Davis v. Holly

NATHANIEL R. JONES, Circuit Judge,

dissenting.

Because I believe that the doctrine of qualified immunity does not insulate these defendants from suit on the charges alleged in Counts One and Two of plaintiff’s amended complaint, I respectfully dissent.

The first two counts of plaintiff's complaint basically allege that defendants were grossly negligent and reckless in their administration and supervision of the Center, and as a result allowed plaintiff to be exposed to an undue risk of sexual assault and to repeated incidents of life-threatening self-abuse. Regardless of whether she can succeed at trial, plaintiff’s allegations squarely implicate her constitutional liberty interest in personal safety and security. In my mind, this interest was “clearly established” well before 1979 when the events at issue in this case occurred, and accordingly qualified immunity was improperly granted.

In order for a constitutional right to be “clearly established” and thus provide a basis for damages liability under Section 1983, the “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates the right.” Anderson v. Creighton, — U.S. -, 107 S.Ct. 3034, 3039 , 97 L.Ed.2d 523 (1987). The Anderson Court made clear that this does not mean that “the very action in question” must have previously been held unlawful in order for a Section 1983 action to avoid a premature death at the hands of the qualified immunity doctrine. Rather, the right will be considered clearly established, and the law suit will be allowed to proceed, upon the lesser showing that the unlawfulness of the official action was apparent in light of pre-ex-isting law. Id.

Applying this standard, I believe that the law requiring protection of the personal security of patients in mental institutions was clearly established in 1979. The Supreme Court set out the contours of this right to personal security in Ingraham v. Wright, 430 U.S. 651, 673 , 97 S.Ct. 1401, 1413 , 51 L.Ed.2d 711 (1977) and Hutto v. Finney, 437 U.S. 678 , 98 S.Ct. 2565 , 57 L.Ed.2d 522 (1978), cases decided prior to *1183 the events at issue here. And in Youngberg v. Romeo, 457 U.S. 307 , 102 S.Ct. 2452 , 73 L.Ed.2d 28 (1982), while recognizing for the first time the obligation of the state to provide a minimum level of specialized training for patients in mental institutions, the Court reaffirmed the existence of a well-established due process right to be confined in safe conditions. Id. at 315-16 , 102 S.Ct. at 2457-58 .

Indeed, in a recent case, a panel of the Tenth Circuit held, contrary to the majority’s decision in the instant case, that a mental patient’s right to personal security was clearly established prior to the Supreme Court’s Youngberg decision. See Garrett v. Rader, 831 F.2d 202, 203-04 (10th Cir.1987). In Garrett , a Section 1983 action was brought against administrators of a state institution for retarded children by the mother of a retarded child. The child had died at the school in 1980 while being unreasonably restrained by employees. Plaintiff alleged that the defendant-administrators were liable under Section 1983 for failing to “adequately monitor, supervise, hire, and train, direct-care personnel at the school.” Id. at 203 . The unanimous court in Garrett rejected defendants’ pretrial motion for summary judgment on the basis of qualified immunity. The court noted that Youngberg had “explicitly recognized the due process rights of parties in state institutions which were entitled to protection long before ... 1980,” including the right to be confined in safe conditions. Id. Then, applying the standard set out in Anderson, supra, the court concluded that “at least by the time of the death of [plaintiff’s decedent], the law requiring protection of the personal security of inmates and patients in state institutions was clearly established.”

I agree with the reasoning of the Tenth Circuit and would deny qualified immunity in this case. Reasonable officials in the positions of these defendants should have known in 1979 that it was unlawful to conduct their duties in so grossly negligent and reckless a manner that the personal safety of a patient was inevitably jeopardized. In my view the unlawfulness was just as apparent with respect to grossly negligent behavior resulting in a rape as it was with such behavior enabling a severely mentally ill patient to commit repeated acts of life-threatening self-abuse.

I also take issue with the majority’s conclusion that the first count of plaintiff’s complaint cannot be the basis for Section 1983 relief because it alleges nothing more than an “isolated incident” of negligence. In my view there is plenty of evidence to suggest that the defendants were grossly negligent and reckless —not just negligent —in their administration and supervision. Specifically, the evidence suggests that Mr. Holly, the alleged rapist, was hired by defendants despite the recommendation of an experienced staff member that he was not acceptable for employment at the Center. The evidence also suggests that defendants were unable or unwilling to ensure that the employees under their supervision complied with the rules and regulations of the Center. For instance, maximum security patients, like this plaintiff, were routinely taken off of the hospital’s premises without their doctor’s permission. And there is abundant evidence to suggest that the staff felt free to ignore the announced procedures with regard to van use authorization. Moreover, the evidence presented concerning the procedures and conduct of the patient abuse committee at least raises an issue of whether that committee’s inattention to charges of abuse rose to the level of gross negligence or recklessness.

In short, I believe plaintiff’s allegations in Count One, and the evidence presented so far, raises a jury question as to whether defendants’ conduct was grossly negligent or reckless, and whether such conduct proximately resulted in the sexual abuse of the plaintiff in violation of her clearly established constitutional right to be confined in safe conditions. Accordingly, I do not believe summary judgment was appropriate.

For all of the foregoing reasons, I would affirm the judgment of the district court.