                                   _____________

                                   No. 95-1531EM
                                   _____________


Wayne Kennedy and                       *
Alice Kennedy,                          *
                                        *
            Appellants,                 *
                                        *
     v.                                 *
                                        *   On Appeal from the United
                                        *   States District Court
C. Keith Schafer; John                  *   for the Eastern District
Twiehaus; Robert O. Muether;            *   of Missouri.
Jacqueline Howard; Kelly Shaw;          *
and Peggy J. Dunlap,                    *
                                        *
                                        *
            Appellees.                  *

                                   ___________

                    Submitted:      September 14, 1995

                          Filed:   December 4, 1995
                                   ___________

Before RICHARD S. ARNOLD, Chief Judge, HEANEY and HANSEN, Circuit Judges.
                               ___________

RICHARD S. ARNOLD, Chief Judge.


     Wayne and Alice Kennedy brought this suit under 42 U.S.C. § 1983
against officials of the Missouri Department of Mental Health and Hawthorn
Children's Psychiatric Hospital, a state facility.          They allege that
defendants deprived their 15-year-old daughter, Kathleen, of her due-
process right to a safe and humane environment while she was a patient at
Hawthorn.   That deprivation, they assert, led to Kathleen's suicide.    The
District Court granted the defendant's motion for summary judgment, holding
that, because
Kathleen   was   voluntarily   admitted   to   Hawthorn,   she   had   no   "liberty
interest" in a safe and humane environment, thus precluding liability under
Section 1983.     We reverse that order because there is a genuine issue of
fact concerning whether Kathleen, at the time of her death, was a voluntary
patient.


                                      I.


     At this preliminary stage of the case, we accept the Kennedys'
version of the facts.       In October of 1991, Kathleen was admitted to
Hawthorn as a voluntary inpatient at her parents' request.             Immediately
before Kathleen's admission to Hawthorn, she had been a psychiatric
inpatient in a private hospital.    Her parents' insurance coverage had been
exhausted, necessitating the move.    The Kennedys had been advised that, if
they did not voluntarily admit Kathleen to a mental-health facility,
Kathleen would be involuntarily committed.      The only affordable option open
to them was a state-run facility where they would be charged in accordance
with their ability to pay.      Thus, Kathleen was admitted into Hawthorn, a
state facility.


     Kathleen remained an inpatient at Hawthorn for several months.               On
March 30, 1992, due to her mental condition and her expressed desire to
commit suicide, she was placed on the precaution "1:1 Constant Staff
Supervision."    Patients under this precaution must be within the eyesight
of, and no more than three feet away from, staff members at all times.            On
April 3, 1992, Kathleen was placed on "Protective Suicide Precautions."
This precaution is for patients who are at a "moderate to low risk" for
suicide, and requires nursing staff members to keep the patient "in
constant eye-sight."      Additionally, the nursing staff must directly
interact with these patients every 15 to 20 minutes so that changes in
their mental status or behavior may be detected.


     Kathleen remained under Protective Suicide Precautions on the




                                      -2-
evening of April 8, 1992.    That day, the staff in Cottage D, where Kathleen
was residing, told Hawthorn's nursing supervisor, defendant Peggy Dunlap,
that the number of nurses assigned to work the evening shift was inadequate
to meet the patients' needs.      Dunlap failed to find additional help, and,
in fact, declined an offer by the day-shift supervisor to help locate
additional nursing assistance.     Compounding the problems, the charge nurse
in Cottage D who was responsible for assigning a staff member to care for
Kathleen failed to do so.    This charge nurse was, at the time, on extended
probation because of her past deficiencies in assigning work duties to the
nursing staff.


     The evening shift began duty at 2:30 p.m. on April 8.           Kathleen was
not in the "constant eye-sight" of any nursing staff member.               No one
interacted with her every 15 to 20 minutes.        When someone finally checked
on her at 5:10 p.m., she was dead, hanging from a bed sheet in her room.


