Petition for Writ of Certiorari — Glover v. Durham

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

~,?

x a: % 4

(\) 961853 Fes 19 1997

No. 96- OcFiCe OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

DONNIE GLOVER and

BECKY AHLERS - - - - - - Petitioners

versus

RUSSELL DURHAM - - - - Respondents

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPELAS

FOR THE SIXTH CIRCUIT

E. D. KLATTE

Assistant Counsel

Office of the General Counsel

Kentucky Cabinet for Health Services

275 East Main Street — 4 West

Frankfort, Kentucky 40621

Telephone: (502) 564-7900

Facsimile: (502) 564-7573

Counsel for Petitioners

February 19, 1997

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-P.O. BOX 3251, LOUISVILLE, KY.

QUESTIONS PRESENTED

1. Whether the objective reasonable test for qualified

immunity long articulated by this Court in actions for

money damages under 42 U.S.C. § 1983 is to be abandoned

and replaced by a new, novel test established by the United

States Court of Appeals for the Sixth Circuit in this case

without reference to any precedent of this Court or any

other Circuit, whereby the issue of whether a particular

right was or was not clearly established at the time of a

defendant’s alleged conduct is no longer to be answered in

the affirmative only where relevant preexisting decisions

unmistakably point to the unconstitutionality of the

defendant’s alleged conduct, but may now be answered in

the affirmative, thereby denying the defendant qualified

immunity, based solely on one (1) recently published deci-

sion of first impression of that Court of Appeals, wherein

the facts are so unrelated to those at hand that any anal-

ogy between the situation of the defendant then and that

of the defendant now is so tenuous that existence of the

claimed right is at best merely possible.

2. Whether a period of two (2) months after publica-

tion of a decision of a Court of Appeals is a reasonably

sufficient time in the absence of any relevant decision of

this Court or any other Court of Appeals, for a state men-

tal hospital nurse and security officer to (1) learn of that

decision, which held for the first time in that Circuit that

under the Eighth Amendment and based on his duty to

enforce the law a state correctional officer (prison guard) is

liable for failure to intervene to prevent or stop the physi-

cal assault of a prisoner by other guards, (2) assess what,

if any, application the decision had to their own duties

relating to the care and treatment of state mental hospital

patients, and (3) adjust their conduct accordingly, for pur-

poses of determining whether they are entitled to qualified

immunity from money damages liability in a 42 U.S.C. §

1983 action brought by a state mental hospital patient

alleging he had a right protected under the Due Process

Clause of the Fourteenth Amendment for the nurse and

hospital security officer to intervene to stop his being physi-

cally assaulted by other hospital employees.

LIST OF PARTIES

The parties to the proceedings below consisted of:

a. Russell Durham, Plaintiff-Appellant;

b. Donnie Glover, Defendant-Appellee;

George Nichols, Defendant-Appellee;

Becky Ahlers, Defendant-Appellee;

e. Nasiruddin Siddiqui, Defendant-Appellee; and

Farahieh Rabbani, Defendant-Appellee.

ili

TABLE OF CONTENTS

PAGE

Questions Presented ...........0.0.c.ccccccccsssccessseseeceeeees i

ER I ee ii

TT SETTLE iii

EIR TTO GEIL SORE iv

SIRES CCEA DRS D oT oO 1

I 2

Statutory and Constitutional

PROVINCES TAVONVO ..0....0005006000000000000sce0ecccccesceees 2

Statement of the Case .0..............ccccccscccsssssseseeccceeeee 3

Reasons for Granting the Petition...................... 5-15

Ne ec sonenucepecenecees 15

Appendix:

Opinion of the United States Court of Appeals

for the Sixth Circuit, 97 F.8d 862 (1996)......... la-17a

Order of the United States Court of Appeals

for the Sixth Circuit entered Noven ber 22,

1996, Denying Petition for Rehearing ............. 18a

Findings of Fact and Conclusions of Law

Finalizing Judgments of the United States

District Court for the Western District of

Kentucky entered June 2, 1995 ........cccceceeseees 19a-21a

Order of the United States District Court for

the Western District of Kentucky entered

a a ETERS AD Ls Te 22a

Findings of Fact, Conclusions of Law and

Recommendation of the Magistrate Judge

for the United States District Court for the

Western District of Kentucky dated Decem-

cc 23a-32a

State Mental Hospital Security Officer

I ci os cstilenesenees 33a—36a

TABLE OF AUTHORITIES

PAGE

Cases: =

Anderson v. Creighton, 483 U.S. 635 (1987) .. 11, 12, 18, 14

Behrens v. Pelletier, __ U.S. ___, 116 S.Ct. 834

(RE wiicisiisdbidiccccncittcssalbaa eat pc cletiadeni 14

Bruner v. Dunaway 684 F.2d 422 (6th Cir. 1982) .. 4, 6, 7, 9

Collins v. City of Harber Heights, Tex., 503 U.S.

136 CED vinisbsichcccnintn ch eigen ediconsiianeetcs 9

Harlow v. Fitzgerald, 457 U.S. 800 (1982)....... 11, 13, 14

Lintz v. Skipski, 25 F.3d 304 (6th Cir. 1994), cert.

denied, _ _ U.S. __, 115 S.Ct. 485 (1994)....... 10

Mchenry v. Chadwick,896 F.2d 184

(Seka Che. LID ssacstanichardnreticntsmiicntensions 4,6, 7,9, 10

Siegert v. Gilley, 500 U.S. 226 (1991) ..........sseeeeee 14

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

DONNIE GLOVER and

Dt anne + . k e S S Petitioners

versus

RUSSELL DURHAM - - . . . Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The petitioners, Donnie Glover and Becky Ahlers, re-

spectfully pray that a Writ of Certiorari issue to review the

judgment and opinion of the United States Court of Ap-

peals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 97

F.3d 862 (6th Cir. 1996), and is reprinted in the Appendix

hereto, page la, infra. A copy of the unreported Order of

that Court denying a petition for rehearing en banc and

suggestion for rehearing en banc, is in the Appendix hereto,

page 18a, infra.

Copies of the unreported Orders, Opinion and Judg-

ments of the United States District Court for the Western

District of Kentucky in this case are in the Appendix, pages

19a-32a, infra.

JURISDICTION

The Opinion of the United States Court of Appeals for

the Sixth Circuit was entered on October 9, 1996. (App.,

infra, 1a). The Order denying a petition for rehearing was

entered on November 22, 1996. (App., infra, 18a): The

jurisdiction of this Court to review the Opinion of the Sixth

Circuit is invoked under 28 U.S.C. § 1254(1).

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

1. 42 U.S.C. § 1983: Civil Action for deprivation of

rights.

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State of Terri-

tory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for

redress. For the purposes of this section, any Act of Con-

gress applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of Colum-

bia.

2. Amendment XIV, United States Constitution, Sec-

tion 1: Citizenship; Due Process: Equal Protection.

All persons born or naturalized in the United States

and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No

state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States;

nor shall any state deprive any person of life, liberty, or

property, without due process of law; not deny to any per-

son within its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

Petitioners were employees of a state mental hospital

in August 1990, when an incident occurred involving an

alleged physical assault of the Respondent, then an invol-

untary state mental hospital patient, by two other employ-

ees who attempted to restrain the patient when he tried to

kick one of those employees after the patient refused to

clean up a mess he had made on the floor. Petitioner

Donnie Glover was a hospital security officer and Peti-

tioner Becky Ahlers was a nurse at the time of the inci-

dent.

Respondent brought an action in U.S. District Court

for money damages under 42 U.S.C. § 1982 against the

two state mental hospital employees who allegedly as-

saulted him, as well as against the Petitioners, two doctors

who treated him after the incident, and the hospital ad-

ministrator. The jurisdiction of the District Court was

invoked under 28 U.S.C. §§ 1331 and 1343.

Petitioners were alleged to have violated the patient’s

rights under the Fourteenth Amendment by failing to in-

tervene to protect him when they witnessed his being as-

saulted by the two other employees. The District Court

granted motions for summary judgment for Petitioners,

the doctor and the administrator. However, no action has

been taken by the District Court with regard to the claims

against the two employees who allegedly assaulted the pa-

tient.

As to Petitioners, the District Court found that the

patient’s right to have state mental hospital employees

intervene to protect a patient from physical assault by

other hospital employees was not so clearly established in

August 1990 as to be enforceable in an action against those

non-intervening employees for money damages under §

1983. The patient appealed, and the Court of Appeals

reversed, one Judge concurring in part and dissenting in

part, as to Petitioners. Summary Judgment for the doc-

tors and administrator was affirmed.

On appeal, the majority analyzed the liability of the

non-intervening employees and concluded that neither the

hospital security officer nor the nurse had qualified immu-

nity from suit in the case. The Court of Appeals found

that the position and duties of a hospital security officer

were sufficiently analogous to those of the police officers in

Bruner v. Dunaway, 684 F.2d 422 (6th Cir. 1982), who

were liable under § 1983 even though they had not ac-

tively participated in an arrestee’s assault, as well as to

those of the correctional officers in McHenry v. Chadwick,

896 F.2d 184 (6th Cir. 1990), who were liable under § 1983

for not protecting an inmate from assault by other correc-

tional officers. The Court also found that the precedent of

those cases “was sufficient to place the nurse . . . on notice

that she had a duty to protect . . . [the patient] while in

her charge... .” 97 F.3d at 868.

Petitioners timely filed a petition for rehearing and

suggestion for rehearing en banc. That petition was de-

nied. Petitioners now seek review by this Court of the

Court of Appeals’ decision denying them qualified immu-

nity.

That decision has the effect of eliminating the defense

of qualified immunity for all similarly situated state men-

tal hospital staff and employees in Kentucky, Michigan,

Ohio and Tennessee. It also imposes on those employees a

duty to intervene in any situation where they become aware

a patient may (arguably) be physically harmed by other

employees, in order to prevent or to try to prevent that

harm, or to stop or try to stop further harm to the patient.

That duty is now enforceable under 42 U.S.C. § 1983

by all patients of state mental hospitals. For patients who

are deemed incapacitated (by age or mental incompetency)

under state law, the applicable statute of limitations is

tolled until removal of such incapacity or death for any

cause of action accruing on and after August 1990.

Unless this Court of agrees to review the case or the

matter is settled, both Petitioners face summary judgment

or trial on the merits of their alleged liability for money

damages. Neither Petitioner has insurance to cover such

judgment. There is no authority for their employer at the

time of the alleged incident, the Commonwealth of Ken-

tucky, to pay any judgment that may be awarded against

the Petitioners. Nor is there any authority for the State to

indemnify them for any judgment.

