                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 16-4351
                          ___________________________

                                  Dwayne Andrews

                                 Plaintiff - Appellant

                                           v.

   Keith Schafer; Felix T. Vincenz; Mark Stringer; Laurent D. Javois; Sylvia P.
                       Adams; H. A. Mannich; Roy Wilson

                               Defendants - Appellees
                                  ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                             Submitted: January 11, 2018
                                Filed: April 30, 2018
                                   ____________

Before COLLOTON, BENTON, and ERICKSON, Circuit Judges.
                          ____________

ERICKSON, Circuit Judge.

      In 2003, Dwayne Andrews experienced a PTSD-related psychotic break.
During the episode, he fired shots in the direction of two police officers. In 2005, the
prosecution and Andrews entered into a Stipulation of Defense, which the court
accepted, that Andrews was Not Guilty by Reason of Insanity under Section 552.030
of the Missouri Revised Statutes. As a result of the statutory scheme, Andrews was
committed to the custody of the Missouri Department of Mental Health for treatment.

       In 2014, Andrews brought a 42 U.S.C. § 1983 action against numerous current
and former employees of the Missouri Department of Mental Health1 alleging he had
been deprived of his substantive due process right to liberty during his in-patient
commitment as well as during his period of conditional release. The defendants
moved for summary judgment. The district court2 granted summary judgment in
favor of the defendants on the basis of qualified immunity. Andrews appeals, and we
affirm.

I.    BACKGROUND

      We recount the facts in the light most favorable to Andrews. On August 9,
2003, Andrews experienced a PTSD episode complete with hallucinations. Believing
he was under attack by hidden assailants, Andrews fired a rifle in the direction of two
police officers. Fortunately the shots were errant and no one was injured. Andrews
was subdued, arrested, and charged with armed criminal action and two counts of
assault in the first degree.

      1
       Defendant Keith Schafer is the former Director of the Department of Mental
Health. Defendant Mark Stringer is the current Director of the Department of Mental
Health. Defendant Felix Vincenz is the Chief Operating Officer at the St. Louis
Psychiatric and Rehabilitation Center. Defendant Roy Wilson is the Medical Director
at St. Louis Psychiatric and Rehabilitation Center and the Missouri Psychiatric
Center. Defendant Laurent Javois is the Regional Executive Officer for the
Southeastern Region of Missouri for the Department of Mental Health. Defendant
H.A. Mannich is a former employee of the Missouri Department of Mental Health.
Defendant Sylvia Adams is a former employee of the Missouri Department of Mental
Health.
      2
       The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.

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      Andrews was evaluated by Dr. Michael Armour, a licensed psychologist who
found him competent to proceed. Even so, Dr. Armour also concluded that Andrews
was not criminally responsible for his behavior as a result of his PTSD episode.
Andrews, his attorney, and the prosecutor stipulated that Andrews’s defense of Not
Guilty by Reason of Insanity under Section 552.030 of the Missouri Revised Statutes
was valid. The Circuit Court of St. Louis accepted the stipulation, found Andrews
Not Guilty by Reason of Insanity, and committed Andrews to the custody of the
Department of Mental Health for treatment.3

      Between October of 2005 and January of 2006, Andrews filed three motions
for conditional release, claiming he was no longer mentally ill or dangerous. The
Department of Mental Health did not support his motions, and Andrews’s motions to
vacate his commitment were denied.

       In September of 2010, Andrews underwent a Conditional Release Evaluation
by Dr. Jeffrey Kline, who found that Andrews was not likely to be dangerous to
others on conditional release or to commit another violent crime due to his mental
illness. While Andrews’s diagnosis remained in effect due to the nature of PTSD, Dr.
Kline stated Andrews’s symptoms were in “full remission” and had been for several
years.

      Andrews and the Department of Mental Health filed cross-applications for
conditional release that came on for hearing in December of 2010. The hearing
marked the first time the Department of Mental Health supported Andrews’s claim
for conditional release. It was, however, opposed by the prosecution, and the circuit
court denied the applications for conditional release.

      3
       Andrews was initially placed at the Biggs Center, a secure facility. On
October 4, 2005, Andrews was moved to the Guhleman Forensic Center at Fulton
State Hospital, a less restrictive facility. In September of 2007, Andrews was
transferred to the St. Louis Psychiatric and Rehabilitation Center.

