                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0212p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                      X
                                 Plaintiff-Appellee, -
 PATRICIA LANMAN,
                                                       -
                                                       -
                                                       -
                                                           No. 06-2263
           v.
                                                       ,
                                                        >
 ROBERT HINSON, JAMES SIEGFRIED, MIKE MOREY,           -
                                                       -
                                                       -
 LINDA SHAFFER-PRICE, GEORGE WHITE, JULIE

                                                       -
 STIVER, R.N., EDWINA KOEHN-KOLDENHOF, R.N.,

                            Defendants-Appellants. -
 JEAN PRANDINE, STEVEN BRONSINK,
                                                       -
                                                       -
                                                      N
                        Appeal from the United States District Court
                   for the Western District of Michigan at Grand Rapids.
                     No. 04-00122—Robert H. Cleland, District Judge.
                                   Argued: November 29, 2007
                                Decided and Filed: June 17, 2008
                   Before: KENNEDY, MARTIN, and CLAY, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Mark E. Donnelly, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan,
for Appellants. Heather A. Jefferson, FIEGER, FIEGER, KENNEY, JOHNSON & GIROUX,
Southfield, Michigan, for Appellee. ON BRIEF: Mark E. Donnelly, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellants. Heather A. Jefferson, FIEGER,
FIEGER, KENNEY, JOHNSON & GIROUX, Southfield, Michigan, for Appellee.
                                       _________________
                                           OPINION
                                       _________________
        BOYCE F. MARTIN, JR., Circuit Judge. On January 5, 2002, Eugene Lanman was admitted
to Kalamazoo Psychiatric Hospital. The next day, while suffering psychiatric delusions, he attacked
a staff member. Lanman was immediately restrained by staff and administered medication to calm
him down. During the attempt to restrain Lanman, he stopped breathing and never regained
consciousness. He died seventeen days later after being taken off life support. His personal
representative brought this action against the staff of the hospital, alleging violation of Lanman’s
constitutional rights in transgression of 42 U.S.C. § 1983, abuse or neglect in violation of Michigan


                                                 1
No. 06-2263                   Lanman v. Hinson, et al.                                       Page 2


law, and assault and battery. The district court denied defendants’ motion for summary judgment
claiming qualified immunity on all of plaintiff’s claims, and defendants brought this interlocutory
appeal challenging that ruling.
                                                 I.
        The decedent-plaintiff, Eugene Lanman, was a veteran with a history of mental illness. On
January 5, 2002, he was found wandering the countryside by the Kalkaska County Sheriff’s
Department. He was taken to the Antrim/Kalkaska County Community Mental Health Department
for a mental health assessment. Beverly Robinson conducted Lanman’s assessment and determined
that he needed in-patient psychiatric care on an emergency basis. She arranged for Lanman to be
transported to the Kalamazoo Psychiatric Hospital.
       Lanman arrived at the psychiatric hospital at 9:30 p.m. that same night suffering from
auditory and visual hallucinations, suicidal ideations, and his legs were shaking uncontrollably. Dr.
S.B. Kondapaneni examined Lanman and determined he needed to be admitted to the hospital for
immediate psychiatric treatment. Dr. Kondapaneni determined that Lanman was a danger to himself
and was in need of intensive in-patient psychiatric care. Lanman was then admitted on a voluntary
basis when he filled out the Adult Formal Voluntary Admission Application.
       Kondapaneni prescribed Celebrex for Lanman’s back pain and Vasotec for his blood
pressure. Kondapaneni did not prescribe any psychotropic drugs. Kondapaneni attempted to
determine whether Lanman was suffering from the side effects of having previously received
psychotropic drugs, but was unable to perform the requisite test at that late hour. After his
admission to the hospital, Lanman was directed to stay in a “quiet room,” a room which allowed
hospital staff to closely monitor Lanman. He was not given a room assignment, any psychiatric
treatment, or any psychotropic medications.
       The next morning, after spending all night in a “quiet room” and still not having received
any treatment, Lanman was becoming increasingly agitated. He was pacing in circles in the
hallway, talking to himself, and trying to open the doors to other patients’ rooms. By 9:10 a.m.,
eleven hours after admission, Lanman was extremely upset. He was banging his head and hands on
the walls and doors, and not complying with staff requests to calm down and return to the “quiet
room.” Finally, staff requested he be medicated to calm him down. Dr. Van Putten ordered 2 mg
of Ativan be administered to Lanman. Defendant Nurse Edwina Koehn-Koldenhof went to the
medication room to draw the Ativan.
        While Nurse Koldenhof was drawing the medicine, Lanman attacked resident care aide Mike
Morey, and attempted to choke him. Another aide, James Siegfried, attempted to grab Lanman from
behind, but Siegfried tripped and both Lanman and Siegfried fell to the ground. Siegfried asked
Lanman to calm down, but Lanman continued to struggle, flailing his arms and legs. When
Siegfried and Lanman fell to the floor, aides Linda Price and Morey immediately tried to restrain
Lanman’s legs. A “code easy” alarm had been sounded when Lanman attacked Morey, alerting
other hospital staff that help was needed. Aides Jean Prandine, George White, Tom Bissiden, Bob
Hinson, and Steve Bronsink all responded to the “code easy.” White relieved Morey and Price who
were attempting to control Lanman’s legs, but were being kicked violently by Lanman. Hinson
grabbed Lanman’s left arm and extended it up and away from Lanman’s body.
       Nurse Koldenhof arrived with the Ativan and administered it. Nurse Julie Ann Stiver, who
had arrived in response to the “code easy,” ordered that Lanman be placed in restraints. While
Hinson was attempting to place a restraint on Lanman’s left wrist, someone stated there was a
problem and that Lanman wasn’t breathing. Lanman was turned on his back and Hinson
immediately started chest compressions. CPR was administered and paramedics were called.
No. 06-2263                    Lanman v. Hinson, et al.                                          Page 3


