## Judge He nley died on October 18, 1997. This opinion is consistent with hi s 1 

## vote at the panel's conference following oral argument on April 14, 1997. 

# United States Court of Appeals

F OR 

## T HE 

## E IGHTH 

## C IRCUIT

___________ No. 96-3108

___________ Eddie O. Buckley, Jr., *
* Plaintiff-Appellee, *
* v. * * Appeal from the Unite d

States Russell Rogerson, Warden IMCC; * District Court for the * Southern District of Iowa Defendant. *
* Paul W. Loeffelholz, M.D., *
* Defendant-Appellant. *

___________ Submitted: April 14, 1997 Filed: January 21, 1998

___________ Before McM ILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and BEAM, 1 Circuit Judge.

___________ McMILLIAN, Circuit Judge.
Eddie O . Buckley, Jr., a prisoner of the Iowa Department o f Corrections, brought this 42 U.S.C. § 1983 suit against Paul Loeffelholz, M.D., and others, complaining of

## The Honorable Donald E. O'Brien, United States District Judge f or the Southern 2 

## District of Iowa. Under the requirement that appea ls may be taken only from a final judgment of 3 

## the district court, denial of a motion for summary judgment is ordinarily an unappealableinterlocutory order. 28 U.S.C. §1291. The Supreme Court ha s recognized an exception, however , to the final order doctrine in cases where summary judgmenti n a Section 1983 action is denied on the basis that the defendant lack s qualified immunity. Johnson v. Jones , 515 U.S. 304, 311-12 (1995). In such cases, we have jurisdiction under Section 1291 to review the district court's summary judgment order to the extent that the decision rested on a matter of law. Behrens v. Pelletier , 116 S. Ct. 834, 842 (1996). Here, defendant Loeffelholz contends that the district court erredas a m atter of law in concluding that any actions he took with respect to th e treatment of Buckley violated any Constitutional right of Buckley which was "clearly established" at the time in question.
-2- his co nfinement in the Iowa Medical and Classification Center (IMCC ) psychiatric hospital for two months in late 1987 and early 1988. Buckley contended in the district court that the repeated use of segregation and restraints without medical approval during his confinement in the mental hospi tal violated his Eighth Amendment right to be free from cruel an d
unu sual punishment and his Fourteenth Amendment right to due process o f law. The claims against the other defendants were dismissed and onl y Loeffelholz remains a defendant in the suit.

Loeffelholz is the medical director for the Iowa Department o f Corre ctions and also a psychiatrist and clinical director at IMCC. H e moved for summary judgment on the theory that any actions he took wit h respect to Buckley's treatment were protected by qualified immunity. The distr ict court denied the motion for summary judgment. This appea l 2 followed. For revers al, Loeffelholz argues that the district court erred in denying his motion for summary judgment on the ground of qualifie d immunity. We have jurisdiction pursuant to 28 U.S.C. §1291. For th e 3 reasons stated herein, we affirm the order of the district court.

### -3- STANDARD OF REVIEW

We review a grant of summary judgment de novo, Merritt v. Reed , 12 0 F.3d 124, 125 (8th Cir.1997), and under the same standard which governedthe district court's decision. Hall v. Lombardi , 996 F.2d 954, 957 (8th Cir. 1993) ( Hall ), cert . denied , 510 U.S. 1047 (1994). The question is whether the record shows that there is no genuine issue of material fact and that the moving party i s entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c ); Conrod v. Davis , 120 F.3d 92, 95 (8th Cir.1997). We view th e evidence in the light most favorable to the non-moving party and give the
non-mo ving party all reasonable inferences from the evidence. Hall , 99 6 F.2 d at 957. Where a qualified immunity defense is asserted, the part y raising that defense has the burden of proving it. Id.

BACKGROUND
Buckley entered the Iowa Department of Corrections in March 1985 o n a t wenty-five year sentence for robbery, assault, and theft. During hi s incarceration, a state court determined that Buckley was seriously mentally il l and ordered his civil commitment in the prison mental hospital fo r diagnosis and treatment.
Buckley was confined at the IMCC psychiatric hospital at Oakdale from November 6, 1987 until January 14, 1988. Whi le there, he was diagnosed and treated for chronic schizophrenia or schizophrenia-like psychosis.

