United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2848

___________ Johnny Doby, * * Appellee, * * v. * * Hickerson, Dr., Mental Health Services, * ADC; * Appeal from the United States * District Court for the Eastern District Defendant-Appellant * of Arkansas. * Margaret L. Capel, Mrs., Counselor, * Mental Health Services, ADC, sued as * Mrs. Capel; Oglesby, Dr., Mental Health * Services, ADC, sued as Dr. Ogelesby; * Tommy Vestal, Mental Health Services, * ADC, sued as Vessel. * * Defendants. *

___________ Submitted: April 17, 1997 Filed: July 14, 1997

___________ Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

___________ BEAM, Circuit Judge.The Honorable Henry Woods, United States District Judge for the Easter n 1 District of Arkansas. The Honorable Jerry Cavaneau, United S tates Magistrate Judge for the Eastern 2 District of Arkansas. -2- Johnny D oby is a former prisoner who brought this action under 28 U.S.C. § 198 3 claiming that Dr. Robin Hickerson and other medical staff at the Arkansa s Department of Correction (ADC) violated his due process rights by administerin g antipsychotic medications to him without his consent. The district court, adopting the 1 proposed findings and conclusions of the magistrate judge, concluded that Hickerson 2 violatedDoby's right to due process and awarded Doby $9,500 in compensator y damages. We affirm.

I. BACKGROUND
In early 1990, Doby was transferred to the ADC's Special Programs Unit (SPU), whichhouses inmates with psychiatric problems. On February 2, Doby was seen by Hickerson, a psychiatrist employed by the SPU, after he began demonstrating bizarre be havior and making a number of delusional statements. Hickerson found that Doby was belligerent, was suffering from persecutorial delusions, was neg lecting his personal hygiene, and was unable to co ncentrate. Hickerson described Doby as psychotic, and was concerned that he might hurt someone or provoke attacks by other inmates. Hickerson prescribed two antipsych otic medications for Doby: Haldol, a shortterm d rug to be given as needed in emergency situations, and Prolixin Decanoate, a longe r-lasting drug given by intramuscular injection every two weeks. Dob y considered himself to be fine, and refused to consent to the medication. Accordingly, Hickerson directed that the drug s be administered involuntarily. When a prisoner was to be involuntarily medicated, an ADC policy required notice to the prisoner and a hearing before a medications review panel. Hickerson did not follow the policy inDoby rec eived Haldol and Mellaril again in early 1991. The district court 3 adopte d the magistrate judge's recommended conclusion that Doby's claims based on the 1991 medication were nonmeritorious. Doby has not appealed that conclusion. Doby also claimed that the for ced medication was cruel or unusual punishment 4 under the Eighth Amendment. The cou rt found for Hickerson on this claim, and Doby has no t appealed. Nor has Doby appealed the court's judgment in favor of the othe r defendants, other employees of the ADC. -3- Doby's case , although she did obtain a second opinion from Dr. Walter Oglesby , another ADC psychiatrist, who concurred in her course of treatment.

Soon after the medications began, Doby experienced side effects. Thes e in cludedParkinsonian symptoms, stiffness, and a shuffling gait. Hickerson testifie d that all of the se symptoms were known side effects of antipsychotic medications. On March 20, 1990, Hickerson reported that Doby was suffering from severe side effects, although he was receiving two drugs, Cogentin and Be nadryl, in an effort to counteract the sympt oms. On April 10, Doby was still suffering from the side effects, and wa s also losing weight and suffering from a dry mouth. In response, Hickerso n discontinued the Prolixin and pres cribed another antipsychotic, Mellaril. On April 24, Dob ywas still experiencing severe side effects, and Hickerson discontinued th e Mellar il. Doby's prescription for Haldol continued until June 19 (he apparentl y received emergency Ha

ldol injections on three or four occasions in March and April). Th e side effects continued after the medications were discontinued, and at one poin t Doby lost thirteen pounds in thirteen days. Doby began to recover by late May, and reported himself "back to normal" by late June. 3
Doby bro ught suit under section 1983, claiming that the involuntary administration of antips ychotics violated his right to due process under the Fourteenth Amendment. After a two-day trial, the magistrate jud ge issued recommended findings

4 andconclusions. Adopting the report in its entirety, the district court concluded that Hickerson's course of treatment did not comport with due process, and awarded DobyHarper relied in larg e part on the court's earlier decision in Vitek v. Jones , 445 5 U.S. 480 (1980). In Vitek , the Court had held that the involuntary transf er of a prisoner to a psychiatric hospital implicated a due process liberty interest, and described th e minim al procedural protections required to protect that interest. Id. at 494-95. I n contrast to Vitek , however, the Court in Harper held that due process did not entitle a prisoner to counsel when he was to b e involuntarily medicated. Compare Harper , 494 -4- $9,500 in compensatory damages. On appeal, Hickerson argues: (1) that she is entitled to quali fied immunity; and (2) that the court's award of damages was an abuse o f discretion.

