Bee v. Greaves, 82-1288

Citation744 F.2d 1387
Decision Date24 September 1984
Docket NumberNo. 82-1288,82-1288
PartiesDaniel Howard BEE, Plaintiff-Appellant, v. Dr. Keith GREAVES, Medic Keith Hughes and Dr. Robert Greer, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Brian M. Barnard, Salt Lake City, Utah (John W. Porter, Salt Lake City, Utah, with him on the brief), for plaintiff-appellant.

Patricia J. Marlowe, Deputy County Atty., Salt Lake City, Utah (Ted Cannon, Salt Lake County Atty., Salt Lake City, Utah, with her on the brief), for defendants-appellees.

Before HOLLOWAY, SEYMOUR and BOHANON, * Circuit Judges.

SEYMOUR, Circuit Judge.

Daniel Howard Bee filed this action for damages under 42 U.S.C. Sec. 1983 (1976), claiming that employees of the Salt Lake County Jail in Utah administered the antipsychotic drug thorazine to him against his will while he was detained there prior to trial. Defendants include the sheriff, the director of security in the jail, the supervisor of the jail, the jail physician, a psychiatrist employed by Salt Lake County Mental Health, and several county commissioners. Defendants do not deny that Bee was forcibly medicated, but they assert that a variety of state interests justified the procedure. The district court granted summary judgment for defendants. Because we believe there are material, disputed fact issues which preclude summary judgment, we reverse.

I. BACKGROUND

When reviewing a summary judgment, we consider the record in the light most favorable to the party opposing the motion, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), and resolve all ambiguities and disagreements in his favor. Security National Bank v. Belleville Livestock Commission Co., 619 F.2d 840, 847 (10th Cir.1979); Webb v. Allstate Life Insurance Co., 536 F.2d 336, 339-40 (10th Cir.1976). Viewed in this light, the record reflects the following facts.

Plaintiff Bee was booked into the Salt Lake County Jail on August 9, 1980. Within four days, the jail staff had referred him to the mental health staff because he was hallucinating. On August 15, Bee complained to the jail staff because he was not receiving thorazine and threatened to kill himself if the jail refused to provide him with the drug. The jail placed Bee in isolation, and a jail psychiatrist evaluated him. The jail physician prescribed thorazine which Bee took voluntarily at that time.

On August 26, the jail referred Bee to the Utah State Hospital for an evaluation of his competency to stand trial. At the hospital, Dr. Breck Lebegue diagnosed Bee as a schizophrenic and prescribed thorazine for him. The hospital returned Bee to the jail on September 23, and Dr. Lebegue wrote a letter to the state court stating his opinion that Bee was "competent to stand trial at this time in that he has the ability to comprehend the nature of the charges against him and the punishment specified for the offense charged and has the ability to assist his counsel in his defense." Rec., vol. I, at 126. See also Utah Code Ann. Sec. 77-15-2 (1982). The next day, the state court declared after a hearing that Bee was competent to stand trial. By a minute order, the court ordered Bee medicated with thorazine each evening.

Bee took thorazine voluntarily until about October 7, when he complained that he was having problems with the drug. Beginning October 16, he refused thorazine treatment for five days. The jail's psychiatrist, Dr. Greer, determined that Bee was "decompensating" as a result. 1 He ordered Bee forcibly medicated with thorazine any time that Bee refused to take his medication orally. On October 21, a jail medic named Keith Hughes and three other jail officers administered Bee's medication forcibly by injection with the express purpose of "intimidat[ing] him so he wouldn't refuse the oral medication anymore." Rec., vol. III, Hughes Dep. at 24. When Bee again refused to take the thorazine on October 23, Hughes and a jail guard threatened Bee with another forcible injection. Confronted with this alternative, Bee acquiesced in an oral dose of thorazine. As late as November 11, more than three weeks after Bee's initial refusal, the jail staff remained under standing orders to forcibly medicate Bee if he refused the thorazine. 2 Bee took the medicine orally only because of this intimidation.

