Bonds v. Missouri Dept. of Mental Health

• Decision Date: 04 October 1994
• Docket Number: No. WD,WD
• Parties: Linda Renee BONDS, Appellant, v. MISSOURI DEPARTMENT OF MENTAL HEALTH, et al., Respondents. 48919.
• Court: Missouri Court of Appeals

Page 418

887 S.W.2d 418

Linda Renee BONDS, Appellant, v. MISSOURI DEPARTMENT OF MENTAL HEALTH, et al., Respondents.

No. WD 48919.

Missouri Court of Appeals Western District.

Oct. 4, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 29, 1994.

Michael H. Finkelstein, Kevin A. Thompson, Missouri Protection & Advocacy Services, Inc., Jefferson City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for respondents.

Before ELLIS, P.J., and BERREY and SMART, JJ.

ELLIS, Presiding Judge.

Linda Renee Bonds appeals the trial court's decision dismissing her petition for failure to state a claim upon which relief could be granted. Bonds was confined to the Biggs Forensic Center at Fulton State Hospital for psychiatric evaluation prior to standing trial for the first degree murder of her minor daughter. On the morning of February 24, 1991, Bonds was placed in "seclusion" by Dr. Hor, a staff physician, after becoming hostile and physically aggressive with members of the hospital staff. "Seclusion" is similar to solitary confinement in penal institutions and requires a physician's order. Dr. Richard Bowers, another staff doctor, continued Bonds' seclusion after reviewing her status on the 25th, 26th, 27th and 28th of February. Bonds was released from seclusion on the morning of February 28 after a meeting of her treatment team.

In response to her seclusion, Bonds brought this action for declaratory and injunctive relief as well as monetary damages in the Circuit Court of Cole County. The Department of Mental Health, the Director of the Department, Keith Schafer, and Dr. Bowers were named as defendants. After considerable discovery, Bonds moved for partial summary judgment and Respondents filed a cross-motion for summary judgment on October 26, 1993. On December 1, 1993, the trial court dismissed the case for "failure to state grounds upon which relief can be granted." We affirm.

Count I of Bonds' petition claimed that Respondents violated § 630.175, RSMo 1986, ¹ by placing her in seclusion for improper reasons and that this violation deprived her of her "liberty rights" as well as causing mental harm. Count II alleged the Respondents did not provide an impartial review of her allegations of improper seclusion in violation of § 630.115 and this was a deprivation of her "substantive right to specified procedural protection of statutory rights" and caused her to suffer mental harm. In Count III, Bonds asserted that Dr. Bowers intentionally deprived her of her liberty without due process of law in violation of her constitutional rights and civil rights under 42 U.S.C. § 1983 (1988).

As a preliminary matter, in order to determine the proper standard of review, it is necessary to determine whether the trial court dismissed the petition on the pleadings only or if the dismissal was a grant of summary judgment. Although the court stated it was dismissing the case for failure to state a claim, that ground for dismissal was included in Respondents' cross-motion for summary judgment. The trial court was presented with depositions, affidavits, and other documentary evidence with that cross-motion. Only those matters appearing on the face of the petition can be considered in a motion to dismiss for failure to state a claim. Empiregas, Inc. v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 660 & n. 4 (Mo.1974); Feinstein v. Edward Livingston & Sons, Inc., 457 S.W.2d 789, 792 (Mo.1970). When matters outside the pleadings are presented by both parties and not excluded by the trial court, a motion to dismiss a pleading for failure to state a claim upon which relief can be granted is to be treated as one for summary judgment. Rule 55.27(a); Black Leaf Prods Co. v. Chemsico, Inc., 678 S.W.2d 827, 829 (Mo.App.1984). Thus, even if the cross-motion could be considered a motion to dismiss, the presentation of materials outside the pleadings by both parties automatically converted it into a motion for summary judgment. Howard v. Armontrout, 729 S.W.2d 547, 548 (Mo.App.1987); Geary v. Missouri State Employees' Retirement Sys., 878 S.W.2d 918, 921 (Mo.App.1994).

We therefore review the trial court's order under the summary judgment standard of review. "Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law." ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The propriety of summary judgment is purely an issue of law which we review de novo on the record submitted and the law. Id.

