Hills v. Comwlth of KY

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0288p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

ANTHONY LEE HILLS,

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No. 05-6298

v.

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COMMONWEALTH OF KENTUCKY et al. -

Defendants, -

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Defendant-Appellant. -

NASIRUDDIN SIDDIQUI, M.D.,

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Appeal from the United States District Court

for the Western District of Kentucky at Bowling Green.

No. 04-00069—Thomas B. Russell, District Judge.

Submitted: July 21, 2006

Decided and Filed: August 9, 2006

Before: GILMAN and COOK, Circuit Judges; DOWD, District Judge.*

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COUNSEL

ON BRIEF: Ronald W. Crawford, OFFICE OF THE GENERAL COUNSEL, Frankfort, Kentucky,

for Appellant. Anthony Lee Hills, Bowling Green, Kentucky, pro se.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. After Anthony Lee Hills was arrested and charged

with burglary, a Kentucky court ordered him transferred to the Kentucky Correctional Psychiatric

Center (KCPC) for observation, assessment, and treatment because of questions regarding his

competency to stand trial and his mental state at the time of the alleged crime. During the course

of his treatment, Hills was forcibly administered an antipsychotic drug as authorized by the state

court. The charges against him were ultimately dropped.

*

The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by

designation.

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Hills subsequently sued the KCPC and several of its mental-health professionals, including

Dr. Nasiruddin Siddiqui, alleging various constitutional violations arising out of his being forcibly

medicated. Dr. Siddiqui filed a motion for summary judgment on the basis of qualified immunity.

After the district court denied the motion, Dr. Siddiqui filed this interlocutory appeal. For the

reasons set forth below, we REVERSE the judgment of the district court and REMAND the case

for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

In April of 2003, Hills was arrested and charged with first-degree burglary under Kentucky

law. Approximately one week after his arrest, a state trial court ordered that Hills undergo a

psychiatric examination at the KCPC to determine (1) whether he was competent to stand trial

pursuant to the standard set forth in Ky. Rev. Stat. § 504.060(4), and (2) whether he met the

definition of “insanity” set forth in Ky. Rev. Stat. § 504.060(5).

Hills was examined at the KCPC by Dr. Robert B. Sivley, Jr., who authored a seven-page

psychological evaluation in May of 2003. The report concluded that Hills suffered from the

delusion that God revealed to him in a dream that the burglary victim was his soulmate and that her

child was his biological son, but that further inpatient assessment was necessary “to confirm the

degree to which he suffers from a circumscribed delusion relating to the alleged victim and her son

or has any other psychotic-type symptoms.” Dr. Sivley reiterated this conclusion at the end of his

report: “[I]t will be necessary to observe him on a more intensive and longer-term basis, in order to

assess whether he has other psychotic symptoms which would be relevant to the criminal

responsibility issue.” As for the question of his competency to stand trial, Dr. Sivley determined

that Hills had “a good understanding of basic legal procedures, terminology, and his own situation,”

but noted in passing that Hills’s delusions “may impede his ability to participate rationally in his

own defense, especially if he is unwilling to accept empirical evidence that the child in question is

not his son (e.g., paternity testing) and chooses instead to believe his view of God’s revealing that

the child is actually his.”

Presumably based on Dr. Sivley’s recommendation, the state trial court issued a second order

on June 10, 2003. This order stated that the case had “c[ome] on for hearing” (this is the only

indication in the record that a hearing actually took place) and that “there is reason to believe that

[Hills] is not mentally capable of understanding the charges against him or aiding his counsel in the

trial of said case, but there is a substantial probability that the defendant will attain competency in

the foreseeable future.” Invoking Ky. Rev. Stat. § 504.110 (a provision dealing with commitment

for treatment of defendants incompetent to stand trial but with a substantial probability of becoming

competent), and Ky. Rev. Stat. § 504.070 (the code section providing for the mental examination

of defendants wishing to introduce evidence of their insanity at the time of the offense), the order

went on to state:

IT IS HEREBY ORDERED pursuant to KRS 504.110 that Anthony Lee Hills be

taken to Kentucky Correctional Psychiatric Center (KCPC) for treatment and

examination, including forced medication and any restraint which may be necessary

to effect such treatment, and to determine whether the patient meets criteria for

criminal responsibility (504.070).