REASONS FOR GRANTING THE PETITION

As the Court of Appeals acknowledged in its decision in

this case, 97 F.3d at 867, there had until that decision not

been any case in the Sixth Circuit holding that a state

mental hospital employee is iiable under § 1983 for failing

to intervene to protect a patient from being physically as-

salted by another hospital employee. Nor does the Court

of Appeals cite in that decision any case of this Court or

any other Circuit so holding. It did not do so because

there is no such case.

Although this is a case of first impression, it should be

reviewed. Petitioners were erroneously denied qualified

immunity, and the Sixth Circuit’s attempt to establish a

new standard for determining that immunity raises an

issue of exceptional importance. Unless the denial of quali-

fied immunity in this case is reviewed, the decision will be

an invitation to the Courts of Appeals in other Circuits to

apply the Sixth Circuit’s new standard in order to create,

ex post facto, rights where none clearly existed before, in

order to provide a money damages remedy to § 1983 plain-

tiffs who will otherwise only receive the satisfaction that

their case establishes a new right that can be enforced by

others in the future.

Such a slippery slope can be avoided only if this Court

grants this Petition. To do otherwise will mean the aban-

donment of ali of the protections this Court has thus far

developed for § 1983 defendants under the qualified immu-

nity doctrine and the subjugation of those defendant to

potentially unlimited liability.

I. The Decision of the Court of Appeals Denying

Petitioners Qualified Immunity is Erroneous

The Court of Appeals erred in holding that the position

and duties of a hospital security officer at a state

mental hospital are analogous to those of a police

officer making an arrest and to those of a corrections

officer under the Eighth Amendment.

The Court of Appeals held that Petitioner Glover's po-

sition as a hospital security officer (“HSO”) was analogous

to the position of the police officers in Bruner v. Dunaway,

684 F.2d 422 (6th Cir. 1982) and the corrections officers in

McHenry v. Chadwick, 896 F.2d 184 (6th Cir. 1990), be-

cause HSOs have a “badge of authority” to keep the peace

in state mental hospitals, 97 F.3d, at 868. In both Bruner,

supra, and McHenry, supra, the defendants’ liability was

based on their status as low enforcement officers. The

Court in Bruner relied on Smith v. Ross, 482 F.2d 33 (6th

Cir. 1973) (per curiam), which had held that “a law en-

forcement officer can be liable under § 1983 when by his

inaction he fails to perform a statutorily imposed duty to

enforce the law equally and fairly”. 97 F.3d, at 867. The

Court in McHenry applied Bruner to the “prison context”,

and held that “a correctional officer who observes an un-

lawful beating may, nevertheless, be held liable under §

1983 without actively participating in the unlawful beat-

ing”. McHenry, supra, 896 F.2d at 188. In McHenry the

Court reasoned that the basis of the prison guards’ liabil-

ity was the duty they owed an inmate of protection from

assaults by other guards, citing Bruner for the proposition

that a police officer has a duty to try to stop another officer

who summarily punishes a person in the first officer's pres-

ence. McHenry, at 188, citing Bruner at 426.

Under Kentucky law, police officers are sworn law en-

forcement officers, while correctional officers (state prison

guards) have all the authority and powers of peace officers,

including the power of arrest, while maintaining custody

over prisoners. However, as a hospital security officer Pe-

titioner Glover was neither a police officer, nor a correc-

tional officer. He had no “badge of authority” because he

had no statutorily imposed duty to enforce the laws equally

and fairly, or for that matter to enforce the laws at all.

Nor did he have the powers or authority of a prison guard.

Indeed, the Respondent was a mental patient, not a pris-

oner in August 1990. Rather, Petitioner Glover was merely

an employee of a state mental hospital in the nursing de-

partment. In holding otherwise, the Court of Appeals ob-

viously chose to ignore Petitioner Glover's job description,

which was of record in the action, A-304-306; R.-137, Ex-

hibit H, and which was specifically pointed out to the Court

as Exhibit 2 to the petition for rehearing. (App., infra,

33a-36a).

As can be seen from that job description, an HSO’s

services are non-professional and non-technical in the di-

rect care of psychiatric patients. He needs only a high

school diploma or GED equivalency; nursing experience in

a psychiatric facility is preferred, but not required. He

works under the supervision of the nursing staff, and su-

pervises no one. He assists the patients in activities of

daily living, assists with patient treatment procedures, and

assists with behavioral problem patients, including restrain-

ing and secluding them. None of those duties fall under

either the Fourth or Eighth Amendment.

Although Petitioner Glover was not a corrections of-

ficer, the evidence of record shows there were corrections

officer (“COs”) at the state mental hospital for security

purposes at the time of the incident in August 1990. How-

ever, the COs did not work on units or have anything to do

with patient care. Instead, there were nurses, patient aides,

and HSOs to work with the patients. The COs were at

security desks, on call to respond to emergencies as they

arose, A CO was called to respond to the incident involv-

ing Respondent in August 1990.

Therefore, for the Court of Appeals to conclude in

this case that the position and duties of an HSO is analo-

gous to that of a police officer in a Fourth Amendment

context as well as to that of a correctional officer in an

Eighth Amendment context is clearly erroneous. Such anal-

ogy has no basis in either law or fact. Likewise erroneous

are the Court of Appeals’ conclusions as to a state hospital

nurse.

The Court of Appeals erred in holding that in involuntary

mental health patient had a right enforceable under

§ 1983 in August 1990 to have a state mental hospital

employee intervene to stop the physical assault of

such patient by another hospital employee, because

at that time there was no decision so holding of this

Court, the Sixth Circuit, any other U.S. Circuit Court

of Appeals or the Supreme Court of Kentucky.

The Court of Appeals concedes, 97 F.3d at 867, that

there was no precedent in the Sixth Circuit for the right it

says existed so “unmistakably” in August 1990. Nor does

the Court of Appeals point to any other “applicable direct

authority” that would leave “no doubt in the mind of a

reasonable . . . [hospital security officer or nurse in August

1990] that his [or her] conduct [then], if [later] challenged

on constitutional grounds, would be found wanting” by that

Court—even if not by the trial court or by the dissenting

judge on this appeal. Ibid (citation omitted). The Court of

Appeals does not do so because there was not any such

precedent in the Sixth or any other Circuit, or in any other

Court, including this Court or the Supreme Court of Ken-

tucky. Nor is there any other such precedent at this time.

Rather, the Court of Appeals erroneously equated the

position and duties of a state mental hospital security of-

ficer to that of the Police officers in a Fourth Amendment

context in Bruner, supra, who had “a statutorily imposed

duty to enforce the laws equally and fairly”. 884 F.2d at

426 (citation omitted), even though there is nothing in the

record of this case that Petitioner Glover had any such

statutory duty in August 1990. See discussion above. It is

also clear that the Fourth Amendment did not apply in

any way to the incident involved in this appeal.

The Court of Appeals also equated a state mental hos-

pital to the Eighth Amendment context of a prison in its

reference to the position and duties of a correctional officer

in McHenry, supra.. There is no precedent for such anal-

ogy, and the Eighth Amendment does not apply in any

way to the incident involved in this appeal. Thus, there

was no basis in either law or fact for the Court of Appeals

to conclude as it did, 97 F.3d 868, that Bruner, supra, and

McHenry, supra, were “sufficient to place . . . nurse [Ahlers]

- +. OM Notice that she had a duty to protect . . . [Respon-

dent] while under her charge... .” A nurse is obviously

neither a police officer nor a prison guard. Moreover, no

precedent is given for this novel conclusion, which is little

more than the “snould have known” element of a state law

tort action. In any case, negligence fails to state any claim

upon which any relief can be granted under § 1983. See,

e.g., Collins v. City of Harber Heights, Tex., 503 U.S. 115

(1992).

Two (2) months was not a reasonable time for

employees of a state mental hospital to learn of

the publication of a decision holding state

correctional officers (prison guards) liable under

the Eighth Amendment for failing to intervene

to stop the physical assault of a prisoner by other

prison guards, to assess any application that

decision had to their own duties relating to

patient care and treatment, and to adjust their

conduct accordingly.

The decision upon which the Court of Appeals so heavily

relies, McHenry, supra, was not decided until February

1990, just six months before the incident that is the sub-

ject of the instant Petition. Moreover, the volume in which

that decision was published, 896 F.2d, was not received in

the law library of the Office of the Counsel of this State

agency until June 1990, just two months before that inci-

dent. Under those circumstances it was not objectively

reasonable for the Court of Appeals to assume, as it appar-

ently did, that Petitioners knew or should have known

about McHenry, and that they should have understood that

this prison case was so analogous to their situation in a

state mental hospital that they had to conform their con-

duct accordingly under the facts they were faced with in

the incident involving the assault of Respondent. Indeed,

the Court of Appeals had only recently recognized that

state employees such as these Petitioners should be given

a reasonable time to learn about new controlling precedent

in Sixth Circuit Court decisions and to adjust their con-

duct accordingly. Lintz v. Skipski, 25 F.3d 304, 306 (6th

Cir. 1994), cert. denied, 115 S.Ct. 485 (1994), holding that

“[a] court should apply a rule of reason in each case with

respect to compliance with new decisions. As with other

similar timing problems . . . the question is one of fairness

in light of all the facts.” Unfortunately for Petitioners,

that rule of reason was not applied by the Court of Ap-

peals in this case.

Furthermore, even from today’s perspective, it is clear

that McHenry does not point unmistakably to the uncon-

stitutionality of Petitioners’ conduct as state mental

hospital employees in failing to intervene to stop an as-

sault on Respondent. Thus, in August 1990 such unconsti-

tutionality was not so clearly foreshadowed by applicable

direct authority so as to inform a reasonable state mental

hospital security officer or a reasonable state mental hos-

pital nurse that her conduct, without question, was then

unconstitutional.

For these reasons there is no doubt such right was not

clearly established in August 1990. However, even if the

Court of Appeals was correct in concluding that McHenry

was sufficient to place Petitioners on notice in August 1990

of their duty to intervene, under the circumstances pointed

out above it is clear they did not have sufficient time to

learn about and adjust to the new decision.

