Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 1 of 18
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW HAMPSHIRE
`
`
`
`John Doe, et al.
`
`
`
`
`v.
`
`
`
`
`
`
`
`Commissioner, New Hampshire
`Department of Health and Human
`Services
`
`
`
`
`
`
`Civil No. 18-cv-1039-JD
`Opinion No. 2021 DNH 001
`
`O R D E R
`
`Four individual plaintiffs brought suit, challenging
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`
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`practices used by the Commissioner of the New Hampshire
`
`Department of Health and Human Services (“the Commissioner”) and
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`four New Hampshire hospitals to involuntarily detain individuals
`
`who experience mental health crises and seek treatment in
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`hospital emergency rooms.1 The New Hampshire Hospital
`
`Association and twenty hospitals (“the hospitals”) were granted
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`leave to intervene in the action to bring claims against the
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`Commissioner.2 The Commissioner moves to dismiss the hospitals’
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`remaining claims for lack of subject matter jurisdiction,
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`asserting sovereign immunity under the Eleventh Amendment and a
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`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.
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW HAMPSHIRE
`
`
`
`John Doe, et al.
`
`
`
`
`v.
`
`
`
`
`
`
`
`Commissioner, New Hampshire
`Department of Health and Human
`Services
`
`
`
`
`
`
`Civil No. 18-cv-1039-JD
`Opinion No. 2021 DNH 001
`
`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.
`
`
`
`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 2 of 18
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`
`
`Background
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`
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`The detailed factual background in this case, as alleged in
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`the hospitals’ amended complaint, was provided in the court’s
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`order denying the Commissioner’s previous motion to dismiss,
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`document number 148, and will not be repeated here.
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`
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`The hospital plaintiffs are the New Hampshire Hospital
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`Association, Alice Peck Day Memorial Hospital, Androscoggin
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`Valley Hospital, Catholic Medical Center, Cheshire Medical
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`Center, Concord Hospital, Cottage Hospital, Elliot Hospital,
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`Frisbie Memorial Hospital, HCA Health Services of New Hampshire
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`(Parkland Medical Center and Portsmouth Regional Hospital),
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`Huggins Hospital, Littleton Hospital Association (Littleton
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`Regional Healthcare), LRGHealthcare (Franklin Regional Hospital
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`and Lakes Region General Hospital), Mary Hitchcock Memorial
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`Hospital, Monadnock Community Hospital, New London Hospital,
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`Southern New Hampshire Medical Center, Speare Memorial Hospital,
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`Upper Connecticut Valley Hospital, Valley Regional Hospital, and
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`Weeks Medical Center. The hospitals name the Commissioner in
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`her official capacity as the defendant in this case.
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`
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` The hospitals’ allege that the Commissioner requires the
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`hospitals to examine, evaluate, and board psychiatric patients,
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`who are subject to involuntary emergency admission (“IEA”)
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`certification, until such time as they are transported to a
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`2
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 3 of 18
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`designated receiving facility. The hospitals bring three
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`federal claims against the Commissioner, pursuant to 42 U.S.C.
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`§ 1983, alleging that the Commissioner’s practice of boarding
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`IEA-certified persons in their emergency departments is
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`violating their constitutional rights.
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`
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`In Count I, the hospitals allege that the Commissioner’s
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`boarding practice constitutes an unlawful taking of their
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`property for public use in violation of the Fifth and Fourteenth
`
`Amendments. In Count II, they allege that the practice
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`interferes with their possessory rights in their emergency
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`departments which constitutes an unreasonable seizure of their
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`property in violation of the Fourth Amendment. In Count III,
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`they allege that the practice violates their rights to
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`procedural and substantive due process under the Fourteenth
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`Amendment by seizing and taking their property and denying them
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`their fundamental right to use their emergency departments. The
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`hospital plaintiffs seek a declaration that the Commissioner’s
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`practice violates their federal constitutional rights and a
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`permanent injunction against the practice. They also are
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`requesting nominal damages and attorneys’ fees and costs.
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`
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`Discussion
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`
`
`The Commissioner moves to dismiss the hospitals’ claims on
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`the grounds that the claims are barred by sovereign immunity
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`3
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 4 of 18
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`under the Eleventh Amendment and that the hospitals lack
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`standing to bring the claims. The hospitals object, arguing
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`that the exception to sovereign immunity provided under Ex Parte
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`Young, 209 U.S. 123 (1908), applies to their claims. They also
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`argue that they have standing to bring their claims.
