Doe v. NH Department of Health and Human Services, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Doe, et al.
v. Civil No. 18-cv-1039-JD
Opinion No. 2019 DNH 141
Jeffrey A. Meyers,
Commissioner of the
New Hampshire Department
Of Health and Human
Services, et al.
O R D E R
The plaintiffs have filed a putative class action that
challenges practices used by New Hampshire hospitals and the
Department of Health and Human Services to involuntarily detain
individuals who experience mental health crises and seek
treatment in hospital emergency rooms. In the amended
complaint, the plaintiffs bring claims for violation of their
procedural due process rights under the federal and New
Hampshire constitutions, a claim of violation of RSA 135-C:31,
I, and state law claims for false imprisonment. David D. King,
Administrative Judge of the New Hampshire Circuit Court, is
named in his official capacity as a “necessary party” under
Federal Rule of Civil Procedure 19(a)(1)(A).
Judge King moves to dismiss the action against him. The
plaintiffs object to the motion to dismiss.
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Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) challenges the plaintiffs’ complaint on the ground that
they fail “to state a claim on which relief can be granted.” To
decide the motion, the court accepts as true all of the properly
pleaded facts and draws reasonable inferences in favor of the
nonmoving party. Lemelson v. Bloomberg L.P., 903 F.3d 19, 23
(1st Cir. 2018). The plaintiffs must allege facts that allow
the court “to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
Background
As alleged in the amended complaint, “[t]his case is about
the State’s systemic failure to provide probable cause hearings
to patients being involuntarily detained and boarded in hospital
emergency rooms within three days of the patient’s admission to
the hospital.” Doc. no. 78, at *2. In addition, the case is
about “how New Hampshire hospitals systemically and unlawfully
continue to detain these patients after the three-day deadline
has come and gone for these probable cause hearings.” Id. The
named plaintiffs provide information about each of their
detentions.
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With respect to Judge King, the plaintiffs allege that
“[t]he New Hampshire Circuit administers the very probable cause
hearings that are directly at issue in this case, including
their location, when they are conducted, and how they are
conducted.” Doc. no. 78, ¶ 94. The plaintiffs allege that the
court administers probable cause hearings after a detained
individual is transferred to a receiving facility, which is when
the court becomes aware of the detention. The plaintiffs
contend that the court’s “failure to timely conduct these
hearings violates the protections of due process and RSA 135-
C:31, both of which at least require a hearing to be held within
three days of when the IEA certificate is completed while the
patient is in an emergency room.” Id. The plaintiffs assert
that Judge King is a necessary party in this case “so this Court
can ensure that any remedy it imposes concerning probable cause
hearings is administratively and logistically effectuated.”
Id., ¶ 96. The plaintiffs name Judge King, as “a party pursuant
to Rule 19(a)” in three claims: Count I – claim under 42 U.S.C.
§ 1983 for violation of Fourteen Amendment procedural due
process rights; Count II – violation of procedural due process
under the New Hampshire Constitution, Part I, Article 15; and
Count III – violation of RSA 135-C:31, I.
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Discussion
Judge King moves to dismiss the action against him. In
support, he states that he has not been served and service
cannot be made on him, that the Eleventh Amendment precludes the
suit, that this court cannot grant the requested relief, and
that he is not a necessary party. In response, the plaintiffs
ignore the service issue, and argue that Judge King is a
necessary party who is not affected by immunity under the
Eleventh Amendment.
I. Capacity
As alleged in the amended complaint, Judge King is sued in
his “official administrative capacity.” In contrast to personal
capacity suits, which seek to impose liability on a government
official for actions taken under color of state law, claims
against parties in their official capacities “‘generally
represent only another way of pleading an action against an
entity of which an officer is an agent.’” Kentucky v. Graham,
473 U.S. 159, 165-66 (2985) (quoting Monell v. N.Y. City Dept.
of Social Servs., 436 U.S. 658, 690, N.55 (1978)). Therefore,
it appears that although Judge King is named, the suit is
brought against the New Hampshire Circuit Court.
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II. Service of Process
Judge King, on behalf of the Circuit Court, states that he
has not been served and that the suit should be dismissed as to
him for that reason. The plaintiffs represent that after the
motion to dismiss was filed, they sent Judge King a waiver of
service, which he signed. The waiver of service was filed on
August 2, 2019. See Doc. no. 95.
III. Eleventh Amendment and Sovereign Immunity
Judge King also contends that the plaintiffs’ claims are
barred by the Eleventh Amendment. Unless an exception applies,
the Eleventh Amendment precludes suits against states by private
individuals in federal court. Bd. Of Trs. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001). A state court is a state
entity for purposes of the Eleventh Amendment. Boyd v. Wachovia
Bank NA, 308 Fed. Appx. 582, 583 (3d Cir. 2009); Munt v.
Schnell, 2019 WL 2537933, at *1 (D. Minn. June 20, 2019); Razavi
v. Traffic Court of Santa Clara County, 2019 WL 1676018, at *4
(N.D. Cal. Apr. 17, 2019); Madison v. Wheat, 2016 WL 3546223, at
*2 (D. Md. June 23, 2016).
