George v. Louisiana Department of Public Safety & Corrections (272 F. Supp. 3d 855, 2017)

Citations

272 F. Supp. 3d 855

Full opinion text

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

JUDGE JOHN.W. deGRAVELLES

TABLE OF CONTENTS

OVERVIEW.. .859

A. INTRODUCTION... 859

B. PROCEDURAL HISTORY... 859

C. SUMMARY OF CONTENTIONS OF PARTIES.. .860

D. ISSUES BEFORE THE COURT... 863

E. BACKGROUND AND PARTIES’ FACTUAL ARGUMENTS... 863

F. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS’ OVERSIGHT RESPONSIBILITIES FOR PERSONS ON CONDITIONAL RE: LEASE...865

G. LOUISIANA DEPARTMENT. OF HEALTH’S OVERSIGHT RESPONSIBILITIES FOR PERSONS ON CONDITIONAL RELEASE.,, 865

H. TRUSSELL GEORGE’S ARREST AND INCARCERATION IN JULY 2013...866

I. EVENTS FOLLOWING AUGUST 23, 2013 RELEASE FROM EBRPP...870

J. TRUSSELL GEORGE’S DECEMBER 2013 TO DECEMBER 2014 CONDITIONAL RELEASE... 871

K. TRUSSELL GEORGE’S ARREST AND INCARCERATION IN 2014...871

FINDINGS OF FACT.. ,873

A. JULY 29, 2013 ARREST AND INCARCERATION.. .874

B. ADEQUACY OF MEDICAL CARE AT EBRPP.. .877

C. JULY 2014 ARREST AND INCARCERATION.. .878

D. POLICY, PROCEDURE OR PRACTICE, VEL NON.. -. 879 '

E. DISCRETE SUBSTANTIVE DUE PROCESS VIOLATIONS TO GEORGE, VEL NON... 880

CONCLUSIONS OF LAW.. .880

A. JURISDICTION AND VENUE...880

B. PARTIES... 881

C. ISSUES BEFORE THE COURT... 881

D. STATUTORY RIGHTS OF THOSE FOUND NOT GUILTY BY REASON OF INSANITY.. .881

E. SUBSTANTIVE DUE PROCESS RIGHTS OF NGRI ACQUITTEES AND STANDARD FOR APPLYING THEM...883

F. APPLICATION OF LAW TO FACTS OF CASE... 892

G. EXISTENCE AND. CONSTITUTIONALITY OF ALLEGED POLICY, PRACTICE, AND PROCEDURE... 892

H. ARREST AND INCARCERATION FOR VIOLATIONS OF CONDITIONS OF RELEASE WHEN NO CRIME WAS COMMITTED.. .893

I. PLAINTIFF’S CLAIMS SEEKING DECLARATORY AND INJUNCTIVE RELIEF UNDER THE ADA AND SECTION 504... 896

CONCLUSION.. .898

OVERVIEW

A. INTRODUCTION

1. Plaintiff Trussell George (“Plaintiff’ or “George”) brings this action by and through his guardian ad litem Letetica Walker. (Mot. to Appoint a Guardian Ad Litem, Doc. 58 at 1; and Order, Doc. 63 at 1.) George is a person with a mental illness, who, on September 25, 2008, was found Not Guilty by Reason of Insanity (“NGRI”) of possession of a firearm by a known felon. (Order, Pl.’s Trial Ex. 1 at TG0000Ó1.) On December 15, 2008, he was granted a Judgment of Supervised Probation and was conditionally released. (Id, See also Pl.’s Trial Exs. 4 at TG000005, '6 at TG000007, 24 at 1, ¶ 2.)

2. While on conditional release, George was arrested and placed in the East Baton Rouge Parish Prison (“EBRPP”) on two separate occasions, July 29, 2013 and July 1,2014. .

3. Plaintiffs claims against various defendants (“Defendants”) are for declaratory and prospective injunctive relief under 42 U.S.C. Section 1983, 29 U.S.C. Section 794(a) and 42 U.S.C. Section 12Í32 pursuant to 28 U.S.C. Section 2202 and Federal Rule of Civil Procedure 65. (PL’s Second Amended Complaint, Doc. 42 at 18-23.) He claims that the arrests and detentions were wrongful and violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution and'the above statutes. (PL’s Request for Finding of Fact and Rulings of . Law, Doc. 151 at 1-2,32-33.) . ■

4. For- the" reasons which -follow, ‘the requested relief is denied.'

B. PROCEDURAL HISTORY

5. By way of a complaint (Complaint, Doc. 1) and two amended complaints (PL’s First Amended Complaint, Doc. 24 and Doc. 42), Plaintiff sued two agencies of the State of Louisiana, the Louisiana Department of Public Safety and Corrections (“LDPSC”) and the Louisiana Department of Health (“LDH”), along with seven individuals in their official capacities: James M. LeBlanc (“LeBlanc”), Rebekah E. Gee (“Gee”), Whalen Gibbs (“Gibbs”), Gerald Starks (“Starks”), Scott Tubbs (“Tubbs”), Eric Brady (“Brady”) and Charles Vos-burg (“Vosburg”), (collectively, “Defendants”).

6. The suit originally asked for compensatory and punitive damages as well as declaratory and injunctive relief under 42 U.S.C. Section Í983; 29 U.S.C. Section 794(a), Section 504 of the Rehabilitation Act of 1973 (“Section 504” or the “RA”); and 42 U.S.C. Section 12132, Title II of the Americans with Disabilities Act of 1990 (“ADA”). However, Plaintiffs claims against Gibbs, Starks, Vosburg, Brady and Tubbs in their individual capacities were dismissed on June 25, 2016, (Mot. to Voluntarily Dismiss Claims for Damages Against Defs.’ [sic] Whalen Gibbs, Geral [sic] Starks, Charles Vosburg, Eric Brady, and Scott Tubbs in their Individual Capacities, Docs. 129 at 1; Minute Entry, Doc. 138 at 2), leaving only the official capacity claims against all Defendants. (Trial Tr. vol. 1, Doc. 148 at 26:17-27:19.)

7. Motions for summary judgment were filed by both Plaintiff (Pis.’ Mot. For Partial Summ. J., Doc. 76 at 3.) and Defendants (Defs.’ Mot. For Summ. J., Doc. 74 at 4,) and both were denied. (Order, Doc. 112 at 1; Order and Ruling on Mots. For Summ. J., Doc. 124 at 30.) As a part of the rulings, the Court found that two of the involved statutes, La. Code Crim. Proc. arts. 658 and 899, were facially constitutional but that there were fact questions precluding summary judgment. (Doc. 124 at 3, 22-26.)

8. The Court also found there were questions of fact which needed to be resolved in order to determine George’s claims arising under the ADA and Section 504. (Id at 28-30.)

9. On June 27 through June 29, 2016, the case was tried simultaneously to a jury and the Court. (Minute Entry, Doc. 138-139, in globo; Minute Entry, Doc. 145, in globo; Trial Tr. vol. 1, Doc. 148, in globo; Trial Tr. vol. 2, Doc. 149, in globo; and Trial Tr. vol. 3, Doc. 150, in globo.) At the conclusion of the trial, that portion of the case tried to the jury was submitted to it for decision. The jury rendered a verdict for LDPSC and LDH on the claims arising under Section 504 and the ADA. (Jury Verdict Form, Doc. 144 at 2-3.) Specifically, the jury found that these defendants had not discriminated against Plaintiff under Section 504 and the ADA and had not failed to make reasonable accommodations to Plaintiffs disabilities under either statute. (Id.)