II. DISCUSSION

A. Qualified Immunity
Under the doctrine of qualified imm unity, a government official is immune from sui t unless the complained of conduct violated "clearly established statutory o r constituti onal rights of which a reasonable person would have known." Harlow v

. Fitzgera ld , 457 U.S. 800, 818 (1982). To be clearly established, the "contours of the right must be sufficiently clear that a reasonable o fficial would understand that what he is doing violates that right." Anderson v. Creighton , 483 U.S. 635, 640 (1987). I n other word s, "in the light of pre-existing law the unlawfulness must be apparent." Id.

In Washington v. Harper , 494 U.S. 210, 221-22 (19 90), the Supreme Court held that pris oners possess "a significant liberty interest in avoiding the unwante d administration of

antipsychotic drugs under the Due Process Clause of the Fourteenth Am endment." The Court concluded that the state's procedures in Harper comported with due process because they provided for an independent decisionmaker as well as for "notice, the right to be present at an adversary hearing, and the right to present and cross-examine witnesses." Id. at 233, 235. We agree with the district court that 5U.S. at 236, with Vitek , 445 U.S. at 495. -5-

Harper clearly established that these four procedural protections are minima l constit utional requirements for satisfying procedural due process when a stat e involuntarily administers ant ipsychotics to a prisoner. The court found that Doby was not provided with these protections at any time. That finding is not clearly erroneous, and we conclude that Hickerson's c ourse of treatment violated clearly established law.

As the district court noted, this case is somewhat complicated because Harper
was decided on February 27, 1990, twenty-two days after Hickerson ordered Doby's medicati on. The district court concluded that Hickerson was entitled to qualifie d immunity f

or the medication administered prior to Harper . Hickerson argues that she is also entitled to qualified immunity for the treatment after Harper , because she did not become aware of the Harper decision until after she discontinued Doby' s med ication. Given the relatively short period of time after Harper that Doby' s medicatio n

continued, Hickerson contends, it was unfair of the district court t o conclude that a reasonable official in her position should have known that the forced medication violated due process. In Harlow , the Court stated that "[i]f the law was clearly established, th e immunitydefense ordinarily should fail, since a reasonably competent public official shouldknow the law governing his conduct." 457 U.S. at 818-19. The Court noted, however, t hat an official may be entitled to immunity even for a violation of clearl y established law if he or she "clai ms extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard. " Id. at 819. As the di strict court noted, Harper "directly affected common procedures used in the ADC's mental hea lth programs and was a published Supreme Court opinion most probabl y available . . . within a matter of da ys." Doby v. Hickerson , No. PB-C-91-534, slip op. at 13 (E.D. Ark. Jan. 24, 1996) (Proposed Findings and Recommended Disposition). Furthermore, one of the other defendants who worked at the SPU, Maggie Capel,-6-

testified that the state attorney general's office had advised the unit that Harper wa s pending, and that the unit revised its policy on forced medications in anticipation of the Court's ruling. The district court found that Hickerson was aware of the policy but did not follow it. The district court concluded that, while H ickerson should not be imputed withimmediate knowledge of Harper , "she should have known of its applicability . . . by the time she saw Plaintiff on March 20, 1990 ." Id. at 14. In our view, the district court drew a reasonable line, and correctly concluded that this case did not presen t "extra ordinary circumstances" that justify qualified immunity despite a violation o f clearly established law.

B. Damages

Hickerson ur ges us to reverse the district court's award to Doby of $9,500 i n
com pensatory damages, arguing that Doby is at most entitled to nominal damage s because he w ould have received the same treatment even if he had been afforded due process. We conclude that the district court did not abuse its discretion in awardin g damages. See Stevens v. McHan , 3 F.3d 1204, 1207 (8th Cir. 1993) (damage award in a section 1983 action reviewed for abuse of discretion). Doby's involuntary medication was a "substantial interference with [his] liberty," Harper , 494 U.S. at 229. He was afforded virtually no procedural protections, and experienced severe sid e effects that continued fo r weeks after the medications were discontinued. The district court found that Doby wa s entitled to damages for the period of March 20 to June 19, 1990 (when Doby reported himself "back to normal" ). This works out to slightly more than $104 per day. Cf. McHan , 3 F.3d at 1207 (noting decisions approving sectio n 1983 damages in prisoner cases ranging from $25 to $129 per day). Given th e sign ificance of the liberty interest at issue here, this award was neither arbitrary no r excessive.-7-

III. CONCLUSION
For the reasons above, we affirm the district court in all respects.
A true copy.
ATTEST: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.