Kulas v. Valdez

NOONAN, Circuit Judge.

Theodore Chester Kulas appeals the judgment of the district court in favor of defendants in his civil action for forced medication with antipsychotic drugs.

FACTS

Kulas was charged by the State of Arizona with crimes involving dealing in drugs. On April 22, 1993 there was a hearing in the Superior Court of Pima County before Howard Hantman, Judge Pro Tempore, as to Kulas’s competency to stand trial. Kulas was represented by appointed counsel. Two appointed experts reported that he was incompetent. The court orally found him incompetent, adding “but there is substantial probability he will be restored to competency within a reasonable period of time.” The court committed him to “the Maricopa County Department of Health Services, Madison Street Jail ... attention Dr. Jack Potts.” The court orally declared: “It is the order of the Court he be evaluated at that facility for a period of 45 days....” The court set a status conference for June 8 and orally directed counsel “to contact Dr. Potts or the other treating physician before the June 8th status conference to obtain telephonically the status of the defendant’s competency and progress, if any, at the facility.” In a minute order entered the same day the court repeated in writing that Kulas was committed “to be evaluated” and that counsel should contact “Dr. Potts or other treating physician.” The court proceeded under Arizona Rule of Criminal Procedure 11.5(b) which stated at the time that if the court determines the defendant is incompetent “but that there is a substantial probability that he will be restored to competency within a reasonable period of time, it shall order him eom-*455mitted to the supervision of an institution .... ”

For the next six weeks Kulas was at the Madison Street Jail. There were various diagnoses of his mental condition. At times he would cooperate in taking medication. At other times he would not. Haldol and Ativan were initially prescribed on an “as needed” basis, meaning that Kulas could take them at his discretion. He was moved from Pod A, the institution’s most restrictive pod, to Pod C. On May 12 he agreed with Dr. Potts to see how well he could control himself without taking Lithium. On May 18 and May 22 he was verbally abusive to staff. On May 24 Kulas refused to submit to an x-ray, necessary to determine if he had active tuberculosis; he did consent to it on May 26; he continued, however, to refuse to submit to a blood test, necessary to determine if he had syphilis. On May 25 Dr. Hoffert noted a need to discuss with Dr. Potts the possibility of forcibly medicating him. On the same day Kulas was moved back to Pod A.

On May 28 Kulas was “loud, threatening, demanding” and “banging on the cell door.” Dr. Hoffert viewed him as “unmanageable” and annotated his chart: “May not refuse medication.” He did not, however, have the discussion with Dr. Potts that he had noted as necessary. At 8:30 p.m. Kulas spit out the medication that had been prescribed. In accordance with Dr. Hoffert’s instructions, a nurse forcibly injected Kulas with Haldol, Cogentin and Ativan.

Haldol and Ativan are antipsychotic drugs that work synergistieally. Cogentin is given to counter the side effects. In the light of this forcible injection Kulas did not resist doses of Haldol and Cogentin on May 29 and May 30, which he took orally. By June 17 he had improved considerably. He was assigned to Pod D and ordered to return to court as restored.

PROCEEDINGS

In 1993 Kulas brought this action under 42 U.S.C. § 1983 against the doctors involved in his treatment at the Madison Street Jail. He brought a separate civil rights action against Judge Pro Tempore Hantman. The eases were consolidated. The district court found the judge absolutely immune and granted summary judgment in his favor. After a bench trial the court found that, of the physician defendants, only Dr. Hoffert was responsible for the forced medication. The court ruled that Dr. Hoffert had acted under the authority of a valid court order because Judge Hantman’s reference to “treating physician” should be interpreted to imply treatment and that “forced medication is within the contemplation of treatment.” The court buttressed this inference by interpreting Rule 11.5(b)(3)’s reference to “restoration of competency” to include “the notion of treatment.” The court placed greatest weight on Judge Hantman’s testimony that “his order was the standard order that he used at the time, and apparently used by the rest of the judges on the court at the time and that it specifically contemplated treatment” and that Judge Hantman “expected restoration to competency, including treatment which included forced medication.”

