RULING ON MOTION TO DISMISS

SHELLY D. DICK, District Judge.

Before the Court is Defendants' Motion to Dismiss Plaintiffs' Class Action Complaint brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the grounds of Eleventh Amendment Immunity and mootness, and Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim.1 Plaintiffs have filed an opposition.2 Defendants' mootness and sovereign immunity defenses present threshold challenges which the Court must address before determining the propriety of class certification.3

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, on behalf of themselves and others similarly situated, bring a civil rights action under 42 U.S.C. § 1983 and federal disability statutes against the Louisiana Department of Health and Hospitals ("DHH"), and Kathy Kliebert, Secretary of DHH, in her official capacity. Plaintiffs are criminal offenders with mental illnesses who have been adjudicated "Not Guilty by Reason of Insanity" ("NGRI") and ordered committed to East Louisiana Mental Health System ("ELMHS") pursuant to Article 657 of the Louisiana Code of Criminal Procedure.4 Plaintiffs allege that after having been adjudicated NGRI and ordered committed to ELMHS they remain incarcerated in Louisiana correctional facilities for months while awaiting bed space at ELMHS. Plaintiffs allege that their continued incarceration under these circumstances violates the Fourteenth Amendment5; Title II of the Americans with Disabilities Act ("ADA")6; and Section 504 of the Rehabilitation Act ("RA")7. Plaintiffs seek injunctive and declaratory relief only and move to certify a class action on behalf of:

II. LEGAL STANDARD

A. Rule 12(b)(1)

A 12(b)(1) motion to dismiss is analyzed under the same rubric as a 12(b)(6) motion to dismiss. The Court must accept all well pleaded facts in the Complaint as true and view them in the light most favorable to the plaintiff. While a 12(b)(6) motion is determined solely on the face of the pleadings, for purposes of a 12(b)(1) motion, the Court may look at evidence in the record.9 A motion to dismiss for lack of subject matter jurisdiction should only be granted if it appears that the plaintiff "cannot prove any set of facts" in support of the plaintiff's claims to relief.10 In ascertaining the likelihood of whether the plaintiff can "prove any set of facts" in support of his/her claims for relief, the Court may evaluate the Complaint, supplemented by undisputed facts, and the Court's resolution of disputed facts.11 Furthermore, "[w]hen a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits."12

B. Eleventh Amendment

The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or subjects of any Foreign State."13 Where there is Eleventh Amendment immunity from suit, federal courts lack subject matter jurisdiction.14 Although not expressed by its terms, Eleventh Amendment Immunity is triggered when a citizen brings a suit against his/her own state in federal court.15 In this case, the Plaintiffs have named a state entity, DHH, and a state official, Kathy Kliebert, secretary of DHH in her official capacity, as Defendants.

The Eleventh Amendment bars suit against State entities where the entity is an arm of the State such that the suit is in reality a suit against the State itself.16 The Fifth Circuit has held that DHH is an arm of the State and is, therefore, entitled to Eleventh Amendment Immunity.17 Likewise, "[t]he Eleventh Amendment bars a suit against state officials when `the state is the real, substantial party in interest'."18 "The general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter."19 "A suit against state officials that is in fact a suit against a State is barred regardless of whether it seeks damages or injunctive relief."20 Accordingly, in this case, the Court starts with the premise that the Eleventh Amendment bars claims against DHH and its Secretary, unless immunity has been waived by the State,21 constitutionally abrogated by Congress,22 or immunity is lacking under the Ex Parte Young23 doctrine.