At the time Buckley was at the Oakdale facility, Loeffelholz was the hospital director and was responsible for the policies and operatin g procedures of the institution. Among the pol ices for which Loeffelholz was responsible were policies under which the hospital staff developed treat ment plans for patients. Several treatment plans designed to address severa l different problems and symptoms were developed for

## Treatment plan one involved schizophrenia-like psychosi s. Treatment plan two 4 

## concerned the refusal to comply. Treatment plan three related to poor sleeping habits. Treatment plan four addressed poor money management. T reatment plan five involved failureto follow smoking policies. Treatment plan six related to failure to meet expectations.
The Io wa Medical and Classification Center, warden Russell Rogerson, an d 5 

## several other individuals were also named as defendants but were later dismissed from the case.
-4- Buckley. 4
Buckley or iginally filed his complaint in 1988. The case was trie d to a jury in August 1993 but resulted in a mistrial. A second jury trial
was he ld in November 1993 which resulted in a verdict favorable to th e defendants. After the second trial, the district court granted Buckley's motion for a new trial and also granted Loeffelholz's motion to file a dispositive motion. Loeffelholz then filed a motion for summary judgment based on qualified immunity, which the district court denied.

In the district court, Buckley's principal contention agains t Loe ffelholz was that the hospital's policies and procedures allowe d 5 correctional officers -- rather than trained medical personnel -- to dev elop and implement the treatment plans. Buckley also contended that th e treatment plans which were developed lacked s ufficient specificity to guide the staff in administering the treatment. Buckley argued that Loeffelho lz's conduct constituted deliberate indifference to a serious medical need an d violated his Eighth and Fourteenth Amendment rights.

On the se contentions, the district court made the following findings of fact based in p art on the evidence which was introduced in the previous trials.
While Buckley resided in Oakdale, defendant Dr. Paul Loeffelholz was responsible for developing the policies and operatin g procedures of the

### -5-

institution. These policies allowed the Oakdale staff to develop "treat ment pla ns" designed to address Buckley's mental illness. At trial, Buckle y int roduced evidence that, rather tha[n] assign its staff doctors to hi s case, the prison entrusted the responsibility of implementing an d administering many of Buckley's treatment plans to correctional officers who had no medical training. Dr. Fredrickson, one of Oakdale's medical doct ors, testified that cor rectional officers were allowed to initiate treatment of Buckley without Dr. Fredrickson's approval.

Part of t he "treatment" in these treatment plans involved str ipping Buckley of his clothes and placing him in a Sparta n "quiet" or "segregation" cell. Other parts of the "treatment" involved placing Buckley in restraints so that h [e] could hardly mov e. There was testimony at the full trial that segregatio n and restraints the correctional officers ordered for Buckle y were m ore akin to punishment than treatment. The evidenc e further showed that B uckley was forced into the "quiet" room on seventeen occasion[s] without human necessities such as clothes, a blanket, a bed, and a mattress. Buckley testified it wa s "verycold" in the quiet room, that he could not hear outsid e noises wh en he was in the quiet room, and that a doctor neve r checked on him while he was in the quiet room. The evidenc e also showed that the decision to send Buckley to the quiet room was mad e by non-medical staff. Dr. Loeffelholz, ostensibl y resp onsible for Buckley's treatment, checked on Buckley onc e every ninety days.

Dr. Herbert Notch, a licensed clinical psychologist wit h soli d credentials and experience, testified that he examine d Bu ckley's medical records which showed Buckley has a majo r personalitydisorder, with an antisocial personality, possibl e paranoi d behavior, and some schizoid tendencies. Dr. Notc h further testified that, while an average inmate might b e isolated in a quiet r oom and not suffer any harm, a person with Bu ckley's illness would tend to suffer exacerbation of hi s alreadyserious symptoms. Dr. Notch further testified that he could conceive of no legitimate medical reason why an inmat e withBuckley's mental illness would be deprived of a mattress. Dr. No tch also indicated that, at times, the "treatment" tha t Buckley received more closely resembled punishme nt than anything else. Dr. Notch testified that, unlike some patients, mental

### -6-

health patients should not be punished as part of their treatment.

