Wayne KENNEDY and Alice Kennedy, Appellants, v. C. Keith SCHAFER; John Twiehaus; Robert O. Muether; Jacqueline Howard; Kelly Shaw; and Peggy J. Dunlap, Appellees, 71 F.3d 292

RICHARD S. ARNOLD, Chief Judge. Wayne and Alice Kennedy brought this suit under 42 U.S.C. § 1983 against officials of the Missouri Department of Mental Health and Hawthorn Children's Psychiatric Hospital, a state facility. They allege that defendants deprived their 15-year-old daughter, Kathleen, of her due-process right to a safe and humane environment while she was a patient at Hawthorn. That deprivation, they assert, led to Kathleen’s suicide. The District Court granted the defendant’s motion for

summary judgment, holding that, because Kathleen was voluntarily admitted to Hawthorn, she had no “liberty interest” in a safe and humane environment, thus precluding liability under

Section 1983. We reverse that order because there is a genuine issue of fact concerning whether Kathleen, at the time of her death, was a voluntary patient. I. At this preliminary stage of the case, we accept the Kennedys’ version of the facts. In October of 1991, Kathleen was admitted to Hawthorn as a voluntary inpatient at her parents’ request. Immediately before Kathleen’s admission to Hawthorn, she had been a psychiatric inpatient in a private hospital. Her parents’ insurance coverage had been exhausted, necessitating the move.

The Kennedys had been advised that, if they did not voluntarily admit Kathleen to a mental-health facility, Kathleen would be involuntarily committed. The only affordable option open to them was a state-run facility where they would be charged in accordance with their ability to pay. Thus, Kathleen was admitted into Hawthorn, a state facility. Kathleen remained an inpatient at Hawthorn for several months.

On March 30, 1992, due to her mental condition and her expressed desire to commit suicide, she was placed on the precaution “1:1 Constant Staff Supervision.” Patients under this precaution must be within the eyesight of, and no more than three feet away from, staff members at all times.

On April 3, 1992, Kathleen was placed on “Protective Suicide Precautions.” This precaution is for patients who are at a “moderate to low risk” for suicide, and requires nursing staff members to keep the patient “in constant eye-sight.” Additionally, the nursing staff must directly interact with these patients every 15 to 20 minutes so that changes in their mental status or behavior may be detected. Kathleen remained under Protective Suicide Precautions on the evening of April 8, 1992.

That day, the staff in Cottage D, where Kathleen was residing, told Hawthorn’s nursing supervisor, defendant Peggy Dunlap, that the number of nurses assigned to work the evening shift was inadequate to meet the patients’ needs. Dunlap failed to find additional help, and, in fact, declined an offer by the day-shift supervisor to help locate additional nursing assistance. Compounding the problems, the charge nurse in Cottage D who was responsible for assigning a staff member to care for Kathleen failed to do so.

This charge nurse was, at the time, on extended probation because of her past deficiencies in assigning work duties to the nursing staff. The evening shift began duty at 2:30 p.m. on April 8. Kathleen was not in the “constant eye-sight” of any nursing staff member. No one interacted with her every 15 to 20 minutes. When someone finally checked on her at 5:10 p.m., she was dead, hanging from a bed sheet in her room. The Kennedys allege that these staffing problems were nothing new for Hawthorn. They assert that employees had complained about the chronic understaffing on several occasions.

Moreover, they claim that Hawthorn officials falsified records, causing the staffing needs of the hospital to appear to be less than they actually were. These actions, they contend, establish a pattern of deliberate indifference to the health and safety of Hawthorn’s patients. This deliberate indifference, in turn, deprived their daughter of her constitutionally protected liberty interest in a safe and humane environment. The District Court held that the defendants were entitled to

summary judgment on two grounds. First, it held that Kathleen had no constitutionally protected liberty interest because she voluntarily entered Hawthorn. Second, even if Kathleen did have a protected liberty interest, that right was not clearly established at the time of her death, thus entitling the defendants to qualified immunity. II.