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`
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`I. Standard of Review
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`
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`The Commissioner’s motion to dismiss challenges the court’s
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`subject matter jurisdiction and is brought pursuant to Federal
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`Rule of Civil Procedure 12(b)(1). Under Rule 12(b)(1), the
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`court construes the allegations in the complaint liberally,
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`treats all well-pleaded facts as true, and resolves inferences
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`in the plaintiffs’ favor. Jalbert v. U.S. Securities & Exchange
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`Comm’n, 945 F.3d 587, 590-91 (1st Cir. 2019). In addition to
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`the complaint, the court may consider other evidence submitted
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`by the parties without objection. Hajdusek v. United States,
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`895 F>3d 146, 148 (1st Cir. 2018). The plaintiff, as the party
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`invoking federal jurisdiction, bears the burden of showing that
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`subject matter jurisdiction exists when challenged by a motion
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`to dismiss on that ground. Lujan v. Defenders of Wildlife, 504
`
`U.S. 555, 561 (1992).
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`4
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 5 of 18
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`II. Eleventh Amendment
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`
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`The Commissioner contends that sovereign immunity under the
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`Eleventh Amendment bars the hospitals’ claims and that the
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`exception under Ex Parte Young does not apply. Specifically,
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`the Commissioner argues that the state is the real party in
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`interest. She also argues that Count III, which alleges a
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`violation of procedural and substantive due process, is based
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`solely on allegations that she is violating New Hampshire law.
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`Further, the Commissioner argues that the Eleventh Amendment
`
`bars the hospital’s claim for nominal damages.
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`
`
`In the absence of consent by the state, the Eleventh
`
`Amendment provides the state immunity from suit brought in
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`federal court by citizens of that state or another state.
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`Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
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`(1984). When a state official is sued, the suit is barred if
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`“the state is the real, substantial party in interest.” Id. at
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`101. Congress’s enactment of 42 U.S.C. § 1983 did not waive
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`states’ sovereign immunity to suit in federal court. Spencer v.
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`N.H. St. Police, 2019 WL 1546995, at *1 (D.N.H. Apr. 9, 2019).
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`Any waiver of sovereign immunity must be express. Blanchette v.
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`Tretyakov, 2020 WL 4219787, at *3 (D. Mass. July 23, 2020).
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`
`
`“[A] suit challenging the constitutionality of a state
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`official’s action is not one against the State.” Pennhurst, 465
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`U.S. at 102. For that reason, claims for prospective injunctive
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`5
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 6 of 18
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`relief and declaratory judgments to stop an ongoing violation of
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`federal law by a state official may be brought against the state
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`official, sued in her official capacity. Va. Office for
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`Protection & Advocacy v. Stewart, 563 U.S. 247, 255-56 (2011)
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`(“VOPA”); Ex Parte Young, 209 U.S. at 156. While federal courts
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`are authorized to require state officials to conform to federal
`
`law, they are not authorized to require state officials to
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`conform to state law. Pennhurst, 465 U.S. at 101-02.
`
`
`
`
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`
`
`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,
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`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
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`*7-*16 with doc. no. 185, at *8-*17; see also doc. no. 197, ¶ 1.
`
`The Commissioner argues that others are responsible for
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`providing actions and functions necessary to transfer IEA-
`
`certified persons to designated receiving facilities and to hold
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`probable cause hearings. She contends that because she cannot
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`control all of the pertinent actors, the claims are brought
`
`against the state and not against her in her official capacity.
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`6
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 7 of 18
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`1. Shared Responsibility
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`As the hospitals state in their amended complaint, under
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`New Hampshire law, “[t]he involuntary emergency admission of a
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`person shall be to the state mental health services system under
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`the supervision of the [DHHS] commissioner.” Am. Compl., doc.