Ten days later Hills was sent back to the KCPC for further examination and treatment. He

remained a patient at the KCPC from late June through late September of 2003. Throughout this

period, Hills was interviewed and evaluated by several individuals, including Dr. Timothy Allen (a

No. 05-6298 Hills v. Commonwealth of Kentucky et al. Page 3

KCPC psychiatrist) and Steven Simon, Ph.D. (a KCPC psychologist), both of whom were originally

defendants in this action, but who have previously been dismissed.

The administration of forced medication that forms the basis of this suit occurred in August

and September of 2003. By August 13, 2003, Hills had been at the KCPC for approximately seven

weeks. The staff had concluded that Hills could benefit from a regimen of antipsychotic medication,

but Hills persistently refused the recommended treatment. Such continuous refusals finally

prompted Dr. Simon to have a telephone conversation with Rebecca Gibson, the court-appointed

public defender assigned to represent Hills. The following day, August 14, 2003, Dr. Simon sent

a two-page letter to Gibson reflecting the substance of their conversation. In the letter, Dr. Simon

stated that the KCPC staff had concluded that the administration of antipsychotic medication could

benefit Hills, but several weeks would be needed for the medication to take effect. Gibson,

according to the letter, “related that [she] agreed with this and would relay this on to the court.”

The next day, Hills’s treating psychiatrist, Dr. Siddiqui, prescribed a course of 5 mg of

Zyprexa, an antipsychotic drug, to be administered at bedtime. Over a two-week period, no

therapeutic benefit was achieved from the drug, but Hills became increasingly angry. The dosage

was then increased to 10 mg, but this increase did not produce a corresponding change in behavior.

Finally the trial of Zyprexa was discontinued on September 10, 2003. Hills was transferred back

to the county jail two weeks later. According to Hills, the burglary charge against him was

eventually dismissed. He stated that “after eight months in jail on a case with no witness or no

evidence I was released.”

B. Procedural background

Hills filed a pro se complaint, handwriting relevant information on a form typically used by

pro se prisoners bringing civil rights complaints. Attached to this form was a three-page typed letter

in which Hills described his experiences while incarcerated and undergoing evaluation and treatment

at KCPC. Demanding $3,000,000 in damages, he alleged violations of his First Amendment right

to the free exercise of religion, his Sixth Amendment right to a speedy trial, and his Fourteenth

Amendment right to the due process of law. Several defendants were named in the complaint,

including the county jail, the sheriff’s department, Hills’s public defender, the KCPC, and Drs.

Allen, Siddiqui, and Simon.

The defendants filed answers that included several affirmative defenses to Hills’s complaint.

Citing 28 U.S.C. § 1915(e) and McGore v. Wrigglesworth, 114 F.3d 601, 603 (6th Cir. 1997), the

district court screened the complaint and dismissed all of the claims except those alleging Fourteenth

Amendment violations against Drs. Allen, Siddiqui, and Simon in their individual capacities on the

basis of the forced medication of Hills. The three doctors then filed a motion for summary

judgment, to which Hills did not respond.

Dr. Siddiqui was the psychiatrist who actually prescribed the course of Zyprexa and

increased its dosage. The district court concluded that Dr. Siddiqui was not entitled to qualified

immunity because, despite the existence of the June 10, 2003 court order and the consent of Hills’s

attorney on August 13, 2003, it was “unreasonable to believe that his actions were lawful.” Two

reasons were given in support of this conclusion: (1) according to the court, the KCPC did not rely

on the June 10 court order, allegedly evidenced by the fact that Dr. Simon felt it necessary to contact

Gibson to ask whether Hills could be medicated against his will, and (2) Dr. Siddiqui could not have

believed that his actions were lawful in light of the existence of a Kentucky statute setting forth

detailed procedures that must be followed before forcibly medicating a patient.

