Wayne Kennedy and Alice Kennedy v. C. Keith Schafer John Twiehaus Robert O. Muether Jacqueline Howard Kelly Shaw and Peggy J. Dunlap

address the issue reconversion. en-We in part deny

force the Board’s order part,

enforcement accordance with this

Wayne KENNEDY and Alice

Kennedy, Appellants, SCHAFER; Twiehaus;

C. Keith John Muether; Jacqueline Howard;

Robert O.

Kelly Shaw; Peggy Dunlap, Ap J.

pellees.

No. 95-1531EM. Appeals,

United States Court of

Eighth Circuit. Sept.

Submitted 1995.

Decided Dec. Suggestion

Rehearing and Rehearing

En Bаnc Denied Jan. 1996.* * Bowman, Wollman, Fagg, Beam, Hansen, Circuit en banc. Judges, suggestion rehearing at Haw- inpatient remained Missouri, Kathleen argued Louis, Garvin, St. Leo V. March On months. for several thorn Schlappriz- L. (Paul Maloney and Donald M. and her her mental brief), due to Missouri, for the Louis, on zi, St. suicide, she was to commit desire expressed appellant. “1:1 Constant Staff precaution the plaсed on Missouri, Louis, Alsop, A. St. Christine precaution under Patients Supervision.” Attor- (Jay) (Jeremiah Nixon W. argued of, no more and eyesight the must within be R. Mu- Missouri, and John ney General from, members away feet staff three than brief), appellee. nich, for on was Kathleen April On all times. Precautions.” Suicide placed on “Protective ARNOLD, Chief S. RICHARD Before at a who patients for precaution This HANSEN, Circuit аnd Judge, HEANEY suicide, for risk” to low “moderate Judges. keep the nursing staff members quires Additionally, ARNOLD, Judge. eye-sight.” Chief “in constant S. RICHARD directly with interact must nursing staff brought Kennedy Alice Wayne so that every minutes 15 to 20 patients these against officials § 1983 42 U.S.C. under suit behavior in changes their Health Department of Mental of the detected. be Psychiatric Hospi- Children's Hawthorn allege that defen- They tal, facility. a state Sui- Protective under remained Kathleen daughter, 15-year-old their deprived dants evening April on the cide Precautions right to safe Kathleen, D, Cottage in day, the staff That she was while environment and humane told Haw- residing, was Kathleen where they deprivation, That Hawthorn. Peggy nursing supervisor, defendant thorn’s The Dis- assert, suicide. to Kathleen’s led assigned nurses number of Dunlap, that the motion the defendant’s granted trict Court inadequate to evening shift was to work that, because summary judgment, Dunlap failed patients’ needs. meet Haw- admitted was Kathleen fact, in declined help, find additional in a safe “liberty interest” thorn, had help lo- day-shift supervisor by the offer environment, precluding thus humane Com- nursing assistance. additional cate reverse 1983. We Section under charge in nurse problems, pounding issue of genuine is a there because that order assigning responsible for D who was Cottage Kathleen, at concerning whether fact failed care for Kathleen staff member voluntary patient. death, awas of her time time, was, at the charge nurse This do so. past of her probation because on extended I. to the duties assigning work deficiencies nursing staff. case, stage preliminary At this facts. Kennedys’ version accept the p.m. duty at 2:30 began evening shift admitted was Kathleen October “con- not was 8. Kathleen April on voluntary inpatient aas Hawthorn nursing staff member. eye-sight” of stant Immediately before Kath- request. parents’ every 15 to 20 with interacted No one Hawthorn, had been finally checked someone When minutes. hospital. private in a inpatiеnt psychiatric dead, hanging was p.m., she 5:10 her at coverage had been insurance parents’ room. in her sheet a bed move. The exhausted, necessitating the staffing these Kennedys allege that that, they did advised Kennedys had nothing Hawthorn. new were to a mental- Kathleen admit not complained employees They assert be involun- facility, Kathleen would health understaffing on sevеral chronic option about only affordable tarily committed. Moreover, Haw- they claim occasions. was a state-run open to them records, causing the officials falsified thorn charged accordance they to be appear hospital to staffing needs Thus, pay. ability to their actions, These they were. less than Hawthorn, facility. a state into contеnd, they pattern establish a of deliber- dispositive question. Rather, ate indifference to the safety health and encourage us to look to the amount of control patients. Hawthorn’s actors, deliberate indif- the state here employees, ference, turn, deprived their daughter of exerted over Kathleen’s life. Walton v. Cf. constitutionally protected Alexander, intеrest Cir.1995) F.3d (en banc) a safe humane (Parker, environment. J., concurring specially). so, If we do say, it will become apparent Court District held that the defen- that no distinction should be made between dants were entitled to summary judgment on patients mental grounds. First, two it held that Kathleen patients, mental who unquestionably do have no constitutionally protected liberty in- protected interеst a safe and ‍‌‌‌​​​​‌‌‌‌‌​​​‌‌‌​​​‌​​‌​​‌‌‌‌‌​‌‌‌​‌​​‌​‌‌​​‌​‍terest because she entered Haw- humane environment. Youngberg See v. Ro Second, thorn. even if Kathleen did have a meo, 307, 102 U.S. 2452, 457 S.Ct. 73 L.Ed.2d protected liberty interest, was not (1982). 