17-3506-pr
Charles v. Orange County




                           UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT




                                   August Term, 2018

                                Argued: September 25, 2018
                                  Decided: May 24, 2019

                                     No. 17-3506-pr



                             MICHELET CHARLES, CAROL SMALL,

                                                      Plaintiffs-Appellants,

                                         — v. —

 ORANGE COUNTY, STATE OF NEW YORK, ORANGE COUNTY SHERIFF’S DEPARTMENT,
 ORANGE COUNTY DEPARTMENT OF MENTAL HEALTH, CARMEN ELIZONDO, FORMER
  CLINIC DIRECTOR, ORANGE COUNTY CORRECTIONAL FACILITY, in her individual
                               capacity,

                                                      Defendants-Appellees,

 NICOLE KAYE, CLINIC DIRECTOR, ORANGE COUNTY CORRECTIONAL FACILITY, in her
                            individual capacity,

                                                      Defendant.
B e f o r e:

               LYNCH and HALL, Circuit Judges, and BOLDEN, District Judge.*




       Plaintiffs-Appellants Michelet Charles and Carol Small were formerly civil
immigration detainees at the Orange County Correctional Facility, where they
were treated for serious mental illnesses. They instituted this civil rights action
against Orange County and some of its agencies and officials under 42 U.S.C.
§ 1983, complaining that the failure to engage in discharge planning or to provide
them with discharge plans upon release violated their substantive due process
rights under the Fourteenth Amendment. The United States District Court for the
Southern District of New York (Nelson S. Román, J.) granted the Defendants’
motion to dismiss the complaint. We VACATE and REMAND for further
proceedings.



                      DANIEL J. STUJENSKE, Simpson Thacher & Bartlett LLP, New
                           York, NY (Thomas C. Rice, Simpson Thacher & Bartlett
                           LLP, on the brief), Laura F. Redman, Antony P. F. Gemmell,
                           New York Lawyers for the Public Interest, New York, NY
                           for Plaintiffs-Appellants Michelet Charles and Carol Small.

                      ANTHONY CARDOSO, Orange County Attorney’s Office, Goshen,
                          NY, for Defendants-Appellees Orange County, State of
                          New York, Orange County Sheriff’s Department, Orange
                          County Department of Mental Health and Carmen
                          Elizondo, Former Clinic Director, Orange County
                          Correctional Facility, in her individual capacity.


*
 Judge Victor A. Bolden, of the United States District Court for the District of
Connecticut, sitting by designation.

                                            2
Aaron M. Panner, Kellogg, Hansen, Todd, Figel & Frederick,
     P.L.L.C., Washington, DC (Ira A. Burnim, Judge David C.
     Bazelon Center for Mental Health Law, Washington, DC,
     on the brief), for Amici Curiae American Psychiatric
     Association, American Academy of Psychiatry and the
     Law, American Psychological Association, American
     Medical Association, National Association of Social
     Workers, American Public Health Association, and Judge
     David L. Bazelon Center for Mental Health Law, in
     support of Plaintiffs-Appellants.

Jamie A. Levitt, Morrison & Foerster LLP, New York, NY, for
      Amici Curiae The Bronx Defenders, Brooklyn Defender
      Services, Community Initiatives for Visiting Immigrants
      in Confinement, Detention Watch Network, The Florida
      Justice Institute, Inc., Human Rights First, Immigrant
      Defense Project, The Immigrant Rights Clinic of
      Washington Square Legal Services, Inc., at NYU Law
      School, the Kathryn O. Greenberg Immigration Justice
      Clinic at the Benjamin N. Cardozo School of Law, The
      Legal Aid Society of New York, The Prison Law Office,
      Prisoners’ Legal Services of New York, and the Urban
      Justice Center Mental Health Project, in support of
      Plaintiffs-Appellants.

Alexander M. Wilson, New York State Sheriffs’ Association,
     Albany, NY for Amicus Curiae New York State Sheriffs’
     Association, in support of Defendants-Appellees.




                    3
GERARD E. LYNCH, Circuit Judge:

      The question before us is whether the Plaintiffs-Appellants, Michelet

Charles and Carol Small, have stated a plausible claim for relief under the

Fourteenth Amendment for deliberate indifference to their serious medical

needs. Plaintiffs were confined for many months as civil immigration detainees at

the Orange County Correctional Facility, where they received treatment for their

serious mental health disorders. Defendants-Appellees are Orange County, the

municipality that oversees the Orange County Correctional Facility (“the Jail”);

the Orange County Sheriff’s Office, the specific entity that contracts with the

Federal Government to house detainees in the Jail; the Orange County

Department of Mental Health, the agency responsible for providing mental

health services to people confined at the Jail; and Carmen Elizondo, the Clinical

Director at the Jail.1 Plaintiffs filed a complaint in the United States District Court

for the Southern District of New York alleging that the Defendants, who were

responsible for providing them with medical care while they were detained at the

Jail, failed to provide them with mental health discharge planning before their



1
 The parties stipulated to the dismissal of this appeal with prejudice with respect
to former defendant Nicole Kaye.

                                           4
release from custody, in violation of the Fourteenth Amendment’s Due Process

Clause. Plaintiffs seek relief under 42 U.S.C. § 1983.

      The district court (Nelson S. Román, J.) dismissed Plaintiffs’ complaint for

failure to state a claim. For the reasons that follow, we VACATE that judgment,

and REMAND for further proceedings.

