The HONORABLE MICHAEL J. DAVIS, Uni ted States District Judge for the * District of Minnesota, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3295

___________ Wayne King, *
* Plaintiff - Appellee, * * Appeal from the United States
v. * District Court for the
* Western District of Arkansas. Charles Beavers, *
* Defendant - Appellant. *

___________ Submitted: February 13, 1998 Filed: July 9, 1998

___________ Before LOKEN and HANSEN, Circuit Judges, and DAVIS, District Judge. *

___________ LOKEN, Circuit Judge. Wayn e King filed this 42 U.S.C. § 1983 action against Deputy Sheriff Charles Beavers, alleging t

hat Beavers violated King’s Fourteenth Amendment right to liberty in enforci ng a guardianship order. Beavers appeals the district court’s denial of hi s motion for summary judgment on qualified immunity grounds. We reverse.Tudor made two trips to the Kings’ home in early November 1995. In a July 1 1997 affi davit, Tudor averred that the Kings spent most of the day sleeping, King fed his wife mo stly cereal, Mrs. King was incontinent and the bedroom reeked of urine , Mr. King seemed upset by visitors, and Mrs. King seemed confuse d and in poor health. The Department of Health stopped home health services on November 7 because King would not admit health aides to care for his wife. King does not dispute these averrals.
-2- I.

To review the denial of a pretrial qualified immunity motion, we accept as true the facts alleged by King, the non-moving party. See Jackson v. Everett , 140 F.3 d 1149, 1151 (8th Cir. 1998). In November 1995, Wayne Ki ng was seventy-seven years old. He lived with his invalid wife, Bonnie, who could not walk or talk and required constant care. Betty Tudor, an Arkansas Department of Human Services Consultant, became concerned b y King’s refusal to admit home health care aides. She visited the Kings’ h ome and found them living in what she considered deplorable conditions. 1 Before recommending that the State of Arkansas petition for custody of Mr. and Mrs. King, Tudor contacted their only daughter, Marilyn Johnson, a California resident.

Jo hnson came from California and began staying with the Kings on November 10. On November 17, at Tudor’s urging, Johnson sou ght the advice of an attorney and petiti oned the Johnson County Probate Court for her appointment as guardian of th e persons and estates of Mr. and Mrs. King. The pet ition was supported by a letter from Clarksville physician Jack T. Patterson stating that King was “probably significantl y depressed and perhaps is a threat to both himself and to his wife.” On November 21, after notice to K

ing (which he claims he did not receive), the court held a hearing and issued an order finding that Wayne and Bonnie King were incapacitated, appointin g Marilyn Johnson guardian of their persons and estates, and directing the Clerk of Court to issu e Letters of Guardianship to Marilyn Johnson of Paicines, California. Johnson then filed a guardian’s bond, and the Clerk issued Letters of Guardianship reciting that Johnson was “autho rized to have the care and custody of and to exercise control overUnbe knownst to Beavers, Wilson was also the private attorney representin g 2 Marilyn J ohnson in the guardianship proceeding. While this apparent conflict o f interest is disturbing, it does not affect Beavers’s claim to qualified immunity.
-3- the person and to take possession of and administer t he property of [Wayne and Bonnie King] as authorized by law.”

On November

29, Johnson County Sheriff Charles Nicklas received a call from the King residence advising that Betty Tudor was having problems because Mr. King would not obe y the court order appointing Marilyn Johnson guardian. Sheriff Nicklas

sen t Deputy Beavers to the King residence to assist Tudor. Beavers arrived an d reviewed the guardianship order and Letters of Guardianship. He discussed the matter with Tudor, Johnson, and home health care workers and then tried to per suade Mr. King to get out of his bed. When King refused, Be avers contacted Johnson County Attorney Bruce Wilson, who said Beavers should try to persuade King to go with his daughter to Califor nia. Beavers returned to King and tried to persuade him to leave wit h

2 Johnson. King refused, repeatedly stating, “I will kill myself,” and saying he hoped his wife would die as well. Beavers again contacted Wilson, who advised that Beaver s should physicall y remove King from the home if necessary. After a final unsuccessful attempt a t persuasion, Beavers picked King up and carried him to the front door. A t that poin t, King said: “Put me down. I will walk. What are the neighbors going t o think?” K ing walked to the patrol car and rode to a nearby medical clinic, wher e Johnson arranged for him to receive a shot.
At the clinic, Johnson told Beavers she needed assistance ge tting the Kings to the Little Rock airport and then to California. Beavers called Sheriff Nicklas, who sai d Beavers could take King to Little Rock and could accompany Johnson and the Kings to Cali fornia if there was no expense to Johnson County. Beavers then called County Attorney Wilson, who said he saw no problems with these proposed actions. Beavers drove the group to the Little Rock airport and then accompanied Johnson and the Kings-4-

on their plane ride to California. Thi s travel took place without incident. Johnson paid for Beavers’s plane tic ket and paid him $430 for assisting her on the trip to California. Beavers took the next flight back to Arkansas.