III. ANALYSIS

A. Secretary of DHH's Sovereign Immunity Defense

The Supreme Court's holding in Ex Parte Young recognized an important exception to the general rule of sovereign immunity for state officials. Ex Parte Young holds that the Eleventh Amendment does not prohibit a federal court from issuing an injunction against a state official to enjoin unconstitutional acts rooted in federal authority.24 In this case, the Plaintiffs allege that Kathy Kliebert, as the Secretary of DHH,25 acting in her official capacity, has engaged in an ongoing violation of federal constitutional law by depriving persons with mental illness, who have been adjudged NGRI, to remain confined in correctional facilities as opposed to mental health facilities to which they have been ordered committed.26 Plaintiffs allege that this continuous incarceration amounts to a deprivation of NGRI detainees' liberty interests guaranteed under the Fourteenth Amendment. The Plaintiffs seek declaratory and prospective injunctive relief only against the Secretary of DHH, whom the Plaintiffs allege has acted unconstitutionally. Therefore, the Ex Parte Young exception to the Eleventh Amendment immunity applies and this Court has jurisdiction over the Plaintiffs' 42 U.S.C. 1983 claims against Kathy Kliebert, Secretary of DHH, in her official capacity.

The Plaintiffs' ADA Title II and RA §504 claims for injunctive against DHH Secretary Kliebert can also proceed. In McCarthy ex rel. Travis v. Hawkins27 the Fifth Circuit rejected the argument Ex Parte Young applies only to cases against state officials that involve the violation of a federal right, not merely a violation of federal law. In rejecting this argument, the Fifth Circuit drew upon the Supreme Court's guidance in Verizon Maryland, Inc. v. Public Service Commission28 that "the inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim."29 On the contrary, the Court explained that "[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a `straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'"30 Accordingly, the Court has jurisdiction over the Plaintiff's ongoing constitutional claims and ADA Title II and R.A. §504 claims against Kathy Kliebert, in her official capacity as Secretary of DHH. The Defendants' Rule 12(b)(1) Motion to Dismiss the Plaintiffs' claims against Kathy Kliebert in her official capacity on the defense of sovereign immunity shall be DENIED.

B. DHH's Sovereign Immunity Defense

The Ex Parte Young exception to sovereign immunity applies only to State officials acting in their official capacities and does not apply to State agencies.31 Thus, even though the Court has Ex Parte Young jurisdiction over claims for declaratory and injunctive relief as to Kathy Kliebert, Secretary of DHH, in her official capacity, the Court lacks jurisdiction to hear claims brought directly against DHH32 unless the State has waived its sovereign immunity for those claims or Congress has clearly abrogated the State's sovereign immunity as to those claims.33

To determine whether Congress has abrogated the State's Eleventh Amendment Immunity, the United States Supreme Court instructs that two predicate questions must be answered; first, whether Congress expressed an unequivocal intent to abrogate State immunity and, if so, second, whether Congress "acted pursuant to a valid grant of Constitutional authority."34

The ADA and the RA contain unequivocal statements of intent to abrogate.35 Thus the question becomes whether Congress' abrogation of state sovereign immunity is a valid exercise of its power under Section 5 of the Fourteenth Amendment to enforce the substantive guarantees of that amendment.36

In Board of Trustees of Univ. of Ala. v. Garrett, the U.S. Supreme Court held that abrogation of state sovereignty with respect to the enforcement of Title I of the ADA was not a valid exercise of Congress' §5 power to enforce the Fourteenth Amendment's prohibition on unconstitutional disability discrimination in public employment.37 "Garrett left open the question whether Title II is a valid exercise of Congress' §5 enforcement power."38

Addressing sovereign immunity in the context of Title II of the ADA, in Tennessee v. Lane the U.S. Supreme Court held that the abrogation of sovereign immunity for purposes of Title II is a valid exercise of Congressional power, to the extent that "`it applies to the class of cases implicating the fundamental right of access to the courts."39 The Court expressly did not consider whether abrogation under Title II extended to other rights considered to be fundamental under the Constitution.40

The unanswered question is whether the principle of Lane extends to cases involving other fundamental rights, such as the liberty interests implicated in this case. In U.S. v. Georgia, the Supreme Court addressed "whether Title II of the ADA validly abrogates state sovereign immunity with respect to the claims" of a paraplegic wheel chair confined prisoner challenging the conditions of his confinement.41 The Court declined to hold that Title II of the ADA operates a wholesale abrogation of state sovereignty. Finding that the Plaintiffs ADA Title II claims were "based, at least in large part, on conduct that independently violated the provisions of § 1 of the Fourteenth Amendment"42, the Court held that "Title II validly abrogates state sovereign immunity"43 where the cause of action arises from "conduct that actually violates the Fourteenth Amendment."44 The scope of Title II's abrogation of state sovereignty remains unclear.

