RULING ON MOTION TO DISMISS2

SHELLY D. DICK, District Judge.

Before the Court is Defendants' Motion to Dismiss Plaintiffs' Complaint brought on various Rule 12(b) grounds.3 Plaintiffs have filed an Opposition.4 For the following reasons, the Court denies the Defendants' Motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit was filed by Plaintiff, Monica Jackson, a pretrial criminal detainee who has been judicially determined incompetent to stand trial, on behalf of herself, and by associational Plaintiff, the Advocacy Center, on behalf of all such pretrial detainees who have not been promptly transferred to the Eastern Louisiana Mental Health System ("ELMHS" or "Facility"). Plaintiffs contend that Defendants, Secretary of the Louisiana Department of Health and Hospitals Rebekah Gee and the Louisiana Department of Health and Hospitals ("DHH"), have refused to accept physical custody of pretrial detainees who have been found incompetent to stand trial, resulting in their unlawful confinement and delayed access to restorative treatment in violation of their due process rights under the Fourteenth Amendment, Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. §794.

Defendants deny Plaintiffs' claims asserting that, pursuant to Louisiana law, the administrator of ELMHS is statutorily required to refuse admission to any person to ELMHS, including pretrial criminal defendants judicially found incompetent to stand trial, if admission would result in overcrowding or the Facility would be unable to provide appropriate care or treatment for the individual.5 Defendants claim that, in such instances, "the Incompetent individual will be provided the necessary restorative treatment at the facility where he resides."6 It is the Defendants' position that, because these pretrial detainees are able to receive treatment while confined in the prison facility awaiting transfer to ELMHS, the Plaintiffs have not been discriminated against or deprived of their due process rights. Defendants further challenge the Plaintiffs' ability to assert their various claims considering similar litigation was previously litigated and resolved in the Eastern District of Louisiana.

Defendants now seek dismissal of Plaintiffs' claims for lack of associational standing, res judicata and collateral estoppel, failure to state a claim, and failure to join an indispensable party. Defendants also seek dismissal under the doctrine of forum non conveniens. Plaintiffs oppose the Defendants' motion.

II. LAW AND ANALYSIS

A. Rule 12(b)(1)

Defendants argue that the Advocacy Center lacks associational standing to pursue claims on behalf of mentally incompetent persons who are incarcerated. Defendants' challenge is to the Court's subject matter jurisdiction which is governed by Rule 12(b)(1) of the Federal Rules of Civil Procedure. A Rule 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.7 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.8 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.9 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.10 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."11

When an organization, such as the Advocacy Center, brings a lawsuit on behalf of its members, it must establish associational standing by showing that: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit."12 Defendants argue that the Advocacy Center cannot satisfy the first prong because it has not shown that the incompetent individuals are members of the Center. Instead, Defendants argue that they are constituents, most of whom "are unable to participate in and guide the organization's efforts."13 The Court disagrees.

Here, the Advocacy Center has alleged that it was established under the Protection and Advocacy for Individuals with Mental Illness Act ("PAIMI") 42 U.S.C. §§ 10801, et seq.14 By statute, the Advocacy Center must have an "advisory council" of which "at least 60 percent" of the members must "be comprised of individuals who have received or are receiving mental health services or who are family members of such individuals."15 The PAIMI statute further requires that the Advocacy Center have a "governing authority" with a multi-member governing board that consists of "members . . . who broadly represent or are knowledgeable about the needs of the clients served by the system."16 This category "shall be construed to include individuals who have received or are receiving mental health services and family members of such individuals."17 In the Complaint, the Advocacy Center has alleged that 90% of its advisory council is comprised of members who have received or are receiving mental health services, or are family members of such persons, and that it has a governing authority.18 As Judge Vance found in Advocacy Center for Elderly and Disabled v. Louisiana when faced with a similar challenge, "PAIMI organizations are required by federal statute to give its constituents a central role in its management and activities."19 Accordingly, the Court finds that the Advocacy Center's constituents have standing to sue in their own right, and Defendants' challenge is hereby rejected.

B. Forum Non Conveniens

Defendants argue that Plaintiffs' lawsuit should be dismissed under the forum non conveniens doctrine because the Eastern District of Louisiana would be a more appropriate venue. The "doctrine of forum non conveniens proceed[s] from [the] premise [that] . . . [i]n rare circumstances, federal courts can relinquish their jurisdiction in favor of another forum."20 This doctrine allows "a court to decline to exercise its jurisdiction if the moving party establishes that the convenience of the parties and the court and the interests of justice indicate that the case should be tried in another forum."21 "The forum non conveniens determination is committed to the sound discretion of the trial court."22 In conducting its analysis, the court must first determine "whether an available and adequate . . . forum exists."23 In making this determination, generally a court will consider: "amenability of the defendant to service of process and availability of an adequate remedy in the alternative forum".24 If the Court finds that an available and adequate forum exists, then the Court weighs "certain public and private factors" to determine whether dismissal is warranted.25 "The plaintiff's choice of forum is entitled to great weight in the balancing of factors and, unless the balance strongly favors the defendants, the plaintiff's choice of forum should not be overturned."26