Lanman began breathing again and was taken by ambulance to Bronson Hospital. He never regained
consciousness and died after being taken off life support.
        Plaintiff relies primarily on the deposition testimony of Richard P. Hunter, a fellow patient
at the hospital who witnessed the altercation. Hunter testified that he was sitting on a bench
approximately five feet from where Lanman was restrained. He stated that at least six individuals
held Lanman face down on the floor, and one of those individuals placed his knee in Lanman’s back
in attempt to hold him down. Hunter also testified that staff members had Lanman’s legs crossed
and were bending his legs back toward his head while Lanman was on his stomach. According to
Hunter, Lanman was having obvious difficulty breathing and was crying out for help because he
could not breathe. Two or three minutes later, Lanman was noticeably more calm, and a few
minutes after that looked as if he had passed out. Hunter stated that the staff ignored Lanman until
one of the nurses noticed he was passed out. Hunter gave a similar account to the Kalamazoo police
department when they interviewed him shortly after they arrived on the scene.
        The personal representative of Lanman’s estate, Patricia Lanman, filed suit against
defendants Hinson, Siegfried, Morey, Price, White, Stiver, Koldenhof, Prandine, and Bronsink,
alleging violations of 42 U.S.C. § 1983; statutory abuse or neglect under Michigan law; and assault
and battery. Defendants moved for summary judgment asserting qualified immunity with regard to
Lanman’s § 1983 claim. The district court denied the defendant’s motion, and this interlocutory
appeal followed.
                                                   II.
        This court reviews an order denying summary judgment on qualified immunity grounds de
novo. See v. City of Elyria, 402 F.3d 484, 490 (6th Cir. 2007). Summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). When deciding a motion
for summary judgment, this court views the evidence and draws all reasonable inferences in favor
of the non-moving party. Hardesty v. Hamburg Twp, 461 F.3d 646, 650 (6th Cir. 2006) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Any direct evidence
offered by the plaintiff in response to a summary judgment motion must be accepted as true. Id.
Nevertheless, the “mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
                                            A. Jurisdiction
        This Court’s review of interlocutory appeals challenging a district court’s denial of qualified
immunity “is confined to the question of whether all of the conduct which the district court deemed
sufficiently supported for purposes of summary judgment met the Harlow standard of objective legal
reasonableness.” Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 537 (6th
Cir. 2002) (citations and internal quotation marks omitted). “If the defendant does not dispute the
facts alleged by the plaintiff for purposes of the appeal, ‘our jurisdiction is clear.’” Berryman v.
Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (quoting Dickerson v. McClellan, 101 F.3d 1151, 1157
(6th Cir. 1996)). “If, instead, the defendant disputes the plaintiff’s version of the story, the
defendant must nonetheless be willing to concede the most favorable view of the facts to the plaintiff
for purposes of the appeal.” Id. “Only if the undisputed facts or the evidence viewed in the light
most favorable to the plaintiff fail to establish a prima facie violation of clear constitutional law may
we decide that the defendant is entitled to qualified immunity on an interlocutory appeal.” Id. (citing
Turner v. Scott, 119 F.3d 425, 428 (6th Cir.1997)).
No. 06-2263                   Lanman v. Hinson, et al.                                          Page 4


        In defendants’ reply brief, they concede the most favorable view of the facts to the plaintiff,
and state that their appeal involves only the following purely legal issues: (1) the appropriate
standard under which to analyze plaintiff’s claims; (2) whether the law related to positional
asphyxiation of a patient who was physically struggling during an emergency situation in a mental
health institution was clearly established at the time; and (3) whether defendants’ actions were
objectively reasonable viewing the facts in the light most favorable to the plaintiff. Accordingly,
this Court has jurisdiction to review defendants’ interlocutory appeal of the district court’s denial
of qualified immunity.
                         B. Fourth Amendment v. Fourteenth Amendment
          The parties dispute what constitutional standard is implicated by the facts of this case. This
is not a purely academic question as the standards of liability vary significantly according to which
amendment applies. See Darrah v. City of Oak Park, 255 F.3d 301, 306 (6th Cir. 2001) (“A
substantially higher hurdle must be surpassed to make a showing of excessive force under the
Fourteenth Amendment than under the ‘objective reasonableness’ test [of the Fourth Amendment]
. . . .”). Defendants here argue that plaintiff’s claim is governed by the Fourteenth Amendment
based on the holdings of the Supreme Court in Youngberg v. Romero, 457 U.S. 307 (1982), and this
Circuit in Terrance v. Northville Regional Psychiatric Hospital, 286 F.3d 834 (6th Cir. 2002).
Plaintiff suggests, and the district court agreed, that the Fourth Amendment applies.
         The district court held that the facts of the case implicated the Fourth Amendment because
it read the Supreme Court’s decision in Graham v. Connor, 490 U.S. 386 (1989), to hold that all
excessive force claims should be analyzed under the Fourth Amendment reasonableness standard,
rather than the Fourteenth Amendment “substantive due process” approach. Id. Subsequently, the
Supreme Court clarified that Graham v. Connor “does not hold that all constitutional claims relating
to physically abusive government conduct must arise under either the Fourth or Eighth
Amendments; rather, Graham simply requires that if a constitutional claim is covered by a specific
constitutional provision, . . . the claim must be analyzed under the standard appropriate to that
specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520
U.S. 259, 272 n. 7 (1997).
         We have held that “[w]hich amendment applies depends on the status of the plaintiff at the
time of the incident, whether free citizen, convicted prisoner, or something in between.” Phelps v.
Coy, 286 F.3d 295, 299 (6th Cir. 2002) (citing Gravely v. Madden, 142 F.3d 345, 348-49 (6th Cir.
1998)). If the plaintiff was a convicted prisoner at the time of the incident, then the Eighth
Amendment deliberate indifference standard sets the standard for an excessive force claim.
Graham, 490 U.S. at 395 n. 10. But if the plaintiff was a free person, and the use of force occurred
in the course of an arrest or other seizure, then the plaintiff’s claim arises under the Fourth
Amendment and its reasonableness standard. Id. at 395. While this is seen most clearly in the law
enforcement setting of arrests or investigatory stops, Graham, 490 U.S. at 395, the Fourth
Amendment also applies in the civil setting to seizures of individuals for psychiatric evaluations or
involuntary confinement. Monday v. Oullette, 118 F.3d 1099, 1102-04 (6th Cir. 1997). Thus, the
Fourth Amendment reasonableness standard generally applies any time a government official seizes
a free citizen with the purpose of potentially creating an involuntary custodial relationship with the
State. Because the Fourth Amendment’s protection against unreasonable seizures “seems primarily
directed to the initial act of restraining an individual’s liberty,” Phelps, 286 F.3d at 301 (quoting
Valencia v. Wiggins, 981 F.2d 1440, 1444 (5th Cir. 1993)), we have stated that the standard applying
to a pretrial detainee’s excessive force claim “lies in the murky area between the Fourth and Eighth
Amendments,” Phelps, 286 F.3d at 300. At the very least, we have held that “the Fourteenth
Amendment . . . ‘Due Process Clause protects a pretrial detainee from the use of excessive force that
amounts to punishment.’” Phelps, 286 F.3d at 300 (quoting Graham, 490 U.S. at 395 n.10). The
Fourteenth Amendment is the source of a pretrial detainee’s excessive force claim because when a
No. 06-2263                    Lanman v. Hinson, et al.                                          Page 5


