## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-3394

___________ Susan Norris, *
* Plaintiff/Appellee, *
* v. *
* Jacquita Engles, Individually and in * Appeal from the United States her official capacity as an employee of * District Court for the the Independence County Sheriff’s * Eastern District of Arkansas. Department, *
* Defendant/Appellant, *
* Keith Bowers, in his official capacity * as Sheriff of Independence County * Arkansas, *
* Defendant. *

___________ Submitted: April 13, 2007 Filed: August 9, 2007

___________ Before WOLLMAN, BEAM, and COLLOTON, Circuit Judges.

___________ WOLLMAN, Circuit Judge.-2- Jacquita Engles appeals from the district court’s denial of her motion for summary judgment in this action brought by Susan Norris under 42 U.S.C. § 1983. We reverse and remand.

I.

Norris was diagnosed with manic bipolar depression at age fifteen. One of the symptoms of her psychological disorder is self-mutilation. On March 21, 2005, Norris was feeling depressed a nd, in an attempt to avoid resorting to self-mutilation to ease her pain, called the Vista Health Ho tline. After explaining her situation to a woman who worked for the hotline, Norris ended the conversation because she felt that the woman was not helping her. One of the hotline’s employees thereafter called the Batesville, Arkansas, police dispatch and advised them of the situation. Deputy Jeremy Page of the Independe nce County Sheriff’s Department was dispatched to the scene and found Norris at her neighbor’s hom e. After conversi ng with Norris, Page decided to take her into protective cust ody and then brought her to the Independence County Jail.

Engles was on duty at the jail when Norris was brought in. Deputy Page informed Engles that Norris was in prot ective custody because she was trying to harm herself. Page gave Norris’s medication to Engles, the administration of which required the use of a peripherally inse rted central catheter (PICC line) – an intravenous line that had been surgically implanted into Norris’s arm. Norris was allowed to take some of this medication while at the book-in desk.

Engles eventually placed Norris in a padded cell and had her take off her clothes, during which time Engles noticed se veral cuts on Norris’s stomach. After she had removed her clothes, Norris complained of being cold. While Norris was in the cell, Engles sought information from her so she could complete the intake paperwork. The two spoke through a hole in the cell doorand, according to Engles’s deposition1 Norris asserts that at some point prior to leaving for the medical facility, Engles hit her with handcuffs, and that eith er Engles or another jailer kicked her.

2 The record indicates that Norris arrived at the jail at 7:23 p.m. and that Engles entered Norris’s cell to transport her to the hospital at 10:40 p.m.
-3- testimony, during this conversation Norris told Engles that she had had thoughts of cutting herself and of committing suicide.

At some point during her detention, Norri s, frustrated with he r situation, stated that she was going to pull out her PICC line a nd that she would bleed to death. She thought that by taking such action, she would be able to obtain a blanket or some type of clothing. Engles informed her supervis or of what Norris had said and was told to handcuff Norris’s arms behind her back to prevent her from pulling out her PICC line. Engles subsequently did as instructed. Shortly thereafter, Norris stepped through the handcuffs and brought her arms in front of her. In response, Engles, again acting on advice from her supervisor, re-cuffed Norris’ s arms behind her back and then used a pair of leg irons to cuff her to a grate in th e floor of the cell, which served as an open toilet, by attaching one end of the leg irons to the grate and one end to the handcuffs. Engles also wrapped Norris’s arm and PICC line in gauze and attached an additional set of leg irons to Norris’s ankles. When secured in this manner, Norris could not stand up. She remained restrained in this position until she was taken to a medical facility where the cuts on her stomach could be examined. 1 While it is not clear exactly how long Norris was restrained in this manner, it appears that it was, at most, approximately three hours. 2 After she was examined atthe medical facility, Norris was returned to jail. There, Norris met with the mental health screener and was subsequently released upon his recommendation.

Norris filed this lawsuit, asserting, as ch aracterized by the district court, that 1) her Fourteenth Amendment procedural due pr ocess rights were violated when she was taken to the county jail instead of to th e hospital, 2) her Fourteenth Amendment3 As to Norris’s Fourth Amendment clai m, the district court stated that “[a]lthough Engles denies she hit Norris with a pair of handcuffs or kicked her, she does not move for summary judgment on Norri s’ Fourth Amendment excessive force claim.”