                                         -3-
       In June of 2012, the circuit court once again considered Andrews’s application
for conditional release, this time ordering a conditional release “without discharge.”
The release without discharge required Andrews to continue residing at the treatment
facility. In September of 2012, the circuit court amended the conditional release
without discharge to a conditional release with discharge for a period of one year. In
September of 2013, Laurent Javois, in his official capacity, moved to amend and
extend Andrews’s conditional release for an additional year. That motion was
granted on October 8, 2013, with a proposed termination date of October 5, 2014.
Andrews filed this suit on October 11, 2013.

II.   DISCUSSION

       We review the district court's grant of summary judgment de novo, viewing the
evidence in a light most favorable to the nonmoving party. Mackey v. Johnson, 868
F.3d 726, 729 (8th Cir. 2017). “Qualified immunity protects a government official
from liability in a section 1983 action unless the official's conduct violated a clearly
established constitutional or statutory right of which a reasonable person would have
known.” Henderson v. Munn, 439 F.3d 497, 501 (8th Cir. 2006). To prevail in the
face of a claim of qualified immunity, the plaintiff must show: (1) facts which
demonstrate, when viewed in a light most favorable to the plaintiff, “the deprivation
of a constitutional or statutory right; and (2) the right was clearly established at the
time of the deprivation.” Howard v. Kansas City Police Dep’t, 570 F.3d 984, 988
(8th Cir. 2009).

      Andrews’s claim is simple: an individual who is committed after acquittal by
reason of insanity is entitled to unconditional release if he is either: 1) no longer
dangerous, or 2) no longer mentally ill. See Foucha v. Louisiana, 504 U.S. 71, 77
(1992) (explaining that the Due Process Clause allows a committed acquittee to be
held “as long as he is both mentally ill and dangerous, but no longer”); Revels v.
Sanders, 519 F.3d 734, 742-43 (8th Cir. 2008) (holding that a committed acquittee

                                          -4-
is entitled to an unconditional release if the acquittee is not presently dangerous or not
presently mentally ill). Andrews argues his evaluations showed he was no longer
dangerous and/or no longer mentally ill, and that defendants violated his substantive
due process right to liberty when they continued to restrain him and did not support
his requests for unconditional release.

       Andrews correctly asserts that a committed acquittee is entitled to release once
he is no longer dangerous or no longer mentally ill. The issue is that Andrews does
not challenge an order restraining his liberty but seeks to hold current and former
employees of the Missouri Department of Mental Health liable under § 1983 for
depriving him of his substantive due process rights. For Andrews to prevail he must
demonstrate both “that the [state defendants’] conduct was conscience-shocking, and
that the [state defendants] violated one or more fundamental rights that are deeply
rooted in this Nation’s history and tradition, and implicit in the concept of ordered
liberty, such that neither liberty nor justice would exist if they were sacrificed.”
Karsjens v. Piper, 845 F.3d 394, 408 (8th Cir. 2017) (quoting Moran v. Clarke, 296
F.3d 638, 651 (8th Cir. 2002) (en banc) (Bye, J., concurring)). To shock the
conscience the defendants’ conduct must be “so severe . . . so disproportionate to the
need presented, and . . . so inspired by malice or sadism rather than a merely careless
or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official
power literally shocking to the conscience.” Id. (citing Moran, 296 F.3d at 647).

      The evidence viewed in the light most favorable to Andrews does not show the
defendants’ actions “shocked the conscience.” Andrews gives no reason to believe
any medical opinion was offered in bad faith. The evidence does not suggest any
defendant’s representations to the circuit court were “inspired by malice” or otherwise
untruthful.

      Ultimately the decision to grant a release lay with the circuit court. The court
repeatedly declined to grant release—even when release was supported by the named

                                           -5-
defendants. Whether Andrews was entitled to relief or not, the defendants’ actions
in the course of Andrews’s detention and related judicial proceedings do not shock
the conscience. The defendants are entitled to qualified immunity.4

III.   CONCLUSION

       For these reasons, the judgment of the district court is affirmed.
                       ______________________________




       4
        Andrews also claimed the state defendants should be held liable for their
failure to intervene. We have held there is no clearly established law regarding a duty
to intervene outside of the excessive force context. Hess v. Ables, 714 F.3d 1048,
1052 (8th Cir. 2013). Andrews does not bring an excessive force claim. Granting
qualified immunity was appropriate.

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