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John Brandt v. Evan Feibusch

March 29, 2011

JOHN BRANDT, PLAINTIFF,
v.
EVAN FEIBUSCH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Wolfson, District Judge

NOT FOR PUBLICATION

OPINION

Plaintiff John Brandt, a civilly-committed mental patient confined at Trenton Psychiatric Hospital in Trenton, New Jersey, seeks to bring this action in forma pauperis pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Based on his affidavit of indigence, the Court will grant Plaintiff's application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court to file the Complaint.

At this time, the Court must review the Complaint to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief.

I. BACKGROUND

The following factual allegations are taken from Plaintiff's Complaint, or from sources of which this Court may take judicial notice,*fn1 and are accepted as true for purposes of this review.

In 2001, Plaintiff was charged, in two indictments, with burglary, criminal mischief, and criminal trespass. He was subsequently diagnosed with bipolar disorder, manic type with psychotic features, and with an antisocial personality disorder. In 2003, the trial judge found him competent to stand trial on both indictments and not guilty by reason of insanity. Thereafter, he was involuntarily committed and placed on Krol*fn2 status. He remains committed and on Krol status as the result of the required periodic reviews. See generally Brandt v. McQuaide, 2010 WL 5343233 (D.N.J. Dec. 20, 2010) and In the Matter of the Commitment of J.B., 2009 WL 1658494 (N.J.Super.App.Div. June 16, 2009).

Before this Court, Plaintiff alleges that, at a Krol status hearing apparently in late 2008, it was determined that he was entitled to be transferred from Ann Klein Forensic Center to a hospital in a less restrictive setting for the purposes of treatment. Plaintiff alleges that he was not transferred to Trenton Psychiatric Hospital for a period of almost four months, until March 2009, which he characterizes as an unreasonable delay, not based on professional judgment, that deprived him of his right to be treated in the least restrictive environment.

Plaintiff alleges that, after he was transferred to TPH, he was not properly moved to a level of supervision with more privileges and less supervision, and that he therefore brought a civil rights action challenging his placement. See Brandt v. Trenton Psychiatric Hospital, Civil No. 09-5367 (D.N.J.). Plaintiff alleges that as a result of this litigation he was labelled a "troublemaker" by some staff members.

Plaintiff alleges that for approximately one year, prior to March 2, 2010, he was housed in the Raycroft building, in a private room, where he was making good progress. Plaintiff alleges that on March 2, 2010, he met with his treatment team and they informed him that he was continuing to do well and that there was no significant change in his treatment status. Later that day, however, Plaintiff was "administratively" transferred to another unit, the Lincoln Complex, and placed in the Intensive Treatment Unit ("ITU"). Plaintiff alleges that his previous treatment team was unaware of the planned transfer and did not agree with the transfer decision. Plaintiff alleges that he was not personally examined by the "administrative defendant" that authorized the transfer to the ITU ward. Plaintiff alleges that the transfer was punitive, because of Plaintiff's civil rights action and other grievances and complaints about patients' rights. Plaintiff alleges that the transfer was intended to thwart his progress and to induce him to act out so that he could be transferred back to AKFC, a more secure facility.

Plaintiff alleges that after he was transferred to ITU, his personal belongings were locked away by program coordinator Bruce Booth, and he had no access to them. Plaintiff alleges that he, therefore, had no access to personal hygiene products. Plaintiff alleges that he was placed in a room with a psychotic roommate and with no private bathroom.

Plaintiff alleges that he met with his treatment team soon after the transfer, and that "they understood that he knew the law backwards and forewords [sic], and pointed to his medical chart. The treatment team and Dr. Rizvi also disputed and were disappointed that plaintiff was going to court every three months and not the standard sixth [sic] months that they make Krol status patients complete." (Complaint, ¶ 40.) Plaintiff alleges that, while on the ITU ward, he was not permitted to attend his regular treatment programs that had been established by his previous treatment team.*fn3

Plaintiff alleges that, on March 2, 2010, the day of his transfer to the ITU, he broke several day room windows out with a chair. Plaintiff alleges that he was thereafter forcibly injected by the nursing supervisor with antipsychotic medication, not for medical reasons, but for the convenience of the staff. Plaintiff alleges that he was not evaluated by a psychiatrist before the antipsychotic medication was forcibly administered.

Plaintiff alleges that when he approached a staff member the next day, for hygiene products, the staff member said there were none and then said, "You should break some more windows." Plaintiff alleges that he then broke some more windows. Plaintiff alleges that the nursing supervisor and another nurse (identified as Jane Does I and II) again forcibly medicated him without any psychiatric oversight.

Plaintiff alleges that on March 4, 2010, the Raycroft building administrator, Marie Champagne, made a remark to Plaintiff that he did not have his "office" anymore, a reference to the fact that, while at Raycroft, Plaintiff had a laptop computer and printer. Plaintiff contends that this remark is evidence of the fact that administrators at TPH considered Plaintiff a problem because of his litigation and grievances. Plaintiff alleges that he then was transferred to a more secure hospital, Ann Klein Forensic Center, while other more dangerous patients were not.*fn4 Plaintiff considers this evidence that he was transferred for non-clinical reasons. In addition, Plaintiff notes that Defendant Bruce Booth filed criminal charges against Plaintiff, for breaking the windows, instead of rendering appropriate medical treatment.

Plaintiff alleges the following claims based upon the facts described above: (1) that the delay in transferring him from AKFC to TPH, in March 2009, by Evan Feibusch and the "administrative defendants,"*fn5 violated his right to be treated in the least restrictive setting, (2) that the "administrative defendants" violated his right to be treated in the least restrictive setting when they transferred him internally, in March 2010, to the Lincoln Complex and placed him on the ITU ward without a clinical or medical justification, (3)-(4) that the "administrative defendants" violated his right to procedural due process by not having regulations or hospital policies in place and by not providing him process prior to the 2010 transfer, (5)-(6) that he was deprived of his substantive and procedural due process rights when he was forcibly medicated without psychiatric oversight, and (7) that Defendant Evan Feibusch has retaliated against Plaintiff and harassed him, in 2010, because of his litigation and grievances, instead of exercising professional judgment in making treatment decisions.

Plaintiff names the following persons as defendants: TPH Chief Psychiatrist Evan Feibusch, TPH Medical Director Lawrence Rossi, TPH Chief Executive Officer Teresa McQuaide, ITU Clinical Psychiatrist Amer Rizvi, ITU Program Coordinator Bruce Booth, ITU Social Worker Karen Johnson, Lincoln Complex Administrator Donald Pattershaw, Raycroft Building Administrator Marie Champagne, Dept. of Human Services Commissioner Jennifer Velez, Division of Mental Health Services Director Jonathan Poag, John and Jane Does 1 through 19.*fn6

Plaintiff seeks declaratory and injunctive relief as well as compensatory and punitive damages.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions).

In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must "accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).

A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989) (interpreting the predecessor of § 1915(e)(2), the former § 1915(d)). The standard for evaluating whether a complaint is "frivolous" is an ...


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