decided: November 24, 1980; As Amended December 12, 1980.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (C.A. No. 76-3429)
Before Seitz, Chief Judge, and Gibbons and Higginbotham, Circuit Judges. Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Rosenn, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.
The present controversy inhabits the twilight area of developing law concerning the constitutional rights of the involuntarily committed mentally retarded. Nicholas Romeo appeals, through his next friend, from a jury verdict for the defendants, officials of the Pennhurst State School and Hospital, in a suit brought pursuant to 42 U.S.C. § 1983 (1976). Plaintiff alleges trial errors in the admission and exclusion of evidence, in the court's instructions to the jury and in the manner in which the trial was conducted. Because of the improper exclusion of relevant expert medical testimony and critical flaws in the standards that were employed in charging the jury, we vacate the judgment of the district court and remand for a new trial.
While courts in the past decade have carefully focused on the procedural protections applicable to the initial commitment of the mentally handicapped, see Parham v. J. R., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979); Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979), relatively little has been resolved with respect to conditions of confinement or the extent of the state's duty to protect and to treat the institutionalized. Specifically at issue here is the judicial responsibility to enforce constitutional guarantees governing the incarceration of the institutionalized retarded.*fn1 This, in turn, calls on us to deal with the question of what standards of proof are required in a § 1983 suit for damages, in which a mentally retarded plaintiff claims that the defendants improperly shackled him, failed to provide adequate protection for him, and did not make appropriate treatment available to him. In defining the principles relating to claims for protection and treatment of the retarded, carefully crafted instructions must be utilized that will reflect the duty of courts to safeguard the constitutional rights of those confined, but also will be sensitive to the prerogative of the medical community to exercise its professional judgment and to the undeniable fiscal and administrative concerns of the state.
Romeo is a profoundly retarded person. Although he is physically thirty years old, he suffers from a chemical imbalance of the brain that renders his mental capacity approximately that of an eighteen month old child. For the first twenty-six years of his life Romeo lived with his parents in South Philadelphia. On May 10, 1974 his father died. Within a month his mother, finding herself unable to care for him, applied to the Philadelphia Common Pleas Court for his admission to a mental retardation facility. On July 11, 1974, the court committed Romeo to the Pennhurst State School and Hospital, pursuant to the involuntary commitment provision of the Pennsylvania Mental Health & Mental Retardation Act of 1966. Pa.Stat.Ann. tit. 50, § 4406 (Purdon) (1969).
It is not contested that, while confined at Pennhurst, Romeo was injured on over seventy occasions. These injuries were both self-inflicted and the result of attacks by other residents, some in retaliation against Romeo's aggressive behavior. The injuries included a broken arm, a fractured finger, injuries to sexual organs, human bite marks, lacerations, black eyes, and scratches. Moreover, some of plaintiff's injuries became infected, either from inadequate medical attention or from contact with human excrement that the Pennhurst staff failed to clean up.
Since Romeo is incompetent, this action was brought on his behalf by his mother as next friend. The § 1983 complaint seeks damages for the described injuries from three officials at Pennhurst: C. Duane Youngberg, then superintendent, Richard Matthews, director of resident life, and Marguerite Conley, director of the plaintiff's assigned unit at the time most of the injuries occurred. There is evidence which indicates that each defendant knew of some or all of the seventy-plus injuries suffered by Romeo.
After the case was filed, the district court permitted the plaintiff to amend the complaint to include allegations that, since the initiation of the suit, defendants had kept Romeo shackled to a bed or a chair in the hospital at Pennhurst for long periods each day. The amended complaint, which posited a violation of plaintiff's constitutional right to treatment occasioned by the shackling, exposure to attacks and inappropriate treatment,*fn2 again sought compensatory and punitive damages from the defendants.*fn3
At the time of trial, the district court refused to permit plaintiff's two experts. Dr. Foxx and Dr. Grover, to testify about the lack of programming and activities on Romeo's ward, which they believed accounted for his numerous injuries, and about alternative methods of treatment that would have reduced the frequency of attacks.*fn4 One of the experts would have testified further that the restraints served no medical purpose and were used solely for the convenience of the staff. The court sustained objections to all of this proffered medical and psychiatric testimony on the theory that admission of such evidence would transform a § 1983 action into a malpractice case.*fn5 In addition, the court rejected the plaintiff's proposed jury instruction which maintained that the plaintiff had a right to treatment in the least restrictive environment. The court decided instead that defendants' shackling practices and duty to protect Romeo should be evaluated solely on the basis of an Eighth Amendment standard. Further, in what was described as an attempt to distinguish this § 1983 suit from a malpractice case, the court subjected plaintiff's claims of inadequate treatment to an Eighth Amendment standard of "deliberate indifference to the serious medical needs of the resident."