No. 05-6298 Hills v. Commonwealth of Kentucky et al. Page 4

On the other hand, the district court dismissed Drs. Allen and Simon from the action, to

which Hills did not file a cross-appeal. Dr. Siddiqui then filed an interlocutory appeal from the

denial of qualified immunity. Hills, still proceeding pro se, filed a brief in response, which consisted

of a four-page letter.

II. ANALYSIS

A. First Amendment claim

In Hills’s letter brief, he argues that the district court improperly dismissed his First

Amendment claim. The claim was based on the allegation that he was forcibly medicated because

of his religious convictions rather than for any violent tendencies or other reason. After Hills filed

his complaint, this claim was screened and dismissed by the district court as having no factual

support. The district court did not certify the matter for interlocutory appeal, and Hills failed to seek

permission from this court to hear the matter on an interlocutory basis. For that reason, we decline

to review the claim at this stage of the proceedings. See 28 U.S.C. § 1292(b) (setting forth the

procedure for interlocutory appeals).

B. Fourteenth Amendment claim

1. The law of qualified immunity

In determining whether a government employee is shielded from civil liability due to

qualified immunity, this court typically employs a two-step analysis: “(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)). In addition to the two

steps listed above, this court occasionally considers a third step in the qualified immunity analysis.

See id. at 310 n.2 (“Panels of this court occasionally employ a three-step qualified immunity

analysis, as opposed to the two-step analysis set forth here. . . . [B]oth the two-step approach and

the three-step approach can be said to capture the holding of [Saucier].”) (citations omitted). When

utilized, this third step requires inquiry into “whether the plaintiff offered sufficient evidence to

indicate that what the official allegedly did was objectively unreasonable in light of the clearly

established constitutional rights.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir.

2004) (citation and quotation marks omitted).

The Supreme Court since Saucier has continued to analyze qualified immunity using the

two-step approach, but this court has noted that “the three-step approach may in some cases increase

the clarity of the proper analysis.” See Estate of Carter, 408 F.3d at 310 n.2. If, on the other hand,

the case at issue “is one of the many cases where, if the right is clearly established, the conduct at

issue would also be objectively unreasonable,” then this court has “collapse[d] the second and third

prongs” in an effort to “avoid duplicative analysis.” Caudill v. Hollan, 431 F.3d 900, 911 n.10 (6th

Cir. 2005).

Throughout the analysis, the burden is on Hills to show that Dr. Siddiqui is not entitled to

qualified immunity. See Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006) (“Once the

qualified immunity defense is raised, the burden is on the plaintiff to demonstrate that the officials

are not entitled to qualified immunity.”).

2. Jurisdiction to hear this interlocutory appeal from the denial of qualified

immunity

Although a district court’s denial of qualified immunity on purely legal grounds is

immediately appealable, “[a] denial of qualified immunity that turns on evidentiary issues is not.”

No. 05-6298 Hills v. Commonwealth of Kentucky et al. Page 5

Turner v. Scott, 119 F.3d 425, 427 (6th Cir. 1997). “[A] defendant, entitled to invoke a qualified

immunity defense, may not appeal a district court’s summary judgment order insofar as that order

determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson

v. Jones, 515 U.S. 304, 319-20 (1995). This is because interlocutory appeals are limited to questions

that present “neat abstract issues of law.” Turner, 119 F.3d at 428 (citations and quotation marks

omitted).

The district court’s denial of qualified immunity in this case was based on the conclusion that

“[u]nder the clearly established Kentucky law setting forth Mr. Hills’s due process rights governing

administration of medication by force, it is unreasonable for Dr. Siddiqui to believe that his actions

were lawful.” There is no dispute about the underlying facts, but rather a question of whether, in

light of those undisputed facts, Hills has demonstrated that Dr. Siddiqui violated a clearly

established constitutional right possessed by Hills. This is a “neat abstract issue of law” that can

properly be resolved on interlocutory appeal. See Sample v. Bailey, 409 F.3d 689, 695 (holding that

the issue of “whether the facts as alleged by [the plaintiff] demonstrate a violation of a clearly

established constitutional right” presents a “neat abstract issue of law”) (citations and quotation

marks omitted). We therefore have jurisdiction to decide the merits of Dr. Siddiqui’s appeal.

