United States of America v. Dewayne Gray

United States Court of Appeals
For the Eighth Circuit
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No. 22-1031
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Dewayne Gray,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: November 18, 2022
Filed: February 1, 2023
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Before COLLOTON, SHEPHERD, and GRASZ, Circuit Judges.
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COLLOTON, Circuit Judge.
Dewayne Gray appeals a judgment of the district court* committing him to the
custody of the Attorney General for medical care and treatment under 18 U.S.C.
§ 4246. The court found that Gray presently suffered from a mental disease or defect
as a result of which his release from custody posed a substantial risk of bodily injury
to another person or serious damage to the property of another. We conclude that the
findings underlying the commitment were not clearly erroneous, and affirm the
judgment.
I.
Gray has a history of schizophrenia and violent acts. Since 2013, he has been
convicted twice for assault with significant bodily injury and five times for simple
assault. In 2019, while on supervised release for an earlier assault conviction, he
repeatedly punched a stranger on the street in the head. For that assault, he was
sentenced to thirty months’ imprisonment.
In February 2020, while serving a federal prison sentence, Gray was transferred
to the United States Medical Center for Federal Prisoners in Springfield, Missouri.
At the Medical Center, however, he failed to comply with his medication regimen,
and he assaulted staff members.
In January 2021, Gray was committed to the custody of the Attorney General
under 18 U.S.C. § 4245. That provision allows for the hospitalization of a person
who is serving a sentence in a criminal case where the offender is presently suffering
*The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri, adopting the report and recommendation of the
Honorable David P. Rush, United States Chief Magistrate Judge for the Western
District of Missouri.
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from a mental disease or defect. The offender may be hospitalized until he no longer
needs care or treatment or until his sentence of imprisonment expires, whichever
occurs earlier. 18 U.S.C. § 4245(d).
As Gray’s sentence neared expiration, the Medical Center convened a risk
assessment review panel to determine whether Gray met the criteria for civil
commitment under 18 U.S.C. § 4246. Section 4246 provides for the indefinite
hospitalization of a prisoner who is due for release if a court finds by clear and
convincing evidence that the prisoner is suffering from a mental disease or defect as
a result of which his release would pose a substantial risk of bodily injury to another
person or serious damage to the property of another.
The review panel was composed of a psychologist and a psychiatrist who
interviewed Gray and considered his records. The panel recommended Gray’s
commitment, and the warden of the Medical Center certified the recommendation.
The panel cited Gray’s “severe mental illness, his lengthy history of violent and
destructive acts and threats, caused by audio hallucinations which direct him to act,
his history of noncompliance with medication which causes his symptoms to worsen,
his history of substance abuse, his poor supervision history, and the lack of any viable
plan for his release.”
The government petitioned the district court under § 4246 for a hearing on
whether Gray should be committed. Gray sought an independent examination from
an outside physician, and she also recommended commitment. After a hearing at
which Gray testified, a magistrate judge recommended Gray’s commitment. Gray
objected, but the district court adopted the recommendation and ordered Gray
committed to the custody of the Attorney General under § 4246.
Gray argues on appeal that the district court’s determination was not supported
by clear and convincing evidence. We review the district court’s factual findings for
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clear error. United States v. Thomas, 949 F.3d 1120, 1123 (8th Cir. 2020). We will
reverse a finding of fact only when left with a “definite and firm conviction that a
mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948).
The district court’s finding that Gray posed a substantial risk to persons or
property was adequately supported in the record. The court relied on the unanimous
recommendation of the experts. The experts observed that the most reliable predictor
of future violence is past violence, and they detailed Gray’s history of random and
unpredictable violent actions.
Gray contends that these recommendations did not reflect his “present” mental
condition. He asserts that his condition improved after he began a new medication
regimen, and that the district court clearly erred by giving inadequate weight to his
recent improvements and to his testimony at the hearing.
The district court did consider Gray’s testimony regarding new medication and
noted his apparent “improved stability in the highly-structured setting” of the Medical
Center. The court concluded, however, that “due to his limited insight as to his
illness, the likelihood is high that, if released, he would not comply with treatment
and medication and would use substances.” This finding is supported by Gray’s
history and the opinion of experts. The review panel specifically found that “[g]iven
his lengthy history of violating the conditions of supervision and his current lack of
insight, there is no reasonable expectation that he would maintain compliance with
psychiatric medication and refrain from substance abuse and criminal behavior
(particularly assaultive behavior) in the community.” We conclude that there was no
clear error in the district court’s finding of future dangerousness.
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II.
This appeal also involves an order to show cause why the briefs in this case
should not be unsealed. The parties were allowed by clerk’s order to file their briefs
under seal, but the matter is now before the panel. As discussed in United States v.