Because we believe that the Eighth Amendment which limits the scope of judicial review of conditions of incarceration for the criminally convicted to a "cruel and unusual" threshold is inappropriate in the context of civil as distinguished from criminal confinement, the result reached in the district court must be vacated. Moreover, the uncharted legal issues which have arisen and the potential ramifications of this case impel us to set out in some detail the level of judicial scrutiny that should be accorded the intricate set of legal, medical and societal interests that intersect in the situation presented here.
Of critical importance in this appeal is the recognition that this is a due process case, not a controversy to be governed by "cruel and unusual" principles. Although the complaint alleged Eighth as well as Fourteenth Amendment violations, Ingraham v. Wright*fn6 and Bell v. Wolfish*fn7 would appear to preclude reliance on the minimal safeguards of the Eighth Amendment in a non-criminal context. Ingraham held that the Cruel and Unusual Punishments Clause is inapplicable in the context of corporal punishment in public schools; Wolfish found Eighth Amendment scrutiny inappropriate for evaluating conditions of pretrial detention.*fn8 Indeed, Wolfish explicitly recognizes a right of innocent persons to be free from punishment, a proposition directly grounded in the word "liberty" that appears in the Due Process Clause. See 441 U.S. at 535, 99 S. Ct. at 1872, id. at 580, 99 S. Ct. at 1896. (Stevens, J., dissenting). Thus, it is the Fourteenth Amendment's prohibition of state deprivation of life, liberty or property without due process of law that is the appropriate fulcrum of our concerns today.
It is necessary, of course, to determine initially whether the asserted individual interests are encompassed within the Fourteenth Amendment's protection of life, liberty and property. If the answer to that inquiry is in the affirmative, we must then determine what level of judicial scrutiny is applicable to the various interests in issue here.
We are fully cognizant that the propriety of a § 1983 claim, in the present situation, turns on whether a constitutional right is at issue. The concurrence is undeniably correct in requiring that we distinguish between constitutional violations and ordinary malpractice claims. But the implication that the existence vel non of a state remedy for example a malpractice action is relevant to the determination of whether a § 1983 claim exists, would appear to be unfounded. Cf. Paul v. Davis, 424 U.S. 693, 715, 96 S. Ct. 1155, 1167, 47 L. Ed. 2d 405 (1976) (Brennan, J., dissenting). Nor does the existence of treatment issues in a claim of constitutional infringement, on account of a linguistic similarity, transform the claim into a malpractice action.*fn9 Admittedly, the plaintiff's confinement in a state institution does not dignify every complaint with constitutional stature. Cf. Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292, 50 L. Ed. 2d 251 (1976). Nevertheless, there is a distinction for constitutional purposes between conduct by state actors and private citizens. Therefore, understandable concerns with stemming the federalization of common law tort actions, see Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979), must not overcome a court's duty to safeguard legitimate constitutional rights.*fn10 As Justice Harlan realized, " "liberty' is not a series of isolated points pricked out in terms of (the Bill of Rights) .... It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints." Poe v. Ullman, 367 U.S. 497, 543, 81 S. Ct. 1752, 1776, 6 L. Ed. 2d 989 (1961) (dissenting opinion).
Once a protected interest is found to exist, the proper level of judicial scrutiny is ascertained by the nature of that interest. A court must not be overquick to equate the scope of the right to protection or treatment for the involuntarily confined retarded with the already articulated scope of such rights for the criminally incarcerated.*fn11 Nor are analogies to state or common law precedents controlling it is federal law that answers the question of what process is due under the Constitution.*fn12
The confinement of an individual to an institution for either the mentally ill or mentally retarded entails a "massive curtailment of liberty." Humphrey v. Cady, 405 U.S. 504, 509, 92 S. Ct. 1048, 1052, 31 L. Ed. 2d 394 (1972). In consequence it is circumscribed by due process protections. Addington v. Texas, 441 U.S. 418, at 425, 99 S. Ct., at 1809. And once inside the institution an individual's liberty interest is not summarily extinguished.*fn13 Rather, those aspects of personal autonomy recognized from the time of Blackstone the power of locomotion without restraint and the right to personal security*fn14 as well as the right to freedom from punishment, require continued respect. These fundamental liberties may be legitimately encroached upon only when justified by an overriding,*fn15 non-punitive state interest related to the reasons for confinement.