3. Whether the district court erred in denying Dr. Siddiqui qualified immunity

Dr. Siddiqui makes no attempt in his brief to demonstrate how the district court erred in

concluding that Hills was deprived of his constitutional right to due process, and instead focuses on

the reasonableness of Dr. Siddiqui’s actions in light of the June 10, 2003 court order and Dr.

Simon’s subsequent contact with Ms. Gibson. Although the burden is on Hills to prove that Dr.

Siddiqui is not entitled to qualified immunity, Silberstein, 440 F.3d at 311, Dr. Siddiqui, as the

appellant in this action, has waived any issues not contained in his opening brief. See Thaddeus-X

v. Blatter, 175 F.3d 378, 403 n.18 (6th Cir.1999) (en banc) (holding that issues not presented in an

opening brief are waived). Because Dr. Siddiqui is not challenging the district court’s determination

that Hills’s constitutional rights were violated, we will accept the conclusion of the district court and

proceed to the second step of the qualified immunity analysis.

The second step is to ask whether the constitutional right that was violated was “clearly

established.” Estate of Carter, 408 F.3d at 310-11 (citing Saucier, 533 U.S. at 201). Saucier held

that “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Saucier, 533 U.S. at 202; Malley v. Briggs, 475 U.S. 335, 341 (1986) (“As the

qualified immunity defense has evolved, it provides ample protection to all but the plainly

incompetent or those who knowingly violate the law.”).

In this case, prior to Dr. Siddiqui’s prescribing medication to be forcibly administered to

Hills, two critical events took place. The first was the entry of the June 10, 2003 court order that

authorized the transfer of Hills to the KCPC “for treatment and examination, including forced

medication and any restraint which may be necessary to effect such treatment.” Then, after seven

weeks of treatment, the KCPC mental-health professionals concluded that Hills could benefit from

a regimen of antipsychotic medication. This determination prompted Dr. Simon to contact

Ms. Gibson about the prospect of forcibly medicating Hills. Gibson agreed to the administration

of antipsychotic medication, and she said that she would relay this information on to the court.

In light of the existence of a court order allowing the forced medication of Hills, a reasonable

governmental employee in Dr. Siddiqui’s position would not have clearly known that his conduct

was unlawful. The Kentucky statutory scheme requires that certain procedures be followed in order

to forcibly medicate patients, but the result of those procedures is a court order. Ky. Rev. Stat.

§ 202A.196(4). There is no transcript in the record of the hearing culminating in the June 10, 2003

No. 05-6298 Hills v. Commonwealth of Kentucky et al. Page 6

court order, so there is no way to know whether the state trial court made a set of findings that would

comport with the Kentucky statute, or even the minimum requirements of the Due Process Clause.

But even if we assume for the sake of argument that there was no such set of findings, Dr. Siddiqui

would still be entitled to qualified immunity because neither our precedents nor the state statutes

themselves require that the psychiatrist prescribing the medication to be forcibly administered must

personally verify that the prerequisite procedures have been followed prior to the entry of the court

order.

In ruling to the contrary, the district court concluded that the KCPC mental-health

professionals did not rely on the court order, citing the fact that Dr. Simon found it necessary to

contact Ms. Gibson on August 13, 2003 “to ask whether Mr. Hills could be medicated against his

will.” Dr. Simon’s letter to Gibson, however, does not reflect that he asked her permission to

forcibly medicate Hills, but only that she had no objection to the proposed course of action. The

extra care that the KCPC mental-health professionals took by contacting Hills’s counsel before

forcibly medicating him should not vitiate Dr. Siddiqui’s claim to qualified immunity. Rather, the

fact that Gibson expressed her agreement with the forced administration of antipsychotic medication

makes Dr. Siddiqui’s conduct all the more reasonable.

In light of the foregoing, we conclude that Dr. Siddiqui did not violate a constitutional right

of Hills’s that was clearly established. The June 10, 2003 court order and contact with Ms. Gibson

would lead a reasonable person in Dr. Siddiqui’s position to conclude that his conduct was lawful.

As such, the district court erred in denying him qualified immunity.

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the judgment of the district court and

REMAND the case for further proceedings consistent with this opinion.