Houghton v. South, 91-35124

Decision Date11 June 1992
Docket NumberNo. 91-35124,91-35124
Citation965 F.2d 1532
PartiesHenderson Duval HOUGHTON, Plaintiff-Appellant, v. Carroll V. SOUTH, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Allen Smith, Jr., Warm Springs, Mont., for plaintiff-appellant.

Allen B. Chronister, Chronister, Driscoll & Moreen, Helena, Mont., for defendant-appellee.

Appeal from the United States District Court for the District of Montana.

Before WALLACE, Chief Judge, HUG and RYMER, Circuit Judges.

WALLACE, Chief Judge:

Houghton appeals from the district court's summary judgment entered in favor of South, Director of the Montana Department of Institutions. The district court exercised jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We reverse and remand.

I

In 1980, Houghton was charged in Montana state court with the crime of deviant sexual conduct. The court initially committed Houghton to Warm Springs State Hospital (hospital) for an evaluation of his fitness to stand trial. On July 1, 1981, Houghton was placed in the hospital's Maximum Security Unit (MSU) pursuant to a policy instituted by South in April 1981. The policy set forth procedures for the transfer of criminal court order patients from the hospital's MSU to less restrictive treatment units as a part of those patients' treatment plans. It required that: (1) the mental health professionals in charge of the patient's treatment make a recommendation for transfer; (2) the recommendation be reviewed by the hospital's Forensic Review Board; (3) the Forensic Review Board's recommendation be reviewed by the hospital's Chief Executive Officer; and (4) the recommendation be reviewed by the Director (South). Houghton alleges that he was subject to an additional requirement that the committing court also approve the transfer.

On November 23, 1981, Houghton was acquitted of all criminal charges on the basis of mental disease or defect. The court committed Houghton to the hospital for detention and treatment, where he was again placed in the MSU. The psychiatrist in charge of Houghton's treatment concluded that his placement in the MSU was inappropriate. In January 1982, the psychiatrist in charge of Houghton's treatment formally recommended that Houghton be transferred to a less restrictive unit. That recommendation was approved by the Forensic Review Board, consisting of professionals from throughout the hospital, and the hospital superintendent. South did not formally act on the recommendation. However, in December 1982, South requested additional information from hospital professionals concerning their request to transfer Houghton. The professionals responded in writing later that month. South, however, issued no written response to the hospital's original or renewed recommendations for Houghton's transfer.

In January 1984, the professionals in charge of Houghton's treatment, the Forensic Review Board, and the superintendent again recommended Houghton's transfer from the MSU. South approved a petition for Houghton's transfer from the MSU in February 1984. However, Houghton was not transferred to a less restrictive unit because South refused to order the transfer without approval from the state court. The state court refused to assert jurisdiction over Houghton's transfer. Houghton was finally transferred to a less restrictive unit, without state court approval, in April 1985, pursuant to a writ of habeas corpus.

Proceeding pro se, Houghton filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging violations of his fourteenth amendment rights. South moved to dismiss the complaint, and the district court referred the motion to a magistrate judge. The district court later adopted the findings and recommendation of the magistrate judge and dismissed Houghton's complaint for failure to state a claim. Houghton appealed. We affirmed in part, reversed in part, and remanded, holding that "[o]n the basis of the record before us we cannot say that Houghton has failed to state a claim under section 1983 with respect to the restraints to which he is subject." Houghton v. South, 743 F.2d 1438, 1441 (9th Cir.1984) (Houghton I ).

On remand, the magistrate judge conducted an evidentiary hearing on the restraint issue, and again recommended dismissal of Houghton's action. The district court adopted the recommendation. Houghton appealed, and we reversed in order to permit Houghton to amend his complaint to challenge the hospital's internal transfer policy as it had been applied to him. Houghton v. South, 865 F.2d 264 (9th Cir.1988) (unpublished memorandum) (Houghton II ).