Courts have reached a general consensus on three legitimate state justifications for the confinement of the mentally ill and mentally retarded. These rationales have evolved historically from (1) the protection of society from individuals who constitute a danger, a concept rooted in the state's police power; to (2) the protection of individuals unable to care for themselves or prone to self-destructive acts, based on police power and parens patriae rationales; and finally to (3) rehabilitation often limited to habilitation in the case of the mentally retarded also an exercise of the state's parens patriae authority.*fn16 See Addington v. Texas, 441 U.S. 418, at 426, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323, O'Connor v. Donaldson, 422 U.S. 563, 573-74, 95 S. Ct. 2486, 2493-94, 45 L. Ed. 2d 396 (1974).
Noticeably lacking, and logically inapplicable to the mentally retarded, are the traditional deterrence and retribution underpinnings of the criminal system.*fn17 Obviously, the state has no right to punish an innocent individual, and the concept of deterrence has a minimal effect on a severely retarded person, such as the plaintiff here. In seeking to explain claimed infringements of fundamental liberty interests, the state is limited to protection and treatment rationales of a compelling or substantial nature. Involuntary commitment in the civil context, then, quite clearly implicates a constitutional right to treatment and protection.*fn18 Alternatively, if a claimed post-commitment abridgement does not reach the status of a gross deprivation or squarely cut across constitutionally protected liberty interests, but only tangentially implicates such an important interest, a mutual accommodation between institutional objectives and constitutional provisions is needed. This is so since the very nature of an institution requires some limitation on the retained rights of those who are confined. Cf. Wolff v. McDonnell, 418 U.S. at 556, 94 S. Ct. at 2974. In such instances, security concerns, fiscal constraints and administrative necessities may be adduced to demonstrate that a claimed encroachment is necessary to a facility's internal operations.*fn19
In the present case, Romeo's complaints may be appropriately conceptualized as (1) a right to be free from undue bodily restraint; (2) a right to personal security and protection; and (3) a right to adequate treatment. The first two are undiluted legal concerns, relating to protected liberty interests; as such, they are entitled to heightened judicial scrutiny. The third entails mixed questions of law and medical judgment, and thus requires a more flexible standard of judicial review and suitable deference to informed medical opinion.
The basis of Romeo's first claim, that he was unduly shackled,*fn20 is clearly inimical to the right of an unconvicted citizen to be free from punishment.*fn21 Even though shackling may not be punishment per se, it raises a presumption of a punitive sanction.*fn22 It squarely collides with a traditional liberty interest in freedom from bodily restraint.*fn23 A valid involuntary commitment ex necessitate extinguishes a retarded person's right to freedom from confinement. Nevertheless, a residuum of liberty remains which is entitled to due process protection. In Vitek v. Jones, which dealt with the transfer of a prisoner from a prison to a mental hospital, the Supreme Court found that an involuntary commitment to a mental hospital is "qualitatively different from the punishment characteristically suffered by a person convicted of crime." 445 U.S. 480, 499, 100 S. Ct. 1254, 1266, 63 L. Ed. 2d 552 (March 25, 1980). Despite pre-existing confinement, a substantial, additional loss of liberty occurred, for which the Court required observance of due process safeguards. Similarly, in the situation before us, shackling is not normally within the range of conditions of confinement contemplated in habilitative institutionalization.*fn24 Neither in Vitek nor in the case at hand do the asserted privations inhere in the original rationales for confinement. Because of the fundamental right at issue here, as well as the substantial risk of error*fn25 and the possibility of significant harm, the proper judicial posture is one of careful scrutiny.*fn26
Plaintiff requested that his shackling claim be analyzed under the rubric of a "right to treatment under the least restrictive conditions consistent with the purpose of the commitment." In this regard, he submitted the following charge:
Plaintiff contends that he was shackled to his bed or chair for long periods of time each day after he filed this lawsuit. If you find that he could have been provided treatment under less restrictive conditions than those imposed on him, then you must find that his constitutional rights were violated.
The court, however, gave the following instruction:
In order to prove his case the plaintiff must show acts or omissions sufficiently harmful to evidence a deliberate indifference to the serious medical needs of the resident. It is only such indifference that can offend the standards of decency required by the 8th Amendment. App. 2-236a 2-237a.