`
`no. 77, at *2 (quoting RSA 135-C:28, I). However, the state
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`does not provide emergency services for persons experiencing
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`mental health crises. Instead, as the hospitals allege, the
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`Commissioner directs such persons to the emergency departments
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`of private hospitals, where approved hospital personnel are
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`tasked with examining them and completing an IEA certificate if
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`necessary.3 When the Commissioner lacks space in a designated
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`receiving facility for an IEA-certified person, the Commissioner
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`requires the hospitals to board the person until space becomes
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`available. The hospitals further allege that the Commissioner
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`requires their personnel to conduct IEA examinations every three
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`days during the boarding period in order to issue new IEA
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`certificates. In addition, they allege that the Commissioner’s
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`failure to provide probable cause hearings for the IEA-certified
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`persons while they are boarded in hospital emergency rooms
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`contributes to the length of the boarding period.
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`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.
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`7
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 8 of 18
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`The hospitals allege that the Commissioner, in her official
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`capacity, is violating their Fourth, Fifth, and Fourteenth
`
`Amendment rights through her policies and practices with respect
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`to persons who are experiencing mental health crises and are
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`certified for involuntary emergency admission to the mental
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`health services system. They allege that the Commissioner’s
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`boarding practice is a taking without just compensation in
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`violation of the Fifth Amendment, constitutes unreasonable
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`interference with their possessory interest in their emergency
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`departments in violation of the Fourth Amendment, and violates
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`their procedural and substantive due process rights protected
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`under the Fourteenth Amendment.
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`
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`The Commissioner is responsible for supervising and
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`administering the state’s mental health services system and the
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`participation of others in the process does not relieve her of
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`that responsibility. See discussion in doc. no. 201, at *12-
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`*15.
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`2. Other Arguments
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`Similarly, the Commissioner’s other arguments in support of
`
`her position that the state is the real party defendant were
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`addressed in the prior order and were decided against her. See
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`doc. no. 201, at *15-*19. Her argument that the circuit court
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`is responsible for providing hearings does not implicate the
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`state as the real party in interest. See id. at *15-*16. Any
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`8
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 9 of 18
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`purported disruption in the Commissioner’s boarding practice in
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`order to conform her policies and practices to constitutional
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`requirements does not convert the hospitals’ claims into claims
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`against the state. See id. at *16-*18. Further, funding that
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`is ancillary to an injunction to stop violations of plaintiffs’
`
`constitutional rights does not make the claims fall outside the
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`exception to sovereign immunity provided by Ex Parte Young. See
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`id. at *18-*19.
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`
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`Therefore, the Commissioner in her official capacity is the
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`defendant in this case.
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`B. State Law or Federal Law
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`As is noted above, the exception provided by Ex Parte Young
`
`does not apply to claims seeking enforcement of state law.
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`Pennhurst, 465 U.S. at 106. The Commissioner argues that the
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`hospitals’ due process claim in Count III alleges only a
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`violation of state law, RSA chapter 135-C.4 In support, she
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`cites one part of the hospitals’ requests for relief in their
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`amended complaint and states in her reply that the claim is
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`based solely on allegations of state law violations.
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`4 The Commissioner does not challenge Counts I or II on the
`ground that the hospitals allege only a violation of state law.
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`9
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 10 of 18
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`1. Relief Requested
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`In Count III of their amended complaint, the hospitals
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`state that they “seek a declaration that [the Commissioner’s]
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`conduct, policy and practice violate the Hospitals’ Fourteenth
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`Amendment substantive and procedural due process rights.” Doc.
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`77, ¶ 112. They also “seek a permanent injunction enjoining
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`[the Commissioner] from continuing [her] policy, and practice.”
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`Id. As part of the final section of the amended complaint in
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`the request for relief, which the Commissioner cites, the
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`hospitals ask the court to declare violations of their
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`constitutional rights and seek an injunction to stop the
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`Commissioner’s alleged violations of state law. Doc. 77, at
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`*32-*33.
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`
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`Although the request at the end of the amended complaint is
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`limited to an injunction to stop violations of state law, in
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`Count III, the hospitals have requested an injunction to stop
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`the Commissioner’s continuing violation of their Fourteenth
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`Amendment due process rights and ask for a declaratory judgment
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`that the Commissioner is violating their Fourteenth Amendment
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`rights. Therefore, the Commissioner is mistaken that the
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`hospitals failed to request relief based on federal law. As
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`previously stated, although a federal court cannot enjoin
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`violations of state law, under Ex Parte Young, a federal court
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`10
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 11 of 18
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`can enjoin a state official sued in her official capacity from
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`continuing to violate the federal constitution.
