Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-28-2006

Torisky v. Schweiker
Precedential or Non-Precedential: Precedential

Docket No. 05-1496




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                                        PRECEDENTIAL


           IN THE UNITED STATES COURT
                    OF APPEALS
               FOR THE THIRD CIRCUIT


                      NO. 05-1496


    DANIEL TORISKY, as guardian of his son Edward A.
Torisky; LAURA MOONEY, as guardian of her sister Susan
Riley; KENNETH AMMONS, as guardian of his son Kenneth
Ammons, Jr.; ALBERT BAUMGARTNER, as guardian of his
son George Baumgartner; CHARLES CIHIL, as guardian of his
son Richard Cihil; PATSY CONCA, as guardian of his son
Mario Conca; JOAN CONNORS, as guardian of her sister
Helen Connors; PETER DEMCZYK, as guardian of his son
Max Demczyk; GUY DI MARZIO, as guardian of his brother
Carlo Di Marzio; ALDO GIANNINI, as guardian of his son
Ronald Giannini; MAUREEN PUSKAR, as guardian of her
sister Dorothy Kohut; JON LACKMAN, as guardian of his
sister Elizabeth Lackman; CHARLES MILLER, as guardian of
his daughter Dianne Miller; MARY PASINSKI, as guardian of
her brother Joseph Pasinski; JEANNE CLAUS, as guardian of
her son William Schwartz; KENNETH SMITH, as guardian of
his son Larry Smith; GERTRUDE SMORADA, as guardian of
her son Dennis Smorada; JOHN TESTA, as guardian of his
daugther Christine Testa; GERALD WARD, as guardian of his
daughter Sharon Ward; DIANE WRANA, as guardian of her
daughter Christine Wrana; WALTER BARANOWSKI, as
guardian of his son Leon Baranowski; JAMES E. FORD;
PEGGY FORD, as guardians of their son William Ford;
NAOMI DA PRA, as guardian of her sister Marion Hemmis;
EUGENIA KOLESSAR, as guardian of her son Gary Kolessar;
JOANNE MARTIN, as next friend of her son Kevin Patterson;
GREGORY UNDERWOOD; MARGARET UNDERWOOD,
as guardians of their son Michael Underwood

                            v.

MARK S. SCHWEIKER, as Governor of the Commonwealth
of Pennsylvania; DEPARTMENT OF PUBLIC WELFARE OF
THE COMMONWEALTH OF PENNSYLVANIA; FEATHER
O. HOUSTOUN, individually, and as Secretary of the
Department of PublicWelfare of the Commonwealth of
Pennsylvania; NANCY R. THALER, individually, and as
Deputy Secretary of the Pennsylvania office of Mental
Retardation

PENNSYLVANIA PROTECTION AND ADVOCACY, INC.;
     ARC ALLEGHENY; ARC PENNSYLVANIA
              (Intervenors in D.C.)

        Feather O. Houstoun and Nancy R. Thaler,
                       Appellants


            On Appeal From the United States
                        District Court
         For the Western District of Pennsylvania
           (D.C. Civil Action No. 02-cv-00499)
             District Judge: Hon. Joy F. Conti


                Argued January 25, 2006

   BEFORE: McKEE and STAPLETON, Circuit Judges,

                            2
                and POLLAK,* District Judge

                (Opinion Filed April 28, 2006)


Howard C. Ulan
Daniel M. Fellin (Argued)
Commonwealth of Pennsylvania
Office of Legal Counsel
Department of Public Welfare
3d Floor West - Health & Welfare Building
Seventh & Forster Streets
Harrisburg, PA 17120
 Attorneys for Appellants

Mark J. Murphy (Argued)
Disabilities Law Project
1315 Walnut Street - Suite 400
Philadelphia, PA 19107
 Attorney for Intervenors



                 OPINION OF THE COURT



STAPLETON, Circuit Judge:

       This appeal presents the issue of whether a state’s
affirmative duty under the Due Process Clause to care for and
protect a mental health patient in state custody depends upon the
_______________________
*Hon. Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.