Likewise, the Fifth Circuit has "yet to decide whether the principle of Lane extends to cases involving other rights."45 For the reasons stated by the Fifth Circuit in Pace v Bogalusa City School Bd.46 and Bennett-Nelson v. Louisiana Board of Regents47 this Court need not address the parameters or scope of Title II's abrogation of state sovereignty.

The Fifth Circuit has held that the state's receipt of federal funds is a knowing and voluntary waiver of its sovereign immunity as to claims arising under § 504 of the RA.48 The Complaint in this case alleges that "DHH receives federal financial assistance and is a public entity as defined by 42 USC Section 12131(1)(B)."49 Defendants do not challenge this allegation. Hence, considering the pleadings the Court concludes that the State has waived it sovereign immunity from suit under §504 of the RA. The Court further finds that the rights and remedies invoked in this case under Title II of the ADA and Section 504 of the RA are virtually identical.50 Since Louisiana has validly waived its sovereign immunity from actions under §504 of the RA, whether or not Congress has constitutionally abrogated state sovereignty under Title II of the ADA under the circumstances in this case need not be reached. The Court shall has jurisdiction over Plaintiffs' claims arising §504 of the RA, which for all intents and purposes is identical to the plaintiffs' claims under Title II of the R.A.

As for Plaintiffs' remaining claims against DHH, there has been no abrogation of the State's sovereign immunity from suit in federal court for claims arising under 42 U.S.C. §1983. The United States Supreme Court has expressly held "[t]hat Congress, in passing §1983, had no intention to disturb the States' Eleventh Amendment immunity."51 Likewise there has been no waiver by the State of its sovereign immunity for the §1983 claims. Hence while the Court has jurisdiction over the ADA Title II and §504 RA claims, the Court lacks subject matter jurisdiction over the Plaintiffs' remaining 42 U.S.C. §1983 claims against DHH. Therefore, Plaintiffs' 42 U.S.C. § 1983 claims gainst DHH shall be dismissed without prejudice on the grounds of sovereign immunity.

C. Mootness

Defendants urge the case is not justiciable owing to mootness. Defendants contend that, because the named Plaintiffs have now been placed in a mental health facility, the actual controversy has been eliminated rendering the action moot. Since the mootness challenge, however, a similarly situated Plaintiff, Tyrin Perkins, who remains incarcerated, has intervened.52 The Court finds that the present situation gives rise to an important exception to the mootness doctrine. This case remains justiciable even though the complained of conduct no longer directly affects the original named Plaintiffs, because the offending conduct is capable of repetition while at the same time evading review.53

Owing to the temporary nature of NGRI individuals being waitlisted for admission to a mental health facility and the possibility that release from incarceration and assignment to a mental health facility may occur before a Plaintiff's claims are fully adjudicated, coupled with the fact that there are continuous additions the class of persons who are adjudicated NGRI and placed on the waitlist for mental health hospital beds, this case presents a classic example of the mootness exception for claims which are capable of repetition, yet evade review. Accordingly, the Defendants' Rule 12(b)(1) Motion to Dismiss on the grounds of mootness shall be DENIED.