plaintiff is not in a situation where his rights are governed by the particular provisions of the Fourth
or Eighth Amendments, the more generally applicable Due Process Clause of the Fourteenth
Amendment provides the individual with protection against physical abuse by officials. Id.
         In Youngberg, the Supreme Court held that the Fourteenth Amendment provides
involuntarily committed individuals with the right to be free from undue bodily restraint in the
course of their treatment by the State. 457 U.S. at 324. Even though by bodily restraining a patient
State actors are using physical force to restrain the liberty of a citizen, Graham, 490 U.S. at 395 n.
10 (“A ‘seizure’ triggering the Fourth Amendment's protections occurs . . . when government actors
have, ‘by means of physical force or show of authority, . . . in some way restrained the liberty of a
citizen.’”), the constitutional right recognized by Youngberg is not governed by the specific
provisions of the Fourth Amendment. This is because the act of physically restraining the patient
is for the purpose of medical treatment, which the State has determined is a necessary condition of
the patient’s confinement.
        Likewise, a voluntarily confined individual who is bodily restrained by State actors, related
to his consented-to medical treatment, has not been seized for purposes of the Fourth Amendment’s
application so long as a reasonable person in the patient’s position would believe that he was free
to leave the State’s care. See Michigan v. Chesternut, 486 U.S. 567, 573 (1988). If, however, a
reasonable person in the patient’s position would believe that the physical restraint was not medical
treatment, but rather an attempt by the State to transform the voluntary care relationship into
involuntary confinement, then the patient has been seized within the meaning of the Fourth
Amendment and its standard applies.
        Because at the time of the incident, Lanman was not in a situation where his rights were
governed by the particular provisions of the Fourth Amendment, we find that the more generally
applicable Fourteenth Amendment Due Process Clause applies to his excessive force claim. The
Fourth Amendment is inapplicable here because defendants did not “seize” Lanman when they
bodily restrained him. By requesting voluntary admission to Kalamazoo Psychiatric Hospital,
Lanman consented to defendants providing him medical treatment. Defendants physically restrained
Lanman to prevent him from harming himself or others and to administer medication to calm him
down. A reasonable person in Lanman’s position, as a voluntarily admitted patient in a psychiatric
hospital, would believe that the restraint was part of the medical treatment he had authorized, and
not an attempt by defendants to keep him there against his will. While the facts viewed in the light
most favorable to plaintiff suggest that Lanman did ask defendants to get off of him so he could
breathe, there is no evidence to suggest that Lanman expressed a desire to leave the hospital and
defendants refused to allow him to do so. Therefore, Lanman was not seized within the meaning
of the Fourth Amendment.
        We find that the appropriate source for Lanman’s excessive force claim is the Fourteenth
Amendment, which provides him, as a patient of a state care institution, with the constitutional right
recognized in Youngberg to freedom from undue bodily restraint in the course of his treatment.
Basing this right in substantive due process, rather than the Fourth Amendment, allows for balancing
the individual’s liberty interest against the State’s asserted reasons for restraining the individual’s
liberty while in its care. It also gives proper deference to the decisions of institutional professionals
concerning medical treatment.
       The district court relied on DeShaney v. Winnebago County Dep’t of Social Serv., 489 U.S.
189 (1989), for the proposition that it was the involuntary nature of the individual’s confinement that
No. 06-2263                         Lanman v. Hinson, et al.                                                       Page 6