10. As to that portion of the case tried to the Court, the Court took the matter under advisement and the parties were ordered to file proposed findings of fact and conclusions of law within 30 days of the filing of the trial transcript. (Doc. 150 at 192:22-193:1). The parties’ proposed findings and conclusions were filed as Docs. 151 and 152, respectively. (Pl.’s Request for Finding of Fact and Rulings of Law, Doc. 151 at 51; Defs.’ Proposed Findings of Fact and Conclusions of Law, Doc. 152 at 13.) The Court then requested the parties’ responses to certain specific questions. (Doc. 159.) They responded in Docs. 160 (Plaintiffs Memorandum of Law (“P Mem.”)) and 161 (Defendants’ Answers to Questions Raised (“D Mem.”).) Plaintiffs response also asked the Court to “consider his renewed motion for judgment as a matter of law” with respect to his Section 504 and ADA claims. (Doc. 160 at 23.) The Court heard oral argument on September 20, 2017. (Doc. 164). Following oral argument, Plaintiff filed a Supplemental Memorandum discussing whether a settlement agreement in another case moots or bars his claims (Doc. 167), and Defendants filed a Memorandum in Opposition to Plaintiffs Renewed Motion for Judgment as a Matter of Law (Doc. 168).

C. SUMMARY OF CONTENTIONS OF PARTIES

11. Plaintiff contends that Defendants’ “policies, practices and procedures ... caused him to be arrested and incarcerated on two separate occasions ... [in] violation] of his rights under the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and subjected him to intentional discrimination in violation of Section 504 of the Rehabilitation Act of 1973 .•.. and Title II of the Americans with Disabilities Act of 1990.” (Doc. 42 at 2, ¶ 1.)

12. The “policies, practices and procedures” about which Plaintiff specifically complains are those “which cause persons who have been found NGRI and are able to be released on specified conditions without danger to themselves or others to be confined in correctional facilities for the sole reason that they are alleged to have violated a condition of their release .... ” (Doc. 42 at 19, ¶ 91; 20-21, ¶ 97; 21, ¶ 101; 22, ¶ 106; and 23, ¶ 109.)

■ 13. In addition, Plaintiff claims “Defendants’ actions ... which caused Plaintiff to be confined in a correctional facility for the sole reason that he is alleged to have violated a condition of his release, violate his rights under the Due Process Clause to. the United States Constitution.” (Doc. 42 at 19, ¶ 93.)

14. In his post-trial briefing, Plaintiff broadens this contention. There, Plaintiff contends that “Defendants, acting under color of state law and pursuant to state policies and practices, deprived [Plaintiff] of his liberty by intentionally incarcerating him in the East Baton Rouge Parish prison twice, once in 2013 and again in 2014 (1) for allegedly violating a term of his conditional release, even though there was no allegation, nor probable cause, to-believe, that he had violated any criminal statute; (2) for behavior [ ] that was a clear manifestation of his mental illness; and (3) despite the fact that he clearly needed treatment in a state or private mental health institution.” (Doc. 161 at 1.)

15. In his Second Amended Complaint, Plaintiff asks for both declaratory and in-junctive relief. As to the former, he asks the Court to declare “that Defendants’ policies, practices and procedures of arresting and incarcerating individuals in state correctional facilities who have been placed on conditional discharge following a finding of NGRI, solely because they are alleged to have violated a condition of- their discharge, violate Plaintiffs rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Section 504 of the Rehabilitation Act of 1973, and Title II of the American with Disabilities Act of 1990.” (Doc. 42 at 23-24; see also Doc. 151 at 1-2.)

16. In addition, Plaintiff asks for an injunction “prohibiting Defendants from arresting and incarcerating individuals in state correctional facilities who have been placed on conditional discharge following a finding of NGRI, solely because they are alleged to have violated a condition of their discharge.” (Doc. 42 at 23, ¶ B.)

17. The Court notes that the relief requested in Plaintiffs post-trial briefing is in some respects broader and in others more specific 'than in his Second Amended Complaint, namely requesting an injunction requiring:

a. “So long as Mr. George remains on . conditional discharge, Defendants are prohibited from arresting and incarcerating him in any correctional facility because there is an allegation that he violated a condition of his discharge in the absence of a reasonable belief that he has committed a criminal offense.” (Doc. 151 at 50, ¶ 193.)

,b. “[T]he Defendants [are barred] from arresting and incarcerating [Plaintiff] solely because he has violated a term of his conditional release.” (Id, at 2.)

c. “If Mr. George is alleged to have violated a condition of his discharge, but he- is not charged with a new criminal offense, Defendants’ sole recourse is to have him voluntarily admitted to ELMHS or another a suitable mental health treatment facility pursuant to La. R.S. 28:52, or by emergency certificate to such a facility pursuant to La. R.S. 28:53, with subsequent notice to the court. La. Code Crim. P. art. 658(B)(4).” {Id. at 50, ¶ 194.)

d. “Defendants shall, within 30 days of the date of■ this order, promulgate and implement written policies and procedures that prohibit its agents, employees, contractors, or assigns from arresting and incarcerating any individuals in correctional facilities who have been placed on conditional discharge following a finding of NGRI, solely because they are alleged to have violated a condition of them discharge. Such policies and procedures shall also provide that if an individual who has been placed on conditional discharge following a finding of NGRI is alleged to have violated a condition of his discharge, but that individual has not been charged with a new criminal offense, Defendants’ sole recourse is to have him voluntarily admitted to ELMHS or another • [ ] suitable mental health treatment facility pursuant to La. R.S. 28:52, or by emergency certifi- ■ cate to such a facility pursuant to La. R.S. 28:53, with subsequent notice to the court. La. Code Crim. P. art 658(B)(4).” {Id. at 50-51, ¶ 195.)

18." In Plaintiffs’ briefing, Plaintiff also seems' to raise complaints broader than that- needed to support the relief he requests, namely the length of time George was incarcerated, the quality of care he received while in jail, and the issue of George’s lengthy incarcerations without a hearing. (See, e.g. Doc. 151 at 15-18, ¶¶ 59-68; 37, ¶ 151.) In response to the Court’s inquiry on this issue, counsel for -Plaintiff reassured.the Court that the constitutional issue in this case is limited to the issue of whether the arrest and incarceration of George solely for violations of conditions of release’in the absence of a criminal arrest violated George’s substantive due process rights, and do not include the issues of length of incarceration before release, length of incarceration without or before a hearing, and adequacy.of medical care and other issues. (Doc. 163. at 1.)

19. The Court notes that although the Second Amended Complaint also asks the Court to declaré La. Code Crim. Proc. arts. 658(B) and 899 facially unconstitutional (Doc. 42 at 24), the Court previously denied that challenge. (Doc. 124 át 18-19, 22-24.) Plaintiffs demand for compensato,ry and punitive damages was voluntarily dismissed. (Docs. 129 at 1; 138 at 2; 148 at 26:19-27:4.)

20. Defendants, on the other hand, contend that, at all times, they acted reasonably and within the bounds of the law and that Defendants’ conduct as well as their policies, procedures and practices did not violate the Constitution, Section 504, or the ADA. (Doc. 152 at 10-12, 1189, ¶ 97-99, ¶ 105-106.)