We have already recorded our disapproval of the adoption of the Eighth Amendment standard in the mental retardation area. However, we cannot assent as the concurrence suggests, to an analysis which scrutinizes shackling and a right to treatment by a standard that is essentially the same. The Pennsylvania statute generally prohibits such shackling practices, see fn. 21, and similarly, mental retardation professionals have relegated the use of physical restraints to the closets of an earlier age. Logically, Romeo's shackling claim centers on a liberty interest: a right to be free from bodily restraint.
The trial judge, therefore, should instruct the jury that such shackling may be justified only by a compelling necessity, i. e., that the shackling was essential to protect the patient or to treat him. It should be explained that, except in emergency situations, inadequate resources or administrative rationales offer an insufficient basis for intrusions of this kind on a fundamental liberty interest. As the courts have repeatedly proclaimed, "Humane considerations and constitutional requirements are not, in this day, to be measured or limited by dollar considerations." Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir. 1968) (Blackmun, J.), quoted in Rozecki v. Gaughan, 459 F.2d 6, 8 (1st Cir. 1972) quoted in Wyatt v. Aderholt, 503 F.2d 1305, 1315 (5th Cir. 1974). Plaintiff is also entitled to a charge, in the alternative, that to absolve the defendants from liability on the shackling claim it would be necessary to find that shackling was the least restrictive method of dealing with the patient,*fn27 in light of his problems and the surrounding environment. A "least restrictive" charge will not only insure that compelling treatment explanations, as opposed to fiscal concerns or staff convenience, were the basis for the shackling, but also that the institution considered and rejected alternative methods of restraining the resident, if some restraint indeed was required.*fn28
A comparison with the result that might be obtained by employing the unitary standard proposed by the concurrence is apposite here. Under the standard advanced by the concurrence, the jury would be charged that shackling is permissible so long as there was not "such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the defendants did not base their conduct on a professional judgment." Arguably, such an instruction assumes that physical restraint for the convenience of the staff would constitute a substantial departure from accepted professional judgment. Yet it is not logically evident that concerns of staff convenience are the sort of departures from medical judgment that rise to the level of being a sham or otherwise illegitimate, as defined in the concurring opinion. More fundamentally, although the standard proposed by the concurrence would probably prevent use of shackling as punishment,*fn29 it would not preclude its use as a substitute for more effective treatment programs. Thus such a standard would fail to give adequate weight to the resident's substantial interest in freedom from bodily restraint. In addition, it would conflict with the thrust of the state's interest as proclaimed in § 4422 of the Mental Health and Mental Retardation Act, in prohibiting the use of mechanical restraints except in limited situations.
Our holding that the district court erred with respect to the jury instruction for the shackling claim, and our establishment of a compelling necessity standard for review of such troubling interferences with bodily freedom, necessarily require an additional finding of error in the district court's exclusion of relevant expert testimony. Under the compelling necessity or least restrictive standards of proof, both sides are, of course, permitted to adduce evidence. Although defendants must justify the shackling as the least restrictive means of handling or protecting the individual, the plaintiff may produce evidence, for example, that restraints were utilized largely because of convenience to the staff. Consequently, Dr. Foxx's proffered testimony regarding the inappropriate reasons and counterproductive results connected with the restraint of Romeo, was improperly excluded by the trial court.
From Colonial times to the present day, the concept of liberty has embraced the "right to be free from and to obtain judicial relief for unjustified intrusions on personal security." Ingraham v. Wright, 430 U.S. 651, 673, 97 S. Ct. 1401, 1413, 51 L. Ed. 2d 711 (1977). Plaintiff's second claim, the right to protection from attack, undeniably falls within the compass of this right. The record discloses that while confined at Pennhurst Romeo was injured on over seventy occasions. Some of these injuries were self-inflicted, some resulted from attacks by fellow residents, and some may even have been by the staff. The evidence also suggests that the defendants knew, or had reason to know, of some or all of the injuries suffered by the plaintiff. It would be anomalous to find that the right to a secure environment, which federal courts have often intervened to protect in the context of penal institutions, did not extend to facilities for the mentally retarded.*fn30
The scope and nature of the right of the plaintiff to protection from attack is also capable of judicial demarcation. Both the individual's right to personal security and the state's interest in providing care converge to support a right to protection from attack. The state cannot simply confine a person, without more, because he may be a danger to himself or to third parties.*fn31 Only after the commission of a discrete criminal act and conviction in accordance with procedural protections is incarceration without more warranted. Consequently, in order to survive constitutional scrutiny, involuntary commitment of a mentally retarded person must combine an interest in insulating society from dangerous behavior with a promise, either express or by implication, to care for and to treat the individual.*fn32 Alternatively, the commitment of a retarded person for treatment purposes or because he is unable to care for himself, necessarily entails the provision of care and protection. The parens patriae power to provide care and protection is thus inextricably bound up in the involuntary commitment of the retarded regardless of the original rationale for the confinement.