In February 1996, Johnson voluntarily terminated Mr. King’s Arkansa s guardianship and Californ ia temporary conservatorship after an investigator concluded that King was able to care for him self. In March, King returned to Arkansas, and Mrs. King died shortly thereafter. An embittered King filed this action in November 199 6 aga inst his daughter and Beavers. The district court denied Beavers’s motion fo r summary judgment on qualified immunity grounds, explaining:

Had Beavers merely assisted Johnson, who had a court order and letters of guardianship giving her custody and control over bo th her father and his po ssessions, with removing King from the home, our conclusion woul d undoubtedly be different . Additionally, our conclusion might be different had Beavers, in reliance on the advice of the prosecuting attorney and the she riff, merely assisted in transporting King to the airport at Johnson’ s request. Howev er, here Beavers went farther -- he went outside not only the county in which he had authority or jurisdicti on to act but went outside the state. . . . We agree with King that these acts were not objectivel y reasonable.
Beavers appeals. We have interlocutory jurisdicti on to consider issues of law raised by the de nial of a pretrial qualified immunity motion. See Murphy v. State of Ark. , 12 7 F.3d 750, 753 (8th Cir. 1997). We review the denial of qualified immunity de novo

. II.

Quali fied immunity protects government officials from damage liability unles s their discretionary acts violated clearly established statutory or constitut ional rights. See Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Qualified immunity guards-5-

against the inj ustice of subjecting public officials to damage liability for the good faith performan ce of discretionary duties they are legally obligated to undertake, and th e danger that the threat of such liability will deter officials from performing with th e decisiveness and judgment the publ ic good requires. See Scheuer v. Rhodes , 416 U.S. 232, 241-42 (1974). Qualified immunity protects all but the plainly incompetent an d those who willingly violate the law. See Malley v. Briggs , 475 U.S. 335, 341 (1986). We conclude Beavers is entitled to qualified immunity for two distinct reasons.
No Clearly Established Federal Right. To recover un der 42 U.S.C. § 1983, King must prove that Beavers violated King’s constitutional rights while acting under color of state law. To avoid a claim of q ualified immunity, the right alleged must be “clearly est ablished,” that is, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. ” Anderson v. Creighton , 483 U.S. 635, 640 (1987). When qualified imm unity is asserted in a § 1983 action, we “determine first whether the plaintiff has alleged a deprivation of a constitutional right at all,” and if so, “whether the right allegedly implicated wa s clear ly established at the time of the events in question.” County of Sacramento v

. Lewis , 118 S. Ct. 1708, 1714 n.5 (1998). King’s claim founders on these issues, which the district court barely discussed in its otherwise lengthy opinion.
King a rgues that Beavers “falsely imprisoned [King], denying him hi s
cons titutional right to liberty.” False imprisonment is a state law tort claim. It is no t coextensive with the Fourteenth Amendment, which “protects only against deprivations of liberty accomplished ‘without due process of law.’” Baker v. McCollan , 443 U.S. 137 , 145 (1979). For example, the constitutional right to liberty is not violated if th e State takes custody of a citizen following a judicial determination that he is unable to

care fo r himself or is a serious risk to the safety of himself or others. Compar e O’Connor v. Donaldson , 42 2 U.S. 563 (1975), with Jackson v. Indiana , 406 U.S. 715, 738 (1972). Here, the Johnson County Probate Court’s guardianship order was of a similar nature, except that it ordered King into the custody of a private guardian, hisNo r does King argue the order violated his right to procedural due process; in 3 any event, s uch a claim would not give rise to a cause of action against Beavers

. King’s complaint did generally plead violations of the First, Fourth, and Fift h amendments, but he has not argued those claims on appeal. Cf. Sellers v. Ba er , 28 F.3d 895, 898 n .4 (8th Cir. 1994), cert. denied , 513 U.S. 1084 (1995). Because Beaver s ph ysically seized King in his home, it is likely that “any liability must turn on a n application of the

reasonableness standard governing searches and seizures.” County of Sacram ento , 118 S. Ct. at 1715. However, analysis of this case under the Fourt h Amendment would not lead us to a different conclusion.
-6- daughter Marilyn Johnson. King does not, and in our view could not, argue tha t enforcemen t

of the guardianship order violated his substantive due process right t o liberty. 3

Instead, King argues that “no objectively reas onable officer would have believed that the guardianship order and Letters of Guardianship gave him authority to remove the ward to California.” In other words, King’s entire claim is based upon th e propo sition that the Fourteenth Amendment required a second court order befor e gua rdian Johnson, with the assistance of state actors such as DHS Consultant Tudor , County Attorney Wilson, Sheriff Nicklas, and Deputy Beavers, could move th e unwilling King from his home to his legal guardi an’s place of residence. Of course, the proper scope and import of the probate court’s guardianship order and Letters o f Guar dianship are questions of state law. Yet neither King nor the district court cite d Arkansas authority supporting King’s contention, nor attempted to explain w hy any such violation of state law would amount to a federal constitutional deprivation.

