying Younger abstention but argues “Plaintiff’s action is one for injunctive and 13 monetary relief,” such that Younger abstention should apply. (Doc. 37 at 6). In other 14 words, Defendant seems to believe Plaintiff is seeking injunctive relief and that request 15 means Younger abstention would allow the Court to grant judgment, not merely stay, the 16 entire action, including Plaintiff’s claim seeking money damages. Defendant cites no 17 authority for this proposition and, in fact, the Ninth Circuit recently reiterated its long-held 18 position that Younger abstention requires dismissal of any request for injunctive relief but 19 requests for money damages must only be stayed. Herrera, 918 F.3d at 1048. While it is 20 not entirely clear whether Plaintiff is seeking injunctive relief, there is no doubt he is 21 seeking money damages. Therefore, even if Younger were found applicable to this case, 22 the Court would have to stay Plaintiff’s claim seeking money damages, not grant judgment 23 in Defendant’s favor. 24 While the result under Younger abstention differs depending on the type of relief 25 being sought, determining if Younger applies is the same regardless of the relief sought. 26 “Younger abstention is appropriate when: (1) there is an ongoing state judicial proceeding; 27 (2) the proceeding implicates important state interests; (3) there is an adequate opportunity 28 in the state proceedings to raise constitutional challenges; and (4) the requested relief seeks 1 to enjoin or has the practical effect of enjoining the ongoing state judicial proceeding.” 2 Page v. King, 932 F.3d 898, 901-02 (9th Cir. 2019). Even assuming Defendant is correct 3 that the first and second prongs are met, it is unclear if Plaintiff has an “adequate 4 opportunity” to raise his constitutional challenges in state court. Id. Therefore, the Court 5 will not abstain at this point. 6 According to Defendant, the requirement that Plaintiff have an adequate opportunity 7 to raise constitutional challenges in the state litigation is met based on Arizona’s Sexually 8 Violent Persons Act (“the Act”), A.R.S. § 36-3701, et seq. The Act states in general terms 9 that an individual who is “committed or conditionally released to a less restrictive 10 alternative pursuant to [the Act] does not forfeit any legal right,” including “any right that 11 is available for the purpose of obtaining release from confinement, including the right to 12 petition for a writ of habeas corpus.” Ariz. Rev. Stat. § 36-3712(A) & (D). The Act also 13 “does not prohibit the committed person from annually petitioning the court for conditional 14 release to a less restrictive alternative without the approval of the superintendent of the 15 state hospital or the director of the department of health services.” Id. § 36-3709(B). 16 From these provisions, Defendant extrapolates, but points to no authority to show, 17 that civilly committed individuals such as Plaintiff have adequate opportunity in their SVP 18 proceedings to raise constitutional challenges related to their treatment. Defendant argues, 19 for instance, that “[i]f an SVP believes he is not receiving constitutionally adequate 20 treatment, he may request the appointment of an independent competent professional,” 21 after which the state court “may then determine the constitutionality of the treatment based 22 on reports and opinions of mental health professionals.” (Doc. 37 at 4). 23 The statutory provisions to which Defendant cites, however, only provide that an 24 indigent petitioner or the State may request the appointment of a competent professional 25 when seeking or defending against a petition for conditional release. The statutory 26 provisions say nothing about an SVP’s right to request an independent professional to 27 assess whether he is receiving constitutionally adequate treatment while in ACPTC 28 custody. See Ariz. Rev. Stat. §§ 36-3709, 3714. Apart from showing that SVPs such as 1 Plaintiff may file separate habeas corpus petitions or may, as part of their SVP proceedings, 2 bring annual challenges to their continued confinement, the provisions to which Defendant 3 cites do not show that individuals committed to ACPTC custody have any recourse within 4 their state court SVP proceedings to raise constitutional challenges with respect to the care 5 or lack of care they are receiving during their confinements. Nor has Defendant pointed to 6 any Arizona case law, court records, or other authority demonstrating that Plaintiff has an 7 adequate opportunity to raise constitutional challenges related to his treatment at the 8 ACPTC in the context of his state SVP proceedings. 