                                  BACKGROUND

      Both Plaintiffs suffer from serious, ongoing mental illnesses.2 Each Plaintiff

was arrested by agents of the U.S. Immigration and Customs Enforcement

(“ICE”), the federal law enforcement agency charged with the detention and

removal of illegal immigrants. While awaiting their removal proceedings,

Plaintiffs were detained at the Jail, a county detention facility that houses civil

immigration detainees pursuant to an intergovernmental agreement between ICE

and Orange County. During their detention, Plaintiffs were treated for their

illnesses, receiving counseling and psychotropic medication. However, the

treatment Plaintiffs received while they were in custody did not include




2
 On this appeal from the dismissal of a complaint for failure to state a claim, we
take the allegations in the complaint as true and construe them in the light most
favorable to Plaintiffs. See Ashcroft v. Iqbal, 556 U.S. 662, 678–80 (2009).

                                          5
discharge planning, which Plaintiffs allege is a routine and necessary component

of institutional mental health treatment. Plaintiffs claim that as a result of

Defendants’ failure to provide them with discharge planning while they were in

custody, they suffered serious mental health consequences shortly after their

release.

I.    Michelet Charles

      Plaintiff Michelet Charles is a 55-year old lawful permanent resident who

has lived in the United States for 34 years. Charles has suffered from bipolar and

schizoaffective disorders since around 1984. For years, he managed his illness

through regular mental health care. When Charles is not treated for his illnesses,

he suffers from hallucinations, delusions, and periods of mania and depression.

      In July 2014, Charles was arrested by ICE officials and detained at the Jail

for 363 days during the pendency of his immigration case.3 When Charles




3
 ICE and Orange County confine hundreds of people in civil immigration
detention at the Orange County Detention Center every year pursuant to an
Inter-Governmental Services Agreement between ICE and Orange County. Civil
immigration detainees are held in custody to assure their presence throughout
the administrative removal proceedings. Such detainees are not charged with
crimes. Nevertheless, civil immigration detainees are housed in conditions
similar to those experienced by detainees awaiting trial on criminal charges.

                                           6
entered the detention center, medical personnel at the facility diagnosed him

with bipolar disorder with psychotic features. During his detention, Defendants

provided Charles with psychiatric care, which included meeting with a

psychiatrist every three weeks in order to monitor his condition, and daily

psychotropic medication to keep him stable. Charles’s treatment was

documented by the Jail Clinic in an “Intervention/Care Plan” which listed his

diagnosis, the types of counseling Charles received, the medication he required,

and any suicidal or harmful tendencies he had.

         On July 22, 2015, Charles was brought from the Jail to New York City for

an appearance at the Immigration Court in lower Manhattan. Prior to his

immigration hearing, Defendants had not provided Charles with any plan for his

continued mental health care after discharge, a list of his medications, a list of

outside referrals, any other information about the medication and counseling he

received while detained, or assistance or information relevant to his obtaining

future treatment for his known medical condition. Nor were any such materials

provided to Charles at or after his hearing. Charles succeeded at his immigration

hearing4 and was released directly from the court with his identification and

4
    The record does not reflect the precise disposition of the matter.

                                            7
nothing more. The ICE Deportation Officer who attended the hearing told

Charles’s attorney that ICE did not have any medication for Charles, and that he

should return to the Jail if he needed to obtain a supply of his medication.

      The day after his release, Charles and his daughter drove over 65 miles

from their home to the Jail to obtain Charles’s psychiatric medication. When

Charles’s daughter asked an employee at the front desk of the Jail for her father’s

medication, the employee refused to provide it, claiming that the person who had

transported Charles to the Immigration Court was responsible for providing him

with a continuing supply of medication. The Orange County employee also

informed Charles and his daughter that as a matter of institutional policy, after a

person is released from the facility, the Jail can no longer provide him with

medication.

      Charles’s immigration attorney then contacted the ICE Deportation Officer

again, requesting that Charles be provided with a supply of medication. The

Officer did not respond to the inquiry. According to Charles’s medical file from

the Jail, on July 23, 2015, the day after his release, and the same day that he

visited the facility with his daughter, a clinical social worker at the Jail signed a

document entitled “Continuing Care Plan/Discharge Summary” (“Discharge


                                           8
Summary”) for Charles. The Discharge Summary listed Charles’ diagnosis and

expressly anticipated that Charles would have future mental health needs

including medication, psychiatric treatment, and substance abuse treatment.

However, neither Charles nor his attorney was given a copy of the Discharge

Summary.

      After his release, without immediate access to his prescription anti-

psychotic and anti-depressant medications and counseling, Charles soon began

psychologically decompensating. He exhibited bizarre behavior, was

disorganized, and mumbled when he spoke. His family reported that he was

manic, anxious, and paranoid.

      By August 4, 2015, Charles was experiencing symptoms of psychosis, and

his ability to control his thoughts and emotions was so impaired that he lost

contact with reality. On that date, Charles’s family called 911 for emergency

medical assistance. The police officers who responded to the call transported him

to the emergency room at a nearby hospital. The next day, Charles was

hospitalized in an inpatient psychiatric unit of North Shore LIJ South Oaks

Hospital. His admission record states that he had worsening aggressive,

disorganized, and bizarre behavior, and was preoccupied with paranoid ideas. It


                                        9
took two months in the hospital for Charles’s condition to stabilize and for him to

return to his baseline mental state.