Ther e is apparently no Arkansas case law on the question whether a faciall y unli mited guardianship order grants the guardian the power to change an unwillin g ward’s place of residence, and more particularly, to move the ward out of state. The few cases we have found from other states tend to contradict King’s position:-7-

In this c ountry the decisions uniformly hold the guardian may change the residence of the ward, whether infant or lunatic, to another state, if this be done in good faith and for the best interest of his ward, especially whe n with the consent or approval of the court appointing the guardian.

In re Waite , 180 N.W. 159, 161 (Iowa 1920); see generally39 C.J.S. Guard ian & Ward § 60 (1976).

Nor does a review of the pertinent Arkansas statutes lend support to King’ s contention. The guardian is “entitled to the custody of the ward.” A RK

. C ODE A NN . § 28-65-301(a)(3)

. If the court decides that the guardian’s powers should be limited, it “shall set forth the spe cific powers, authorities, and duties the guardian shall possess,” § 28-65-214(d); here, Johnson’s guardianship order conferred unlimited custodia l powers. Changing the ward’s residence is not among a statutory list of guardia n decisions that always require prior court approval. See § 28-65-302. But one of th e grounds for terminating an Arkansas guardianship is “[i]f the ward becomes a nonresid ent

of this state,” § 28-65-401(b)(2) -- express legislative recognition tha t guardians may effect a change of residence. Finally, in this case, the guardianship order expressly recited that the guardian was a resident of California, a clear signal that the probate c ourt knew a change of King’s residence was implicit in appointing Johnso n guardian.
In sum, King has no support for his assertion of a Fourteenth Amendment liberty deprivation. In denying Beavers qualified immunity, the district court relied on Hurlman v. Rice , 927 F.2d 74, 79-80 (2d Cir. 1991). But that was a Fourth Amendment decision premised upon the court’s conclusion that an order to show cause directed to a child’s mother in no way authorized police officers to seize the child from her grandparents’ home. This ca se is very different. Based upon our review of the relevant Arkansa s statutes , confirmed by what little case law there is elsewhere in the country, w e conclude that the probate court’s guardianship order implicitly included theThere i s some support in our prior cases for the proposition that Beavers i s 4 entitled to quasi-judicial absolute immunity because he was car rying out a facially valid court order. See Robinson v. Freeze , 15 F.3d 107, 109 (8th Cir. 1994); Patterson v. Von Riesen , 999 F.2d 1235, 1239 (8th Cir. 1993); Tymiak v. Omodt , 676 F.2d 306 , 308 (8th Cir. 1982). However, qualified immunity is the no rm. The absolute immunity issue has not been raised, and we do not consider it.
-8- power to c hange the ward’s residence to that of the guardian. Therefore, DH S Consultant Tudor, the County Attorney, the County Sheriff, and Depu ty Beavers did not violate King’s Fourteenth Amendment righ ts by helping to escort him, involuntarily but peacefully, to the guardian’s residence in California without additional authorizatio n from the probate court. Beavers is entitled to summary judgment dismissing this § 1983 action because he did not violate King’s constitutional rights by removing King from his home , escorting King to the Little Rock airport, and accompanying King and Johnson to California.
B. Objectively Reason able Conduct. Alternatively, we conclude that Beavers’s conduct was objectively reasonable, that i s, it “did not violate clearly established rights of which a reasonable person would have known.” Bagby v. Brondhaver , 98 F.3 d 1096, 109 8 (8th Cir. 1996). Beavers went to the King home at the direction of Sherif f 4 Nicklas to assist DHS Consultant Tudor. He reviewed a court order and Letters o f Guardianship placing King in Johnson’s custody and control. He was advised by Tudor tha t King should accompany Johnson to California. When King resisted, threatenin g to kill himself, Beavers consulted the County Attorney and later the Sheriff and acted consistently with their adv ice. He used minimal force in assisting King’s daughter and legal guardian to move King and his invalid wife to the daughter’s home. While King’s law enforcement expert opined that it was unreasonable for Beaver s to travel far outside h i s jurisdiction in assisting Johnson, that issue has nothing to do with whether the trip violated King’s clearly established constitutional rights.-9-

Give n the traumatic situation Beavers encountered, the instructions from hi s superiors, and his wide-ranging responsibilities as an Arkans as law enforcement officer,

see A RK

. C ODE A

NN

. § 14-52-203, Beavers undoubtedly wo uld have been remiss -- and wouldhave faced uncertain liability -- had he arrived at the King residence and failed to take reasonable action to pacify the feuding family members. Some mo nths later, Mr. King’s custodial guardianship proved to be unnecessary and was terminated. But the guard ianship order was facially valid. Beavers was duty bound to help enforce tha t ord er, and his actions in that regard were objectively reasonable because they wer e consi stent

with the court’s grant of full guardianship to Marilyn Johnson. Publi c officials facing situation s like this must take quick and decisive action to mitigate risks to health and safety. This is precisely the kind of good fait h discretionary official action that qualified immunity is intended to protect. Compare Miller v. Compton , 122 F.3d 1094, 1099 (8th Cir. 1997).

The order of the district court denying the motion of defendant Charles Beavers for summary judgment is reversed.
A true copy.

Attest:

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