21. According to ■ Defendants, Plaintiffs arrests and incarcerations were provoked by Plaintiffs aggressive, assaultive and dangerous behavior and were supported by probable cause that he was violating or about to violate the terms and conditions of his release. {Id. at 5,10-12.)

22. In addition, Defendants contend that George’s arrests and incarcerations until he could have a hearing and be placed in a suitable psychiatric facility were made because he was a danger to himself and others and thus were justified under both Louisiana’s statutory scheme and the Constitution. {Id. at 10-12.)

23. Defendants urge the Court to find, as the jury did, that there was no discrimination against Plaintiff under either the ADA or Section 504. (Id. at 12, ¶¶ 104— 105.)'

24. Finally, Defendants claim that the facts adduced at trial justify neither a declaratory judgment nor injunction under any law and therefore ask this Court to rejeet all of Plaintiffs remaining claims against Defendants.

D. ISSUES BEFORE THE COURT

25. In order to resolve this dispute, the Court must resolve the following issues:

a. Did Defendants have in place policies, practices, or procedures causing or allowing NGRI acquittees to be arrested and incarcerated at a correctional facility solely for a violation (or anticipated violation) of the conditions of the acquittee’s release, even when no crime had been committed?

b. Were George’s arrests or incarcerations made pursuant to this policy?

c. Even if there were no such policies, procedures or practices, under the specific facts of this case, did George’s arrests and subsequent incarcerations at a correctional facility, solely because of a violation of his conditions of release, in the absence of a criminal arrest, violate his substantive due process rights under the United States Constitution and/or his statutory rights under Section 504 and the ADA?

E. BACKGROUND AND PARTIES’ FACTUAL ARGUMENTS

26. Plaintiff is a person with mental illness who, on September 25, 2008, was found NGRI of a criminal offense, specifically the offense of being a felon in possession of a firearm. (Trial Stipulations, Pl,’s Trial Ex. 24 at 2, Trial Stipulation No. 5; see also Pl.’s Trial Ex. 4 at TG000005; & Pl.’s Trial Ex. 6 at TG000007.)

27. On December 15, 2008, the Nineteenth Judicial District Court in East Baton Rouge, Louisiana, the court with jurisdiction over his criminal charges, ordered that George be conditionally released from inpatient hospitalization and into the community pursuant to La. Code Crim. Proc. art. 657.1; for a period of five years. (PL’s Trial Ex, 1 at TG000001; PL’s Trial Ex. 24 at 1, No. 2.)

28. In: issuing the 2008 conditional release order, the Nineteenth Judicial District Court found that George was not in need of further inpatient treatment, provided that he receive adequate outpatient treatment, supervision, and monitoring. (PL’s Trial Ex. 1 at TG000001; PL’s Trial Ex. 24 at 1, No. 3.)

29. However, this release was conditioned on Plaintiff following certain requirements. The most important of these, for purposes of the issues in this' .case, states, in pertinent part:

Any physically assaultive/aggressive behaviors shall be reported to the District Forensic Coordinator or State Probation Officer. Violations of .this condition may result in immediate return to custody or intensified treatment if recommended by the District Forensic Coordinator or Probation Officer.

(PL’s Trial Ex. 1 at TG000002, 1ÍK; see also PL’s Trial Ex. 24 at 1, No. 3.)

30. The following additional condition was imposed by law:

It shall be a condition of every such probation that the person released shall be recommitted if he becomes dangerous to others or to himself for reasons of his mental illness, substance abuse, or intellectual disability.

La, Code. Crim. Proc. art. 658(A)(2014).

31. From December 2008 -to May 2014, as required under the terms of his conditional release, George resided in group homes operated by Progressive Health Care Providers (PHP), located in Baton Rouge, Louisiana. (Pl.’s Trial Ex. 24 at 2, No. 4; Martinez Test., Doc. 148 at 30:18-31:2, 35:13-36:22, 45:5-15; Hope Test., Doc. 149 at 175:3-11.)

32. “While living in group homes, George was under the joint supervision of the [Division of Probation and Parole (“DPP”) ] of the [LDPSC] and [Community Forensic Services (“CFS”)] of the [LDH] ...” (PL’s Trial Ex. 24 at 2, No. 5.) The details of the respective duties of these two state agencies towards George and other NGRI acquittees is discussed in more detail infra.

33. Although the location of the group home changed after 2008, George resided in a group home setting as required by his conditional release order until May 2014. (Id. at 2, No. 4; Martinez Test., Doc. 148 at 30:18-31:2, 35:13-36:22, 45:5-15; Hope Test., Doc. 149 at 175:3-11.)

34. The group homes in which George was placed were Intermediate Care Facilities for People with Developmental Disabilities (“ICF-DD”). (Martinez Test., Doc. 148 at 29:24-30:13.)

35. Intermediate Care Facilities for People with Developmental Disabilities (“ICFs-DD”) are funded through the Medicaid program and operated by the Defendant LDH. (Hope Test., Doc. 149 at 201:14-24.)

36. Medicaid is a federally mandated program that provides federal financial assistance to states, including Louisiana, so that that they can provide medical care to poor and disabled individuals. See 42 U.S.C. Section 1396b(a), 1396d(b); see generally Curtis v. Taylor, 625 F.2d 645 (5th Cir. 1980).

37. ICFs-DD are one of a number of residential services options operated under the auspices of the LDH. (See La. Rev. Stat. Ann. § 28:451.1-155.2 (2005)). They provide various services for those who reside there.

38. Due to his mental illness, George would occasionally engage in verbal aggression, non-compliance and threatening behavior at the group home and at the day program he attended during the week. His Behavioral Support Plan noted these outbursts, and the threatening episodes would usually occur when his medication was not correct. (Hope Test., Doc. 149 at 188:1-189:21; PL’s Ex. 17, TG000151-53.)

39. Therefore, medication management was a critical service for George. As Ms. Martinez stated:

A. Trussell is very different off medication. When he’s not taking medication, he’s very delusional, very nervous, agitated, untrustworthy, very disheveled, not — not the Trussell that I’ve known for — for the years that I’ve known him.

Q. When you say, ‘delusional,’ can you give me an example of how that would manifest itself?

A. Trussell would talk a lot about god and the devil and Bob and—

Q. Bob?

A. Bob. When — when Trussell — the times that I’ve seen Trussell in what I say is a delusional manner, he talks about Bob. And Bob is a person that is in his life that fights Satan and fights the devil and steals money and tries to kill people.

(Martinez Test., Trial Tr. vol. 1, 34:14-35:3.)

40. Prior to July 2013, Mr. George occasionally-two or three times a year-would be voluntarily admitted (sometimes at his request) to a hospital to have his medication adjusted. (See Martinez Test., Doc. 148 at 35:4-25.)

41. As previously mentioned, while living in group homes, George was under the joint supervision of the DPP of the LDPSC and of the CFS of LDH. (Pl.’s Trial Ex. 24 at 2, No. 5; see also La. Code Crim. Proc. art. 658(B) (2014).)

42. Defendants LDPSC and LDH received federal financial assistance and are public entities as defined by 42 U.S.C. Section 12131(1)(B). (Pl.’s Trial Ex. 24 at 4, No. 16.)

F. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS’ OVERSIGHT RESPONSIBILITIES FOR PERSONS ON CONDITIONAL RELEASE

43. Defendant LDPSC is the state agency responsible for monitoring and providing services to persons placed on conditional release or probation pursuant to La. Code. Crim. Proc. art. 657. DPP-is the division within LDPSC that carries out this duty and which supervised George’s conditional release. (Id. at 2, No. 6.)

44. Specifically, it is the responsibility of the DPP to ensure that the general and special conditions of the ordered supervision are followed for each acquittee (also sometimes referred to as “supervisee”). Its employees make personal contact with the supervisees pursuant to DPP’s policies and when otherwise necessary. The agency is responsible for monitoring supervisees for compliance with conditions, addressing any issues required by the courts, consulting with the forensic coordinator, drug testing supervisees, and arresting supervisees. (Id. at 2, No. 7.)

45. At the time of trial, Defendant Le-Blanc was Secretary of LDPSC. Pursuant to La. R.S. 36:403, he was responsible for the administration, control, and operation of the functions, programs, and- affairs of the LDPSC. (Id. at 3, No. 8.)

46. Defendant Gibbs was the Assistant Secretary of LDPSC and, as such, he directed the operations of DPP. Pursuant to La. R.S. 15:574.11(A), DPP provides for the investigation and supervision of adjudicated adult offenders. Also, pursuant to La. Code Crim. Proc. art. 658(B)(1), the DPP is charged with supervising individuals who have been placed on conditional release following a finding of NGRI. (Id. at 3, No. 9.)

47. Defendant Starks was the Director of the DPP. As such, he assisted in the administration, development, and implementation of policies of the DPP. (Id. at 3, No. 10.)

48. Defendant Tubbs was a Probation and Parole Officer of DPP. (Id. at 3, No. 11; see also Doc. 148 at 64:14-19.)

49. Tubbs specialized in supervising mentally ill people for about seven years at the time of trial, including those acquitted as NGRI. (Doc. 148 at 64:20-65:14.)

50. Tubbs had the responsibility to monitor the conditional release of George. (Id. at 65:13-17.)

G. LOUISIANA DEPARTMENT OF HEALTH’S OVERSIGHT RESPONSIBILITIES FOR PERSONS ON CONDITIONAL RELEASE

51. Defendant LDH is a state agency that operates the CFS program and Eastern Louisiana Mental Health System (“ELMHS”) in Jackson, Louisiana. (Pl.’s Trial Ex. 24 at 4, No. 13.)

52. Defendant LDH receives federal financial assistance. (Id. at 4, No. 16.)

53. Defendant Gee was the Secretary of the LDH. Pursuant to La. R.S. 36:254, the Secretary of the LDH was responsible for the oversight, supervision and control of LDH and its divisions and was ultimately responsible for ensuring that LDH’s services for people with disabilities were provided in conformance with federal law. (Id. at 3, No. 12.)

54. Defendant Brady was employed by LDH as á District Forensic Coordinator (“DFC”) within the CFS program. (Id. at 4, No. 14; see also Doc. 151 at 9, ¶ 33 & Doc. 152 at 3, ¶ 15.) As such, Brady worked under the direction and supervision of the Secretary of the LDH. (PL’s Trial Ex. 24 at 3, Nó. 12.)

55. Brady had responsibility for monitoring individuals who were found NGRI and placed on conditional discharge and for implementing certain policies and procedures of LDH with respect to such persons. (Brady Test., Doc. 148 at 92:8-11, 99:12-101:15.)

56. One of Brady’s functions as a DFC was to facilitate inpatient hospitalization when other avenues for treatment failed. (Brady Test., Doc. 148,102:10-104:15.)

57. Brady visited George to perform “six-month evaluations” and provided reports regarding George’s compliance with the tei-ms of his conditional release and recommending whether George should' continue on conditional release. (See Brady Test., Doc. 148 at 107-108, in globo.)

58. Defendant Vosburg was a clinical psychologist and a consultant for CFS and LDH., (Pl.’s Trial Ex. 24 at 4, No. 15; Defs.’ TriafEx. 8,-in globo.)

59. Vosburg had responsibility for evaluating and providing mental health services, in accordance with the policies and procedures of LDH, to individuals placed' on conditional discharge1 and persons found NGRI who had been placed at ELMHS. He provided’ recommendations as to placement, graduation/termination, revocation, and treatment. (See Pl.’s Trial Exs. 4 at TGQ.00005, ¶ 2; 5 at TGQ00006; 6 at TG000007;. 8 at TG000010; 9 at TGQ00011; 13 at TG000017; and; 14 at TG000019.)

. 60. Vosburg had evaluation and oversight. responsibilities regarding George’s conditional release since 2009 and .over, the course of that time had evaluated 'George on at least eight occasions. .(Brady Test.; Doc. 148 at 107:20-108:5; PL’s Trial Exs. 4 at TG000005; 5 at TG000006; 6 at TG000007; 8 at TG000010; .9 at TG000011; 13,at TG000011; and 14'at TG000019; Defs.’ Trial Ex. 8, in globo.)

H. TRUSSELL GEORGE’S ARREST AND INCARCERATION IN JULY 2013

61. On May 24, 2013, Brady submitted an episode report to the state district court indicating that staff at Progressive Health Care had reported to him that George “had two , episodes of verbal aggression and verbal threats within the last two (2) weeks to have one of his. family members attack one of their direct care staff members.” (PL’s Trial Ex. 8 at TG000010; see also Defs.’ Trial Ex. 3'at 0001.)

62. In this report, Brady also noted that, although George had been recently hospitalized for approximately two weeks at Beacon Behavioral Hospital in Lutcher, Louisiana, and had received a medication adjustment, “his behavior seemingly has escalated towards direct care .personnel.” (PL’s Trial Ex. 8 at TG000010; Defs.’ Trial Ex. 3 at 0001,).-

63. This report also stated that Brady “spoke to his probation officer [Defendant Tubbs] on 5/23/13 who [would] be petitioning this honorable court for a status review to discuss these recent events and plan of action- to- address these concerns.” (PL’s Trial Ex. 8 at TG000010; Defs.’ Trial Ex. 3 at 0001.)-

64. On. June 10, 2013, Tubbs sent a letter to the state district, court advising “that in the last ,4 weeks [George] has been verbally aggressive with staff over food” and requested that a review hearing be scheduled to address George’s violations of the group home’s rules. (Pl.’s Trial Ex. 9 at TG000011; Defs.’ Trial Ex. 4 at 0001; Tubbs Test., Doc. 148 at 74:28-75:5.)

65. For reasons not explained in the evidence, the State District Court did not respond to that request for a hearing.

Q. And you don’t know if a court ever set a date for a hearing on these issues, did it?

A. I don’t believe they did on that letter. (Tubbs Test., Doc. 148 at 75:24-76:1.)

66. In addition, staff personnel at the group home advised Tubbs that they did not want George at their group home because he kept causing problems. (Id. at 82:8-10).

67. “On or about 7-15-13,-[George] got aggressive with a staff member at his day program and they had to send him to the mental hospital due to his attitude. He was released from the hospital on 7-25-13.” (Defs.’ Trial Ex. 5 at 1-2.) According to Tubbs’ testimony at trial, he was told that George had assaulted or physically harmed a staff member. (Tubbs Test., Doc. 148 at 78:2-79:25.)

68. On July 25, 2013, the day of George’s release from the mental hospital, Tubbs met with George and felt something “wasn’t right” and 'that “the medicine that they adjusted wasn’t working for him.” (Id. at 80:7-9.) . .