In Anderson v. Creighton, 483 U.S. 635 (1987), this

Court reviewed the principles under which state employ-

ees such as Petitioners are shielded from personal mon-

etary liability and harassing litigation, including the

principle that “qualified immunity protects ‘all but the

plainly incompetent or those who knowingly violate the

law”, id., 483 U.S. at 638 (citation omitted), and struck a

balance between the vindication of constitutional rights

and the effective performance of official duties so as to

avoid turning the rule of qualified immunity into some

kind of “rule of virtually unqualified liability”, id., 483 U.S.,

at 641. This Court did so by reiterating the standard it

established earlier in Harlow v. Fitzgerald, 457 U.S. 800,

818-9 (1982), in holding that “whether an official protected

by qualified immunity may be held personally liable for an

allegedly unlawful official action turns on the ‘objective

legal reasonableness’ of the action, . . . assessed in light of

the legal rules that were ‘clearly established’ at the time it

was taken.” .. . Anderson v. Creighton, supra, 483 U.S., at

639. Then this Court emphasized that the right allegedly

violated “must have been ‘clearly established’ in a more

particularized, and hence more relevant sense” than the

level of generality usually applied to constitutional and

statutory violations. Jd., 483 U.S., at 640. Hence, this

Court concluded, “[t}he contours of the right must be suffi-

ciently clear that a reasonable official would understand

that what [s]he is doing violated that right. This is not to

say that an official action is protected by qualified immu-

nity unless the very action in question has previously been

unlawful, . . . but it is to say that in the light of pre-

existing law the unlawfulness must be apparent.” Ibid

(citations omitted). It is clear that the Court of Appeals

misapplied these principles in denying Petitioners quali-

fied immunity in the instant case.

Even if the Court of Appeals had correctly determined

that a right of a state mental health patient to have a

state mental hospital employee intervene to stop the physi-

cal assault of that patient by other hospital employees ex-

ists now, there is no doubt such right was not so “sufficiently

clear” come six years and one-half ago that a reasonable

hospital security officer and a reasonable nurse employed _

at a sate mental hospital in August 1990 were fully aware

that their failure to intervene to stop such an assault would

violate that right. Nor was the unlawfulness of their not

intervening obvious in light of the reported cases of which

a reasonable state mental hospital security officer and nurse

would know about at that time. See also the reasoning of

the dissent in this case, 97 F.3d 870.

II. The Issues Involved in the Denial of Qualified

Immunity in this Case are Sufficiently Important

to Warrant Review by this Court.

This is a case of utmost importance that should be

reviewed by this Honorable Court. It is, of course, very

important to petitioners herein, who now stand alone in

potential liability for physical harm they did not cause

some six and one-half years ago. It is also of no smal]

importance to all other similarly situated state mental hos-

pital staff, Who, because of the decision denying petition-

ers qualified immunity, are themselves in harms way and

therefore potentially liable for the acts of others going back

to August 1990.

More importantly, the decision in this case, now pub-

lished at 97 F.3d 862, should be reviewed because in deny-

ing Petitioners qualified immunity the United States Court

of Appeals for the Sixth Circuit abandoned the objective

reasonableness test for such immunity articulated by this

Court in Harlow v. Fitzgerald, supra, and Anderson v.

Creighton, supra, and established a new standard without

reference to any precedence of this or any other Court.

Under the Sixth Circuit’s new test the issue of whether a

particular right was clearly established at the time of an

alleged constitutional wrong so as to deny qualified immu-

nity is to be answered in the affirmative whenever preex-

isting case law simply suggests, merely allows, or possibly

raises the existence of the claimed right. Thus, the unlaw-

fulness of what a defendant is doing or not doing no longer

must be apparent in light of preexisting law before a right

can be found to be clearly established. Nor will a clearly

established right any longer be found only where the con-

tours of a claimed right are so sufficiently clear, at the

time of the alleged conduct, that a reasonable state em-

ployee in a particular position would understand that what

she is doing or not doing violated that right.

Rather, all that is required now is some pre-existing

case, however new or novel, or unrelated it may be to the

facts at hand. There doesn’t even need to be any analogy

between the situation of the defendants in that_case and

that of the defendants now. Or, if there is one, it no longer

matters how tenuous that analogy may be between the

facts and circumstances in one and that of the other.

As a result, the concept of clearly established rights

established by this Court has been stood on its head. In-

deed, as it stands now in the Sixth Circuit, the delicate

balance that has been heretofore so carefully struck by

this Court between the vindication of citizens’ constitu-

tional rights and the effective performance by public em-

ployees of their duties has all but been destroyed. No

longer is there any workable standard in this Circuit by

which they can reasonably anticipate if or when their con-

duct will give rise to liability for damages.

Moreover, the decision denying Petitioners qualified im-

munity should be reviewed because in making its decision |

is this case of the Court of Appeals also failed to determine

whether reasonable state employees in the Petitioners’ re-

spective positions (state mental hospital nurse and secu-

rity officer) would have understood that their particular

conduct was unlawful or could have believed that their

actions were unlawful in light of the facts and circum-

stances surrounding the particular incident and the infor-

mation each petitioner possessed at the time of the incident.

By failing to make that inquiry, which this Court held in

Anderson v. Creighton, supra, is required even when a

claimed right is found to be clearly established, the Court

of Appeals again substituted its own assumptions and an

apparent desire to provide the plaintiff below with money

damages relief from someone, for the standard previously

established by this Court in Harlow, supra, and Anderson,

supra, as later modified in Siegert v. Gilley, 500 U.S. 226

(1991), and recently reaffirmed in Behrens v. Pelletier, __

U.S. __, 116 S.Ct. 834 (1996).

Finally, this case is an excellent opportunity for this

Court to provide guidance to the Circuits on the very im-

portant matter of what constitutes a fair and adequate

length of time for state action defendants to learn of a new

decision and to adjust and conform their conduct accord-

ingly, Such guidance will relieve the uncertainty of all

such defendants, while providing much needed clarifica-

tion for the lower courts with respect to the rule of reason

that should be applied with respect to compliance with

new decisions.

CONCLUSION

For the following reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Epwarp D., Kiatre

Assistant Counsel

Office of the General Counsel

Cabinet for Health Services

275 East Main Street—4 West

Frankfort, Kentucky 40621

PH: (502) 564-7900

FAX: (502) 564-7573

Counsel for Petitioners

Glover and Ahlers

APPENDIX

i 5

: ple

: v

i : 7

‘

i, <

a *

re i

’

is ©

. 3

RN ’ . ef

- + ;

Rie y

wey ;

R *

‘ ’ $

< «

‘

i ‘

[EXCERPTS FROM 97 FEDERAL

REPORTER, 3D SERIES]

Russell DURHAM, Plaintiff-Appellant,

Vv.

Mahdee NU’MAN; Roy Hill; James

Burke; Ricky Rhodes,

Defendants,

Donnie Glover; George Nichols; Becky

Ahlers; Nasiruddin Siddiqui; Farahieh

Rabbani, Defendants-Appellees.

No. 95-5843.

United States Court of Appeals,

Sixth Circuit.

Argued June 6, 1996.

Decided Oct. 9, 1996.

Patient at state hospital brought § 1983 action against

hospital staff and physicians arising out of assault by hos-

pital security officers. The United States District Court

for the Western District of Kentucky, Charles R. Simpson,

J., granted summary judgment in favor of defendants. Pa-

tient appealed. The Court of Appeals, Merritt, Circuit

Judge, held that: (1) security officer and nurse who wit-

nessed beating could be held liable without having actively

participated in beating; (2) physicians were not liable; and

(3) administrator was not liable.

Affirmed in part and reversed in part.

Duggan, District Judge, sitting by designation, con-

curred in part and dissented in part with separate opinion.

1, Federal Courts—Key 776

Court of Appeals’ review of grant of summary judg-

ment is de novo.

2. Federal Civil Procedure—Key 2543

On summary judgment motion, all facts, as well as all

inferences drawn therefrom, must be viewed in light most

favorable to nonmoving party. Fed.Rules Civ.Proc.Rule

56,28 U.S.C.A.

3. Civil Rights—Key 214(2)

Doctrine of “qualified immunity” protects government

officials in civil cases from damages liability if their con-

duct does not violate clearly established statutory or con-

stitutional rights of which reasonable person would have

known.

See publication Words and Phrases for other judi-

cial constructions and definitions.

4. Civil Rights—Key 214(2)

For right to be “clearly established” for purposes of

qualified immunity defense, contours of light must be suf-

ficiently clear that reasonable official would understand

that his conduct violates that light; unlawfulness of official

or employee’s conduct must be apparent in light of preex-

isting law.

See publication Words and Phrases for other judi-

cial constructions and definitions.

5. Civil Rights—Key 214(2)

Right is not considered “clearly established” for pur-

poses of qualified immunity defense unless it has been

authoritatively decided by United States Supreme Court,

Court of Appeals, or highest court of state in which alleged

constitutional! violation occurred.

6. Civil Rights—Key 114

State hospital security officer who witnessed beating of

having actively participated in beating; officer had badge

of authority and duty to protect patient from assault by

other officers. 42 U.S.C.A. ~ 1983.

7. Civil Rights—Key 114

State hospital nurse who refused shackled patient's re-

quest to use restroom and who witnessed subsequent beat-

ing of patient by hospital security officers could be held

liable under § 1983 without having actively participated in

beating; precedent holding police officers and correctional

officers liable for failure to intervene was sufficient to place

nurse, who caused conflict, on notice that she had duty to

protect patient while under her charge. 42 U.S.C.A. ~ 1983.

8. Civil Rights—Key 114

Whether treating physicians were deliberately indiffer-

ent to medical needs of state hospital patient required court

to ask whether deprivation was sufficiently serious and

whether officials acted with sufficiently culpable state of

mind. 42 U.S.C.A. § 1983.

9. Civil Rights—Key 114

Physicians who treated state hospital patient after pa-

tient was assaulted by hospital security officers did not

display deliberate indifference in treatment so as to be

liable for § 1983 damages even though physicians initially

failed to order tests which would have permitted diagnosis

of broken arm where it was not readily apparent that arm

was broken and patient received medical treatment after

incident. 42 U.S.C.A. § 1983.

10. Civil Rights—Key 114

State hospital administrator was not liable under § 1983

to patient who was assaulted by hospital security officers

in absence of evidence that administrator implicitly autho-

rized, approved, or knowingly acquiesced in any of conduct

which formed basis for complaint. 42 U.S.C.A. § 1983.

Gail Robinson (argued and briefed), McNally &

Robinson, Frankfort, KY, Russell J. Baldani (briefed),

Baldani, Rowland & Richardson, Lexington, Ky, for plain-

tiff-appellant.

E.D. Klatte, Staff Attorney, Cabinet for Human Re-

sources, Office of Main Counsel, Frankfort, KY, Terry L.

Morrison (argued and briefed), Cabinet for Human Re-

sources, Frankfort, KY, for defendants-appellees Donnie

Glover, Becky Ahlers.

William T. Haynes, Jr., Emily A. Hoffman (argued and

briefed), Cathleen A. Charters, O’Bryan, Brown & Toner,

Louisville, KY, for defendant-appellee George Nichols.

Michael R. Greene (argued and briefed), Fischer, Tho-

mas, Brophy & Shake, Louisville, KY, for defendant-appel-

lee Nasiruddin Siddiqui.