28 clearly established at death, the time of her entitling thus qualified defendants to im- argument may have merit. munity. fact, this accepted Court it before DeShaney. See Parwatikar, Goodman v. 570 F.2d 801 II. (8th Cir.1978). Nevertheless, circuits, The Due Process Clause of the Four after DeShaney, have refused to due- teenth Amendment ensures that “[n]o State process protection to those who shall ... deprive any person life, entered the Walton, State’s custody. See or property, without process due of law.” supra; Monahan v. Dorchester Counseling Supreme Court has held that “depri Center, (1st 961 F.2d Cir.1992); 987 Fialkow liberty” vation of triggers which protec “the ski v. Greenwich Children, Inc., Home for tions of the Due Process Clause” is “the (3rd Cir.1990). 921 F.2d 459 Armed State’s affirmative act restraining the indi cases, these argue defendants that Par- vidual’s freedom to act on his ownbehalf- watikar has been by DeShaney. overturned through incarceration, institutionalization, or We, course, cases, bound these other similar personal restraint of liberty.” and the could, case before us conceivably, be DeShaney v. Winnebago Cty. Dept. Soc. distinguished given youth Servs., 189, 489 200, U.S. 109 S.Ct. mental state. We need not address this is (1989). L.Ed.2d 249 This Court has sue, however, because the was suffi interpreted DeShaney as “impos[ing] duty ciently doubtful, viewed from the perspective on protect actors or care for citizens” of a reasonable statе official the time of when one of two circumstances Greg exists. death, to make impossible it ory City Rogers, say us to that the law was established (8th Cir.1992) (en banc), denied, cert. at that time in favor of the existence U.S. 113 S.Ct. 122 L.Ed.2d 661 due-process right on part of a voluntarily (1993). The first exists when the state limits patient. words, In other agree ability individual’s to care for himself in a with the District Court that defendants are “custоdial [or] other setting[].” Ibid. The entitled to the defense qualified immunity second exists when the exposes one to if Kathleen is properly classified as a volun danger that he would not have faced other tary patient. We need not and do not decide wise. whether ParwatikaPs holding in favor of vol The District Court’s order majori- and the untary patients’ due-process rights remains ty of partiеs’ arguments in this Court good law. We do decide that an action for have focused a voluntary whether damages brought patient is in a state hospital mental could ever have his subject to a qualified-immunity defense. “ability to care for himself’ so limited as to create a liberty interest in a safe and humane This holding is not the end of ‍‌‌‌​​​​‌‌‌‌‌​​​‌‌‌​​​‌​​‌​​‌‌‌‌‌​‌‌‌​‌​​‌​‌‌​​‌​‍the environment. The Kennedys argue ease, that the however. Voluntary patients manner in which patient enters a be upon released request, or, if 109 S.Ct. Shaney, supra, 489 U.S. minors, request of their upon they are Presumably, rec triggered. 682.155(1). were But Mo.Rev.Stat. parents. and the the defendants sparse because minor is a ord is facility head that Kathleen’s believed mental- District Court minor is that the “determines remand, dispositive. On result, upon presents ly disordered whether Kathleen’s determined himself it should physical harm likelihood presented time of her death at the may refuse others, head of harm” physical a “likelihood In- Mo.Rev.Stat. release.” detained could that Hawthorn of “serious definition cluded request parents had she or her be her either harm will risk that is “a substantial so, that she the “situation” ed her release. person, upon his own by person inflicted analogous to incar “sufficiently threats, including in was verbal was by recent evidenced give rise to to institutionalization or or ceration commit suicide threats, attempts to or DeShaney, duty protect.” to affirmative Mo.Rev. an himself.” harm on physical inflict 9, at 1006. 