invoked the Fourteenth Amendment’s protections in Youngberg and Terrance.1 Therefore, it held,
because Lanman voluntarily committed himself to Kalamazoo Regional Psychiatric Hospital
(“KPH”) by signing an admission application, and was theoretically free to leave at any time, he was
not owed any duties under the Fourteenth Amendment. We disagree.
        DeShaney does not address a situation in which the State itself, by the affirmative acts of
its agents, infringes on an individual’s constitutionally protected liberty interests. The Court in
DeShaney recognized that the protections of the Due Process Clause may be triggered when the
State affirmatively acts and subjects an involuntarily confined individual to deprivations of liberty
which are not among those generally authorized by his confinement. 489 U.S. at 200 n. 8.
Likewise, the Due Process Clause would protect a voluntarily confined individual from deprivations
of liberty by state actors that exceed those authorized by his consent to treatment. The mechanism
which brought the individuals to the various facilities, whether considered “voluntary” or
“involuntary,” is not controlling; in either case they are entitled to freedom from undue restraint at
the hands of the State under the Fourteenth Amendment.
        Differentiating Fourteenth Amendment cases from those governed by the Fourth Amendment
based on the voluntary or involuntary nature of the state’s custody would lead to arguably
inconsistent results. In the present case even though Lanman was technically voluntarily committed,
under Michigan law, once he gave the hospital notice of his intent to leave, the hospital could retain
him against his will for up to three days. MICH. COMP. LAWS § 330.1419(1). Thus, applying the
district court’s reasoning, if Lanman had decided to leave the hospital, and been retained
involuntarily under § 330.1419(1), any § 1983 claims arising in those three days of involuntary
confinement would fall under the Fourteenth Amendment. But immediately prior to his decision
to leave, while his confinement was technically voluntary, the Fourth Amendment would apply to
any § 1983 claims. Under such a system, while Lanman’s relationship and dependence on the state
would not have changed, his constitutional protection would have. We do not believe such a
distinction is warranted.



         1
           The district court found the involuntariness argument determinative by reading DeShaney to mean that the
Constitution only imposes a duty on the State to assume responsibility for the safety of an individual when it has
“take[n] a person into its custody and holds him there against his will.” DeShaney, 489 U.S. at 199-200 (emphasis
added). But DeShaney decided only that the State is not responsible for the actions of third-party private actors against
individuals unless it had imposed restraints on the individuals' liberty to render them unable to care for themselves. Id.
at 200. The harms that occurred to the petitioner in DeShaney “occurred not while he was in the State's custody, but
while he was in the custody of his natural father, who was in no sense a state actor.” Id. at 201. Furthermore, the
DeShaney Court noted that the State had played no part in creating the dangers faced by the petitioner nor did it do
anything to render him any more vulnerable to them. Id. This is unlike the present case in which Plaintiff alleges that
the State, through the affirmative acts of Defendants, infringed on Lanman’s substantive due process right in freedom
from undue restraint while in the State’s custody. His status as voluntary or involuntary is irrelevant as to his
constitutional right to be free from the State depriving him of liberty without due process.
          At this time, we do not need to decide whether the State owes the same affirmative constitutional duties of care
and protection to its voluntarily admitted residents as it owes to its involuntarily committed residents under Youngberg.
In an unpublished disposition, however, a panel of this Court held that because the plaintiff had been voluntarily admitted
to the state mental hospital, the State’s constitutional duty to protect those it renders helpless by confinement was not
triggered. Higgs v. Latham, No. 91-5273, 1991 WL 21646, at *4 (6th Cir. Oct. 24, 1991) (unpublished). Our sister
circuits are split on this issue. See Torisky v. Schweiker, 446 F.3d 438, 446-47 (3d Cir. 2006) (holding that while a
voluntary custodial relationship with the State is not a deprivation of liberty sufficient to trigger the protections of
Youngberg, a court commitment to state custody is not a necessary prerequisite--a voluntary commitment may become
involuntary in nature by state action); Walton v. Alexander, 44 F.3d 1297, 1303-04 (5th Cir. 1995) (recognizing that after
DeShaney, “if the person claiming the right of state protection is voluntarily within the care of custody of a state agency,
he has no substantive due process right to the state’s protection”); Monahan v. Dorchester Counseling Ctr., 961 F.2d
987, 992 (1st Cir. 1992) (finding no substantive due process right to safety under DeShaney because voluntary patient
was free to leave the facility); Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1245-46 (2d Cir.
1984) (finding Youngberg’s protections apply to voluntary and involuntary residents alike).
No. 06-2263                    Lanman v. Hinson, et al.                                          Page 7


        Accordingly, we find that the Fourteenth Amendment governs plaintiff’s claim.
                                        C. Qualified Immunity
        Having found that Lanman was protected by the Due Process Clause of the Fourteenth
Amendment while voluntarily committed, we must now determine if his rights were violated.
Typically, this Court only has jurisdiction to review final decisions of district courts, and the “denial
of summary judgment is ordinarily not a final judgment.” Armstrong v. City of Melvindale, 432 F.3d
695, 698 (6th Cir. 2006) (citations omitted). A district court’s denial of a claim of qualified
immunity on summary judgment, however, is an appealable final decision, so long as the facts are
not disputed. Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). Here, as discussed above,
defendants concede to the facts viewed in a light most favorable to plaintiff, and claim only that
those facts do not demonstrate a violation of clearly established law as required to overcome the
affirmative defense of qualified immunity. Accordingly, this Court reviews the district court’s
denial of qualified immunity de novo under the usual summary judgment standard. Id. at 698-99.