Gregory J. Bubalo, Douglas C. Ballantine (argued and

briefed), Ogden, Newell & Welch, Louisville, KY, for defen-

dant-appellee Farahieh Rabbani.

Before: MERRITT and COLE, Circuit Judges;

DUGGAN, District Judge’.

MERRITT, J., delivered the opinion of the court, in

which COLE, J., joined. DUGGAN D.J. (p. 870), delivered

a separate opinion concurring in part and dissenting in

part.

MERRITT, Circuit Judge.

Piaintiff Russell Durham appeals the District Court’s

grant of summary judgment for the five defendants in this

42 U.S.C. § 19 suit arising out of an August, 1990, assault

by hospital security officers at Kentucky’s Central State

Hospital. There are three sets of defendants: the nurse

and hospital secure officer who witnessed the beating and

did nothing to stop it; the two doctors who treated the

plaintiff after the beating but did no diagnose his broken

arm; and the administrator of the hospital who, plaintiff

claim did not have sufficient policies to prevent violent

altercations, understaffed the hospital’s wards housing po-

tentially violent patients, and failed to train the hospital

staff to deal with such patients.

As to the nurse and security officer who failed to try to

stop the beating, the District Court granted summary judg-

ment because the cases that have held that a failure to

intervene may be a violation of § 1983 have dealt only with

*The Honorable Patrick J. Duggan, United State District Judge

for the Eastern District of Michgan, sitting by designation.

police and correctional officers, not state mental health

workers in a hospital for the criminally insane. The Court

believed that the cases, therefore, do not “clearly estab-

lish” the constitutional duty of these defendants to try to

stop the beating.

As to the second set of defendants, the treating physi-

cians, the District Court held that the plaintiff had failed

to satisfy both the objective and subjective components of

the “deliberate indifference” standard by which these vio-

lations are to be judged.

As to the last defendant, the administrator of the Cen-

tral State Hospital, the District Court held that there was

no evidence that the defendant had implicitly authorized,

approved, or knowingly acquiesced in the unconstitutional

conduct of the offending employees, and therefore sum-

mary judgment was appropriate.

FACTS

Russell Durham was committed to Eastern State Hos-

pital in February 1990 because he had been found incom-

petent to stand trial for assault. He was transferred to

Central State Hospital in August 1990. Prior to the beat-

ing, the plaintiff was in seclusion and was shackled with a

“saddle” or belt restraining him at the wrists and legs. He |

was placed in Unit S, the unit designated for the more

unruly patients. Durham had been shackled for two days

at the time of the incident. He approached the nurse’s

station on August 27, 1990, and asked the nurse there,

Becky Ahlers, if he could go to the bathroom and then lie

down. Apparently Nurse Ahlers had a policy that patients

in seclusion could only go to the bathroom during fifteen

minutes every hour. If the patient cannot wait and re-

lieves himself in his clothes, he is punished.

Nurse Ahlers claims that she did not hear Durham’s

request, but he claims that she refused his request. The

plaintiff then urinated on himself and on the floor in front

of the Nurse’s station and walked back down the hall to

the activity room, tracking urine with him as he went.

Mahdee Nu’Man, one of the Hospital Security Officers, and

Nurse Ahlers determined that Durham should be made to

clean up the urine. Durham refused to clean up the urine,

and Ahlers ordered Nu’Man to put Durham in seclusion as

punishment for not cleaning up his mess. Durham appar-

ently kicked at Nu’Man at this point, and Durham claims

that Nu’Man then grabbed him and forced him to the floor.

Durham claims that another officer, Ricky Rhodes, repeat-

edly picked Durham up by his shackles and dropped him

back onto the floor. Durham also says he was kicked and

kneed, A third officer, Donnie Glover, who admits being

present during the incident, denied that Nu’Man or Rhodes

kicked or beat Durham at all. He swore that they were

only trying to restrain him. Therefore, under Durham s

account of the incident, Glover stood by and did nothing

while he was beaten by Nu’Man and Rhodes. In addition,

officer Roy Hul testified that Glover was actively involved

in the incident, and that he assisted in lifting Durham.

Nurse Ahlers also testified that she thought that Glover-

was in the activity room during the incident.

Nurse Ahlers admitted seeing some of the fracas which

occurred between Nu’Man, Rhodes and Durham, initially

from the monitor at the Nurse’s Station, and then later

from the doorway of the activity room. Officer Roy Hill

testified that Ahlers could see into the activity room dur-

ing the incident. At no time did Nurse Ahlers or Donnie

Glover attempt to put an end to the incident by interven-

ing or by calling for help.

After the incident, Dr. Rabbani was called to attend to

Durham. She was the psychiatrist on duty at the time of

the incident. When she first saw Durham, she said “My

God . . . what happened?” Dr. Rabbani sutured the cut

over Durham’s eye. Nurse Judkins, who was present at

the time, testified that Durham told her and Rabbiini that

his arm was broken. Dr. Rabbani testified that she asked

Durham if his arm was in pain, and he said it was not.

Apparently Dr. Rabbani did examine his arm even though

Durham allegedly denied having pain. Although she noted

a linear abrasion, she did not notice any discoloration or

ne ee

bruising, and did not order an X-ray. Judkins testified

that Durham, when questioned if his arm was in pain said

“hell yes it hurts.” Ahlers also examined Durham’s arm,

and Durham also told her that it was broken. After the

examination, Durham was placed in more severe shackles

in seclusion.

The next day, Dr. Siddiqui, the plaintiffs regular doctor

(also a psychiatrist) examined the plaintiff. Dr. Siddiqui

made notes about the surface injuries to the plaintiffs arm,

but the plaintiff nonetheless claims that the doctor did not

examine his arm. At 1:30 p.m. on the following day, Au-

gust 29th, Durham complained of a broken arm. No doctor

saw the plaintiff that day. The next morning, the plaintiff

again complained of the pain, and stated that he thought

his arm was broken. Although the plaintiff asserts that

the interdisciplinary progress notes do not state that there

was an exam by Dr. Siddiqui on the 30th, Dr. Siddiqui

testified that he noted some swelling and then ordered an

X-ray of the plaintiffs arm.

The X-ray revealed that Durham had 8 broken arm.

Dr. Steven Henry, the plaintiffs treating physician at

Humana, described his injury as a “Night-stick” fracture.

He also testified that it would be normal for swelling not

to occur for the first 24-36 hours and that it is common for

X-rays not to be taken immediately for these types of inju-

ries. The plaintiffs arm was casted, and then recasted.

Finally, a metal plate was inserted to aid in the healing

process. The arm apparently healed.

The plaintiff also asserts a claim against the supervi-

sor of the hospital, Nichols. Units R and S of the Central

State Hospital in the Grauman Building were opened in

1989 to deal with patients who have a potential to be more

violent. Plaintiff asserts that Unit S, where the plaintiff

was a patient, was understaffed. He also attacks the ad-

equacy of the training offered at Central State Hospital.

Officers were only required to have the equivalent of a

high school education and be able to read and write and

have passed the Driver’s test. They were not required to

have any prior experience with psychiatric patients. Al-

though there was a two week training session, only four

~ and one half hours of that training were devoted to the

treatment and care of potentially violent patients or the

proper use of restraints and seclusion. In addition, this

training was conducted by correctional personnel, and not

by mental health personnel. There was also no annual re-

training until after the incident at issue in this case.

ANALYSIS

I. The Liability of the Nurse and Security Officer for Fail-

ure to Intervene

[1, 2] Our review of a grant of summary judgment is de

novo. Summary judgment is only appropriate where the

“pleadings, depositions, answers to interrogatories, and ad-

missions on file together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a mat-

ter of law.” Fed.R.Civ.P. 56(c). All facts, as well as all

inferences drawn therefrom, must be viewed in the light

most favorable to the nonmoving party. Matsushita Elec-

tric Industrial Co., Ltd., et al. v. Zenith Radio Corp., et al.,

475 U.S. 574, 587, 106 S.Ct. 13848, 1356, 89 L.Ed.2d 538

(1986).

[3-5] The doctrine of qualified immunity protects gov-

ernment officials in civil cases from damages liability, Rich

v. Mayfield Heights, 955 F.2d 1092, 1094 (6th Cir.1992), if

their conduct does not “violate clearly established statu-

tory or constitutional tights of which a reasonable person

would have known,” Harlow v. Fitzgerald, 457 U.S. 800,

818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). For a

light to be “clearly established,” the contours of the right

must be sufficiently clear that a reasonable official would

understand that his or her conduct violates that light. The

unlawfulness of the official or employee’s conduct must be

apparent in light of pre-existing law. Wegener v. City of

Covington, 933 F.2d 390, 392 (6th Cir.1991). A right is not

considered clearly established unless it has been authori-

tatively decided by the United States Supreme Court, the

Court of Appeals, or the highest court of the state in which

the alleged constitutional violation occurred. Robinson v.

Bibb, 840 F.2d 349, 351 (6th Cir.1988). The law requires

that,

[T]hose decisions must both point unmistakably to the

unconstitutionality of the conduct complained of and

be so clearly foreshadowed by applicable direct au-

thority as to leave no doubt in the mind of a reason-

able officer that his conduct, if challenged on constitu-

tional grounds, would be found wanting.

Ohio Civil Serv. Employees Ass’n v. Seiter, 858 F.2d 1171,

1177 (6th Cir.1988).

Bruner v. Dunaway, 684 F.2d 422 (6th Cir.1982), guides

our reasoning in this case. There, the Court held that “it

is not necessary, in order to hold a police officer liable

under § 1983, to demonstrate that the officer actively par-

ticipated, in staking a plaintiff.” In Bruner, the plaintiff

was asleep in his car when he was awakened by a police

officer of the city of Knoxville, Tennessee and asked to exit

his vehicle. Plaintiff Bruner testified that he was then

struck repeatedly with a flashlight or a club. After fleeing

the scene of the first beating, Bruner was confronted by a

reserve police officer in an alley, and was repeatedly struck

and kicked by other unidentified persons as he was dragged

down the alley. There were eight defendants in Bruner,

all of whom admitted that they were present during the

various stages of the incident. The jury returned a verdict

for Bruner, but on motion of the defendants, the District

Court set aside the verdict on the ground that in order to

be held liable under § 1983, personal involvement must be

shown. After a second trial, the jury found for Bruner as

to three of the defendants, found against Bruner as to two

of the defendants, and the Court directed a verdict as to

the remaining three defendants. On appeal, Bruner ar-

gued that even if the evidence did not demonstrate per-

sonal involvement as to some of the officers, the inaction of

the “nonparticipating” officers while Bruner was being as-

saulted subjected those officers to liability. Bruner, 684

F.2d at 424. In holding that the officers who stood by and

10a

did nothing while Bruner was beaten by other officers could

be held liable, the Bruner court relied on Smith v. Ross,

482 F.2d 33 (6th Cir.1973) (per curiam). In Smith, al-

though the Court found that a deputy’s acts were not the

cause of the harm suffered by plaintiffs, the Court stated

that “a law enforcement officer can be liable under § 1983

when by his inaction he fails to perform a statutorily im-

posed duty to enforce the laws equally and fairly”, and

“acts of omission are actionable, in this context-to the same

extent as acts of commission.” Smith, 482 F.2d at 36.

