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Joseph Bacon A/K/A Joel Bacon v. Dr. Elizabeth Burns

November 15, 2011


The opinion of the court was delivered by: Hon. Jerome B. Simandle


SIMANDLE, District Judge:


This matter is before the Court on the motion of the Defendants Dr. Elizabeth Burns and Dr. Louis Becker ("Defendants") for summary judgment in lieu of an answer. [Docket Item 13.] For the reasons set forth below, the Court will grant in part and deny in part the Defendants' motion for summary judgment.


Plaintiff is a civilly committed individual and brings the instant action pursuant to 42 U.S.C. § 1983. [Docket Item 1.] The Plaintiff asserts that his due process rights have been being violated by involuntary injections of medication(s) prescribed to him by Defendants.

On June 1, 2009, the Plaintiff was transferred from Ann Klein Forensic Center to Ancora Psychiatric Hospital in Hammonton, New Jersey. (Certification of Dr. Elizabeth Burns ("Burns Cert.") ¶ 3.) Defendant Dr. Elizabeth Burns ("Dr. Burns" or "Defendant Burns") was the treating psychiatrist for the Plaintiff at Ancora Psychiatric Hospital from September 22, 2009 to January 13, 2010. (Burns Cert. ¶ 2.) Dr. Burns diagnosed the Plaintiff with Schizoaffective Disorder Bipolar Type, a major mental illness. (Burns Cert. ¶ 4 and Ex. B.)

Shortly after Dr. Burns began treating the Plaintiff, Dr. Burns prescribed several medications, including Haldol, for his psychiatric disorder. (Burns Cert. ¶ 5.) Dr. Burns explained the risks and benefits of the medications to the Plaintiff and the Plaintiff signed an informed consent form agreeing to take them on October 29, 2009. (Burns Cert. ¶ 5 and Ex. C.)

On or about November 5, 2009, the Plaintiff started to refuse to take one of his medications, Haldol. (Burns Cert. ¶ 6.) The Plaintiff stated he did not need the medication because he was not psychotic. (Burns Cert. ¶ 6.) After stopping the Haldol medication, the Plaintiff's behavior began to deteriorate and the Plaintiff began making threats to staff and other patients, making several unfounded calls to Human Services Police and 911, making threats to harm himself and others, and having disorganized thought processes and sexual preoccupation. (Burns Cert. ¶ 6 and Ex. D.) The Plaintiff also ceased taking other medication in addition to refusing Haldol. (Burns Cert. ¶ 6.)

On November 30, 2009, and December 3, 2009, Dr. Burns evaluated the Plaintiff and concluded that there was no other option but to administer the medication, including Haldol, against the Plaintiff's will. (Burns Cert. ¶ 7.) Dr. Burns concluded in her professional opinion that the prescribed medications, including Haldol, were a necessary part of the Plaintiff's treatment plan. (Burns Cert. ¶ 8.) Dr. Burns also concluded that the Plaintiff posed a danger to himself and others without the medication. (Burns Cert. ¶ 8.) Dr. Burns discussed her opinion with the Plaintiff but the Plaintiff continued to refuse to take the prescribed medication. (Burns Cert. ¶ 8.)

On December 3, 2009, Dr. Burns initiated the Three Step Process followed by Ancora Psychiatric Hospital in accordance with New Jersey Administrative Bulletin 5:04 for administering psychotropic medication to a non-consenting patient. (Burns Cert. ¶ 9.) Dr. Burns certified that the Plaintiff would harm himself or others without the medication, that she anticipated the Plaintiff would improve with the medication and that the Plaintiff was refusing to take the medication. (Burns Cert. ¶ 9 and Ex. F.)

The second step of the process involved a meeting with the Plaintiff's treatment team to discuss Dr. Burns' recommendation that the Plaintiff's medication be administered without the Plaintiff's consent. (Burns Cert. ¶ 10.) Dr. Burns met with the Plaintiff's treatment team in accordance with Step Two. (Burns Cert. ¶ 10.) The Plaintiff's treatment team included Dr. Burns, his program coordinator, his nurse, and his social worker. The treatment team agreed with Dr. Burns' recommendation and concluded that the medication was a necessary part of the Plaintiff's treatment plan. (Burns Cert. ¶ 10 and Ex. F.)

