Wells v. Franzen

Decision Date26 March 1985
Docket NumberNo. 84-1669,84-1669
Citation777 F.2d 1258
PartiesDouglas WELLS, Plaintiff-Appellant, v. Gayle FRANZEN, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Douglas Wells, pro se.

Patricia Rosen, Atty. Gen. of Ill., Chicago, Ill., for defendants-appellees.

Before CUMMINGS, Chief Judge, and WOOD and CUDAHY, Circuit Judges.

CUDAHY, Circuit Judge.

Pro se plaintiff, Douglas Wells, an inmate at the Menard, Illinois, Correctional Center, filed suit for damages and for declaratory and injunctive relief against various prison officials for injuries stemming from his nine-day confinement in bodily restraints. The magistrate granted summary judgment for defendants. We reverse.

This lawsuit concerns an episode in which plaintiff was confined to a bed after prison officials concluded that he might be suicidal. Plaintiff alleges that without being examined by a physician or psychiatrist he was "shackled" by his four limbs to a bed in the Menard Medical Unit. After four days, plaintiff was interviewed briefly by a psychiatrist and, although he denied ever expressing suicidal intentions, remained tied down for another five days. During this nine-day period, plaintiff alleges he was not allowed to shower, have clean bedding, use the bathroom, have regular access to water, send or receive mail, possess reading material or anything other than his underpants and was unable to prepare a defense to unrelated disciplinary charges. Plaintiff claims that the restraints were carelessly applied, causing abrasions and bruises and restricting blood flow to his limbs. Plaintiff also states that he was allowed to use a urinal pitcher only at the convenience of prison guards and that it would stand unemptied for two days at a time with its contents rotting on the bed-table next to him, while he ate his meals with one hand. Despite repeated complaints of itching, headaches and a rash, which were all exacerbated by plaintiff's inability to minister to his own complaints, plaintiff alleges that he did not receive medical attention for days. He also contends that an officer vetoed a nurse's recommendation that plaintiff be allowed to shower. Finally, plaintiff asserts that at no time did he ever attempt to harm himself.

I.

Plaintiff first complains that his due process rights were violated by virtue of his restraint. This is one of plaintiff's most serious claims, yet it was apparently given scant attention by the magistrate. The due process clause of the United States Constitution guarantees to every person freedom of bodily movement. Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). This right survives criminal conviction. Id. See also Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18, 99 S.Ct. 2100, 2109, 60 L.Ed.2d 668 (1979) (Powell, J., concurring); Johnson ex rel. Johnson v. Brelje, 701 F.2d 1201, 1209 (7th Cir.1983). It protects mental patients, see Parham v. J.R., 442 U.S. 584, 601, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) (voluntarily committed juvenile); Youngberg, 457 U.S. at 316, 102 S.Ct. at 2458 (low-I.Q. adult lacking self-care skills), and pre-trial detainees who are mentally unfit to stand trial, Brelje, 701 F.2d at 1208-09. Convicted prisoners who are assertedly suffering from mental illness also retain such a right. 1

Freedom of bodily movement is a substantive right derived from the due process clause, and it is breached when a prisoner is bodily restrained except pursuant to an appropriate exercise of judgment by a health professional. 2 See Youngberg, 457 U.S. at 321-23, 102 S.Ct. at 2461-62. See also Brelje, 701 F.2d at 1209. While a decision to restrain a prisoner as a suicide risk is presumptively valid when it is made by a professional in accordance with professional standards, cf. Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 2462, 73 L.Ed.2d 28 (1982); Johnson ex rel. Johnson v. Brelje, 701 F.2d 1201, 1209 (7th Cir.1983), it is the duty of a court to ensure that professional judgment in fact was exercised in the decision to restrain. See Youngberg, 457 U.S. at 321, 102 S.Ct. at 2461; Brelje, 701 F.2d at 1209. Due process requires that the nature and duration of physical restraint bear some reasonable relation to the purpose for which it is prescribed. See Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972).