Dr. No tch also testified that the treatment Buckle y rece ived was contrary to accepted treatment of mental healt h patients. Dr. Notch's greatest objection to Buc kley's treatment plan was that it did not adequately describe how to help Buckley improv e his behavior. For example, one treatment plan state d tha t Buckley had "poor money management skills," but i t conta ined little or no description of the procedures tha t penitentiary staff needed to use with Buckley to help him manage his money prudently. Similarly, another of Buckley's treatment pl ans stated that Buckley need[ed] to improve his sleepin g habits, but was woefu lly short on specifics needed to guide the people who were assigned to help Buckley. Finally, Dr. Notch testified that th e "violations" Buckley was supposed to have committed, such as sleeping in the daytime and fa ilure to follow the smoking policy, were more lik e violations of routine hospital procedures than t hey were serious psychiatric deficiencies that needed treatment. Buckley v. Loeffelholz , No. 88-CV-51691, slipop. at 2-4 (S.D. Iowa July 8, 1996). Based on these facts the district court concluded that in November 1987 Buckley had a clearly established right not to be placed in segrega tion without medical staff approval and that Dr. L oeffelholz knew or should have known that the correctional staff was violati ng that right acting under the policies and procedures he developed. Id. at 13-16.

DISCUSSION

Und er the doctrine of qualified immunity, a government official i s immune from suit unless the conduct complained of violated "clearl y established statutory or constitutional right s of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982) ( Harl ow ). For a right to be deemed clearly established, the "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v.

### -7-

Creighton , 483 U.S. 635, 640 (1987). The official is not required to g uess the direction of future legal decisions, Mitc hell v. Forsyth , 472 U.S. 511, 535 (1985), but ma y rely on preexisting case law for guidance. Coffman v. Trickey , 884 F.2d 1057, 1063 (8th Cir. 1989), cert. denied , 494 U.S. 1056 (1990). Whether an individual will be held l iable for his official actions depends upon the "objective legal reasonableness" of those actions. Har low , 457 U.S. at 819. " Where an official could be expected to know that certain conduct would violate statutory or constituti onal rights, he should be made to hesitate . . . ." Id.

We hav e recently explained that under Harlowa defendant's assertion of a qualified immunity defense requires us to address three issues:

(1) wh ether the plaintiffs have asserted a violation of a constitutional or statutory right; (2) if so, wh ether that right was clearly established at the time of the violation; and (3 ) whether, given the facts most favorable to the p laintiffs, there ar e no genuine issues of material fact as to whether a reas onable official would have known that the alleged actio n violated that right.
Burnham v. Ianni , 119 F.3d 668, 673-74 (8th C ir. 1997) (en banc) ( Burnham ).
Constitutional Right
The Eighth Amendment proscription against cruel and unusual punishment has been held to bar deliberate indifference to serious medical needs , Estelle v. Gamble , 429 U.S. 97, 105 (1976), where the defendant knew of and disregarded such needs, Farmer v. Brennan , 511 U.S. 825, 837 (1994). I n addition, the Supreme Court has held that the freedom from bodily restraint is at the core of the liberty interest protec ted by the due process clause. Youngberg v. Romeo , 457 U.S. 307, 316 (1982). Thus, even a prisoner has a constitutionally protected interest in "conditions of reasonable care an d safety[and] reasonably nonrestrictive confinement conditions . . .

. [which] comport

### -8-

fully with the purpose of . . . [the] commitment." Id. at 324.

The district court concluded that Buckley had asserted a violation of Eig hthand Fourteenth Amendment rights not to be placed in restraints o r segregation absent a doctor's approval.

Buc kleyalleges [Loeffelholz] has violated his clearly

estab lished right not to be placed in segregation withou t specific approval from a medical doctor. By thi s, Buckley means that it i s not enough for a doctor [to] issue a blanket orde r allowing segregation for rules violations, becau se such an order would not constitute the medical judgment required to avoid the requirements of the D ue Process Clause or the Eighth Amendment. Buckle yargues a doctor's approval is required each time a n inmate is placed in segregation. Slip op. a t 7 (footnote omitted). We agree with the district court tha t Buckley's allegations are sufficient to state a violation of a constitutional right.
Was the right "clearly established"?
Loeffelholz focuses his argument on the second issue, contending that

-- e ven assuming there is a constitutional right to specific medica l approval of segregation and restraint for pri son mental patients -- no such right was clearly established in the law at the time in question

. Loeffelh olz bears the burden of proving that this right was not clearl y established. Burnham , 119 F.3d at 674.

