Appendix — Plante v. Scott ex rel. Weintraub

APPENDIX A

Opinion of the United States Court of Appeals

for the Third Circuit

UNITED STATES COURT OF APPEALS

For tur Toro Cirevrr

Nos, SO0-1914/1315 and 80-1596

>

a

ALLEN BODINE SCOTT, by and through his Guardian,

Michael J. Weintraub,

vs.

DR. INGRE RUDOLPIL PLANTE: Commissioner of Insti-

tutions and Agencies, ANN KLEIN; Medical Director

of New Jersey State Hospital, New Jersey Mental Health

Commissioner, DRAMARTIN WEINBERG: STATE OF

NEW JERSEY, BRENDAN TT. BYRNE, Governor;

SUPRENE COURT OF NEW JERSEY, RICHARD J.

HUGHES, Chief Justice,

ALLEN B. SCOTT,

Appellaut in Nos, 80-1314

and 80-1596,

DR. INGRE RUDOLPH PLANTE, ef al,

Appellants in No, 80-1315,

[1a]

2a

Appendix A

On Aprra From tain Uxrren Srares Distriecr Courr

ror THE District or New Jensry

(D.C. Civil No. 73-1052)

Argued September 18, 1980

Before: Ginnons, Weis and Stovirer, Circuit Judges

(Opinion filed February 5, 1981)

Michael J. Weintraub, Esquire

(Argued)

Steven L. Friedman, Esquire

Weintraub & Gelade

227 Kast Hanover Street

Trenton, New Jersey S608

Atiorneys for Allen Bodine Scott

John J. Degnan, Attorney General of

New Jersey

Stephen Skillman, Assistant Attorney

General

Steve Wallach, Deputy Attorney

General (Argued)

State House Annex

Trenton, New Jersey OS625

Attorneys for Dr. Ingre Rudolph

Plante, Ann Klein, Dr. Martin Wein-

berg

3a

Appendix A

Opinion or THE Court

Gibsons, Circuit Judge,

Allen Bodine Scott appeals, and certain defendants

cross-appeal, from a final judgment which disposed of

all Scott's claims after trial of his numerous complaints

charging violations of his civil rights. Several of those

claims were submitted to a jury, which returned a ver-

dict in his favor on two of them and in favor of the de-

fendants on one, On a post-trial motion the distriet court

granted partial relief from the verdicts in Seott’s favor.

Those claims that were not submitted to the jury were

tried to the court, whieh denied all requests for injune-

tive, declaratory and habeas corpus relief, What remains

is a judgment on the jury verdict of one dollar nominal

damages for violation of Scott’s constitutional rights. We

vacate and remand for further proceedings consistent with

this opinion,

I,

Scott has been involuntarily confined to the Vroom Build-

ing, a maximum security section of the Trenton State

Psychiatrie Hospital, for approximately 25 years. In 1954

he was indicted by a grand jury in Burlington County,

New Jersey, for the murder of his grandmother. In Feb-

ruary 1955 a hearing was held in Burlington County in

which a jury determined that he was mentally incompe-

tent to stand trial, and an order was entered that he be

removed from the County Jail and confined to Trenton

State Hospital “until such time as he may be restored to

reason, but not to be released from such confinement ex-

tia

Appendix A

cept on the order of this court." Scott was placed in the

Vroom Building, where he lias remained continuous lv, @x-

cept for brief periods when he was returned to Burlington

County to stand trial on the indictment. No trial ever took

place, On October 7, 1968 the indictment was dismissed

*The hearing was held pursuant to N.J.S.A. 2A:163-2. (re-

pealed 1978) which read in relevant part:

If any person in confinement under commitment, indict-

ment or under any process, shall appear to be insane, the

assignment judge, or judge of the county court of the county

in which such person is confined may, . .. institute an in-

quiry and take proofs as to the mental condition of such

person... . It shall be competent for the judge, if sitting

without a jury, or the jury, if one is impanelled, to deter-

mine not only the sanity of the accused at the time of the

hearing, but as well the sanity of the accused at the time

the offense charged against him is alleged to have been

committed,

If it shall be determined after hearing as aforesaid, that

the accused was insane at the time the offense charged

against him is alleged to have been committed, the charge

against him shall be dismissed on this ground and the records

of the proceedings so noted. In this event, the judge or

jury, as the case may be shall also find separately whe-

ther his insanity in any degree continues, and, if it does,

shall order him into safe custody and direct him to be sent

to the New Jersey state hospital at Trenton, to be con-

fined as otherwise provided by law, and iaalnealbed as to

expense as is otherwise provided for the maintenance of

the criminal insane, until such tiie as he may be restored

to reason, and no person so confined shall be released from

such confinement except upon the order of the court by

which he was committed. This section shall not be con-

strued to prevent the use of the writ of habeas corpus.

da

Appendix A

on the ground that Scott Was insane when the offense

Was committed, Upon the dismissal of the indietment he

Was returned to Trenton State Hospital “until the further

order of [the Burlington County] Court.”

In July of 1973 Seott filed in the District Court the

first of a series of pro se complaints addressed to the faet

and conditions of his confinement in the Vroom Build-

ing. By December 30, 1974 five such complaints had

been filed. Seott repeatedly requested appointment of coun.

sel pursuant to 28 U.S.C. « I15(d), but all such re-

quests were denied. Karly in 1975 all his complaints

were summarily dismissed and Scott appealed. We granted

i motion for a certificate of probable cause, 28° US.C.

62293, and appointed counsel, In Seolt vy. Plante, 582

F.2d 9389 (8d Cir. 1976), we reversed, Reviewing his com-

plaints and the pleadings and aflidavits on file, we dis-

cerned five separate claims:

1. That he had been subjected to the involun-

tary administration of psychotherapeutic substances,

532 F.2d at 945;

2. that he was being confined to the Vroom Build-

ing without treatment, 532 F.2d at 947;

3. that the physical conditions at the Vroom

Building subjected him to Violations of federally

protected rights, 532 F.2d at O47 ;

a

* See N.J.S.A, 2A :163-2 (repealed 1978). The legal problems

arising out of the order incarcerating a defendant found not guilty

by reason of insanity are discussed in our prior opinion, Scott

Vv. Plante, 532 F.2d 939, 948-49 (3d Cir. 1976). The current

state law provisions, codified at N.J.S.A. 2C:4-6 (Supp. 1980),

grant the judge discretion to commit civilly the accused to “an

appropriate institution,”

6a

Appendix A

4. that his confinement in the Vroom Building

after the dismissal of the indictinent was unconsti-

tutional, 532 F.2d at 948: and

® that the procedures by which New Jersey de-

termined from time to time that his confinement

must continue did not meet minimum federal due

process requirements. 532 F.2d at 949,

We held that the distriet court erred in granting sum-

mary judgment on Scott's involuntary medication claims,

and in granting a Rule 12(b)(6) dismissal on each of the

remaining claims. In remanding for further proceedings

we suggested that his request for the appointment of coun-

sel pursuant to 28 U.S.C, © 1915(d) be given serious con-

sideration, 5382 F.2d at 950,

II.

This court’s judgment reversing dismissal of Scott's

complaints was received by the District Court on April

21, 1976. On August 17, 1976 the court appointed Michael

J. Weintraub, Esq. to represent him. Seott was dissatis-

fied with this appointment, and moved that the court dis-

miss Mr, Weintraub, and appoint instead David Ferleger,

sq. of the Mental Patient Civil Liberties Project in

Philadelphia. On September 2, 1976 that motion was

denied. No progress was made in disposing of the ease for

a considerable period, Meanwhile Scott filed pro se appli-

cations for interim relief in the form of the appointment

of a manager to run Trenton State Ilospital and stop the

abuses of which he complained, and for a change of venue.

On November 21, 1977 an order was entered:

1. Michael J. Weintraub, Esq., of 227 East Man-

over St., Trenton, N.J. OS60S is appointed as guard-

7a

Appendix A

ian ad litem for the plaintiff, Allen Bodine Seott,

for these consolidated actions, and is to serve in that

capacity as well as his attorney.

2. The stay of these consolidated proceedings

pending appointment of a guardian ad litem is va-

cated.

3. The requirement that a single amended eom-

plaint be prepared and filed is vacated, but without

precluding the taking of that step at or before entry

of pretrial order.

4. The consolidated cases will be reinstated to

the active civil calendar.

The order is unusual in several respects. First, there is

nothing of record disclosing by what procedure or on

what authority the court acted in appointing a guardian

ad litem.’ Second, there is no record of any order staying

the proceedings pending such an appointment. Third,

there is po record of an order requiring the filing of a sin-

gle amended complaint. However, the absence of signifi-

cant docket entries between September 2, 1976 and No-

vember 21, 1977 suggests that some action was taken by the

court to stay the cases for reasons unknown.

On January 25, 1978 Michael J. Weintraub filed an

amended complaint, bearing the docket numbers of the

* There is a docket entry on April 12, 1976 referring to an “or-

der to show cause reappointing two independent expert witnesses,

who are psychiatrists, to examine the plaintiff, ete.” The certified

record, however, lists this document (and many others) as “miss-

ing.” There is no docket entry or record document disclosing

any disposition of the order to show cause.

Sa

Appendix A

five consolidated cases which were before us on Scott's

prior appeal, The prayers for relief of the amended com-

plaint are quoted in the margin.* The factual allegations,

*Wuererore, plaintiff demands that this Court:

A. Issue an order that the plaintiff be released since

his confinement is illegal in that the standard applied in

his commitment hearing was a liberal one whereas the stand-

ard applied in determining his release has been a more

stringent test;

3. Ordering that the plaintiff be released from his con-

finement for the failure of the defendants to treat or other-

Wise attempt to rehabilitate the plaintiil;

C. In the event that this Court does not find that the

plaintiff is entitled to release as requested in) paragraphs

A & B, that this Court enter an Order transferring the

plaintiff to the civil section of the hospital in accordance

with the requirement that the least restrictive means of con-

finement be utilized;

D. Enter a declaratory judgment that the utilization of

a less stringent test for the plaintiff's original commitment

and the utilization of a more stringent test for his release

to be violative of the plaintiff's rights to due process under

both the United States and New Jersey State Constitu-

tions ;

I. Enter a declaratory judgment that the standard of

proof to be applied in release hearings in determining whe-

ther or not the plaintiff is either a danger to himself or

to others be that standard of proof beyond a reasonable

doubt;

F. Enter a declaratory judgment that in the event that

the confinement of the plaintiff is warranted, it must be

the least restrictive confinement;

(Footnote continued on following page)

9a

Appendix A

—_—_—_—_—_—_—-”

(Footnote continued from pre eding page)

G. Enter a declaratory judgment that if the confinement

of the plaintiff is found to be warranted, that an individual

treatment plan specifically designed for the plaintiff alone,

must be immediately implemented within thirty (30) days;

H. Enter a declaratory judgment that if the confine-

ment of the plaintiff is warranted, that the defendants must

provide for adequate medical and psychiatric care, and that

the same should include at a minimum, the requirement

for a complete physical once every six (6) months;

