                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-3358
                        ___________________________

                                Thomas J. Ingrassia

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

 Keith Schafer, Director, Missouri Department of Mental Health, In His Official
  Capacity; Felix Vincenz, Chief Operating Officer, Division of Comprehensive
   Psychiatric Services, Missouri Department of Mental Health, In His Official
Capacity; Julie Inman, Regional Executive Officer, Missouri Department of Mental
                         Health, In Her Official Capacity

                            lllllllllllllllllllll Defendants

Carol Dicknette, Office of Consumer Safety, Missouri Department of Mental Health

                      lllllllllllllllllllll Defendant - Appellant

Leigh Gibson, Office of Consumer Safety, Missouri Department of Mental Health

                            lllllllllllllllllllll Defendant

 Jay Englehart, Psychiatrist/Physician, Medical Director, SORTS, In His Official
  and Individual Capacity; Alan Blake, Chief Operating Officer, SORTS, In His
  Official and Individual Capacity; Beth Weinkein, Dietician II, SORTS, In Her
                         Official and Individual Capacity

                     lllllllllllllllllllll Defendants - Appellants
    Brenda Swift, Facility Grievance Coordinator, SORTS, In Her Official and
Individual Capacity; Bob Wills, Chief Nursing Executive, SORTS; Joe Easter, RN
                                   5, SORTS

                             lllllllllllllllllllll Defendants

                          Marybeth Rowe, RN 5, SORTS

                       lllllllllllllllllllll Defendant - Appellant

  Kevin Fletcher, Risk Management Committee; Kristina Bender, Unit Program
   Supervisor, SORTS; John Does, Members of Risk Management Committee,
      Executive Committee, Resident's Rights Review Committee, SORTS

                             lllllllllllllllllllll Defendants
                                     ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                            Submitted: January 12, 2016
                               Filed: June 13, 2016
                                 ____________

Before MURPHY, SMITH, and BENTON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

       Thomas J. Ingrassia, a civilly-committed individual, sued Carol A. Dickneite,
Jay W. Englehart, Alan W. Blake, Beth Weinkein and Mary Beth Rowe, alleging a
violation of his constitutional right to adequate nutrition under 42 U.S.C. § 1983. The
district court denied defendants qualified immunity. They appeal. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.


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                                           I.

      Ingrassia was civilly committed to the Missouri Sexual Offender Rehabilitation
and Treatment Services (SORTS) facility. In 2001, he escaped. Apprehended in
2003, he was convicted of property damage related to the escape. After serving a
prison sentence, Ingrassia returned to SORTS in August 2008. He then weighed 150
pounds, although he alleges this was lower than normal due to recent back surgery.

      Returning to SORTS, Ingrassia was placed on Total Ward Restriction (TWR),
which included not eating in the dining room. Based on his height, weight, and age,
SORTS determined he required a 2000-calorie per day diet. The TWR lasted until
March 15, 2009, when he began eating in the dining room. By May 27, Ingrassia
weighed 163 pounds.

       Under SORTS policies, if a patient refuses to attend meals in the dining room
or to comply with meal procedures, SORTS provides two 300-calorie meal-
replacement drinks or, if medically necessary, a regular meal tray in the patient’s
room. On July 12, for unknown reasons, Ingrassia received two meal-replacement
shakes instead of a regular meal. In protest, he microwaved the shakes in a styrofoam
cup, put them on a desk in the nurse’s station, and smashed a book on top of them,
spilling them all over the desk.

       The following day, Rowe, a registered nurse, ordered that Ingrassia be provided
a bag lunch and no drinks until further notice. Later that day, Blake, the chief
operating officer, discontinued that order, directing that he receive regular meal trays
but no hot liquids. Between July 22, 2009, and March 4, 2010, an additional order
directed no liquids except water. On September 17, Ingrassia again smashed a meal-
replacement shake in protest. Thereafter, he received only bag lunches and finger
foods.

                                          -3-
      According to Ingrassia, during this period of restrictions, his bag lunches often
lacked key items. Each sack lunch normally had a sandwich, bag of chips, pack of
cookies, and one piece of fruit. Ingrassia also received a 200-calorie night-snack. He
alleges that, due to the missing items, he sometimes consumed only 1200 calories per
day. In August 2009, shortly after the food restrictions began, Ingrassia weighed 165
pounds. Three months later, it was 151 pounds. Throughout the period of restrictions,
Ingrassia made several formal and informal complaints to defendants. On March 4,
2010, he started receiving regular meals, ending the dietary restrictions.

     Ingrassia sued the defendants under 42 U.S.C. § 1983, alleging a Fourteenth
Amendment claim for denial of adequate nutrition. Defendants moved for summary
judgment on the basis of qualified immunity. The district court denied the motion.
Defendants appeal.

                                          II.