69. “On [July 27, 2013], [George] told staff that he was going to do something to them if they did not bring him to get his hair cut. Then [he] told another client that he was going to kill them.” (Defs.’ Trial Ex. 5 at 1-2.)

70.At this point, Tubbs conferred with Brady, who in turn consulted with Vos-burg, ■ (Tubbs Test., Doc. 148 at 84:2-5; 124:17-23.) Tubbs told Brady that George was being “very aggressive.” (Id. at 124:24-125:23.)

71, At this point Brady inquired whether there were any beds available at ELMHS and was told there were none. He informed Tubbs of this fact. (Tubbs Test., Doc. 148 at 84:6-10. See also Brady Test., Doc. 148 at 122:4-18; 124:22-23; 126:3-13).

72. Tubbs also consulted with his supervisor regarding the decision of whether, to arrest George. (Tubbs. Test., Doc. 148 at 84:2-24.)

73. Brady, Tubbs and Vosburg jointly decided to have George arrested and placed in the EBRPP. (Brady. Test., Doc. 148 at 124:12-125:23.)

Q. So the decision to arrest Mr, George in July 2013 was made collectively by [Brady], Dr. Vosburg and Mr. Tubbs; is that correct?

A. Yes, Ma’m [sic].

(Id. at 125:20-23.)

74. On July 29, 2013, Tubbs wrote a letter to Progressive stating that “[George] has broken his conditions of probation for the- 3rd time by being aggressive with staff.” (Pl.’s Ex. 10 at TG000012.). Employees of George’s day program drove George to Tubbs’ office, where Tubbs decided to arrest him and have him incarcerated in EBRPP. .(Tubbs Test., Doc. 148 at 81:20— 82:24.)

75. Tubbs’ “Detainer Notification, Affidavit of Probable' Cause, and Motion for Hearing” to Revoke Probation sets forth the basis for Plaintiffs arrest on July 29, 2013:

Around June 1st 2013, he was aggressive with staff because he could not get a hamburger for dinner one night. Staff gave him a sandwich and he got in the face of a staff member and started yelling “you better get me a hamburger”.

On or about 7-15-13, he got aggressive with a staff member at his day program and they had to send him to the mental hospital due to his attitude. He was released from the hospital on 7-25-13.

On 7-27-13, the subject told staff that he was going to do something to them if they did not bring him to get his hair cut. Then told another client that he was going to kill them.

(PL’s Trial Ex. 11 at TG000014; Defs.’s Trial Ex. 5 at 1-2.)

76. Tubbs testified that he did not decide to arrest George because he suspected George of having committed a crime; indeed, no criminal charges were ever filed against George for any of the activities that gave rise to his arrest. (Tubbs Test., Doc. 148 at 82:14-17.) Tubbs testified that the decision to arrest George was in accordance with LDPSC policy. (Id. at 84:17-20.)

77. Rather, the decision to arrest George was made because of the consensus reached among Tubbs, Brady and Vosburg that George was “a danger to himself or others.” (Brady Test., Doc. 148 at 124:24-125:23.) Brady considered the behaviors that George was exhibiting at the time of his arrest to be a violation of his conditional release. (Id. at 121:24-122:1.)

78. According to Brady, George was “transported to the EBR Parish Jail on 7/29/13 secondary to aggressive and verbally threatening behaviors towards his peers.” (PL’s. Trial Ex. 15 at TG000039.) He states that Vosburg, George’s “forensic consultante,] recommended that he be brought to [ELMHS] for long-term treatment and evaluation services.” (Id.)

79. On July 29, 2013, the date of George’s arrest, Tubbs also “[cjalled Judge Moore[’s] section and they got my letter but no court date has been set as of today.” (Pl.’s Trial Ex. 19 at TG000206.) The letter Tubbs is referring to is presumably the June 10, 2013 letter sent to Judge Moore asking the Court to “set a review hearing to address his expiration date and violations.” (PL’s Trial Ex. 9 at 1.) For whatever reason, this information was not elicited from Tubbs during his testimony. As mentioned above, Tubbs’ June 10 request for a hearing was never responded to and Tubbs waited until August 12, 2013 to file a written motion to revoke George’s probation.

80. Plaintiff contends that his behavior at the time of his July 29, 2013 arrest was not substantially different than what he had displayed in the past and did not give probable cause for his arrest and confinement.

81. Defendants counter that his conduct, beginning in May 2013 and escalating up until the time of his arrest on July 29, 2013, was substantially worse and had not been resolved by the May and July hospitalizations. Thus, argue Defendants, George’s conduct gave Tubbs probable cause for his arrest.

82. Another main point of contention in the case revolves around why George was taken to EBRPP rather than ELMHS or, alternatively, to a private psychiatric facility as had been done many times in the past, including from- July 15 to July 25, 2013.

83. Plaintiff argues that Tubbs and Brady were well aware that George had received treatment at a number of mental health facilities in the community over the years, including at Greenwell Springs, Cypress Hospital, Our Lady of the Lake Hospital, and Beacon Behavioral Health. (Doc. 151 at 15, ¶ 56) (citing Tubbs Test., Doc. 148 at-78-80, in globo.) ■

84. Further, argues Plaintiff, Tubbs and Brady were well aware of Mr. George’s need for psychiatric medication. (Doc. 151 at 14, ¶ 53.) As Tubbs testified:

Q. And you knew that the symptoms of Mr. George’s illness, like his hallucinations and aggressive behaviors, became worse when he missed his medication; isn’t that right?

A. Yes.

(Tubbs Test., Doc. 148 at 89:21-24; see also Brady Test., Doc. ,148 at 100:20-101:25.)

85. Tubbs and Brady were also well aware that these hospitalizations were used to manage his behaviors and- adjust his medication. (Doc. 151 at 14, ¶ 54.) Tubbs testified:

Q. And the purpose of those hospital stays was also to control Mr. George’s hallucinations; is that right?

A. Yes. '

Q. And in your experience, if Mr. George missed even one or two doses of his medication, you believe that he wasn’t able to control the voices in his head?

A. It was pretty obvious, yes, when he " got off his, medicines. -

(Tubbs Test., Doc. 148 at 69:20-70:2; Brady Test., Doc. 149 at 17:16-25.)

86. Plaintiff stresses that, at the time of George’s arrest, Tubbs and Brady were well aware that there was a direct relationship between the medication George was taking for his mental illness and the behavior that led to his arrest. (Doc. 151 at 14-15, ¶ 55) (citing Tubbs Test., Doc. 148 at 80-81, in globo, 89-90, in globo.)

87. Defendants reply that they tried to piace George at ELMHS but there were simply no beds available at that time. (Brady Test., Doc. 148 at 122:4-18.)

■ 88. Brady testified that, following- his incarceration at EBRPP and up until his release oh August 23, 2013, they continued to check on the availability of beds at ELMHS and “there [were] no beds available, otherwise we would have had him in the hospital.” (Brady Test., Doc. Í48 at 127:21-22.)

89. Neither Tubbs nor Brady checked to see if beds were available at another facility. (Tubbs Test., Doc. 148 at 86:13-24, 89:4-12; Brady Test., Doc. 148 at 123:6-11.)

