                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-2251
                        ___________________________

                                    Timothy Green

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

Dave Dormire; Arthur Wood; Bill Galloway; Dr. Robert E. Holland; Kay Redding,
  Dept. of Mental Health; Department of Mental Health of the State of Missouri;
 Greg Boyt, Dept. of Mental Health; Sally Taylor, Dept. of Mental Health; Allen
   Heald, Dept. of Mental Health; Jim Bennett, Dept. of Mental Health; Mariann
Atwell; Missouri Department of Corrections; Jerry Doty; Ellis McSwain; William
   Eikermann; Mark W. Schmitz; Dr. Felix Vincenz; Joe Mangini; Bruce Harry;
Stephanie Scott; Kay Smith; Jeanne Henry; Debra Lewis; David Stephens; A. E. Daniels

                      lllllllllllllllllllll Defendants - Appellees

        Ed Cullumber; Dr. Gulley; Dr. Loehr; Dr. Rawlani; Shelley Moore

                             lllllllllllllllllllll Defendants
                                     ____________

                     Appeal from United States District Court
               for the Western District of Missouri - Jefferson City
                                 ____________

                              Submitted: June 15, 2012
                              Filed: September 4, 2012
                                   ____________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
                          ____________
BENTON, Circuit Judge.

       Timothy Green, an inmate of the Missouri Department of Corrections, was
transferred from the Jefferson City Correctional Center (JCCC) to the Biggs
Correctional Treatment Unit at the Fulton State Hospital (Biggs). There, he was
involuntarily medicated. Green sued under 42 U.S.C. § 1983, alleging that his
transfer, detention, and involuntary medication violated his Due Process rights. The
district court1 granted summary judgment to the defendant prison officials and
doctors. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

        In September 2003, Green was placed in the administrative segregation unit at
JCCC for two weeks. Released from administrative segregation, he began to exhibit
delusional behaviors based on his belief that a device had been planted in his
television, allowing celebrities to watch and communicate with him and to wear
fashions he designed without his permission. This belief led him to write multiple
letters to various celebrities. Dr. Robert E. Holland diagnosed Green with Delusional
Disorder and prescribed medication to treat it. Green refused to take the medication
because he did not believe he had delusions.

       Due to his refusal to take medication, Green was moved from JCCC to Biggs,
which is jointly operated by the Missouri Department of Corrections and the Missouri
Department of Mental Health. Defendant Dave Dormire, the chief administrative
officer of JCCC, did not certify, before the transfer, that Green needed treatment.

       Green was at Biggs for 33 days. He saw a number of mental health
professionals who evaluated him and created treatment plans. One week after his
arrival at Biggs, the mental health staff, at a treatment hearing that Green attended,


      1
      The Honorable Nanette K. Laughrey, United States District Court for the
Western District of Missouri.

                                         -2-
outlined his treatment goals and objectives. At that meeting, a consulting
psychologist recommended that Green take antipsychotic medication.2 Green refused.

      Two days later, another hearing convened to determine whether Green should
be involuntarily medicated. Attending were a consulting psychiatrist, a psychologist,
a physician, a social worker, a regional manager of Mental Health Services, an
associate superintendent, and Green’s two lay advocates. Green spoke during the
hearing. Other attendees asked him questions and expressed their opinions about his
mental health.

      At the conclusion of the hearing, a committee composed of the consulting
psychiatrist, the associate superintendent, and the regional manager of Mental Health
Services determined that Green was gravely disabled and not able to function in
prison or in the general population without control of his Delusional Disorder through
medication. Thus, the committee determined that Green required involuntary
medication.

      Green appealed. The Chief of Mental Health Services, after reviewing the
hearing record and Green’s progress notes, found it clinically necessary to administer
involuntary medication. Green was forcibly medicated for seven months.

       Green sued, arguing that his federal Due Process rights were violated when he
was (1) moved from JCCC to Biggs without certification by the warden and retained
for more than 96 hours without judicial certification (in alleged violation of a state
statute), and (2) was forcibly medicated. Green renews these arguments on appeal.