II.   Carol Small

      Plaintiff Carol Small is a 45-year old lawful permanent resident of the

United States. Before she was detained, Small lived on her own and supported

herself as a hairdresser in the Bronx.

      Small was detained at the Jail in May 2015. After about a month of

detention, Small began experiencing symptoms of severe mental illness,

including visual and auditory hallucinations. She became extremely paranoid

and delusional, believing that she was being monitored by the government

through a chip implanted in her tooth, that there was a government conspiracy to

poison her, and that poison was coming through the vents in the Jail. In late June

2015, a psychiatrist at the Jail diagnosed Small with paranoid schizophrenia.

Similarly to Charles, her diagnosis, medications, and counseling needs were

documented by the Jail Clinic in a document titled “Intervention/Care Plan.” But

like Charles, Small was not provided with a copy of that document.

      In September 2015, Small was transferred to the inpatient ward at Kings

County Hospital for intensive treatment for her mental illness. In October, after


                                         10
her condition stabilized, she was transferred back to the Jail. Upon her return,

medical employees of the Orange County Department of Mental Health provided

Small with medically necessary treatment and continued to prescribe and

administer her daily prescription medication, which kept her stable.

         On January 11, 2016, an Immigration Judge granted Small immigration

relief and ordered her release.5 Small was released from the Jail on January 19,

2016 at around 6:30 PM, in below-freezing temperatures, with $80 in cash. Small

was not given an interim supply of her prescribed medicines, a list of her

medications, a description of the treatment she had received while detained, or a

list of outside referrals or providers for continuing care. During the roughly six

months in which Small was treated for her mental illness at the Jail, she was not

provided with any discharge planning.

         Upon her release, Small took the train from Orange County to Penn

Station. She stayed briefly with family members, and then a social worker from

the organization that had provided Small with immigration representation

arranged for her to live in a shelter. While Small was struggling to re-establish

her life after release, she was extremely distressed and worried for her own

5
    Again, the record does not describe the exact nature of the disposition.

                                           11
health and the possibility of relapsing without the medication she had been

taking to treat her mental illness. On January 21, 2016, Small checked herself into

the emergency room at North Central Bronx Hospital in an effort to obtain

medication. Because Small had written down a list of the medications she was

taking while detained, the hospital was able to prescribe her the same

medications without a full psychological evaluation. These events were

emotionally distressing for her.

III.   Procedural History

       Plaintiffs filed a complaint (the “Complaint”) on July 12, 2016, asserting

violations of the Fourteenth Amendment. They claim that substantive due

process requires that civil detainees be afforded adequate medical care during

their detention, and that their medical care should have included discharge

planning, because of their serious mental illnesses. They allege that discharge

planning is regarded by medical and psychological professionals as an essential

part of mental health care, especially in institutional settings, where it is

necessary to mitigate the risks of interrupted treatment while patients transition

from treatment within the institution to other sources of treatment. Plaintiffs

contend that by failing to provide them with discharge planning, Defendants


                                          12
were deliberately indifferent to the risk that Plaintiffs would relapse upon release

and face mental decompensation and other serious health consequences.

      On January 30, 2017, Defendants moved to dismiss the entire Complaint

for failure to state a claim. Defendants argued that there is no established

substantive due process right to the post-release measures inherent in discharge

plans. On their view, the government’s duty of care ends the instant the inmate

walks through the prison gates and into the civilian world, because that is when

the inmate’s ability to secure medication or care on his own behalf is restored.

      On September 29, 2017, the district court granted Defendants’ motions.6 See

Charles v. County of Orange, No. 16-CV-5527 (NSR), 2017 WL 4402576 (S.D.N.Y.

Sept. 29, 2017). The district court construed the Complaint as stating three claims

under § 1983: (1) a Monell claim against Orange County, the Orange County

Sheriff’s Department, and the Orange County Department of Mental Health (the

“County Defendants”) alleging a policy, practice and custom of providing

constitutionally inadequate health care to persons held in civil immigration

detention; (2) a claim against all Defendants for deliberate indifference to



6
 Defendants-Appellants filed one joint motion and former defendant Kaye filed a
separate motion.

                                         13
Plaintiffs’ serious medical needs by discharging them from the Jail without

adequate discharge plans; and (3) supervisory liability claims against Kaye and

Elizondo (the “Individual Defendants”), successive clinic directors at the Jail,

who Plaintiffs claim were responsible for providing them with medical treatment

while they were detained.

      The district court recognized that the Fourteenth Amendment Due Process

Clause requires a correctional facility to provide medical care to detainees while

they are in custody. But it understood the Complaint to claim that Defendants

did not provide Plaintiffs with necessary medical treatment after they were

released. The district court concluded that even though the Plaintiffs had

adequately pled that the Defendants were deliberately indifferent to their serious

medical needs, the standard they would have to meet if they alleged a

constitutional violation while they were in custody, Plaintiffs’ claims failed

because the failure of treatment did not “shock the conscience.” Since Plaintiffs’

substantive Fourteenth Amendment claim failed, the district court declined to

address the Monell claim against the County Defendants, or the supervisory

liability claim against the Individual Defendants.