D. Rule 12(b)(6) Motion to Dismiss

Defendants contend that Plaintiffs have failed to allege facts showing discrimination on the part of Kliebert or DHH, or on-going violations of federal law. Defendants' argue that because article 654 of the Louisiana Code of Criminal Conduct does not specify a time period in which insanity acquittees are to be transferred to a mental institution, a claim of intentional discrimination is implausible and must be dismissed. Defendants further argue that they have not intentionally denied Plaintiffs any rights due to their disabilities and counter that the plaintiffs have been provided with all necessary accommodations. Defendants argue that "at all times herein...[plaintiffs] received a bed to sleep in, clothes, meals, and more importantly, monitoring and jail-based treatment by the District Forensic Coordinators while awaiting placement."54

At the motion to dismiss stage the Court must accept the well-plead factual allegations as true, Defendants' simple denial of or disagreement with the factual allegations as plead carries no weight in the Court's determination of whether Plaintiffs have stated a claim.55 The Court views the Complaints in the light most favorable to Plaintiffs, resolving all doubts in their favor.56 If the facts as plead allow the Court to conclude that it Plaintiff's claims for relief are "plausible" the Motion must be denied.57

After reviewing the Complaints, the Court finds that Plaintiffs have alleged sufficient facts to support their claims at this stage. The Supreme Court has recognized that unique considerations underlie the commitment of an insanity acquittee, including that, persons deemed NGRI may not be punished because they have not been convicted of a crime.58 Recently, the District Court for the Eastern District of Louisiana noted how "state-imposed imprisonment without conviction is a `massive curtailment of individual liberty.'"59 Plaintiffs have alleged that as insanity acquittees deemed NGRI who have not been convicted of any crimes, Defendants' policies, practices, and procedures which result in the Plaintiffs' continued confinement in Louisiana correctional facilities while awaiting placement at ELMHS violates their substantive due process rights under the Fourteenth Amendment.60 They further contend that Defendants' actions amount to deliberate indifference of the Plaintiffs' constitutional liberty interests to be free from unlawful imprisonment.61 After reviewing the Complaints and accepting all well-plead facts as true, the Court finds that Plaintiffs have sufficiently pled a violation of their substantive due process rights as guaranteed by the Fourteenth Amendment.

The Fifth Circuit has also explained that "the RA and the ADA are judged under the same legal standards, and the same remedies are available under both acts."62 For purposes of Defendants' motion to dismiss Plaintiffs' ADA and RA claims, Plaintiffs must have pled facts of the following three elements: (1) Plaintiffs are qualified individuals under the ADA; (2) Plaintiffs are being excluded from participation in, or, is being denied benefits, services, programs, or other activities for which a public entity is responsible or is otherwise being discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination is by reason of their disability.63

The Court finds that Plaintiffs have pled that they are qualified individuals due to their mental illness. Plaintiffs have further pled that in spite of their mental disabilities, they are being denied access to appropriate mental health treatment while incarcerated in correctional facilities, because such facilities cannot provide adequate mental health care to meet their needs. They have further pled that they are being denied the mental health care they should be receiving at ELMHS. In support of the third element, Plaintiffs have alleged that the Defendants policies, procedures and actions which result in continued incarceration operate to discriminate against them because of their disability.64 The Court finds that Plaintiffs have satisfactorily pled enough facts "to state a claim to relief that is plausible on its face" arising under the ADA and RA. Accordingly, Defendants' Rule 12(b)(6) motion shall be denied.

IV. CONCLUSION

For the foregoing reasons, the Defendants' Motion to Dismiss Plaintiffs' Class Action Complaint brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure is hereby GRANTED IN PART, and DENIED IN PART.

Defendants' Motion is GRANTED as to Plaintiffs' 42 U.S.C. § 1983 claims against DHH. Plaintiffs' Fourteenth Amendment claims against DHH shall be dismissed without prejudice on the grounds of sovereign immunity. Defendants' Rule 12(b)(1) Motions are is DENIED in all remaining respects.

Defendant's Rule 12(b)(6) Motion to Dismiss is DENIED.