                   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.
     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 and, in an attempt to avoid resorting to self-mutilation
to ease her pain, called the Vista Health Hotline. 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 Independence County Sheriff’s Department was dispatched to the
scene and found Norris at her neighbor’s home. After conversing with Norris, Page
decided to take her into protective custody 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 protective 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 inserted 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 several 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 door and, according to Engles’s deposition

                                         -2-
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, Norris, frustrated with her situation, stated
that she was going to pull out her PICC line and 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 supervisor 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 the 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 at the 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 characterized by the district court, that 1)
her Fourteenth Amendment procedural due process rights were violated when she was
taken to the county jail instead of to the hospital, 2) her Fourteenth Amendment


      1
       Norris asserts that at some point prior to leaving for the medical facility,
Engles hit her with handcuffs, and that either 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-
substantive due process rights were violated when Engles restrained her at the jail, and
3) her Fourth Amendment rights 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 summary judgment on Norris’s substantive due
process claim, the district court concluded 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 interlocutory appeal, contesting the district court’s
denial of her request for qualified immunity.4




      3
        As to Norris’s Fourth Amendment claim, 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 Norris’ 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 review of the qualified immunity issue is
limited to the purely legal question of ‘whether the facts alleged (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 district court does not state those facts, we must
perform a “review of the record to determine what facts the district court . . . likely
assumed.” Johnson, 515 U.S. at 319. After reviewing 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-
                                          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 qualified immunity, two inquires must be made.
First, we must determine “whether the facts alleged, taken in the light most favorable
to [Norris], show that [Engles’s] conduct violated 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, the 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 Amendment. This substantive due process
right “‘protects individual liberty against certain 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 substantive 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 rights that are deeply rooted in this Nation’s
history and tradition, and implicit in the concept 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 bodily 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

                                          -5-
as the core of the liberty protected by the Due Process Clause from arbitrary
governmental action” and that this interest survives involuntary commitment. 457
U.S. 307, 316 (1982) (quotations omitted). The Court further recognized, however,
that in the involuntary commitment setting, this right is not absolute, for it at times
conflicts with the individual’s and other residents’ 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 movement 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 such 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 that the conduct at issue violated 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, that 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 most likely to rise to the conscience-shocking
level.” Id. at 849. Whether conscience-shocking conduct has occurred is “‘tested by

                                           -6-
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 light of 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 Norris, the facts establish that Norris was
taken to the jail because she had thoughts 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 the 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 restraint rises to the level of conscience-shocking
conduct. Norris was restrained in 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 handcuffed 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 Norris from seriously harming herself. Given
these circumstances, and notwithstanding the fact that Norris was cuffed to the floor-
grate 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 draconian, methods of restraint, had they been
available, might well have been preferable in this 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 establish a constitutional violation.5


      5
       We note that the cases cited by Norris 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 conscience” 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-
       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 violated were 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.
                       ______________________________




Buckley 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 separation, and then placing him face down on the ground); Buckley,
133 F.3d at 1127-31 (while confined in a psychiatric hospital, prison inmate was
routinely placed in restraints or in segregation in non-emergency situations).

                                         -8-