9 While Defendant does not cite authority, it appears the Arizona Court of Appeals 10 has concluded an individual cannot raise challenges to the adequacy of treatment in his 11 SVP proceedings. In re Commitment of Jaramillo, 278 P.3d 1284 (Ariz. Ct. App. 2012). 12 According to that court, the state trial court handling the SVP proceeding has no “authority 13 to mandate a particular treatment plan.” Id. at 1286. If an individual believes his treatment 14 is inadequate, instead of seeking relief in the SVP proceeding he must “via special action, 15 bring a claim that a government official has failed to fulfill a duty required by law.” Id. at 16 1287. Pursuant to that view, an individual such as Plaintiff would need to initiate an 17 entirely separate action in state court to challenge allegedly inadequate treatment. Younger 18 abstention does not appear applicable when there is merely the possibility of asserting 19 constitutional rights through future state-court litigation. See Agriesti v. MGM Grand 20 Hotels, Inc., 53 F.3d 1000, 1002 (9th Cir. 1995) (noting “Younger abstention does, in fact, 21 depend on the ‘technicality’ of ongoing judicial proceedings”). 22 Based on In re Commitment of Jaramillo and Defendant’s failure to cite any 23 authority to the contrary, Plaintiff does not have the ability to raise constitutional 24 challenges to his treatment in the SVP proceeding. Therefore, Younger abstention is not 25 appropriate. 26 B. Heck Bar 27 Pursuant to the Supreme Court’s ruling in Heck v. Humphrey, a prisoner’s claim for 28 damages cannot be brought under 42 U.S.C. § 1983 if “a judgment in favor of the plaintiff 1 would necessarily imply the invalidity of his conviction or sentence,” unless the prisoner 2 demonstrates that the conviction or sentence has previously been reversed, expunged, or 3 otherwise invalidated. 512 U.S. 477, 486-87 (1994). See also Wilkinson v. Dotson, 544 4 U.S. 74, 81-82 (2005) (“[A] state prisoner’s § 1983 action is barred (absent prior 5 invalidation)—no matter the relief sought (damages or equitable relief), no matter the target 6 of the prisoner’ s suit (state conduct leading to conviction or internal prison proceedings)— 7 if success in that action would necessarily demonstrate the invalidity of confinement or its 8 duration.”); Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (“There is no question 9 that Heck bars [plaintiff’ s] claims that defendants lacked probable cause to arrest him and 10 brought unfounded charges against him.”). 11 Defendant argues that Heck applies here because “[a] ruling in Plaintiff’s favor 12 would necessarily imply the invalidity of his civil commitment.” (Doc. 37 at 6). Defendant 13 is mistaken as the result of the present suit will have no impact on the validity of Plaintiff’s 14 commitment. In this suit, Plaintiff is not objecting to his civil commitment nor does he 15 seek release. Instead, he seeks only relief based on Defendant’s alleged failure to treat his 16 ASPD. A finding in Plaintiff’s favor that he was not provided sufficient treatment for his 17 ASPD would only speak to the conditions of Plaintiff’s confinement. It would not, as 18 Defendant implies, “demonstrate the invalidity of [Plaintiff’s] confinement or its duration.” 19 Smithart, 79 F.3d at 952. Heck does not pose a bar to Plaintiff’s due process claim, and 20 the Court will not dismiss this claim on Heck grounds. 21 C. Failure to State a Claim 22 Next, Defendant argues that Plaintiff fails to state a § 1983 claim based on failure 23 to treat. (Doc. 37 at 7). Generally, in the criminal incarceration context, a prisoner “is 24 entitled to that psychological or psychiatric treatment which may be provided upon a 25 reasonable cost and time basis, the essential test being one of medical necessity and not 26 simply that which may be considered desirable.” Ohlinger v. Watson, 652 F.2d 775, 777 27 (9th Cir. 1980). Where, however, an individual is committed based on a non-criminal 28 basis, “‘due process requires that the nature and duration of commitment bear some 1 reasonable relation to the purpose for which the individual is committed.’” Id. at 778 2 (quoting Jackson v. Indiana, 406 U.S. 715, 738, (1971)). Thus, a person committed based 3 on mental incapacity has a due process right to receive “such individual treatment as will 4 give [him] a realistic opportunity to be cured or to improve his . . . mental condition . . . 