I. Enter a declaratory judgment that the defendants’ fail-

ure to provide for sanitary and otherwise minimally humane

living conditions, including adequate heat, constitutes a Vio-

lation of the plaintiff's constitutional rights to be free from

cruel and unusual punishment,

J. Enter a declaratory judgment that the failure to allow

the plaintiff at hearings to determine his release to pro-

duce witnesses on his own behalf, to have the hearing open

to the public, and to be furnished with a written decision

containing a statement of the reasons for the decision, con-

stitutes a violation of plaintiff's constitutional rights to a

meaningful hearing under the due process clause of both

the New Jersey State and United States Constitutions ;

kK. Enter an order preliminarily and permanently enjoin-

ing the defendants, their agents, successors, employees, and

all other persons acting in concert or participation with

them, or at their direction or under their control, from

further administering any medication without first obtain-

ing the proper consent in accordance with law;

L. Entering preliminarily and permanently a mandatory

injunction to compel the defendants, their agents, successots,

employees, and ail other persons acting in concert or in

participation with them or at their direction or under their

(Footnote continued on preceding page)

19a

Appendix A

(Footnote continued from preceding page)

control, compelling them to provide a sanitary cell, provid-

ing heat in the cell which heat should be at a minimum

of OS° during the day and at a minimum of 60° during

the night, and otherwise provide for minimally humane and

safe living conditions;

M. Enter, preliminarily and permanently, a mandatory

injunction compelling the defendants, their agents, success-

ors, employees, and all other persons acting in) concert or

in participation with them, or at their direction or under

their control, to provide an individual treatment plan de-

signed specifically for the plaintiff alone within thirty (30)

days;

N. Enter, preliminarily and permanently, a mandatory

injunction compelling the defendant, their agents, successors,

employees, and all other persons acting in concert or par-

ticipation with them, or at their direction, or under. their

control, to provide that hearings to determine the release

of the plaintiff be opened to the public and that the plain.

tiff be allowed to present witnesses on his behalf, and that

the plaintiti be allowed to receive a written decision which

decision shall include a statement of reasons for the de-

cision;

©, Enter, preliminarily and) permanently, a mandatory

injunction compelling the defendants, their agents, success-

ors, employees, and all other persons acting in concert or

participation with them, or at their direction or under their

control, to provide a law library for the plaintiff or in’ the

alternative access to an existing law library in order that

the plaintiff's access to the courts not be further impeded;

I. Judgment for damages, both compensatory and puni-

tive, for the illegal detainment of the plaintiff, for the fail-

ure to provide an individual treatment plan for the plain-

tiff, for the failure to otherwise provide adequate medical

and psychiatric care and treatment for the plaintiff, for

the failure to provide minimally humane and_ safe living

conditions, and for the administration of medication with-

out first having obtained the proper consent.

lla

Appendix A

while more concisely and artfully set out, preserve all the

claims which we previously considered, The prayers for

relief included virtually all modes of relief whieh it is

within the power of the court to grant to the plaintiff. An

answer was filed on behalf of all defendants on February

23, 1978. Thereafter on Mareh 13, 1978 the court filed a

memorandum and order granting leave to file an amend-

ed complaint. The memorandum and order refer to a prior

order directing that an amended complaint be filed, and

to an order vacating the order, neither of whieh appear

of record, The memorandum also refers to another Scott

complaint, No, 78-2367, in whieh he seeks habeas corpus

relief, and direets that it be consolidated with the five

cases we had previously consolidated. An order to that

effect was entered on October 3, 1978, and the defendants’

answer to the complaint in No, 78-2867 was filed seven

days later, On October 18, 1978, thirty months after our

mandate was received by the district court, a status con-

ference was held. There is no record of what transpired

at this conference, Nothing more transpired about sehed-

uling the cases for trial until February 15, 1979, when the

district judge to whom it was assigned sent a memoran-

dum to Mr. Weintraub, and to the District Court clerk,

but not to the Attorney General who was representing the

defendants, asking to be advised “as to necessary time for

final trial prepration so date can be set.” Meanwhile Seott

sent to this court and to other places a number of letters

asking for disposition of his ease, Finally, on April 23,

1979 an order was entered by the Chief Judge of the Dis-

trict Court reassigning the ease to himself and reallocat-

ing the place of trial from Newark to Trenton. Chief

Judge Fisher promptly scheduled a trial date and issued

a writ of habeas corpus ad testificandum for Seott’s ap-

lla

Appendix A

pearance. The trial commenced on May 31, 1979, 37 months

after the date our mandate rv ached the district court. and

OS months after Seott first sought relief in the district

court.

IIT.

At the trial Seott testified and also presented the tes-

timony of Dr. Robert Sadoff. a peyehiatrist, and 5S ex.

hibits, The exhibts were for the most part excerpts from

the records about his condition and treatinent maintained

by Trenton Psyvehiatric Hospital during the course of his

stay, Others dealt with the physical condition of the Vroom

Building, Still others were written complaints by Seott

and by his mother to various state Officials, including de-

fendants, respecting his treatment and the conditions he

Was being subjected to,

At the end of the plaintiffs ease the court, on motion

by the Attorney General, dismissed the State of New Jer-

sey as a defendant, ruling that it was nota “person” sub.

ject to suit under 42 U.S.C, > DSa. The court also dis-

missed as defendants Governor Brendan T. Byrne, on

the grounds that there was no evidence he either partici.

pated ino or knew of and allowed continuance of any

wrong to Scott, and the Chief Justice and nembers of the

Supreme Court of New Jersey, because “] can't tell the

Supreme Court to enforce their rules... .” (‘Transeript,

June 6, 1979, at 44). Motions to dismiss were rejected

as fo the remaining defendants, Dr. Ingre Ro Plante

and Dr. Martin Weinberg, who each held the positions

of Chief Executive Officer and Medical Director of Tren-

ton Psyehiatrie Hospital, and Ann Klein, State Commis-

sioner of the Department of Institutions and Agencies,

13a

Appendix A

of which Trenton Psychiatrie Hospital is a part.® The

court also dismissed all of Scott's state law claims, which

included false imprisonment, assault and battery, and mal-

practice, Neither the transcript nor the court's post-trial

opinion discloses whether the state law claims were dis-

missed for failure of proof or as a matter of discretion

with respect to the exercise of pendent jurisdiction, The

effect of these rulings was to dismiss the State, the Gov-

ernor, and the Supreme Court of New Jersey not only on

the damage claims which were going to the jury, but also

on any claims for injunctive or declaratory relief on either

state or federal grounds, Disinissal of the pendent state

law claims also withdrew from the case any possibility of

an award of money damages or injunctive or declaratory

relief on those claims,

The defendants’ case included the testimony of Harvey

Musikoff, Acting Chief Executive Ofiicer of Trenton Psy-

chiatrie Hospital, who was from October 1977 to April

1978 Chief of the Forensic Section of that hospital, con-

tained in the Vroom Building. Dr. Musikoff holds a Ph. D.

in rehabilitation counseling and has taught forensie psy-

chology. While he was on the stand five packets of hospi-

tal records, Exhibits D-1 through D4 and Exhibit D-8,

were marked in evidence, comprising all records relating

to Scott for his entire stay in Vroom. The defendants

also introduced Exhibit D5, a group of documents dealing

with requests to the Governor and the Legislature for ad-

ditional funding for the Vroom Building over the past

four or five years, Finally lexhibits D-6 and D-7 included

various New Jersey State court orders dealing with Scott's

5 The Attorney General represented all defendants. No cross-

claims were filed.

Ida

Appendix A

confinement, The defendants presented no medical testi-

mony, None of the three defendants left in the ease testi-

fied. Instead, at the close of Dr. Musikoff's testimony they

renewed their motion to dismiss the complaint. The court

denied that motion.

lV.

Only the claims for money damages were submitted to

the jury. Those were submitted in the form of special

verdict interrogatories to which the defendants made no

objection, The interrogatories and the jury's answers are

as follows:

1,

3.

6.

“I

Was the plaintiff deprived of adequate

treatment while at Trenton State Hospital

Forensic Unit?

If the answer to No, 1 is “ves”, was that

deprivation the proximate cause of injury

and damage to plaintiff?

Was plaintiff foreed to undergo harmful or

painful modes of treatment over his refus-

al?

If the answer to No. 3 is “yes”, was it the

proximate cause of injury and damage to

plaintiff?

Were the physieal conditions at the Vroom

Building such as to amount to a depriva-

tion of due process?

If the answer to No. 5 is “yes”, was it the

proximate cause of injury and damage to

plaintiff?

Do you find liability as to any of the follow-

ing defendants?

Yes

Yes

Yes

Yes

Yes

l5a

Appendia A

Ingre R. Plante, M.D. Yes

Ann Klein Yes

Martin Weinberg, M.D. Yes

8. Compensatory Damages $15,000,

Punitive Damages $10,000,

Thus the ease was, with the defendants’ apparent aequi-

escence, submitted on three separate theories, against three

separate defendants, but with a request for a single ver-

dict on compensatory damages and a single verdict on

punitive damages. It appears, therefore, that the jury

found the defendants jointly and severally liable for com.

pensatory and punitive damages, The special verdict in-

terrogatories predicate liability on deprivation of ade-

quate treatment and on deprivation of due process with

respect to the conditions of incarceration in the Vroom

Building, but do not separate the damages among the

two bases of recovery, Since the defendants did not in

the trial court object to the form of the interrogatories

either before or after the verdict, and do not on appeal ar-

ue that they were prejudiced by the way the questions

were formulated, we must read them in a manner which

reconciles them with the jurors’ probable intention in light

of the Court's instructions. Cf. Atlantic & Gulf Steve-

dores, Ine. ve Ellerman Lines, Ltd., 369 UVS, 355, 364

(1962): Bernhart vy. Dollar Rent A Car Systems, Tne.,

505 F.2d O14, O17 (8d Cir, 1979) (resolution of facially

inconsistent answers to special interrogatories).

In its instruction to the jury the court observed that

the plaintiff breaks his claims against defendant[s]

down to three catesories: First, the right to treat-

l6a

Appendix A

ment, secondly, the right to refuse treatment and

thirdly, that the conditions of the Vroom Building,

that is as you have heard them, were a violation of

his Constitutional rights to due process,

The jury's verdiet was adverse to Seott on. the alleged

Violation of a right to refuse treatment, and he does not

on appeal raise any question about that verdiet, Thus we

are concerned only with his right to receive treatment

and his condition of confinement claims,

On the right to treatment claim the Court charged:

Now, while the plaintiff! was confined to Trenton

State Hospital, Forensie Unit thereof, whieh you

have heard so much about, he had a right to ade-

quate medical treatment. This right arose from the

M4th Amendinent of the United States Constitution

Which provides no State shall deprive any person of

life, liberty or property without due process of law.