109 S.Ct. 201 n. 632.005(9)(a). Notably, applica- the 489 U.S. § Stat. by signed admission tion noted, makes it disposition this have As we re- to Hawthоrn admission upon her mother question whether unnecessary the to address nearly verba- statutory language this peats enjoys same the voluntary patient a tim. involuntary pa- as an protections the keeping in prudent, tient. It is once indicates that language this consideration postpone to precedents, Precautions Protective Suicide placed on until constitutional difficult involun- become may have she necessary. is that its consideration certain had longer Certainly tary patient. McAdory, 325 Labor v. Federation by hospital the right to leave Cf. absolute the L.Ed. 65 S.Ct. U.S. de- to be requesting released. simply (1945). conjecture to argue that it is mere fendants officials what Hawthorn try determine to III. had if Kathleen have done would suggests, post have they would that Hansen doubt Our Brother leave. We to a risk a constitutional presented reasoning “create[s] patient who that our released the status required involuntary commitment great right that her doctors to so suicide constantly in that their condition is such keep patient’s nursing staff to whenever re- With Moreover, would detained.” what defendants sight. she could this parents had tried charaсterization that spect, we believe done only that the hold is not We the is mistaken. out of take may effectively argument before At the oral statute at stake. issue under Court, that Kath- defendants stated Kathleen’s condition those in own acting on their certainly have been care of the State would almost leen circumstances, trigger as to anoth- an extent to such under behalf certain leased It care ar- Process Clause. to a home-health of the Due protections institution er exactly condition worsening medical that is example. But rangement, for not Kathleen’s status required have been have converted would point. She alone that Rather, her involuntary patient. showing she could before some make duty placed right plus worsening had no absolute She released. been may have had statute officials leave. this effect. however, us, is not suffi- before record statute, Mo. connection, another conclude, In this matter of tous to allow cient 632.300, is relevant. § Under Rev.Stat. Kath- law, had so restrained that Hawthorn become if the defendants provision, own behalf— [her] act on “freedom to while her cоndition institutionalization, of Kathleen and aware incarceration, through care, they would their outside she was liberty” that restraint similar investigate and evaluate Clause,” required De- Due Process “protections of 632.300(1). condition. Mo.Rev.Stat. First, fold: I fail disputed to see facts they posed might had determined that “likeli- indicate that Kathleen’s changed from voluntary hood of to herself invоlun- tary, second, even if “imminent,” genuine there is a that that harm was would dispute issue, of fact on this I believe that required have been to commit her involun- imposition arising from such a tarily. By par- Mo.Rev.Stat. de status was not facto ity reasoning, already custody established law at the tragedy. time of this as the result of a commitment In surely give has no order to absolute rise to a to be constitutiоnal released protect, both DeShaney, 489 when her condition U.S. way has worsened in the 199-200, 109 S.Ct. at and our that Kathleen’s did in this case. Dorothy Dist., J. v. Little Rock Sch. dissenting opinion that, suggests also Cir.1993), require showing even if Kathleen had an involuntary become that the state some “affirmative exercise patient, qualified- defendants have a power” of its restrained an individual’s liber immunity enough defensе. It is true ty against her will and rendered her unable fours, there is no case on all at least none to care for my opinion, herself. after that we have found. But precedent in DeShaney, of a men Circuit, in the form the Parwatikar patient tal does not required result case, above, discussed is clear at least that state-imposed restraint of against the involuntary patients rights. will, pаtient’s that is necessary to establish No DeShaney one contends that any or liability protect. for failure to Nor can the impaired ease has or cast doubt this as- worsening patient’s mental condition pect of our Parwatikar. We see and a modality treatment to more no why patient frequent reason originally observations committed for substitute the affir mative voluntarily must retain exercise of perma- liberty-restraining that status state power. nently. change, legal Facts status fol- lows facts. This chain of reasoning is not undisputed It is that at the time of her and, think, obscure would have ap- admission, Kathleen was a mental parent to a reasonable state official at patient. admitted, She was not committed. gave time of the that events rise tо this course of required case. treatment that she be placed under Precautions, Protective Suicide