                               3
individual’s custody being involuntary. Contrary to the District
Court’s resolution of this issue, we conclude that the state does
not owe the affirmative duties of care and protection first
enunciated in Youngberg v. Romeo, 

(1982), to
those individuals who are free to leave state custody. We will
affirm the District Court’s order denying appellants’ claim to
qualified immunity, however, because resolution of that claim
should await fuller development of the record.

                                I.

        The plaintiffs are the guardians of twenty adult
individuals with mental retardation who formerly resided at
Western Center, a mental retardation institution operated by
Pennsylvania’s Department of Public Welfare (“DPW”).1 On
April 11-12, 2000, DPW closed Western Center and transferred
its remaining residents, including the plaintiffs in the present
litigation, to privately operated facilities. At the time of the
closing, the plaintiffs were “unwilling to be transferred to
placement in community facilities of any type,” “medically and
developmentally inappropriate for community placement,”
“medically and mentally fragile, especially when removed from
their familiar institutional surroundings,” “in need of continuous
care by on-site multidisciplinary staff,” and “in need of
continuity of placement; stability, and therapeutic access to
family.” Am. Compl. ¶ 9.

       In the course of the transfer, “a physical blockade was set
up by state police at Western Center to separate plaintiffs from
their parents, guardians, relatives and other loved ones.” 

40. “Against each plaintiff’s will, each was prevented from
making physical contact with any individual on the other side of
the blockade; was ordered into and placed within a bus or van at

   1
   We will refer to the individual former residents of Western
Center as the “plaintiffs” throughout this opinion.

                                4
Western Center, and was then transported to various placements
several hours away.” 

41. Plaintiffs allege that state
employees utilized “[p]hysical and psychological force” and that
the plaintiffs “suffered severe physical and psychological
damage in the forced, involuntary transfer from Western
Center.” 

¶ 18, 42.

        The plaintiffs, through their guardians, filed suit in the
Middle District of Pennsylvania alleging violations of 42 U.S.C.
§ 1983 and other federal and state statutes. In their complaint,
the plaintiffs allege that the defendants violated their
“constitutional life and liberty interest in . . . appropriate
placement and appropriate medical and therapeutic treatment
from the state of Pennsylvania.” 

12. They further
allege that the individually named defendants, including Feather
Houston, the Secretary of DPW, and Nancy Thaler, the Deputy
Secretary, “were personally responsible for the decision to
transfer each plaintiff.” 

43.

        Based on these allegations, plaintiffs sought injunctive
relief under the Due Process Clause. In Count V, the only claim
currently before us, the plaintiffs sought monetary damages
from the individual defendants Thaler and Houston based on the
same due process violation.

       The defendants moved to dismiss, asserting, inter alia,
that defendants Houston and Thaler were protected by qualified
immunity from plaintiffs’ damage claims. The District Court
viewed the issue as whether the substantive due process rights
to care and protection possessed by “involuntarily committed
residents in state facilities” under Youngberg v. Romeo, 

(1982), “are clearly established as extending to voluntarily
committed persons.” App. at 30-31. The District Court
concluded that it was clearly established that such due process
protections do extend to those who are voluntarily committed
and denied the motion. We will affirm the order of the District

                                5
Court, albeit for a different reason.

        After Houston and Thaler filed this interlocutory appeal,
the plaintiffs failed to enter an appearance or file a brief.
Houston and Thaler are entitled to pursue their appeal, however,
and we are required to proceed without the benefit of an
appellee’s brief. United States v. Everett, 

, 902 n.5
(3d Cir. 1983) (“If an appellee after proper notice fails to file a
brief, then we may decide the case on the brief of the appellant
only.”); 16A Wright, Miller, & Cooper, Federal Practice &
Procedure § 3974.2 at 525 (3d ed. 1999); cf. Fed. R. App. P.
31(c).