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`2. Violations of State Law
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`To the extent the Commissioner challenges Count III as
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`alleging only a violation of state law, that is not the claim
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`the hospitals allege. In Count III, the hospitals allege that
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`the Commissioner’s boarding practice is violating their
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`substantive and procedural due process rights protected by the
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`Fourteenth Amendment.
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`
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`Although the hospitals refer to the state statutory
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`requirement that the Commissioner immediately transport IEA-
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`certified persons to designated receiving facilities, that
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`reference is not the basis of the hospitals’ claim but rather
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`refers to the Commissioner’s responsibilities under state law.
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`The constitutional violation they allege is that IEA-certified
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`persons are not transported to designated receiving facilities
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`in a timely fashion and instead the Commissioner requires the
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`hospitals to board those persons in hospital emergency
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`departments indefinitely without any state procedure to allow
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`the hospitals to challenge that boarding practice. As such, the
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`hospitals allege a federal claim that the Commissioner’s
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`boarding practice violates the due process clause of the
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`Fourteenth Amendment.
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`11
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 12 of 18
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`C. Nominal Damages
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`In addition to declaratory and injunctive relief, the
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`hospitals seek an award of nominal damages in their federal
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`claims (Counts I, II, and III). The Commissioner moves to
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`dismiss the claims for nominal damages as barred by sovereign
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`immunity. The hospitals did not object or even address that
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`part of the motion to dismiss.
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`
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`The Commissioner, when sued in her official capacity, is
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`entitled to sovereign immunity from suit brought in federal
`
`court by citizens of New Hampshire. Pennhurst, 465 U.S. at 100.
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`That immunity includes a bar against nominal damages. Am. Civil
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`Liberties Union of Mass. V. U.S. Conference of Catholic Bishops,
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`705 F.3d 44, 53 n.7 (1st Cir. 2013). The hospitals cite no
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`exception to sovereign immunity that would permit that relief
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`here.
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`
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`Therefore, the hospitals’ claims for nominal damages are
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`dismissed.
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`
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`II. Standing
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`
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`The Commissioner contends that the hospitals lack Article
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`III standing to maintain their federal claims. Under Article
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`III of the Constitution, federal courts are limited to deciding
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`“‘cases and controversies of the sort traditionally amenable to,
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`12
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 13 of 18
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`and resolved by, the judicial process.’” Amrhein v. eClinical
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`Works, LLC, 954 F.3d 328, 330 (1st Cir. 2020) (quoting Steel Co.
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`v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998)). Part
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`of the case or controversy requirement is that plaintiffs must
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`have standing to maintain the claims alleged. Id.
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`
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`“To have standing, a plaintiff must present an injury that
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`is concrete, particularized, and actual or imminent; fairly
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`traceable to the defendant’s challenged action; and redressable
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`by a favorable ruling.” Dept. of Commerce v. New York, 139 S.
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`Ct. 2551, 2565 (2019). The Commissioner does not challenge the
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`existence of the hospitals’ injury. She contends that the
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`hospitals failed to allege an injury that is fairly traceable to
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`her actions or that the injury is likely to be redressed by the
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`injunction she seeks.
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`A. Fairly Traceable
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`The Commissioner contends that the hospitals’ injuries are
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`not fairly traceable to her because they allege that a number of
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`third parties, rather than the Commissioner, caused them. When
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`a plaintiff’s injury depends on a causal chain of events that
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`includes the independent actions of third parties along with the
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`defendant, the resulting injury may not be fairly traceable to
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`the defendant. Dantzler, Inc. v. Empresas Berrios Inventory &
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`Operations, Inc., 958 F.3d 38, 48 (1st Cir. 2020). The causal
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`13
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 14 of 18
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`chain is broken when actions or decisions by independent third
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`parties might or might not occur, so that the cause of the
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`anticipated injury to the plaintiff is merely speculative.5
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`Id. For that reason, when an injury is indirect, the plaintiff
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`may have a difficult time showing a causal chain. Id.
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`
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`In support, the Commissioner points to paragraphs in the
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`hospitals’ amended complaint which she contends show that the
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`injuries were caused by third parties. In the referenced
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`paragraphs, the hospitals cite a 2017 report about the numbers
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`of psychiatric patients waiting in hospital emergency
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`departments, discuss a failed pilot program to provide probable
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`cause hearings, and allege that DHHS’s ten year plan proposes
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`that the hospitals provide probable cause hearings for IEA-
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`certified persons. Those allegations do not establish, as the
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`Commissioner represents, that the hospitals allege injury caused
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`by others’ actions.
