In the United States District Court for the District of Columbia

Case 1:18-cv-01034-BAH Document 29-1 Filed 10/26/18 Page 1 of 75 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MARKELLE SETH, ) Old North Carolina Highway 75 ) Butner, N.C. 27509 ) ) CIVIL ACTION NO: Plaintiff, ) ) vs. ) ) The DISTRICT OF COLUMBIA, ) Karl A. Racine, Attorney General ) Office of the Attorney General ) 441 4th Street, N.W., Suite 630 South ) Washington, D.C. 20001 ) ) The D.C. DEPARTMENT ON DISABILITY ) SERVICES, ) 250 E Street, S.W. ) Washington, D.C. 20024, and ) ) ANDREW REESE, in his ) official capacity as Director of the D.C. ) Department on Disability Services, ) 250 E Street, S.W. ) Washington, D.C. 20024 ) ) Defendants. ) ) AMENDED COMPLAINT Markelle Seth, by and through his attorneys, brings this Amended Complaint against the District of Columbia; the D.C. Department on Disability Services (“DDS”); and Andrew Reese, in his official capacity as Director of DDS for violating Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131 et seq. (“ADA”), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“Section 504”), the D.C. Human Rights Act of 1997, D.C. Code § 2-1401.01 et seq. (“DCHRA”), and the Citizens with Intellectual Disabilities Civil Rights Case 1:18-cv-01034-BAH Document 29-1 Filed 10/26/18 Page 2 of 75 Restoration Act of 2015, D.C. Code § 7-1301.01 et seq. (“CIDA”). I. INTRODUCTION 1. The District of Columbia, by and through DDS 1 , the agency responsible for providing services to D.C. citizens with intellectual and developmental disabilities, has abandoned Markelle Seth (“Markelle”)—a young man deemed eligible for Defendants’ services and found by a judge of this Court to have “the auditory comprehension of a first-grade student”—leaving him to languish indefinitely in a federal prison in North Carolina in violation of state and federal law. 2. Markelle is a D.C. resident with intellectual disability2 currently in federal prison despite not having been convicted of any crime and despite Defendants’ obligation to provide him with services and treatment in the most integrated setting appropriate to his needs. 1 All references to DDS refer to DDS, its Director, Andrew Reese, and the District of Columbia. DDS is acting on behalf of the District of Columbia as the government agency charged with providing services for D.C. citizens with intellectual and developmental disabilities. 2 Plaintiff uses the term “intellectual disability” in place of “mental retardation” except when directly quoting others or referencing names of organizations. Although the latter term appears in some evidence, case law, and statutory language, it is offensive to many persons and has been replaced by more sensitive and appropriate terminology. See Rosa’s Law, Pub. L. No. 111-256, 124 Stat. 2643 (2010) (changing entries in the U.S. Code from “mental retardation” to “intellectual disability”); Hall v. Florida, 134 S. Ct. 1986, 1990 (2014) (“This opinion uses the term ‘intellectual disability’ to describe the identical phenomenon. This change in terminology is approved and used in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders, one of the basic texts used by psychiatrists and other experts . .” (citations omitted)); Robert L. Schalock et al., The Renaming of Mental Retardation: Understanding the Change to the Term Intellectual Disability, 45 Intellectual & Developmental Disabilities 116 (2007). This complaint also uses person-first language, describing the person before the disability, consistent with D.C. Code § 2-632 (People First Respectful Language Modernization Act of 2006). 2 Case 1:18-cv-01034-BAH Document 29-1 Filed 10/26/18 Page 3 of 75 3. Markelle has now endured over four years of confinement in local and federal jails and prisons, despite Defendants’ legal obligation to provide services and treatment to Markelle via civil commitment pursuant to the D.C. statute that governs situations exactly like this one, and corresponding federal law obligations to accommodate Markelle’s intellectual disability in the most integrated setting appropriate. DDS’s own prior director acknowledged, and continues to stand by, the agency’s legal obligations in this case, noting that “the decision by DDS to allow Mr. Seth to languish and regress in federal custody rather than carry out its mission and mandate [is] inexplicable other than as a matter of discrimination.” (Declaration of Laura L. Nuss ¶ 24 [hereinafter Nuss Decl.] (attached hereto as Exhibit 1).) 4. Indeed, DDS’s own retained expert stated that Markelle can and should be returned to the District, where he can be placed in a supervisory program without posing a danger to himself or others. DDS—ignoring its own expert’s recommendation—has reneged on its legal commitment to do so, despite having both the legal obligation and practical capacity to do so. Markelle does not seek to be released unsupervised in the District of Columbia. Rather, DDS is obligated to place him in a supervised program, which can and would effectively address the fact that, in the absence of such supervision, he could present a risk of engaging in sexually inappropriate behavior with minors. 