Plaintiff was committed because he was dangerous

to himself and to others, That is in the first in-

stance, Remember, he has never been convicted of a

crime, In exchange for his commitment which society

was entitled to, the State owed plaintiff adequate

medical treatment. You. the jury, must decide

whether plaintiff received the treatment which was

owed,

Although the defendants contended in the trial court, and

contend here, that an involuntarily committed patient has

no federally protected right to treatment, they made no

objection to the quoted portion of the eharge: in partien-

lar, they made no request for a more specific definition of

adequate treatment, and made no objection to the language

“he had a right to adequate medical treatment.” In Romeo

I7a

Appendix A

v. Youngberg, No. 78-1982, (Sd Cir, Nov, 25, 1980) (en

bane) we held that the involuntarily committed mentally

retarded have a constitutionally protected right to treat-

ment, and the analysis of that case is for fourteenth amend-

ment purposes equally applicable to the involuntarily com-

mitted mentally ill. /d., slip op. at $2.n.53. Thus we have

rejected the defendants’ basie position that there is no fed-

erally protected right to treatment. The quoted portion

of the charge is less complete with respect to such a right

than the one which in Romeo v. Youngberg, supra, we held

to be appropriate,” but no more specifie charge was re-

quested and no objection was made. The charge informed

the jury, correctly, that Scott, as a patient involuntarily

* Proposed jury instructions were set forth in an appendix to

Romeo:

A. If you find that the plaintiff was involuntarily committed

for treatment, and no treatment was administered, and no

compelling explanation for the lack of treatment was offered,

you may hold the defendants liable.

I. If you find that the plaintiff has received some treat-

ment, you must then determine whether the treatment is

regarded as acceptable in light of present medical or other

scientific knowledge. If you find that it is not acceptable,

you may find for the plaintiff. In addition, if the evi-

dence does not demonstrate that there is a relationship be-

tween the treatment administered and the plaintiff's needs,

even if the treatment is arguably regarded as acceptable

in other situations, then you may find for the plaintiff.

In deciding upon the adequacy of the treatment program

adopted you may consider the defendants’ explanations re-

garding security concerns, administrative necessities and fis-

cal constraints.

Slip op. at 42.

18a

Appendix A

commited for mental illness, had a right to treatment. and

the verdict reflects the jury's conclusion that he was de-

prived of that right.

As to the conditions of confinement, the Court

charged:

Now ... [Scott] also contends that the conditions

at the Vroom building amounted to punishment with-

out due process of law and violation of the Civil

Richts Act,

You have heard evidence which deseribed the eon-

ditions of the Vroom building in which plaintiff has

heen confined for 24 years. You must remember

that at no time was plaintiff convicted of a erime.

Therefore, T Charge you that the State could not

Constitutionally punish him. You must determine

whether the conditions existing in the Vroom build-

ing amounted to punishment.

Not every disability or loss of liberty which plain-

tiff has experienced is punishment. You must. re-

member that the State originally saw fit to confine

him because he was deemed to be dangerous but un-

able to stand trial. Loss of some freedom of choice

and privacy are inherent in confinement and do not

rise to the level of punishment, and the fact that de-

tention interfered with the plaintiff's desire to live as

comfortably as possible and with as little restraint as

possibie did not mean that he was being punished,

A number of factors should guide your decision of

whether plaintiff was being punished.

Were the conditions and disabilities of Vroom

imposed by officials for the purpose of punishment?

19a

Appendix A

Tf not, then is the condition whieh vou are consider-

ing reasonably related to a legitimate government

objective, or is it arbitrary or purposeless? Besides

the State’s objective of keeping a dangerous individ-

ual off the streets, vou should realize that the gov-

ernment has a legitimate interest that stem [sie]

from it’s [sie] need to manage the facility in which

plaintiff was detained, These governmental inter-

ests include the maintenance of security and order

at the institution. Restraints that are reasonably re-

lated to the institution's interest in maintaining jail

security do not, without more, amount to punish-

ment. However, if the conditions or restraints are

excessive in relation to the State's non-punitive pur-

pose, you may find they constituted punishment,

This charge gives meaning to the jury's answer to inter-

rogatory No. 5.) That affirmative answer establishes that

the jury concluded that Seott, who has not been convicted

of a crime, has been confined in the extremely harsh re-

strictive conditions of the Vroom Building for reasons not

related to legitimate government objectives, i.e. as pun-

ishment. Defendants did not object to this portion of the

trial instructons, and none of their requests to charge are

inconsistent with it.

Having charged the jury that Scott had a right to treat-

ment and a right to be free from punishment the court

turned to the issue of personal responsibility. In that re-

spect the Court charged:

Tf you decide that plaintiff was given adequate

treatment, you need decide no more, But if you find

his treatment was inadequate, you must next deter-

mine whether either Ann Klein, Dr. Ingre Rudolph

20a

Appendix A

Plante, or Dr, Martin Weinberg were responsible for

the denial of treatment.

Since Ann Klein was not involved with the day-

to-day running of the institution, yon obviously

won't be able to find that she actually participated or

acquiesced in any denial of treatment. She ean only

he linble if you find that she had actual knowledge

of the Vroom building's inadequate treatment of the

plaintiff, while having the power to authorize or

implement better care for him. You could find this

knowledge, not only by direet evidence, but also by

proof, that defendant Klein normally exercised rea-

sonably close supervision over the defendants per-

sonally charged with the plaintiff's care and that

those defendant's [sie] acts or omissions were open

and not surreptitious,

With respect to Doctors Plante and Weinberg, vou

could apply the same test in determining whether

they had actual knowledge to [sie] the inadequacies

of plaintiff's treatment and also, had the resources

in [sic] authority to remedy the situation.

Plante and/or Weinberg might also be liable for

their actual participation in a denial of plaintiff's

rights by denying hita a right to treatment, You

must decide whether either of those two doctors ae-

tually was engaged in a course of conduct calculated

to deny plaintiff his right to treatment.

The defendants did not object to this portion of the

charge. They did, however, request a eharge on vicar-

ious liability, and urge as error the Court’s failure to vive

2la

Appendix A

it.’ The charge as given, however, is substantially as re-

quested and accords with the standard for personal li-

ability in § 1983 actions set forth in Hampton v. Holmes-

burg Prison Officials, 546 F.2d 1077, 1082 (3d Cir, 1976).

The charge on personal responsibility deals specifically

only with failure to treat Scott. Defendants made no ob-

jection, however, to the court's failure to relate that por-

tion of its instruction to the unlawful punishment claim,

and made no request for a charge addressed to that issue.

Finally the Court turned to the issue of official im-

munity, charging:

Now, the defendants in this case are All State

Executive Branch officials. They claim that they are

immune from having to respond in money damages

to plaintiff's claim. This claim of immunity is offered

as a defense to plaintiff's claim and the officials have

the burden of convincing you by a preponderance of

the evidence that immunity should attach.

There are two components to the immunity de-

fense, Keep in mind also, that plaintiff has a num-

ber of claims which you must keep distinet for pur-

poses of applying the defense,

If you find that plaintiff was subjected to pun-

ishment without due process, you must decide which

*The charge requested is:

“T’ is well settled in this circuit that liability based di-

rectly upon 42 U.S.C. §1983 cannot be based on a theory

of vicarious liability, but instead requires actual participa-

tion in the unlawful conduct, or actual knowledge of and

acquiescence in that conduct.” Coggins v. McQueen, 447

F, Supp. 960, 966 (E.D. Pa. 1978),

22a

Appendix A

of the defendants, if any, knew or should have

known of plaintiff's right to be free from punish-

ment and if they knew or should have known that

their conduct or omission would or did violate the

law. The foregoing inquiry is relevant only to the

issue of punishment through conditions.

The immunity defense would be unavailable to

defendants on all plaintiff's claims, right to treat-

ment, right to refuse treatinent and punishment, if

you find that any of the defendants acted or failed

to act with malicious intention to deprive the plain-

tiff of a right or to cause him other injury. For the

purpose of determining whether any defendant pos-

sessed malice, you must decide whether or not lie

intended the consequences of his conduct or omis-

sion,

The charge as given was not objected to. It must, how-

ever, be contrasted with several instructions requested by

the defendants, Most of them were properly rejected be-

cause they were framed in such a manner as to place the

burden of offering evidence and of persuasion on the plain-

tiff. We have held that qualified immunity is a defense on

which the defendants have the burden of proof. Skehan vy.

Bloomsburg State Teachers College, 590 ¥.20 470 (3d Cir,

1978), cert. denied, 444 U.S. 882 (1979).

One request, however, is worthy of note. The defend-

ants asked for a charge:

Monctary damages ean only be assessed against a

defendant if he or she “knew or reasonably should

have known that the action he took within his sphere

of official responsibility would violate the constitu-

tional rights of [plaintiff], or if he took the action

23a

Appendix A

with the malicious intention to cause a deprivation

of constitutional rights or other injury to [plain-

tiff}. . . .

“For purposes of this question, an official has,

of course, no duty to anticipate constitutional devel-

opments.” O'Connor vy. Donaldson, 422 U.S. 563, 577

(1975).

The defendants contend that the charge as given fails to

comply with O'Connor vy. Donaldson's “two-step test for

official immunity” (Appellee’s Brief 3-D), although their

prief does not elaborate. The charge as given provided,

with respect to all of plaintiffs claims, that the imumunity

defense “would be unavailable to the defendants ... if

you find that any of the defendants acted or failed to act

with malicous intention to deprive him of a right, or to

cause him other injury.” The negative implication of the

language seems to be that absent malice the defense is

available. As to the lesser standard, “that he knew or

should have known”, the court applied that standard

only to the punishment claim, The court's intention seems

to have been to require a finding of malice to overcome

the immunity defense on the right to treatment claim,

while requiring a finding either of malice or of knowing

disregard of a known constitutional right with respect to

the punishment claim. Such a distinetion would be en-

tirely consistent with the position of the defendants,

pressed both in the district court and here, that the law

with respect to a constitutional right of the involuntarily

committed to treatment was highly unsettled, See Reese vy.

Nelson, 59S F.2d $22, 826 (8d Cir, 1979). A fair reading

of the charge, then, seems to be that it required a finding

of qualified immunity on the right to treatment claim un-

less malice were shown, This was more than the defend-

24a

Appendiz A

ants sought in the quoted request to charge, and on this

record possibly more than defendants were entitled to,

That this may have been their contemporaneous under-

standing is confirmed by their failure to object when given

an opportunity to do so at the close of the court's imstrue-

tions. If there was ambiguity in the manner in whieh the

court articulated the immunity charge it could not. ordi-

narly be considered now, for “[njo party nay assign as

error the giving of the failure to give an instruction un-

less he objects thereto before the jury retires stating dis-

tinctly the matter to which he objects and the grounds of

his objection.” Fed. R. Civ. P. obs see Visher v. Volz, 496

F.2d 333, 348 (3d Cir. 1974).

V.

Thus the legal standards which the court below used

to instruct the jury and assess plaintiffs equitable claims

were substantially correct. Resolution of the remaining

questions on appeal depends on whether the law was

correctly applied to the particular facts of this case.

We turn first to Scott's appear from the judgment dis-

inissing all requests for injunctive, declaratory, and hab. as

corpus relief, We believe that in two respects the trial

court erred in denying equitable relief,

§ Because a new trial on liability and damages is granted on

other grounds to be discussed later, the district court will have

an opportunity to make its charge on the “good faith” defense

more specific so that the nature of the defense will he clearly pre-

sented to the jury. See O'Connor v. Donaldson, 422 U.S. 563,

577 (1975); Wvod v. Strickland, 420 U.S. 308, 322 (1975) and

---

Procunier v. Navarette, 434 U.S. 555 (1978).

