Judge Henley died on October 18, 1997. This opinion is consistent with his

1

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

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3108

___________

Eddie O. Buckley, Jr., *

*

Plaintiff-Appellee, *

*

v. *

 * Appeal from the United

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 McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and BEAM, 1

Circuit Judge.

___________

McMILLIAN, Circuit Judge.

Eddie O. Buckley, Jr., a prisoner of the Iowa Department of

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 for the Southern 2

District of Iowa.

Under the requirement that appeals may be taken only from a final judgment of 3

the district court, denial of a motion for summary judgment is ordinarily an

unappealable interlocutory order. 28 U.S.C. §1291. The Supreme Court has

recognized an exception, however, to the final order doctrine in cases where summary

judgment in a Section 1983 action is denied on the basis that the defendant lacks

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

erred as a matter of law in concluding that any actions he took with respect to the

treatment of Buckley violated any Constitutional right of Buckley which was "clearly

established" at the time in question.

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his confinement 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

hospital violated his Eighth Amendment right to be free from cruel and

unusual punishment and his Fourteenth Amendment right to due process of

law. The claims against the other defendants were dismissed and only

Loeffelholz remains a defendant in the suit. 

Loeffelholz is the medical director for the Iowa Department of

Corrections and also a psychiatrist and clinical director at IMCC. He

moved for summary judgment on the theory that any actions he took with

respect to Buckley's treatment were protected by qualified immunity. The

district court denied the motion for summary judgment. This appeal

2

followed. For reversal, Loeffelholz argues that the district court erred

in denying his motion for summary judgment on the ground of qualified

immunity. We have jurisdiction pursuant to 28 U.S.C. §1291. For the

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, 120

F.3d 124, 125 (8th Cir.1997), and under the same standard which governed the

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 is 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 the

evidence in the light most favorable to the non-moving party and give the

non-moving party all reasonable inferences from the evidence. Hall, 996

F.2d at 957. Where a qualified immunity defense is asserted, the party

raising that defense has the burden of proving it. Id.

BACKGROUND

Buckley entered the Iowa Department of Corrections in March 1985 on

a twenty-five year sentence for robbery, assault, and theft. During his

incarceration, a state court determined that Buckley was seriously mentally

ill and ordered his civil commitment in the prison mental hospital for

diagnosis and treatment.

Buckley was confined at the IMCC psychiatric hospital at Oakdale from

November 6, 1987 until January 14, 1988. While 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 operating

procedures of the institution. Among the polices for which Loeffelholz was

responsible were policies under which the hospital staff developed treatment

plans for patients. Several treatment plans designed to address several

different problems and symptoms were developed for
Treatment plan one involved schizophrenia-like psychosis. Treatment plan two 4

concerned the refusal to comply. Treatment plan three related to poor sleeping habits.

Treatment plan four addressed poor money management. Treatment plan five involved

failure to follow smoking policies. Treatment plan six related to failure to meet

expectations.

The Iowa Medical and Classification Center, warden Russell Rogerson, and

5

several other individuals were also named as defendants but were later dismissed from

the case.

-4-

Buckley. 

4

Buckley originally filed his complaint in 1988. The case was tried

to a jury in August 1993 but resulted in a mistrial. A second jury trial

was held in November 1993 which resulted in a verdict favorable to the

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 against

Loeffelholz was that the hospital's policies and procedures allowed

5

correctional officers -- rather than trained medical personnel -- to develop

and implement the treatment plans. Buckley also contended that the

treatment plans which were developed lacked sufficient specificity to guide

the staff in administering the treatment. Buckley argued that Loeffelholz's

conduct constituted deliberate indifference to a serious medical need and

violated his Eighth and Fourteenth Amendment rights. 

On these contentions, the district court made the following findings

of fact based in part 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 operating

procedures of the
-5-

institution. These policies allowed the Oakdale staff to develop "treatment

plans" designed to address Buckley's mental illness. At trial, Buckley

introduced evidence that, rather tha[n] assign its staff doctors to his

case, the prison entrusted the responsibility of implementing and

administering many of Buckley's treatment plans to correctional officers who

had no medical training. Dr. Fredrickson, one of Oakdale's medical doctors,

testified that correctional officers were allowed to initiate treatment of

Buckley without Dr. Fredrickson's approval.

Part of the "treatment" in these treatment plans involved

stripping Buckley of his clothes and placing him in a Spartan

"quiet" or "segregation" cell. Other parts of the "treatment"

involved placing Buckley in restraints so that h[e] could hardly

move. There was testimony at the full trial that segregation

and restraints the correctional officers ordered for Buckley

were more akin to punishment than treatment. The evidence

further showed that Buckley 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 was

"very cold" in the quiet room, that he could not hear outside

noises when he was in the quiet room, and that a doctor never

checked on him while he was in the quiet room. The evidence

also showed that the decision to send Buckley to the quiet room

was made by non-medical staff. Dr. Loeffelholz, ostensibly

responsible for Buckley's treatment, checked on Buckley once

every ninety days.