IV. medical status which frequent mandates interaction with and supervision by constant judgment the District Court is re- staff status, members. This medical which genuine question versed. A of material fact part of her requested treat- concerning exists whether Hawthorn had re- ment, only is the possible shоwing of an ability stricted act on her own affirmative exercise of power state that can behalf to an such extent that she had be- be found in this case. Our court’s come, effect, involuntary patient. an might concludes that there be an issue of fact cause is remanded proceedings further by speculating that once placed Kathleen was consistent with under Protеctive Suicide Precautions may become an HANSEN, Judge, Circuit dissenting. patient because her mental condition was I respectfully dissent. Our court remands such parents that if findings further concerning release, whether (not would) the director could Kennedy’s change in mental condi- exercised his discretion to refuse her release. tion and may Finding course of treatment support have effec- facts to speculation, tively I respectfully disagree. converted status from that of vol- untary patient to involuntary patient. so, law, Under Missouri it possible is that a then the court states that this situation is voluntary patient’s minor admission status sufficiently similar to incarceration or institu- may change involuntarily de- give § tionalization to rise to patient tained patient the minor or hеr for a protect. failure to My dissent is parents two- request release, release actually a constitu create facility court would statute, of a the head By is denied. involuntary commitment right to tional of a the release “may refuse” ‍‌‌‌​​​​‌‌‌‌‌​​​‌‌‌​​​‌​​‌​​‌‌‌‌‌​‌‌‌​‌​​‌​‌‌​​‌​‍that patient’s condition is such is whenever minor when This cannot result, lawfully be detained. could “mentally disordered both invol There is no constitutional be. physical harm likelihood of presents a commitment, of an individ regardless untary others,” do so but to himself v. Formi condition. See Wilson to a ual’s is made for detention application Cir.1994). goni, court. Mo.Rev.Stat. the release ante, to refuse statutory authority opinion, asserts Our court’s patient, how- minor voluntarily admitted of a 632.300(2) (requiring Rev.Mo.Stat. that head of the ever, discretionary with the is “request coordinator mental health showing of the mandatory upon a facility, not person to [a] to take cause peace officer respect I condition. requisite mental transported to a men- custody and into taken court’s characterization disagree with the facility” if health coor- the mental tal health “duty placed on state aаs this provision to believe that reasonable cause dinator has Ante, of a the head at 295. Until officials.” harm the likelihood opportunity and presented with himself or others as result person to authority to refuse exercises “imminent”) creates a disorder is of a mental patient, minor release which, reasoning, by parity of indicates affirmative action not taken has mental health patient with similar that a voluntary patient’s facility has no abso- already at the meaning De- will within the against her again our court right to release. Here lute ease Importantly, the record Shaney. the mere existence unexercised substitutes evidence Kath- assertion or contains no reality of affirmative power for the against Kath- of treatment was cоurse parents were abso- state action. will, her or that parents’ will or from the lutely to remove her free and were Kathleen sought to remove parents exercised until a and state actor unless course of treatment. from this denied release by the Mis- to detain her authorized power my opinion, neither the souri statute. disputed facts that pointing to of Instead this statutе for detention under possibility of exercise an affirmative might demonstrate by employed our court can reasoning state, sug- nor the court’s by the power action in a state ease affirmative create can the status of gests that Although in fact has occurred. involuntary none voluntary to automatically from ante, although change,” and “[f]acts is both patient’s condition whenever could indicate a given case facts of a poses a “likelihood “mentally disordered” and involuntary status voluntary to change from to to herself or to detain actual decision included in Mo.Rev.Stat. as described others statute, I maintain that un- made under 632.155(2), director “could that the state case indicate less facts either she detained her person’s affirmatively acted has release.” parents subject added). they are insufficient (emphasis Under 295 Ante at liability. An unexercised §to actors reasoning, the mere treatment law to detain discretionary power under state within the which falls terms apparent mental person and evaluate state-imposed re- statute becomes the kind affirmative is not true, health then I fear liberty. strаint prereq- DeShaney as a requires rule state action obliterated that we liability. §to uisite when protect arises that a power affirmatively its exercises summarize, To person’s liberty against the person’s strain a committed, there is no admitted, not DeShaney, 489 U.S. will. See that her status suggest evidence J., 1005; at 732. Dorothy S.Ct. changed before her voluntary patient parents did untimely tragic death. Furthermore, evolution the de facto release, is no indication request her there upon based against her will was restrained that she suggested worsening medical condition will, parents’ simply there is dispute suggest any of fact affirmative power keep-