                                II.

        The District Court had jurisdiction over the plaintiffs’
constitutional claims under 28 U.S.C. § 1331. We have
jurisdiction to review the District Court’s denial of qualified
immunity pursuant to the collateral order doctrine. Rouse v.
Plantier, 

, 196 (3d Cir. 1999); Mitchell v. Forsyth,

, 527 (1985).2 In reviewing a denial of qualified
immunity at the Rule 12(b)(6) stage of litigation, we accept the
plaintiffs’ allegations as true and draw all inferences in their
favor. Larsen v. Senate of Com. of Pa., 

, 87 (3d Cir.
1998).

                               III.

        The officials assert qualified immunity with respect to the
plaintiffs’ damage claims brought under 42 U.S.C. § 1983.
They will be entitled to such immunity if “‘their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Wilson v.
Layne, 

, 609 (1999) (quoting Harlow v. Fitzgerald,

   2
    See infra, n.6.

                                6


, 818 (1982)). “A court evaluating a claim of
qualified immunity ‘must first determine whether the plaintiff
has alleged the deprivation of an actual constitutional right at all,
and if so, proceed to determine whether that right was clearly
established at the time of alleged violation.’” 

v. Gabbert, 

, 290 (1999)). “If no constitutional
right would have been violated were the allegations established,
there is no necessity for further inquiries concerning qualified
immunity. On the other hand, if a violation could be made out
on a favorable view of the parties’ submissions, the next,
sequential step is to ask whether the right was clearly
established.” Saucier v. Katz, 

, 201 (2001). This
second inquiry “must be undertaken in light of the specific
context of the case.” 

threshold matter, we note that we, like the District
Court, read the damage claims before us as resting solely on the
substantive due process rights of care and protection recognized
in Youngberg v. Romeo, 

(1982). Youngberg
addresses only the extent to which the Due Process Clause
imposes upon the state an affirmative duty to care for, treat, and
protect persons in its custody. 

We hasten to note that
the Due Process Clause, of course, also forecloses the state
under some circumstances from taking affirmative action that
deprives citizens of interests in life or liberty, regardless of their
custodial status. As we pointed out in Fialkowski v. Greenwich
Home for Children, Inc., 

, 466 (3d Cir. 1990),
residents of state institutions whose circumstances do not
qualify them for protection under Youngberg nevertheless
possess other substantive due process rights to be free of certain
state interference in their lives.3 Because the complaint and,

    3
    In Fialkowski, we explained that a voluntarily committed
mentally retarded patient who did not qualify for relief under
Youngberg would, under the holdings of cases like Stoneking v.
Bradford Area School District, 

(3d Cir. 1989),

                                  7
indeed, the briefs before us and in the District Court, rely solely
on the rights mandated by Youngberg, nothing we say about the
significance of the voluntary or involuntary nature of
confinement in this context is relevant in the context of other
substantive due process rights of voluntarily committed persons.

        In Youngberg, the Supreme Court held that when the
state deprives an individual of liberty through involuntary
commitment proceedings, it undertakes an affirmative obligation
to confine the individual under “conditions of reasonable care
and safety” that are “reasonably nonrestrictive” and to provide
the individual with “such training as may be required by these

. The Court noted that “[s]uch
conditions of confinement would comport fully with the purpose
of [the individual’s] commitment.” Id.; see also 

n.27
(citing Jackson v. Indiana, 

, 738 (1972) (holding
due process requires rational relation between nature and
duration of commitment and its purpose)).
        The Due Process Clause of the Fourteenth Amendment
“generally confer[s] no affirmative right to governmental aid.”
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 

,
196 (1989). However, the rights recognized in Youngberg fit
within an exception providing that “when the State takes a
person into its custody and holds him there against his will, the


have a right to relief in the event that a state actor deliberately
deprived him of his liberty interest in personal 

. Clearly, voluntarily committed persons have
substantive due process rights to be free from unjustified or
unauthorized government interference with their fundamental
rights, such as the right to court access, to vote, and to marry.
See, e.g., Bounds v. Smith, 

(1977) (holding that
right of access to the courts is fundamental); Harper v. Virginia
State Bd. of Elections, 

(1966) (holding that right
to vote is fundamental); Loving v. Virginia, 

(1967)
(recognizing fundamental right to marry).

