                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 06a0288p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                    X
                                Plaintiff-Appellee, -
 ANTHONY LEE HILLS,
                                                     -
                                                     -
                                                     -
                                                          No. 05-6298
          v.
                                                     ,
                                                      >
 COMMONWEALTH OF KENTUCKY et al.                     -
                                      Defendants, -
                                                     -
                                                     -
                            Defendant-Appellant. -
 NASIRUDDIN SIDDIQUI, M.D.,
                                                     -
                                                    N
                       Appeal from the United States District Court
                 for the Western District of Kentucky at Bowling Green.
                   No. 04-00069—Thomas B. Russell, District Judge.
                                           Submitted: July 21, 2006
                                    Decided and Filed: August 9, 2006
               Before: GILMAN and COOK, Circuit Judges; DOWD, District Judge.*
                                              _________________
                                                   COUNSEL
ON BRIEF: Ronald W. Crawford, OFFICE OF THE GENERAL COUNSEL, Frankfort, Kentucky,
for Appellant. Anthony Lee Hills, Bowling Green, Kentucky, pro se.
                                              _________________
                                                  OPINION
                                              _________________
        RONALD LEE GILMAN, Circuit Judge. After Anthony Lee Hills was arrested and charged
with burglary, a Kentucky court ordered him transferred to the Kentucky Correctional Psychiatric
Center (KCPC) for observation, assessment, and treatment because of questions regarding his
competency to stand trial and his mental state at the time of the alleged crime. During the course
of his treatment, Hills was forcibly administered an antipsychotic drug as authorized by the state
court. The charges against him were ultimately dropped.



         *
          The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by
designation.


                                                          1
No. 05-6298           Hills v. Commonwealth of Kentucky et al.                                 Page 2


        Hills subsequently sued the KCPC and several of its mental-health professionals, including
Dr. Nasiruddin Siddiqui, alleging various constitutional violations arising out of his being forcibly
medicated. Dr. Siddiqui filed a motion for summary judgment on the basis of qualified immunity.
After the district court denied the motion, Dr. Siddiqui filed this interlocutory appeal. For the
reasons set forth below, we REVERSE the judgment of the district court and REMAND the case
for further proceedings consistent with this opinion.
                                        I. BACKGROUND
A.     Factual background
        In April of 2003, Hills was arrested and charged with first-degree burglary under Kentucky
law. Approximately one week after his arrest, a state trial court ordered that Hills undergo a
psychiatric examination at the KCPC to determine (1) whether he was competent to stand trial
pursuant to the standard set forth in Ky. Rev. Stat. § 504.060(4), and (2) whether he met the
definition of “insanity” set forth in Ky. Rev. Stat. § 504.060(5).
        Hills was examined at the KCPC by Dr. Robert B. Sivley, Jr., who authored a seven-page
psychological evaluation in May of 2003. The report concluded that Hills suffered from the
delusion that God revealed to him in a dream that the burglary victim was his soulmate and that her
child was his biological son, but that further inpatient assessment was necessary “to confirm the
degree to which he suffers from a circumscribed delusion relating to the alleged victim and her son
or has any other psychotic-type symptoms.” Dr. Sivley reiterated this conclusion at the end of his
report: “[I]t will be necessary to observe him on a more intensive and longer-term basis, in order to
assess whether he has other psychotic symptoms which would be relevant to the criminal
responsibility issue.” As for the question of his competency to stand trial, Dr. Sivley determined
that Hills had “a good understanding of basic legal procedures, terminology, and his own situation,”
but noted in passing that Hills’s delusions “may impede his ability to participate rationally in his
own defense, especially if he is unwilling to accept empirical evidence that the child in question is
not his son (e.g., paternity testing) and chooses instead to believe his view of God’s revealing that
the child is actually his.”
         Presumably based on Dr. Sivley’s recommendation, the state trial court issued a second order
on June 10, 2003. This order stated that the case had “c[ome] on for hearing” (this is the only
indication in the record that a hearing actually took place) and that “there is reason to believe that
[Hills] is not mentally capable of understanding the charges against him or aiding his counsel in the
trial of said case, but there is a substantial probability that the defendant will attain competency in
the foreseeable future.” Invoking Ky. Rev. Stat. § 504.110 (a provision dealing with commitment
for treatment of defendants incompetent to stand trial but with a substantial probability of becoming
competent), and Ky. Rev. Stat. § 504.070 (the code section providing for the mental examination
of defendants wishing to introduce evidence of their insanity at the time of the offense), the order
went on to state:
       IT IS HEREBY ORDERED pursuant to KRS 504.110 that Anthony Lee Hills be
       taken to Kentucky Correctional Psychiatric Center (KCPC) for treatment and
       examination, including forced medication and any restraint which may be necessary
       to effect such treatment, and to determine whether the patient meets criteria for
       criminal responsibility (504.070).
        Ten days later Hills was sent back to the KCPC for further examination and treatment. He
remained a patient at the KCPC from late June through late September of 2003. Throughout this
period, Hills was interviewed and evaluated by several individuals, including Dr. Timothy Allen (a
No. 05-6298           Hills v. Commonwealth of Kentucky et al.                                 Page 3