5 because, absent treatment, [he] could be held indefinitely as a result of [his] mental illness.” 6 Ohlinger, 652 F.2d at 778 (internal citations omitted). 7 Pursuant to Ohlinger, “the Fourteenth Amendment Due Process Clause requires 8 states to provide civilly-committed persons with access to mental health treatment that 9 gives them a realistic opportunity to be cured and released.” Sharp v. Weston, 233 F.3d 10 1166, 1172 (9th Cir. 2000). And while “the state enjoys wide latitude in developing 11 treatment regimens, the courts may take action when there is a substantial departure from 12 accepted professional judgment or when there has been no exercise of professional 13 judgment at all.” Id. at 1171. 14 Defendant argues Plaintiff fails to state a claim because his sole allegation against 15 her is that she does not believe ASPD is treatable, which Plaintiff equates with a refusal to 16 treat. (Doc. 37 at 8). Defendant argues this allegation is insufficient to state a due process 17 violation because Plaintiff is only constitutionally entitled to treatment as determined by a 18 mental health professional, not to self-directed treatment. (Id.). But Plaintiff is not 19 claiming a constitutional right to direct his own treatment. He is merely alleging the 20 treatment provided by Defendant, more precisely the complete lack thereof, fell below the 21 constitutional minimum. 22 Plaintiff alleges Defendant told him she believed ASPD was untreatable. (Doc. 5 23 at 4). He also alleges that, as of September 23, 2015, all the other disorders that led to his 24 civil commitment had been “resolved.” (Id.). Construing these facts in Plaintiff’s favor, 25 Plaintiff continued to be confined in the ACPTC for years, ostensibly for treatment of a 26 disorder for which he was not receiving treatment and which Defendant stated, without 27 explanation, was untreatable. Taken as true, these allegations plausibly state a claim that 28 Defendant’s failure to provide any treatment for Plaintiff’s ASPD substantially deviated 1 from the accepted professional judgment, practice, or standards of care normally expected 2 of an appropriate professional in her position.1 3 Defendant also incorrectly argues that Plaintiff has not alleged any injury based on 4 Defendant’s alleged due process violation. To the contrary, Plaintiff alleges that, as long 5 as Defendant refuses to treat his ASPD, Plaintiff will be unable to be rehabilitated and 6 released, “turning his therapeutic commitment into a punitive confinement.” (Doc. 5 at 4). 7 Again, taking Plaintiff’s factual allegations as true, Plaintiff has already remained civilly 8 committed for years after his other mental health disorders were “resolved.” Absent a 9 treatment plan for his ASPD or any explanation showing whether Defendant’s opinion that 10 it is untreatable comports with professional standards for mental health treatment, Plaintiff 11 is simply left without an opportunity to cure or improve his mental illness and no prospect 12 of ever being released. These facts constitute significant injury stemming from 13 Defendant’s alleged failure to treat Plaintiff’s ASPD. 14 D. Qualified Immunity 15 Defendant’s final argument is the Court must dismiss this action on the ground that 16 Defendant is entitled to qualified immunity. (Doc. 37 at 10). But qualified immunity does 17 not apply to requests for injunctive relief. See Hydrick v. Hunter, 669 F.3d 937, 942 (9th 18 Cir. 2012) (qualified immunity does not apply to claims seeking injunctive relief). Thus, 19 Defendant’s own recognition that “Plaintiff’s action is one for injunctive and monetary 20 relief” means qualified immunity would not bar this suit in its entirety. (Doc. 37 at 6). 21 Assuming Defendant meant to limit her qualified immunity argument to the request for 22 money damages, qualified immunity is not appropriate at this early stage. 23 Defendant is entitled to qualified immunity unless Plaintiff’s allegations establish 24 Defendant’s conduct violated a constitutional right and that right was clearly established at 25 the time of the violation. Pearson v. Callahan, 555 U.S. 223, 230-32, 235-36 (2009).