The Bruner court also relied on Byrd v. Brishke, 466

F.2d 6 (7th Cir.1972). The plaintiff in Byrd testified that

unidentified offic ~s beat him in the back room of a tavern.

Byrd was able to identify three officers who were present

at the time of the beating, though he was unable to iden-

tify those who actually beat him.. The district court di-

rected a verdict for the defendants at the close of evidence,

and the Seventh Circuit reversed on appeal, holding that

“one who is given the badge of authority of a police officer

may not ignore the duty imposed by his office and fail to

stop other officers who summarily punish a third person in

his presence or otherwise within his knowledge.” Id. at 11.

In McHenry v. Chadwick, 896 F.2d 184 (6th Cir.1990),

the Court applied Bruner to the “prison context” and held

that “a correctional officer who observes an unlawful beat-

ing may, nevertheless, be held liable under § 1983 without

actively participating in the unlawful beating.” McHenry,

896 F.2d at 188. “[E]ven if one or more of the officers did

not actively participate in the beating, they still owed

McHenry a duty of protection.” Id. In McHenry, the pris-

oner was serving a nine-year sentence at Brushy Moun-

tain Prison. On two separate occasions, he was taken from

his cell and led to remote parts of the prison where he was

confronted by corrections officers about stealing from one

inmate and threatening the life of another. On the first

occasion, one corrections officer taunted him, twisted his

arm, and threw him to the ground while approximately

five other corrections officers were present. McHenry filed

a complaint about the incident, and the next morning, the

lla

same corrections officer removed him from his cell and

escorted him to the prison hospital. Five other officers

were also present during this incident. One officer, after

putting on leather gloves, struck McHenry in the back,

causing him to fall to the floor and hit his head on the

wall. The other officers then “rushed into the holding cell

and proceeded to strike McHenry in the back, stomach,

and legs; including Lonnie Daugherty who struck

McHenry’s leg with a billy club.” Jd. at 186.

The jury returned a verdict for McHenry on his § 1983

suit for deprivation of civil rights, and the District Count

denied the defendants’ motions for judgment notwithstand-

ing the verdict or in the alternative for a new trial. On

appeal, the Court affirmed the District Court’s refusal to

grant a new trial or judgment notwithstanding the verdict,

holding that the trial court had properly instructed the

jury that under Bruner, a corrections officer who observes

an unlawful beating may be held liable under § 1983 even

though he or she did not actively participate in the unlaw-

ful beating.

Although there has not yet been a case in this Circuit

specifically holding that a hospital security officer can be

held liable under § 1983 for failing to protect a patient or

inmate from being beaten by another hospital security of-

ficer, it is not necessary that there be a specific holding in

order to find that a constitutional rule in the § 1983 area

has been “clearly established.” It is sufficient that the case

law “both point[s] unmistakably to the unconstitutionality

of the conduct complained of and that “applicable direct

authority . . . leave[s] no doubt in the mind of a reasonable

officer that his conduct, if challenged on constitutional

grounds, would be found wanting.” Ohio Civil Serv., 858

F.2d at 1177.

In this case, Glover is a hospital security officer. The

facility is a state-run mental health hospital. The plaintiff

was held in custody in the wing of the hospital reserved for

patients who were prone to violence. The plaintiff himself

was in the Central State Hospital instead oS in prison be-

12a

cause he was found incompetent to stand trial. Others in

the Hospital are criminally insane as well.

[61 As a hospital security officer, Glover is analogous

to the police officers in Bruner and the corrections officers

in McHenry. Just as the police officers in Bruner, the

hospital security officers have a badge of authority; they

keep the peace in the Central State Hospital. Just as the

corrections officers in McHenry, the hospital security offic-

ers have a duty to protect inmates or patients from assault

by other officers. Just as the plaintiffs in both McHenry

and Bruner Durham was totally dependent on the staff,

both security and medical, of the Central State Hospital.

The circumstances of the incident in this case evidence the

custodial nature of the facility. Durham was in shackles

when the assault took place. He was unable to defend

himself against the attacks of Mahdee Nu’Man and Ricky

Rhodes. A jury could conclude on the basis of the disputed

facts that Glover should have come to Durham’s aid, in-

stead of standing idly by, allowing the assault to continue

unfettered. The decision of the District Court as to defen-

dant Donnie Glover is therefore REVERSED.

[7] Taking the evidence in the light most favorable to

plaintiff, it was Nurse Ahlers who initially refused

Durham’s request to go to the bathroom. After Durham

urinated on the floor, it was Nurse Ahlers who directed

Mahdee Nu’Man to tell Durham he must clean it up or

face being placed back in seclusion. Her orders caused the

conflict and then when the conflict flared, she stood idly by

and watched the beating. Charge with the responsibility

of taking care of patients, Nurse Ahlers became angry,

shirke her responsibilities and allowed a patient in her

care to be brutally beaten by hospital security officers.

She watched the beaten unfold on her monitor from the

nurse’s station, and then from the doorway of the activity

room, the room where the beating took place. The beating

lasted approximately ten minutes, according to Nurse

Judkins. Judkins stated that she went up to the main

desk at the beginning of the incident and when she re-

turned about 10 minutes later, Durham was in seclusion.

13a

This time period was long enough for Nurse Ahlers to have

been able to make a difference, either by directing the

hospital security officers to stop their attack, or by calling

security from the main building of the hospital. Coming to

Durham's aid would not have required her to become physi-

cally involved in the incident.

Because the precedent holding police officers and cor-

rectional officers liable for failure to intervene was suffi-

cient to place the nurse who caused the conflict on notice

that she had a duty to protect plaintiff while under her

charge, the judgment of the District Court granting sum-

mary judgment to Defendant Nurse Becky Ahlers is there-

fore REVERSED.

II. The Liability of the Doctors

In the case of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct.

285, 50 L.Ed.2d 251 (1976), the Supreme Court established

the standard for determining whether the facts alleged in

a prisoner’s complaint for improper medical care constitute

a valid civil lights claim. In Estelle, the Court held “fiJn

order to state a cognizable claim, a prisoner must allege

acts or omissions sufficiently harmful to evidence deliber-

ate indifference to serious medical needs.” Id. at 106, 97

S.Ct. at 292. The Estelle Court also held that “an inad-

vertent failure to provide adequate medical care cannot be

said to constitute ‘an unnecessary and wanton infliction of

pain’ or to be ‘repugnant to the conscience of mankind,” id.

at 105-6, 97 S.Ct. at 292, and that negligence or “medical

malpractice” alone is insufficient to establish liability.

Especially relevant to this case, which involves the fail-

ure to order an X-ray of plaintiffs arm to enable the physi-

cians to diagnose his broken arm, is the language from

Estelle that “[a] medical decision not to order an X-ray, or

like measures, does not represent cruel and unusual pun-

ishment,” and “at most... it is medical malpractice.” Id.

at 107, 97 S.Ct. at 293.

In granting summary judgment to Drs. Siddiqui and

Rabbani, the Magistrate Judge stated:

l4a

The lack of outward symptoms of a broken arm,

plaintiff's alternating between claims of having a bro-

ken arm and denial of pain, the numerous times his

arm was examined by medical personnel, and the medi-

cal evidence that the sort of fracture plaintiff suffered

does not immediately cause swelling or bruising leads

the Magistrate Judge to conclude that there is no genu-

ine issue of material fact as to the objective compo-

nent of the stendard for deliberate indifference. While

his injury was undeniably serious, it was not obvious.

The physicians may have been negligent in failing to

diagnose and treat plaintiffs arm in a timely manner,

but ‘ medical negligence does not rise to the level of a

constitutional tort.

The Magistrate also found that there was no genuine issue

of material fact as te the subjective component of the delib-

erate indifference analysis:

Plaintiff has also failed to raise a genuine issue of

material fact regarding the subjective component of

“deliberate indifference,” i.e. a culpable state of mind

on the part of the defendants. There is no evidence

that Dr. Siddiqui or Dr. Rabbani acted with obduracy

or wantonness toward plaintiff or that they intention-

ally withheld medical care they knew to be necessary.

Id.

[8] The deliberate indifference test contains two compo-

nents. The first is an objective one: Was the deprivation

sufficiently serious? The second has a subjective element:

Did the official act with a sufficiently culpable state of

mind? See Caldwell v. Moore, 968 F.2d 595 (6th Cir.1992).

[9] The Magistrate’s view of the case is correct. While

Durham’s broken arm was clearly a “serious medical need,”

it was not readily apparent that the arm was broken, and

he did receive medical attention after the incident. He

received sutures for the cut above his eye, and an exami-

nation was done of his arm. The broken arm was not

displaying any swelling, and so it was not unreasonable or

wantor for the two physicians to fail to diagnose that it

was broken until several days later.

15a

As to the culpable state of mind requirement, there is

no evidence to suggest that either Rabbani or Siddiqui

acted with wantonness. The Plaintiffs complaints go to

the adequacy of the medical care; they do not raise an

issue of unnecessary and wanton infliction of pain as re-

quired under Estelle. They were not deliberately indiffer-

ent to a serious medical need of the Plaintiff. The District

Court grant of summary judgment as to these two defen-

dants is therefore AFFIRMED.

IIl.The Liability of the Hospital Administrator

The District Court, in granting the defendant Nichols’

motion for summary judgment, stated:

The established law is clear that someone in a super-

visory capacity, as Nichols was, must have at least

implicitly authorized improved, or knowingly acqui-

esced in the unconstitutional conduct of the offending

employee. See Leach v. Shelby County Sheriff, 891

F.2d 1241 (6th Cir.1989) and Hays v. -Jefferson, 668

F.2d 869 (6th Cir. 1982). There is nothing in the

record to show that this defendant implicitly autho-

rized, approved, or knowingly acquiesced in any of the

conduct which forms the basis of this complaint. It is

clear to the Court that the defendant Nichols should

be dismissed from this action.

[10] The plaintiff asserted in his brief that Nichols had

not been deposed because the lower court would not per-

mit discovery relevant to the claims against Nichols prior

to the ruling on the motion for Summary Judgment. In

fact, Nichols was deposed on August 24, 1993, after the

trial court granted his motion for summary judgment. Since

oral argument, Durham’s counsel has withdrawn the argu-

ment that the claim against Nichols should be remanded

to permit discovery, including Nichols’ deposition. There

is nothing in the record to show that this defendant implic-

itly authorized, approved, or knowingly acquiesced in any

of the conduct which forms the basis of this complaint.

