Federal judge dismisses patient-dumping lawsuit; plaintiffs plan to keep issue alive

A federal lawsuit filed last summer over allegations of patient dumping at state-run Rawson-Neal Psychiatric Hospital in Las Vegas was dismissed Thursday by U.S. District Judge James C. Mahan, but an official with the American Civil Liberties Union of Nevada said this case is not going away.

Mahan dismissed the plaintiff’s claims without prejudice, leaving several options open.

“We are not finished with this. (Mahan) didn’t rule on the merits,” Allen Lichtenstein, general counsel for the ACLU of Nevada said on Thursday. “He ruled based on the adequacy of the language in the complaints.”

Last June, the American Civil Liberties Union of Nevada and Mark Merin, a civil rights lawyer in Sacramento, Calif., filed the lawsuit in U.S. District Court in Las Vegas on behalf of James F. Brown and those similarly situated. After being discharged in Feb. 11, 2013 from Rawson-Neal, Brown was bused to Sacramento, where he had no family or support waiting for him.

The lawsuit named a long list of defendants, including the hospital, several state agencies and state employees, such as Mike Willden, director of the state’s Department of Health and Human Services, and the federal Centers for Medicare and Medicaid Services

According to the Department of Health and Human Services, of 1,473 cases in which patients received an out-of-state bus ticket from 2008 to 2012, 10 were insufficiently documented, making it difficult to know whether staff had confirmed there was support — such as family, friends and housing — waiting at the patient’s destination.

Efforts to reach Brown Thursday were not successful. Merin couldn’t be reached for comment.

“Factual allegations must be enough to rise above the speculative level,” the court order states. “Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim to relieve that is plausible on its face.”

With Mahan having dismissed the plaintiff’s claims without prejudice, counsel for the plaintiff have several possibilities they can pursue to keep the case alive. Lichtenstein said he, along with Merin and Staci Pratt, legal director for the ACLU of Nevada, can chose to appeal Thursday’s decision, rewrite the complaint or file the complaint in state court.

As of Thursday afternoon, he didn’t know what route the team would take since they have to discuss the options.

“We are going to move forward,” he said from Hawaii. “Exactly how we are going to move forward is something that I won’t know until we talk about it with the other lawyers.”

Mary-Sarah Kinner, spokeswoman for Gov. Brian Sandoval’s office, said, “The order speaks for itself.”

Mary Woods, spokeswoman for the Nevada Department of Health and Human Services, also said Mahan’s dismissal was clear.

“We are pleased to learn of the decision,” she said in a statement.

Beatriz Aguirre, spokeswoman with the Nevada attorney general’s office, said Mahan issued a “well-reasoned decision, which explains why the complaint was dismissed.”

In the lawsuit, Brown alleges a violation of the Eighth Amendment guarantee against cruel and unusual punishment.

“Plaintiff argues that the court should take an unprecedented view of the requirements of the Eighth Amendment, putting forward the perspective that Rawson-Neal staff ‘banished’ plaintiff by discharging him involuntarily,” the court order for dismissal reads. “Indeed, this view stretches the Eighth Amendment beyond its previously recognized limits, and would effectively require hospitals to indefinitely provide free care to all patients to avoid ‘punishing’ them by forcing them out into the harsh existence of the real world.”

Brown’s second claim in the lawsuit alleges a violation of the Fourth Amendment’s right against unreasonable “seizure” due to defendants’ actions to discharge him, escort him to a taxi and arrange his travel to Sacramento. But to establish that a seizure occurred, the plaintiff must allege that he was subject to use of physical force or a demonstration of state authority, among other factors, according to court documents.

“In this case, plaintiff fails to show that defendants utilized physical force or a demonstration of authority by providing him with transportation to Sacramento,” the court order reads. “There is no allegation that plaintiff was threatened with punishment if he did not travel to Sacramento.”

Brown’s allegation that defendants’ violated the Equal Protection Clause of the Fourteenth Amendment by discharging him and instructing him to travel out of state based on his status as an indigent patient was also dismissed without prejudice.

In addition, the court order says that Brown failed to show that he suffered from any “personal harm” as a direct result of defendants’ failure to comply with the Emergency Medical Treatment and Active Labor Act.

Sue Gaines, president for the National Alliance on Mental Illness of Southern Nevada, wasn’t able to comment on the dismissal, but said state officials are working hard to try to fix the state’s mental health system.

“We all know that the system is broken and we really, really want to help fix it,” said Gaines, who is on the governor’s Behavioral Health and Wellness Council. The dismissal won’t stop state officials from continuing to make improvements, she said.

Reporter Yesenia Amaro can be reached at yamaro@reviewjournal.com or 702-383-0440.