                                         14
      Because the district court construed Plaintiffs’ allegations as regarding

deliberate indifference to post-custody medical care, rather than deliberate

indifference to needed in-custody medical care, the district court applied the

wrong standard in determining whether Plaintiffs adequately pled a Fourteenth

Amendment violation. We therefore vacate the district court’s dismissal of the

Complaint and remand for further proceedings.

                                    DISCUSSION

      We review de novo a district court’s grant of a motion to dismiss pursuant

to Rule 12(b)(6) and grant of a motion for judgment on the pleadings under Rule

12(c). See Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 156–57 (2d Cir. 2017);

Kirkendall v. Halliburton, Inc., 707 F.3d 173, 178 (2d Cir. 2013). In considering

Defendants’ motions, we accept as true all factual allegations in the Complaint

and draw all reasonable inferences in Plaintiffs’ favor. See id.

      At this stage, we need decide only whether Plaintiffs’ claims are facially

plausible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged. The plausibility standard is not akin to a probability requirement, but it


                                          15
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

(internal citations and quotation marks omitted).

I.    Discharge Planning as In-Custody Care

      On appeal, Plaintiffs argue that the district court misconstrued the

allegations in their Complaint and therefore applied an incorrect legal analysis to

their Fourteenth Amendment claims. The district court construed Plaintiffs’

Complaint as contending that the Defendants owed Plaintiffs a duty to provide

them with limited medical care after they had been released from custody.

      Plaintiffs argue that the deprivation of care that they allege in fact occurred

during their detention, because discharge planning occurs before release from

custody. Their argument is consistent with the Complaint, which clearly purports

to allege an in-custody deprivation of care. Whether Plaintiffs’ claim for

deprivation of discharge planning, which negatively affected them after their

release from custody, can be considered a claim for in-custody deprivation of

care is an important question in this case.

      This distinction matters because the duties state actors owe to individuals

differ depending on whether the complainant was in the state’s custody. As a

general matter, the state is under no constitutional duty to provide substantive


                                         16
services to free persons within its borders. See DeShaney v. Winnebago Cty. Dep’t of

Soc. Servs., 489 U.S. 189, 196 (1989). But when a person is involuntarily held in

state custody, and thus wholly dependent upon the state, the state takes on an

affirmative duty to provide for his or her “safety and general well-being.” Id. at

199–200. This “special relationship exception” imposes a duty on the state in

recognition of “the limitation which [the state] has imposed on [the person’s]

freedom to act on his own behalf.” Id. at 200; see also Matican v. City of New York,

524 F.3d 151, 156 (2d Cir. 2008).

      In Estelle v. Gamble, 429 U.S. 97, 103 (1976), the Supreme Court held that the

state has a constitutional obligation to provide medical care to persons it is

punishing by incarceration. When the state is deliberately indifferent to the

medical needs of a person it has taken into custody, it violates the Eighth

Amendment’s prohibition on cruel and unusual punishment. Id. at 104. The

Supreme Court subsequently extended the protections for prisoners established

in Estelle to civil detainees under the Due Process Clause of the Fourteenth

Amendment, reasoning that persons in civil detention deserve at least as much

protection as those who are criminally incarcerated. See Youngberg v. Romeo, 457

U.S. 307, 321–22 (1982); City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).


                                          17
The Ninth Circuit has extended the reasoning of Estelle and DeShaney beyond the

moment of release from custody, holding in Wakefield v. Thompson, 177 F.3d 1160,

1164 (9th Cir. 1999), that the state owes an affirmative duty to provide an

outgoing prisoner requiring medication with a “supply sufficient to ensure that

he has that medication available during the period of time reasonably necessary

to permit him to consult a doctor and obtain a new supply.” The Ninth Circuit

based this holding on a matter of common sense: “that a prisoner’s ability to

secure medication ‘on his own behalf’ is not necessarily restored the instant he

walks through the prison gates and into the civilian world.” Id. This Court,

however, has never held that the state’s duties to an inmate or detainee extend

beyond their release.

      Plaintiffs’ theory in this case is that “[d]ischarge planning is an essential

part of mental healthcare in institutional settings” and “Defendants are

constitutionally obliged to provide Plaintiffs with adequate medical care while

they are confined to immigration detention.” App’x at 10. Plaintiffs allege that

discharge planning includes providing the detainee with (1) a summary of

medical records (including admission diagnosis, discharge diagnosis, all

diagnostic test results, a list of medications prescribed, a summary of care


                                         18
provided, a summary of the detainee’s response to treatment, medical

complications encountered, and any outside healthcare referrals); (2) an interim

supply of medication; and (3) a continuity of care plan, including referrals to

community based providers. Plaintiffs’ Complaint alleges that the provision of

these services and documents should begin being provided to the patient at the

outset of in-custody medical treatment, and continue during the course of

treatment.

      Plaintiffs’ theory raises a legal question of first impression in this Circuit:

whether a claim of constitutional entitlement to discharge planning, the alleged

inadequacy of which causes post-release harm, can be considered a claim to in-

custody care cognizable under the “special relationship” exception. Discharge

planning is fundamentally different from other measures or types of care to

which detainees may be entitled while in custody, in that its entire purpose is to

prevent post-release harm. Given the reality that the tangible harm Plaintiffs

suffered was a direct result of their lack of medication and medical records after

release from custody, the District Court understandably construed the Complaint

as asserting “a right to post-release measures inherent in discharge planning.”

Charles, 2017 WL 4402576, at *8.