26 1 In determining Plaintiff has stated a claim, the Court is not determining that 27 effective treatment does, in fact, exist for ASPD. At this early stage in the litigation, the Court is merely construing Plaintiff’s pro se allegations liberally such that he will have the 28 opportunity to attempt to prove that Defendant’s treatment-related decisions were outside “accepted professional judgment.” Sharp v. Weston, 233 F.3d 1166, 1171 (9th Cir. 2000). 1 Whether a right was clearly established must be determined “in light of the specific context 2 of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001). 3 Defendant does not develop her qualified immunity argument in sufficient detail for the 4 Court to meaningfully address the issue. 5 In seeking judgment on the pleadings based on qualified immunity, Defendant’s 6 argument, in its entirety is: 7 Here, Plaintiff alleges that Dr. Miller violated his right to “adequate and effective treatment.” (Doc. 5 at 4). This is not a clearly established right and 8 Plaintiff has identified no other clearly established federal right that was 9 violated. Dr. Miller conduct was not unconstitutional under Lane2 and Youngberg.3 Even if this Court were to apply an “adequate and effective” 10 treatment standard, Dr. Miller is entitled to qualified immunity and this Court 11 should dismiss this action. 12 (Doc. 37 at 10). 13 Contrary to Defendant’s position, there is a clearly established federal right for 14 Plaintiff to receive appropriate treatment. As the Ninth Circuit established years before the 15 underlying events, states must “provide civilly-committed persons with access to mental 16 health treatment” and the treatment must not be a “substantial departure from accepted 17 professional judgment.” Sharp v. Weston, 233 F.3d 1166, 1171-72 (9th Cir. 2000). 18 Plaintiff alleges Defendant has refused to provide any treatment. Viewed in the light most 19 favorable to Plaintiff, refusal to provide any treatment is a violation of clearly established 20 law. Accordingly, qualified immunity is not appropriate. 21 The conclusion that qualified immunity does not apply is based on the extremely 22 limited record the Court can consider at this point in the case. Thus, the rejection of 23 qualified immunity at this stage “sheds little light on whether [Defendant] might ultimately 24 be entitled to qualified immunity.” Keates v. Koile, 883 F.3d 1228, 1235 (9th Cir. 2018). 25 Once the facts are developed, the qualified immunity analysis likely will be quite different. 26

27 2 Lane v. Williams, 689 F.3d 879 (7th Cir. 2012). 28 3 Youngberg v. Romeo, 457 U.S. 307 (1982). IV. Plaintiff?s Motion for Summary Judgment 2 Also before the Court is Plaintiff's Motion for Summary Judgment (Doc. 58). This is the eighth such motion for summary judgment Plaintiff has filed, with his previous 4 attempts all being stricken for failure to comply with Federal and Local Rules of Civil 5 | Procedure for a motion for summary judgment. (See Docs. 22, 24, 27, 41, 46, 51, 54). 6 The Court has already explained in its Orders striking Plaintiff's prior deficient 7 | motions for summary judgment what is required for filing such a motion. In particular, the 8 | Court has directed that Plaintiff must file a separate statement of facts, with each discrete fact set forth in a separately numbered paragraph that contains a reference to the evidence 10 | upon which that fact relies, and a separate memorandum of law, arguing the basis for his 11 | motion and referencing the supporting paragraphs in his separate statement of facts. (See, 12| e.g., Doc. 53). Plaintiff's latest Motion for Summary Judgment fails to set forth discrete 13 | facts relevant to his confinement and due process claim, mixes facts and arguments 14 together, and once again falls far short of meeting the requirements set forth in the Court’s 15 | prior Orders. The Court will therefore summarily deny Plaintiff's Motion for Summary Judgment and will discharge Defendant of her duty to respond to that Motion. 17| ITIS ORDERED: 18 (1) The reference to the Magistrate Judge is withdrawn as to Defendant’s Motion for Judgment on the Pleadings (Doc. 37) and Plaintiff's Motion for Summary 20 | Judgment (Doc. 58). 21 (2) | Defendant’s Motion for Judgment on the Pleadings (Doc. 37) is denied. 22 (3) Plaintiff's Motion for Summary Judgment (Doc. 58) is denied; Defendant is 23 | discharged of any obligation to respond to that Motion. 24 Dated this 7th day of April, 2021. fo _ 25 — 26 7 Senior United States District Judge 28