     The Kennedys allege that these staffing problems were nothing new for
Hawthorn.    They assert that employees had complained about the chronic
understaffing on several occasions.         Moreover, they claim that Hawthorn
officials falsified records, causing the staffing needs of the hospital to
appear to be less than they actually were.         These actions, they contend,
establish a pattern of deliberate indifference to the health and safety of
Hawthorn's patients.    This deliberate indifference, in turn, deprived their
daughter of her constitutionally protected liberty interest in a safe and
humane environment.


     The District Court held that the defendants were entitled to summary
judgment    on   two   grounds.    First,    it   held   that   Kathleen   had   no
constitutionally protected liberty interest because she voluntarily entered
Hawthorn.   Second, even if Kathleen did have a protected liberty interest,
that right was not clearly established at the time of her death, thus
entitling the defendants to




                                       -3-
qualified immunity.


                                          II.


      The Due Process Clause of the Fourteenth Amendment ensures that "[n]o
State shall . . . deprive any person of life, liberty, or property, without
due process of law."      The Supreme Court has held that the "deprivation of
liberty" which triggers "the protections of the Due Process Clause" is "the
State's affirmative act of restraining the individual's freedom to act on
his own behalf -- through incarceration, institutionalization, or other
similar restraint of personal liberty."          DeShaney v. Winnebago Cty. Dept.
Soc. Servs., 489 U.S. 189, 200 (1989).          This Court has interpreted DeShaney
as "impos[ing] a duty on state actors to protect or care for citizens" when
one of two circumstances exists.        Gregory v. City of Rogers, 974 F.2d 1006,
1010 (8th Cir. 1992) (en banc), cert. denied, 113 S. Ct. 1265 (1993).              The
first exists when the state limits an individual's ability to care for
himself in a "custodial [or] other setting[ ]."            Ibid.   The second exists
when the state exposes one to danger that he would not have faced
otherwise.


      The District Court's order and the majority of the parties' arguments
in this Court have focused on whether a voluntary patient in a state mental
hospital could ever have his "ability to care for himself" so limited as
to create a liberty interest in a safe and humane environment.                     The
Kennedys argue that the manner in which a patient enters a hospital is not
the dispositive question.       Rather, they encourage us to look to the amount
of   control    the   state   actors,   here    hospital   employees,   exerted   over
Kathleen's life.        Cf. Walton v. Alexander, 44 F.3d 1297, 1306 (5th Cir.
1995) (en banc) (Parker, J., concurring specially).           If we do so, they say,
it   will   become apparent that no distinction should be made between
voluntary      mental    patients   and    involuntary      mental   patients,    who
unquestionably do have a protected liberty interest in a safe and




                                          -4-
humane environment.    See Youngberg v. Romeo, 457 U.S. 307 (1982).


     The argument may have merit.    In fact, this Court accepted it before
DeShaney.      See Goodman v. Parwatikar, 570 F.2d 801 (8th Cir. 1978).
Nevertheless, other circuits, after DeShaney, have refused to grant due-
process protection to those who voluntarily entered the State's custody.
See Walton, supra; Monahan v. Dorchester Counseling Center, 961 F.2d 987
(1st Cir. 1992); Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d
459 (3rd Cir. 1991).    Armed with these cases, the defendants argue that
Parwatikar has been overturned by DeShaney.   We, of course, are not bound
by these cases, and the case before us could, conceivably, be distinguished
given Kathleen's youth and mental state.   We need not address this issue,
however, because the question was sufficiently doubtful, viewed from the
perspective of a reasonable state official at the time of Kathleen's death,
to make it impossible for us to say that the law was clearly established
at that time in favor of the existence of a due-process right on the part
of a voluntarily admitted patient.      In other words, we agree with the
District Court that defendants are entitled to the defense of qualified
immunity if Kathleen is properly classified as a voluntary patient.      We
need not and do not decide whether Parwatikar's holding in favor of
voluntary patients' due-process rights remains good law.   We do decide that
an action for damages brought by a voluntary patient is subject to a
qualified-immunity defense.