       The defendants argue that the district court should have granted them qualified
immunity. “[A]n order denying qualified immunity is immediately appealable even
though it is interlocutory.” Scott v. Harris, 550 U.S. 372, 376 n.2 (2007). “‘A
defendant, entitled to invoke a qualified immunity defense, may not appeal a district
court’s summary judgment order insofar as that order determines whether or not the
pretrial record sets forth a genuine issue of fact for trial’; the appealable issue is a
purely legal one.” White v. McKinley, 519 F.3d 806, 812 (8th Cir. 2008), quoting
Johnson v. Jones, 515 U.S. 304, 319-20 (1995).

       This court reviews de novo the district court’s denial of qualified immunity.
Id. at 813. The defendants bear the burden to establish the relevant facts supporting
qualified immunity, while Ingrassia receives the benefit of all reasonable inferences.
See Wallingford v. Olson, 592 F.3d 888, 892 (8th Cir. 2010). Ingrassia “may not rest
upon the mere allegation or denials of his pleading, but . . . must set forth specific

                                          -4-
facts showing that there is a genuine issue for trial,” and “must present affirmative
evidence in order to defeat a properly supported motion for summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986), citing Fed. R. Civ.
P. 56(e).

        “Qualified immunity may protect government officials from liability under 42
U.S.C. § 1983, but not if their conduct violated clearly established statutory or
constitutional rights of which a reasonable person would have known.” Nelson v.
Corr. Med. Servs., 583 F.3d 522, 527 (8th Cir. 2009) (en banc), quoting Hope v.
Pelzer, 536 U.S. 730, 739 (2002). The tests for whether an officer is entitled to
qualified immunity are: (1) whether the facts alleged, taken in the light most favorable
to the injured party, show that the officer’s conduct violated a constitutional right; and
(2) whether the constitutional right was clearly established at the time of the
deprivation so that a reasonable officer would understand his conduct was unlawful.
Pearson v. Callahan, 555 U.S. 223, 231 (2009). This court may consider these in
either order. Williams v. Jackson, 600 F.3d 1007, 1012 (8th Cir. 2010).

      Reviewing the denial of qualified immunity, this court views the facts most
favorably to Ingrassia and draws all reasonable inferences in his favor. Nance v.
Sammis, 586 F.3d 604, 609 (8th Cir. 2009). “Denial of qualified immunity will be
affirmed if a genuine issue of material fact exists as to whether a reasonable officer
could have believed his actions to be lawful.” Id. This court may not weigh evidence
or make credibility determinations at this stage. Tlamka v. Serrell, 244 F.3d 628, 634
(8th Cir. 2001).

                                           III.

      Although Ingrassia is civilly committed—not imprisoned—his confinement is
subject to the same safety and security concerns as that of a prisoner. Revels v.
Vincenz, 382 F.3d 870, 874 (8th Cir. 2004). Only those deprivations denying “the

                                           -5-
minimal civilized measure of life’s necessities” implicate the Constitution. Wilson
v. Seiter, 501 U.S. 294, 298 (1991). While the Eighth Amendment does not apply,
Ingrassia’s rights arise under the Fourteenth Amendment. Revels, 382 F.3d at 874.

       Civilly-committed individuals have a constitutional right to nutritionally
adequate food. See Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992). A
plaintiff may demonstrate violation of his constitutional rights by evidence “that the
food he was served was nutritionally inadequate or prepared in a manner presenting
an immediate danger to his health, or that his health suffered as a result of the food.”
Id. See also Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999) (suggesting that
inmate claiming inadequate diet must allege losing weight, suffering adverse physical
effects, or being denied nutritionally or calorically adequate diet), cited with approval
in Davis v. Missouri, 389 F. Appx. 579, 579 (8th Cir. 2010). To demonstrate a
constitutional violation, Ingrassia must show that the defendants were deliberately
indifferent to his nutritional needs, that is, “failed to act despite . . . knowledge of a
substantial risk of serious harm.” See Farmer v. Brennan, 511 U.S. 825, 842 (1994).

                                           A.

       According to defendants, Ingrassia was not denied adequate nutrition because
(1) any inadequate nutrition was due to his own behavioral choices, and (2) as a matter
of law, he had adequate nutrition because objective measures such as Body Mass
Index (BMI) and labwork were within the normal range.

       Defendants first contend that Ingrassia’s failure to follow SORTS dining-room
procedures led to the replacement meals and shakes. Defendants emphasize cases
where courts hold that prisoners have no constitutional claim if inadequate nutrition
stems from failure to comply with safety procedures during meals. See, e.g., Talib v.
Gilley, 138 F.3d 211, 212 (5th Cir. 1998) (holding that prisoner has no constitutional
claim for inadequate nutrition when he was not served meals after refusing to put

                                           -6-
hands behind back, noting prisoner “carried the keys to the kitchen cupboard”).
Ingrassia does not base his inadequate-nutrition claim on receiving no meals, but
rather that the replacement meals were calorically inadequate. Moreover, defendants
point to no concerns for employee safety like those in other cases. See id. Indeed,
while Ingrassia’s failure to follow dining-room procedures may have merited
replacement meals, they must still be constitutionally adequate. Ingrassia’s rule
violations do not foreclose his inadequate nutrition claim.