Dr. Herbert Notch, a licensed clinical psychologist with

solid credentials and experience, testified that he examined

Buckley's medical records which showed Buckley has a major

personality disorder, with an antisocial personality, possible

paranoid behavior, and some schizoid tendencies. Dr. Notch

further testified that, while an average inmate might be

isolated in a quiet room and not suffer any harm, a person with

Buckley's illness would tend to suffer exacerbation of his

already serious symptoms. Dr. Notch further testified that he

could conceive of no legitimate medical reason why an inmate

with Buckley's mental illness would be deprived of a mattress.

Dr. Notch also indicated that, at times, the "treatment" that

Buckley received more closely resembled punishment than anything

else. Dr. Notch testified that, unlike some patients, mental
-6-

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

Dr. Notch also testified that the treatment Buckley

received was contrary to accepted treatment of mental health

patients. Dr. Notch's greatest objection to Buckley's treatment

plan was that it did not adequately describe how to help Buckley

improve his behavior. For example, one treatment plan stated

that Buckley had "poor money management skills," but it

contained little or no description of the procedures that

penitentiary staff needed to use with Buckley to help him manage

his money prudently. Similarly, another of Buckley's treatment

plans stated that Buckley need[ed] to improve his sleeping

habits, but was woefully short on specifics needed to guide the

people who were assigned to help Buckley.

Finally, Dr. Notch testified that the "violations" Buckley

was supposed to have committed, such as sleeping in the daytime

and failure to follow the smoking policy, were more like

violations of routine hospital procedures than they were serious

psychiatric deficiencies that needed treatment.

Buckley v. Loeffelholz, No. 88-CV-51691, slip op. 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 segregation

without medical staff approval and that Dr. Loeffelholz knew or should have

known that the correctional staff was violating that right acting under the

policies and procedures he developed. Id. at 13-16.

DISCUSSION

Under the doctrine of qualified immunity, a government official is

immune from suit unless the conduct complained of violated "clearly

established statutory or constitutional rights of which a reasonable person

would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (Harlow).

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 guess

the direction of future legal decisions, Mitchell v. Forsyth, 472 U.S. 511,

535 (1985), but may 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 liable for his official actions

depends upon the "objective legal reasonableness" of those actions. Harlow,

457 U.S. at 819. "Where an official could be expected to know that certain

conduct would violate statutory or constitutional rights, he should be made

to hesitate . . . ." Id.

We have recently explained that under Harlow a defendant's assertion

of a qualified immunity defense requires us to address three issues: 

(1) whether the plaintiffs have asserted a violation of a

constitutional or statutory right; (2) if so, whether that right

was clearly established at the time of the violation; and (3)

whether, given the facts most favorable to the plaintiffs, there

are no genuine issues of material fact as to whether a

reasonable official would have known that the alleged action

violated that right.

Burnham v. Ianni, 119 F.3d 668, 673-74 (8th Cir. 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). In

addition, the Supreme Court has held that the freedom from bodily restraint

is at the core of the liberty interest protected 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 and

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

Eighth and Fourteenth Amendment rights not to be placed in restraints or

segregation absent a doctor's approval. 

Buckley alleges [Loeffelholz] has violated his clearlyestablished right not to be placed in segregation without

specific approval from a medical doctor. By this, Buckley means

that it is not enough for a doctor [to] issue a blanket order

allowing segregation for rules violations, because such an order

would not constitute the medical judgment required to avoid the

requirements of the Due Process Clause or the Eighth Amendment.

Buckley argues a doctor's approval is required each time an

inmate is placed in segregation.

Slip op. at 7 (footnote omitted). We agree with the district court that

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

-- even assuming there is a constitutional right to specific medical

approval of segregation and restraint for prison mental patients -- no such

right was clearly established in the law at the time in question.

Loeffelholz bears the burden of proving that this right was not clearly

established. Burnham, 119 F.3d at 674.

As we have noted in previous cases, this court has taken a "broad

view" of what constitutes clearly established law for purposes of qualified

immunity. Id. at 677. 

In order to determine whether a right is clearly

established, it is not necessary that the Supreme Court has

directly addressed the issue, nor does the precise action or

omission in question need to have been held
A year earlier another district court case from Missouri had addressed the

6

procedures 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 regulations. 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

emergency basis 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, other

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) (noting 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

known that his conduct would violate Buckley's Eighth or Fourteenth

Amendment rights.

In concluding that the law at the time of Buckley's confinement in

late 1987 and early 1988 clearly precluded his segregation or restraint

without medical approval, the district court relied heavily on Burks v.