                                          19
      Nevertheless, discharge planning is not so different from other measures

the state takes in providing care to those in its custody as to be categorically

beyond the reach of the “special relationship” exception. If discharge planning is

to occur at all, it must, by definition, occur prior to release from custody. Whether

the three components of discharge planning that Plaintiffs identify are an

“essential part” of mental healthcare, as Plaintiffs allege, is a factual matter that

may be proven at a later stage of litigation by expert testimony. If discharge

planning is essential to providing care for mentally ill individuals, the rationale

for the “special relationship” exception applies to this need no less than the need

for other types of care. As the Supreme Court recognized in Estelle, “an inmate

must rely on prison authorities to treat his medical needs; if the authorities fail to

do so, those needs will not be met.” 429 U.S. at 103. The Supreme Court in Estelle

was concerned with failures to provide care that may result in death or

“unnecessary” “pain and suffering.” Id. The failure to provide discharge

planning, no less than other forms of care, may inflict such suffering. In this case,

furthermore, it cannot be said that when the County released Plaintiffs, it “placed

[them] in no worse position than that in which [they] would have been had it not

acted at all . . .” DeShaney, 489 U.S. at 201; see App’x at 18, 21–22 (Charles); id. at

24 (Small).

                                           20
      That the harmful consequences of a lack of discharge planning occur after

release from custody does not remove discharge planning from the purview of

the “special relationship” exception. For example, we affirmed application of this

exception where an inmate died a few weeks after being released from custody,

allegedly due to the facility’s inadequate medical treatment. Rodriguez ex rel.

Estate of Darby v. Walrath, 94 F. App’x 864 (2d Cir. 2004).8

      Common sense and experience further support Plaintiffs’ theory that

discharge planning is part of in-custody care. It comports with common sense

that someone with a serious mental illness would need to receive a summary of

his medical records, including documents indicating his diagnosis and his

prescribed medications. These aspects of a discharge plan are expected parts of

8
 Similarly, in Lugo v. Senkowski, 114 F. Supp. 2d 111, 115 (N.D.N.Y. 2000), the
plaintiff had surgery to remove kidney stones while incarcerated. He was
released on parole shortly thereafter, but before Lugo’s treating physician was
able to remove a metal stent from his kidney. Id. Noting that Lugo “was
undergoing continuing treatment at the time he was released,” the district court
held that releasing Lugo with the stent in his body, and without either allowing
him to return to Albany for treatment or forwarding his medical records to
another facility to facilitate the performance of the operation there constituted
deliberate indifference. Id. Although Plaintiffs’ theory in this case does not
require us to reach the question of whether the state’s duty of care extends
beyond a detainee’s release from custody, as the district court in Lugo held, the
facts in Lugo illustrate how a failure to provide certain in-custody care may have
harmful post-release effects that are inextricably bound up with that in-custody
deprivation.

                                          21
what non-incarcerated patients seek, and pay for, in visiting doctors and

hospitals for treatment. Those who have seen a doctor, visited a hospital

emergency room, undergone surgery, or received any kind of medical treatment

for a serious physical, emotional, dental or visual problem, understand the need

for, and have likely been provided, documentation of the medications prescribed

to them, their diagnosis, and a copy of any test results, during the course of their

treatment. Thus, to the extent Plaintiffs complain that they were not provided

with documentation regarding the treatment they received while in custody,

their complaint relates to the provision of in-custody medical care.

      These common-sense understandings are consistent with expert medical

opinion. Plaintiffs point to a broad array of professional mental health and

medical associations who agree that the standard of reasonable and adequate

medical care for detained persons includes providing the detainee with interim

medications and referrals while they are still in custody. For example, the American

Psychiatric Association views discharge planning as in-custody care, stating that

it “needs to begin as part of the initial treatment plan.” Brief of Bronx Defenders

et al. as Amici Curiae Supporting Appellants at 21. The American Association of

Community Psychiatrists says that “it is imperative that any psychiatric

treatment provided during a period of incarceration include planning for post-

                                          22
release follow-up care in the community.” App’x at 30 (emphasis added). The

National Commission on Correctional Health Care, from which the Jail has

sought and obtained accreditation, defines discharge planning as “the process of

providing sufficient medications for short-term continuity upon release and

arranging for necessary follow-up mental health services before the inmate’s release

to the community.” Id. at 31 (emphasis added). Such expert medical opinion

supports the plausibility of Plaintiffs’ claim of a deprivation of in-custody care.

      We also find plausible Plaintiffs’ contention that the provision of interim

medication and referrals is part of the treatment that should have been provided

to them while they were in custody. The American Psychiatric Association, the

American Academy of Psychiatry and the Law, the American Psychological

Association, the American Medical Association, the National Association of

Social Workers, the American Public Health Association, and the Judge David L.

Bazelon Center for Mental Health (collectively the “APA Amici”) wrote in

support of Plaintiffs to explain that discharge planning, which includes a

sufficient quantity of medication to allow continuous use, conducting a pre-

discharge assessment, establishing appointments with community providers, and

ensuring that medical records are effectively transferred to community

providers, is an essential component of minimally adequate mental health care


                                         23
for institutional patients. APA Amicus Brief at 13–14. These views are consistent

with how we think of medical services in a non-custodial setting. Doctors

routinely provide their patients with instructions on how to treat their illnesses

after they leave the doctor’s office, provide their patients with referrals to other

healthcare providers when necessary, and refill their patients’ prescriptions so as

to avoid a lapse in care. Such services are particularly essential for patients who

are hospitalized or otherwise confined, to make possible continuity of care after

their release.