KCPC psychiatrist) and Steven Simon, Ph.D. (a KCPC psychologist), both of whom were originally
defendants in this action, but who have previously been dismissed.
        The administration of forced medication that forms the basis of this suit occurred in August
and September of 2003. By August 13, 2003, Hills had been at the KCPC for approximately seven
weeks. The staff had concluded that Hills could benefit from a regimen of antipsychotic medication,
but Hills persistently refused the recommended treatment. Such continuous refusals finally
prompted Dr. Simon to have a telephone conversation with Rebecca Gibson, the court-appointed
public defender assigned to represent Hills. The following day, August 14, 2003, Dr. Simon sent
a two-page letter to Gibson reflecting the substance of their conversation. In the letter, Dr. Simon
stated that the KCPC staff had concluded that the administration of antipsychotic medication could
benefit Hills, but several weeks would be needed for the medication to take effect. Gibson,
according to the letter, “related that [she] agreed with this and would relay this on to the court.”

        The next day, Hills’s treating psychiatrist, Dr. Siddiqui, prescribed a course of 5 mg of
Zyprexa, an antipsychotic drug, to be administered at bedtime. Over a two-week period, no
therapeutic benefit was achieved from the drug, but Hills became increasingly angry. The dosage
was then increased to 10 mg, but this increase did not produce a corresponding change in behavior.
Finally the trial of Zyprexa was discontinued on September 10, 2003. Hills was transferred back
to the county jail two weeks later. According to Hills, the burglary charge against him was
eventually dismissed. He stated that “after eight months in jail on a case with no witness or no
evidence I was released.”
B.     Procedural background
        Hills filed a pro se complaint, handwriting relevant information on a form typically used by
pro se prisoners bringing civil rights complaints. Attached to this form was a three-page typed letter
in which Hills described his experiences while incarcerated and undergoing evaluation and treatment
at KCPC. Demanding $3,000,000 in damages, he alleged violations of his First Amendment right
to the free exercise of religion, his Sixth Amendment right to a speedy trial, and his Fourteenth
Amendment right to the due process of law. Several defendants were named in the complaint,
including the county jail, the sheriff’s department, Hills’s public defender, the KCPC, and Drs.
Allen, Siddiqui, and Simon.
         The defendants filed answers that included several affirmative defenses to Hills’s complaint.
Citing 28 U.S.C. § 1915(e) and McGore v. Wrigglesworth, 114 F.3d 601, 603 (6th Cir. 1997), the
district court screened the complaint and dismissed all of the claims except those alleging Fourteenth
Amendment violations against Drs. Allen, Siddiqui, and Simon in their individual capacities on the
basis of the forced medication of Hills. The three doctors then filed a motion for summary
judgment, to which Hills did not respond.
        Dr. Siddiqui was the psychiatrist who actually prescribed the course of Zyprexa and
increased its dosage. The district court concluded that Dr. Siddiqui was not entitled to qualified
immunity because, despite the existence of the June 10, 2003 court order and the consent of Hills’s
attorney on August 13, 2003, it was “unreasonable to believe that his actions were lawful.” Two
reasons were given in support of this conclusion: (1) according to the court, the KCPC did not rely
on the June 10 court order, allegedly evidenced by the fact that Dr. Simon felt it necessary to contact
Gibson to ask whether Hills could be medicated against his will, and (2) Dr. Siddiqui could not have
believed that his actions were lawful in light of the existence of a Kentucky statute setting forth
detailed procedures that must be followed before forcibly medicating a patient.
No. 05-6298           Hills v. Commonwealth of Kentucky et al.                                   Page 4