     This holding is not the end of the case, however.     Voluntary mental
patients in Missouri may be released upon request, or, if they are minors,
upon the request of their parents.    Mo. Rev. Stat. § 632.155(1).    But if
the head of the facility where a minor is a patient "determines that the
minor is mentally disordered and, as a result, presents a likelihood of
serious physical harm to himself or others, the head of the facility may
refuse the release."     Mo. Rev. Stat. § 632.155(2).      Included in the
definition of "serious physical harm" is "a substantial risk that harm will
be inflicted




                                     -5-
by a person upon his own person, as evidenced by recent threats, including
verbal threats, or attempts to commit suicide or inflict physical harm on
himself."    Mo. Rev. Stat. § 632.005(9)(a).            Notably, the application for
admission signed by Kathleen's mother upon her admission to Hawthorn
repeats this statutory language nearly verbatim.


     This language indicates that once Kathleen was placed on Protective
Suicide Precautions she may have effectively become an involuntary patient.
Certainly she no longer had the absolute right to leave the hospital by
simply requesting to be released.            The defendants argue that it is mere
conjecture to try to determine what Hawthorn officials would have done if
Kathleen had requested to leave.          We doubt that they would have released
a patient who presented a risk of suicide so great that her doctors
required    the   nursing    staff   to   keep    her   constantly   in    their   sight.
Moreover, what defendants would have done if Kathleen's parents had tried
to take her out of the hospital is not the only issue at stake.                    At the
oral argument before this Court, the defendants stated that Kathleen would
almost certainly have been released under certain circumstances, to another
institution or to a home-health care arrangement, for example.                  But that
is exactly the point.        She would have been required to make some showing
before she could have been released.          She had no absolute right to leave.


     The record before us, however, is not sufficient to allow us to
conclude, as a matter of law, that Hawthorn had so restrained Kathleen's
"freedom    to    act   on   [her]    own    behalf     --   through      incarceration,
institutionalization, or other similar restraint of liberty" that the
"protections of the Due Process Clause," DeShaney, supra, 489 U.S. at 200,
were triggered.     Presumably, the record is sparse because the defendants
and the District Court believed that Kathleen's status upon admission was
dispositive.      On remand, it should be determined whether Kathleen's
condition at the time of her death presented such a "likelihood of serious
physical




                                            -6-
harm" that Hawthorn could lawfully have detained her if either she or her
parents had requested her release.         If so, the "situation" that she was in
was "sufficiently analogous to incarceration or institutionalization to
give rise to an affirmative duty to protect."                DeShaney, 489 U.S. at 201
n.9.


       As we have noted, this disposition makes it unnecessary to address
the question whether a voluntary mental patient enjoys the same due-process
protections as an involuntary patient.            It is prudent, and in keeping with
the precedents, to postpone consideration of this difficult constitutional
question until we are certain that its consideration is necessary.                            Cf.
Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945).


                                           III.


       Our   Brother     Hansen     suggests,    post   at     11,    that    our   reasoning
"create[s]       a   constitutional    right    to   involuntary       commitment        status
whenever     a    patient's   condition    is   such    that    she    could      lawfully     be
detained."       With respect, we believe that this characterization of our
holding is mistaken.       We hold only that a Missouri statute may effectively
restrain those in Kathleen's condition and under the care of the State from
acting on their own behalf to such an extent as to trigger the protections
of the Due Process Clause.              It is not Kathleen's worsening medical
condition    alone     that   may   have   converted     her    status       to   that   of    an
involuntary patient.       Rather, her worsening condition plus the duty placed
on state officials by the statute may have had this effect.


       In this connection, another statute, Mo. Rev. Stat. § 632.300, is
relevant.        Under this provision, if the defendants had become aware of
Kathleen and her condition while she was outside their care, they would
have been required to investigate and evaluate her condition.                        Mo. Rev.
Stat. § 632.300(1).        If they had determined that she posed a "likelihood
of serious physical harm" to herself




                                           -7-
and that that harm was "imminent," they would have been required to commit
her involuntarily.     Mo. Rev. Stat. § 632.300(2).         By a parity of reasoning,
a patient already in custody as the result of a voluntary commitment surely
has no absolute right to be released when her condition has worsened in the
way that Kathleen's did in this case.



