                United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 12-2577
                      ___________________________

                              John Maxwell Montin

                      lllllllllllllllllllll Plaintiff - Appellant

                                          v.

                                    Bill Gibson

                     lllllllllllllllllllll Defendant - Appellee

   The Estate of Dale Johnson; Bill Zinn; Jessie Rassmensen; Barbra Ramsey;
                               Christine Peterson

                           lllllllllllllllllllll Defendants
                                   ____________

                   Appeal from United States District Court
                    for the District of Nebraska - Lincoln
                                ____________

                            Submitted: May 15, 2013
                              Filed: June 28, 2013
                                ____________

Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
                              ____________


MELLOY, Circuit Judge.
    Plaintiff John Maxwell Montin appeals the district court's1 adverse grant of
summary judgment on his civil-rights complaint. We affirm.

I.     Background

       Montin is an involuntarily committed mental patient housed in the secure
forensics unit of the Lincoln Regional Center in Lincoln, Nebraska ("Center"). He
was confined to the Center in 1994 after a jury found him not guilty by reason of
insanity following a trial on charges of false imprisonment and use of a firearm to
commit a felony. In 2007, he sued various officials alleging that a facility-wide
change in policy deprived him of a previously held ability to walk unsupervised
around an unsecured area of the grounds at the Center. He alleged this deprivation
amounted to a violation of his due process and equal protection rights under the U.S.
and Nebraska Constitutions. The district court dismissed the complaint as untimely.

        In a prior opinion, we discussed details of the facility's policies, changes to the
policies, and Montin's history at the facility. See Montin v. Estate of Johnson, 636
F.3d 409, 410–12 (8th Cir. 2011) ("Montin I"). We remanded for the district court
to address certain factual questions and previously unaddressed legal questions
surrounding statute-of-limitations and equitable-tolling issues. We expressed no
opinion as to the substantive merits of the dispute. We indicated that the precise
contours of Montin's claims were not clear, and we stated that "nothing in this
opinion should be interpreted as prohibiting the court from entertaining substantive
arguments or dispositive motions as to the ultimate merits of the underlying claims."
Id. at 416.




      1
       The Honorable Cheryl R. Zwart, United States Magistrate Judge for the
District of Nebraska, presiding by the consent of the parties pursuant to 28 U.S.C.
§ 636(c).

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       On remand, the defendants abandoned their statute-of-limitations arguments
and the parties filed cross-motions for summary judgment on the merits. In doing so,
Montin fleshed out his allegations of constitutional violations. He did not argue that
he was prevented from walking outdoors, merely that he was prevented from walking
in the unsecured area without supervision. The district court interpreted Montin's
arguments surrounding this purported deprivation as presenting two separate
substantive due process claims.2 First, Montin argued that the facility's change in
policy infringed his liberty interest in avoiding unnecessary bodily restraint. Second,
he argued that he possessed a constitutionally protected liberty interest created by a
state statute requiring his commitment to the least restrictive available setting with
medically appropriate mental-health treatment. According to Montin, the facility
policy precluding unsupervised walks served to unconstitutionally limit the possible
treatment recommendations of mental-health professionals and resulted in overly
restrictive confinement without medically appropriate mental-health treatment.

        The district court interpreted Montin's rights under the U.S. and Nebraska
Constitutions to be co-extensive as to the issues presented. The court concluded that
the refusal to permit unsupervised walks on the unsecured grounds of the facility did
not amount to bodily restraint and was not the deprivation of a protected liberty
interest. The court held in the alternative that, even if Montin had articulated a
protected liberty interest in this regard, the Center's general change in policy did not
rise to the level of a substantive due process violation. The court also concluded that,
even if there were a violation of a state-law requirement for the least restrictive



      2
       Montin purported to also assert a procedural due process claim, but the district
court viewed his claim as indistinguishable from an equal protection claim that he
abandoned. On appeal, based upon the captions used in his brief, he appears to again
attempt to raise a procedural due process claim. His arguments regarding such a
claim, however, are not materially distinct from his substantive due process claim,
and he does not articulate clearly what process he has been denied.