90. Defendants offer several reasons for this. First, in response to direct questioning of the Court outside the presence of the jury, both Tubbs and Brady testified that when a NGRI acquittee threatens violence, they believed they had only. two .choices: to admit him to ELMHS, if a bed was available, or place him in jail until a bed could be found there. (Tubbs Test., Doc. 149 at 208:18-211:5; Brady Test., Doc. 149 at 214:10-14.)

Q. So by your way of thinking, there were two choices: first ELMHS, if there was a bed available, but if not, your only other choice was the parish prison?

A. Correct. Until we could go in front of the judge and the judge could make a decision on what to do with him.

(Tubbs Test., Doc. 149 at 211:1-5.)

91. Furthermore, said Tubbs, “At that time when- he’s threatening violence towards staff ... Jackson Hospital would be — in my opinion, would be the only place that could handle him at that point.” (Id. at 208:22 — 24.) Tubbs believed that George’s behavior was such that he needed more than a medication adjustment at this time. (Tubbs Test., Doc. 148 at 89:8-12.)

92. In addition, Tubbs testified that he didn’t consider another hospital for George because that hospital wouldn’t be able to transfer George to court “to address the violation of his conditions of probation.” (Tubbs Test., Doc. 148 at 87:5-88:18.)

93. Defendants also argue that, even if Tubbs or Brady had tried to get George admitted to a private hospital, it is unlikely they would have been successful “since nobody wants ELMHS’s patients, particularly those having forensic involvement, because they worry about their ability to manage them from a security standpoint.” (Doc. 152 at 7, ¶62) (citing Kelly Test., Doc. 149 at 75:3-8.)

94. As for transferring Mr. George to Central State Hospital, another state facility, Defendants contend it usually has a long waiting list since they have other referring' facilities besides ELMHS and it takes a long time to get someone admitted there. (Id. at 7, ¶ 61) (citing Kelly Test., Doc. 149 at 74:18-24.)

95. Finally, Tubbs testified that, on arresting George, he contacted Lisa Burns, the social worker at EBRPP, and informed her that George was being arrested. Based on this discussion, it was his understanding that Burns would follow up and provide him with mental health treatment and medication management. (Id. at 4, 1Í.25) (citing Tubbs Test., Doc. 148 at 83:14-17.) This was also Brady’s belief. (Brady Test., Doc. 149 at 218:12-17.)

96. Plaintiff faults Tubbs and Brady for not checking on Plaintiff while in EBRPP. (Doc. 151 at 15, ¶ 60.) Defendants respond that Tubbs was not required to check on George after placing him in jail. (Doc. 152 at 4, ¶ 29) (citing Tubbs Test., Doc. 148 at 89:8-12.) Brady testified by the timé he went to check on him, Géorge had already been discharged. (Brady Test., Doc. 149 at 14:12-15:16.)

97. For reasons not explained in the record, Tubbs waited until August 12, 2013,15 days after George had been incarcerated at EBRPP, before moving for revocation and requesting a hearing. (PL’s Trial Ex. 11; Defs.’s Trial Ex. 5; Tubbs Test., Doc. 148 at 77:24-78:8.)

98. It appears from the record that George was released after a hearing before Judge Moore on August 23, 2013, not in response to Tubbs’ motion but “only after the [George’s lawyer] filed a petition for habeas corpus on his behalf in the Nineteenth Judicial District Court of East Baton Rouge.” (Doc. 42 at 14, ¶ 57.) Defendants admit that, “[a]s a result of the [habeas corpus] hearing, Judge Chip Moore lifted the probation hold and ordered Mr. George to continue mental health treatment.” (Doc. 161 at 6.)

I. EVENTS FOLLOWING AUGUST 23, 2013 RELEASE FROM EBRPP

' 99. After his release of August 23, 2013, George was taken directly to Baton Rouge General Hospital and involuntarily committed. (Brady Test., Doc. 149 at 16:11-14.)

100. At that time, he was grossly psychotic and off his medication. (Id. at 16:5— 6.)

101. Plaintiff alleges that by the time George was- released from the EBRPP on August 23, 2013, he had suffered a significant decline in his mental health and never fully recovered to his pre incarceration condition. (Martinez Test., Doe. 148 at 43:1-4, 44:1-18;. Hope Test., Doc. 149 at 192:7-19; Smith Test., Doc. 149 at 37:11-17.)

102. Between the time of his discharge on August 23, 2013, and the events of July 1, 2014, the second incident sued upon, George was hospitalized on four occasions, three at private hospitals and finally back at ELMHS. (Brady Test., Doe. 149 at 16:11-18,17:16-19,18:1-23.)

J. TRUSSELL GEORGE’S DECEMBER 2013 TO DECEMBER 2014 CONDITIONAL RELEASE

103. In December 2013, prior to the expiration of Mr. George’s five-year conditional release period, LDH’s District Forensic Coordinator, Brady, requested that George’s conditional release be ■ extended an additional year. (PL’s Trial Ex. 12 at TG000015-16.) •

104. On April 25, 2014, Vosburg did a comprehensive examination and- review of prior records for purposes of a risk assessment. (Defs.’s Trial Ex. 8 at 0002.) In it, he concluded that “there is a high probability of non-compliance ■ with treatment and remediation attempts without continuation of supervision under probationary requirements.” (Id, at 0010.)

105. On May 14, 2014, the Nineteenth Judicial District, Court extended Mr. George’s conditional release to December 14, 2014. (PL’s Trial Ex. 24 at 4, No. 18.)

K. TRUSSELL GEORGE’S ARREST AND INCARCERATION IN 2014

106. Within a week after the May 14, 2014 hearing, Brady arranged for Mr. George to be involuntarily hospitalized at ELMHS. (Brady Test., Doc. 149 at 18:1— 21; PL’s Trial Ex. 13 at'TG000017.) '

107. According to Dr. Brad. McConville,' one of George’s treating psychiatrists at ELMHS, ELMHS has approximately 20 psychiatrists, five of whom are full-time. They also. have psychologists, full-time nursing staff, dieticians, occupational therapists, recreational therapists and social workers. (McConville Test., Doc. 149 at 155:1-16.)

108. During the summer of 2014, George was at the East Acute Unit (EAU) at ELMHS. At this time, psychiatrist Dr. Clay Kelly oversaw George’s care at ELMHS while George’s regular psychiatrist, Dr. Ahmad, was on vacation. (Kelly Test., Doc. 149 at 68:l-v25.)

109. On June 3; 2014, Kelly issued an order to transfer George to the Cedarview unit, an “intermediate treatment unit in the civil division.” (Kelly Test., Doc. 149 at 68:20-69:3; Defs.’s Trial Ex. 9 at 1604.)

110. Cedarview was a “slightly less restrictive unit than East Acute Unit,” and Kelly thought that the transfer to the Ce-darview unit was a reasonable step for George. (Kelly Test., Doc. 149 at 70:1-6.) According to Kelly, the whole nature of acute treatment is that, once patients are reasonably stabilized, they are moved to a less restrictive environment. (Kelly Test., Doc. 149 at 72:11-14.)

111. Dr. Ahmad had wanted to transfer rather than release George because he did not believe that George was ready to be returned to a group:home. (Kelly Test., Doc. 149 at 69:22-24.)

112. But when Dr. Kelly proposed this move to George on July 1, 2014, George refused to go. (Kelly Test., Doc. 149 at 69:4-72:18-24.)

113. Kelly asked Vosburg to come to the July 1, 2014, meeting with George to discuss moving him to the Cedarview unit and to help explain the plan to gradually step him down out of the acute unit to a less restrictive environment. (Kelly Test., Doc. 149 at 77:10-16.)

