United States v. Nicklas

(3d Cir.2001) (еn banc). By the same token, however, danger if the is imminent filed, complaint

when the exception

clicks in.

But remember imminent-dan-

ger exception does not excuse a prisoner exhausting

from remedies tailored to im- dangers.

minent Fletcher had an avail- remedy, danger

able such and —the greatest urgency

not of the had to —he days

wait more than two to test its avail-

ability given before could sue. We are think prison’s griev-

no reason to procedure longer

ance would take than

judicial procedure. imminent danger So

did not excuse his failure to exhaust his remedies,

administrative and his suit was properly

therefore dismissed.

Affirmed. America,

UNITED STATES

Appellee, Eugene NICKLAS, Appellant.

David

No. 09-3784. States Appeals, Court of

Eighth Circuit. Sept.

Submitted: 2010.

Filed: Nov. 2010.

Rehearing Rehearing En Banc

Denied Dec. Pitts, AFPD,

Angela argued, Lorene AR, Fayetteville, appellant. for AUSA, Wendy Johnson, argued, L. Fort Smith, AR, appellee. RILEY, Judge,

Before Chief MURPHY Dear Sir: understand the FBI is un- MELLOY, Judges. Circuit der attack Agents nationwide. are be-

ing killed in a number of cities and a RILEY, Judge. Chief major task force trying figure [sic] out why. what I you Remember told Chargеd transmitting with in inter Duvall, last week. Tom Gambino crime threatening state commerce a communica gave you message. boss For each day tion, 875(c), § in violation of 18 U.S.C. I do not my receive the deed to property district court1 found David Eugene Nick you which illegally are holding, an FBI incompetent las trial. stand The dis agent will die. The deadline is noon of trict court ‍‌‌​‌​‌‌‌​​​‌​​‌​‌​​‌‌‌​​‌‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​‌​​‌​‍ordered that Nicklas be involun each day. The FBI satellite office in tarily medicated in order to restore his Fayetteville, AR has Any the deed. oth- competency. appeals. Nicklas We have questions. Sincerely, er David E. Nick- jurisdiction interlocutory over appeals of las. involuntary orders for medication under Finding incompetent Nicklas to stand the collateral order doctrine. See Sell v. triаl, the district court committed Nicklas States, 166, 177, 123 S.Ct. to the custody, pursuant (2003). 2174, 156 L.Ed.2d 197 We affirm. 4241(d)(1), § 18 U.S.C. “to determine whether there is a substantial probability I. BACKGROUND that in the foreseeable future he will attain In September Nicklas was convict- capacity permit the proceedings to ed in Arkansas state court of misdemeanor go Psychiatrist Ralph Newman, forward.” threatening. terroristic Nicklas had sent M.D., Psychologist and Reardon, Maureen letters, two on Nicklas’s personal letter- Ph.D., performed a forensic evaluation of head, with, to a man he acquainted was not records, reviewed Nieklas’s men- accusing the man of an undercover condition, tal physical and requested FBI agent living in a house that did not the district court order involuntary letter, belong to him. In the first Nicklas administration of medicаtion “in order to ordered the man to vacate the house and competency restore Mr. Nicklas’s to stand sign the deed over to Nicklas. The second trial.” The district court referred the re- letter, ordering also the man to leave the quest magistrate to the judge,2 who issued house, styled as a “final warning” by a report and recommendation that the re- Nicklas. quest to medicatе granted. Nicklas be adopted district court the report and 19, 2008, grand