Mr. Nichols was deposed and that deposition shows no

knowledge or authorization in the conduct at issue here.

16a

The plaintiff does not suggest that there was any evidence

to the contrary. The District Court grant of summary

judgment was therefore appropriate and is hereby AF-

FIRMED.

For the reasons stated above, the judgment as to defen-

dants Glover and Ahlers is REVERSED, and the judg-

ments as to the other three defendants are AFFIRMED.

DUGGAN, District Judge, concurring in part, and dis-

senting in part.

I concur with the majority except with respect to Nurse

Ahlers. While I agree that the evidence, viewed in a light

most favorable to plaintiff, could lead a jury to conclude

that Nurse Ahlers had the opportunity and ability to pre-

vent the beating, I am not persuaded that she had a “clearly

established” duty to do so. I am aware of no precedent

from this or any other court that has imposed liability on

an individual (other than a police, correctional or security

officer) for his or her failure to intervene, simply because )

he or she was, arguably, in a position to have prevented |

the beating.’ )

The doctrine of qualified immunity is intended to shield

from suit those officials whose wrongful conduct? was not

clearly established as a constitutional violation at the time

the conduct occurred. “For a right to be clearly estab-

lished, the contours of the right must be sufficiently clear

that a reasonable official would understand that what [s]he

is doing violates that right. To be outside the scope of

qualified immunity, the very action in question need not

have previously been held unlawful, but the unlawfulness

must be apparent in light of pre-existing law.” Thomas v.

1] agree with the majority that defendant Glover, a security

officer, occupies a “law enforcement” position and thus is not

entitled to qualified immunity.

2In discussing the issue of “immunity”, we assume that the con-

duct was “wrongful”; otherwise, there would be no need to dis-

cuss the issue of immunity.

—

17a

Whalen, 51 F.3d 1285, 1289-90 (6th Cir.), cert. denied,—

U.S.—, 116 S.Ct. 518, 183 L.Ed.2d 426 (1995). See Walton

v. City of Southfield, 995 F.2d 1331, 1335-36 (6th Cir.1993).

While Nurse Ahlers’ inaction was, at the very least,

improper, I do not believe that it was “clearly established”

that her failure to intervene would be deemed a constitu-

tional violation. Because I do not believe that any deci-

sions from this Court, or any other court for that matter,

outline “the contours of the light” in a sufficiently clear

manner so that a reasonable official in Nurse Ahlers’ posi-

tion would understand that what she was doing (or not

doing) violates a constitutional right, see Whalen and

Walton, I believe that Nurse Ahlers is entitled to qualified

immunity. I would therefore affirm the District Court’s

decision with respect to her.

18a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 95-5843

RussELL DuRHAM, - - - -. - Plaintiff-Appellant,

MaHpEE Nu’Man, Et Al. - - - Defendants-Appellees.

ORDER—Filed November 22, 1996

BEFORE: MERRITT and COLE, Circuit Judges; and

DUGGAN, * District Judge.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this court, and no judge of this court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the original

panel.

The panel has further reviewed the petition for rehear-

ing and concludes that the issues raised in the petition

were fully considered upon the original submission and

decision of the case. Accordingly, the petition is denied.

Judge Duggan would grant rehearing for the reasons stated

in his dissent.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

Leonard Green, Clerk

*Hon. Patrick J. Duggan, United States District Judge for the

Eastern District of Michigan, sitting by designation.

19a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 91-0576 L-8

RussELL DuRHAM, - - - - - - - _ Plaintiff,

Ricky Ruopes,Et Al. - - - - - - Defendants.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW FINALIZING JUDGMENTS

On May 9, 1995, this case came before the Court for a

pretrial conference. Present were Gail Robinson, counsel

for plaintiff Russell Durham; Margaret Durham mother

and legal guardian of the plaintiff; and Gregory Bubalo,

counsel for Dr. Rabba Terry Morrison of the Cabinet for

Human Resources, counsel for Becky Ahlers, Donald Glover

and James Burke, participated by telephone. Also present

was Mahdee Nu’Man, a defendant previously represented

by Cabinet for Human Resources who is not represented

by counsel at this time.

A. FINDINGS OF FACT

On August 26, 1991, plaintiff Russell Durham filed a

complaint against eleven (11) defendants. The Cabinet for

Human Resources filed an answer on behalf of defendants

Ricky Rhodes, Mahdee Nu’Man, Donnie Glover, Roy Hill,

Becky Ahlers, Susan Harris and James Burke. Subse-

quently, the Cabinet moved to withdraw from representing

Mr. Rhodes and Nu’Man, citing a conflict of interest. Mag-

istrate Gambill entered an order on November 20, 1992

permitting the Cabinet to withdraw. The Cabinet has not

provided counsel for defendants Rhodes and Nu’Man and

they have not retained counsel to represent them.

20a

Defendants Roy Hill, Susan Harris, John Urton and

James Burke were dismissed voluntarily by the plaintiff

during 1993. The Court entered judgments dismissing

George Nichols on February 19, 1993, and Donnie Glover,

Becky Ahlers, Dr. Siddiqui and Dr. Rabbani on March 3,

1995. Also on March 3, 1995 the Court denied plaintiffs

motion for default judgment against Ricky Rhodes, who

had failed twice to appear for his deposition, but awarded

costs to the plaintiff for expenses incurred with respect to

those depositions. At the pretrial counsel for plaintiff ad-

vised that she is unable to locate Mr. Rhodes at this time.

Mr. Nu’Man advised that he had repeatedly requested that

Central State Hospital, by which he was employed at the

time of the incident in question, vrovide counsel for him

without success.

B. CONCLUSIONS OF LAW

Counsel for plaintiff and counsel for Dr. Rabbani have

specifically requested that the judgments be made final

and appealable at this time. This Court has considered

the matter and has determined that the judgments dis-

missing the defendants previously named should be made

final and appealable and that there is no just cause for

delay.

Federal Rule of Civil Procedure 54(b) grants the trial

court substantial discretion in determining whether to make

a partial summary judgment final and appealable. At this

time the only defendants which remain are Ricky Rhodes

and Mahdee Nu’Man. Neither is represented by counsel,

and the Court has expressed concern about the reasons for

non-representation by the Cabinet for Human Resources.

Only the case versus Mr. Nu’Man is ready for trial.

It is the Court’s opinion that conducting a trial where

only Mr. Nu’Man a defendant, and Mr. Nu’Man proceeding

pro se, would be a waste of judicial resources. Addition-

ally, and more critically, trying Mr. Nu’Man alone and

then allowing an appeal with a later trial of other defen-

dants and/or Mr. Nu’Man could result in inconsistent ver-

dicts.

2la

There are several distinctive issues in this case. The

first is whether Mr. Rhodes and Mr. Nu’Man violated the

United States Constitution by unnecessarily beating Mr.

Durham. The second is whether Mr. Glover and Ms. Ahlers

violated the United States Constitution by failing to inter-

vene in that beating. The third is whether Drs. Rabbani

and/or Siddiqui were deliberately indifferent to the medi-

cal needs of Russell Durham after he was injured. The

fourth is whether George Nichols as director of Central

State Hospital violated Mr. Durham’s constitutional rights

by failing to implement appropriate policies and/or to in-

sist on appropriate training for personnel.

This Court believes that judicial economy will be served

and the possibility of inconsistent verdicts avoided if the

judgments dismissing Mr. Glover, Ms. Ahlers, Dr. Siddiqui,

Dr. Rabbani and Mr. Nichols are made final and appeal-

able at this time. Moreover, based on the reasons already

stated, the Court determines that there is no just reason

for delay.

WHEREFORE, the Court, pursuant to Federal Rule of

Civil Procedure 54 (b), hereby makes final and appealable

the following judgments of dismissal-the judgment dismiss-

ing Donnie Glover entered 3-3-95, the judgment dismiss-

ing George Nichols entered 2-19-93, the judgment dismiss-

ing Becky Ahlers entered 3-3-95, the judgment dismissing

Dr. Siddiqui entered 3-3-95 and the judgment dismissing

Dr. Rabbani entered 3-3-95.

/s/_ Charles Simpson, III

Judge, United States District Court

Dated: 5/2/95

Entered: June 2, 1995

22a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 91-0576 L-(M)

RussELL DurHAM, - - - - - - - Plaintiff

Ricky Ruopes, Et Al. - - - - - - Defendants

ORDER—Entered March 3, 1995

The above matter having been referred to United States

Magistrate Judge C Cleveland Gainbill, and the Magis-

trate Judge having filed his Findings of Fact, Conclusions

of Law and Recommendation, and objections having been

filed, and the Court having made a de novo-determination

of those portions of the Magistrate Judge’s proposed Find-

ings of Fact, Conclusions of Law and Recommendation to

which objections have been made,

The Court accepts the Findings of Fact, Conclusions of

Law and Recommendation of the Magistrate Judge, and

IT IS ORDERED that the motion for summary judg-

ment of defendants Donnie Glover and Becky Ahlers be,

and it is, hereby GRANTED, and they are dismissed from

this action.

This is not a final and appealable Order.

/s/_ Charles R. Simpson III

Charles R. Simpson III

Chief Judge, U.S. District Court

23a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 91-0576-L(M)

ee NN eS a ges eg Plaintiff

ee ee ee Defendants

FINDINGS OF FACT, CONCLUSIONS OF LAW AND

RECOMMENDATION INTRODUCTION

This is a civil rights action filed pursuant to 42 U.S. C.

§ 1983 in which plaintiff alleges that his constitutional

rights were violated when he suffered physical injury and

was deprived of adequate medical care while being held at

the Central State Hospital. (Docket No. 2). The matter is

before the Court on motion for entry of summary judgment

filed jointly by defendants Donnie Glover and Becky Ahlers,

R.N. (Docket No. 190) and was referred to the Magistrate

Judge pursuant to 28 U.S. C. § 636 (bX 1B). (Docket No.

39).

FINDINGS OF FACT

1) Plaintiff Russell Durham was involuntarily commit-

ted to Eastem State Hospital on February 14, 1990 when

he was found incompetent to stand trial on charges of as-

sault. On March 14, 1990 he was transferred to Central

State Hospital.