       Defendants also note that Ingrassia’s BMI was at all times within the “normal”
range of 18.9 to 24.9. According to defendants, they cannot be liable for withholding
adequate nutrition because the objective evidence—his BMI—demonstrates adequate
nutrition. While certainly favoring defendants, the normal BMI does not as a matter
of law foreclose an inadequate-nutrition claim. As Ingrassia points out, at his height,
a weight drop from 174 to 131 pounds might be considered “normal” BMI. This court
has held that a far less precipitous weight loss states a claim for inadequate nutrition.
See Davis, 389 F. Appx. at 579 (finding allegation of 19-pound weight loss in 8
months sufficient to state a constitutional violation).

       Likewise, although defendants contend that Ingrassia’s labwork was at all times
within normal ranges, the evidence shows four indicators outside the normal range.
The district court properly found that the lab results remained contested issues of
material facts. The objective measures of the “normal” range BMI and lab results do
not foreclose a claim for inadequate nutrition.

       Rather, as the district court explained, there is ample evidence from which a
jury—crediting Ingrassia’s evidence—could find that he proved a constitutional
violation: (1) he lost 11 pounds in less than two months (and 14 pounds in three
months), (2) his bag lunches often lacked items as punishment for behavioral
violations, (3) at times he received only 1200 calories per day instead of the
recommended 2000, and (4) food—including oatmeal and mashed potatoes–was

                                          -7-
improperly withheld under the “no liquids” order. The evidence, taken most favorably
to Ingrassia, demonstrates a violation of his constitutional right to adequate nutrition.

                                           B.

      The defendants, save Englehart, assert they did not have the requisite
knowledge to be liable for deliberate indifference to Ingrassia’s dietary needs.
Defendants Dickneite, Blake, Weinkein and Rowe argue that they did not have
knowledge of his weight loss or the authority to change his meal plans. See Farmer
v. Brennan, 511 U.S. 825, 842 (1994) (holding that, to be deliberately indifferent,
defendant must have “failed to act despite . . . knowledge of a substantial risk of
serious harm”).

       Blake and Weinkein each knew of Ingrassia’s complaints and had authority to
change his meals. Blake, the chief operating officer, received a complaint from
Ingrassia in 2009 about the health shakes. Blake conceded in his response to a request
for admissions that he “may have been aware” of Ingrassia’s weight loss. Blake had
authority to enter orders about nutrition, having reversed Rowe’s 2009 no-liquid
order.

      Likewise, Weinkein, a registered dietitian, acknowledged she was aware of
Ingrassia’s weight loss, responding to one of his complaints by writing (under her
signature) that a registered dietitian had calculated his nutritional needs and found his
diet adequate. Weinkein noted proposed changes to Ingrassia’s nutrition plan,
including progress notes that he had nutritional risks and should be receiving Slim
Fast bars to meet his nutritional needs. At this stage in the proceedings, Ingrassia has
shown that Blake and Weinkein each potentially had the requisite knowledge and
authority for his deliberate-indifference claim.




                                          -8-
       Rowe and Dickneite, however, did not have knowledge or authority. Although
Rowe, a registered nurse, entered the nutritional order after Ingrassia first smashed the
shake in 2009, Ingrassia has adduced no evidence that she was aware of and ignored
his weight loss, as required for a claim of deliberate indifference. Similarly,
Dickneite, in the State Office of Consumer Safety, had neither knowledge of
Ingrassia’s weight loss nor the authority to change his meal plans. The evidence
against Rowe and Dickneite is insufficient to support a claim for deliberate
indifference. The district court erred by denying summary judgment to them.

                                           C.

       Defendants contend that, even if questions of material fact remain whether
Ingrassia was denied adequate nutrition, the right to adequate nutrition was not clearly
established, warranting qualified immunity. Defendants argue that appellate courts
have not clearly defined adequate nutrition in the civil commitment context. At the
time of the alleged violations, however, it was clearly established that a prisoner may
properly allege a constitutional violation by demonstrating significant weight loss or
other adverse physical effects from lack of nutrition. See Davis v. Missouri, 389 F.
Appx. 579, 579 (8th Cir. 2010) (citing cases for proposition that “inmate claiming
inadequate diet under Eighth Amendment must allege he lost weight or suffered
adverse physical effects, or was denied nutritionally or calorically adequate diet”).
While there are contested issues of fact about Ingrassia’s weight loss and caloric
intake, his evidence established a significant weight loss tied to nutrition. Because the
law was settled, the district court properly denied summary judgment to Englehart,
Blake and Weinkein.

                                     *******




                                          -9-
      The order of the district court denying qualified immunity is affirmed in part,
reversed as to Rowe and Dickneite, and remanded for proceedings consistent with this
opinion.
                       ______________________________




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