Further, in Romeo's case, commitment was pursuant to Penn.Stat.Ann. tit. 50, Mental Health and Mental Retardation Act of 1966. The state, in confining Romeo, represented that it was "willing and able" to care for him.*fn33 The statute provides an entitlement to protection*fn34 which, like other state-created entitlements, is guarded by constitutionally acceptable procedures. The right to protection is not activated by an isolated mishap, or called into question by each bruise that a patient may suffer. But a pattern of attacks, injuries or violent behavior such as we have here would create a claim to such a right. While no one is guaranteed an injury-proof life, Romeo, as an involuntarily committed resident of Pennhurst, had a right to humane care and protection, bottomed both on the Pennsylvania statute and the Constitution.
Institutions for the mentally retarded are rarely "open" facilities. Those involuntarily confined are not free to return home, and indeed, many are bereft of any support by family and friends.*fn35 This absence of openness or significant community surveillance and oversight underscores the need for the courts to discharge their traditional function of safeguarding constitutional rights.*fn36
Therefore, with respect to the protection claim, we conclude that the trial court erred in its charge. It instructed the jury that:
Under the 14th ... Amendment, state officials at a state mental hospital have a duty to protect involuntarily committed residents from repeated attacks by other patients and staff.
Plaintiff ... contends that these defendants violated such a duty to protect him because they were aware of such attacks and failed to take such reasonable steps as (were) required to protect him.
If you find that the defendants were deliberately indifferent to the medical and psychological needs of (the plaintiff), then you may find that plaintiff's ... 14th Amendment rights were violated.
To find for the plaintiff you need not find that the defendants personally participated in any attack upon the plaintiff. If you find that the defendants were aware of repeated attacks upon plaintiff and failed within their sphere of authority to take reasonable steps to protect the plaintiff, then you may find that the defendants are liable for a violation of the plaintiff's constitutional rights. (emphasis supplied)
As we see it, the jury should be informed that the plaintiff has a right to have his physical safety protected. The plaintiff sought an instruction that defendants had an obligation to "take reasonable steps to protect plaintiff." Chief Judge Seitz maintains that such a charge is virtually indistinguishable from a state malpractice standard. Infra at 177. However, analysis of this particular claim for constitutional purposes would proceed as follows: because this is a fundamental interest which conflates plaintiff's right to personal security with defendants' duty to protect if the defendants failed to provide for Romeo's personal security, such failure can be justified, in a § 1983 case, only by substantial necessity. Substantial necessity is more appropriate than the compelling necessity standard employed in connection with the shackling claim, for it enables a court and jury to distinguish between isolated incidents and inadvertent accidents, on the one hand, and persistent disregard of patients' needs, on the other.*fn37 If the defendants disregarded plaintiff's injuries or failed to take steps to protect plaintiff then they should be liable unless they can offer explanations based on important state interests.*fn38 However, the least restrictive charge, which is applicable to the shackling claim, is a less meaningful analytic tool in the protection setting because of the very existence of a right to personal security and a duty on the part of the state to protect. We cannot assume that all patients desire and are capable of dealing with the freedoms provided by least restrictive treatment. Moreover, inherent inconsistencies arise in the use of such a concept in the protection area. The least restrictive treatment, which might be the least confining, might provide insufficient protection and care for a particular resident's wants and needs.
In view of the stance we have adopted regarding the plaintiff's right to personal security and protection from attack, we hold that it was error for the district court to exclude the testimony of Dr. Foxx and Dr. Grover concerning the availability of treatment programs which would minimize the aggressive behavior and attacks that were unnecessarily prevalent at Pennhurst. Such evidence is relevant in enabling the jury to resolve whether the defendants were properly attending to, or overlooking, the right of the plaintiff to protection from attack.*fn39
Plaintiff's third complaint turns essentially on a claim of inadequate treatment and a right to treatment in the least restrictive manner. As previously observed, unlike a right to freedom from bodily restraint or to personal security, treatment does not present a purely legal issue. See p. 159 supra. Questions of a court's relative competence concerning medical decisions and respect for medical judgment, as well as concerns of comity with the legislative and executive branches, place this claim in a different perspective. The move from preventing degrading impositions on human dignity, such as shackling and exposing a resident to continuous attacks, to requiring treatment consonant with individual needs, transfers the court to a ...