                                8
Constitution imposes upon it a corresponding duty to assume
some responsibility for his safety and general well-being.”

; Collins v. City of Harker
Heights, 

, 127 (1992) (“[T]he Due Process Clause
of its own force requires that conditions of confinement satisfy
certain minimal standards for pretrial detainees, for persons in
mental institutions, for convicted felons, and for persons under
arrests.”) (citations omitted). The Supreme Court explained the
rationale for this exception in DeShaney:

       [W]hen the State by the affirmative exercise of its
       power so restrains an individual’s liberty that it
       renders him unable to care for himself, and at the
       same time fails to provide for his basic human
       needs–e.g., food, clothing, shelter, medical care,
       and reasonable safety–it transgresses the
       substantive limits on state action set by the Eighth
       Amendment and the Due Process Clause. The
       affirmative duty to protect arises not from the
       State’s knowledge of the individual’s predicament
       or from its expressions of intent to help him, but
       from the limitation which it has imposed on his
       freedom to act on his own behalf.

(citations omitted). In other words, “[t]he ‘process’
that the Constitution guarantees in connection with any
deprivation of liberty . . . includes a continuing obligation to
satisfy certain minimal custodial standards.” 

. The Supreme Court has stressed that “it 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–which is the
‘deprivation of liberty’ triggering the protections of the Due
Process Clause.” 

.

       Following the general rule, the Supreme Court in

                                9
DeShaney ruled that the state owed no continuing constitutional
obligation of care or protection to a child who had been
previously taken into custody of the state, but returned to the
custody of his 

. Similarly, the Court in
Collins refused to accept a city employee’s argument that the
city had a “federal constitutional obligation to provide its
employees with certain minimal levels of safety and 

. The Court reasoned that the plaintiff “cannot
maintain . . . that the city deprived [him] of his liberty when it
made, and he voluntarily accepted, an offer of employment.” 

        Accordingly, our court recognized in Fialkowski v.
Greenwich Home for Children, Inc., 

, 465 (3d Cir.
1990), that “the substantive rights recognized in Youngberg are
limited to persons whose personal liberty has been substantially
curtailed by the state.” In Fialkowski, we ruled that a severely
retarded adult male could not invoke Youngberg rights to
reasonable care when his parents “voluntarily placed him at” a
community health center. 

(emphasis added). In such
a circumstance, the plaintiff’s “personal liberty was not
substantially curtailed by the state in any way.” 

that “[n]ot only were [the patient’s parents] free to
remove their son from the [center] if they wished, but [the
patient] himself enjoyed considerable freedom of movement.
He was thus not deprived of freedom ‘through incarceration,
institutionalization or other similar restraint of personal liberty.”
Id. (quoting 

).4

   4
    We similarly ruled in Black v. Indiana Area Sch. Dist., 

, 713 (3d Cir. 1993), that a school bus driver “stood in
no ‘special relationship’ with the students that would create an
affirmative duty of care.” We emphasized that “[n]either the
state compulsory attendance laws nor any other state rule
required [the students’] presence on the . . . school bus.” 

                                 10
       In the instant case, the District Court erred in concluding
that the voluntary nature of one’s custody and continued
confinement does not impact the availability of the rights to care
and protection mandated by Youngberg v. Romeo, 

(1982). Youngberg dealt with an involuntarily committed
inmate, and Fialkowski holds that the same principles do not
apply to individuals who are free to leave state custody “if they

.