In response to the motion to dismiss, the plaintiffs state
that they “assert no claims against [Judge King], and thus his
concerns about sovereign or judicial immunity are inapposite.”
Doc. no. 97 at 7. They further explain that Judge King is named
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in the suit “to ensure that equitable relief for Plaintiffs can
be fashioned without impinging on the administrative realities
of the Circuit Court system.” Id. In essence, the plaintiffs
attempt to avoid the effect of the Eleventh Amendment by joining
Judge King in the suit without explicitly bringing claims that,
if successful, would require the Circuit Court to provide them
relief.
A. Subject Matter Jurisdiction
The Constitution restricts the jurisdiction of federal
courts to deciding cases or controversies.1 U.S. Const., art.
III. § 2; Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018). The
restriction imposed by Article III implicates a plaintiff’s
standing to bring a claim and the ripeness of the claim. Reddy
v. Foster, 845 F.3d 493, 499 (1st Cir. 2017). To establish
standing, a plaintiff must show “an injury in fact,” which is
both “’concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” Id. at 500 (quoting SBA List v.
Driehaus, 573 U.S. 149, 158 (2014)) (further internal quotation
marks omitted). In addition, a claim is not ripe “if it rests
upon contingent future events that may not occur as anticipated,
1 The court has a duty to assess subject matter jurisdiction
in an action, even sua sponte when necessary. Spooner v. EEN,
Inc., 644 F.3d 62, 67 (1st Cir. 2011).
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or indeed may not occur at all.” Labor Relations Div. of Contr.
Indus. of Mass., Inc. v. Healey, 844 F.3d 318, 326 (1st Cir.
2016) (internal quotation marks omitted).
Here, the plaintiffs state that they have not brought a
claim against Judge King and do not seek relief from him.
Instead, they contend that “the [other] parties cannot possibly
formulate a remedy without [the Circuit Court’s] involvement in
this case . . . [because] the parties need to know the
feasibility of remedies to this due process crisis that the
Circuit Court will ultimately oversee.” Doc. no. 97, at *5.
They also contend that the Circuit Court “has not committed to
providing the administratively or logistically necessary
arrangements to ensure that probable cause hearings are
conducted promptly if the Circuit Court receives a request to do
so.” Id., at *6.
Importantly, the plaintiffs do not allege that the Circuit
Court or Judge King has ever refused to conduct a probable cause
hearing or has ever in any way thwarted their efforts in that
regard. They do not allege any actions or failures to act by
the Circuit Court or Judge King that have violated their rights.
Instead, they anticipate that logistical problems may arise if
the other defendants are ordered to provide probable cause
hearings. Such anticipated problems have not yet occurred, and
the plaintiffs have not alleged facts to show that, if they are
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successful, the Circuit Court or Judge King is likely to cause
such problems.
Therefore, the complaint does not allege a justiciable case
or controversy as to Judge King or the Circuit Court. As a
result, this court lacks subject matter jurisdiction to consider
the plaintiffs’ concerns about possible future issues that might
or might not involve the Circuit Court.
B. Claims and Relief
Alternatively, and despite the plaintiffs’ representations
in their objection to the motion to dismiss, their amended
complaint might be construed to allege that the Circuit Court
failed to conduct timely hearings in violation of due process
and RSA 135-C:31. The plaintiffs also state that they are
seeking prospective injunctive relief to require those hearings.
As such, the complaint might be construed to bring claims and to
seek relief from the Circuit Court.
As is noted above, the Eleventh Amendment precludes suits
against states by private parties in federal courts. The
plaintiffs argue that the Eleventh Amendment does not proscribe
future injunctive relief to require conformity with federal law.
In Ex Parte Young, 209 U.S. 123, 159-60 (1908), the Supreme
Court recognized a narrow exception to Eleventh Amendment
immunity when a state official uses the name of the state to act
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in violation of the Constitution. That exception to Eleventh
Amendment immunity applies to claims for prospective injunctive
relief against state officials who violate constitutional rights
but does not apply to states or state agencies. Va. Office for
Protection & Advocacy v. Stewart, 563 U.S. 247, 254-55 (2011);
Alabama v. Pugh, 438 U.S. 781, 782 (1978); Williams v. Utah
Dep’t of Corrs., 928 F.3d 1209, 1214-15 (10th Cir. 2019). The
exception is allowed because a state official who is violating
federal law is not acting as the state for purpose of the
Eleventh Amendment, and the court can order the official to stop
violating federal law. Stewart, 563 U.S. at 254; Kodiak Oil &
Gas (USA) Inc. v. Burr, --- F.3d ---, 2019 WL 3540423, at *2
(8th Cir. Aug. 5, 2019). Therefore, a claim against a state
official in his official capacity will avoid Eleventh Amendment
immunity if the complaint alleges an ongoing violation of
federal law by the state official and seeks prospective relief.
Stewart, 563 U.S. 247, 256 (2011).