      2
        Antipsychotic drugs, also known as “neuroleptics” or “psychotropic drugs,”
are commonly used to treat mental disorders, but can have “serious, even fatal, side
effects.” Washington v. Harper, 494 U.S. 210, 229 (1990).

                                         -3-
      This court reviews de novo the district court’s grant of summary judgment,
viewing all evidence and drawing all reasonable inferences in favor of the non-
moving party. Crawford v. Van Buren County, Ark., 678 F.3d 666, 669 (8th Cir.
2012). Summary judgment is proper if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

                                           I.

    The district court ruled that Green’s transfer did not violate section 552.050.1
RSMo,3 which provides:

      If the chief administrative officer of any correctional facility has
      reasonable cause to believe that any offender needs care in a mental
      hospital, he shall so certify to the division of classification and
      treatment, which shall then transfer the offender to a state mental
      hospital for custody, care and treatment. The hospital may detain and
      treat the offender for a period of time not to exceed ninety-six hours.

After the 96-hour period ends, “the offender shall be returned to a correctional facility
designated by the department of corrections unless the individual admits himself as
a voluntary patient or the mental health coordinator or head of the facility files for
involuntary detention and treatment . . . .” § 552.050.1 RSMo. Any continued
involuntary detention must comply with section 632.330 RSMo, which grants specific
rights to the detainee. The district court found that Green was not transferred to a
state mental hospital because he “remained in a correctional facility at all times,” and
thus that the Missouri statutes “never came into play.” At issue, however, is not
whether the statutes were violated but rather whether the minimum requirements of
Due Process are satisfied.



      3
          RSMo refers to the Missouri Revised Statutes, 2000, as amended.

                                          -4-
       Green argues that his relocation to and detention at Biggs violated a State-
created liberty interest. “[S]tate statutes may create liberty interests that are entitled
to the procedural protections of the Due Process Clause of the Fourteenth
Amendment.” Vitek v. Jones, 445 U.S. 480, 488 (1980) (“[O]nce a State grants a
prisoner [a] conditional liberty properly dependent on the observance of special . . .
restrictions, due process protections attach.”). When a liberty interest is present, the
minimum requirements of Due Process are established by federal law, not by state
statute. Id. at 491.

       Temporary transfers to mental-health facilities for evaluation do not give rise
to the liberty interest protected in Vitek. United States v. Jones, 811 F.2d 444, 448
(8th Cir. 1987); Gay v. Turner, 994 F.2d 425, 427 (8th Cir. 1993) (per curiam);
Trapnell v. Ralston, 819 F.2d 182, 184-85 (8th Cir. 1987). Vitek addressed a statute
authorizing the “indefinite commitment” of an inmate to a mental-health facility.
Jones, 811 F.2d at 448. “Thus, the court’s reliance on the stigma attached to a
commitment and the behavioral modification procedures utilized at the facility, on
which the court substantially relied in finding a protected liberty interest, has no
application to [a case concerning a temporary transfer for evaluation].” Id. Other
circuits follow this court’s precedent. See, e.g., Fortune v. Bitner, 285 F. Appx. 947,
950 (3d Cir. 2008) (per curiam) (unpublished); Fant v. Fed. Bureau of Prisons, No.
93-5059, 1993 WL 318888, at *1 (D.C. Cir. 1993) (per curiam) (order).

       Green argues that he was transferred for treatment and not evaluation. Green’s
behavior required some sort of segregation, and prison officials transferred him to
Biggs. A temporary transfer to a mental-health facility for evaluation does not burden
an inmate any more than a prison transfer for administrative purposes. See Jones,
811 F.2d at 448 (discussing the great leeway given to prison officials to transfer
inmates – even into more restrictive conditions – without implicating a liberty
interest). After being evaluated, Green received sufficient process (including a
treatment hearing) within seven days of arriving, and before any involuntary



                                           -5-
medication. The district court properly granted the defendants’ motion for summary
judgment as to Green’s transfer.

                                         II.

      Green claims that his involuntary medication violated his substantive Due
Process rights. Prisoners possess “a significant liberty interest in avoiding the
unwanted administration of antipsychotic drugs under the Due Process Clause of the
Fourteenth Amendment.” Washington v. Harper, 494 U.S. 210, 222 (1990).