When reviewing the entry of summary judgment, we view the evidentiary record in the light most favorable to the party against whom summary judgment was granted, determine if any genuine issue of fact exists which would require a trial, and determine if the judgment is correct as a matter of law. We will affirm if the judgment is sustainable as a matter of law under any theory.

State ex rel. Conway v. Villa, 847 S.W.2d 881, 886 (Mo.App.1993) (citations omitted); Rule 74.04(c). A genuine issue of fact exists where the record contains competent evidence that two plausible but contradictory accounts of essential facts exist. ITT Commercial Fin. Corp., 854 S.W.2d at 382.

Although Counts I and II of Bonds' petition contain no explicit reference to 42 U.S.C. § 1983, Bonds claims, and we will assume for the purpose of analysis, that both of these counts alleged violations of her civil rights under § 1983. "Section 1983 does not create a federal cause of action for every injury caused by official action. Rather, section 1983 provides a federal remedy only for actions taken under color of state law, that deprive citizens of their federal constitutional or statutory rights." Avenson v. Zegart, 577 F.Supp. 958, 961 (D.Minn.1984) (citations omitted). A claim of violation of a state law, even if true, is not equivalent to a violation of federal constitutional rights to due process of law. Johnson v. Clinton, 763 F.2d 326, 327 (8th Cir.1985). However, state law or regulations can create a constitutionally protected liberty interest. Williams v. Armontrout, 852 F.2d 377, 379 (8th Cir.), cert. denied, 488 U.S. 996, 109 S.Ct. 564, 102 L.Ed.2d 589 (1988). Such an interest is deemed created if (1) the statute contains particularized substantive standards or criteria that significantly guide decisionmakers; and (2) the statute uses mandatory language requiring the decisionmakers to act in a certain way. Id. Put another way, a statute which creates a protected liberty interest is one which creates a certain right or entitlement imposing substantive limits on the discretion of state officials and is subject to specified factual findings. See Meis v. Gunter, 906 F.2d 364, 368 (8th Cir.1990) (finding no constitutionally protected liberty interest in a Nebraska statute which required committed persons be informed of the rules and policies related to their institutionalization), cert. denied, 498 U.S. 1028, 111 S.Ct. 682, 112 L.Ed.2d 673 (1991).

Section 630.175, which is the basis for Count I, provides in pertinent part:

1. No patient, resident or client of a residential facility or day program operated, funded or licensed by the department shall be subject to physical or chemical restraint, isolation or seclusion unless it is determined by the head of the facility or the attending licensed physician to be necessary to protect the patient, resident, client or others....

3. Physical or chemical restraint, isolation or seclusion shall not be considered standard treatment or habilitation and shall cease as soon as the circumstances causing the need for such action have ended.

Section 630.115.2, which is the basis for Count II, states:

Notwithstanding any other sections of the chapter, each patient, resident or client shall have the right to an impartial review of alleged violations of the rights assured under this chapter.

Bonds places significant emphasis on the fact that both statutes use the word "shall" and that § 630.115.2 specifically states a patient "shall have the right" as evidence of the mandatory nature of the statutes. However, this terminology is not necessarily determinative of the legislature's intention as to whether the statute is mandatory or directive. In State v. Ciarleglio, 807 S.W.2d 100 (Mo.App.1990), the court stated:

In determining whether a statute is mandatory or directory, the general rule is that when a statute provides what results shall follow a failure to comply with its terms, it is mandatory and must be obeyed; however, if it merely requires certain things to be done and nowhere prescribes results that follow such a statute is merely directory.

Id. at 104 (quoting State v. Conz, 756 S.W.2d 543, 546 (Mo.App.1988)).

Applying this standard to §§ 630.175 and 630.115.2, it is clear that neither create a constitutionally protected liberty interest. Although the language in § 630.175 sets out guidelines for the restraint of patients, the decision whether such restraint is needed, or needs to continue, is left to the discretion of the staff physicians. All that is required is that the head of the facility or attending physician decide that use of seclusion is "necessary" for the protection of the patient or others. Requiring a determination of what is "necessary" does not amount to a detailed listing of specified factual findings which, if present, mandates a certain outcome. This lack of specificity and grant of discretion to staff physicians prevents this statute from creating a constitutionally protected liberty interest. Additionally, § 630.115.2 does not provide any particularized substantive standards to guide decisionmakers. The section grants a right to an impartial review without any specific requirements as to the timing or procedures to be...