25a

Appendix A

A. Conditions of Confinement

The jury found, and the court agreed, that confining

Scott in the maximun security wing of Trenton Psy-

chiatric Ilospital amounted to punishment in violation of

the due process clause. There was ample evidence that

Scott and the other inmates were exposed for twenty

four years to subhuman living conditions, including poor

plumbing with leaking pipes covering the door with

inches of water; inoperative sinks and toilets: inade-

quate ventilation; absence of windows or inoperative

windows; inability during seven months of the year to go

into the yard for fresh air: inoperative radiators resulting

in indoor temperatures below 50°; summer temperatures

reading 105° due to absence of ventilating equipment;

for a time availability of showers only once a week: and

absence of hot running water in sinks in the cells. As

to many of these gross plivsical deficiencies the testi-

mony was not even disputed. The record discloses no

treatment or security reason for subjecting Seott and

the other inmates to such severe deprivations. To the

contrary, there was evidence in the form of hospital

records suggesting that Scott has neither engaged in

violent behavior nor been a management problem. — In-

deed, a 1971 report by a Dr. Folmer of the hospital staff

recommends that he be placed in a civil ward because of

his cooperative behavior. Nevertheless, he remained

through trial (and is to date) confined to a prison wing of

the hospital which includes sentenced inmates suffering

severe mental illnesses.

In the face of such harsh confinement, Scott peti-

tioned for complete release, or, in the alternative, for

transfer from the prison wing to a civil ward. The court

26a

Appendix A

concluded that the relief of complete release from eusto-

dy was not, in Seott’s present condition, appropriate.

That finding is not clearly erroneous. At a minimum,

however, this record required that the court make find-

ings of fact as to whether Scott could be housed in sur.

roundings less restrictive of his personal liberty. Courts

have a duty to guard against unnecessary personnal re.

straints not only at the confinement stage, which ean

range from maximum to minimum security.” As one

court has observed, “It makes little sense to guard zesl-

ously against the possibility of unwarranted deprivations

prior to hospitalization only to abandon the watch onee

* Courts have not limited “least restrictive” analysis to a choice

between outpatient services and institutionalization. Within this

Circuit, the doctrine has been used to make finer distinctions. Thus,

in Eubanks v. Clarke, 434 F.Supp. 1022 (E.D.Pa. 1977), Chief

Judge Lord wrote:

Fundamental rights are implicated where the state civilly

commits an incompetent person to a mental hospital which

is substantiaily more restrictive than other state mental hos-

pitals to which one could be sent.

We hold that at a minimum, where a state has varying

available facilities for the mentally ill which differ signi-

ficantly in the amount of restrictions on the rights and lib-

erties of the patients, due process requires that the state

place individuals in the least restrictive setting consistent

with legitimate safety, care, and treatment objectives.

434 F. Supp. at 1027-28. See also Kesselbreaner v. Anonymous,

33 N.Y. 2d 161, 305 N.E. 2d 903, 905 (1973) (transfer of civilly

committed patient, believed dangerous, to penal facility for the

criminally insane without consideration of less restrictive alterna-

tives held unconstitutional).

27a

Appendix A

the patient disappears behind hospital doors.” Covington

V. Harris, AY Bed 617, 623-24 (D.C. Cir, 1969), In that

case, a plaintiff, whose circumstances closely resembled

Scott's!" was granted a hearing at which the hospital

Was required to demonstrate that it had considered alter-

native security accommodations for appellant and to ex-

plain why it had found them inadequate. We find Scott

is entitled to the same,"

Covington was charged with murder, but civilly committed

after being found incompetent to stand trial. In ten years at the

maximum security pavillion he had never been violent or unruly.

"There is no justification for treating material differences among

intramural dispositions as de minimis. Indeed, the Supreme Court

has not ignored differences of degree within the context of eri-

minal incarceration. Cf. H'olff ve McDonnell, 418 U.S. 539, 571-

72 n.19 (1974) (prisoner entitled to due process safeguards when

officials substantially increase the severity of his confinement).

The argument for judicial review in the civil commitment con-

text is even stronger.

Although Scott was initially placed under maximum security,

this fact does not relieve the state of any obligation to justify

continuing imposition of such severe restrictions. C/. Donaldson

v. O'Connor, 422 U.S. 563, 574-75 (1975): “Nor is it enough

that [the inmate's] original confinement was founded upon a con-

stitutionally adequate basis, . . . because even if his involutary

commitment was initially permissible, it could not constitutionally

continue after that basis no longer existed.” Since Scott filed his

amended complaint in 1978, the State of New Jersey has itself,

recognized that the condition of civilly committed patients is sub-

ject to possible change and thus now utilizes mandatory periodic

review procedures in state courts to tailor restraints to changed

circumstances. See New Jersey Court Rules 4:74-7(1) (1980);

(Footnote continued on following page)

28a

Appendix A

Precedent in this Cireuit supports this conelusion. In

Romeo vy. Youngberg, supra, Wwe held:

The basis of Romeo's first claim, that he was unduly

shackled, is clearly inimical to the right of an

unconvieted citizen to be free from punishment,

Shackling may not be punishment per se, but. it

‘aises ag presumption of a punitive sanction, It

squarely collides with a traditional liberty interest in

freedom from bodily vestraint. A valid involuntary

commitment ea necessitate extinguishes a retired

person's right to freedom from any type of confine.

ment, Nevertheless, a residuum of liberty remains

Which is entitled to due process protection.

Slip. op at D-14. After Romeo shackling may be justi-

fied only by a “compelling necessity” or by showing that

it was “the least restrictive method of dealing with the

patient in light of his problems and the surrounding en-

Viromment.” Slip op. at 16. That holding applies, as well,

(Footnote continued from preceding page)

State v. Fields, 77 NJ. 282, 390 A.2d 574 (1978). When the

state fails in a Fields hearing to justify comtinuance of the status

quo, the judge “mold[s]" a new order providing for “the least

restrictive restraints” found “consistent with the well-being of the

community and the individual.” 390 A.2d at 384. The record

shows no such hearing being held in Seott’s case and the trial

court made no findings as to the reasons why, if any. The analogy

to state law does not stay the hand of this court to remedy denial

of Scott's federally-protected constitutional rights, but it does sug-

gest that our holding today need not inevitably flood the federal

courts with petitions for relief.

29a,

Appendix A

to Seott.’? Although Seott was not shackled, the severe

restrictions on movement and deprivations of sanitary,

The fact that Scott is mentally ill and possibly dangerous,

rather than retarded, as Romeo was, affects only the nature and

weight of the state’s justifications for its restraints. Romeo left

no doubt, however, that all civilly committed patients, both dan-

gerous and non-dangerous, were entitled to have the conditions

of their confinement subjected to strict scrutiny. Doth enjoy the

right of unconvicted citizens to be free from punishment. Both

enjoy a right to treatment, and thus to the extent severe pliysical

deprivations and restraiats are contra therapeutic, such measures

conflict with one of the original rationales for confinement.

Although some patients may be so dangerous that only maxi-

mum continement can adequately protect the safety of others, courts

should not conclude that all) patients committed on grounds of

dangerousness must be so confined permanently, Our understand-

ing of mentally ill persons believed dangerous remains sadly li-

mited; but at least one research study suggests that states may

have been employing unnecessarily restrictive forms of confine-

ment for them. The results were reported in Chambers, //terne-

tives to Civil Commitment of the Mentally Ill: Practical Guides

and Constitutionl Imperatives, 70 Mich. L. Rev. 1107, 1136-37

(1972):

[Baxtrom v. Herold, 383 U.S. 107 (1966)] had the effect

of forcing the state of New York to transfer 992 patients

from Matteawan, an especially secure hospital for the eri-

minally insane, to regular mental hospitals elsewhere in the

State, Researchers followed all 992 patients for a year,

They found that all but seven of the 992 had fared well

enough in less secure, often unlocked facilities that the new

hospitals had not seen a need to seek their return to more

secure facilities. Indeed, 147 were discharged to the com-

munity, far more than would have been released from Mat-

teawan in an average year, and those who remained in reg-

(Footnote continued on following page)

30a

Appendiaz A

healthful conditions experieneed by inmates in’ the

Vroom Building qualitatively resemble shackling, and so

likewise raise “a presumption of a punitive sanetion.”

Our decision ins Romeo acknowledged as much and in-

dieated that the judieia! restraint perhaps appropriate to

consideration of inadequate treatment claims should not

apply when courts are asked to judge alternative envir-

onmental dispositions within the institution, Slip op. at

14 n24 & 82 0.55. Although the assignment of a patient

to the maximum security wing of a hospital may involve

the exercise of medical prognosis, just as the choice of

treatment docs, the court has a greater obligation to re-

(Footnote continued from preceding page)

ular hospitals seemed indistinguishable to the staffs from

the yeneral hospital population. The study may provide

little firm indication of how the same men would have fared

if never hospitalized at all or if placed initially in a mini-

mum security hospital, but it should increase courts’ skep-

ticism both about claims that a person is dangerous and

about claims that hospitalization is necessary. — [citations

omitted }.

13\We made clear in Romeo that our holding extended beyond

the use of locks and chains. Deference to administrative and fiscal

constraints must give way, we indicated whenever a claimed post-

commitment abridgment “reach{es] the status of a gross depri-

vation or squarely cut[{s] across constitutionally protected inter-

ests... 2” Slip op. at 12. Obviously not all unpleasant condi-

tions of confinement, some of which are inherent in large-scale

institutions, constitute “gross deprivations.” Although no doubt

the line between punishment and discomfort is not always a bright

one, nonetheless we are convinced that severe restrictions on intra-

mural mobility or unsanitary, climatically extreme conditions which

endanger health amount to punishment and cannot be ignored by

courts.

dla

Appendia A

view constraints involuntarily imposed than it does treat-

ments a state offers to willing patients. Cf. slip op. at 25

(limits placed on state’s power to impose drastic treat-

ments without patient’s consent), Moreover, whereas

courts may lack the resources or inclination to evaluate

day-to-day therapeutic prescriptions, they are well suited

to examine a discrete long-term state action such as the

fact and conditions of Seott’s confinement in the Vroom

suilding. Cf, IMalderman vy. Pennhurst State School &

Hospital, 612 F.2d 84, 102 (8d Cir, 1979), cert. granted,

48 USAW. S797 (1980) (Nos, 70-1404 1408 /1414/1415/

1489) (Congressional mandate to courts to enforce least

restrictive standards for personal liberty under Develop-

mentally Disabled Assistance and Bill of Rights Act). Any

reservations over applying least restrictive analysis to the

conditions of temporary detainment'? must yield when the

deprivation of liberty can last as long as 24 years or more.

Scott was therefore entitled to have the court below care-

fully consider his petition for transfer from the maximum-

security pavillion to a civil psychiatric wing of the hos-

pital. Before denying the request, the courst must be satis-

fied that hospital officials have considered the existing

alternative residences and found that no less restrictive

setting would be sufficient to secure adequate protection

from threatened harm.’ The district court’s opinion below

“Cf. Bell v. Wolfish, 441 U.S. 520 (1979) (pretrial detainees,

85°7 of whom were released within 60 days).

Far from being justified by an overriding state interest, exces-

sive physical restraints would conflict with the state's interest as pro-

claimed in N.J.S.A. § 30:4-24.2(e)(2), which entitles mental pa-

tients, civilly committed because dangerous, “to the least restrictive

conditions necessary to achieve the purposes of treatment.”