114. At the July 1, 2014 meeting, Vos-burg informed George that he had the option of moving to a different unit within the ELMHS system but, if he refused the transfer, they could not force him to go the suggested unit. In that event, Vosburg told George, the next logical step would be to place him at the Forensics Unit at ELMHS. (PL’s Trial Ex. 13; Kelly Test., Doc. 149 at 79:2-20.)

115. Vosburg further informed George that, if he refused transfer to a different unit, there might not be a bed available at the Forensics unit. In that case, Mr. George would have to wait in jail until a bed became available. (Pl.’s Trial Ex. 13 at TG000017.)

116. George immediately resisted the proposed transfer. (Kelly Test., Doc. 149 at 79:13-17.) He became “very angry” (Pl.’s Trial Ex. 13 at TG000017), and even asked to be sent to jail because he did not want to go to the Cedarview unit. (Kelly Test., Doc. 149 at 78:13-15.) George started yelling at Drs. Kelly and Vosburg, using threatening language toward them. (Kelly Test., Doc. 149 at 79:21-24.)

117. Security guards were called to restrain George in the hallway while Vos-burg was escorted off of the unit for his own protection. (Kelly Test., Doc. 149 at 80:1-6.)

118. Kelly contacted the probation officer assigned to George and asked him to remove George from the unit, although Kelly did not instruct the probation officer to take George to jail. (Kelly Test., Doc. 149 at 80:13-21.) Vosburg did recommend that George be incarcerated at EBRPP. (PL’s Trial Ex. 14.)

119. As a consequence of this confrontation, George was arrested and transported to EBRPP by a representative of the DPP for violating the terms of his conditional discharge. (PL’s Trial Ex. 13,14.)

120. Brady was not present during the evaluation of George on July 1, 2014, and found out about the arrest from Vosburg after it had occurred. (Brady Test., Doc. 149 at 18:22-19:7.)

121. According to the Narrative Report created by Bobby Castello dated July 1, 2014, Castello “[rjeceived a call from Dr. Vosburg at the Feliciana Forensic Facility who told me subject... has been violent and disruptive and has not been taking his medicine. Dr. Vosburg wanted subject removed from the facility and brought before Judge Moore for revocation. Myself and Agent Hooge proceeded to ELMHS, arrested subject and transported him to the EBRPP without incident. Eric Brady, DFC, called and told me he would get a court date and let me know when it would be.” (PL’s Trial Ex. 19 at TG000204.) That court date did not occur until August 22, 2014. (See id. at TG000203.)

122. According to Brady’s Conditional Release Monthly Review Report of July 1, 2014, Brady stated he would “submit [an] episode report and set [a] motion order to court as well as contact probation officer to assist with transportation to jail.” (PL’s Trial Ex. 15 at TG000027.)

123. Kelly’s decision concerning George on July 1, 2014, was made in light of his history of charges of violence, his previous threatening behavior, and the difficulty George had managing his impulses and rage over the years. (Kelly Test., Doe. 149 at 86:18-22.)

124. Dr. Kelly was also concerned for the safety of the other patients should Mr. George remain on the unit. (Kelly Test., Doc. 149 at 87:7-16.)

125. McConville, another psychiatrist who had treated George, testified that George’s violent conduct on July 1, 2014, was not unique. “Other times, he was very influenced by his delusions, would attack staff members. He even got into an altercation, fell and broke his jaw, which had to be surgically repaired. He had incidents like that a lot.” (McConville Test., Doc. 149 at 164:22-25.)

126. At this point the Cedarview unit would not have accepted George because of his level of anger and rage. (Kelly Test., Doc. 149 at 81:5-7.)

127. Kelly testified he did not try to give George any acute treatment such as an injection because he felt George was choosing not to comply with his recommended treatment. (Kelly Test., Doc. 149 at 81:22-82:11.)

128. The decision to remove George from ELMHS on July 1, 2014, was made by Vosburg and Kelly, although Brady did not disagree with that decision. (Brady Test., Doc. 149 at 19:22-20:6.)

129. According to Brady’s Episode Report, “I consulted with Dr. Vosburg on 7/1/14 after his evaluation with George. He recommended revoking his probation and having probation officer remove him from EAU and placing him in [EBRPP] where he remains at this time. Our office is requesting a revocation hearing to have his probation revoked and then transfer[ j Mr. George back to the Forensic Hospital for longer-term treatment and hospitalization.” (Pi’s Trial Ex. 14.)

180. On August 22, 2014, 52 days after he was incarcerated, George was taken to state court. At the conclusion of the hearing, “Judge Moore remanded subject back to the Forensic Facility and said he wanted a report from the doctors in a couple weeks and if subject was doing well he could be transferred back to the group home. If subject was not doing well he would continue to reside at the Forensic Facility for further treatment.” (Pl.’s Trial Ex. 19 at TG000203.)

131. Three days later, on August 25, 2014, George was released from EBRPP and placed back at ELMHS. (Pl.’s Trial Ex. 24 at 4, No. 19.)

132. George was not charged with any crime immediately prior to or during the 55 days he was incarcerated between July 1 and August 25, 2014. (Id. at 4, No. 20.)

133. At a hearing before state court Judge Richard “Chip” Moore on September 23, 2014, “[s]everal Doctors testified and patient was returned back to the hospital for treatment.” (PL’s Trial Ex. 1 at TG000024.) Judge Moore ordered George to remain at ELMHS and his placement reviewed at a hearing scheduled for December 11; 2014. (PL’s Trial Ex. 24 at 5, No. 21.)

FINDINGS OF FACT

134. In making its findings of fact and conclusions of law, the Court has considered the record as a whole. The Court has observed the demeanor of witnesses and has carefully weighed their testimony and credibility in determining the facts of this case and drawing conclusions from those facts. All findings of fact contained in this ruling that are more appropriately considered conclusions of law are to be so deemed. Likewise, any conclusions of law more appropriately considered a finding of fact shall be so classified.

135. It is important at the outset of these findings to emphasize that the only relevant factual questions are those which inform the issues in this case:

b. Were George’s arrests or incarcerations made pursuant to this policy?

136. Thus, while the Court has considered and comments on other issues presented at trial, its conclusions and ruling are based only on those facts relevant to these issues.

A. JULY 29, 2013 ARREST AND INCARCERATION

137. At the time of the events sued upon, George was a person with a mental illness who had been found NGRI and was on conditional release subject to his abiding by the conditions set forth in a conditional release order of the Nineteenth Judicial District Court of the State of Louisiana. (Order, PL’s Trial Ex. 1 at TG000001.)

138. From the time of his conditional release in 2009 until May 2014, George resided primarily in group homes (known more technically as Intermediate Care Facilities for the Developmentally Disabled) but was occasionally admitted to private hospitals when his behavior and need for medication adjustment warranted. (Trial Stipulations, PL’s Trial Ex. 24, Trial Stipulation 4; Martinez Test., Trial Tr. vol. 1, Doc. 148 at 35:4-21.)

139. Despite being hospitalized in May 2013, George’s aggressive conduct escalated in frequency and severity during May and June. On May 24, 2013, Brady submitted an episode report to the state district court indicating that staff at Progressive Health Care had reported to him that George “had two episodes of verbal aggression and verbal threats within the last two (2) weeks to have one of his family members attack one of their direct care staff members.” (PL’s Trial Ex. 8 at 1; Defs.’ Trial Ex. 3 at 1.)