The private interest factors, which relate primarily to the convenience of the litigants, are: "(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive."27 The public interest factors are: "(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized controversies decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws or the application of foreign law."28 The defendant bears the burden of persuading the court that the suit should be dismissed on forum non conveniens grounds.29

While the Eastern District of Louisiana would be an adequate and available forum to litigate this case, the Court finds that the balance of private and public factors weigh against dismissal. Although the Plaintiffs are located in New Orleans, the Defendants, defense counsel, and potential DHH and ELMHS witnesses are located within the Middle District. This Court also has great familiarity with Cooper v. Kliebert, the lead case in this consolidated action, and the facts and the law that will govern the case. Further, as expressed in a recent telephone conference with the Parties, the Court is ready to proceed to trial on August 1, 2016, which defeats any concerns of administrative delays due to Court congestion. Accordingly, the Court finds that the Defendants have failed to carry their burden and their Motion seeking dismissal on forum non conveniens grounds shall be denied.

C. Res Judicata as to the Advocacy Center

Defendants argue that the Advocacy Center is barred from bringing this lawsuit because the claims in this Complaint30 were previously litigated six years ago in the Eastern District of Louisiana in Advocacy Center for the Elderly and Disabled v. Louisiana Department of Health and Hospitals ("AC I").31 In AC I, pretrial detainees who had been found incompetent to stand trial and had been remanded to Feliciana Forensic Facility claimed that the defendants had violated their Fourteenth Amendment due process rights through their continued confinement in parish jails and failure to timely admit them to Feliciana Forensic Facility for restorative treatment. TheAC Iplaintiffs also alleged that they were receiving inadequate mental health treatment in the parish prisons while awaiting their transfer. District Judge Vance entered a preliminary injunction Order on August 9, 2010.32 Subsequently, on April 12, 2011, the parties entered into a Consent Decree whereby defendants agreed that, by July 10, 2011, each incompetent pretrial detainee would be admitted to the state hospital within thirty days of the order for inpatient treatment.33 For those incompetent pretrial detainees with emergency medical needs, they would be admitted within two working days.34 The Consent Decree was to remain in effect until July 10, 2014, at which time the case could be dismissed, if the defendants substantially complied with the terms.35 On December 8, 2014, Judge Vance found that defendants had substantially complied with the terms of the Consent Decree and dismissed the case with prejudice.36

The "rule of res judicata encompasses two separate but linked preclusive doctrines: (1) true res judicata or claim preclusion and (2) collateral estoppel or issue preclusion."37 Although the Fifth Circuit has generally held that a party cannot predicate a Rule 12(b)(6) motion on res judicata grounds, because it must be pleaded as an affirmative defense,38 "[d]ismissal under Rule 12(b)(6) on res judicata grounds may be appropriate when the elements of res judicata are apparent on the face of the pleadings."39 "Federal law determines the res judicata effect of a prior federal court judgment." Under federal law, res judicata "has four elements: (1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions."40 The Fifth Circuit has adopted the "transactional test" to evaluate the fourth prong.41 Under this test, "the preclusive effect of a prior judgment extends to all rights the original plaintiff had `with respect to all or any part of the transaction, or series of connected transactions, out of which the [original] action arose.'"42 "What constitutes a `transaction' or `series of transactions' is determined by weighing various factors such as `whether the facts are related in time, space, origin, or motivation [;] whether they form a convenient trial unit [;] and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.'"43 The critical issue is "whether the two actions under consideration are based on `the same nucleus of operative facts,' and not `the type of relief requested, substantive theories advanced, or types of rights asserted.'"44

Although the Court finds that the first three elements necessary for res judicata have been satisfied,45 it is the fourth element that defeats Defendants' argument. The nucleus of operative facts in the pending litigation differs from that of ACI. In ACI, the Advocacy Center brought the litigation on behalf of those pretrial detainees on the competency restorative waiting list as of March of 2010.46 The Consent Decree at issue inAC Iaffected all pretrial detainees through December of 2014. In the current lawsuit, the Advocacy Center has sued on behalf of 22 pretrial detainees who were awaiting competency restorative treatment as of October 23, 2015.47 Of those detainees, the longest wait time was 100 days; hence, there would have been no overlap with the Consent Decree in ACI.48 The Advocacy Center is correct in its assertion that Defendants' "course of wrongful conduct" in 2015 forms the basis of this litigation and not their actions in 2010.49 Accordingly, Defendants' Motion seeking dismissal on res judicata grounds shall be denied.