      That discharge planning is supposed to occur before release is also

referenced in a variety of guidelines and regulations promulgated by correctional

authorities. For example, ICE’s own Performance Based National Detention

Standards require discharge planning prior to release.9


      Thus, taking Plaintiffs’ allegations as true and drawing all reasonable



9
  That the contents of a discharge plan or package may be provided at or about
the time of release does not defeat the claim that the preparation and planning
for after-care is an inherent part of proper medical treatment. That a package of
after-care instructions, medication, and medical equipment such as dressings or
bandages is provided to a paying patient by a staff member on the way out of an
emergency room or doctor’s office by a nurse or receptionist, rather than in the
treatment room itself by the primary care physician, does not mean that it is not
an inherent part of the treatment required of the doctor or hospital; the same is
true for a patient who is in custody.

                                          24
inferences in their favor, we find that Plaintiffs have plausibly alleged that

discharge planning is an essential part of in-custody care. We conclude that

despite the forward-looking nature of discharge planning, a claim for damages

caused by the lack of it can be considered a claim for deprivation of in-custody

care for purposes of the “special relationship” exception. It will be for Plaintiffs to

prove to a fact-finder, on remand, that the care they complain of is the type that

should have been provided to them during their detention.10


II.   The Appropriate Standard for the Deprivation of In-Custody Care

      Once we accept that Plaintiffs’ theory regards the adequacy of medical care

Plaintiffs received while in custody, the legal framework that applies to their claim

becomes clear. It is well established that when the state takes a person into

custody, severely limiting his ability to care for himself, and then is deliberately

indifferent to his medical needs, the Eighth Amendment’s proscription against



10
  In recognizing that Plaintiffs’ claim for deprivation of discharge planning may
be cognizable under the “special relationship” exception, we do not hold that any
detainee who receives medical treatment while detained and subsequently
suffers a potentially preventable health problem may assert a Fourteenth
Amendment claim by alleging inadequate discharge planning. The facts alleged
in this case show a clear causal link and temporal proximity between the lack of
discharge planning and the negative effects on Plaintiffs, in addition to a serious
medical need for discharge planning and deliberate indifference to that need, as
discussed below.

                                          25
the unnecessary and wanton infliction of pain is violated. Estelle, 429 U.S. at 104.

That is true whether the deliberate indifference is manifested by prison doctors in

their response to the prisoner’s needs, or by prison guards who intentionally

deny or delay access to medical care or intentionally deny or delay access to the

treatment once prescribed. Id. at 104–05. The Estelle Court concluded that to state

a cause of action under § 1983 for violations of the Eighth Amendment’s Cruel

and Unusual Punishment Clause, a prisoner must show that the state was

deliberately indifferent to his or her medical needs. Id. at 105. As discussed

above, pursuant to the Due Process Clause of the Fourteenth Amendment, the

Supreme Court has extended to civil detainees Estelle’s protection for prisoners

under the Eighth Amendment. See Youngberg, 457 U.S. at 321–22; City of Revere,

463 U.S. at 244. Thus, those in civil detention, as were Plaintiffs in this case, are

also afforded a right to be free from deliberate indifference to their serious

medical needs.

      “In order to establish a violation of a right to substantive due process, a

plaintiff must demonstrate not only government action but also that the

government action was so ‘egregious, so outrageous, that it may fairly be said to

shock the contemporary conscience.’” Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir.

2005) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). The

                                          26
Supreme Court has held that the point of conscience shocking is reached when

government actors are deliberately indifferent to the medical needs of pretrial

detainees. Lewis, 523 U.S. at 849–50; see Estelle, 429 U.S. at 104–06; City of Revere,

463 U.S. at 244. In this particular context, “deliberately indifferent conduct” is

“egregious enough to state a substantive due process claim.” Lewis, 523 U.S. at

849–50. A court need not, therefore, conduct a separate analysis, over and above

the deliberate indifference analysis, of whether the state’s conduct “shocks the

conscience.”11

      In accepting, at this stage, Plaintiffs’ theory that discharge planning is an

essential part of in-custody medical care and that Plaintiffs were therefore

deprived of adequate medical care while in state custody, Plaintiffs fall well

within the “special relationship” exception. Therefore, Plaintiffs’ Fourteenth

Amendment claim must meet two requirements: (1) that Plaintiffs had a serious

medical need for discharge planning, and (2) that the Defendants acted with


11
  We have applied a separate “shocks the conscience” analysis in cases that do not
involve the medical needs of those the state has taken into custody. See, e.g., Matican,
524 F.3d at 155 (requiring plaintiff to show conscience-shocking behavior on the part of
the state where plaintiff confidential informant was harmed while on the streets, not in
a prison or jail); Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007) (requiring proof of
conscience-shocking behavior when plaintiffs alleged government made false
assurances that workplace would be safe, although plaintiffs were not in custody).

