The State of Nevada agreed to pay $400,000 last year to settle a lawsuit brought by San Francisco City Attorney Dennis Herrera alleging that state hospitals had regularly sent psychiatric patients to California cities against their will and without resources.
The hospitals would provide one-way bus tickets to the patients in a tactic that came to be known as “Greyhound therapy.” The practice was exposed in a 2013 Sacramento Bee article, which told the story of one patient:
Nevada’s approach to dispatching mentally ill patients has come under scrutiny since one of its clients turned up suicidal and confused at a Sacramento homeless services complex. James Flavy Coy Brown, who is 48 and suffers from a variety of mood disorders including schizophrenia, was discharged in February from Rawson-Neal to a Greyhound bus for Sacramento, a place he had never visited and where he knew no one.
The hospital sent him on the 15-hour bus ride without making arrangements for his treatment or housing in California; he arrived in Sacramento out of medication and without identification or access to his Social Security payments. He wound up in the UC Davis Medical Center’s emergency room, where he lingered for three days until social workers were able to find him temporary housing.
Despite being the featured character in the article led to the legal settlement in the San Francisco case, Brown is left without his own legal remedy, according to a ruling by a federal appeals court today, based on a procedural flaw in the argument of his case.
At the district-court level, Brown’s case was dismissed before trial under Rule 41(b) of the Federal Rules of Civil Procedure for failure to comply with court orders. His attorney then failed to raise an argument based on Rule 41(b) in the opening brief of Brown’s appeal to the U.S. Court of Appeals for the 9th Circuit, though it was discussed at oral argument on Aug. 8.
Because the appeal turned on the question of whether the lower court properly applied the rule, Judge Barbara Lynn’s majority opinion for the 9th Circuit stated that “failure to mention in his opening brief the final Order of Dismissal under Rule 41(b) was either grossly negligent or disingenuous.” Therefore, the argument was deemed waived, and Brown lost his appeal.
Judge Susan Graber dissented, calling the majority opinion “a triumph of procedural rigidity.” She would’ve overruled the dismissal of the case, asserting the lower court had abused its discretion, and contended the appellate court should’ve overlooked the technical flaw in Brown’s opening brief.
Unlike the majority, Graber addressed the substantive merits of Brown’s case:
The operative complaint contains seven federal law claims . . . Each claim rests on the following set of alleged facts. A state-run psychiatric hospital and numerous individual doctors and state health officials engaged in, or approved of, a practice of “Greyhound therapy,” in which patients were involuntarily discharged from the hospital and ordered to board (or tricked into boarding) buses bound for out-of-state destinations. No arrangements were made for the patients’ care in the destination cities, nor were the cities chosen because the patients had ties to them. Plaintiff was sent to Sacramento, “a city with which he had no prior contact, and where he knew no one.” At the time he was sent to Sacramento, Plaintiff had been in the hospital for only a few days. He had been admitted “with a diagnosis of psychosis, hearing voices, and thinking of suicide” and was given various “psychotropic medications which affect thinking and judgment” during his short stay. He was released “without money, identification or Medicaid card” and in a delusional and suicidal state. In short, Plaintiff alleges that a state-run psychiatric hospital decided to ship him to another state — without regard for what kind of care, if any, he might receive upon arrival — rather than to provide him treatment.
It should be plain enough even from this abridged version of the facts that Plaintiff’s complaint states a plausible claim for relief under a substantive due process theory.
Thus, Graber would’ve allowed Brown to proceed with his case. Unless a majority of active 9th Circuit judges vote to grant an en banc appeal or the Supreme Court intervenes, however, Brown’s lawsuit will end without him ever presenting his case to a jury and with no compensation.
Originally posted at Medium.