            United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 96-3108
                                  ___________

Eddie O. Buckley, Jr.,                  *
                                        *
            Plaintiff-Appellee,         *
                                        *
      v.                                *
                                            *     Appeal   from   the   United
                                                  States
Russell Rogerson, Warden IMCC;              *     District Court for the
                                            *     Southern District of Iowa
            Defendant.                      *
                                     *
Paul W. Loeffelholz, M.D.,           *
                                     *
            Defendant-Appellant.     *
                                ___________

                          Submitted: April 14, 1997
                                 Filed: January 21, 1998
                                  ___________

Before McMILLIAN, Circuit Judge, HENLEY,1 Senior Circuit Judge, and BEAM,
      Circuit Judge.
                               ___________

McMILLIAN, Circuit Judge.

      Eddie O. Buckley, Jr., a prisoner of the Iowa Department of
Corrections, brought this 42 U.S.C. § 1983 suit against Paul Loeffelholz,
M.D., and others, complaining of




      1
        Judge Henley died on October 18, 1997. This opinion is consistent with his
vote at the panel's conference following oral argument on April 14, 1997.
his confinement in the Iowa Medical and Classification Center (IMCC)
psychiatric hospital for two months in late 1987 and early 1988. Buckley
contended in the district court that the repeated use of segregation and
restraints without medical approval during his confinement in the mental
hospital violated his Eighth Amendment right to be free from cruel and
unusual punishment and his Fourteenth Amendment right to due process of
law.   The claims against the other defendants were dismissed and only
Loeffelholz remains a defendant in the suit.

      Loeffelholz is the medical director for the Iowa Department of
Corrections and also a psychiatrist and clinical director at IMCC. He
moved for summary judgment on the theory that any actions he took with
respect to Buckley's treatment were protected by qualified immunity. The
district court2 denied the motion for summary judgment.       This appeal
followed. For reversal, Loeffelholz argues that the district court erred
in denying his motion for summary judgment on the ground of qualified
immunity. We have jurisdiction pursuant to 28 U.S.C. §1291.3 For the
reasons stated herein, we affirm the order of the district court.




      2
       The Honorable Donald E. O'Brien, United States District Judge for the Southern
District of Iowa.
      3
        Under the requirement that appeals may be taken only from a final judgment of
the district court, denial of a motion for summary judgment is ordinarily an
unappealable interlocutory order. 28 U.S.C. §1291. The Supreme Court has
recognized an exception, however, to the final order doctrine in cases where summary
judgment in a Section 1983 action is denied on the basis that the defendant lacks
qualified immunity. Johnson v. Jones, 515 U.S. 304, 311-12 (1995). In such cases, we
have jurisdiction under Section 1291 to review the district court's summary judgment
order to the extent that the decision rested on a matter of law. Behrens v. Pelletier, 116
S. Ct. 834, 842 (1996). Here, defendant Loeffelholz contends that the district court
erred as a matter of law in concluding that any actions he took with respect to the
treatment of Buckley violated any Constitutional right of Buckley which was "clearly
established" at the time in question.
                                           -2-
             STANDARD OF REVIEW

      We review a grant of summary judgment de novo, Merritt v. Reed, 120
F.3d 124, 125 (8th Cir.1997), and under the same standard which governed the
district court's decision. Hall v. Lombardi, 996 F.2d 954, 957 (8th Cir.
1993) (Hall), cert. denied, 510 U.S. 1047 (1994). The question is whether
the record shows that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Conrod v. Davis, 120 F.3d 92, 95 (8th Cir.1997). We view the
evidence in the light most favorable to the non-moving party and give the
non-moving party all reasonable inferences from the evidence. Hall, 996
F.2d at 957. Where a qualified immunity defense is asserted, the party
raising that defense has the burden of proving it. Id.

BACKGROUND

      Buckley entered the Iowa Department of Corrections in March 1985 on
a twenty-five year sentence for robbery, assault, and theft. During his
incarceration, a state court determined that Buckley was seriously mentally
ill and ordered his civil commitment in the prison mental hospital for
diagnosis and treatment.

      Buckley was confined at the IMCC psychiatric hospital at Oakdale from
November 6, 1987 until January 14, 1988. While there, he was diagnosed and
treated for chronic schizophrenia or schizophrenia-like psychosis.