      The dissenting opinion also suggests that, even if Kathleen had
become an involuntary patient, defendants would have a qualified-immunity
defense.   It is true enough that there is no case on all fours, at least
none that we have found.          But the precedent in this Circuit, in the form
of the Parwatikar case, discussed above, is clear at least that involuntary
patients have due-process rights.          No one contends that DeShaney or any
other case has impaired or cast doubt on this aspect of our holding in
Parwatikar.      We    see   no   reason   why   a   patient    originally    committed
voluntarily must retain that status permanently.             Facts change, and legal
status follows facts.        This chain of reasoning is not obscure and, we
think, would have been apparent to a reasonable state official at the time
of the events that gave rise to this case.


                                           IV.


      The judgment of the District Court is reversed.             A genuine question
of   material   fact   exists     concerning     whether    Hawthorn   had   restricted
Kathleen's ability to act on her own behalf to such an extent that she had
become, in effect, an involuntary patient.                 The cause is remanded for
further proceedings consistent with this opinion.


HANSEN, Circuit Judge, dissenting.


      I respectfully dissent.          Our court remands for further findings
concerning whether Kathleen Kennedy's change in mental




                                           -8-
condition and course of treatment may have effectively converted her status
from that of voluntary patient to involuntary patient.              If so, then the
court states that this situation is sufficiently similar to incarceration
or institutionalization to give rise to § 1983 liability for a failure to
protect.      My dissent is twofold:    First, I fail to see any disputed facts
that might indicate that Kathleen's patient status changed from voluntary
to involuntary, and second, even if there is a genuine dispute of fact on
this issue, I believe that the imposition of liability arising from such
a de facto change in status was not clearly established law at the time of
this tragedy.


        In order to give rise to a constitutional duty to protect, both
DeShaney, 489 U.S. at 199-200, and our opinion in Dorothy J. v. Little Rock
Sch. Dist., 7 F.3d 729, 732 (8th Cir. 1993), require a showing that the
state    by    some   "affirmative   exercise   of   its   power"    restrained   an
individual's liberty against her will and rendered her unable to care for
herself.       In my opinion, after DeShaney, the voluntary admission of a
mental patient does not result in the required state-imposed restraint of
liberty, against the patient's will, that is necessary to establish
liability for failure to protect.        Nor can the worsening of the patient's
mental condition and a change of treatment modality to more frequent
observations substitute for the affirmative exercise of liberty-restraining
state power.


        It is undisputed that at the time of her admission, Kathleen was a
voluntary mental patient.     She was admitted, not committed.        Her course of
treatment required that she be placed under Protective Suicide Precautions,
a medical status which mandates frequent interaction with and constant
supervision by staff members.        This medical status, which was part of her
voluntarily requested treatment, is the only possible showing of an
affirmative exercise of state power that can be found in this case.               Our
court's opinion concludes that there might be an issue of fact by




                                         -9-
speculating    that   once    Kathleen   was    placed   under   Protective   Suicide
Precautions she may have effectively become an involuntary patient because
her mental condition was such that if her parents had requested her
release, the director could (not would) have exercised his discretion to
refuse her release.          Finding no facts to support this speculation, I
respectfully disagree.


     Under Missouri law, it is possible that a voluntary minor patient's
admission status may change to that of an involuntarily detained patient
if the minor patient or her parents request her release, and the release
is denied.    By statute, the head of a facility "may refuse" the release of
a voluntarily admitted minor patient when the patient is both "mentally
disordered and, as a result, presents a likelihood of serious physical harm
to himself or others," but may do so only if an application for detention
is made to a Missouri court.      Mo. Rev. Stat. § 632.155(2).       This statutory
authority to refuse the release of a voluntarily admitted minor patient,
however, is discretionary with the head of the facility, not mandatory upon
a showing of the requisite mental condition.             In that respect I disagree
with the court's characterization of this provision as a "duty placed on
state officials."     Ante. at 7.    Until the head of a facility is presented
with the opportunity and actually exercises the authority to refuse the
release   of a voluntary minor patient, the state has not taken any
affirmative action to restrain the voluntary patient's liberty against her
will within the meaning of DeShaney.       Importantly, the record in this case
contains no assertion or evidence that Kathleen's course of treatment was
against Kathleen's will or her parents' will, or that her parents sought
to remove Kathleen and were denied release from this course of treatment.