D. Collateral Estoppel as to Plaintiff Monica Jackson

Defendants argue that Plaintiff Jackson is estopped from bringing this lawsuit under the doctrine of collateral estoppel or issue preclusion. The doctrine of collateral estoppel "prevents the same parties or their privies from relitigating issues that were litigated and decided in a prior action."50 The requirements of collateral estoppel are: "(1) the identical issue was previously adjudicated; (2) the issue was actually litigated; and (3) the previous determination was necessary to the decision."51 Some cases recognize a fourth factor, "whether there are any special circumstances that make it unfair to apply the doctrine."52

Interestingly, Defendants fail to apprise the Court of the "identical issue" Jackson is estopped from litigating. Aside from making the conclusory argument that "[t]he issue `at stake' for Ms. Jackson is identical to the issue `at stake' for the named plaintiff in the Previous Litigation," the Defendants fall far short from providing any substantive support for their collateral estoppel argument.53 In the Complaint, Jackson has asserted claims on her own behalf as a pretrial detainee who, although she was found to be incompetent to stand trial on October 1, 2015, remained confined for over thirty days in Orleans Parish Jail after being remanded to the state hospital.54 Jackson's issue of unlawful detention and delayed access to restorative treatment had not yet occurred at the time AC Iwas filed, while AC I was pending under the Consent Decree, or at the time AC I was dismissed. Accordingly, the Court finds that Defendants' Motion seeking dismissal based on the doctrine of collateral estoppel shall be denied.

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

Defendants contend that Plaintiffs have failed to allege sufficient facts to state a claim arising under the due process clause of the Fourteenth Amendment, the ADA, and the RA. Defendants argue that they have not discriminated against any pretrial detainees found incompetent to stand trial. Rather, their delay in placing these pretrial detainees at ELMHS is necessary to prevent overcrowding and to ensure that each individual "receives the appropriate care" while temporarily detained awaiting placement at ELMHS.55 Defendants assert that "DHH is not punishing Incompetent individuals and that Plaintiffs receive monitoring and treatment through the Community Forensic System while [a]waiting placement."56

At the motion to dismiss stage the Court must accept the well-plead factual allegations as true. Therefore, the 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.57 The Court views the Complaint in the light most favorable to Plaintiffs, resolving all doubts in their favor.58 If the facts as plead allow the Court to conclude that if Plaintiff's claims for relief are "plausible" the Motion must be denied.59

After reviewing the Complaint, the Court finds that Plaintiffs have alleged sufficient facts to provide notice of their claims and to support their claims at this stage. Federal Courts around the country have repeatedly recognized that "an individual has a liberty interest in being free from incarceration absent a criminal conviction."60 In Oregon Advocacy Center v. Mink, the Ninth Circuit further recognized that "[i]ncapacitated criminal defendants have liberty interests in freedom from incarceration and in restorative treatment."61 Plaintiffs have alleged that, as pretrial detainees who have been found incompetent to stand trial and who have not been convicted of any crimes, their substantive due process rights guaranteed by the Fourteenth Amendment have been violated by Defendants' policies, practices, and procedures. Specifically, Defendants' practices have caused Plaintiffs to be unlawfully incarcerated for longer than the reasonable period of time necessary to determine their competency and have delayed their access to restorative treatment. After reviewing the Complaint 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, are 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 and that DHH is both federally funded and a public entity.64 Plaintiffs have further pled that, in spite of their mental incompetency, they are being denied timely access to appropriate mental health treatment while incarcerated in parish jails, because such facilities are unable to provide the restorative mental health care necessary to meet their needs.65 They have further alleged that Defendants have refused and continue to refuse the prompt transfer of Pretrial Detainees who have been found incompetent to stand trial from parish jails to ELMHS, which deprives Plaintiffs of their right to restorative treatment.66 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.

F. Rule 12(b)(7)

Defendants argue that Plaintiffs have failed to join an indispensable party to this lawsuit and, therefore, Plaintiffs' claims should be dismissed. In support of their position, language in both the ADA and the RA is similar, and the remedies, procedures and rights available under the RA are also available under the ADA."(internal citations omitted)). Defendants simply contend that they "have no control over the actions of those individuals and entities enforcing" the mental incapacity statutes.67 Pursuant to Rule 19 of the Federal Rules of Civil Procedure, "a person must be joined as a party when (1) the person's absence will prevent the court from `accord[ing] complete relief among existing parties,' or (2) the person has an interest in the subject of the case, and disposing of it in the person's absence will either `impair or impede the person's ability to protect the interest,' or create a risk of multiple or inconsistent obligations for an existing party because of the interest."68 While Rule 12(b)(7) permits dismissal for failure to join a necessary party under Rule 19, "courts are reluctant to grant motions to dismiss of this type."69 A "Rule 12(b)(7) motion will not be granted because of a vague possibility that persons who are not parties may have an interest in the action. In general, dismissal is warranted only when the defect is serious and cannot be cured."70 The party seeking a Rule 12(b)(7) dismissal bears the initial burden of establishing the necessity of the missing party.71 However, when "an initial appraisal of the facts indicates that a possibly necessary party is absent, the burden of disputing this initial appraisal falls on the party who opposes joinder."72 The Court finds that Defendants have failed to satisfy their burden of demonstrating that dismissal on Rule 12(b)(7) grounds is warranted. On the most fundamental level, Defendants have failed to identify "who" the indispensable party is. Accordingly, Defendants' Motion to dismiss on Rule 12(b)(7) grounds is denied.

III. CONCLUSION

For the foregoing reasons, the Defendants' Motion to Dismiss Plaintiffs' Complaint73 is hereby DENIED.