      At the time Buckley was at the Oakdale facility, Loeffelholz was the
hospital director and was responsible for the policies and operating
procedures of the institution. Among the polices for which Loeffelholz was
responsible were policies under which the hospital staff developed treatment
plans for patients. Several treatment plans designed to address several
different problems and symptoms were developed for




                                    -3-
Buckley.4

      Buckley originally filed his complaint in 1988. The case was tried
to a jury in August 1993 but resulted in a mistrial. A second jury trial
was held in November 1993 which resulted in a verdict favorable to the
defendants. After the second trial, the district court granted Buckley's
motion for a new trial and also granted Loeffelholz's motion to file a
dispositive motion. Loeffelholz then filed a motion for summary judgment
based on qualified immunity, which the district court denied.

      In the district court, Buckley's principal contention against
Loeffelholz5 was that the hospital's policies and procedures allowed
correctional officers -- rather than trained medical personnel -- to develop
and implement     the treatment plans. Buckley also contended that the
treatment plans which were developed lacked sufficient specificity to guide
the staff in administering the treatment. Buckley argued that Loeffelholz's
conduct constituted deliberate indifference to a serious medical need and
violated his Eighth and Fourteenth Amendment rights.

      On these contentions, the district court made the following findings
of fact based in part on the evidence which was introduced in the previous
trials.

      While Buckley resided in Oakdale, defendant Dr. Paul Loeffelholz
      was responsible for developing the policies and operating
      procedures of the




      4
        Treatment plan one involved schizophrenia-like psychosis. Treatment plan two
concerned the refusal to comply. Treatment plan three related to poor sleeping habits.
Treatment plan four addressed poor money management. Treatment plan five involved
failure to follow smoking policies. Treatment plan six related to failure to meet
expectations.
      5
        The Iowa Medical and Classification Center, warden Russell Rogerson, and
several other individuals were also named as defendants but were later dismissed from
the case.
                                          -4-
institution. These policies allowed the Oakdale staff to develop "treatment
plans" designed to address Buckley's mental illness. At trial, Buckley
introduced evidence that, rather tha[n] assign its staff doctors to his
case, the prison entrusted the responsibility of implementing and
administering many of Buckley's treatment plans to correctional officers who
had no medical training. Dr. Fredrickson, one of Oakdale's medical doctors,
testified that correctional officers were allowed to initiate treatment of
Buckley without Dr. Fredrickson's approval.

           Part of the "treatment" in these treatment plans involved
     stripping Buckley of his clothes and placing him in a Spartan
     "quiet" or "segregation" cell. Other parts of the "treatment"
     involved placing Buckley in restraints so that h[e] could hardly
     move. There was testimony at the full trial that segregation
     and restraints the correctional officers ordered for Buckley
     were more akin to punishment than treatment.        The evidence
     further showed that Buckley was forced into the "quiet" room on
     seventeen occasion[s] without human necessities such as clothes,
     a blanket, a bed, and a mattress.      Buckley testified it was
     "very cold" in the quiet room, that he could not hear outside
     noises when he was in the quiet room, and that a doctor never
     checked on him while he was in the quiet room. The evidence
     also showed that the decision to send Buckley to the quiet room
     was made by non-medical staff.      Dr. Loeffelholz, ostensibly
     responsible for Buckley's treatment, checked on Buckley once
     every ninety days.

           Dr. Herbert Notch, a licensed clinical psychologist with
     solid credentials and experience, testified that he examined
     Buckley's medical records which showed Buckley has a major
     personality disorder, with an antisocial personality, possible
     paranoid behavior, and some schizoid tendencies.       Dr. Notch
     further testified that, while an average inmate might be
     isolated in a quiet room and not suffer any harm, a person with
     Buckley's illness would tend to suffer exacerbation of his
     already serious symptoms. Dr. Notch further testified that he
     could conceive of no legitimate medical reason why an inmate
     with Buckley's mental illness would be deprived of a mattress.
     Dr. Notch also indicated that, at times, the "treatment" that
     Buckley received more closely resembled punishment than anything
     else. Dr. Notch testified that, unlike some patients, mental




                                    -5-
health patients should not be punished as part of their treatment.