Garner, 39 F.4th 1023 (8th Cir. 2022), court proceedings are presumptively public,
and public court records not infrequently include otherwise private medical
information when a court’s decision depends on an assessment of medical or
psychological evidence. We explained in Garner that counsel seeking to seal briefs
in a civil commitment proceeding must explain why a court’s decision to commit a
person against his will for mental health treatment should be reviewed based on
arguments made in secret. We also emphasized that a proper motion to seal should
be narrowly drawn and accompanied by a proposed redacted filing for the public
docket. Id. at 1024.
The parties assert that the briefs should be sealed in their entirety because they
include references to “personal information and psychiatric records” regarding Gray’s
“medical and mental health issues.” They argue that there is “little need” for the
public to access the details of Gray’s medical and mental health history while he is
in custody, and suggest that Gray would be prejudiced if his medical and mental
health records were disclosed. They also assert that the Medical Center is a “covered
entity” under the Health Insurance Portability and Accountability Act of 1996
(HIPAA), and that records from the Medical Center may not be disclosed without
consent of the patient. As for filing a proper motion to seal that is narrowly drawn,
the parties respond that the process of redacting briefs would be “onerous,” and that
attorneys could make a “mistake” that would subject them to liability for improper
disclosure under HIPAA. They also suggest that civil commitment cases should be
treated in the same manner as social security and immigration cases under Federal
Rule of Civil Procedure 5.2(c), as incorporated into appellate rules of procedure. See
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Fed. R. App. P. 25(a)(5); 8th Cir. R. 25A(k). Those rules provide for limited remote
access to electronic files, but do not authorize the filing of briefs under seal.
We have considered these points, but conclude that the parties have not made
a sufficient showing to justify sealing the briefs in this appeal. There is a common
law presumption of public access to judicial records. Nixon v. Warner Commc’ns,
Inc., 435 U.S. 589, 597 (1978); IDT Corp. v. eBay, 709 F.3d 1220, 1222 (8th Cir.
2013). The presumption is based on the need for the federal courts “to have a
measure of accountability and for the public to have confidence in the administration
of justice.” United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995). That need
is particularly acute when a proceeding involves the deprivation of a person’s liberty.
We recognize that a civil commitment proceeding necessarily requires discussion of
a party’s mental health, but there is systemic value in the potential for public scrutiny
of decisions ordering a person committed indefinitely against his will. As we pointed
out in Garner, publicly-filed briefs address otherwise private medical information in
cases involving such matters as disability benefits, insanity defenses in criminal
cases, alleged medical malpractice, and eligibility for execution in capital cases. 39
F.4th at 1024. The parties, moreover, have not suggested that this court’s decision
in a civil commitment case should be filed under seal, so it is difficult to discern what
incremental benefit to privacy would be served by sealing briefs that refer to the same
evidence and arguments that are necessarily discussed by the court.
The parties also suggest that information discussed in the briefs may not be
disclosed without the consent of a patient under the terms of HIPAA. Referring to
the Medical Center for Federal Prisoners, they assert that “[t]he entity producing the
records is a HIPAA covered entity.” A “covered entity”—that is, a health plan, a
health care clearinghouse, or a health care provider who transmits any health
information in electronic form in connection with a transaction covered by the Act,
45 C.F.R. § 160.103—may not “use or disclose protected health information” except
as permitted or required by regulation. 45 C.F.R. § 164.502.
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The Bureau of Prisons, however, has determined that it is not a “covered
entity” under HIPAA. See Infectious Disease Management: Voluntary and
Involuntary Testing, 70 Fed. Reg. 29191, 29192 (May 20, 2005) (“The Bureau of
Prisons is not a ‘covered entity’ under subsequent regulations promulgated by the
Department of Health and Human Services to implement HIPAA”); U.S. Dep’t of
Just. Fed. Bureau of Prisons, Program Statement No. 6090.04, Health Information
Management 9 (2015) (explaining that “the Bureau is not a HIPAA covered entity”).
The Medical Center for Federal Prisoners is an entity within the Bureau of Prisons.
The government has argued elsewhere that HIPAA does not apply to a prisoner’s
medical records from the Bureau of Prisons or to the testimony of medical personnel
from the Bureau, because the Bureau is not a “covered entity” under HIPAA. See
Response to Motion in Limine at 5-6, Millbrook v. United States, No. 18-cv-01962
(D. Colo. Mar. 21, 2022). (The Colorado pleading also says that the United States
Department of Health and Human Services concurs in this view.) We see no basis to
reach a different conclusion. The United States Attorney in this case offers only an
assertion to the contrary with no citation, analysis of the statute or regulations, or
explanation of the foregoing statements by the government.
For these reasons, we conclude that the briefs on appeal should be unsealed.
We will adopt the suggestion of the parties to limit remote access to the briefs by
analogy to Federal Rule of Appellate Procedure 25(a)(5).
* * *
The judgment of the district court is affirmed. The clerk is directed to unseal
the briefs in this case, but to limit remote electronic access to the parties and their
attorneys.
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