     Instead of pointing to disputed facts that might demonstrate an
affirmative exercise of power by the state, our court's opinion suggests
that the status of a patient can change automatically from voluntary to
involuntary whenever the patient's condition is both




                                         -10-
"mentally disordered" and poses a "likelihood of serious physical harm" to
herself or to others as described in Mo. Rev. Stat. § 632.155(2), such that
the director "could lawfully have detained her if either she or her parents
had requested her release."                Ante at 7 (emphasis added).            Under this
reasoning, the mere treatment of a serious mental condition which falls
within the terms of the statute becomes a state-imposed restraint of
liberty.      If this be true, then I fear that we have effectively obliterated
the rule that a duty to protect arises only when the state affirmatively
exercises its power to restrain a person's liberty against the person's
will.    See DeShaney, 489 U.S. at 200; Dorothy J., 7 F.3d at 732.


        Furthermore, the de facto evolution from voluntary to involuntary
status based upon a worsening medical condition as suggested by our court
would actually create a constitutional right to involuntary commitment
status whenever a patient's condition is such that she could lawfully be
detained.      This cannot be.         There is no constitutional right to involuntary
commitment, regardless of an individual's mental condition.                     See Wilson v.
Formigoni, 42 F.3d 1060, 1066 (7th Cir. 1994).


        Our    court's    opinion,      ante. at     7,   asserts   that   Rev.    Mo.   Stat.
§ 632.300(2) (requiring a mental health coordinator to "request a peace
officer       to   take   or   cause    [a]   person   to   be   taken   into    custody   and
transported to a mental health facility" if the mental health coordinator
has reasonable cause to believe that the likelihood of serious physical
harm by such person to himself or others as a result of a mental disorder
is "imminent") creates a duty which, by parity of reasoning, indicates that
a patient with similar mental health problems already at the facility has
no absolute right to release.              Here again our court substitutes the mere
existence of unexercised state power for the reality of affirmative state
action.       Kathleen's parents were absolutely free to remove her from the
hospital unless and until a state actor exercised the power to




                                              -11-
detain her authorized by the Missouri statute.   In my opinion, neither the
possibility for detention under this statute nor the reasoning employed by
our court can create affirmative state action in a case where none in fact
has occurred.   Although "[f]acts change," ante. at 8, and although the
facts of a given case could indicate a change from voluntary to involuntary
status if they included an actual decision to detain made under the
statute,   I maintain that unless the facts of a case indicate that the
state has affirmatively acted to restrain a person's liberty, they are
insufficient to subject state actors to § 1983 liability.    An unexercised
discretionary power under state law to detain and evaluate a person with
apparent mental health problems is not the kind of affirmative state action
DeShaney requires as a prerequisite to § 1983 liability.


     To summarize, Kathleen was voluntarily admitted, not committed, and
there is no evidence to suggest that her status as a voluntary patient
actually changed before her tragic and untimely death.   Her parents did not
request her release, there is no indication that she was restrained against
her will or her parents' will, and there is simply no dispute of fact to
suggest any affirmative exercise of power by the state that was keeping
Kathleen restrained of her liberty at the time of her death.


     Even assuming arguendo that it is possible to demonstrate a question
of fact concerning whether Kathleen's worsening condition combined with
more frequent medical observation resulted in an affirmative state act
restraining Kathleen's liberty in a manner similar to that of involuntary
institutionalization, the qualified immunity defense remains available
because this certainly would be new law since DeShaney, and it cannot be
said to have been clearly established at the time of Kathleen's death.   My
research has revealed no cases indicating constitutional liability in this
type of situation after DeShaney and prior to the filing of this opinion.




                                   -12-
     For these reasons, I would not remand for more factual inquiry but
would affirm the district court's grant of qualified immunity.


     A true copy.


           Attest:


                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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