           Dr. Notch also testified that the treatment Buckley
     received was contrary to accepted treatment of mental health
     patients. Dr. Notch's greatest objection to Buckley's treatment
     plan was that it did not adequately describe how to help Buckley
     improve his behavior. For example, one treatment plan stated
     that Buckley had "poor money management skills," but it
     contained little or no description of the procedures that
     penitentiary staff needed to use with Buckley to help him manage
     his money prudently. Similarly, another of Buckley's treatment
     plans stated that Buckley need[ed] to improve his sleeping
     habits, but was woefully short on specifics needed to guide the
     people who were assigned to help Buckley.

           Finally, Dr. Notch testified that the "violations" Buckley
     was supposed to have committed, such as sleeping in the daytime
     and failure to follow the smoking policy, were more like
     violations of routine hospital procedures than they were serious
     psychiatric deficiencies that needed treatment.

Buckley v. Loeffelholz, No. 88-CV-51691, slip op. at 2-4 (S.D. Iowa July 8,
1996). Based on these facts the district court concluded that in November
1987 Buckley had a clearly established right not to be placed in segregation
without medical staff approval and that Dr. Loeffelholz knew or should have
known that the correctional staff was violating that right acting under the
policies and procedures he developed. Id. at 13-16.

DISCUSSION

      Under the doctrine of qualified immunity, a government official is
immune from suit unless the conduct complained of violated "clearly
established statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (Harlow).
For a right to be deemed clearly established, the "contours of the right
must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right." Anderson v.




                                    -6-
 Creighton, 483 U.S. 635, 640 (1987). The official is not required to guess
the direction of future legal decisions, Mitchell v. Forsyth, 472 U.S. 511,
535 (1985), but may rely on preexisting case law for guidance. Coffman v.
Trickey, 884 F.2d 1057, 1063 (8th Cir. 1989), cert. denied, 494 U.S. 1056
(1990). Whether an individual will be held liable for his official actions
depends upon the "objective legal reasonableness" of those actions. Harlow,
457 U.S. at 819. "Where an official could be expected to know that certain
conduct would violate statutory or constitutional rights, he should be made
to hesitate . . . ." Id.

      We have recently explained that under Harlow a defendant's assertion
of a qualified immunity defense requires us to address three issues:

     (1) whether the plaintiffs have asserted a violation of a
     constitutional or statutory right; (2) if so, whether that right
     was clearly established at the time of the violation; and (3)
     whether, given the facts most favorable to the plaintiffs, there
     are no genuine issues of material fact as to whether a
     reasonable official would have known that the alleged action
     violated that right.

Burnham v. Ianni, 119 F.3d 668, 673-74 (8th Cir. 1997) (en banc) (Burnham).

Constitutional Right

      The Eighth Amendment proscription against cruel and unusual punishment
has been held to bar deliberate indifference to serious medical needs,
Estelle v. Gamble, 429 U.S. 97, 105 (1976), where the defendant knew of and
disregarded such needs, Farmer v. Brennan, 511 U.S. 825, 837 (1994). In
addition, the Supreme Court has held that the freedom from bodily restraint
is at the core of the liberty interest protected by the due process clause.
Youngberg v. Romeo, 457 U.S. 307, 316 (1982). Thus, even a prisoner has a
constitutionally protected interest in "conditions of reasonable care and
safety [and] reasonably nonrestrictive confinement conditions . . . .
[which] comport




                                    -7-
fully with the purpose of . . . [the] commitment."   Id. at 324.

      The district court concluded that Buckley had asserted a violation of
Eighth and Fourteenth Amendment rights not to be placed in restraints or
segregation absent a doctor's approval.

     Buckley alleges [Loeffelholz] has violated his clearly-
     established right not to be placed in segregation without
     specific approval from a medical doctor. By this, Buckley means
     that it is not enough for a doctor [to] issue a blanket order
     allowing segregation for rules violations, because such an order
     would not constitute the medical judgment required to avoid the
     requirements of the Due Process Clause or the Eighth Amendment.
     Buckley argues a doctor's approval is required each time an
     inmate is placed in segregation.

Slip op. at 7 (footnote omitted). We agree with the district court that
Buckley's allegations are sufficient to state a violation of a
constitutional right.

Was the right "clearly established"?

      Loeffelholz focuses his argument on the second issue, contending that
-- even assuming there is a constitutional right to specific medical
approval of segregation and restraint for prison mental patients -- no such
right was clearly established in the law at the time in question.
Loeffelholz bears the burden of proving that this right was not clearly
established. Burnham, 119 F.3d at 674.

