URBOM, Senior District Judge.
The defendant Louis Martin, M.D., by a judgment entered by Magistrate Judge David L. Piester on April 7, 1992, was held liable for allowing physical restraints to be kept on the plaintiff for some 39 hours while the plaintiff was confined as a pretrial detainee at the Douglas County Hospital. All claims, except the one at issue here, were resolved against the plaintiff. Judgment was for $7,500 in damages and $21,025.82 in attorney's fees and expenses. I now reverse the judgment and dismiss the case.
Trial was before the magistrate judge by consent of the parties and appeal by their consent was to a district judge. Appeal, according to 28 U.S.C. § 636(c)(4) is "on the record ... in the same manner as on an appeal from a judgment of the district court to a court of appeals." Accordingly, findings of fact are to be accepted unless "clearly erroneous." Findings are clearly erroneous "if, in consideration of the entire record, the appellate court is left with the definite and clear conviction that a mistake has been made." Propst v. Leapley, 886 F.2d 1068, 1070 (8th Cir.1989). Fully appreciative of the fact that the magistrate judge saw and heard the witnesses testify, I nonetheless am left with the definite and clear conviction that a mistake has been made. I also conclude that an erroneous legal standard was applied.
The facts as found by the magistrate judge in his memorandum opinion, as they relate to the Douglas County Hospital incident, are carefully described. The critical times are from about 6:00 p.m. on November 22, 1982, to about 9:00 a.m. on November 24, 1982. Restraints — five point restraints — began at approximately 6:00 p.m. on November 22 and the magistrate judge found that the initiation of those restraints was proper.
On the other hand, the magistrate judge found the continued use of restraints — gradually reduced from five-point to one-point — to have been violative of the standard he applied. In arriving at that conclusion the magistrate judge quoted Putman v. Gerloff, 639 F.2d 415, 420 (8th Cir.1981). The standard there used was:
"Thus, a proper instruction on the overnight chaining would have told the jury that as pretrial detainees, Putman and Favors had the right not to be punished. If the plaintiffs were chained overnight to be punished, they were then deprived of liberty without due process. The jury may find direct evidence of intent to punish, or it may infer that this intent existed if it finds that the overnight chaining was not reasonably related to insuring the presence of Putman and Favors at trial and preserving the security of the jail, or if those purposes could have been achieved by alternative and less harsh methods."
The standard applicable when medical professional decisionmakers are determining when restraints are proper is articulated in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), which involved a mentally retarded person who was involuntarily committed to a state institution. The Court held that under the due process clause of the Fourteenth Amendment a person so confined has a protected liberty interest in freedom from unreasonable bodily restraints and to reasonably safe conditions of confinement, as well as entitlement to minimally adequate training. The Court said:
"In Chief Judge Seitz' view, the Constitution `only requires that the courts make certain that professional judgment in fact was exercised.' ... He concluded that the appropriate standard was whether the defendants' conduct was `such a substantial departure from accepted professional judgment, practice, or standards in the care and treatment of this plaintiff as to demonstrate that the defendants did not base their conduct on a professional judgment.' ..."
Id. at 314, 102 S.Ct. at 2457.
"We think the standard articulated by Chief Judge Seitz affords the necessary guidance and reflects the proper balance between the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions of safety and freedom from unreasonable restraints. He would have held that `the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.' Romeo v. Youngberg 644 F.2d 147, at 178 (3rd Cir.1980). Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish. Cf. Estelle v. Gamble, 429 U.S. 97, 104 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). At the same time, this standard is lower than the `compelling' or `substantial' necessity tests the Court of Appeals would require a State to meet to justify use of restraints or conditions of less than absolute safety. We think this requirement would place an undue burden on the administration of institutions such as Pennhurst and also would restrict unnecessarily the exercise of professional judgment as to the needs of residents.
Moreover, we agree that respondent is entitled to minimally adequate training. In this case, the minimally adequate training required by the Constitution is such training as may be reasonable in light of respondent's liberty interests in safety and freedom from unreasonable restraints. In determining what is `reasonable' — in this and in any case presenting a claim for training by a State — we emphasize that courts must show deference to the judgment exercised by a qualified professional. By so limiting judicial review of challenges to conditions in state institutions, interference by the federal judiciary with the internal operations of these institutions should be minimized. Moreover, there certainly is no reason to think judges or juries are better qualified than appropriate professionals in making such decisions. See Parham v. J.R., supra 442 U.S. 584, at 607 99 S.Ct. 2493 at 2506, 61 L.Ed.2d 101 (1979); Bell v. Wolfish, supra 441 U.S. 520, at 544 99 S.Ct. 1861 at 1877, 60 L.Ed.2d 447 (1979) (Courts should not `second-guess the expert administrators on matters on which they are better informed'). For these reasons, the decision, if made by a professional, is presumptively valid; liability 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 ..."
Id. at 321, 323, 102 S.Ct. at 2461, 2462.
By footnote the Supreme Court then says:
"By `professional' decisionmaker, we mean a person competent, whether by education, training or experience, to make the particular decision at issue. Long-term treatment decisions normally should be made by persons with degrees in medicine or nursing, or with appropriate training in areas such as psychology, physical therapy, or the care and training of the retarded. Of course, day-to-day decisions regarding care — including decisions that must be made without delay — necessarily will be made in many instances by employees without formal training but who are subject to the supervision of qualified persons."
Id. at 323, n. 30, 102 S.Ct. at 2462, n. 30.
That the standard with respect to "training" was meant to apply to use of restraints is demonstrated by the Supreme Court a page later when it says:
"Respondent thus enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.... In determining whether the State has met its obligations in these respects, decisions made by the appropriate professional are entitled to a presumption of correctness. Such a presumption is necessary to enable institutions of this type — often, unfortunately, overcrowded and understaffed — to continue to function. A single professional may have to make decisions with respect to a number of residents with widely varying needs and problems in the course of a normal day. The administrators, and particularly professional personnel, should not be required to make each decision in the shadow of an action for damages."
An extension of that standard to mentally ill persons was established in Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), where the Court cautioned against replacing medical judgment with judicial judgment and rebutted the dissent of Justice Stevens by saying that the dissent "`discounts' ... the deference that is owed to medical professionals who have the full-time responsibility of caring for mentally ill inmates ... and who possess, as courts do not, the requisite knowledge and expertise to determine whether the drugs should be used in an individual case...." Id. at 230-1, n. 12, 110 S.Ct. at 1041-42, n. 12.
The first issue, then, in the present case has to be whether the decision regarding the retention of restraints over the period of time plaintiff was under restraint was made "by a professional."
The magistrate judge said that defendant Martin's professional judgment was not exercised. "To the contrary," said the magistrate judge, "the evidence shows that Dr. Martin merely deferred to the judgments of subordinates, and did not himself reevaluate plaintiff's situation to consider...
