Civil rights violation will cost ASH (and you) a grand

February 19, 2008

By DANIEL BLACKBURN

2/19/2008

Two Atascadero State Hospital employees violated a patient’s Constitutional rights in 2004, a federal judge ruled in December.

Melissa A. Roper and Michael C. Groom were found to have made “a substantial departure from professional judgment, practice and standards” and thus were responsible for injuries suffered by Theodric Van Smith in two separate assaults on him by other patients.

U.S. Central District Judge S. James Otero awarded Smith $1,000, on Dec. 10; Smith said this week he hasn’t yet been paid.

Peggy Phaklides, the hospital’s litigation manager for the case, suggested the monetary award will eventually become the responsibility of ASH.

“When someone sues the hospital, they name people, but they are actually suing the facility. It is the policy they are suing, but they have to put a name to it. It’s complicated,” said Phaklides. She said the issue was under discussion at ASH, and that she needed to clear further comment with superiors at the California Department of Mental Health in Sacramento.

Roper is an eight-year ASH employee and a unit supervisor. Groom, whom the court papers describe as a licensed clinical social worker, has been at the institution for 14 years. Phaklides confirmed that at least one, Roper, is still employed at ASH, and is “a very good employee.” Other sources said Groom, too, remains at ASH.

According to court documents, Smith was known by ASH personnel, including Roper and Groom, to have assisted law enforcement as a prosecution witness in the successful conviction of two guards at Pelican Bay State Prison. Those guards were eventually found guilty of coordinating attacks on prisoners with the assistance of Aryan Brotherhood gang members.  Smith, a patient at ASH starting in 2001 in the Sexually Violent Predator (SVP) program, said he required medical treatment after both attacks. He now is at Coalinga’s new state hospital.

Under federal law, mental hospital officials may be liable to patients if they demonstrate “conscious indifference to patients’ safety.” Judge Otero’s decision noted, “In response to known threats to [patients’] safety, state officials may not act (or fail to act) with conscious indifference, but must take steps consistent with professional standards, to prevent harm to patients.”

Smith told the court that he had learned of death threats directed toward him after receiving a letter from Del Norte County Senior Dep. Dist. Atty. James Fallman. The letter read in part: “Because you were a witness in the case of the People v. Jose Garcia, I have reason to believe your life is in danger. This is true because another witness in the case named Billy Boyd was murdered at Pelican Bay because he also testified in the case.”

Fallman, who did testify on Smith’s behalf against ASH, also wrote in his 2002 letter to Smith that “I am hoping that Atascadero State Hospital will provide you with the most sensitive and protective environment that they possibly can, because your safety needs are real and I will so testify if anything happens to you.”

Fallman trailed his correspondence with “numerous” logged telephone calls to ASH expressing his concern that Smith was in mortal danger, Judge Otero wrote in his decision. Other law enforcement personnel involved with the Pelican Bay case sent letters, also.

Smith was first attacked in February 2003 by a patient not identified in court papers. According to the document, Smith informed staff at ASH that the attack was retaliation for his law enforcement cooperation, and that he remained in grave danger.

During ensuing months, alleged Smith, his predicament was ignored by Roper and Groom, even though they were aware of the danger posed to him. Roper and Groom denied this in depositions, but the court ruled against them.

Then, in July 2004, Smith was ambushed and beaten by Rick Hazeltine, a patient who called Smith a “snitch” and “rat” during the attack. Court documents said Judge Otero was “disinclined to believe” Hazeltine’s testimony when he denied at trial that his attack had anything to do with the Pelican Bay prosecutions.

While Smith’s lawsuit was winding through the courts, in April 2006, several semi-nude, erotic photographs of Roper which she had placed on an Internet modeling site called “ModelMayhem.com” began circulating throughout the hospital. One of the photos, identifying her as “Missy,” showed her sitting on a toilet commode that fellow staffers said was located in the ASH facility. In another, she was wearing red panties and holding her forearm across her bare breasts.

The photos created a stir because Roper is a mental health professional whose patients have violent sexual histories.

As a unit supervisor, Roper is a senior member of the ASH group that determines the regimen of treatment, therapy and psychological counseling offered to individual offenders. This is called the “Interdisciplinary Treatment Team (ITT) and is comprised of the unit supervisor, a psychiatrist, psychologist, social worker, and recreational therapist. In her role as unit supervisor, Roper has the authority to penalize patients and by so doing threaten them with longer incarceration if patients even appear to be having sexual thoughts about staff.

Barrie Hafler, then the public information officer at ASH, said at the time that the Web postings “present no legal or personal violation. There is nothing we can do. This is a personal issue as long as she conducts herself appropriately at work… which she does.”

As for Smith, he said he’s still worried about his safety, adding, “It’s not about the money. I just think they should be treating people better.”