                                          -3-
setting and appropriate mental-health treatment, no such state-law violation shocked
the conscience as required to establish a substantive due process violation.

II.   Discussion

     We review a grant of summary judgment de novo. Owners Ins. Co. v.
European Auto Works, Inc., 695 F.3d 814, 818 (8th Cir. 2012).

      A.     Bodily Restraint

       The Supreme Court has recognized that involuntarily civilly committed persons
hold a protected liberty interest to be free from unnecessary bodily restraint.
Youngberg v. Romeo, 457 U.S. 307, 320–22 (1982). Neither our court nor the
Supreme Court have held that a refusal to permit an involuntarily civilly committed
person to walk unsupervised in an unsecured area rises to the level of a "bodily
restraint." There is a stark difference between actual physical restraints we have
addressed in prior opinions and the interest Montin asserts in this case. See,
e.g., Beaulieu v. Ludeman, 690 F.3d 1017, 1031 (8th Cir. 2012) (use of "a black box,
a wrist chain, and leg irons" for "travel outside of the secure perimeter"); Strutton v.
Meade, 668 F.3d 549, 553 (8th Cir. 2012) (use of a "restriction table"); Heidemann
v. Rother, 84 F.3d 1021, 1025 (8th Cir. 1996) (tightly binding with a blanket the body
of a non-verbal, physically and mentally disabled nine-year-old girl who suffered
from epilepsy).

       At some point along the spectrum of restrictions that might potentially be
characterized as bodily restraints, the asserted restraint becomes merely an incident
of the fact of commitment. We stress again that Montin does not actually complain
about a denial of access to unsecured portions of the Center's grounds or an inability
to walk outdoors. He complains only about a denial of unsupervised access to the



                                          -4-
unsecured grounds. We believe that Montin simply has failed to articulate a bodily
restraint.

        Even if Montin's allegations did suggest a bodily restraint pursuant to
Youngberg, however, his claim would fail. The test for assessing the constitutionality
of such a restraint is a "professional judgment" test. Youngberg, 457 U.S. at 321.
Pursuant to this test, great deference is owed to the professional judgment of a
qualified professional charged with balancing the plaintiff's freedom from bodily
restraint against the safety of the public, the plaintiff, and other patients. Id. ("It is not
appropriate for the courts to specify which of several professionally acceptable
choices should have been made.") (internal quotation marks omitted). Where, as
here, it is difficult even to characterize the claimed restriction as a bodily restraint, the
balancing test of the professional-judgment standard necessarily leads to failure of the
patient's claims.

       B.     "Conscience-Shocking" Standard

      When Youngberg does not apply, the "professional-judgment" standard does
not apply. Strutton, 668 F.3d at 557. In such a situation, a plaintiff may maintain a
substantive due process claim only if the contested state action is "so egregious or
outrageous that it is conscience-shocking." Burton v. Richmond, 370 F.3d 723, 729
(8th Cir. 2004). Nothing about the policy at issue in Montin's case approaches this
standard.

       Finally, it is well settled that the liberty interest at the heart of a due process
claim may be a right created by state law, as is the case with Montin's second claim.
See Ky. Dept. of Corr. v. Thompson, 490 U.S. 454, 460 (1989) ( "Protected liberty
interests may arise from . . . the laws of the States.") (citation and internal quotation
marks omitted). We employ the same "conscience-shocking" standard for such
claims because "[w]e remain cautious not to turn every alleged state law violation

                                             -5-
into a constitutional claim." Strutton, 668 F.3d at 557. Here, even assuming Montin
has articulated a liberty interest created by state law relating to his actual confinement
and treatment, or relating to limitations upon medical professionals' treatment
recommendations in light of security policies, nothing about the Center's actions is
"egregious," "outrageous," or "conscience-shocking." We refuse to dilute these
concepts based upon the present allegations.

      We affirm the well-reasoned judgment of the district court.
                     ______________________________




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