      As we have noted in previous cases, this court has taken a "broad
view" of what constitutes clearly established law for purposes of qualified
immunity. Id. at 677.

           In order to determine whether a right is clearly
     established, it is not necessary that the Supreme Court has
     directly addressed the issue, nor does the precise action or
     omission in question need to have been held




                                    -8-
unlawful. In the absence of binding precedent, a court should look to all
available decisional law, including decisions of state courts, other
circuits and district courts.

Norfleet v. Arkansas Dep’t of Human Services, 989 F.2d 289, 291 (8th Cir.
1993) (internal citations omitted); cf. Anderson v. Romero, 72 F.3d 518, 525
(7th Cir. 1995) (noting district court decisions are evidence of the state
of the law, but by themselves cannot clearly establish the law). We must
look, then, at the state of the decisional law at the time in question to
determine whether a reasonable person in Loeffelholz’s position could have
known that his conduct would violate Buckley's Eighth or Fourteenth
Amendment rights.

      In concluding that the law at the time of Buckley's confinement in
late 1987 and early 1988 clearly precluded his segregation or restraint
without medical approval, the district court relied heavily on Burks v.
Teasdale, 492 F. Supp. 650 (W.D. Mo. 1980) (Burks). Burks was a class
action challenging various aspects of medical treatment received by
prisoners in the Missouri state prison hospital. Among their claims, the
plaintiffs specifically challenged the use of seclusion and restraint for
mental patients without authorization by a physician. The district court
held that the use of seclusion or restraints by custody personnel on a non-
emergency basis violated due process: "Insofar as the use of seclusion
and/or restraints for mentally disturbed inmates can only be used for
medical purposes without running afoul of due process guarantees, this Court
holds that custody personnel are unqualified to make such determinations on
a non-emergency basis." Id. at 679. As the district court correctly noted,
this holding is directly on point and demonstrates that at least by May 1980
there was solid authority within this circuit proscribing the very conduct
challenged by Buckley.6




      6
        A year earlier another district court case from Missouri had addressed the
procedures necessary to protect mental patients when seclusion or physical restraint
was used. The court there concluded that the state hospital had violated mental
patients' due process rights by not implementing its own regulations. Those regulations
required seclusion or restraint orders to be signed by a doctor except in an emergency
and for a doctor to be notified when seclusion or restraint was imposed on an
emergency basis so that the doctor could determine quickly whether the seclusion or
restraint should be continued. Eckerhart v. Hensley, 475 F. Supp. 908, 926 (W.D. Mo.
1979), vacated on other grounds, 716 F.2d 909 (8th Cir. 1983) (table).
                                          -9-
      The district court also pointed to Negron v. Preiser, 382 F. Supp. 535
(S.D.N.Y. 1974) (Negron), as even earlier authority for the constitutional
limits on the use of seclusion and restraint for prisoners being treated
for mental illness. After recognizing due process limits on the use of
seclusion and restraint, the court in Negron concluded that the first step
in protecting patient rights was the keeping of detailed records:

           The Court will require extensive records to be kept of
     every instance in which an isolation cell is used. The purpose
     of such records will be to ensure and document that the decision
     to use the isolation cell is based on explicit criteria, is
     reviewed at the requisite brief intervals, and is, where
     possible, supplemented by other forms of treatment. . . .
     Specifically, the Court requires a daily record, with a detailed
     statement of the examining physician's clinical observations of
     the patient, including the patient's physical condition,
     apparel, overt behavior, and mental status, a statement of the
     physician's reasons for initiating or continuing the seclusion
     procedure, and a statement of his treatment plan.

Id. at 543.    Although the court in Negron did not specifically require
approval by a physician in advance of the use of seclusion or restraint, the
required record keeping provision essentially mandated a physician's
involvement soon thereafter and required a trained medical professional to
decide whether to continue the seclusion in each instance.

      Similarly, in United States v. Michigan, 680 F. Supp. 928 (W.D. Mich.
1987), the court recognized constitutional limitations on the treatment of
mentally ill prisoners and required state prison officials to follow strict
procedures for the use of seclusion or restraint. These detailed procedures
included examination of the inmate by a




                                    -10-
physician or qualified mental health professional within one hour after the
patient was placed in seclusion or restraint, the use of seclusion for no
longer than six hours without another physician seclusion order, and the use
of restraints for no longer than two hours unless a physician again signed
a restraint order.     Again, we agree with the district court that the
decisions in Negron and Michigan provide strong support for Buckley's claim
that clearly established law in late 1987 required that segregation and
restraint decisions should be made by qualified medical professionals.