As we have noted in previous cases, this court has taken a "broa d view" of what constitutes clearly establishedlaw for purposes of qualified immunity. Id . at 677.

In order to determine whether a right is clearl y establ ished, it is not necessary that the Supreme Court ha s direct lyaddressed the issue, nor does the precise action o r omission in question need to have been held

## Ayear earlier another district court case from Missouri had addressed th e 6 

## procedure s necessary to protect mental patients when seclusion or physical restraint was used. The court there concluded that the state hospital had violated mental patients' due process rights by not implementing its own regul ations. Those regulations required seclusion or restraint orders to be signed by a doctor except in an emergency and for a doctor to be notified when seclusion or restraint was imposed on an emergencybasis so that the doctor could determine quickly whether the seclusion or restraint should be continued. Eckerhart v. Hensley , 475 F. Supp. 908, 926 (W.D. Mo. 1979), vacated on other grounds , 716 F.2d 909 (8th Cir. 1983) (table).
-9- unlawful. In the absence of binding precedent, a court should look to all available decisional law, including decisions of state courts, othe r circuits and district courts.
Norfleet v. Arkansas Dep’t of Human Services , 989 F.2d 289, 291 (8th Cir. 1993) (internal citations omitted); cf. Anderson v. Romero , 72 F.3d 518, 525 (7th Cir. 1995) (n oting district court decisions are evidence of the state of the law, but by themselves cannot clearly establish the law). We must look, then, at the state of the decisional law at the time in question to determine whether a reasonable person in Loeffelholz’s position could have knownthat his conduct would violate Buckley's Eighth or Fourteent h Amendment rights.

In conclu ding that the law at the time of Buckley's confinement i n lat e 1987 and early 1988 clearly precluded his segregation or restrain t wit hout medical approval, the district court relied heavily on Burks v

. Teasdale , 49 2 F. Supp. 650 (W.D. Mo. 1980) ( Burks ). Burks was a clas s act ionchallenging various aspects of medical treatment received by prisoners in the Missouri state prison hospital. Among their claims, the plaintiffs specifi cally challenged the use of seclusion and restraint for mental patients without authorization by a physician. The district court held that the use of seclusion or restraints by custody personnel on a nonemergencybasis violated due process: "Insofar as the use of seclusio n and/or restraints for mentally disturbed inmates can only be used fo r medical purposes without running afoul of due process guarantees, this C ourt holds that custody personnel are unqualified to make such determinations on a non-emergency basis." Id. at 679. As the district court correctly no ted, this holding is directly on point and demonstrates that at least by May 1980 there was solid au thority within this circuit proscribing the very conduct challenged by Buckley. 6

### -10- The district court also pointed to Negron v. Preiser , 382 F. Supp. 535 (S.D.N.Y. 1974) ( N egron ), as even earlier authority for the constitutional limits on the use of seclusion and restraint for prisoners being treated for mental illness. After recognizing due process limits on the use o f seclusion and rest raint, the court in Negronconcluded that the first step in protecting patient rights was the keeping of detailed records:

The Court will require extensive records to be kept o f every instance in whi ch an isolation cell is used. The purpose of such records will be to ensure and document t hat the decision to use the isolation cell is based on explicit criteria, i s reviewed at the requisite brief intervals, and is, wher e possib le, supplemented by other forms of treatment. . .

. Specifically, the Court requires a daily record, with a detailed statement of the examining physician's clinical observations of the patient, including the patient's physical condition , apparel, overt behavior, and mental status, a statement of the physician's reasons for initiating or continuing the seclusion procedure, and a statement of his treatment plan.
Id. at 543. Although the court in Negrondid not specifically requir e approval by a physician in advance of the use of seclusion or restraint, the requ ired record keeping provision essentially mandated a physician' s involvement soon thereafter and required a t rained medical professional to decide whether to continue the seclusion in each instance.
Similarly, in United States v. Mi chigan , 680 F. Supp. 928 (W.D. Mich. 1987), the court recognized constitutional l imitations on the treatment of mentally ill prisoners and required state prison officials to follow st rict procedures for the use of seclusion or restraint. These detailed proced ures included examination of the inmate by a