In an attempt to show that they alleged an ongoing
violation of federal law by Judge King, despite alleging no
claim against him, the plaintiffs state in their objection:
“Plaintiffs in this action have named the Administrative Judge
as a necessary party and have clearly asserted that New
Hampshire officials are acting in contravention of
constitutional law by failing to provide timely due process
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hearings.” Doc. no. 97, at *10. They also argue that the
Circuit Court “is connected to the State’s unconstitutional
actions.” Id. They note their allegation that “the Circuit
Court’s failure to timely conduct these hearings violates the
protections of due process and RSA 135-C:31,” but they fail to
allege that anyone requested a hearing or otherwise invoked the
jurisdiction of the Circuit Court.2 See RSA 135-C:31.
The plaintiffs have not alleged any actions by Judge King
that violate federal law or their constitutional rights.
Further, to the extent the plaintiffs are seeking a prospective
injunction to require the Circuit Court to hold probable cause
hearings in the future, they have not alleged an existing
constitutional violation by Judge King that an injunction would
remedy. Therefore, the plaintiffs have not shown that the
exception to Eleventh Amendment immunity applies here.
C. Administrative Function
The plaintiffs also argue that the Eleventh Amendment does
not preclude joining Judge King because the suit focuses on the
2 In fact, the plaintiffs’ complaint against the other
defendants is that they failed to provide the process necessary
for a timely probable cause hearing as required by RSA 135-C:31.
The plaintiffs cite no authority that would require the Circuit
Court or Judge King to conduct probable cause hearings sua
sponte.
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court’s administrative function.3 In support, the plaintiffs
rely on Rivera-Puig v. Garcia-Rosario, 983 F.2d 311, 318 (1st
Cir. 1992). Rivera-Puig, however, involved “important
constitutional issues requiring [the court] to strike a balance
between state-created due process and privacy concerns, and
freedom of the press rights protected by the First Amendment of
the United States Constitution.” Id. at 313.
In Rivera-Puig, the plaintiff brought suit against a
Commonwealth judge, apparently in his personal capacity,
challenging his use of a state procedural rule to deny the
plaintiff access to certain court proceedings. Id., at 314.
That part of the decision cited by the plaintiffs addresses
whether there was a case or controversy, for purposes of Article
III jurisdiction, between the judge and the plaintiff based on
the judge’s administrative function in applying the court rule.
Id., at 318. Nothing in the case addresses an administrative
function exception to the Eleventh Amendment.
The plaintiffs have not shown that an administrative
function exception exists that would preclude Eleventh Amendment
protection for Judge King or the Circuit Court in this case.
3 The administrative function exception applies in the
context of judicial immunity. Zenon v. Guzman, 924 F.3d 611,
616-17 (1st Cir. 2019).
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IV. Joinder
The plaintiffs argue that they can join Judge King in this
action under Federal Rule of Civil Procedure 19, as a necessary
party, without bringing any claims against him or the Circuit
Court. The case cited by the plaintiffs in support, EEOC v.
Peabody W. Coal Co., 400 F.3d 774, 782 (9th Cir. 2005),
acknowledges a circuit split on the issue, and was later
clarified in EEOC v. Peabody W. Coal Co., 610 F.3d 1070, 1079
(9th Cir. 2013). See Davenport v. Int’l Bhd. of Teamsters, AFL-
CIO, 166 F.3d 356, 366 (D.C. Cir. 1999) (stating that Rule 19
does not create a cause of action); Vieux Carre Prop. Owners,
Residents & Assoc., Inc. v. Brown, 875 F.2d 453, 457 (5th Cir.
1989) (holding that the plaintiff must have a cause of action
against a party before it may be joined as a defendant). The
Ninth Circuit’s joinder theory was further discussed in Hartmann
v. Cal. Dep’t of Corrs. & Rehab., 707 F.3d 1114, 1128 (9th Cir.
2013).
In Gonzalez-Aviles v. Perez, 2016 WL 3440581, at *2 (D. Md.
June 17, 2016), the court disagreed with the original Ninth
Circuit opinion, holding that Rule 19 “does not create a cause
of action against a party” and does not allow joinder of parties
“when they have committed no wrong and are joined soley so that
the plaintiffs can obtain complete relief.” See also PRI, Inc.
v. Keith, 2011 WL 6402281, at *2 (W.D. Miss. Dec. 21, 2011)
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(holding that a party could not be joined as a defendant when no
claim was alleged against the defendant); Becker v. Int’l Bhd.
Of Teamsters Local 120, 2011 WL 1868362, at *3 (D. Minn. May 16,
2011); AMS Capital Holdings Corps v. Vista Strategic Advisory,
LLC, 2008 WL 11351283, at *4 (S.D. Ohio June 10, 2008).
This court is not persuaded that the plaintiffs may join
Judge King or the Circuit Court under Rule 19 in the absence of
a viable cause of action against either of them. Further, the
plaintiffs have not shown that Rule 19 would overcome the
jurisdictional requirements of Article III or the immunity
provided by the Eleventh Amendment.
Conclusion
For the foregoing reasons, Judge King’s motion to dismiss
(document no. 91) is granted.
David D. King, Administrative Judge of the New Hampshire
Circuit Court, in his official capacity, is dismissed from this
case.
SO ORDERED.
______________________________
Joseph A. DiClerico, Jr.
United States District Judge
August 28, 2019
cc: Counsel of Record
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