5. Because of his disability, Markelle is entitled, under federal and D.C. law, to receive from Defendants supervised disability-related services in the most integrated setting appropriate for him in his home community. Defendants provide these services to District residents with mental illness but fail to do so for D.C. residents with intellectual disability. The District can provide these services in a manner consistent with the requirements of public safety as it is charged to do under law. Defendants’ actions violate the ADA, Section 504, DCHRA, 3 Case 1:18-cv-01034-BAH Document 29-1 Filed 10/26/18 Page 4 of 75 and CIDA, and should be enjoined. 6. Defendants have within the District’s Medicaid waiver system all the services necessary to safely and effectively serve Markelle in the community. Supporting individuals with intellectual and developmental disabilities (“I/DD”) who have committed criminal offenses, including sexual offenses, is common practice throughout the United States. 3 People in Markelle’s situation can live successfully in the community without presenting a harm to others, provided they receive appropriate training, treatment, and supervision, they can learn appropriate sexual behavior. In light of the development and implementation of safe and successful community-based treatment, services models and evidence-based practices, states across the country serve people with disabilities in the community. Defendants have available services sufficient to safely serve individuals with I/DD and complex behavioral needs, including problematic sexual behaviors. In addition to being a violation of state and federal law, Defendants’ failure to meet its obligation to serve Markelle in this case flies in the face of decades of evidence-based research and successful practice in the field of disability services, finding that people with I/DD in institutional settings can be safely served in the community, even where they may present problematic behaviors. (See Thaler Decl. ¶¶ 3-4, 17, 19-20, 22, 26, 31; Declaration of Robert L. Denney ¶¶ 8, 10 [hereinafter Denney Decl.] (attached hereto as Exhibit 3); Nuss Decl. ¶¶ 16, 21.) 7. On October 3, 2014, when Markelle was twenty years old, he was charged in 3 For instance, in Pennsylvania alone, over 300 individuals with I/DD and a history of having committed a sexual offense are being successfully supported by provider agencies in the community throughout the Commonwealth. (Declaration of Nancy Thaler ¶ 26 [hereinafter Thaler Decl.] (attached hereto as Exhibit 2).) 4 Case 1:18-cv-01034-BAH Document 29-1 Filed 10/26/18 Page 5 of 75 Superior Court for the District of Columbia with sexual offenses involving children who lived in his household. Almost immediately, it became clear that Markelle, who had previously been found incompetent in a juvenile proceeding, had an intellectual disability and likely was not competent for trial. On October 16, 2014, the U.S. Attorney’s Office simultaneously dismissed the Superior Court prosecution and initiated new charges in federal district court, styling the allegations to allege a federal offense, production of child pornography. Upon information and belief, the U.S. Attorney’s Office later acknowledged that the move to federal court was made specifically in order to avoid a Jackson finding4 being entered in D.C. Superior Court that would trigger the District of Columbia civil commitment process. 8. In federal court, as in Superior Court, it was quickly recognized that Markelle is an individual with intellectual disability and a series of evaluations ensued to determine his competency to stand trial. While those evaluations were pending, Markelle, through his counsel, applied to DDS for a determination of his eligibility for supervised disability-related services 4 A Jackson finding is a reference to a court’s finding, pursuant to Jackson v. Indiana, 406 U.S. 715 (1972), that a defendant incompetent to stand trial, and unlikely to become competent, cannot be confined indefinitely. In Jackson, the Supreme Court held that a defendant committed solely on the basis of incompetency “cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.” Id. at 738. Prior to this ruling, virtually all states allowed the automatic and indefinite commitment of incompetent defendants. The Court ruled that holding defendant Jackson (who had intellectual disability and was deaf) to a “more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses” deprived him of equal protection. Id. at 716. The Court also concluded that, “[a]t the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” Id.

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