In the trial court, both sides moved for summary judgment. Bee contended that at best the side effects of antipsychotic drugs such as thorazine are extremely disabling, and that at worst they can inflict serious, permanent injury. 3 Defendants did not dispute the possible side effects of thorazine. In fact, Dr. Greer's deposition testimony tends to support Bee's description of the possible adverse consequences of the drug. 4 See generally, Rennie v. Klein, 653 F.2d 836, 843-44 (3d Cir.1981) (en banc) (discussing potential adverse side effects of antipsychotic drugs), vacated and remanded on other grounds, 458 U.S. 1119, 102 S.Ct. 3506, 73 L.Ed.2d 1381 (1982), on remand, 720 F.2d 266 (3d Cir.1983) (en banc); Davis v. Hubbard, 506 F.Supp. 915, 928-29 (N.D.Ohio 1980) (same). See also Mills v. Rogers, 457 U.S. 291, 293 n.1, 102 S.Ct. 2442, 2445 n.1, 73 L.Ed.2d 16 (1982). Defendants asserted instead that pretrial detainees have no constitutional right to refuse medical treatment while they are incarcerated. Assuming there is such a right in some circumstances, however, defendants also argued that their actions in medicating Bee were based on legitimate governmental concerns that outweighed any constitutional right Bee might have. The trial judge agreed with defendants and in a short decision from the bench granted summary judgment in their favor.

II. THE RIGHT OF PRETRIAL DETAINEES TO REFUSE ANTIPSYCHOTIC DRUGS

Initially we note the Supreme Court's recognition that pretrial detainees retain certain constitutional rights:

"[W]e have held that convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.... So, for example, our cases have held that sentenced prisoners enjoy freedom of speech and religion under the First and Fourteenth Amendments, ... that they are protected against invidious discrimination on the basis of race under the Equal Protection Clause of the Fourteenth Amendment, ... and that they may claim the protection of the Due Process Clause to prevent additional deprivation of life, liberty, or property without due process of law... A fortiori, pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners."

Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979) (citations omitted) (emphasis added). The threshold issue, therefore, is whether pretrial detainees have a constitutional right to refuse treatment with antipsychotic drugs. Bee claims a liberty interest in avoiding the unwanted administration of antipsychotic drugs protected by the Due Process Clause of the Fourteenth Amendment. He grounds the asserted liberty interest in the right to privacy, including the right to make one's own decisions about fundamental matters, the rights to personal dignity and bodily integrity, and the right to communicate ideas freely. 5 We discuss these grounds seriatim. We then consider the competing state interests asserted by defendants which weigh against a pretrial detainee's right to refuse antipsychotic drugs.

A. The Interest in Avoiding Unwanted Administration of

Antipsychotic Drugs

In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court stated that "only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), are included in this guarantee of personal privacy." 410 U.S. at 152, 93 S.Ct. at 726. The determination of whether a right is fundamental begins with an examination of " 'the teachings of history [and] solid recognition of the basic values that underlie our society.' " Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1937, 52 L.Ed.2d 531 (1977) (quoting Griswold v. Connecticut, 381 U.S. 479, 501, 85 S.Ct. 1678, 1690, 14 L.Ed.2d 510 (1965) (Harlan, J., concurring)).

In Davis v. Hubbard, 506 F.Supp. 915, a case challenging the conditions at a state mental institution, the court probed the historical basis of the right to refuse unwanted medical treatments and pointed out that the law of torts has long recognized a person's interest in making decisions about his body. In the context of medical treatment, the court noted that

"treatment by a physician in a non-emergency that is rendered without the patient's informed consent, or [that] exceeds the consent given, is actionable as a battery. See, e.g., Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905); Pratt v. Davis, 224 Ill. 300, 79 N.E. 562 (1906); Rolater v. Strain, 39 Okl. 572, 137 P. 96 (1913); Schloendorff v. Society of New York Hospitals, 211 N.Y. 125, 105 N.E. 92 (1914) (Cardozo, J.); Wells v. Van Nort, 100 Ohio St. 101, 125 N.E. 910 (1919). The principle which supports the doctrine of informed consent is that only the patient has the right to weigh the risks attending the particular treatment and decide for himself what course of action is best suited for him.

'The very foundation of the doctrine of [informed consent] is every man's right to forego treatment or even cure if it entails what for him are intolerable consequences or risks, however warped or perverted his sense of values may be in the eyes of the medical profession, or even of the community, so long as any distortion falls short of what the law regards as incompetency. Individual freedom here is guaranteed only if people are given the right to make choices which would generally be regarded as foolish.'

"2 F. Harper & F. James, Jr., The Law of Torts 61 (1968 Supp.) (emphasis in...

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