                                         A.

        Green argues that, as a general proposition, the Due Process Clause requires
that he be found dangerous before he may be involuntarily medicated. The committee
assembled for the Due Process hearing concluded that Green was “gravely disabled
to the extent he would not be able to function in prison or in the population upon
release without control of his delusional disorder.” Citing United States v.
McAllister, 969 F. Supp. 1200, 1207-08 (D. Minn. 1997), Green argues that “[i]f the
‘gravely disabled’ language in the [Policy] were not read to require a showing of
dangerousness within the institution, the [Policy] would be unconstitutional under the
Due Process Clause.” True, Harper’s specific holding is that Due Process allows an
inmate to be treated “if [he] is dangerous to himself or others” and (2) when “the
treatment is in the inmate’s medical interest.” Harper, 494 U.S. at 227. The Harper
opinion does not make these criteria the only basis for involuntary medication. See
id. at 227 (holding that the “Due Process Clause permits the State to treat a prison
inmate . . . with antipsychotic drugs against his will” under certain circumstances,
while not limiting treatment to those circumstances). The Supreme Court has
explained that an “overriding justification and a determination of medical
appropriateness” may justify the forced administration of “antipsychotic drugs on a
convicted prisoner.” Riggins v. Nevada, 504 U.S. 127, 135 (1992) (involuntary

                                         -6-
medication during trial is permissible where “medically appropriate and, considering
less intrusive alternatives, essential for the sake of [a defendant’s] own safety or the
safety of others” (emphasis added)).

       In Harper, the Supreme Court also held that Washington’s policy for the
involuntary medication of inmates comported with the requirements of Due Process.
Harper, 494 U.S. at 227. That policy allowed an inmate to be subjected to
involuntary medication “if he (1) suffers from a ‘mental disorder’ and (2) is ‘gravely
disabled’ or poses a ‘likelihood of serious harm’ to himself, others, or their property.”
Id. at 215 (emphasis added). The disjunctive demonstrates that “gravely disabled”
does not include dangerousness. Washington’s definition confirms this; someone
who is “gravely disabled” may “manifest[ ] severe deterioration in routine functioning
evidenced by repeated and escalating loss of cognitive or volitional control over his
or her actions and is not receiving such care as is essential for his or her health or
safety.” Id. at 215 n.3.

       Like Washington’s policy, Missouri’s Policy allows involuntary medication
when an inmate’s “mental illness interferes with [his] functioning in the institution,
yet no immediate danger exists. This includes those who are gravely disabled or pose
a future likelihood of harm to self or others if treatment is not instituted.” (Emphasis
added). Under Missouri’s Policy, the gravely disabled include those who, like Green,
are “the psychotic offender who evidences delusions, hallucinations or other thought
disturbances” and those who suffer from “severely diminished institutional
adjustment.” Green need only be found gravely disabled before he may be
involuntarily medicated.4


      4
       While dangerousness is not required to comply with Harper, Green’s
dangerousness was the focus of the committee’s discussion when it made its
determination. Although committee members believed Green was not an imminent
danger, they felt that his “delusional system will feed to that at a later time,” that he
“could become a stalker,” and that he was beginning to project his sense of loss of

                                          -7-
                                          B.

       Green contends that his liberty interest in avoiding involuntary medication was
expanded by Missouri Department of Corrections Policy IS12-6.1, and that this
substantive right was violated. Green claims that Policy IS12-6.1 allows the
involuntary administration of antipsychotic medication only when, based upon the
opinion of a psychiatrist or a physician in conjunction with another mental health
profession, (1) an inmate’s symptoms “are determined to be a clinical emergency,”
and (2) alternative methods are not sufficient or suitable. As defined by Policy IS12-
6.1, a “clinical emergency” is limited to “cases where an offender is demonstrating
symptoms of acute mental disorder resulting in the offender being considered
imminently dangerous to self or others.” Green argues that, because neither the
committee assembled for his Due Process hearing nor the chief of mental health
services found that a clinical emergency existed, his treatment violates Policy IS12-
6.1.