140. In this report, Brady also noted that, although George had been recently hospitalized for approximately two weeks at Beacon Behavioral Hospital in Lutcher, Louisiana, and had- received a medication adjustment, “his behavior seemingly has escalated towards direct care personnel.” (PL’s Trial Ex. 8 at 1; Defs.’ Trial Ex. 3 at 1.)

141. Because of George’s escalating behavior, Tubbs wrote Judge Richard “Chip” Moore on June 10, 2013, to report his behavior and ask the court to “set a review hearing to address his expiration date and violations.” (PL’s Trial Ex. 9 at TG000011; Defs.’ Trial Ex. 4 at 0001; Tubbs Test., Doc. 148 at 75:1-9.) The Court never responded to this request. (Tubbs Test., Doc. 148 at 75:24-76:1.)

142. Because of continued aggressive behavior in July, George was hospitalized from July 15 until July 25, 2013. (Defs.’ Trial Ex. 5 at 1.) But despite this hospitalization, Brady felt George’s medication was not working and felt something “wasn’t right” and that “the medicine they adjusted wasn’t working for him.” (Brady Test., Doc. 148 at 80:4-9.)

143. This concern was vindicated when “[o]n July 27, 2013, [George] told staff that he was going to do something to them if they did not bring him to get his hair cut. Then [he] told another client he was going to kill them.” (Defs.’ Trial Ex. 5 at 1.) Tubbs was told by staff at the group home that George assaulted or physically harmed a staff member. (Tubbs Test., Doc. 148 at 79:2 — Í4.) Although not noted in his records, the Court accepts this testimony as credible.

144. While Tubbs testified that he arrested George even though George had committed no crime, (Tubbs Test., Doc. 148 at 82), the evidence shows that George’s behavior was arguably criminal. La. Rev. Stat. Ann. §§ 14:33, 35, 36, 38. Indeed, Tubbs himself classified George’s conduct as a “Level 3 violation — Misdemeanor activity (serious violent).” Tubbs continued, “[George] threatened staff and other clients with violence for the 3d [sic] time. The group home wanted him out due to his behavior.” Tubbs classified his response to George’s conduct as “Level-3 Action — Arrest/Detain with Custodial Treatment... Warrant/Motion and Order to Revoke.” (PL’s Trial Ex. 19 at TG000206-207.)

145. George’s conduct during these months reasonably led Defendants Tubbs, Brady, and Vosburg to believe they had probable cause to arrest George for the violation or imminent violation of his terms of conditional release, specifically, these two terms:

a. Any physically assaultive/aggressive behaviors shall be reported to the District Forensic Coordinator or State Probation Officer. Violations of this condition may result in immediate return to custody or intensified treatment if recommended by the District Forensic Coordinator or Probation Officer. (PL’s Trial Ex. 1 at TG000002, ¶¾ see also PL’s Trial Ex. 24 at 1, No. 3.)

b. It shall be a condition of every such probation that the person released shall be recommitted if he becomes dangerous to others or to himself for reasons of his mental illness, sub- ■ stance abuse, or intellectual disability. La. Code. Crim. Proc. art. 658(A).

146. In accordance with the policies, practices and procedures of both LADPSC and LDH (Tubbs Test., Doc. 148 at 84:17— 20), after consultation with Vosburg and Brady (Brady Test. Doc. 148 at 125:20-23), because they believed George had violated conditions of his release, (Brady Test., Doc. 148 at 121:24-122:1), arid because they believed George presented a danger to himself and others, (Brady Test., Doc. 148 at 124:17-23), Tubbs effected George’s arrest on July 29,2013. .

147. However, despite the requirement of La. Code Crim. Proc. art. 658(B)(6) that the arrest of an ácquittee be preceded by a motion of the court or District Attorney or probation officer, no such motion was filed, and no request was made' to revoke George’s conditional release until August 12, 2013, 14 days after his arrest and incarceration, when Tubbs filed his “Detain-er Notification, Affidavit of Probable Cause and Motion for Hearing to Revoke Probation.” (Defs.’ Trial Ex. 5 at 1-2; PL’s Trial Ex. 19 at TG000206.)

148. Despite the requirement of La. Code Crim. Proc. art. 658(B)(6) that a hearing take place “immediately” following the arrest to “consider the violations listed ...,” there is no evidence in the record that such a hearing ever took place following George’s July 29, 2013, arrest. The hearing which occurred on August 23, 2013 was a response, not to a motion or request by state actors, but to Plaintiffs petition for habeas corpus.

149. And although a warrantless arrest is authorized by La. Code Crira. Proc. arts. 658(B)(1) and 899(B), there is no evidence in the record that the procedure required by these statutes was followed, ie., that “a written report showing in what manner the defendant violated, or was about to violate, a condition of his probation” was “immediately” submitted. Rather, that report was not submitted until August 12, 2013. (Defs.’ Trial Ex. 5.)

150. The only evidence in the record regarding any contact with the court about George’s arrest on the day of his arrest shows that Tubbs “[cjalled Judge Moore[’s] section and they got my letter [presumably, his letter of June 10, 2013] but no court date has been set as of today.” (PL’s Trial Ex. 19 at TG000206.)

151. While not found in record evidence, Plaintiffs Second Amended Complaint alleges it was his counsel’s petition for habe-as corpus that effected George’s August 23, 2013, release. (Second Amended Complaint, Doc. 42 at 14, ¶ 57.) Defendants agree George’s attorney filed a petition for habeas corpus “which appears to have been filed the same day as the hearing. As a result of the hearing, Judge Chip Moore lifted the probation hold and ordered Mr. George to continue mental health treatment.” (Doc. 161 at 6.)

152. Hope’s testimony shows that there was a court hearing on that day where she talked to the judge, “I guess off-the-record .... ” (Hope Test., Doc. 149 at 192-93.)

153. Initially, Vosburg, Brady and Tubbs intended that, following his arrest, George be admitted to ELMHS. However, after inquiring, Brady was told that there was no bed available there. (Tubbs Test., Doc. 148 at 86:13-24; Brady Test., Doc. 148 at 122:4-127:23.) Brady also testified, and the Court accepts this testimony as true, that during the entire period of George’s 2013 incarceration, Brady continued to inquire as to the availability of a bed at ELMHS but was told each time that there was none. (Brady Test., Doc. 148 at 127:1-22.)

154. Tubbs testified that he did not attempt to get George admitted to a private hospital because he felt he could not do so without an order of the Court. (Tubbs Test., Doc. 149 at 208:2-211:5.) Unexplained in the record is how he was able to admit George to private hospitals, seemingly without a court order, on numerous previous occasions, including in May and June 2013 and on August 23, 2013, when George was released from EBRPP and immediately admitted to Baton Rouge General Hospital.

155. Tubbs also said that he did not try to get George into a private hospital because, given the level of George’s aggressive conduct, ELMHS was the only facility that could handle Plaintiff at that time. (Tubbs Test., Doc. 149 at 208:2-24.) However, this seems to be belied by Brady’s Episode Report of March 2010 to Judge Moore that, following similar conduct in May-July 2013, George was not placed in ELMHS nor was he arrested and incarcerated. Rather, “[tjhey were able to transport him to Our Lady of the Lake Hospital for emergency evalu