32a

Appendiz A

contains no findings that the subhuman conditions at the

Vroom Building were necessary to the state's lecitimate

interest in protection,’ or that Scott's placement in other,

less restrictive surroundings available at Trenton Psvehi-

atrie Hospital was ever tried or considered and found un-

workable. To the contrary, there are strong indications

in the record that he eould be moved to a eivil ward where

his liberty would be Jess restrained and lis surroundings

would be more comfortable.”

The fashioning of an appropriate decree respecting

Scott's future custody is a matter which should be ad-

dressed by the trinl court in the first instance, But even if

it is determined that no place but the Vroom Building is

secure enough to house Seott, specifie relief from its in-

tolerable physical conditions should be ordered. They

are not justified by a “compelling necessity” related to

the purposes of confinement. Instead, they are at best

the result of insuflicient funding, whieh Romeo held was

not an adequate excuse, Slip op. at 16."

™ Defendants’ principal defense at trial for the disgraceful living

conditions at the Vroom Building was budgetary constraint. With

regard to bodily restraints, Mowteo expressly incieated that “except

in emergency situations, inadequate resources or administrative ra-

tionales offer an insufficient basis for intrusions of this kind on a

fundamental liberty interest.” Slip op. at 16.

In addition to Dr. Folmer’s report, noted eariier, there was even

testimony that such transfer was offered to Scott as an inducement

for him to drop this suit.

1S Although defendants’ lone witness, Dr. Musikoff, testified that

some pliysical improvements had recently been accomplished and that

(Footnote continued on following page)

dda

Appendix A

B. Adequate Treatment

The jury also found, and the eourt awreed, that Seott

has been unconstitutionally denied treatment, Seott's

own testimony, that of his expert, Dr. Sadoff, and. the

hospital records reveal that no staff member worked with

plaintiff? individually on a regular basis: that neither a

psychiatrist nor a psychologist has seen him individually

onany regular basis in the twenty four years of his con-

finement; that ten years after his confinement a staff phiv-

sician filed a report that there was no reason to bother

trying to treat him: that recently a treatment team was

established, but it met with him for only ten to fifteen

minutes a months’ and finally, that he had not received

any psychiatrie counseling for almost a year and a half

(Footnote continued from preceding page)

several more were planned, nonetheless the budget requests submit-

ted by defendant Klein and introduced as exhibits indicate that sueh

promises provide inadequate assurance, For example, a new forensic

facility was proposed, but eventually deleted from 1978 bond issue

legislation. Even a $500,000 budvet request for “emergeney repairs”

to the Vroom Building was only listed 12th in priority in the Hospi-

tal’s capital budget request for FY 1980, As for Scott's placement in

a cleaner, improved cell beginning December, 1978, we note that

his testimony reveals several transfers from one cell to another

over the past several years. In light of these considerations—

budgetary restraints and the apparent frequency of cell transfers—

we believe Scott is entitled to the protection of a specific injunc-

tion,

The jury may have been unimpressed with such testimony

in light of testimony by plaintiffs expert witness that “suitable”

treatment requires one and preferably two or three such sessions

per week.

dda

Appendix A

prior to trial. Indeed, it is undisputed that Trenton Psy-

chiatric Hospital lost its hospital accreditation several

years ago partly because the treatment offered its inmates

was merely custodial and not therapeutic,

The court denied prospective relief, however, noting:

Although he must be accorded all possible consider-

ation and treatment, plaintiffs medical future can-

not be directed through this court, but must depend

upon the determination of experts as to his individ-

ual requirements and needs. [Tam satisfied from the

information provided at the motion hearing in Sep-

tember that definitive steps have been taken and

will continue in order to reetify any deficiencies in

that regard.

Memorandum at 10, This is not a satisfactory disposition

of Seott’s claim for injunctive relief with respect to lack

of treatment. It is of course the case that his medical fu-

ture must depend upon medical judgment as to his indi-

vidual requirements and needs. Halderman v. Pennhurst

State School & Hospital, 612 F.2d 84, 114 (8d Cir. 1979),

cert. granted, 48 U.S.LW. 38797 (1980) (Nos, 79-1404 1408

1414/1415/1489).) But he has been substantially without

the benefit of such medical assistance for 24 vears, he has

been in court seeking it since 1973, and even today the

State’s brief contends that he is not constitutionally en-

titled to it. The court refers to definitive steps already

taken, but there is nothing of record disclosing what those

steps are or what assurance there is that they will con-

tinue. Seott contends, and we agree, that he is entitled to

the protection of a specific injunction.

Scott also contends (1) that tie trial court erred in

denying his habeas corpus petition to be released complete-

joa

Appendiz A

ly from custody; (2) that the court erred in denying re-

lief respecting a law library in the Vroom building. The

court's findings of fact on these claims are not clearly

erroneous and denial of relief with respect to them was

a permissible exercise of discretion, Finally, Seott con-

tends that the court erred in entering judgment in favor

of Governor Brendan T. Byrne and the Justices of the New

Jersey Supreme Court, There is no evidentiary basis for

any damage claim against these defendants, and they do

not appear to be necessary parties for the equitable relief

we have held should be considered.

VI.

In response to special interrogatories, the jury returned

verdicts in faver of Scott as to both the treatment and

punishinent claims, on the basis of which they awarded

both compensatory and punitive damages. Defendants

Plante, Klein and Weinberg filed a motion for judgment

notwithstanding the verdict or alternatively for a new

trial. We must depend on the trial court’s recital of the

grounds for this motion for it is among the docketed plead-

ings Which in the certified record are “missing.” The court

treated the motions separately and in considering the mo-

tion for judgement notwithstanding the verdiet dealt sepa-

rately with the claims for punitive and for compensatory

damages.

A.

Despite the motion for judgment notwithstanding the

verdict, the compensatory award was upheld on several

grounds, First, the court denied the motion as to the ver-

dict on the treatment claim. Appealing from that denial,

36a

Appendix A

defendants urge that as a matter of law a person confined

because he is a danger to self or others has no constitu-

tional right to any treatment. That contention lacks merit.

Had Seott been at large he might have been in a position

to seck the treatment which would alleviate his mental ill-

ness. As we have held in lomeo v. Youngberg, supra, the

state may not both deprive him of the liberty to seek treat-

ment and of the treatment as well.

The right to treatment or habilitation in the case of

the mentally retarded—arises when an individual

is involuntarily committed, regardless of whether

parents palivae or police power grounds provide the

major premise for the confinement.

Romeo v. Youngberg, supra, slip op. at 25; accord, Echker-

hart vy. Hensley, 475 F.Supp. 908, 915 (W.D. Mo. 1979).

The defendants also contend that as a matter of law

they were entitled to judgment notwithstanding the ver-

dict by virtue of the eleventh amendment, since they were

acting in official capacities as state officers. That conten-

tion is frivolous. Hua Parte Young, 209 U.S. 123 (1908);

Osborn v. Bank of the United States, 22 U.S. (9 Wheat.)

738 (1824).

Defendants also urge that they should have been granted

judgment notwithstanding the verdict because there is no

evidentiary basis for the verdict that they personally vio-

lated Scott's rights. In that respect we must examine sepa-

rately the treatment claim and the punishment claim.

In diseussing the propriety of injunctive relief in Part

V, we reviewed the evidence indicating that Seott’s right

to treatment had been violated. In addition to the testi-

mony and hospital records, from which the jury could

37a

Appendia A

have found an absence af adequate treatment, there was

the opinion of Dr. Sadoff that Scott's chances of improve-

ment were probably diminished by the lack of treatment

in the early stages of his institutionalization. Even the

one witness presented by the defendants, Dr. Musikoff,

conceded that carlier treatment might have led to im-

provement. Moreover, there was evidence from which the

jury could have found that the individual defendants were

personally responsible for the lack of treatment or aware

of it and in a position to remedy that lack. Such knowl-

edge could be inferred from the fact that the inadequacies

of treatment which eventually resulted in loss of accredi-

tation in L977 must have been apparent long before that

time to these defendants. Also, the jury could find that

in addition to receiving complaints from Seott, Commis-

sioner Klein and Dr. Weinberg made occasional on-site

inspections of the Vroom Building. Dr. Weinberg even sat

in on group treatment sessions which Seott attended and

was quoted in his affidavit as saying that he was familiar

with Scott’s treatment in his role as plaintiff's custodian.

On the basis of this reeord, the trial court was thus

correet to conelude that a judgment notwitstanding the

verdict for lack of evidentiary support on the treatment

claim would be improper. Although the jury was told to

consider the ease against each defendant separately, no

provision was made for a diserete assessment of dam-

ages against each based upon their individual acts. Once

again, since the point was not raised by the defendants,

it must be deemed to have been waived.

As to the punishment claim, there was likewise am-

ple evidence—reviewed In) Part V-—that the subhuman

living eonditions at the maximum security prison wing

to which Scott has been confined amounted to punishment.

J8a

Appendix A

As noted with respect to the discussion of the treatment

claim, the jury could find that the defendants knew of his

complaints, of the availability of alternative environments,

and of their own power to arrange for them. The jury

could have found that there was no treatment or security

reason for subjecting Scott to such severe deprivations, in

which event, the trial judge instructed the jury they were

to find the defendants liable. Therefore, the evidence was

sufficient to support the jury's finding that Scott's confine-

ment Was unconstitutional under the lenient rationality

standard charged by the trial judge, let alone under the

“compelling necessity” standard we adopted in Romeo Vv.

Youngberg, supra,

Finally, defendants also contend that their motion for

judgment notwithstanding the verdict should have been

granted because they were entitled to a direeted verdict

that they were covered by official immunity. The trial

court, rejecting that contention, observed:

The good faith immunity argued by defendants is

qualified in nature and not absolute in a ) 1983 ae-

tion. The charge properly placed the burden of per-

suasion for this defense upon the defendants... and

it was fully within the province of the jury to reject

it as they did in making a compensatory award,

Memomorandum at 4. We agree. In reviewing a motion

for judgment notwithstanding the verdict, we must deter-

mine, without weighing the credibility of the evidence, and

giving Scott, who secured the jury verdict, the benefit of

all reasonable inferences that ean be drawn from that evi-

dence, whether reasonable minds could not come to a differ-

ent conclusion. See Fireman's Fund Ins. Co. v. Videfreeze

Corp., 540 F. 2d 1271, 1177-80 (3d Cir. 1976), and cases

39a

Appendia A

cited, The right to have facts found by a jury. guaranteed

by the Seveuth Amendment, applies no less to civil rights

actions than to conventional tort cases,

Reviewing the record in light of the foregoing strict

standard, we cannot say the jury was compelled to find

that defendants had established their requisite good faith.

First, we note that the violations for which they were found

liable are not acts of negligence, Punitive conditions or

the absence of any treatment become constitutional viola-

tions because the justifications put forward by the state

are not compelling”) The substance of the violation does

not necessarily indicate the individual defendants’ state

of mind at the time the acts occurred or the reasonable-

ness of their legal position, which, together, are the foeus

of inquiry for official immunity purposes. Pertinent to

that inquiry was testimony from which the jury could have

inferred that defendants withheld treatment, despite reeog-

nition that institutionalization without such treatment

tends to deepen a patient’s mental incapacity. Under such

circumstances the jury might conelude that the defendants

knowingly caused injury to Seott and, therefore, could

not in good faith have believed they were acting within

the law. Indeed, there was evidence that the defendants

acted in disregard of the New Jersey law governing their

institution and entitling its patients to adequate treatment

and habitation." It was harder still for offieial immunity

to overcome the punishment claim, given that the right of

*°See Instructions IT and III-A in the appendix to Romeo v.