         Qualified immunity shields public officials who perform discretionary functions from tort
liability, so long as their conduct does not violate clearly established rights viewed under the
applicable constitutional standard, here, the Due Process Clause of the Fourteenth Amendment. Id.;
see also Harlow, 457 U.S. at 818. Qualified immunity is an affirmative defense that, once asserted,
shifts the burden of proof to the plaintiff to show that the defendant is not entitled to qualified
immunity. Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir. 2002). The application of qualified
immunity is determined on a “fact-specific, case-by-case basis.” Armstrong, 432 F.3d at 699.
        In order to determine whether a defendant is entitled to qualified immunity, this Court uses
a two-part test: “(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)).
                               A. Violation of a Constitutional Right
       In order to determine whether a constitutional right has been violated, we must first decide
whether there exists a constitutional right under the Fourteenth Amendment to be free from
unnecessary restraint in a mental hospital. Specifically, plaintiff claims that the decedent’s rights
were violated when he was held face down even after he had stopped struggling and told them he
could not breathe, resulting in positional asphyxiation.
        In Youngberg, the Supreme Court held that mental patients retain liberty interests in freedom
of movement and in personal security under the Fourteenth Amendment. 457 U.S. at 848-49.
However, those interests are not absolute. Id. In order to determine “whether a substantive right
protected by the Due Process Clause has been violated, it is necessary to balance the liberty of the
individual and the demands of an organized society.” Terrance, 286 F.3d at 849 (quoting
Youngberg, 457 U.S. at 325). In the mental hospital context, that balance “only requires that courts
make certain that professional judgment in fact was exercised,” in order to adequately protect a
patient’s rights. Youngberg, 457 U.S. at 321. “In making such determinations, decisions made by
the appropriate professional are entitled to a presumption of correctness unless it is established that
the person responsible did not base the decision on accepted professional judgment.” Terrance, 286
F.3d at 849. While the actions of professional decisionmakers, defined as “person[s] competent,
whether by education training or experience, to make the particular decision at issue,” Youngberg,
457 U.S. at 323 n.30, are held to this professional judgment standard, the defendant resident care
aides are non-professional employees and are held only to a deliberate indifference standard. See
Shaw v. Stackhouse, 920 F.2d 1135, 1147 (3d Cir. 1990) (holding that defendant residential service
No. 06-2263                   Lanman v. Hinson, et al.                                          Page 8


aides were clearly nonprofessional employees subject only to a deliberate indifference standard).
To establish deliberate indifference, Plaintiff must show that defendant resident care aides knew of
and disregarded an excessive risk to Lanman’s health or safety. Terrance, 286 F.3d at 843. Whether
Defendants “had the requisite knowledge of a substantial risk [of serious harm] is a question of fact
subject to demonstration in the usual ways, including inference from circumstantial evidence . . . and
a factfinder may conclude that [Defendants] knew of a substantial risk from the very fact that the
risk was obvious.” Id. (citing Farmer v. Brennan, 511 U.S. 825, 842 (1994)).
        This Court has consistently held that damage claims against government officials arising
from alleged violations of constitutional rights must allege, with particularity, facts that demonstrate
what each defendant did to violate the asserted constitutional right. Terrance, 286 F.3d at 842.
Here, the district court failed to separately analyze the constitutionality of the individual actions of
each defendant. While we find that there are issues of fact as to whether some defendants were
deliberately indifferent to Lanman’s medical needs, we also find that summary judgment should be
granted in favor of other defendants because plaintiff has failed to allege sufficient facts
demonstrating that their actions violated Lanman’s constitutional rights. We will examine the
alleged actions of each defendant in turn, taking into account Richard Hunter’s testimony that
Lanman was restrained in a dangerous manner after there was no longer need for restraint.
                                         1. James Siegfried
         Plaintiff’s allegations create a material issue of fact as to whether defendant, and resident
care aide, James Siegfried was deliberately indifferent to Lanman’s serious medical needs. The
altercation at issue began when Lanman lunged at defendant Mike Morey, a fellow resident care
aide, in an apparent attempt to choke him. In response, Siegfried attmpted to restrain Lanman from
behind. The two fell to the floor with Lanman on top of Siegfried. Siegfried rolled Lanman onto
his side. Lanman resisted restraint by violently thrashing and kicking at Siegfried and Morey. The
code easy alarm was sounded and other staff members arrived on the scene to assist. Siegfried tried
to gain control of Lanman’s arms by grabbing his wrists. Siegfried was relieved by another staff
member moments later. He remained on his knees behind Lanman, however, throughout the
altercation. Siegfried denies placing his hands on Lanman’s back to hold him down at any time.
Siegfried’s kneeling position at the top half of Lanman’s body, coupled with Richard Hunter’s
testimony that a staff member used his knees on Lanman’s back to hold him down creates an issue
of fact as to whether Siegfried restrained Lanamn in a manner that was deliberately indifferent to
his medical needs.
                                           2. Mike Morey
        Plantiff has also alleged sufficient facts to support a finding that defendant Mike Morey was
deliberately indifferent to Lanman’s serious medical needs. Morey attempted to restrain Lanman’s
legs during the struggle. Despite Morey’s testimony that it was not proper restraint technique to
cross a patient’s ankles and lift his feet towards the back of the patient’s head, defendant Robert
Hinson testified that he saw Morey employ such a technique. The affidavit of Gerald Shiener, M.D.,
states that this restraint position is unsafe for the patient because it interferes with his ability to
breathe. Therefore, these facts create a material issue as to whether Morey was deliberately
indifferent to Lanman’s medical needs.
                                          3. George White
        There is also a material issue of fact as to whether defendant George White’s actions violated
Lanman’s constitutional rights. White responded to the code easy alarm and came to the aid of the
other staff members trying to control Lanman’s legs. White testified that Lanman was being
restrained face down. In an attempt to restrain Lanman’s legs, White laid himself across Lanman’s
No. 06-2263                   Lanman v. Hinson, et al.                                          Page 9