2) On the evening of August 27, 1990 plaintiff had an

altercation with Central State Hospital security officers

which gave rise to the present lawsuit. Plaintiff urinated

on the floor and became hostile and aggressive when asked

to clean up his mess. Precisely what next occurred is a

matter of dispute. Plaintiff claims that he was attacked

24a

and beaten by hospital personnel. Defendants claim that

plaintiff became violent and they were required to use force

to physically subdue him. Regardless of precisely what hap-

pened, all parties agree that plaintiff suffered physical in-

juries as a result of the event—principally a fractured left

arm

3) Both Donnie Glover and Becky Ahlers are employ-

ees of Central State Hospital and were on duty the night

of August 27, 1990. The basis for the claim of liability

against Glover and Ahler is that they were both present or

aware that plaintiff was being beaten by other defendants

but did nothing to protect him or stop the beating. It is

alleged that they had a duty to protect plaintiff and a

breach of this duty gives rise to liability under § 1983.

(Docket No. 2). Plaintiff has made clear that he is not

alleging that these two defendants participated in the beat-

ing, were deliberately indifferent to his medical needs, or

bear vicarious liability for the actions of other defendants.

(Plaintiffs Response to Motion for Summary Judgment of

Glover and Ahlers, Docket No. 195, p. 8, n. 5).

4) Also included in plaintiff's complaint is a claim that

Glover and Ahlers “conspired to conceal from proper au-

thorities the beating to which the plaintiff had been sub-

jected. " (Docket No. 2). In the pending motion, defendants

Glover and Ahlers seek summary judgment on this claim,

as well as the other claims against them. In response to

the motion for summary judgment, plaintiff has withdrawn

the conspiracy claim. (Docket No. 195, p. 8). The plaintiff

and several of the defendants have been deposed as fol-

lows.

Deposition of Susan Ahlers

5) According to the deposition testimony of defendant

Ahlers, she worked the second shift on August 27, 1990

along with Susan Harris, Donnie Glover, Ricky Rhodes,

and Mahdee Nu’Man, all of which are or were defendants

in this matter. (Ahlers Depo., Part I, p. 55). Plaintiff was

in restraints when she came on shift (Id. at 56) and about

6:30 p.m. he came to the window at the nurses’ station and

25a

made a sexual proposition to her. She didn’t hear him ask

to go to his room or to go to the bathroom. (Jd. at 60, 61).

6) Plaintiff then walked toward the activity room and

one of the staff told he someone had urinated on the floor.

(Id. at 63). Nu’Man went to ask plaintiff clean up the urine,

as it was the policy to require patients to clean up their

mess if it was deliberate. (Id. at 65, 66). She remained at

the nurses’ station. She and Susan Harris then heard a

commotion and looked at the television monitor and saw

plaintiff kicking at Nu’Man. (Id. at 66, 68).

7) She went to the hallway and met a patient running

out yelling “Russell's kicking at Mahdee. " (Id. at 68). She

went to the doorway of the activity room and saw plaintiff

fall over a chair. (Id. at 70). When plaintiff fell, he hit his

head on a table but continued kicking and flailing. He

ended up against the wall with Nu’Man at his feet and

Rhodes at his head. (Ahlers Depo, Part II, p. 4). Plaintiff

was kicking and trying to bite. She thinks Glover had a

towel. (Id. )

8) Rhodes and Nu’Man carried plaintiff to the seclu-

sion room. (Id. at 7). She saw Rhodes pick up plaintiff by

his restraint but did not see Rhodes drop or kick plaintiff.

(Id. at 10). She talked to Rhodes about picking up plaintiff

by the restraint belt and Rhodes told her he wouldn’t do it

again. (Id. at 16-17).

The Deposition of Donnie Glover

9) Glover first became aware of the situation when he

walked into the activity room from the multipurpose room

and saw puddles of liquid on the floor which led to the

nurses’ station. Nu’Man, Ahlers and Rhodes were standing

at the nurses’ station discussing the situation. (Glover Depo.

p. 61-63). Glover went to plaintiff in the activity room and

asked plaintiff to clean up his mess but he refused. (Id. at

p. 63). After plaintiff had been asked by Glover, Rhodes,

Nu’Man, and Ahlers to clean up the floor and he had re-

fused all of them, they decided to put plaintiff in seclusion.

(Id. at 64-65).

26a

10) While Glover went to the cabinet in the nurses’

station to get the restraints, Nu’Man went to ask plaintiff

one more time to clean up the floor. (Id. at 66-67). Glover

heard a commotion and saw Rhodes running into the ac-

tivity room. Glover followed him into the activity room and

saw Nu’Man and plaintiff falling to the floor. As they fell,

Nu’Man was holding onto plaintiffs leg. They fell into and

over furniture. (Id. at 67-68). Up to this point, Ahlers re-

mained at the nurses’ station. (id. at 69).

(11) Plaintiff was on the floor kicking and Nu’Man was

trying to get hold of his legs. Rhodes was at plaintiffs

head trying to get hold of his arms. (Id. at 70-71). Plaintiff

was “flipping” around on his side and back. After Rhodes

got hold of plaintiff's arms, he and NuMan lifted plaintiff

off the floor and Glover noticed blood on the floor and a cut

over plaintiffs eye. Glover then went to the clean linen

room to get a towel for plaintiff. (Id. at 71-72). Glover did

not see Ahlers during the struggle. (Id. at 72).

12) Glover didn’t see Rhodes or Nu’Man pick plaintiff

up by the belt restraint or kick or drop him. As far as

Glover could tell, all of plaintiffs injuries were caused by

falling on the furniture and wrestling on the floor. (Id. at

73-74). Glover did not see Rhodes and Nu’Man carry plain-

tiff into the seclusion room because he had gone to get a

clean towel. By the time Glover got to the seclusion room,

plaintiff was already there and restraints were being ap-

plied. Ahlers was standing outside the seclusion room. (Id.

at 74-75).

The Deposition of Plaintiff

13) According to plaintiff, the incident in question be-

gan when he asked Becky Ahlers to let him go to his room

to lie down and then told her that he needed to go to the

bathroom. When permission was denied he “peed in the

floor. ” (Durham Depo. p. 69, 75-76). Nu’Man told him to

clean up the urine from the floor but he refused. Plaintiff

then kicked at Nu’Man but did not make contact. Nu’Man

then grabbed him and forced him to the floor. (Id. at 66).

27a

14) While Nu’Man kicked at plaintiffs face and arm,

Rhodes repeatedly picked him up and slammed him into

the floor. (Id. at 66-67, 109, 123). Plaintiff believed that

the Nu’Man and Rhodes were trying to hurt him and noted

with amazement that Nu’Man did not even look angry. (Id.

at 66-67, 109, 116). When asked about defendant Glover's

involvement, plaintiff could not remember even seeing him

that evening. (Id. at 62) At no time during the deposition

did plaintiff implicate either Glover or Ahlers in the al-

leged abuse. He didn’t know of any reason for filing suit

against these two defendants. (Id. at 106-07).

Testimony of Roy Hill

15) Roy Hill is a hospital employee and was present

on the evening of August 27, 1990. He stated in his depo-

sition that he observed the incident in question and saw

defendants Glover, Rhodes, and Nu’Man with plaintiff. (Hill

Depo. pp. 41-43). According to him, defendant Glover was

actively involved in the incident and assisted the others in

lifting plaintiff. (Id. at pp. 41-49). Hill testified that he

heard Rhodes say to plaintiff something like “is this what

you want?” and then pick him up by his belt and drop him

on his head on the floor twice. (Id. at pp. 44-46). He also

saw Rhodes kneeing or kicking plaintiff. (Id. at 46-47).

16) Hill also testified that even though Ahlers was not

in the activity room at the time of the beating, she could

see into the room and observed the incident between plain-

tiff, Nu’Man, Rhodes and Glover. (Id. at pp. 41-42).

CONCLUSIONS OF LAW

The Magistrate Judge, having made findings of fact,

makes the following conclusions of law.

1) Under Rule 56(c), summary judgment is proper “if

the pleadings, depositions, answers to interrogations, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact, and

that the moving party is entitled to judgment as a matter

of law.” Canderm Pharmacal, Ltd. v. Elder Pharmaceuti-

cals, Inc., 862 F. 2d 597, 601 (6th Cir. 1988). Only disputes

28a

over facts that might affect the outcome of the suit under

controlling law will preclude the entry of summary judg-

ment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). Factual disputes that are irrelevant or unnec-

essary will not be counted. Id. ;Boyd v. Ford Motor Co.,

948 F. 2d 283, 285 (6th Cir. 1991); Vollrath v. Georgia-

Pacific Corp., 899 F.2d 533, 534-35 (6th Cir.), cert. den.,

111 S. Ct. 345 (1990). Not only must the disputed facts be

material, the dispute must also be “genuine.” In other

words, it must involve evidence on which a jury could re-

turn a verdict for the nonmoving party. Anderson. 477 U.S.

at 248.

2) The moving party bears the initial burden to show

the district court that there is an absence of evidence to

support the nonmoving party's case. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). The moving party need not sup-

port its motion with affidavits “negating” the nonmoving

party’s claim; nor, does the focus fall on the weight or the

truth of the evidence. Id.; Anderson, 477 U.S. at 249. The

critical question is whether the party bearing the burden

of proof has presented a jury question as to each element

of its case. Celotex Corp., 477 U.S. at 322; Stein v. Na-

tional City Bank, 942 F. 2d 1062, 1064 (6th Cir. 1991).

3) Once the moving party has met its burden of pro-

duction, the nonmoving party may not rest on its plead-

ings. Goins v. Clorox Co., 926 F. 2d 559, 561 (6th Cir.

1991); Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.

2d 934, 937 (6th Cir. 1989). The nonmoving party must,

by deposition, answers to interrogations, and admissions

on file, show specific facts that reveal a genuine issue for

trial. Celotex Corp., 477 U.S. at 324;InterRoyal v. Sponseller,

889 F. 2d 108, 111 (6th Cir. 1989). In other words, the

nonmoving party must do more than simply show that

there is some metaphysical doubt as to the material facts.

Matsushita Elec. Industrial Co., v. Zenith Radio Corp., 475

U.S. 574, 586 (1986). It must submit significant probative

evidence in support of its complaint to defeat a motion for

summary judgment. Anderson, 477 U.S. at 249-59;

29a

Friedman v. United States, 927 F. 2d 259, 262 (6th Cir.

1991). This burden, however, does not arise until the mov-

ing party has met its initial burden.

4) In many respects, this standard is similar to the

standard applied when considering a motion for a directed

verdict. Summary judgment should be granted when the

evidence is such that it would require a directed verdict for

the moving party. Anderson, 477 U.S. at 25 1. If the evi-

dence viewed in the light most favorable to the nonmoving

party is so one-sided that one party must prevail as a

matter of law, then summary judgment should be granted.

See Morelock v. NCR Corp., 586 F. 2d 1096, 110405 (6th

Cir. 1987) (discussing the directed verdict standard), cert.

den., 441 U.S. 906 (1979).

