United States District Court, D. New Hampshire
Anthony K. Heath
Helen E. Hanks, Commissioner, New Hampshire Department of Corrections, et al.
Joseph A. DiClerico, Jr. United States District
K. Heath brought this action against Helen Hanks,
Commissioner of the New Hampshire Department of Corrections;
Deborah Robinson, Administrator of the Secure Psychiatric
Unit (“SPU”) at the New Hampshire State Prison;
Jeffrey Meyers, Commissioner of the New Hampshire Department
of Health and Human Services; Alexander de Nesnara, M.D.,
Chief Medical Officer at the New Hampshire Hospital
(“NHH”); and Robert MacLeod, former Chief
Executive Officer at the NHH. Heath brings his suit against
all the defendants in both their individual and official
capacities. There are three counts in Heath's Amended
Complaint: two for violations of Heath's procedural due
process rights (Counts I and II) and one for a violation of
the Americans with Disabilities Act (“ADA”, Count
defendants move to dismiss the Amended Complaint. Doc. 25.
Heath opposes dismissal.
considering a motion to dismiss, the court asks whether the
plaintiff has made allegations that are sufficient to render
his entitlement to relief plausible. Manning v. Boston
Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013). The
court accepts all well-pleaded facts as true and draws all
reasonable inferences in the non-moving party's favor.
Hamann v. Carpenter, 937 F.3d 86, 88 (1st Cir.
2019). The court disregards conclusory allegations that
simply parrot the applicable legal standard.
Manning, 725 F.3d at 43. To determine whether a
complaint survives a motion to dismiss, the court should use
its “judicial experience and common sense, ” but
should also avoid disregarding a factual allegation merely
because actual proof of the alleged facts is improbable.
August 21, 2015, Heath was indicted for second-degree assault
and for operating a motor vehicle after being certified as a
habitual offender. On January 15, 2016, Heath was indicted
for first-degree assault and first-degree assault with a
deadly weapon. On March 3, 2016, the Coos County Superior
Court found that Heath was not competent to stand trial, and
it found by clear and convincing evidence that there was no
reasonable likelihood that Heath could be restored to
competency through appropriate treatment within twelve
months. The superior court dismissed the indictments against
Heath without prejudice, but it found that the state had
shown that Heath was dangerous to others. The court ordered
Heath to remain in custody for ninety days to be evaluated
for involuntary treatment.
hearing on March 29, 2016, the First Circuit Court Probate
Division in Lancaster admitted Heath to the NHH on an
involuntary basis for a period not to exceed five years and a
conditional discharge as soon as clinically appropriate.
Pursuant to the Probate Court's order, Heath was admitted
to the NHH on April 4, 2016.
April 14, 2016, however, MacLeod, who was then Chief
Executive Officer of the NHH, ordered Heath to be transferred
to the SPU, which is located at the New Hampshire State
Prison. Commissioner Meyers approved the transfer, and Heath
was transferred to the SPU on April 22, 2016.
RSA 622:45, after MacLeod's transfer order, Heath was
placed in the care and custody of the Commissioner of the New
Hampshire Department of Corrections (who is now Commissioner
Hanks) and the medical unit director. According to
Heath's allegations, the SPU is a prison-like
environment, with prisonlike restrictions. By contrast, the
NHH is a hospital-like environment.
a year later, on April 7, 2017, Deborah Robinson,
Administrator of the SPU, requested that the NHH evaluate
Heath for a transfer back to the NHH as a less restrictive
alternative to the SPU. Dr. de Nesnara, the NHH Chief Medical
Officer, denied the request on September 20, 2017, and Heath
was left in the SPU.
began this action in July 2018, and he filed a three-count
Amended Complaint in September 2019. In Count I, Heath
alleges that the defendants transferred him to the SPU - and
refused his request to be transferred back to the NHH -
through a procedure containing insufficient due process, in
violation of the Fifth and Fourteenth Amendments. Heath also
alleges that the defendants failed to follow the procedures
they had in place for transfers between the NHH and the SPU.
Count I is brought against the defendants in their official
capacities. In Count II, Heath alleges the same violations as
Count I but against the defendants in their individual
Count III, Heath alleges that the defendants violated Title
II of the ADA by utilizing criteria or methods of
administration that have the effect of subjecting qualified
individuals with disabilities to discrimination on the basis
of disability. Heath alleges that the defendants incarcerated
him at the SPU rather than keeping him at the NHH based on
the nature of his disability. Heath also asserts that the
defendants violated the ADA when they did not provide him
with treatment in the “least restrictive environment
necessary to achieve the purposes of treatment.” Doc.
17 ¶ 56.
Amended Complaint, Heath seeks injunctive relief and damages
for all of his claims. As to injunctive relief, Heath
requests “[a]n order for his release from the Secure
Psychiatric Unit, so that he may receive treatment in the
least restrictive environment necessary to achieve the
purposes of treatment either at the New Hampshire Hospital
or, alternatively, from community-based mental health