       To the contrary, the Policy does not limit involuntary medication to a “clinical
emergency.” The Policy also allows involuntary medication in cases of “clinical
necessity.” A “clinical necessity” occurs when “mental illness interferes with [an
inmate’s] functioning in the institution, yet no immediate danger exists. This includes
those who are gravely disabled or pose a future likelihood of harm to self or others
if treatment is not instituted” and includes inmates who evidence “delusions,
hallucinations or other thought disturbances.” “Clinical necessity” was the basis for
Green’s involuntary medication.

       Green interprets the Policy’s language to require a “clinical emergency” before
a “clinical necessity” allows forced medication. He relies on the structure of the

control on others, a sign that a loss of control “is likely to happen at some time.” See
Harper, 494 U.S. at 232 (a court should not second-guess the findings of trained
medical professionals).

                                          -8-
Policy, which outlines the two standards, places clinical emergency before clinical
necessity, and states: “When the continued involuntary administration of
[antipsychotic] medication is a clinical necessity, a clinical due process hearing
should occur.” According to Green, the word “continued” implies an uninterrupted
administration of medication from a previous emergency.

      Green’s interpretation is incorrect. The Policy sets forth two independent
avenues for involuntary medication. A clinical emergency occurs when an inmate
poses an imminent threat to himself or others, and immediate action is required. The
Policy allows prison officials immediately to medicate the inmate, without a due
process hearing (based on the opinion of a psychiatrist or a physician in conjunction
with another mental health professional). See Hogan v. Carter, 85 F.3d 1113, 1117-
18 (4th Cir. 1996) (en banc) (holding that Harper allows prison officials to dispense
with minimum Due Process requirements during emergencies in order to involuntarily
administer antipsychotic drugs). According to Missouri’s Policy, once the
“emergency has abated, [if] the psychiatrist or physician believes that involuntary
medication is still warranted, a clinical due process hearing should be arranged.”

       The Policy has an alternative avenue for involuntary medication: clinical
necessity. The Due Process Clause does not require that an inmate’s mental state
become an emergency before involuntary treatment may be imposed. See Riggins,
504 U.S. at 135 (holding that inmates may be involuntarily medicated when there is
an overriding justification). The “clinical necessity” applies to non-emergency
situations. These two standards reflect the Government’s legitimate interest “in
treating [Green] where medically appropriate for the purpose of reducing the danger
he poses,” Harper, 494 U.S. at 226, and the idea that “[t]he extent of a prisoner’s
right under the [Due Process] Clause to avoid the unwanted administration of
antipsychotic drugs must be defined in the context of the inmate’s confinement,” id.



                                         -9-
at 222. Green’s involuntary medication for a clinical necessity did not violate Policy
IS12-6.1, or his Fourteenth Amendment Due Process rights.

                                           III.

      Green’s right to avoid involuntary medication is protected by minimum
procedural Due Process requirements. See Harper, 494 U.S. at 228. In Washington
v. Harper, the Supreme Court held that the procedural protections in Washington’s
policy for the involuntary administration of antipsychotic drugs met the requirements
of Due Process. Id. at 228. That policy included: (1) a hearing ; (2) a neutral and
detached trier of fact; (3) notice; (4) the inmate’s right to be present at the adversarial
hearing; (5) the inmate’s right to cross-examine witnesses; and, (6) the right to
appeal. Id. at 228, 231, 235.

      Green’s procedural rights were not violated. The Department of Corrections’
policy for the involuntary administration of antipsychotic drugs, Policy IS12-6.1
closely follows Washington’s policy approved in Harper. Before his forced
treatment, Green was given notice of his Due Process hearing, was present at it, and
was permitted to cross-examine witnesses. A neutral decisionmaker made the
decision, which Green appealed.

                                           IV.

       In view of the discussion above, this court need not address Green’s arguments
that the district court should have appointed counsel for him, or that qualified
immunity does not apply in this case.

                                   **************



                                           -10-
The judgment of the district court is affirmed.
                    _______________________




                               -11-