Long-term restraint decisions should be made by psychiatric personnel. Cf. Youngberg, 457 U.S. at 324 n. 30, 102 S.Ct. at 2462 n. 30. Shorter-term decisions are appropriately made by nurses and non-psychiatric physicians. Of course, in emergencies it may not be possible to contact medical personnel, and liability cannot be imposed on lay prison employees when circumstances dictate that immediate action be taken. Id. However, these emergency circumstances cannot justify confinement for several days without a proper determination by the appropriate health professional.

We emphasize that we are not prescribing a simple malpractice standard. As the Supreme Court has stated:

[L]iability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.

Youngberg, 457 U.S. at 323, 102 S.Ct. at 2462. Federal courts should avoid undue interference with the operations of state institutions. Judges and juries are not better qualified than trained professionals to determine an appropriate treatment, id., and the due process standard is based on norms set by the mental health professionals, see id. Prison administration is a difficult undertaking at best, Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974), and obviously many aspects of constitutional rights which would otherwise apply do not apply inside prison walls. On the other hand, there is no indication here that plaintiff was a threat to anyone other than himself. In contrast, in Youngberg v. Romeo, the respondent was unable to care for his own personal hygiene and was prone to violent rages, yet the Supreme Court held that he retained a right to be free from bodily restraints absent a professional determination that that treatment was appropriate. 457 U.S. at 309-11, 324, 102 S.Ct. at 2454-55, 2462. The same standard applies here.

At trial, plaintiff would have the burden of proving that the bodily restraint employed here constituted a substantial departure from accepted professional practice. See id. at 323, 102 S.Ct. at 2462; Brelje, 701 F.2d at 1209. However, this appeal comes to us after a grant of summary judgment for defendants, and it is, therefore, defendants' burden to show that no disputed issues of material fact exist; see Blue Ribbon Feed Co., Inc. v. Farmers Union Central Exchange, 731 F.2d 415, 419-20 (7th Cir.1984). In support of their motion for summary judgment, defendants filed photocopies of handwritten documents labeled "Menard Correctional Center, Nurses Notes." These papers were unaccompanied by certifying affidavits or other means of authentication, as required by Rule 56(e), Fed.R.Civ.P., and hence cannot be considered, see Martz v. Union Labor Life Insurance Co., 757 F.2d 135, 138 (7th Cir.1985). In any event, even if properly authenticated and admissible under an exception to the hearsay rule, which of course generally applies on summary judgment, see Pfeil v. Rogers, 757 F.2d 850, 860 (7th Cir.1985), the notes do not demonstrate that defendants are entitled to judgment as a matter of law. Typical is the entry for 9:00 a.m., September 22, 1979, by a nurse whose signature is illegible. The entry states: "Rounds made by Dr. Herath, Orders written [and] carried out." This entry does not indicate whether Dr. Herath actually examined or talked to the plaintiff nor does it explain the nature of the orders given. Other notations are similarly cryptic. It is impossible to tell from documents like these whether plaintiff's continued restraint satisfied due process.

In his complaint, plaintiff alleges that, when he was first referred to the Menard medical unit, he was briefly interviewed by a nurse, who then spoke with a physician. This doctor then ordered the measures of restraint. There is nothing in the record, however, to indicate that the physician actually examined the plaintiff. Further, even if evidence adduced at trial can establish that the initial emergency restraint of plaintiff was professionally reasonable under the circumstances, this does not demonstrate the propriety of plaintiff's continued confinement. Further, plaintiff agrees that he was interviewed by a psychiatrist on the fifth day of his confinement, but he asserts that this interview was "shallow." At this stage of the litigation we cannot say that this interview was adequate to enable the psychiatrist to make a decision based on the exercise of professional judgment. Specifically the question is whether one such interview is professionally adequate to justify four more days of bodily restraint. It is impossible for us to determine whether the circumstances surrounding plaintiff's restraint represented a substantial departure from the relevant professional standards. Indeed, there is no evidence in the record to indicate what the applicable professional standards might be. 3

Plaintiff also alleges that prison guards--apparently acting independently of Menard's medical personnel--ordered that he was not allowed to take a shower, have clean bedding, be released from more than one binding while eating, get up to use the bathroom, have a plastic water pitcher or possess any items besides the shorts that he was wearing. Defendants, some of whom are these guards, do not indicate whether there were bona fide security justifications for these restrictions; however, plaintiff's due process right to be free of bodily restraint absent a...

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