4 We have jurisdiction to hear Engles’s interlocutory appeal because it contests the district court’s legal determination that the alleged facts establish a violation of a clearly established constitutional right. Brayman v. United States , 96 F.3d 1061, 1063-64 (8th Cir. 1996) (“[A]ppellate revi ew of the qualified immunity issue is limited to the purely legal ques tion of ‘whether the facts a lleged (by the plaintiff, or, in some cases, the defendant) support a claim of violation of clearly established law.’” (quoting Johnson v. Jones , 515 U.S. 304, 313 (1995))). In doing so, we “take, as given, the facts that the district court assumed when it denied summary judgment for that (purely legal) reason,” and if the distri ct court does not state those facts, we must perform a “review of the record to determine what facts th e district court . . . likely assumed.” Johnson , 515 U.S. at 319. After reviewi ng the record, we conclude that the relevant facts provided below, which were largely undisputed, were assumed by the district court in making its determination.
-4- substantive due process rights were violated wh en Engles restrained her at the jail, and 3) her Fourth Amendment ri ghts were violated because excessive force was used against her at the jail. The district court subsequently granted the defendants’ motion for summary judgment on Norris’s procedural due process claim, but denied the motion for summary judgment on her substantive due process claim. 3 As part of its denial of the defendants’ motion for su mmary judgment on Norris’s substantive due process claim, the district court conclude d that Engles was not entitled to qualified immunity because Norris “presented sufficient facts to establish an underlying constitutional violation” and because “the [alleged constitutional] right was clearly established.” Engles then filed this interl ocutory appeal, contesting the district court’s denial of her request for qualified immunity. 4-5- II.

We review “de novo the denial of a motion for summary judgment based on qualified immunity.” Vaughn v. Ruoff, 253 F.3d 1124, 1127 (8th Cir. 2001). To decide whether Engles is entitled to qualif ied immunity, two inquires must be made. First, we must determine “whether the fact s alleged, taken in the light most favorable to [Norris], show that [Engles’s] conduct vi olated a constitutional right.” Flowers v. City of Minneapolis , 478 F.3d 869, 872 (8th Cir. 2007). “If so, then we determine whether the constitutional right was clearly established at the time.” Id. “If either question is answered in the negative, th e public official is entitled to qualified immunity.” Vaughn , 253 F.3d at 1128. For the reasons stated below, we conclude that Engles’s conduct did not violate a constitutional right and that she is therefore entitled to qualified immunity.

The constitutional right at issue in this appeal is Norris’s right to substantive due process arising under the Fourteenth Am endment. This substantive due process right “‘protects individual liberty against cer tain government actions regardless of the fairness of the procedures used to implement them.’” Flowers , 478 F.3d at 873 (quoting Collins v. City of Harker Heights , 503 U.S. 115, 125 (1992)). To establish a violation of an individual’s substantiv e due process rights, the “plaintiff ‘must demonstrate both that the official’s conduct was conscience-shocking, and that the official violated one or more fundamental ri ghts that are deeply rooted in this Nation’s history and tradition, and implicit in the c oncept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’” Slusarchuk v. Hoff, 346 F.3d 1178, 1181-82 (8th Cir. 2003) (emphasis in original) (quoting Moran v. Clarke , 296 F.3d 638, 651 (8th Cir. 2002) (en banc)).

In Youngberg v. Romeo , a case that addressed the bod ily restraint of a mentally handicapped individual who was involuntarily committed to a state institution, the Supreme Court stated that “[l]iberty from bodily restraint always has been recognized-6- as the core of the liberty protected by the Due Process Clause from arbitrary governmental action” and that this intere st survives involuntary commitment. 457 U.S. 307, 316 (1982) (quotations omitted). The Court further recognized, however, that in the involuntary commitment setting, th is right is not absolute, for it at times conflicts with the individual’s and other reside nts’ liberty interest in their own safety. Id. at 319-20 (“In operating an institution . . . there are occasions in which it is necessary for the State to restrain the move ment of residents – for example, to protect them as well as others from violence.”). To determine whether an individual’s fundamental rights have been violated in su ch a situation one must therefore balance the individual’s liberty interests against the State’s asserted reasons for restraining the individual. Id. at 320-21 (“The question then is not simply whether a liberty interest has been infringed but whether the extent or nature of the restraint or lack of absolute safety is such as to violate due process.”) . With this in mind, however, we note that even if it is determined th at the conduct at issue violat ed a fundamental right, it will constitute a substantive due process violation only if it is also determined to shock the conscience. Slusarchuk , 346 F.3d at 1181-82.