buttocks and legs. White testified that he continued to hold Lanman down despite hearing him say
that he could not breathe. These facts, coupled with the testimony of Richard Hunter, that the staff
members continued to restrain Lanman face down on the floor despite the fact that he was having
obvious difficulty breathing, he was noticeably more calm after two to three minutes, and he wasn’t
breathing at all after about five minutes, reveal a genuine issue of fact as to whether White was
deliberately indifferent to Lanman’s medical needs.
                                          4. Robert Hinson
        Furthermore, plaintiff has alleged facts that create an issue as to whether defendant Robert
Hinson’s actions violated Lanman’s constitutional rights. Hinson arrived on the scene shortly after
the code easy alarm sounded. He grabbed Lanman’s left arm and wrist and extended it above his
head. Hinson was attempting to place a leather restraint on Lanman’s left wrist when he was alerted
to the fact that Lanman had stopped breathing. The fact that Hinson had physical contact with
Lanman at the time he ceased breathing and he was positioned near the top of Lanman’s body, where
Richard Hunter testified that he saw someone place their knee on Lanman’s back and use his body
weight to hold Lanman face down, is enough to create an issue as to whether Hinson was
deliberately indifferent to Lanman’s medical needs.
                                         5. Julie Stiver, R.N.
         Moreover, even though defendant Julie Stiver, R.N., did not physically participate in the
restraint of Lanman, she may still be liable for a violation of Lanman’s constitutional rights under
a supervisory liability theory. As the supervisor of the restraint procedure, she can be held liable
for the actions of the resident care aides if she “at least implicitly authorized, approved or knowingly
acquiesced in the unconstitutional conduct of the offending subordinate[s].” Bellamy v. Bradley,
729 F.2d 416, 421 (6th Cir.1984) (citing Hays v. Jefferson County, 668 F.2d 869, 872-74 (6th
Cir.1982)). Defendant Julie Stiver, R.N., may also be liable for her own actions. As a professional
decisionmaker, competent because of her education, supervisory position, and NAPPI training to
decide to physically restrain Lanman and to use proper methods of restraint, she could only order
the physical restraint of Lanman to the extent professional judgment deemed this necessary to assure
the safety of himself or others. See Youngberg, 457 U.S. at 324. Her decision to restrain Lanman
in the manner defendants did is presumptively valid. Id. at 323. She will be liable for a
constitutional violation of his substantive due process right to be free from undue bodily restraint
only if her decision was such a substantial departure from accepted professional judgment that it
demonstrates that the manner in which defendants restrained Lanman was not based on such
judgment. Id.
        In the present case, viewing the evidence in the light most favorable to the plaintiff, there is
a genuine issue as to whether defendant Julie Stiver, R.N., is liable for the deliberately indifferent
conduct of her subordinates and whether she is liable for her own actions as a professional
decisionmaker. Stiver ordered the staff to place ankle and wrist restraints on Lanman and supervised
the actions of the staff in attempting to do so. Because plaintiff has shown that Stiver was physically
present and directly supervising the staff as they restrained Lanman, plaintiff has demonstrated that
Stiver at least knowingly acquiesced in the alleged unconstitutional conduct of her subordinates.
Also, because the evidence viewed in the light most favorable to the plaintiff demonstrates that at
least some of the defendant resident care aides were deliberately indifferent, there is a genuine issue
as to whether Stiver’s actions show that she failed to exercise professional judgment in ordering and
supervising Lanman’s restraint.
                                    6. Edwina Koehn-Koldenhof
       In contrast to the above defendants, plaintiff has failed to allege sufficient facts to support
No. 06-2263                    Lanman v. Hinson, et al.                                         Page 10


a finding that the actions of defendant Edwina Koehn-Koldenhof, R.N., violated Lanman’s
constitutional rights. Koehn-Koldenhof’s only physical contact with Lanman consisted of
administering an injection of Ativan to calm him down. Plaintiff has not alleged that the injection
violated Lanman’s constitutional rights nor has plaintiff alleged that Koehn-Koldenhof supervised
the staff during the restraint procedure. Without more, Koehn-Koldenhof’s presence at the scene
and administration of Ativan are insufficient to support a finding that she violated Lanman’s
constitutional rights. Therefore, summary judgment should be granted in her favor.
                                           7. Jean Prandine
        Similarly, plaintiff has failed to allege sufficient facts to establish that defendant Jean
Prandine’s actions violated Lanman’s constitutional rights. According to her deposition testimony,
Prandine was one of the first to respond to the code easy alarm. She attempted to gain control of one
of Lanman’s kicking legs, but was almost immediately relieved by another staff member. Prandine’s
limited involvement in Lanman’s restraint does not subject her to individual liability for any alleged
constitutional violation that occurred. She should also be dismissed from the case.
                                        8. Linda Shaffer-Price
       Like Prandine, defendant Linda Shaffer-Price’s attempts to control Lanman’s legs for a few
moments before being relieved by defendant George White do not subject her to individual liability.
Because of her limited involvement, no material issue of fact exists as to whether Shaffer-Price was
deliberately indifferent to the decedent’s serious medical needs. Summary judgment should be
granted in her favor as well.
                                          9. Steve Bronsink
       Plaintiff has failed to allege sufficient facts to prove that defendant Steve Bronsink violated
Lanman’s constitutional rights. While it is alleged that Bronsink was present and perhaps involved
in Lanman’s restraint, plaintiff has failed to allege, with any particularity, the unconstitutionality of
Bronsink’s individual actions. Thus, summary judgment should be granted in his favor.
        In sum, drawing all inferences in favor of plaintiff, a reasonable factfinder could conclude
that defendants James Siegfried, Mike Morey, George White, Robert Hinson, and Julie Stiver, R.N.,
restrained Lanman in a dangerous face-down position, with pressure on his back and possibly his
neck, with his ankles crossed and extended towards his head. They also could conclude that these
defendants ignored Lanman’s pleas for them to get off so he could breathe and failed to notice that
he was having “obvious difficulty breathing.” Indeed, under plaintiff’s version of the facts given
by eyewitness patient Richard Hunter, Lanman was “noticeably more calm” after two to three
minutes of struggling, and five minutes later, “he wasn’t resisting at all. He looked like he was
passed out.” According to Hunter’s account of the events, it was not until that point, when Lanman
had become unconscious, that one of the hospital staff members noticed he wasn’t breathing and the
hospital staff slowly got off of him, rolled him on his back, and began CPR. Again, viewing the
facts in the light most favorable to plaintiff, a jury could conclude based on the affidavit of Dr.
Werner U. Spitz that Lanman “died as a result of the consequences of positional asphyxia committed
by the defendant Hospital staff members,” and not as a result of Lanman’s underlying cardiovascular
disease, doxepin toxicity and extreme physical exertion as defendants assert.
        Defendants had been trained under NAPPI (Nonabusive Physical and Psychological
Intervention) to never restrain a patient face down on the floor or put pressure on the patient’s back
because of the danger of suffocation. They also had been taught that they should cross a patient’s
ankles and pull the feet up towards the back of the head only as a technique to exit a seclusion room.
The facts taken in the light most favorable to plaintiff reveal that defendants used unapproved and
dangerous restraint techniques to control Lanman. The facts also show that defendants continued
No. 06-2263                        Lanman v. Hinson, et al.                                                  Page 11