        On the other hand, the district court dismissed Drs. Allen and Simon from the action, to
which Hills did not file a cross-appeal. Dr. Siddiqui then filed an interlocutory appeal from the
denial of qualified immunity. Hills, still proceeding pro se, filed a brief in response, which consisted
of a four-page letter.
                                           II. ANALYSIS
A.      First Amendment claim
        In Hills’s letter brief, he argues that the district court improperly dismissed his First
Amendment claim. The claim was based on the allegation that he was forcibly medicated because
of his religious convictions rather than for any violent tendencies or other reason. After Hills filed
his complaint, this claim was screened and dismissed by the district court as having no factual
support. The district court did not certify the matter for interlocutory appeal, and Hills failed to seek
permission from this court to hear the matter on an interlocutory basis. For that reason, we decline
to review the claim at this stage of the proceedings. See 28 U.S.C. § 1292(b) (setting forth the
procedure for interlocutory appeals).
B.      Fourteenth Amendment claim
        1.      The law of qualified immunity
         In determining whether a government employee is shielded from civil liability due to
qualified immunity, this court typically employs a two-step analysis: “(1) whether, considering the
allegations in a light most favorable to the party injured, a constitutional right has been violated, and
(2) whether that right was clearly established.” Estate of Carter v. City of Detroit, 408 F.3d 305,
310-11 (6th Cir. 2005) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). In addition to the two
steps listed above, this court occasionally considers a third step in the qualified immunity analysis.
See id. at 310 n.2 (“Panels of this court occasionally employ a three-step qualified immunity
analysis, as opposed to the two-step analysis set forth here. . . . [B]oth the two-step approach and
the three-step approach can be said to capture the holding of [Saucier].”) (citations omitted). When
utilized, this third step requires inquiry into “whether the plaintiff offered sufficient evidence to
indicate that what the official allegedly did was objectively unreasonable in light of the clearly
established constitutional rights.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir.
2004) (citation and quotation marks omitted).
        The Supreme Court since Saucier has continued to analyze qualified immunity using the
two-step approach, but this court has noted that “the three-step approach may in some cases increase
the clarity of the proper analysis.” See Estate of Carter, 408 F.3d at 310 n.2. If, on the other hand,
the case at issue “is one of the many cases where, if the right is clearly established, the conduct at
issue would also be objectively unreasonable,” then this court has “collapse[d] the second and third
prongs” in an effort to “avoid duplicative analysis.” Caudill v. Hollan, 431 F.3d 900, 911 n.10 (6th
Cir. 2005).
        Throughout the analysis, the burden is on Hills to show that Dr. Siddiqui is not entitled to
qualified immunity. See Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006) (“Once the
qualified immunity defense is raised, the burden is on the plaintiff to demonstrate that the officials
are not entitled to qualified immunity.”).
        2.      Jurisdiction to hear this interlocutory appeal from the denial of qualified
                immunity
      Although a district court’s denial of qualified immunity on purely legal grounds is
immediately appealable, “[a] denial of qualified immunity that turns on evidentiary issues is not.”
No. 05-6298           Hills v. Commonwealth of Kentucky et al.                                   Page 5