exercise state that was

ing liberty Kathleen restrained of her at the of her death.

time assuming arguendo possible

Even it is

to demonstrate a concerning fact worsening

whether Kathleen’s condition com- frequent

bined with more medical observa-

tion resulted in an affirmative state act re-

straining in manner simi- involuntary ‍‌‌‌​​​​‌‌‌‌‌​​​‌‌‌​​​‌​​‌​​‌‌‌‌‌​‌‌‌​‌​​‌​‌‌​​‌​‍institutionalization,

lar qualified immunity defense remains avail- certainly

able because this would be new law DeShaney,

since and it cannot be said to established at the time My

Kathleen’s death. research has revealed indicating

no cases constitutional type DeShaney of situation after

prior filing to the of this reasons,

For these I would not remand for inquiry

more factual but would affirm the qualified immunity.

district court’s FUNDS, INC.,

In re PIPER INSTITU-

TIONAL GOVERNMENT INCOME

PORTFOLIO LITIGATION. RODNEY, Jr.,

Richard J. et

al., Plaintiffs-Appellees, MANAGEMENT, INC.;

PIPER CAPITAL

Piper Funds, Inc. Institutional Govern- ‍‌‌‌​​​​‌‌‌‌‌​​​‌‌‌​​​‌​​‌​​‌‌‌‌‌​‌‌‌​‌​​‌​‌‌​​‌​‍Portfolio; Piper Jaffray,

ment Income

Inc.; Piper Jaffray Companies Inc.; Wil- Ellis; Kohler,

liam H. Edward J. Defen- dants-Appellees, Foundation,

Park Nicollet Medical

Objector-Appellant.

No. 95-1925.

United States Court Appeals,

Eighth Circuit.

Submitted Oct. 1995.

Decided Dec.

Case Details

Case Name: Wayne Kennedy and Alice Kennedy v. C. Keith Schafer John Twiehaus Robert O. Muether Jacqueline Howard Kelly Shaw and Peggy J. Dunlap

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 31, 1996

Citation: 71 F.3d 292

Docket Number: 95-1531EM

Court Abbreviation: 8th Cir.