Youngberg, supra, slip op. at 41-42.

1 Sce N.J.S.A. §30:4-24.2; State v. Carter, 64 N.J. 382, 316

A.2d 449 (1974) ; State in Interest of RGW, 145 N.J. Super. 167,

366 A.2d 1375 (J & D. R. Ct. 1976).

40a

Appendix A

citizens—even in institutions --to be free from inhumane

conditions has long been undisputed. See Scott v. Plante,

532 F.2d 939 (3d Cir. 1976).

If defendants’ position is that they innocently miseon-

ceived the law or had found it unsettled, they should have

supplied evidence to that effect at trial. The risk of non-

persuasion with regard to the qualified immunity defense

is placed squarely on the defendants. Shkehan vy. Blooms-

burg State Teachers College, supra. Yet none of the named

defendants in this case even appeared to testify. The tes-

timony of Dr. Musikoff does not touch on the beliefs of the

defendants in the reasonablness of their respective courses

of conduct, or on their knowledge of the governing legal

standard. Indeed, the record contains no evidence suggest-

ing that the right to treatment or to be free from punish-

ment was in their mind unsettled. Dr. Musikoff’s evidence

touches only slightly on the tardy efforts, if any, defendants

took to improve Scott's treatment or the conditions of his

confinement beginning in 1977.) Evidence of budgetary ap-

peals by defendants in recent years to improve treatment

and conditions at Vroom Building was certainly admissi-

ble, but evidence of their good faith with regard to the

institutional population as a whole does not resolve as a,

matter of law the issue of their good faith towards the

individual plaintiff in this case, whose specifie plight the

jury could have found was utterly ignored. On this ree-

ord the jury certainly could conelude, as it obviously did,

that defendants failed to earry their burden of proof on

the good faith immunity defense.

B.

The trial court granted the defendants’ motion for judg-

ment notwithstanding the verdict on the claim for puni-

4la

Appendiz A

tive damages. Scott appeals from that order. As in the

previous discussion of such motions on the liability claims,

we must avoid weighing the credibility of the evidence and

must give Scott, who secured the jury verdict, the benefit

of e"' reasonable inference that can be drawn from that evi-

den. The standard is the same as that for the grant of

a directed verdict, and in reviewing the record we owe no

particular deference to the trial court’s determination, but

must make our own. See Fireman’s Fund Ins. Co. v. Vide-

freeze Corp., supra, 540 at 1177-80.

In addition, we must be mindful of the legal standards

governing the award of punitive damages in § 1983 actions.

The award of punitive damages is authorized by that aspect

of the law of torts having to do with admonition rather

than compensation. Such an award punishes wrongdoing

beyond the requirements of compensation both as a dis-

couragement of private retribution and as a deterrent

against future misconduct. The admonitory standard re-

quires that the factfinder determine that the defendants

“acted with actual knowledge that he was violating a fed-

erally protected right or with reckless disregard of whether

he was doing so... .” Cochetti v. Desmond, 572 F.2d 102,

106 (3d Cir. 1978). Moreover,

... although punitive damages are not a favorite of

the law and are to be allowed only within narrow

limits,

[t]he allowance of such damages inherently in-

volves an evaluation of the nature of the con-

duct in question, the wisdom of some form of

pecuniary punishment, and the advisability of a

deterrent. Therefore, the infliction of such dam-

ages, and the amount thereof when inflicted, are

42a

Appendix A

of necessity within the discretion of the trier of

fact.

Fisher v. Volz, 496 F.2d 333, 347 (3d Cir. 1974), quot-

ing Lee vy. Southern Home Sites Corporation, 429 F.2d

290, 294 (5th Cir. 1970).

Mindful of these principles, we nonetheless confess to

uneasiness about imposing exemplary damages against

these defendants based on the existing record. We note,

for example, Commissioner Klein’s efforts—albeit unsue-

cessful—to get money from the legislature for upgrading

the Vroom Building. In light of these efforts, we be-

lieve an inference of malice or wantonness must be based

on more than her specific awareness of Scott’s plight

derived from two letters, both of which she forwarded

to appropriate subordinates. This is not to say that

the record conclusively vindicates the Commissioner’s role

in this case. When the evidence is simply too sparse

to determine the punitive damages issue one way or

another, and plaintiff bears the burden of proving malice

or wantonness, Cochelti v. Desmond, supra, perhaps a

jury award of punitive damages cannot stand.

*? Plaintiff cannot be heard to complain that our rejection of

defeadants’ immunity defense necessarily implies sufficient bad faith

has been shown to support punitive damages. The defense of

official immunity depends on defendants establishing good faith,

and we concluded in Part VI-A that they failed to carry this bur-

den, With respect to punitive damages, however, it is the plain-

tiff who bears the risk of non-persuasion on the issue of malice

or recklessness. We, therefore, find nothing inherently incon-

sistent about upholding the judgment of liability for violation of

constitutional rights, while expressing doubts about the award of

punitive damages.

43a

Appendi« A

However, the insufficiency of the evidence on this issue

warrants close examination, since the circumstances of this

case are somewhat unusual. We traced earlier in Part

II, the sluggish treatment of plaintiff’s case which eventu-

ally required reassignment of the case to Newark from

Trenton and prompted quick assignment of a trial date.

This unorthodox course of events may explain why no

pretrial conference was held, far enough in advance of

trial to assist the parties in preparing their case. Realiz-

ing for the first time at trial the importance of demon-

strating Commissioner Klein’s personal responsibility and

obtaining subjective evidence, plaintiff’s counsel at that

time served a subpoena on the Commissioner in order

to obtain her testimony. Despite plaintiff’s protestations,

the trial court quashed the subpoena. That ruling no

doubt hampered plaintiff’s ability to carry his burden of

proof on the issue of punitive damages.

We need not decide then whether the lower court’s

direction of judgment notwithstanding the verdict was valid

on the existing record. Even when such a motion is

granted, if the insufficiency of evidence is attributable

to trial error, the defendants are not entitled to judg-

ment notwithstanding the verdict and the appellate court

can order a new trial. See Derr v. Safeway Stores, 404

F.2d 634 (10th Cir. 1968); 9 Wright & Miller, Federal

Practice & Procedure $2540 at 614 (1971); Fed. R. Civ.

P. 50(e)(2), Notes of Advisory Committee at 200. We

note, too that the Federal Rules permit a trial judge

to order a new trial sua sponte within ten days of grant-

ing a judgment n.o.v., if he believes it is necessary to

ensure substantial justice to the verdict-winner. Fed. R.

Civ. P. 59(d). An appellate court should likewise be

able to exercise such discretion, especially where as here

44a

Appendia A

there existed an alternative motion for a new trial, on

which the lower court did not rule, despite the direction

in Fed. R, Civ. P. 50(e)(1) to do so.

We conclude then that the issue of punitive damages

in this ease can only be properly resolved by a new

trial, thereby affording plaintiff a more meaningful op-

portunity to prepare his case against Klein and the other

individual defendants through interrogatories or deposi-

tions. The court of appeals has broad discretion to grant

a new trial as to all or some issues. /Heckman v. Fed-

eral Press Co., 587 F.2d 612, 619 (3d Cir. 1978). In

that case, we emphasized the general rule stated by the

Supreme Court:

Where the practice permits a partial new trial,

it may not properly be resorted to unless it clearly

appears that the issue to be retried is so dis-

tinct and separable from the others that a trial

of it alone may be had without injustice.

Gasoline Products Co. v. Champlin Refining Co., 283 U.S.

494, 500 (1931). We are not convinced that complete

separation of the damage and liability considerations in

this case is possible; therefore we conelude that the better

course would be to have all plaintiff’s claims for legal

relief submitted to the jury on retrial.

VII.

Advancing an alternative motion for a new trial un-

der Fed. R. Civ. P. 59, the defendants urged in the

trial court that the liability verdict should be set aside

because the verdicts were against the weight of the evi-

45a

Appendix A

dence. The trial court rejected both contentions. In light

of our foregoing conclusion that a new trial is necessary

on all legal claims, we need not review those decisions.

On damages, however, acting on defendants’ new trial

motion, the court took an action which was beyond its

powers; lest the error recur on remand, we take this

opportunity to address it. Concluding that the compen-

satory damage award of $15,000 exceeded the amount

that a jury could properly award, the trial court re-

duced the award to one dollar. The court did so with-

out affording the plaintiff the option of accepting a re-

mittitur or a new trial. In a case where the facts as

to damage are in dispute, the court may not do this

without violating the Seventh Amendment. MAennon v.

Gilmer, 131 U.S. 22 (1889); GA Moore’s Iederal Prac-

tice 59.05[3] at 59-61 (2d ed. 1979). This is not a

case, such as Garfield Aniline Works v. Zendle, 43 F.2d

537, 538 (3d Cir. 1930), in which the amount of dam-

age is a matter of undisputed calculation. Thus the

court’s decision to set aside the verdict and enter judg-

ment for one dollar cannot stand.

Moreover, we have serious questions about the court’s

view of the evidence of damage. The court’s charge prop-

erly instructed the jury that Scott could in a Seetion 1983

action recover for “any pain, suffering and mental an-

guish already suffered by him and proximately resulting

from the injury in question.” If the jury coneluded, as

apparently it did, that Scott had heen confined unneces-

sarily in the harsh conditions of the Vroom Building, it

certainly could infer that he suffered pain and mental

anguish. See, e.g., Buse v. Hudiins, 584 F.2d 223 (7th

Cir. 1978), cert. denied, 440 U.S. 916 (1979) (prisoner en-

titled to more than nominal damages in view of less desir-

46a

Appendix A

able living conditions at prison than at farm); Mack v.

Johnson, 430 F. Supp. 1139 (18.D.Pa. 1977), aff’d 582 F.2d

1275 (3d Cir. 1978) (prisoner confined in segregation cell

for 30 days compensative for deprivation of exercise and

presumed mental anguish); Wright v. McMann, 321 F.

Supp. 127 (N.D.N.Y. 1970) affd in relevant part, 460 F.2d

126 (2d Cir. 1972) ($1500 award to compensate prisoner

for being confined nude in isolation). Where the fact of

injury appears but damages are not susceptible of mathe-

matical calculation, the court should not ordinarily dis-

turb the jury’s evaluation of an appropriate compensatory

award, Chuy v. Phila. Eagles Football Club, 595 F.2d

1265, 1279 n. 19 (8d Cir. 1979).