Turner v. Scott, 119 F.3d 425, 427 (6th Cir. 1997). “[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.” Johnson
v. Jones, 515 U.S. 304, 319-20 (1995). This is because interlocutory appeals are limited to questions
that present “neat abstract issues of law.” Turner, 119 F.3d at 428 (citations and quotation marks
omitted).
        The district court’s denial of qualified immunity in this case was based on the conclusion that
“[u]nder the clearly established Kentucky law setting forth Mr. Hills’s due process rights governing
administration of medication by force, it is unreasonable for Dr. Siddiqui to believe that his actions
were lawful.” There is no dispute about the underlying facts, but rather a question of whether, in
light of those undisputed facts, Hills has demonstrated that Dr. Siddiqui violated a clearly
established constitutional right possessed by Hills. This is a “neat abstract issue of law” that can
properly be resolved on interlocutory appeal. See Sample v. Bailey, 409 F.3d 689, 695 (holding that
the issue of “whether the facts as alleged by [the plaintiff] demonstrate a violation of a clearly
established constitutional right” presents a “neat abstract issue of law”) (citations and quotation
marks omitted). We therefore have jurisdiction to decide the merits of Dr. Siddiqui’s appeal.
        3.      Whether the district court erred in denying Dr. Siddiqui qualified immunity
        Dr. Siddiqui makes no attempt in his brief to demonstrate how the district court erred in
concluding that Hills was deprived of his constitutional right to due process, and instead focuses on
the reasonableness of Dr. Siddiqui’s actions in light of the June 10, 2003 court order and Dr.
Simon’s subsequent contact with Ms. Gibson. Although the burden is on Hills to prove that Dr.
Siddiqui is not entitled to qualified immunity, Silberstein, 440 F.3d at 311, Dr. Siddiqui, as the
appellant in this action, has waived any issues not contained in his opening brief. See Thaddeus-X
v. Blatter, 175 F.3d 378, 403 n.18 (6th Cir.1999) (en banc) (holding that issues not presented in an
opening brief are waived). Because Dr. Siddiqui is not challenging the district court’s determination
that Hills’s constitutional rights were violated, we will accept the conclusion of the district court and
proceed to the second step of the qualified immunity analysis.
        The second step is to ask whether the constitutional right that was violated was “clearly
established.” Estate of Carter, 408 F.3d at 310-11 (citing Saucier, 533 U.S. at 201). Saucier held
that “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier, 533 U.S. at 202; Malley v. Briggs, 475 U.S. 335, 341 (1986) (“As the
qualified immunity defense has evolved, it provides ample protection to all but the plainly
incompetent or those who knowingly violate the law.”).
        In this case, prior to Dr. Siddiqui’s prescribing medication to be forcibly administered to
Hills, two critical events took place. The first was the entry of the June 10, 2003 court order that
authorized the transfer of Hills to the KCPC “for treatment and examination, including forced
medication and any restraint which may be necessary to effect such treatment.” Then, after seven
weeks of treatment, the KCPC mental-health professionals concluded that Hills could benefit from
a regimen of antipsychotic medication. This determination prompted Dr. Simon to contact
Ms. Gibson about the prospect of forcibly medicating Hills. Gibson agreed to the administration
of antipsychotic medication, and she said that she would relay this information on to the court.
        In light of the existence of a court order allowing the forced medication of Hills, a reasonable
governmental employee in Dr. Siddiqui’s position would not have clearly known that his conduct
was unlawful. The Kentucky statutory scheme requires that certain procedures be followed in order
to forcibly medicate patients, but the result of those procedures is a court order. Ky. Rev. Stat.
§ 202A.196(4). There is no transcript in the record of the hearing culminating in the June 10, 2003
No. 05-6298           Hills v. Commonwealth of Kentucky et al.                                 Page 6


court order, so there is no way to know whether the state trial court made a set of findings that would
comport with the Kentucky statute, or even the minimum requirements of the Due Process Clause.
But even if we assume for the sake of argument that there was no such set of findings, Dr. Siddiqui
would still be entitled to qualified immunity because neither our precedents nor the state statutes
themselves require that the psychiatrist prescribing the medication to be forcibly administered must
personally verify that the prerequisite procedures have been followed prior to the entry of the court
order.
        In ruling to the contrary, the district court concluded that the KCPC mental-health
professionals did not rely on the court order, citing the fact that Dr. Simon found it necessary to
contact Ms. Gibson on August 13, 2003 “to ask whether Mr. Hills could be medicated against his
will.” Dr. Simon’s letter to Gibson, however, does not reflect that he asked her permission to
forcibly medicate Hills, but only that she had no objection to the proposed course of action. The
extra care that the KCPC mental-health professionals took by contacting Hills’s counsel before
forcibly medicating him should not vitiate Dr. Siddiqui’s claim to qualified immunity. Rather, the
fact that Gibson expressed her agreement with the forced administration of antipsychotic medication
makes Dr. Siddiqui’s conduct all the more reasonable.
        In light of the foregoing, we conclude that Dr. Siddiqui did not violate a constitutional right
of Hills’s that was clearly established. The June 10, 2003 court order and contact with Ms. Gibson
would lead a reasonable person in Dr. Siddiqui’s position to conclude that his conduct was lawful.
As such, the district court erred in denying him qualified immunity.
                                        III. CONCLUSION
    For all of the reasons set forth above, we REVERSE the judgment of the district court and
REMAND the case for further proceedings consistent with this opinion.