Following remand, Houghton secured counsel and filed an amended complaint alleging that the hospital's transfer policy violated his due process and equal protection rights under the fourteenth amendment. South moved for summary judgment arguing among other contentions, that he was entitled to qualified immunity from liability. The motion was again referred to the magistrate judge who made findings and recommended that South was entitled to qualified immunity. The district court agreed and granted the motion for summary judgment. Houghton now appeals for the third time.

II

Government officials performing discretionary functions may enjoy qualified immunity from section 1983 liability for actions performed in the course of their official duties, "insofar as their conduct does not violate clearly established statutory or constitutional rights 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) (Harlow ). We first review the district court's order holding South entitled to qualified immunity with respect to Houghton's due process claim.

"[T]he appealable issue is a purely legal one: whether the facts alleged (by the plaintiff, or, in some cases, the defendant) support a claim of violation of clearly established law." Mitchell v. Forsyth, 472 U.S. 511, 528 n. 9, 105 S.Ct. 2806, 2816 n. 9, 86 L.Ed.2d 411 (1985). A right is "clearly established" when "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (Anderson ). This requires more than an alleged "violation of extremely abstract rights." Id. at 639, 107 S.Ct. at 3039. The official's action, however, need not previously be held unlawful. Id. at 640, 107 S.Ct. at 3039. Rather, the unlawfulness must be apparent in light of preexisting law. Id. "[T]he proper fact-specific inquiry under Anderson is not whether the law is settled, but whether, in light of clearly established law and the information available to him, a reasonable person in [South's] position could have objectively believed his actions to be proper." Floyd v. Laws, 929 F.2d 1390, 1394 (9th Cir.1991), citing Anderson, 483 U.S. at 641, 107 S.Ct. at 3039.

Houghton bears the initial burden of proving that the rights allegedly violated by South were clearly established at the time of the alleged misconduct. Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984); Baker v. Racansky, 887 F.2d 183, 186 (9th Cir.1989). South then carries the burden of proving that his "conduct was reasonable under the applicable standards even though it might have violated [Houghton's] constitutional rights." Benigni v. City of Hemet, 879 F.2d 473, 480 (9th Cir.1988) (Benigni ).

A.

Houghton argues that Youngberg v. Romeo, 457 U.S. 307, 324, 102 S.Ct. 2452, 2462, 73 L.Ed.2d 28 (1982) (Youngberg ), clearly established that institutionalized persons have a substantive due process liberty interest in "reasonably nonrestrictive confinement conditions, ... [which] would comport fully with the purpose of ... confinement." Youngberg involved a profoundly mentally retarded individual, institutionalized by his mother because she was unable to care for him. She later sued the institution, complaining about the adequacy of his care. The Court held that persons committed to state mental institutions enjoy constitutionally protected interests in "reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests." Id.

The magistrate judge found that Youngberg was not decided until several months after South rejected Houghton's initial transfer request. We review this finding of fact for clear error. United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Youngberg was decided in June 1982; after the hospital's January 1982 request to transfer Houghton, but before any decision had been rendered by South. Although the magistrate judge found that South's decision to deny Houghton's transfer was made prior to Youngberg, the record does not support this finding.

In December 1982, South requested additional information from the hospital professionals regarding the hospital's recommendation for Houghton's transfer to a less restrictive environment. In a memorandum, dated December 29, 1982, the acting director of the hospital's treatment services division responded to South's request for additional information. Thus, as of December 1982, South had not finally decided whether or not to transfer Houghton. South has pointed to no evidence supporting the magistrate judge's finding that the decision to deny Houghton's transfer was made prior to the decision in Youngberg. Although the record does not reflect when, if ever, South formally denied the staff's recommendations, the record is clear that the decision not to transfer Houghton was made at least six months after Youngberg was decided. Even if the magistrate judge correctly found that an initial decision had been made before June 1982, the recommendation was renewed...

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