On November jury toto,” “in recommendation ordering that charging returned an indictment Nicklas forcibly injected Nicklas be should he re- knowingly willfully with transmitting fuse to take his oral medication voluntarily. in interstate commerce a facsimile commu- appeals. Nicklas threat, containing nication in violation of 875(c). According U.S.C. tо the in- II. DISCUSSION dictment, in September Justice, faxed the Department Inspector In Supreme Court set General, followingmessage: forth four criteria the government must Hendren, Setser, Larry 1. The Honorable Jimm Unit- 2. The Honorable Erin L. United States Judge ed Magistrate Judge States District for the Western Dis- for the Western District of trict of Arkansas. Arkansas. review de at n. 2. “[W]e Id. an order to evidence. may obtain satisfy before court’s determination 180-81, the district 123 novo See id. medicate. interests are at governmental Fazio, important States 2174. In United court’s stake, the district we review [and] (8th Cir.2010), cert. petition F.3d 835 the remain- respect to with determinations (No. 10-5998), explained: we filed Id. at for clear error.” ing Sell factors impor- First, must find “a court are at interests governmental tant factor, circumstances conclude stake,” though “[s]pecial first On the inter- of that interests are importance governmental lessen Second, must conclude circumstances have special “the court and no stake est.” “The signifi- will in this case. involuntary medication those interests lessened trial bringing in to concomitant state interest further those cantly Government’s of a crime is finding that accused serious includes an individual This interests.” the offense That is so whether drugs important. is substan- of the “administration or a against person a serious crime render the defendant is tially likely to Sell, 539 against property.” trial,” serious crime and “[a]t to stand competent Nicklas does 123 S.Ct. 2174. U.S. of the time ... that administration same finding court’s dispute the district substantially unlikely to have drugs is communication threatening transmitting signifi- interfere that will side effeсts certainly a seri in commerce “is interstate ability to cantly the defendant’s with Nicklas, offense.” United States ous conducting a trial de- in assist counsel (W.D.Ark. Nov.18, 3872140, at *5 2009 WL fense, thereby rendering the trial un- 2009). special circum argue Nicklas does Third, must conclude “the court fair.” “[f]orcibly medicat stances exist because necessary involuntary is medication him in the exact put Mr. Nicklas will ing “any and that further those interests” to currently facing— he circumstance same alternative, treatments are less intrusive facility in if a medical civil commitment substantially the unlikely to achieve to others or their danger to be a found Fourth, finally, “the results.” same disagree. property.” We conclude that administration court must medically appropriate, drugs is of the may cir- find himself in similar Nicklas i.e., medical interest patient’s in the best medicated, but if he is cumstances medical condition.” The light in of his observed, likely this court as the district goal that the of emphasized then Court Although presently certain. result is not invol- is “to determine whether this test trial, and therefore incompetent to stand is neces- untary drugs administration of trial-related deci- incompetent to make particular sary significantly tо further that, sions, indicated were he Nicklas has interest, namely, the in- governmental trial, an may he not assert brought rendering in the defendant com- terest maintains this insanity If Nicklas defense. trial.” petent stand competence, brought view when omitted). (citations charge of the of the could well be convicted It is the Id. at 839 argument Indictment.3 Nicklas’s the final prove burden to government’s proseeut- in lacks an interest convincing government by factors clear and three Sell insanity” moment. The argu- of is of no at oral reason concession that, selecting competent government's made role does not include ment if Nicklas were possibility ... we brought to trial "it is a assert. which defenses Nicklas guilty by probably seeking a not would be any prosecution him cause here Nicklas ing рreviously engaged because would has position conduct, alter therefore fails. in criminal which his similar was also apparently related to or emanated from his important governmental Another White, mental disease. Unlike where the in prosecuting protect Nicklas is record did not was likely show WTiite public from his crimes. future commit, crimes, relevant future id. at *419- in custody Nicklas has been for less than arguably mental Nicklas’s illness finds impris half which he the time for could be expression For example, offenses. oned if of the charge convicted case, in the 2007 Arkansas state 875(c) (im Indictment.4 18 U.S.C. See convicted of misdemeanor ter- maximum). posing five-year statutory threatening stemming roristic from his In view of of the admitted seriousness of posting stranger falsely letters to a proportion offense and the of the potential accusing man of undercover served, length sentence conclude the FBI agent illegally living yet Nicklas’s confinement does not indicate house, while this case Nicklas is a special circumstance. See of faxing accused the FBI a letter that 180, 2174 (deciding possi at 123 “the part, day states in “For each do not bility already thаt the defendant has been my receive the deed to which property you significant of confined for a amount time illegally holding, are agent an FBI will ... for which he would receive credit to die.” Because of the intertwined nature of any ultimately imposed,” ward sentence crimes, mental Nicklas’s his disease and “affects, undermine, totally not but does is government reasonable the tо pre- strength prosecution”). the of the need for may persist sume Nicklas in committing The of recent case United States offenses, similar government the has (4th White, 2010), 401 620 F.3d Cir. illus- an important interest in preventing recidi- White, In trates our conclusion. the relationship vism. Because of the between Appeals Fourth Circuit of reversed Court alleged crime and his mental dis- a district order to court’s mediсate ease, prior and because of his conviction on because, reasons, other among had White charges, government similar the also has a the entirety “served more than of her like- seeking substantial interest in a sentence ly pre-trial sentence in detention” and be- supervised of release in this case. See id. alleged cause victims of “[t]he [White’s] (“[A] J., (Niemeyer, dissenting) at *430 likely ... or crimes would benefit be period supervised ... might of release be ‍‌‌​‌​‌‌‌​​​‌​​‌​‌​​‌‌‌​​‌‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​‌​​‌​‍any way by made whole in her prosecu- important in especially circumstances ... tion.” Id. *421-22. In contrast where to recognize failure [a defendant’s] White, approximately Nicklas has served suggests the seriousness of her conduct forty percent statutory the of maximum may pose that she a threat substantial of projected and less than under the sentence free.”). reoffending if set the Sentencing United States Guidelines (U.S.S.G. Guidelines).5 addition, This also important or In this raises another case dissimilar be- factually is distinction between case and White. White this weight statutory 4. Nicklas arrested on October 2008. on the We de- was maximum. just two rely Nicklas has been confined for over heavily upon "sentencing рro- cline to a years. ceeding ... the [conducted] without benefit of presentence report necessary a facts and the Although projected the Guidelines sentence White, proceeding." such to conduct a 620 factor, is in a at this relevant to this review J., dissenting). (Niemeyer, F.3d at *428-29 stage greater proceedings, place of the we in this interests case ernment’s foсused on the non-violent White not err for a and find court did as to crime as reason the district nature of White’s interest. See id. first factor. the Sell governmental lessened (“Not is seri equally crime every serious as lessens We no clear error of White’s crimes find