We do note, however, that the court was requested by

defendants to charge that Scott not be compensated for

damages due to lack of treatment for periods during which

he refused a particular form of treatment. See Donaldson

v. O'Connor, 422 U.S. 568, 569 n4 (1975). Although this

failure to charge might not, alone, have warranted a new

trial, the court will have an opportunity to consider this

request more carefully on remand. Moreover, the court

was requested to charge that damages could be awarded

only for the period within the statute of limitations. The

failure to give such a charge permitted the jury to assess

damages from the time the plaintiff was first confined in

1954. We find no express ruling on this request and since

it was not briefed, we do not pass on its merits. See gen-

erally Rosenau vy. City of New Brunswick, 51 N.J. 130,

238 A.2d 169 (1968); Stanley Development Co. v. Millburn

Tp., 26 N.J. Super. 328, 97 A.2d 743 (1954); ef. Stuebig v.

Hammel, 446 F. Supp. 31 (M.D. Pa. 1977) (Pennsylvania

law).

47a

Appendix A

VII.

One remaining issue, not raised in Scott’s brief, must,

because of our disposition of this appeal, be adverted to.

At the end of the plaintiff's case the court dismissed the

State of New Jersey as a defendant. At that time the

court did not have the benefit of the Supreme Court’s opin-

ions in Maine y. Thiboutot, 48 U.S.L.W. 4859 (U.S. June

25, 1980) and Maher v. Gagne, 48 U.S.L.W. 4891 (U.S.

June 25, 1980). In remanding the case, however, we note

the likelihood, if not the certainty, that Scott will apply

for an award of attorney’s fees pursuant to 42 U.S.C.

§ 1988, thus directly implicating Maher, To avoid prolong-

ing this protracted litigation any more than necessary,

we believe it appropriate to point out, in light of the re-

cent Supreme Court rulings and the facts of this case, that

the State’s presence as a defendant for purposes of award-

ing such counsel fees may be important. The judgment

is not yet final. On remand, therefore, the court below

may upon proper motion by the plaintiff reconsider its

judgment dismissing the State as a party and determine

whether it is an appropriate defendant against which an

award of attorney’s fees might be made insofar as pros-

pective injunctive relief is to be granted against the in-

dividual defendants in their official capacity.

IX,

The judgment in defendants’ favor on Seott’s claims

for prospective relief will be vacated and the case re-

manded for consideration of specific equitable relief in

light of Scott’s right to be given adequate treatment and

have his assignment to other less restrictive settings

48a

Appendix A

within Trenton Psychiatrie Hospital carefully considered.

With respect to the liability of the individual defendants

for compensatory and punitive damages, the judgments

below are vacated and the case remanded with direction

to grant a new trial on these issues in light of this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

49a

APPENDIX B

Opinion of the United States District Court

for the District of New Jersey

(Original Filed—January 8, 1980)

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

»s

~

ALLEN BODINE SCOTT,

Plaintiff,

v.

DR. INGRE RUDOLPH PLANTE, e¢ al.,

Defendants.

+

Civil Action No, 1052-73

Hon Ciarxson S. FisHer

Defendants move alternatively for judgmewt n.o.v. or new

trial following a jury verdict against them in the amount

of $15,000 compensatory and $10,000 punitive damages.

Plaintiff, who had been involuntarily confined to the Foren-

sie Unit of Trenton Psychiatrie Hospital (Vroom Build-

ing) for 24 years at the time of trial, sought relief pursuant

to 42 U.S.C. $1983 for alleged deprivation of his constitu-

tional rights to medical and psychiatric treatment and to

50a

Appendix B

humane living conditions. Plaintiff had been placed in the

facility in 1955 upon determination that he was mentally

incompetent to stand trial on an indictment charging mur-

der of his grandmother. In 1968 the court found plaintiff

insane both at the time of the crime and on the hearing

date and continued his commitment. Again in 1975 the

court determined plaintiff still insane and dangerous to

others. Medication was administered without plaintiff’s

consent between 1973 and 1974. During the balance of

his years in the Vroom Building he has refused medication.

Prior to jury deliberations plaintiff’s state law claims

were dismissed and the complaint was dismissed as to all

defendants except: Inge Rudolph Plante, M.D., individually

and in her official capacity as Chief Executive Officers of

Trenton Psychiatric Hospital; Anne Klein, individually

and in her official capacity as Commissioner of the Depart-

ment of Institutions and Agencies; and Martin Weinberg,

M.D., individually and in his official capacities as Medical

Director of Trenton Psychiatric Hospital and as New Jer-

sey Mental Health Commissioner.

Specific interrogatories provided to the jury were an-

swered as follows:

In-Court Deputy: Question No. 1, was the plain-

tiff deprived of adequate treatment while at Tren-

ton Forensic Unit?

The Foreman: Yes.

In-Court Deputy: Was that deprivation approx-

imate [sic] cause of injury and damage to the plain-

tiff?

The Foreman: Yes.

In-Court Deputy: Was the plaintiff forced to un-

dergo harmful or painful modes of treatment over

his refusal?

5la

Appendix B

The Foreman: No.

In-Court Deputy: Were the physical conditions at

the Vroom Building such as to amount to a depriva-

tion of due process?

The Foreman: Yes.

In-Court Deputy: Was it the proximate cause of

injury and damage to the plaintiff?

The Foreman: Yes.

In-Court Deputy: Do you find liability as to any

of the defendants?

The Foreman: Yes.

In-Court Deputy: All three?

The Foreman: Yes.

Transcript of Verdict, June 13, 1979, p. 2-15—p. 3-13.

Jury VERDICT

Judgment n.0.v.

Defendants contend that the jury verdict against them

for monetary damages must be vacated as a matter of law

because (1) in their individual capacities none of them

was involved either directly or indirectly in any violation

of plaintiff’s constitutional rights, and (2) in their official

capacities the 11th Amendment bars such recovery. They

further argue that the weight of the evidence does not sup-

port the monetary award.

The standard for granting judginent n.o.v. is rigid and

analogous to that for a motion for directed verdict. The

Third Cireuit has held that such relief “may not be granted

unless as a matter of law it is found that [plaintiff] failed

to present a case for the jury, and a verdict in [defend-

52a

Appendiz B

ant’s] favor should have heen directed at the end of the

trial.” Neville Chemical Co. v. Union Carbide Corp., 422

F.2d 1205, 1210 (3d Cir.) cert. denied, 400 U.S. 826 (1970).

The court must determine, after viewing the evidence and

all reasonable inferences most favorably to the non-moving

party, “that there is not sufficient evidence upon which the

jury could properly have found for the non-moving party.”

Rogers v. Exxon Research and Engineering Company, 404

F. Supp. 324, 336 (D.N.J. 1975), vacated and remanded on

other grounds, 550 F.2d 834 (3d Cir. 1977), cert. denied,

434 U.S. 1022 (1978); see 9 Wright & Miller, Federal Prac-

tice and Procedure §2524.

Defendants’ “weiglit of the evidence” claim is inappro-

priate to a motion for judgment n.o.v. where it is the duty

of the judge “to accept the plaintiff’s version as true for

the purposes of the motion, notwithstanding the existence

of strong testimony to the contrary; the judge is not con-

cerned with the weight of the evidence... .” Fireman’s

Fund Ins. Co. v. Aalco Wrecking Co., Inc., 466 F. 2d 179,

186 (Sth Cir. 1972), cert. denied, 410 U.S. 930 (1973), quot-

ing Simpson v. Skeliy Oil Co. 371 F.2d 563, 566-567 (Sth

Cir. 1967).

The jury clearly made a determination, as evidenced by

the answers to interrogatories, that the named defendants

shared responsibility for deprivation of plaintiff's consti-

tutional rights to medical treatment and to due process by

reason of living conditions within the Vroom Building. The

interrogatories did not require separate assessment of each

right, and it is therefore impossible at this point to recon-

struct the jury’s analysis.

Nevertheless, based upon the charges given and the

evidence adduced, there was a sufficient factual basis for

53a

Appendix B

a jury finding that plaintiff is entitled to some compensa-

tory award. In addition to the long line of eases estab-

lishing the constitutional right of an involuntarily con-

fined mental patient to proper treatment, New Jersey

statutes place an affirmative obligation upon the state

to provide “services in accordance with accepted stand-

ards” (N.J.S.A. 30:4-24.1; see State v. Carter, 64 NJ.

382 (1974)) and case law has rejected the argument that

failure to provide suitable and adequate treatment is justi-

fied by lack of staff or facilities. State in Interest of

R.GW., 145 NJ. Super. 167 (J.&D.R. Ct. Pass 1976).

Based upon the exhibits and testimony it was not im-

proper for the jury to determine the named defendants

knew or should have known that minimal standards were

lacking. The efforts of the defendants to acquire fund-

ing for improvement of the physical conditions and treat-

ment methods does not excuse liability in an action based

directly on §1983 on the basis of vicarious liability or 11th

Amendment where there is actual knowledge of the al-

leged conditions. See, Coggins v. McQueen, 447 F. Supp.

960 (E.D. Pa. 1978). The good faith immunity argued

by defendants is qualified in nature and not absolute in

a §1983 action. The charge properly placed the burden

of persuasion for this defense upon defendants (Trans-

eript of Summation and Charge, p. 40-41) and it was

fully within the province of the jury to reject it as they

did in making a compensatory award.

However, an award of punitive damages in the instant

ease is totally without evidentiary basis. It is well estab-

lished that

... Punitive damages should not be awarded in a

§1983 proceeding unless there is a showing that the

prescribed action has been a constant pattern or

54a

Appendix B

practice of behaviour of defendants and that such

practice has been willful and in gross disregard for

the rights of plaintiff...

Urbano v. McCorkle, 334 F. Supp. 161, 170 (D.N.J. 1971).

After a complete review of the record I find that my

instructions were disregarded by the jury on the issue

of punitive damages so as to constitute a “mistake or clear

abuse of its fact-finding discretion.” Tann v. Service Dis-

tributors Inc., 56 F.R.D. 593, 598 (.D. Pa. 1972), aff'd.

481 F.2d 1399 (3d. Cir. 1973). Although I admonished

the jury that any such award must be made “with calm

discretion and sound reasons and must never be either

awarded or fixed in amount because of any sympathy or

bias or prejudice with respect to any yarty in the case,”

(Transcript of Summation and Charge, p. 46-1, 4), there

is no evidence that the defendants acted with “impermis-

sible motivation or... disregard” of plaintiff's econstitu-

tional rights to such an extent that they should be sub-

jected to a judgment for punitive damages. Wood v.

Strickland, 420 U.S. 308, 322 ({975).

Consequently, it is clear that a directed verdict in

favor of defendants was in order with respect to an award

of punitive damages. Accordingly, defendants’ motion

for judgment n.o.v. is granted on the issue of punitive

damages only, and that portion of the jury verdict is

vacated,

New Trial

The alternative motion for a new trial pursuant to Fed.

R. Civ. P. 59 is “addressed to the sound diseretion of

the district court.” Grove v. Dun & Bradstreet, Inc., 438

F.2d 433, 488 (3d Cir. 1971). Guidance is again pro-

55a

Appendix B

vided by Fireman’s Fund citing Simpson, supra, providing

for a less stringent test, wider but not unlimited latitude,

and consideration to arguments involving weight of evi-

dence and injustice to defendants. Defendants assert both

of these contentions and append charges of erroneous

instructions as another basis for new trial.

