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En banc 7th Circuit says IPAS can sue

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Indiana Lawyer Rehearing

"Agency sues DOC over mentally ill prisoners" - IL Aug. 5-18, 2009

Issuing a decision en banc April 22, the 7th Circuit Court of Appeals decided that independent state organization Indiana Protection and Advocacy Services has the right to sue a state government agency about the practices and programs regarding mentally ill inmates.

U.S. Judge David F. Hamilton wrote a 63-page opinion for the full court, which included eight other majority members and one dissenter. The court declined to dismiss the action, reversing a decision last year by a prior three-judge appellate panel on the case of IPAS v. Indiana Family and Social Services Administration, et al., No. 08-3183. The holding affirms a decision by U.S. Judge Larry McKinney, removing the state of Indiana and the FSSA as defendants but keeping alive the claims against the named state officials. Specifically, the court held the 11th Amendment does not bar plaintiff IPAC from seeking injunctive and declaratory relief against the state officials because the federal Protection and Advocacy for Individuals with Mental Illness Act of 1986 provides that cause of action, and that plaintiff is entitled to access peer review records of treatment covered mentally ill patients.

Chief Judge Frank Easterbrook, a member of the original panel reversing Judge McKinney, dissented and said he would have dismissed the suit and let the administrative process take its course.

If this ruling stands and isn't appealed to the nation's highest court, it would likely impact the case of IPAC v. Indiana Department of Correction, No. 1:08-CV-11317, which Judge Hamilton had decided on July 21, 2009, before he was confirmed for the appellate bench. That case is ongoing and now before Chief Judge Richard L. Young. A motion for class certification is pending and the federal court docket shows a five-day bench trial is set for July 25, 2011.

-Michael W. Hoskins

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