ous. The nature in prosecuting remaining factors. The district court Sell because, non alleged crimes were her her found the faсtor satisfied because second offenses.”). recognize While violent “based on Dr. Newman’s assessment of threaten sending involved rate, Nieklas’s crime ... medication sub 70% success faxes, ing which Nicklas letters stantially likely compe to render [Nicklas] acts, this argue non-violent we note are “is tent to trial” and Nicklas sub stand held crime of previously court has stantially unmanageable unlikеly to have threatening communications to be mailing interfere with side that would effects See, e.g., violence. crime of ability to in his defense.” See Nick assist Bull, Hand F.2d States v. las, at *7-*8. WL The dis Left (8th Cir.1990) mailing (holding a threaten concerned, however, trict court for the a crime violence letter was comparable receive might 4B1.1).6 purposes of Assum U.S.S.G. from the treatment after his transfer Fed dеciding, ing, the White without eral Medical See id. *2. The Center. between violent and court’s distinction district court then committed “review proper is a consider non-violent crimes any recommendations as to continued determining weight ation when ... will treatment of and then [Nicklas] Sell, under find government’s interest direct the and the de Marshal’s Service in weighs gov the favor of the distinction taining facility aрpropriate provi to make ernment, Although not Nicklas. we do sions for medical care and his continued government’s the interest decide whether findings treatment.” Id. These were not always in prosecuting violent offenders is clearly erroneous. interest in greater prosecuting than its offenders, we do non-violent hold factor, the third As to the dis in government stronger has a interest trict court credited Dr. Newman’s again a defendant who threatens bringing opinion and found because Nicklas “has no agents FBI to trial than it does in murder illness, insight his mental and is un into involving non-violent crime. case meaningfully in participate able counsel treatments,” or non-medication strong pre interest other government’s have not committing symptoms spon from similar because his venting Nicklas alternativе, remitted, taneously more “no in the future is substantial less- crimes options intrusive are here than in White because of Nicklas’s treatment available.” found, Finally, Id. at *8. the district court past criminal conduct and the rela similar opinion, again upon Dr. Newman’s tionship between Nicklas’s mental disorder based addition, administering In that the recommended govern and his conduct. the yet drugs “medically aрpropriate.” was Id. at dissipated has not ment’s interest Sell, 180, disagrees many with Although 123 *9. exhaustion. See U.S. opinions, of Dr. Newman’s clear spe S.Ct. 2174. therefore conclude no We against ly for the district to be gov- cial militates the erroneous circumstance (2008), is good law 170 L.Ed.2d 490 still Whether Hand Bull still Left States, open question. Begay v. United after by, persuaded findings upon, solely and base its vidual for the purрose of restoring report. person Dr. Newman’s competency to stand trial.

Sell, 180-81, 539 U.S. at 123 S.Ct. 2174. III. CONCLUSION test, Before laying out this though, the Supreme Court cautioned that such in- judgment affirm the

We of the district stances should be “rare.” Id. at court. S.Ct. 2174. MELLOY, ‍‌‌​‌​‌‌‌​​​‌​​‌​‌​​‌‌‌​​‌‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​‌​​‌​‍Judge, concurring Circuit I do not presents believe Nicklas’s case