to use these dangerous techniques after two to three minutes of struggling when Lanman was
“noticeably more calm,” and five minutes later, when “he wasn’t resisting at all . . . [h]e looked like
he was passed out.”
        Under these facts, a reasonable factfinder could find that defendants James Siegfried, Mike
Morey, George White, and Robert Hinson knew that their actions created a substantial risk of serious
harm to Lanman, yet they disregarded this knowledge by continuing to restrain him in a dangerous
manner for five minutes after he had ceased resisting. A reasonable factfinder could also conclude
that defendant Julie Stiver, R.N., as the nurse in charge of the restraint procedure, is liable for her
subordinates’ unconstitutional actions and/or that she substantially departed from professional
judgment in her supervision of the resident care aides’ deliberately indifferent actions. Therefore,
we find, viewing the facts in the light most favorable to plaintiff, that a reasonable factfinder could
conclude that defendants James Siegfried, Mike Morey, George White, Robert Hinson, and Julie
Stiver, R.N., violated Lanman’s Fourteenth Amendment substantive due process right to freedom
from undue bodily restraint. However, we also find that summary judgment should be granted in
favor of defendants Edwina Koehn-Koldenhof, R.N., Jean Prandine, Linda Shaffer-Price, and Steve
Bronsink because plaintiff has failed to allege sufficient facts demonstrating that their actions
violated Lanman’s constitutional rights.
                             B. Constitutional Right Was Clearly Established
        However, even if defendants violated Lanman’s constitutional right, if at the time of the
alleged violations it would not have been clear to defendants that their actions were unlawful in the
situation they confronted, they are entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194,
201-02 (2001). Officials do not enjoy qualified immunity simply because the exact conduct in
question has not previously been held unlawful by a court, but “in the light of pre-existing law the
unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “[A]n action’s
unlawfulness can be apparent from direct holdings, from specific examples described as prohibited,
or from the general reasoning that a court employs.” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.
2003). Overall, “[t]he contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Id.
        Here, at the time of the alleged constitutional violation, it would have been clear to
defendants that their actions would violate Lanman’s Fourteenth Amendment substantive due
process right to be free from undue bodily restraint. It is not determinative that defendants’ exact
conduct has not previously been held unlawful by a court. In Youngberg, the Supreme Court
recognized that involuntarily confined patients in state institutions enjoy the right to freedom from
undue bodily restraint; bodily restraint is undue when and to the extent professional judgment deems
this unnecessary to assure safety or to provide treatment. 457 U.S. at 324. As we discussed supra,
the voluntary/involuntary distinction,2while perhaps relevant to whether the state has the duty to
protect patients from third-party harm, is irrelevant to the right of individuals, whatever their status,
to be free from physical abuse at the hands of the State. Thus, it would have been clear to
defendants that Lanman enjoyed the Fourteenth Amendment right to freedom from undue bodily
restraint recognized in Youngberg and reenforced by our Court in Terrance.
       The facts viewed in the light most favorable to plaintiff demonstrate that defendants knew
because of their NAPPI training that restraining a patient face-down on the floor and putting
pressure on a patient’s back posed a substantial risk of asphyxiation. Despite knowledge of this risk,
defendants chose to restrain Lanman using these dangerous restraint techniques. Their actions were

         2
          We note, though, that the Second Circuit has found that Youngberg’s affirmative duties of care and protection
from third-party harm extend to voluntary and involuntary residents alike. Society for Good Will to Retarded Children
v. Cuomo, 737 F.2d 1239, 1245-46 (2d Cir. 1984).
No. 06-2263                   Lanman v. Hinson, et al.                                         Page 12