As an alternative ground for its decision, the district court held that the requirements of Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), had been met because Kulas was mentally ill, medication was in his best interests, and “on balance, and it is barely on balance,” Dr. Hoffert was presented with a situation “sufficient to conclude” that Kulas was a danger to others, although not to himself. The court added that although it was unnecessary to make a finding, Kulas had suffered no injuries warranting damages. Judgment was entered for all defendants.

Kulas appeals.

ANALYSIS

To force antipsychotic drugs on a prisoner or on a detainee awaiting trial is impermissible under the federal constitution, “absent a finding of overriding justification and a determination of medical appropriateness.” Riggins v. Nevada, 504 U.S. 127, 135, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992). The serious side effects that such medication can have on mind and personality, physical condition and life itself, have caused the court to lay down this rigorous test. Harper, 494 *456U.S. at 229-230, 110 S.Ct. 1028. In the context of both Harper and Riggins such an invasion of the human person can only be justified by a determination by a neutral factfinder that the antipsychotic drugs are medically appropriate and that the circumstances justify their application.

We must, of course, give tbe same full faith and credit to a state court order as state courts would give the order. Southeast Resource Recovery Facility Auth. v. Montenay Int’l Corp., 973 F.2d 711, 713 (9th Cir.1992). Arizona construes court orders by their plain language. Stallings v. Spring Meadows Apartment Complex Ltd. Partnership, 185 Ariz. 156, 159, 913 P.2d 496, 497 (Ariz.1996) (en banc). There is not a word in Judge Hantman’s oral order spoken in court referring to antipsychotic drugs, nor is there any such reference in his minute order. There is not the slightest indication that he found that action by the treating physicians would require forcible administration of anti-psychotic drugs. Judge Hantman could have revised his order to express such an intent. State v. Rendel, 18 Ariz.App. 201, 206, 501 P.2d 42 (Ariz.Ct.App.1972). Until he did so, the order, not his unexpressed intent, governed. Id.

Effective January 1, 1997, Ariz. R.Crim. P. 11.5(b)(3) was amended to require that a court determine whether a defendant should be subject to involuntary medication. This belated recognition of the Riggins rule came too late to save the practice of Judge Pro Tempore Hantman. The change does ensure that other Arizona judges will not make his mistake. The change also lessens the prece-dential significance of this opinion, which, nonetheless, may be of use in any jurisdiction not as enlightened as post-1996 Arizona.

The alternative basis justifying the administration of the drugs was that Kulas’s forced medication passed “the Harper standards .... ” However, the district court only paid attention to the substantive requirements of Harper for the involuntary administration of antipsychotic drugs and did not acknowledge the procedural requirements. The Supreme Court has stated that the administration of such drugs “cannot withstand challenge if there are no procedural safeguards to ensure the prisoner’s interests are taken into account.” Harper, 494 U.S. at 233, 110 S.Ct. 1028. Not only were there no procedures in place, Dr. Hoffert did not even consult Dr. Potts before ordering the medication. His action cannot be defended.

Defendants’ rebanee on the reasoning of the Fourth Circuit in Hogan v. Carter, 85 F.3d 1113 (4th Cir.1996), is misplaced. In Hogan, the Fourth Circuit held that the procedural safeguards provided for in Harper do not apply in emergency situations. Hogan, 85 F.3d at 1117. In Hogan, the inmate “had been in the throes of an uncontrollable seizure for ... three hours.” Id. at 1114. Here, by contrast, Kulas was merely loud and uncooperative. Dr. Hoffert was unconcerned enough that he merely marked Ku-las’s chart “may not refuse medication” and left. There is no evidence that Kulas posed such an imminent and serious danger to himself or others that the minimal procedural requirements of Harper—notice and the right to be present at and participate in a hearing—could not be met.

Nonetheless, Dr. Hoffert, although he was wrong, was not unreasonable in interpreting Judge Hantman’s order as authorizing his action. After all, Judge Hantman himself understood the order in this sense. A reasonable belief that the conduct was lawful is sufficient to secure qualified immunity. Act Up! Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir.1993). There is no need for a remand to determine this immunity as the district court, too, thought this interpretation was reasonable. Qualified immunity, which “provides ample protection to all but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), therefore, affords our basis for affirming the judgment as to Dr. Hoffert. The rulings of the district court as to the other defendants present no difficulty. The judgment is AFFIRMED.