Teasdale, 492 F. Supp. 650 (W.D. Mo. 1980) (Burks). Burks was a class

action challenging various aspects of medical treatment received by

prisoners in the Missouri state prison hospital. Among their claims, the

plaintiffs specifically 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 nonemergency basis violated due process: "Insofar as the use of seclusion

and/or restraints for mentally disturbed inmates can only be used for

medical purposes without running afoul of due process guarantees, this Court

holds that custody personnel are unqualified to make such determinations on

a non-emergency basis." Id. at 679. As the district court correctly noted,

this holding is directly on point and demonstrates that at least by May 1980

there was solid authority within this circuit proscribing the very conduct

challenged by Buckley.6
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The district court also pointed to Negron v. Preiser, 382 F. Supp. 535

(S.D.N.Y. 1974) (Negron), 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 of

seclusion and restraint, the court in Negron concluded that the first step

in protecting patient rights was the keeping of detailed records:

The Court will require extensive records to be kept of

every instance in which an isolation cell is used. The purpose

of such records will be to ensure and document that the decision

to use the isolation cell is based on explicit criteria, is

reviewed at the requisite brief intervals, and is, where

possible, 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 Negron did not specifically require

approval by a physician in advance of the use of seclusion or restraint, the

required record keeping provision essentially mandated a physician's

involvement soon thereafter and required a trained medical professional to

decide whether to continue the seclusion in each instance.

Similarly, in United States v. Michigan, 680 F. Supp. 928 (W.D. Mich.

1987), the court recognized constitutional limitations on the treatment of

mentally ill prisoners and required state prison officials to follow strict

procedures for the use of seclusion or restraint. These detailed procedures

included examination of the inmate by a
-11-

physician or qualified mental health professional 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 the

decisions in Negron and Michigan provide strong support for Buckley's claim

that clearly established law in late 1987 required that segregation and

restraint decisions should be made by qualified medical professionals.

Loeffelholz relies on two cases for the proposition that no such right

was clearly established 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 the

apparent suicide of their daughter in a segregation cell. The Eleventh

Circuit agreed with the district court that there was insufficient evidence

of a failure of medical care or of deliberate indifference to serious

medical needs to state a claim against prison supervisory personnel and

dismissed the complaint as to those defendants. Id. at 1058. The court

refused to dismiss as to the consulting psychiatrist, however, concluding

that sufficient facts were alleged to allow that 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 doctor was clearly established.

The court in Rogers explicitly stated that "systemic deficiencies can

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

enough evidence to show deliberate indifference by some supervisory

personnel but had presented a triable issue as to the liability of the

consulting psychiatrist. Here, Buckley has come forward with substantial

evidence of repeated instances where non-medical personnel made decisions

to place him in an isolation cell or restraints and where no approval from

a qualified physician or mental health professional was obtained either

before or shortly after that decision. We believe this more closely

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.

Similarly, 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 habeas

corpus case the prisoner alleged various constitutional deficiencies in his

treatment at a federal prison medical center. Among the claims, the

prisoner alleged that he had been held for several 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 lunch but returned to examine the prisoner within several

hours of his confinement in the strip cell. In finding that there was no

Eighth Amendment violation on these facts, the court emphasized that this

was a single isolated incident, that the delay in a physician examining the

prisoner was due merely to happenstance, and that the incident was unlikely

to reoccur given the facility's strict policy requiring approval by a

medical official of use of the strip cell. On the other hand, Buckley here

contends that during his stay in the hospital he was routinely placed in

restraints or stripped and put in the segregation cell and the district

court found that this was done without the close supervision of a trained

medical staff member.

We believe that the district court correctly concluded that case law

clearly established at the time in question that the decision to use

segregation or restraints had to be made under close medical supervision.

Would a reasonable official have been aware that the alleged action violated

the right?

In Harlow, the Supreme Court stated that if "the law was clearly

established, the immunity defense ordinarily should fail, since a reasonably

competent public official 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 prove that he neither knew, nor should have known, of the legal

standard. Id. at 819. Thus, the third prong of our inquiry focuses on

whether there are any unusual facts which show that this particular official

should not be held liable 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

on the first two prongs of the Burnham test: that no constitutional right

existed and that even if it did it was not clearly established in late 1987.

Loeffelholz did not address and presented no evidence on the third prong of

the Burnham test which asks whether a reasonable official would have been

aware that his alleged conduct violated the constitutional right. For this

reason, the record reveals no special circumstances which should relieve

Loeffelholz of responsibility for following clearly established law. 

CONCLUSION

In sum, we agree with the district court that Loeffelholz was not

entitled to summary judgment based on qualified immunity on Buckley’s due

process and Eighth Amendment claims.

For the reasons stated herein, the order of the district court is

affirmed.

A true copy.

Attest:

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