part dissenting in part. one of those “rare” circumstances. Under Sell,

I concur in opinion government the of the Court the must first show that except respect with “important governmental to whether Nicklas’s interests are at mental state at alleged the time of the stake” “special and that the circum government’s important offense offsets the stances” of a given case sufficiently do not in prosecuting interest those that offset 180, 123 threaten those interests. 539 U.S. at view, FBI agents. my governmеnt Here, In the S.Ct. 2174. government has an cannot medicate a mentally ill de- in prosecuting those fendant order to restore him to compe- allegedly have threatened the lives of tency government for trial when the However, knows law enforcement officers. in my view, legally that he was insane the time of Nicklas’s mental condition at knows, alleged offense and with some time of the alleged materially offense off certainty, holding a trial government’s would not sets the interest because disposition affect the ultimate of the case. whether not, Nicklas stands trial or Accordingly, respectfully likely dissent. case will end with a civil commit ment hearing. In the Supreme Court reaffirmed proposition that “an individual has a According to the own ex- ‘significant’ constitutionally prоtected pert, Johnson, ‘lib- Dr. Robert Nicklas was le- erty in ‘avoiding interest’ gally unwanted insane at the time he allegedly com- ” antipsychotic administration of drugs.’ crime, mitted the due to paranoid his 178, 539 U.S. at 123 2174 (quoting S.Ct. schizophrenia. government The does not Washington Harper, 210, 221, 494 U.S. contest this fact and even concedes that it 1028, (1990)). 110 S.Ct. 108 L.Ed.2d 178 “probably” would an acquittal by seek rea- This is injection because forcible insanity trial, “[t]he of son of at not a conviction. nonconsenting such, medication into a person’s As if Nicklas were medicated ‍‌‌​‌​‌‌‌​​​‌​​‌​‌​​‌‌‌​​‌‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​‌​​‌​‍body represents a substantial point trial, interference to the he could stand if and the person’s with that liberty.” Harper, government 494 could proof meet its burden of Indeed, trial, U.S. at 110 S.Ct. 1028. at Nicklas certainly would almost be purpose “when the or effeсt of forced found not guilty by reason of insanity. drugging tois alter the will and the 4243(d), § mind Pursuant to 18 U.S.C. Nicklas subject, it deprivation constitutes a would then face a civil-commitment hear- liberty of in the ing, most literal and funda- in which he would have the burden of 237-38, mental sense.” Id. at proving 110 S.Ct. that “his release would not create (Stevens, J., 1028 dissenting). guard To a bodily substantial risk of injury to anoth- against any intrusions, unwarranted person the er or dаmage property serious of of Supreme demanding, Court articulated a another present due to a mental disease or four-part determining test for when being If, the defect” before released. on the government may forcibly hand, medicate an indi- other charge against the Nicklas

1182 78, 88, L.Ed. 1314 insanity, 55 S.Ct. 79 his U.S. because of were dismissed (“The (1935) Attorney is the still face a civil-commitment States hе would then 4246(d), ordinary party to not to pursuant representative 18 U.S.C. of an hearing a unless controversy, sovereignty he would be released in which but of a whose a suffering presently he found that “is govern impartially is as com obligation to as a result disease or defect all; from a mental obligation govern as its to pelling a sub- release create his would interest, therefore, of which in a criminal and whose injury to another bodily of risk stantial ease, a not it win is that shall prosecution of property to damage or serious person done.”). As justice that shall be the but some Consequently, despite another.” explained in the context of Supreme Court in proof of the variability between burden “Surely in involuntary the an confession: statutes, essentially Nicklas would the two stаge of a most present our civilization a civil-commitment face the same result: by justice of affronted the basic sense is hinge his would in which release hearing a human spectacle incarcerating of assess- dangerousness of on the outcome of the basis a statement made upon ment. insane.” Blackburn v. State Ala while contrary, bama, 199, 207, majority holds the find- S.Ct. 4 The 80 (1960). convicted and I Accordingly, that Nicklas be believe L.Ed.2d previous- has because Nicklas in general pros incarcerated interest government’s the might an insani- ly indicated he not assert ecuting purportedly those send pos- is a conceding this ty defense. While give must threatening way communications prospect mere sibility, I do not believe the liberty this case to Nicklas’s interest. to de- might choose not defendant majority govern- also finds at trial to sustain fend himself is sufficient prose- ment has initial As an the interest. protect the cuting Nicklas order matter, record devoid of generally However, crimes. public from future indicating that Nicklas convincing evidence case, any this under resolution of insanity asserting refrain from would if a court finds him will be be released if at trial he were restorеd defense or danger to either himself to be Supreme competency. Additionally, community. Additionally, is for the or “only an ‘essential’ Court stated court, Court, first lower not our assess justify can for- ‘overriding’ state interest” dangerousness. As a conse- medicating a cibly defendant. government quence, do believe 178-79, (quoting U.S. inter- possesses public-safety sufficient Nevada, 127, 134-35, Riggins v. forcibly medicating Nicklas for trial. est (1992)). 118 L.Ed.2d 479 unintended, an obtaining do not see how reasons, I forgoing For the concur of the perhaps improper, application and dissent part part. law—the conviction of a defendant who indisputably at the time of insane inter- offense—can be “essential” state Indeed, ul-

est.

timately upon pursuing justice rests ‍‌‌​‌​‌‌‌​​​‌​​‌​‌​​‌‌‌​​‌‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​‌​​‌​‍within law, and there is little

the rubric convicting Nicklas

justice to be found in something allegedly wrote while States, Berger

insane. See v. United

Case Details

Case Name: United States v. Nicklas

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Nov 5, 2010

Citation: 623 F.3d 1175

Docket Number: 09-3784

Court Abbreviation: 8th Cir.