Norris asserts that the manner in which she was restrained by Engles constituted a substantive due process violation because it violated her fundamental right to be free from bodily restraint and shocks the conscience. We disagree, for even if we assume, arguendo , that Engles’s conduct violated Norris’s fundamental right, we conclude that it was not conscience-shocking.

As the Supreme Court has instructed us, “in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, th at it may fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis , 523 U.S. 833, 847 n.8 (1998). “[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action mo st likely to rise to the conscience-shocking level.” Id . at 849. Whether conscience-shocki ng conduct has occurred is “‘tested by5 We note that the cases cited by Norri s do not support a claim that Engles’s actions were conscience-shocking, for they all relied primarily upon either the Fourth or Eighth Amendments to find a constitutional violation, and did not undertake a substantive due process “shocks the c onscience” analysis. Hope v. Pelzer , 536 U.S. 730, 736-38 (2002); Cruz v. City of Laramie , 239 F.3d 1183, 1188 (10th Cir. 2001);
-7- an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the lightof other considerations, fall short of such denial.’” Id. at 850 (quoting Betts v. Brady , 316 U.S. 455, 462 (1942)).

Viewed in the light most favorable to No rris, the facts establish that Norris was taken to the jail because she had thought s of harming herself and, once there, threatened to pull her PICC line out and bleed to death in an effort to obtain a blanket or some type of clothing. No doubt th e restraint employed by Engles after Norris stepped through her handcuffs was uncomfortable and that it significantly restrained Norris’s movement. We must, however, appraise the totality of the situation when determining whether the use of such restrain t rises to the level of conscience-shocking conduct. Norris was restrainedin this manner only after she had threatened her own safety by stating that she was going to pull her PICC line out and bleed to death, and only after she had previously shown that having her hands handc uffed behind her back was alone not an adequate form of restraint. Engles was faced with a situation that required her to take action to protect Norri s from seriously harming herself. Given these circumstances, and notwithstanding the fact that Norris was cuffed to the floorgrate toilet, the type of restraint used by Engles was not so egregious or outrageous as to be considered conscience-shocking. Likewise, the duration of Norris’s restraint, while not insubstantial, was not so lengthy as to warrant a finding that it was conscience-shocking. True, other, less drac onian, methods of restraint, had they been available, might well have been preferable inthis situation. Given the totality of the facts surrounding this case, however, Engles ’s conduct does not shock the conscience, and thus Norris has failed to es tablish a constitutional violation. 5Buckley v. Rogerson , 133 F.3d 1125, 1129 (8th Cir. 1998). In addition, they all involved circumstances readily distinguishable from those present here. See Hope , 536 U.S. at 733-35 (inmate was handcuffed, above shoulder level, to a hitching post for disruptive conduct on two occasions, one of which lasted for seven hours without regular water breaks and no bathroom breaks); Cruz , 239 F.3d at 1186, 1188 (individual, who was under the influence of cocaine, died after he was arrested and placed in a “hog-tie” restraint, which involved cuffing the individual’s arms behind his back, binding his ankles together, securing his ankles to his wrist with twelve inches or less of separati on, and then placing him face down on the ground); Buckley , 133 F.3d at 1127-31 (while confined in a ps ychiatric hospital, prison inmate was routinely placed in restraints or in se gregation in non-emergency situations).
-8- Because Norris has failed to establish a constitutional violation, we need not consider whether her constitutional right to due process was clearly established for purposes of qualified immunity. Saucier v. Katz , 533 U.S. 194, 201 (2001) (“If no constitutional right would have been violatedwere the allegations established, there is no necessity for further inquiries concerning qualified immunity.”).

III.

That portion of the district court’s decision denying Engles’s motion for summary judgment on the basis of qualified immunity is reversed, and the case is remanded to the district court for the entry of judgment granting that motion and for further proceedings on the excessive force claim.

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