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`The hospitals’ position is that the Commissioner’s failure
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`to remove IEA-certified persons immediately after the
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`5 The 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.
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`14
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 15 of 18
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`certificate is completed is an injury fairly traceable to her.
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`In response, the Commissioner focuses narrowly on the
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`transportation of IEA-certified persons. She argues that
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`transportation is not her responsibility and that instead
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`transport of IEA-certified persons is up to law enforcement,
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`which the hospitals could arrange themselves under RSA 135-C:63.6
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`
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`The Commissioner’s theory misconstrues the hospitals’
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`allegations. Rather, the hospitals do not allege any failure on
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`the part of law enforcement to transport patients. The
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`hospitals are alleging that the Commissioner’s boarding
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`practice, which requires them to board IEA-certified persons
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`because they cannot be immediately transferred to designated
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`receiving facilities, violates their federal constitutional
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`rights.
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`
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`To the extent others participate in the IEA-certification
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`process and in providing other actions and functions necessary
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`for mental health services, the ultimate responsibility for the
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`mental health services system falls on the Commissioner. The
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`hospitals allege that their injury is directly caused by the
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`Commissioner’s practice of directing persons experiencing mental
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`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.
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`15
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 16 of 18
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`health crises to private hospitals and then requiring the
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`hospitals to board IEA-certified patients indefinitely and to
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`renew the certificates every three days without providing
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`probable cause hearings. The injury as alleged by the hospitals
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`is fairly traceable to the Commissioner’s boarding practice.
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`B. Redressable by a Favorable Decision
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`To satisfy the redressability requirement, the hospitals
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`must allege facts to show “that the court can fashion a remedy
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`that will at least lessen [their] injury.” Dantzler, 958 F.3d
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`at 49. If the remedy sought depends mostly or entirely on the
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`actions of third parties, who are not parties in the case, the
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`court probably cannot provide a remedy to lessen the injury.
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`Id. When the plaintiff challenges a practice as
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`unconstitutional, a court can redress the injury by an
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`injunction without ordering any particular system or means by
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`which to change the challenged practice. Lyman v. Baker, 954
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`F.3d 351, 362 (1st Cir. 2020).
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`
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`The Commissioner argues that the hospitals have not alleged
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`redressability because others would be involved in resolving the
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`issues raised by the hospitals’ claims. As is addressed above,
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`to the extent others may be involved in the procedures necessary
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`to eliminate the Commissioner’s boarding practice, the
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`Commissioner bears the ultimate responsibility for supervising
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`16
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 17 of 18
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`and administering the mental health services system and for
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`correcting any constitutional deficiencies that may be found to
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`exist. An injunction need not specify a specific means to
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`change the challenged practice, if it is found to violate the
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`constitution.
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`Further, as the hospitals point out, to be redressable,
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`they need only show that the relief they request would at least
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`lessen their injury. They contend that “[i]f a favorable ruling
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`only resulted in the Commissioner directing persons to commence
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`the IEA process with a visit to [New Hampshire Hospital], a
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`[designated receiving facility], or a local hospital emergency
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`department, the Hospitals’ injuries could be ameliorated.” Doc.
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`199, at *4. They also contend that a favorable ruling could
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`require the Commissioner to fill the available beds in
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`designated receiving facilities. In either event, the hospitals
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`argue, the result would reduce the number of IEA-certified
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`persons subject to boarding in their emergency departments. The
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`hospitals, therefore, have alleged a redressable injury.
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`The hospitals have standing to maintain their claims in
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`Counts I, II, and III.
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`17
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`Case 1:18-cv-01039-JD Document 203 Filed 01/04/21 Page 18 of 18
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`Conclusion
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`For the foregoing reasons, the Commissioner’s motion to
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`dismiss (document no. 186) is granted as to the hospitals’
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`claims for nominal damages and is otherwise denied.
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`SO ORDERED.
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`January 4, 2021
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`cc: Counsel of record.
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`______________________________
`Joseph A. DiClerico, Jr.
`United States District Judge
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`18
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