5) In order to establish a right to relief under 42 U.S.C.

§ 1983, a plaintiff must plead and prove at least two ele-

ments: (1) that he has been deprived of a right secured by

the constitution and laws of the United States; and, (2)

that the defendant(s) deprived him of that right while act-

ing under color of state law. Parratt v. Taylor, 451 U.S.

527, 535 (1981); Nishiyama v. Dickson County, TN, 814 F.

2d 277, 279 (6th Cir. 1987) (en banc.)

6) In the present case there are several questions of

fact regarding what happened on the evening of August

27, 1990. The first question of fact is whether or not exces-

sive force was used against plaintiff. The deposition testi-

mony of plaintiff and Roy Hill indicates there was while

the deposition testimony of others indicates that only the

force necessary to subdue a physically aggressive patient

was used. Assuming that excessive force was used, a sec-

ond question of fact arises: were defendants Glover and/or

Ahlers present at the time or, if not, did they know what

was happening? Again, there is testimory supporting both

sides of this factual dispute.

7) Even if these factual disputes are resolved in favor

of the plaintiff, summary judgment may still be appropri-

ate if it is found as a matter of law that defendants Glover

and Ahlers bear no liability for failing to intervene on

30a

plaintiffs behalf. For purposes of the following discussion,

it will be assumed that excessive force was used on plain-

tiff and that defendants Ahlers and Glover were present in

the room while plaintiff was being beaten or they were

nearby and knew what was happening.

The Duty to Intervene

8) In Bruner v. Dunaway, 684 F. 2d. 422 (6th Cir.

1982), cert. den. sub nom., Botes v. Bruner, 459 U.S. 1171

(1983), the Sixth Circuit held that a police officer may bear

liability under § 1983 for failure to intervene when other

police officers are using excessive force on a plaintiff. This

liability applies even if the police officer in question did

not “actively participates in striking a plaintiff.” Id at

426. In other words, Bruner stands for the proposition that

“a police officer has a duty to try and stop another officer

who summarily punishes a person in the first officer's pres-

ence. "McHenry v. Chadwick, 896 F. 2d 184, 188 (6’h Cir.

1990) (analysis and interpretation of the Bruner decision).

Liability for failure to intervene is imposed equally on su-

pervisory as well as nonsupervisory personnel. Byrd v.

Brishke, 466 F. 2d 6, 11 (7th Cir. 1972) (cited with ap-

proval in Smith v. Ross, 482 F. 2d 33 (6th Cir. 1973)).

9) This form of constitutional tort liability is often ex-

pressed by the courts as a breach of a duty. This “duty”

has been described as a “duty to enforce the laws and

preserve the peace, ” Byrd at 11; “a statutorily imposed

duty to enforce the laws equally and fairly,” Smith at 36

(cited with approval in Bruner at 426); and, “a duty of

protection,” McHenry at 188. This “duty” is attributed to

“one who, is given the badge of authority of a police of-

ficer... "Byrd at 11.

10) Bruner was decided in the context of police officers

and was based on prior cases decided in the Sixth Circuit

and other Circuits involving police officers. Section 1983

liability for failure to intervene was later extended in

McHenry to include prison officials and guards. No cases

have been cited by the present litigants extending this

theory of liability beyond the realm of law enforcement in

3la

general or to employees of a state mental hospital in par-

ticular.

11) The question presented by the present motion, is

whether liability under § 1983 for failure to intervene can

or should be extended beyond the field of law enforcement

to include state employees like the present defendants.

Plaintiff seems to argue that if one group of state employ-

ees (law enforcement officers) are subject to this liability,

it follows ipso facto that all state employees may be held

liable for this tort. This sort of argument ignores the basic

and fundamental differences between law enforcement of-

ficers and other types of state employees. Unlike law en-

forcement officers, the present defendants have no duty,

statutory or otherwise, to enforce the laws or preserve the

peace and they carry no “badge of authority. ” The primary

function or duty of the present defendants is to provide

mental health treatment or to facilitate the giving of that

treatment by others.

12) The Magistrate Judge is reluctant to extend “fail-

ure to intervene” liability under § 1983 beyond the realm

of law enforcement. The imposition of “failure to inter-

vene” liability on law enforcement personnel is appropri-

ate given their peculiar duties and responsibilities. But,

the factors that have led the courts to impose this form of

liability on law enforcement personnel do not apply to other

types of state employees. Their duties are simply too dif-

ferent. The mere fact that law enforcement personne! are

state employees has never been found to be a sufficient

reason for this unique theory of liability and is an insuffi-

cient reason to extend liability to the present defendants.

13) As the only claim pending against defendants Glover

and Ahlers is that they failed to intervene on behalf of

plaintiff, and the Magistrate Judge has determined that

this form of liability does not extend to these defendants,

the questions of fact identified earlier are not material

issues of fact. There are no genuine issues of material fact

and movants are entitled to judgment as a matter of law.

32a

RECOMMENDATION

The Magistrate Judge, having made findings of fact

and conclusions of law, recommends that the motion for

summary judgment of defendants Donnie Glover and Becky

Ahlers be granted and they be dismissed from this action.

/sf_ =C. Gambill

C. Cleveland Gambill

United States Magistrate Judge

Date: 12-28-94

NOTICE

Within ten (10) days after being served a copy of these

proposed Findings and Recommendation, any party who

wishes to object must-file and serve written objections or

further appeal is waived. Thomas v. Arn, 728 F. 2d 813

(6th Cir. 1984), affd., 474 U.S. 140 (1985). 28 U.S. C. §

636(b)(1)(C); Fed. R. Civ. P. 72(b).

33a

CENTRAL STATE HOSPITAL

NURSING DEPARTMENT

_ JOB DESCRIPTION

Hospital Security Officer (7-3 & 3-11 Shifts)

Position ,

Performs non-professional services, non-technical tasks

in the direct care of psychiatric patients. Sees that

their physical, social and behavioral needs are met in

a safe environment. Performs these duties under su-

pervision.

Qualifications:

Education:

A high school diploma or GED equivalency.

Experience:

One year of sub-professional, paraprofessional or pro-

fessional nursing experience in a psychiatric facility is

preferred but not required. Related vocational or tech-

nical training is equivalent to experience on a year-to-

year basis. Orientation, including classroom and on

unit instruction, will be required. Supervision will be

given on the unit until necessary skills and know]-

edge of policies and procedures is obtained.

Command of the English language to read, write and |

speak. Ability to express ideas clearly and logically. |

Evidence of good mental and physical health includ-

ing visual and hearing capabilities; appropriate in

grooming, manners, and conduct.

Must have a valid Kentucky Driver's License.

Working Relationship:

Works directly under the supervision of the unit R.N.

or the L.P.N. if the R.N. is absent. Indirectly under

the unit L.P.N. and Shift Supervisor. Supervise no

one.

Workine Conditions:

Works in a well-lighted, highly secured, ventilated

work area. No heavy physical duties except when

34a

needed to assist in patient management. Occasional

health or accident hazards working with patients that

are hostile and violent. -

Res ibiliti

1. Responsible for Direct Patient Care

Standards:

l.a. Assists in activities of daily living, i.e., bath-

ing, gives shampoos, dressing, combing hair, cleaning

and trimming nails, oral care, check body functions,

supervises meals and other related duties

b. Assists with treatments and procedures, i.e.,

Vital Signs, Clinitests-each shift.

c. Assists with behavioral problem patients who

are upset, confused and violent. Assists in restrain-

ing and/or secluding them—as needed or requested.

d. Takes patients to and from therapeutic and

social activities and assists with games, taking pa-

tients for walks, etc.-as requested.

e. Assists in admitting new patient to unit, ori-

enting to unit and explaining unit rules -as needed.

f. Checks on patients in seclusion, restraint or on

suicide awareness q. 15 minutes-each shift.

g. Remains with patients on 1:1-each shift.

2. Transport Patients

Standards:

2.a. To transport patients in a safe and least re-

strictive manner as possible-ongoing

b. May transport or accompany patient to Humana

Hospital University (HHUYother support services off

and on campus-as requested.

3. Demonstrates Leadership Abilities

Standards:

3.a. Listens to off-going shift reports and makes

appropriate notations-each shift.

b. properly documents on appropriate authority

forms/checklists patient’s behavior, all special proce-

dures, responses and dailv ~~tines-each shift.

35a

c. Assists in orienting new Hospital Security Of-

ficer (HSO’s)-as requested.

d. Makes unit rounds checking and the mainte-

nance and safety of the physical area and reports im-

mediately to the nurse any unusual or potential dan-

gers-every 30 minutes and as requested.

e. Assists in maintaining cleanliness of unit (i.e.,

straightening bathrooms, kitchen, Activity and T.V.

Rooms, emptying waste baskets, returning food trays

to Dining Room, etc.)-each shift.

f. Responsible for receiving and transporting

patient’s money and valuables to the appropriate de-

partment-as needed.

g. Writes orders for Canteen purchases-as re-

quested by nurse or social worker.

h. Searches newly admitted patients, their lug-

gage, bags, etc.-as needed.

4. Demonstrates Skills in Interpersonal Relationships

4.a. Establishes a rapport with the patients-ongo-

ing.

b. Establishes functional rapport with peers and

supervisory personnel-ongoing.

c. Assists in the formulation and implementation

of the patients treatment plan-ongoing.

d. Provides feedback regarding patient’s partici-

pation in Treatment Plans to Treatment Team and

Supervisor-ongoing.

e. Observes patient’s behavior and reports imme-

diately any change to the nurse in charge-ongoing.

f. Maintains patient’s and staff's confidentiality-

ongoing.

5. Demonstrates Cooperation

Standards:

5.a. Searches for AWOL’s, assists with unit emer-

gencies, i.e., Code One’s, Blue Flash, Manpowers and

other emergencies-as needed.

36a

b. Responsible for compliance of hospital policies

and procedures-ongoing.

c. Distributes supplies used for patient care

efficienty-ongoing.

d. Attends unit meetings, inservices-as scheduled.

e. Performs other duties of a non-professional na-

ture as assigned by nurse in charge or supervisor-as

required.

I HAVE READ THE JOB DESCRIPTION AND FULLY

UNDERSTAND THE REQUIREMENTS SET FORTH. I

ACCEPT THE POSITION HOSPITAL SECURITY OF-

FICER AND AGREE TO ABIDE BY THE REQUIRE-

MENTS SET FORTH AND WILL PERFORM ALL DU-

TIES AND RESPONSIBILITIES TO THE BEST OF MY

ABILITY.

Date: 2-5-90

/s/ [Illegible]

Employee’s Signature

Date: 2-7-90

/s/ L. Evelyn Norris, R.N.

Supervisor's Signature

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.