objectively unreasonable given the fact that plaintiff’s eyewitness testified that defendants continued
to restrain Lanman in this dangerous position five minutes after he wasn’t resisting at all and looked
like he was passed out. It would have been clear to defendants that it was not necessary to continue
restraining a patient who looked like he was passed out with techniques that pose a substantial risk
of asphyxiation. A reasonable official in defendants’ positions would understand that his actions
violated Lanman’s constitutional right to freedom from undue bodily restraint.
        Therefore, we find that the right was clearly established at the time of Lanman’s restraint,
and defendants James Siegfried, Mike Morey, George White, Robert Hinson, and Julie Stiver, R.N.,
are not entitled to qualified immunity.
                                                  III.
                                 A. Statutory Abuse and/or Neglect
        The district court denied defendants’ motion for summary judgment on plaintiff’s claim for
statutory abuse and/or neglect under Michigan Compiled Law § 330.1722. That statute provides that
“[a] recipient of mental health services shall not be subjected to abuse or neglect.” MICH. COMP.
LAW § 330.1722(1). The statute further provides that “[a] recipient of mental health services who
is abused or neglected has a right to pursue injunctive and other appropriate civil relief.” Id. at
§ 330.1722(3). The district court held that the statute’s plain language created a private cause of
action, and that there is sufficient evidence that Lanman was subjected to abuse and neglect to defeat
summary judgment.
      Defendants argue that there is no evidence of abuse or neglect as those two terms are defined
by Michigan law. They also argue that qualified immunity protects them from liability under
Michigan law.
        With regard to defendants’ first argument, plaintiffs have presented enough evidence to
create a genuine issue of material fact as to whether abuse or neglect occurred. Michigan law
defines abuse as “nonaccidental physical or emotional harm . . . .” MICH. COMP. LAW
§ 330.1100a(2). It defines “neglect” as “an act or failure to act . . . that denies a recipient the
standard of care or treatment to which he or she is entitled under this act.” Id. at § 330.1100b(18).
Plaintiff has shown sufficient evidence that defendants restrained Lanman face down on the ground
by possibly placing their bodies or knees on his back following Lanman’s attack on Morey. Plaintiff
has also brought forth evidence that defendants ignored Lanman’s claims that he was having trouble
breathing, and continued to restrain him, even as he began to pass out. These facts, viewed in the
light most favorable to plaintiff, are enough to establish a cause of action for abuse or neglect under
Michigan law.
         In order to defeat defendants’ claims for qualified immunity under Michigan law, plaintiff
must offer sufficient evidence of gross negligence. See MICH. COMP. LAW § 691.1407(2)(c). Gross
negligence is defined as conduct “so reckless as to demonstrate a substantial lack of concern for
whether an injury results.” Id. at § 691.1407(7)(a). Plaintiff has provided the following facts to
show defendants were grossly negligent under Michigan law: (1) defendants improperly restrained
Lanman face-down; (2) defendants applied significant pressure to his backside, with knowledge that
such pressure would make it difficult for Lanman to breathe; (3) defendants also disregarded his
pleas for help and his statements that he was having trouble breathing; and (4) defendants did not
notice that Lanman was passing out and continued to restrain him once he had gone limp. Relying
on our factual analysis under federal law with respect to each individual defendant, we hold that the
facts alleged are sufficient to establish a genuine issue of material fact and defeat defendants’ motion
for summary judgment and claims for qualified immunity under Michigan law with regard to
defendants James Siegfried, Mike Morey, George White, Robert Hinson and Julie Stiver, R.N.
However, plaintiff has failed to allege sufficient facts showing defendants Edwina Koehn-
No. 06-2263                   Lanman v. Hinson, et al.                                         Page 13


Koldenhof, R.N., Jean Prandine, Linda Shaffer-Price, and Steve Bronsink were grossly negligent
in attempting to restrain Lanman.
                                       B. Assault and Battery
        Plaintiff also brought a claim for assault and battery under Michigan law. The district court
denied defendants’ motion for summary judgment. On appeal, defendants argue that they were
legally justified in attempting to restrain Lanman because they were acting to protect themselves as
well as others from violence.
        As the district court noted, in Michigan, an officer may use such force as is reasonably
necessary to effect a lawful arrest or seizure. Young v. Barker, 405 N.W.2d 395, 402 (Mich. Ct.
App. 1987). If an officer uses reasonable force in making a lawful seizure, then his actions are
justified, and he is protected by immunity under Michigan law. Id.; see also Brewer v. Perrin, 349
N.W.2d 198, 202 (Mich. Ct. App. 1984). “However, an officer who uses more force than is
reasonably necessary to effect a lawful arrest, commits a battery upon the person arrested.” White
v. City of Vassar, 403 N.W.2d 124, 130 (Mich. Ct. App. 1987). Applying these standards to
Lanman’s case, we come to the same conclusion reached above, that the district court did not err
when it denied summary judgment to defendants James Siegfried, Mike Morey, George White,
Robert Hinson and Julie Stiver, R.N. But we also find that plaintiff has failed to allege sufficient
facts to create a material issue of fact to maintain an assault and battery claim against defendants
Edwina Koehn-Koldenhof, R.N., Jean Prandine, Linda Shaffer-Price, and Steve Bronsink.
                                                  IV.
         We find that the Fourteenth Amendment governs the constitutional right of voluntarily
committed mental health patients to be free from undue bodily restraint. We also find that the
plaintiff in this case has established a genuine issue of material fact under both his federal claim and
his state law claims with regard to defendants James Siegfried, Mike Morey, George White, Robert
Hinson and Julie Stiver, R.N. However, plaintiff has failed to allege sufficient facts to maintain his
claims against defendants Edwina Koehn-Koldenhof, R.N., Jean Prandine, Linda Shaffer-Price, and
Steve Bronsink. Thus, we AFFIRM the district court’s denial of defendants’ motion for summary
judgment claiming qualified immunity to plaintiff’s § 1983 claim with regard to defendants James
Siegfried, Mike Morey, George White, Robert Hinson and Julie Stiver, R.N., and REVERSE with
regard to defendants Edwina Koehn-Koldenhof, R.N., Jean Prandine, Linda Shaffer-Price, and Steve
Bronsink. We AFFIRM the district court’s denial of defendants’ motion for summary judgment on
plaintiff’s two state law claims with regard to defendants James Siegfried, Mike Morey, George
White, Robert Hinson and Julie Stiver, R.N., and REVERSE with regard to defendants Edwina
Koehn-Koldenhof, R.N., Jean Prandine, Linda Shaffer-Price, and Steve Bronsink.