                                           27
deliberate indifference to such needs. See Estelle, 429 U.S. at 105; Darnell v. Pineiro,

849 F.3d 17, 29 (2017).

      A.     Serious Medical Needs

      Depending on their severity, psychiatric or psychological conditions can

present serious medical needs in light of our contemporary standards. See e.g.,

Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). The serious medical needs

standard contemplates a condition of urgency such as one that may produce

death, degeneration, or extreme pain. See Hathaway v. Coughlin, 99 F.3d 550, 553

(2d Cir. 1996). In determining whether a medical need is sufficiently serious to be

cognizable as a basis for a constitutional claim for deprivation of medical care, we

consider factors such as whether a reasonable doctor or patient would find the

injury important and worthy of treatment, whether the medical condition

significantly affects an individual’s daily activities, and whether the illness or

injury inflicts chronic and substantial pain. See Chance v. Armstrong, 143 F.3d 698,

702 (2d Cir. 1998). In most cases, the actual medical consequences that flow from

the denial of care are highly relevant in determining whether the denial of

treatment subjected the detainee to a significant risk of serious harm. See Smith v.

Carpenter, 316 F.3d 178, 187 (2d Cir. 2003).


                                           28
      B.     Deliberate Indifference

      The concept of deliberate indifference has a more complicated history in

this Circuit. See Darnell, 849 F.3d at 32–36 (explaining how the concept of

deliberate indifference has evolved in the case law since Farmer v. Brennan, 511

U.S. 825 (1994)). In Darnell, we clarified that deliberate indifference, in the context

of a Fourteenth Amendment due process claim, can be shown by something akin

to recklessness, and does not require proof of a malicious or callous state of mind.

849 F.3d at 33–34. Deliberate indifference, we held, can be established by either a

subjective or objective standard: A plaintiff can prove deliberate indifference by

showing that the defendant official “recklessly failed to act with reasonable care

to mitigate the risk that the condition posed to the pretrial detainee even though

the defendant-official knew, or should have known, that the condition posed an

excessive risk to [the plaintiff’s] health or safety.” Id. at 35 (emphasis added). This

formulation of the deliberate indifference standard was developed in cases

involving unconstitutional conditions of confinement. In Darnell, the plaintiffs

complained, inter alia, that the facility where they were detained was unsafe and

unsanitary. Id. at 23–26. Although Darnell did not specifically address medical

treatment, the same principle applies here. See id. at 33 n.9 (noting that the same


                                          29
standard applies to claims for deliberate indifference to medical needs because

“deliberate indifference means the same thing for each type of claim under the

Fourteenth Amendment”).

      A plaintiff must show “something more than mere negligence” to establish

deliberate indifference in the Fourteenth Amendment context. Weyant v. Okst, 101

F.3d 845, 856 (2d Cir. 1996). Thus, “mere medical malpractice is not tantamount

to deliberate indifference, but it may rise to the level of deliberate indifference

when it involves culpable recklessness, i.e., an act or a failure to act . . . that

evinces a conscious disregard of a substantial risk of serious harm.” Cuoco, 222

F.3d at 107 (internal quotation marks and alteration omitted).

      Thus, a detainee asserting a Fourteenth Amendment claim for deliberate

indifference to his medical needs can allege either that the defendants knew that

failing to provide the complained of medical treatment would pose a substantial

risk to his health or that the defendants should have known that failing to provide

the omitted medical treatment would pose a substantial risk to the detainee’s

health.

      Whether the state knew or should have known of the substantial risk of

harm to the detainee is a question of fact subject to demonstration in the usual


                                            30
ways, including inference from circumstantial evidence. Farmer, 511 U.S. at 842;

see also Hathaway, 37 F.3d at 67–69 (whether doctor was deliberately indifferent to

inmate’s serious medical needs was for jury). “A factfinder may conclude that a

prison official knew of a substantial risk from the very fact that the risk was

obvious.” Farmer, 511 U.S. at 842.

        Thus, to sustain their § 1983 cause of action, Plaintiffs must plausibly allege

that they had a sufficiently serious medical need requiring discharge planning

and that the deprivation of such planning was inflicted under circumstances

constituting deliberate indifference.

III.    Whether Plaintiffs Had Sufficiently Serious Needs Requiring Discharge
        Planning

        Plaintiffs have plausibly alleged that they had a sufficiently serious need

for discharge planning given their serious mental illnesses. Plaintiffs’ mental

illnesses cause paranoia, delusions, hallucinations and aggressive shifts in mood

when they go untreated. Without continuous care and daily medication to keep

them mentally stable, Plaintiffs face serious risk of physical and psychological

harm.

        Plaintiffs’ theory that discharge planning is integral to institutional mental




                                           31
health care is supported by their citations to professional organizations in the

mental health field. Many professional organizations that determine appropriate

standards of mental health care regard discharge planning as an essential

component of care for the institutionalized mentally ill, including not only

sentenced prisoners and civil and criminal detainees with serious mental

illnesses, but also those, whether voluntarily hospitalized or involuntarily

committed, who are institutionalized for the very purpose of treating their

mental illnesses. For example, Plaintiffs point to guidance by the American

Psychiatric Association, the primary professional association of psychiatrists in

the United States and the largest psychiatric professional organization in the

world, which recognizes that “[t]imely and effective discharge planning is

essential to continuity of care and an integral part of adequate mental health

treatment.” App’x at 29.

      Plaintiffs’ allegations regarding the importance of discharge planning are

corroborated by what befell them when such planning was not provided to them.

See Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996). Because Plaintiffs were not

provided with discharge plans, Plaintiffs allege they both faced an abrupt

interruption in their care causing them to suffer significant mental health


                                         32
consequences. Charles suffered complete psychiatric decompensation shortly

after being released. His family was forced to call 911 for emergency medical care

and he required two months of hospitalization to regain mental stability. Small

was somewhat more fortunate. She received treatment before she fully

decompensated, but she was still forced to check herself into a hospital

emergency room within days of her release and continues to suffer extreme

emotional and psychological distress.

      We therefore find plausible Plaintiffs’ allegations that they had serious

medical needs requiring discharge planning. Of course, those are only

allegations: we leave it to the fact-finder, or to summary judgment after

discovery, to determine whether the facts, as developed, prove that Plaintiffs had

a serious medical need requiring discharge planning and if so, in what form.

IV.   Whether the Defendants’ Failure to Provide Discharge Planning to
      Plaintiffs Constituted Deliberate Indifference

      Plaintiffs have also sufficiently alleged that Defendants knew or should

have known that failing to provide them with discharge planning would cause

Plaintiffs substantial harm. According to Plaintiffs, Defendants knew the serious

nature of Plaintiffs’ mental health conditions; they diagnosed Plaintiffs,




                                         33
maintained their medical records, created treatment plans for them, and

prescribed anti-psychotic and anti-depressant medication for them. As noted

above, Plaintiffs point to guidance by, among others, the American Psychiatric

Association and the National Commission on Correctional Health Care, stating

that discharge planning is an essential component of adequate institutional

mental healthcare for people with Plaintiffs’ illnesses. It is reasonable to infer, at

this stage, that the defendant clinic directors, as mental health professionals

engaged in providing treatment to prisoners and detainees in an institutional

setting, were aware of these standards.

      Nor is it necessary to resort solely to inference. The policies and protocols

governing Defendants and others providing treatment at the Jail themselves

demand such discharge planning. Both ICE and Orange County have written

policies recognizing that mental health discharge planning is an essential

component of mental health treatment in institutional settings. ICE’s 2011

Performance-Based National Detention Standards (revised in 2016) provide that

“[d]etainees, who have received medical care, [been] released from custody or

removed shall receive a mental health discharge plan, a summary of medical

records, any medically necessary medication and referrals to community-based



                                          34
providers as medically appropriate.” App’x at 32 (alterations omitted). Orange

County policies similarly require that “[n]o client shall be discharged without a

discharge plan” which “shall be given to the client upon discharge.” Id. at 130.

      Indeed, according to Plaintiffs, Defendants regularly provide discharge

planning to individuals who are held at the Orange County Detention Center in

criminal detention in accordance with these standards—demonstrating

Defendants’ understanding that discharge planning is important for mentally ill

inmates. In Charles’s case, the Mental Health Department expressly recognized

that Charles would have “projected mental health needs” in his Discharge

Summary. Id. at 152.

      Thus, Plaintiffs have plausibly alleged that Defendants were fully aware of,

and violated, both Orange County and ICE policies by failing to provide them

with discharge planning as part of their care. Plaintiffs’ allegations, if proven

true, are sufficient to establish that Defendants knew, or should have known, of

the substantial risk that Plaintiffs would relapse and suffer serious adverse health

consequences if they were not provided with necessary discharge planning, such

that a fact-finder could infer “reckless disregard” beyond mere negligence or

medical malpractice. Weyant, 101 F.3d at 856; see Harrison v. Barkley, 219 F.3d 132,

139 (2d Cir. 2000).


                                         35
V.    Issues Remaining for Factual Development

      That Plaintiffs have adequately stated a claim does not, of course, mean

that they have established their entitlement to relief. Plaintiffs will need to

provide evidence to back up their allegations. Moreover, Defendants have raised

significant factual issues that need to be fleshed out through discovery. These

include: whether the discharge planning measures Plaintiffs identify should be

provided as part of in-custody care (rather than undertaken upon or after

release), the medical effects of a temporary deprivation of psychotropic

medication, the causal relationship between the alleged interruption in Plaintiffs’

treatment and the consequences they complain of, and whether the

circumstances of Plaintiffs’ release were so unexpected that Defendants could not

have anticipated, and properly planned for, their release at the time it occurred.

Moreover, Plaintiffs’ own allegations about the existence of written Orange

County policies call into question whether Plaintiffs can establish their contention

that there is a consistent policy, custom, or practice of denying such planning to

immigrant detainees. After discovery, the district court will be in a better position

to determine the precise parameters of the treatment that should have been

provided; whether the failure to provide any mandated care was attributable to

Defendants’ deliberate indifference, mere negligence, or unforeseen and


                                          36
unforeseeable circumstances; and what, if any, damages were caused by any

dereliction on the part of Defendants.12 But, at the pleading stage, we hold that

Plaintiffs have adequately stated a Fourteenth Amendment substantive due

process claim.

                                 CONCLUSION

      For the foregoing reasons, we VACATE the district court’s opinion and

REMAND for proceedings consistent with this opinion.




12
  In addition, the district court may consider, on remand, various issues it did
not reach in its September 29, 2017 opinion, and on which we express no opinion,
such as: (1) whether the Plaintiffs adequately pled a county policy, practice, or
custom for purposes of Monell liability; (2) whether Plaintiffs have adequately
stated a claim against Elizondo; and (3) whether Elizondo is entitled to qualified
immunity.

                                        37