I will not address in detail each and every point raised

by defendants’ brief. The Third Circuit has cautioned,

however, that:

.. + [WJhere no undesirable or pernicious element

has occurred or been introduced into the trial and

the trial judge nonetheless grants a new trial on

the ground that the verdict was against the weight

of the evidence, the trial judge in negating the

jury’s verdict has, to some extent at least, substi-

tuted his judgment of the facts and the credibility

of the witnesses for that of the jury. Such an action

effects a denigration of the jury system and, to the

extent that new trials are granted, the judge takes

over, if he does not usurp, the prime function of

the jury as the trier of the facts... .

Lind vy. Schenley Industries, Inc., 278 ¥.2d 79, 90 (3d Cir.)

[en bane], cert. denied, 364 U.S. 835 (1969).

This standard was enlarged upon in Gebhardt v. Wilson

Freight Forwarding Co., 348 F.2d 129, 133 (3d Cir. 1965)

where the court observed that:

If the evidence in the record, viewed from the

standpoint of the successful party, is sufficient to

support the jury verdict, a new trial is not war-

ranted merely because the jury could have reached

a different result. [citations omitted.] Neither the

56a

Appendix B

trial court nor this court may substitute its judg-

ment for that of the jury on disputed issues of

fact. ee 8 ¢

From the record and my observations during the trial,

I cannot find that the jury verdict on the issue of liability

was so clearly erroneous as to warrant a new trial or that

the instructions taken as a whole were prejudicial to de-

fendants. Accordingly, defendants’ motion for a new trial

is denied.

Compensatory Damages

Defendants argue that good faith immunity should cloak

them from all liability in damages to plaintiff except for a

nominal sum of $1. I have agreed that the record estab-

lishes no malice sufficient to sustain the punitive damage

award. However, a thorough review of the transcripts and

my own recollection of the testimony and demeanor of

the witnesses lead me to conclude that the charges to the

jury and the interrogatories propounded and answered do

not fairly apprise defendants as to the monetary alloca-

tion made by the jury on the two areas of constitutional

deprivation. Here, two separate causes of action exist,

both predicated upon §1983. The United States Supreme

Court has declared that the purpose of a $1983 damage

award “is to protect persons from injuries caused by de-

privation of constitutional rights” applying the tort prin-

ciple of compensation for breach of duty. Carey v. Piphus,

435 U.S. 247, 254-55 (1978). To link §1983 damages to

tort law requires plaintiff to present a prima facie case

establishing the requisite elements of duty, breach, causa-

tion and damages.

57a

Appendiz B

Normally, I would be adverse to disturbing the ver-

dict of the jury and usurping in any way its role as fact-

finder. Here, however, although the amount of the award

per se is not shocking to the conscience, it is my view that

it represented frustration on the part of the jury and an

attempt to assess blame for plaintiff's problems upon

whomever was before it in the status of a defendant. I

am particularly concerned that the record reveals no real

“injury” to plaintiff that is compensable by the state un-

der the factual circumstances existing in this case. This is

not analogous to Donaldson where a non-dangerous, non-

criminal patient was involuntarily confined in violation of

his constitutional right to liberty. Donaldson v. O’Connor,

493 F.2d 507 (Sth Cir. 1974); O’Connor v. Donaldson, 422

U.S. 563 (1975). There was and is genuine public inter-

est in maintaining plaintiff within a controlled environ-

ment. Such action has served to stabilize his mental con-

dition. In integrating the facts and the law which governs

the grant of monetary damages to aggrieved plaintiffs,

there is no justification either with regard to lack of medi-

cal treatment or living conditions for choosing these or any

other defendants to be liable for money damages.

Although there is considerable disagreement between the

parties as to when an actual “right to treatment” was

first recognized as constitutional in nature, and questions

of whether remittitur is proper during plaintiff’s refusal

of treatment or to limit recovery by application of a two-

year tort statute of limitations, those arguments are not

addressed. It is clear that when no injury exists, no com-

pensation can be awarded, and “injuries caused by de-

privation of constitutional rights should be tailored to the

interests protected by the particular right in question.”

Carey at 259.

58a

Appendiz B

Aceordingly, the jury award of $15,000 compensatory

damages is reduced to nominal damages of $1.

EquitrasB.e Issues

The balance of the issues raised by plaintiff’s complaint

are not triable to a jury and must now be disposed of by

me based upon the entire record,

Petition for Habeas Corpus

Based upon the jury finding, plaintiff claims that his

involuntary confinement in violation of constitutional

rights warrants his immediate release and return to so-

ciety.

While I coneur with plaintiff that he is entitled to re-

lief if his actual custody violates the Constitution, such

is not at issue. Rose v. Hodges, 423 U.S. 19 (1975), Ad-

ditionally, the Third Cireuit in Souder v. McGuire, 516 F.

2d 820 (3d Cir. 1975) has held only that an involuntary

commitment may be challenged by way of habeas corpus

and permission should be granted for the petitioner to

proceed in forma pauperis, Relief is not automatic.

The records of plaintiff reveal that numerous hearings

have been conducted with regard to his ability to function

outside the hospital environment. All have resulted in

negative decisions. Psychiatrists and doctors have consist-

ently stated in testimony and in reports that although

plaintiff is stable in his present status, his condition is

“chronic’. The fact that he has been dangerous to others

in the past has caused the hearing courts to decline grant-

ing plaintiff even a conditional release. Prior criminal

59a

Appendix B

conduct is the most critical input in predicting future dan-

gerous conduct. Stale v. Krol, 68 N.J. 286, 261 N.12 (1975).

Extreme caution must be exercised in the “delicate bal-

ance between society’s interest in protection from harmful

conduct and the individual’s interest . . . (and) doubts

must be resolved in favor of protecting the public .. .”

Krol at 261.

There is no question but that the state is now on notice

as a result of the decision in favor of plaintiff that more

adequate treatment and conditions are required in order

to fulfill its statutory obligation. At this time, however,

there is no testimony to justify releasing plaintiff from

confinement on the grounds asserted in his habeas corpus

petition absent the high degree of medical prognosis pres-

ent in U.S. ex rel. von Woldersdorf vy. Johnston, 317 F.

Supp. 66 (S.D. N.Y. 1970). See also Donaldson vy. O’Con-

nor, supra.

Plaintiff’s petition for habeas corpus is denied.

Injunctive Relief

Plaintiff seeks the following alternative injunctive relief

compelling defendants:

1. To erect a new facility or repair and renovate the

existing structure;

2. To provide an adequate treatment program for plain-

tiff ;

3. To establish a Jaw library within the Vroom Build-

ing;

60a

Appendix B

and compelling the New Jersey Supreme Court:

4. To amend its rules to provide periodic full due

process hearings and establish proof beyond a reason-

able doubt as the institutions burden.

This court does not feel that the circumstances and

facts in this case warrant its interference with either the

legislative or judicial branch of the government of the

State of New Jersey to compel by injunction any of the

relief sought by plaintiff. There is no question that

courts have both the power and duty to issue specific

implementation orders to responsible agencies who fail to

implement programs for a mental patient’s treatment.

State in Interest of R.G.W., 145 N.J. Super. 167 (J&DR,

Pass, 1976); see, e.g., Morgan vy. Sproat, 432 F. Supp.

1130 (S.D. Miss. 1977); Williams vy. Edwards, 547 F.2d

1206 (4th Cir. 1977). I do not feel that such drastie

measures are called for.

Neither can this court dictate to the state rule-making

body, absent failure of minimal due process. New Jersey

has enacted statutes consistent with federal standards for

the protection of plaintiff and those in similar situations.

This is not a class action where general injunctive meas-

ures might be appropriate.

Although he must be accorded all possible consideration

and treatment, plaintiff's medical future cannot be di-

rected through this court, but must depend upon the de-

termination of experts as to his individual requirements

and needs. Iam satisfied from the information provided

at the motion hearing in September that definitive steps

have been taken and will continue in order to rectify any

deficiencies in that regard.

6la

Appendiz B

Tn addition, the law library facilities at the Vroom Build-

ing are undergoing expansion, and book loan arrangements

have been made with the State Prison. It is apparent

from a complete review of plaintiff’s record that he has

never been denied access to the courts or lacked legal

representation by reason of law library inadequacies in

the past.

Accordingly, plaintiff’s demands for injunctive relief

are denied.

SuMMARY

The jury verdict of liability in favor of plaintiff and

against defendants is sustained. The punitive damage

award is vacated on defendant’s motion for judgment

notwithstanding the verdict. The compensatory damage

award is reduced to the nominal sum of $1. Plaintiff's

petition for habeas corpus and for alternative forms of

injunctive relief are denied, Defendant will submit an

order within 10 days.

Dated: January 7, 1980.

62a

APPENDIX C

Order of the United States Court of Appeals for the

Third Circuit Denying Petition for Rehearing

UNITED STATES COURT OF APPEALS

For tue Tiorp Cincurr

Nos. 80-1314/5 and 80-1596

—_

—

ALLEN BODINE SCOTT, by and through his Guardian,

Michael J. Weintraub,

v.

DR. INGRE RUDOLPH PLANTE, et al.,

Allen B. Seott, Appellant in Nos. 80-1314/1596

Dr. Ingre Rudolph Plante, et al, Appellants in

No. 80-1315

q

Sur Petition ror Renearine

Present: Axpisert, ApaMs, Ginsons, Weis, Garru, Hicarn-

BOTHAM and Srovirer, Circuit Judges

The petition for rehearing filed by Appellants, Dr. Ingre

Rudolph Plante, et al in the above entitled case hav-

ing been submitted to the judges who participated in

the decision of this court and to all the other avail-

63a

Appendix C

able circuit judges of the circuit in regular active service,

and no judge who concurred in the decision having asked

for rehearing, and a majority of the cireuit judges of

the cireuit in regular active service not having voted

for rehearing by the court in bane, the petition for re-

hearing is denied.

Judges Adams, Garth and Higginbotham would grant

the petition for Rehearing.

By the Court,

John J. Gibbons

Judge

Dated: March 6, 1981

Statement by Judge Adams Sur the Denial of the Peti-

tion for Rehearing En Bane, in which Judges Garth and

Higginbotham join.

Whether the standards developed in Romeo v. Young-

berg, No. 78-1982 (3d Cir. Nov. 25, 1980) (en bane)

for the involuntarily committed mentally retarded should

be applied across-the-board to the involuntarily committed

mentally ill who have been incarcerated following a find-

ing of not guilty by reason of insanity, as well as what

the exact contours of official immunity and the “good

faith” defense should be in this context are important

questions which I believe merit the attention of the full

court.

64a

APPENDIX D

Order of the United States Court of Appeals for the

Third Circuit Staying Issuance of Certified Judgment

in Lieu of Formal Mandate Until April 12, 1981

UNITED STATES COURT OF APPEALS

For tHe Tsirp Circuit

Nos. 80-1314/15 and 80-1596

ALLEN BODINE SCOTT, ete.,

vs.

DR. INGRE RUDOLPH PLANTE, e¢ al.,

Allen B. Scott, Appellant in Nos, 80-1314 and

80-1596

Dr. Ingre Rudolph Plante, et al., Appellants in

80-1315

Pursuant to Rule 41(b) of the Federal Rules of Appel-

late Procedure, it is Orprerep that issuance of the certified

judgment in lieu of formal mandate in the above cause be,

and it is hereby stayed until April 12, 1981.

Joun J. Gippons

Circuit..Judge

Dated: March 16, 1981