      Loeffelholz relies on two cases for the proposition that no such right
was clearly established at the time in question. First, Loeffelholz cites
Rogers v. Evans, 792 F.2d 1052 (11th Cir. 1986) (Rogers). In Rogers, the
plaintiffs brought suit alleging inadequate treatment and care after the
apparent suicide of their daughter in a segregation cell. The Eleventh
Circuit agreed with the district court that there was insufficient evidence
of a failure of medical care or of deliberate indifference to serious
medical needs to state a claim against prison supervisory personnel and
dismissed the complaint as to those defendants. Id. at 1058. The court
refused to dismiss as to the consulting psychiatrist, however, concluding
that sufficient facts were alleged to allow that claim to go to trial. Id.
at 1060.

      Rogers tends to support Buckley's contention that a mental patient's
right to have his treatment determined by a doctor was clearly established.
The court in Rogers explicitly stated that "systemic deficiencies can
provide the basis for a finding of deliberate indifference." Id. at 1058.
 The court in Rogers concluded that the plaintiffs had not come forward with
enough evidence to show deliberate indifference by some supervisory
personnel but had presented a triable issue as to the liability of the
consulting psychiatrist.    Here, Buckley has come forward with substantial
evidence of repeated instances where non-medical personnel made decisions
to place him in an isolation cell or restraints and where no approval from
a qualified physician or mental health professional was obtained either
before or shortly after that decision.       We believe this more closely
corresponds to the evidence presented against the consulting




                                    -11-
psychiatrist in Rogers, and thus the district court was correct to refuse
summary judgment in the present case.

      Similarly, Konigsberg v. Ciccone, 285 F. Supp. 585 (W.D. Mo. 1968),
aff'd, 417 F.2d 161 (8th Cir. 1969), cert. denied, 397 U.S. 963 (1970), also
cited by Loeffelholz, does not support his contentions. In that habeas
corpus case the prisoner alleged various constitutional deficiencies in his
treatment at a federal prison medical center.        Among the claims, the
prisoner alleged that he had been held for several hours without clothes in
a strip cell. However, the facts in that case showed that efforts were made
immediately to notify his physician. The physician happened to be away from
the facility for lunch but returned to examine the prisoner within several
hours of his confinement in the strip cell. In finding that there was no
Eighth Amendment violation on these facts, the court emphasized that this
was a single isolated incident, that the delay in a physician examining the
prisoner was due merely to happenstance, and that the incident was unlikely
to reoccur given the facility's strict policy requiring approval by a
medical official of use of the strip cell. On the other hand, Buckley here
contends that during his stay in the hospital he was routinely placed in
restraints or stripped and put in the segregation cell and the district
court found that this was done without the close supervision of a trained
medical staff member.

      We believe that the district court correctly concluded that case law
clearly established at the time in question that the decision to use
segregation or restraints had to be made under close medical supervision.

Would a reasonable official have been aware that the alleged action violated
the right?

      In Harlow, the Supreme Court stated that if "the law was clearly
established, the immunity defense ordinarily should fail, since a reasonably
competent public official should know the law governing his conduct." 457
U.S. at 818-19. The Court went on




                                    -12-
to say, however, that the official might still be entitled to immunity if
he could prove that he neither knew, nor should have known, of the legal
standard. Id. at 819. Thus, the third prong of our inquiry focuses on
whether there are any unusual facts which show that this particular official
should not be held liable even for a violation of clearly established law.
Burnham, 119 F.3d at 673-74.

      In the district court and in his brief on appeal, Loeffelholz focused
on the first two prongs of the Burnham test: that no constitutional right
existed and that even if it did it was not clearly established in late 1987.
Loeffelholz did not address and presented no evidence on the third prong of
the Burnham test which asks whether a reasonable official would have been
aware that his alleged conduct violated the constitutional right. For this
reason, the record reveals no special circumstances which should relieve
Loeffelholz of responsibility for following clearly established law.

CONCLUSION

      In sum, we agree with the district court that Loeffelholz was not
entitled to summary judgment based on qualified immunity on Buckley’s due
process and Eighth Amendment claims.

      For the reasons stated herein, the order of the district court is
affirmed.

     A true copy.

             Attest:

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




                                    -13-