The Due Process Clause of the Fourteenth Amendment ensures that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” The Supreme Court has held that the “deprivation of liberty” which triggers “the protections of the Due Process Clause” is “the State’s affirmative act of restraining the individual’s freedom to act on his own behalf-through incarceration, institutionalization, or other similar restraint of personal liberty.” DeShaney v. Winnebago Cty. Dept. Soc. Servs., 489 U.S. 189, 200, 109 S.Ct. 998, 1006, 103 L.Ed.2d 249 (1989).

This Court has interpreted DeShaney as “impos[ing] a duty on state actors to protect or care for citizens” when one of two circumstances exists. Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992) (en banc), cert. denied, 507 U.S. 913, 113 S.Ct. 1265, 122 L.Ed.2d 661 (1993). The first exists when the state limits an individual’s ability to care for himself in a “custodial [or] other setting[].” Ibid. The second exists when the state exposes one to danger that he would not have faced otherwise.

The District Court’s order and the majority of the parties’ arguments in this Court have focused on whether a voluntary patient in a state mental hospital could ever have his “ability to care for himself’ so limited as to create a liberty interest in a safe and humane environment. The Kennedys argue that the manner in which a patient enters a hospital is not the dispositive question. Rather, they encourage us to look to the amount of control the state actors, here hospital employees, exerted over Kathleen’s life. Cf. Walton v.

Alexander, 44 F.3d 1297, 1306 (5th Cir.1995) (en banc) (Parker, J., concurring specially). If we do so, they say, it will become apparent that no distinction should be made between voluntary mental patients and involuntary mental patients, who unquestionably do have a protected liberty interest in a safe and humane environment. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). The argument may have merit. In fact, this Court accepted it before DeShaney. See Goodman v. Parwatikar, 570 F.2d 801 (8th Cir.1978).

Nevertheless, other circuits, after DeShaney, have refused to grant due-process protection to those who voluntarily entered the State’s custody. See Walton, supra; Monahan v. Dorchester Counseling Center, 961 F.2d 987 (1st Cir.1992); Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459 (3rd Cir.1990). Armed with these cases, the defendants argue that Par-watikar has been overturned by DeShaney. We, of course, are not bound by these cases, and the case before us could, conceivably, be distinguished given Kathleen’s youth and mental state.

We need not address this issue, however, because the question was sufficiently doubtful, viewed from the perspective of a reasonable state official at the time of Kathleen’s death, to make it impossible for us to say that the law was clearly established at that time in favor of the existence of a due-process right on the part of a voluntarily admitted patient. In other words, we agree with the District Court that defendants are entitled to the defense of qualified immunity if Kathleen is properly classified as a voluntary patient.

We need not and do not decide whether ParwatikaPs holding in favor of voluntary patients’ due-process rights remains good law. We do decide that an action for damages brought by a voluntary patient is subject to a qualified-immunity defense. This holding is not the end of the ease, however. Voluntary mental patients in Missouri may be released upon request, or, if they are minors, upon the request of their parents. Mo.Rev.Stat. § 682.155(1).

But if the head of the facility where a minor is a patient “determines that the minor is mentally disordered and, as a result, presents a likelihood of serious physical harm to himself or others, the head of the facility may refuse the release.” Mo.Rev.Stat. § 632.155(2). Included in the definition of “serious physical harm” is “a substantial risk that harm will be inflicted by a person upon his own person, as evidenced by recent threats, including verbal threats, or attempts to commit suicide or inflict physical harm on himself.” Mo.Rev. Stat. § 632.005(9)(a).

Notably, the application for admission signed by Kathleen’s mother upon her admission to Hawthorn repeats this statutory language nearly verbatim. This language indicates that once Kathleen was placed on Protective Suicide Precautions she may have effectively become an involuntary patient. Certainly she no longer had the absolute right to leave the hospital by simply requesting to be released. The defendants argue that it is mere conjecture to try to determine what Hawthorn officials would have done if Kathleen had requested to leave.