The Third Step of the procedure required the Acting Medical Director to review the Plaintiff's chart and determine whether he agreed that the medication, including Haldol, was a necessary part of the Plaintiff's treatment plan. Dr. Burns informed the Office of the Acting Medical Director/Chief of Psychiatry to request this third step review. (Burns Cert. ¶ 11.) Dr. Babatudnde Adetunji was assigned as the designee of the Acting Medical Director in the absence of Dr. David Roat, Acting Medical Director. (Certification of Dr. Babtudnde Adetunji ("Adetunji Cert.") ¶ 2).

Dr. Adetunji personally examined the Plaintiff and reviewed his chart to determine whether he agreed with Dr. Burns' recommendation that the pyschotropic medication was a necessary part of the Plaintiff's treatment plan. (Adetunji Cert. ¶ 3.) Dr. Adetunji agreed with Dr. Burns that the medication was necessary and should be administered over the Plaintiff's objection in order to stabilize the Plaintiff's mental status. (Adetunji Cert. ¶ 4 and Ex. F.)

After the three step procedure was completed, Dr. Burns informed the Plaintiff of the results. (Burns Cert. ¶ 12.) The Plaintiff then informed Dr. Burns that he was allergic to Haldol. (Burns Cert. ¶ 12.) However, the Plaintiff had been taking Haldol by consent from October 29, 2009 until November 5, 2009, and he did not have any allergic reaction to the medication. (Burns Cert. ¶ 12.)

The Plaintiff's file was then sent to a Rennie Advocate, Mr. Anthony Haynes, on December 3, 2009, for review. (Burns Cert. ¶ 13.) In his capacity as a Rennie Advocate, Mr. Haynes ensures that the Three Step Procedure specified in New Jersey Administrative Bulletin 5:04 for the involuntary administration of medication to psychiatric patients is complied with. (Certification of Anthony Haynes ("Haynes Cert.") ¶ 2.) In order to determine if the three step process was followed, Mr. Haynes reviews the patient's chart and speaks with the patient to find out why he is refusing the medication. (Haynes Cert. ¶ 7.) After conducting his review of the Plaintiff's file and speaking with the Plaintiff, Mr. Haynes concluded that all the appropriate procedures had been followed and he had no reason to request an independent review to question the decision of the treating physicians to forcibly medicate the Plaintiff. (Haynes Cert. ¶ 7 and Ex. H.) Also during his patient interview, Mr. Haynes observed the Plaintiff for extra pyramidal side effects and did not note any. (Ex. H.) Mr. Haynes also indicated that the Plaintiff was not complaining of any side effects as a result of the forcible administration of the medication, including Haldol. (Ex. H.)

In addition to the three step process and review by the Rennie Advocate, Dr. Burns' decision to medicate the Plaintiff without his consent was reviewed an additional time by Dr. David Roat, the Acting Medical Director at Ancora Psychiatric Hospital, on December 7, 2009. (Certification of Dr. David Roat ("Roat Cert.") ¶¶ 1-2.) Dr. Roat personally examined the Plaintiff, reviewed his chart, and had a lengthy discussion with Dr. Burns following the resumption of the administration of psychotropic medication. (Roat Cert. ¶ 3.)

Dr. Roat reviewed the Plaintiff's chart which showed that the Plaintiff's behavior while on refusing status consisted of paranoia, sexually inappropriate behavior, calling 911 and threatening the staff. (Roat Cert. ¶ 5 and Ex. I p. 2.) Dr. Roat then interviewed the Plaintiff. During this interview, the Plaintiff told Dr. Roat that he did not want to take Haldol because he was allergic to it and Haldol caused him to be unable to eat due to nausea and that his eyes have been rolling back in his head. (Roat Cert. ¶ 6.) Dr. Roat found these claims unsubstantiated because there were no corresponding signs or evidence of adverse side effects. (Roat Cert. ¶ 6 and Ex. I p. 4.)

Based on his review of the Plaintiff's chart, interview with the Plaintiff and all available information, Dr. Roat concluded that the Plaintiff made progress on the medication, the medication improved his mental condition and that the medication did not ...

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