### -11-

physician or qualified mental health professi onal within one hour after the patient was placed in seclusion or restraint, the use of seclusion for no longer than six hours without another physician seclusion order, and the use of restraints for no longer than two hours unless a physician again signed
a restraint order. Again, we agree with the district court that th e decisions in Negronand Michiganprovide stro ng support for Buckley's claim tha t clearly established law in late 1987 required that segregation an d restraint decisions should be made by qualified medical professionals.
Loeffelholz relies on two cases for the proposition that no such right was clearly establ ished at the time in question. First, Loeffelholz cites Rogers v. Evans , 792 F.2d 1052 (11th Cir. 1986) ( Rogers ). In Rogers , the plaintiffs brought suit alleging inadequate treatment and care after th e apparent suicide of their daughter in a segregation cell. The Elevent h Circuit agreed with the district court that there was insufficient evid ence of a fa ilure of medical care or of deliberate indifference to seriou s med ical needs to state a claim against prison supervisory personnel an d dismissed the complaint as to those defendants. Id. at 1058. The cour t refused to dismiss as to the consulting psychiatrist, however, concludin g that sufficient facts were alleged to allow t hat claim to go to trial. Id. at 1060.

Rogers tends to support Buckley' s contention that a mental patient's right to have his treatment determined by a d octor was clearly established. The court in Rogers explicitly stated that "systemic deficiencies ca n provide the basis for a finding of deliberate indifference." Id . at 1058. The court in Rogers concluded that the plaintiffs had not come forward with
eno ughevidence to show deliberate indifference by some supervisor y person nel but had presented a triable issue as to the liability of th e consulting psychia trist. Here, Buckley has come forward with substantial evidence of repeated instances where non-medical personnel made decision s to place him in anisolation cell or restraints and where no approval from
a qualified physician or mental health professional was obtained eithe r before or shortly after that decision. We believe this more closel y corresponds to the evidence presented against the consulting

### -12-

psychiatrist in Rogers , and thus the district court was correct to refuse summary judgment in the present case.

Simila rly, Konigsberg v. Ciccone , 285 F. Supp. 585 (W.D. Mo. 1968), aff'd , 417 F.2d 161 (8th Cir. 1969), cert. denied , 397 U.S. 963 (1970), also cited by Loeffelholz, does not support his contentions. In that habea s corpus case the prisoner alleged various cons titutional deficiencies in his treatment at a federal prison medical center. Among the claims, th e prisoner alleged that he had been held for se veral hours without clothes in a strip cell. However, the facts in that case showed that efforts were made immediately to notify his physician. The physician happened to be away from the facility for l unch but returned to examine the prisoner within several hours of his confinement in the strip cell. In finding that there was no EighthAmendment violation on these facts, the court emphasized that this was a single isolated incident, that the dela y in a physician examining the prisoner was due merely to happenstance, and that the incident was unlikely to reoc cur given the facility's strict policy requiring approval by a medical official of use of the strip cell. O n the other hand, Buckley here contends that during his stay in the hospital he was routinely placed i n restrain ts or stripped and put in the segregation cell and the distric t court found that this was done without the close supervision of a trained medical staff member.

We bel ieve that the district court correctly concluded that case law clearly established at the time in question that the decision to us e segregationor restraints had to be made under close medical supervision.
Would a reasonable official have been aware that the alleged action viol ated the right?

In Harlow , the Supreme Court stated that if "the law was clearl y established, the immunity defense ordinarily should fail, since a reason ably competent public o fficial should know the law governing his conduct." 457 U.S. at 818-19. The Court went on

### -13-

to say, however, that the official might still be entitled to immunity if he could p rove that he neither knew, nor should have known, of the lega l standard. Id

. at 819. Thus, the third prong of our inquiry focuses o n whether there are any unusual facts which show that this particular offi cial should not be heldliable even for a violation of clearly established law. Burnham , 119 F.3d at 673-74.

In the district court and in his brief on appeal, Loeffelholz focused
onthe first two prongs of the Burnhamtest: that no constitutional right existed and that even if it did it was not clearly established in late 1 987. Loeffelholz did not address and presented no evidence on the third prong of the Burnhamtest which asks whether a reasonable official would have been aware that his alleged conduct violated the c onstitutional right. For this reason, the record reveals no special circumstances which should reliev e Loeffelholz of responsibility for following clearly established law.

CONCLUSION

In sum, w e agree with the district court that Loeffelholz was no t entitled to summary judgment based on qualified immunity on Buckley’s due process and Eighth Amendment claims.

For the r easons stated herein, the order of the district court i s affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.