We doubt that they would have released a patient who presented a risk of suicide so great that her doctors required the nursing staff to keep her constantly in their sight. Moreover, what defendants would have done if Kathleen’s parents had tried to take her out of the hospital is not the only issue at stake. At the oral argument before this Court, the defendants stated that Kathleen would almost certainly have been released under certain circumstances, to another institution or to a home-health care arrangement, for example. But that is exactly the point.

She would have been required to make some showing before she could have been released. She had no absolute right to leave. The record before us, however, is not sufficient to allow us to conclude, as a matter of law, that Hawthorn had so restrained Kathleen’s “freedom to act on [her] own behalf— through incarceration, institutionalization, or other similar restraint of liberty” that the “protections of the Due Process Clause,” De-Shaney, supra, 489 U.S. at 200, 109 S.Ct. at 1006, were triggered.

Presumably, the record is sparse because the defendants and the District Court believed that Kathleen’s status upon admission was dispositive. On remand, it should be determined whether Kathleen’s condition at the time of her death presented such a “likelihood of serious physical harm” that Hawthorn could lawfully have detained her if either she or her parents had requested her release. If so, the “situation” that she was in was “sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect.” DeShaney, 489 U.S. at 201 n. 9, 109 S.Ct. at 1006.

As we have noted, this disposition makes it unnecessary to address the question whether a voluntary mental patient enjoys the same due-process protections as an involuntary patient. It is prudent, and in keeping with the precedents, to postpone consideration of this difficult constitutional question until we are certain that its consideration is necessary. Cf. Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 1389, 89 L.Ed. 1725 (1945). III.

Our Brother Hansen suggests, post at 297, that our reasoning “create[s] a constitutional right to involuntary commitment status whenever a patient’s condition is such that she could lawfully be detained.” With respect, we believe that this characterization of our holding is mistaken. We hold only that a Missouri statute may effectively restrain those in Kathleen’s condition and under the care of the State from acting on their own behalf to such an extent as to trigger the protections of the Due Process Clause.

It is not Kathleen’s worsening medical condition alone that may have converted her status to that of an involuntary patient. Rather, her worsening condition plus the duty placed on state officials by the statute may have had this effect. In this connection, another statute, Mo. Rev.Stat. § 632.300, is relevant. Under this provision, if the defendants had become aware of Kathleen and her condition while she was outside their care, they would have been required to investigate and evaluate her condition. Mo.Rev.Stat. § 632.300(1).

If they had determined that she posed a “likelihood of serious physical harm” to herself and that that harm was “imminent,” they would have been required to commit her involuntarily. Mo.Rev.Stat. § 632.300(2). By a parity of reasoning, a patient already in custody as the result of a voluntary commitment surely has no absolute right to be released when her condition has worsened in the way that Kathleen’s did in this case. The dissenting opinion also suggests that, even if Kathleen had become an involuntary patient, defendants would have a qualified-immunity defense.

It is true enough that there is no case on all fours, at least none that we have found. But the precedent in this Circuit, in the form of the Parwatikar case, discussed above, is clear at least that involuntary patients have due-process rights. No one contends that DeShaney or any other ease has impaired or cast doubt on this aspect of our holding in Parwatikar. We see no reason why a patient originally committed voluntarily must retain that status permanently. Facts change, and legal status follows facts.

This chain of reasoning is not obscure and, we think, would have been apparent to a reasonable state official at the time of the events that gave rise to this case. IV. The judgment of the District Court is reversed. A genuine question of material fact exists concerning whether Hawthorn had restricted Kathleen’s ability to act on her own behalf to such an extent that she had become, in effect, an involuntary patient. The cause is remanded for further proceedings consistent with this opinion.