       The intervenors rely on language in some of our cases
emphasizing that the relationship between the state and an
individual must be custodial in order to trigger an affirmative
duty of care between the state and the individual. For example,
in D.R. v. Middle Bucks Area Vocational Tech. Sch., 

, 1370 (3d Cir. 1992), we stated that “[o]ur court has read
DeShaney primarily as setting out a test of physical custody.”
But the D.R. court went on to explain that

       [t]he state’s duty to prisoners and involuntarily
       committed patients exists because of the full time
       severe and continuous state restriction of liberty
       in both environments. Institutionalized persons
       are wholly dependant upon the state for food,
       shelter, clothing and safety. It is not within their
       power to provide for themselves, nor are they
       given the opportunity to seek outside help to meet
       their basic needs. Obviously, they are not free to
       leave.

              Here it is the parents who decide whether
       that education will take place in the home, in
       public or private schools or, as here, in a
       vocational-technical school.

(emphasis added). Thus, while the D.R. court
emphasized that a comprehensive custodial relationship is

                               11
necessary to trigger the state’s affirmative obligation of care and
protection, it did so with an understanding that the individual
must not be free to leave that custody if he so chooses.

         In Nicini v. Morra, 

, 808 (3d Cir. 2000), our
court held that the state has a “special relationship” and owes
affirmative obligations of care to those children it places within
its foster care system. We emphasized that the state places
foster children “in a custodial environment” from which the
children are “unable to seek alternative living arrangements,”

the state does for the incarcerated or the involuntarily
committed. “In each of these cases the state, by affirmative act,
renders the individual substantially ‘dependent upon the state .
. . to meet [his or her] basic needs.’” 

that the foster child in Nicini originally came
into state custody when his father signed a voluntary-placement
agreement. 

However, the state court reviewing
Nicini’s placement had ordered that “Nicini would ‘come[]
under the care and supervision’ of [New Jersey’s Department of
Youth and Family Services (“DYFS”)], that he would remain
with the [alleged wrongdoers] ‘for so long as [DYFS] thinks
that’s an appropriate placement,’ and that ‘[u]nder no
circumstances is [DYFS] to return the boy to the home of his
parents without the authority of the Court.’” 

(quoting
order of New Jersey Superior Court) (citation omitted). Such an
order by the state, but not voluntary placement in custody
standing alone, amounts to a deprivation of liberty triggering a
“corresponding duty to assume some responsibility for . . .
safety and well-being.” 

.

       Thus, a custodial relationship created merely by an
individual’s voluntary submission to state custody is not a
“deprivation of liberty” sufficient to trigger the protections of
Youngberg. Indeed, the Supreme Court has specifically noted
that when a patient provides valid consent to enter a state mental

                                 12
treatment facility, there is no deprivation of liberty at all.
Zinermon v. Burch, 

, 117-18 n.3 (“If only those
patients who are competent to consent to admission are allowed
to sign themselves in as ‘voluntary’ patients, then they would
not be deprived of any liberty interest at all.”); 

n.17;
see also Monahan v. Dorchester Counseling Ctr., Inc., 

, 991 (1st Cir. 1992) (“Because the state did not commit
Monahan involuntarily, it did not take an ‘affirmative act’ of
restraining his liberty, an act which may trigger a corresponding
due process duty to assume a special responsibility for his
protection.”); Walton v. Alexander, 

(5th Cir. 1995)
(en banc) (A “‘special relationship’ does not arise solely because
the state exercises custodial control over an individual when a
person voluntarily resides in a state facility under its custodial
rules.”).

        We conclude that appellants go too far, however, when
they insist that a court commitment to state custody is a
necessary characteristic of a deprivation of liberty sufficient to
trigger Youngberg’s protections. As the District Court observed:

       [I]t is consistent with the Court’s rationale in
       Youngberg to find that the state “may act to
       restrict an individual’s liberty when it either
       involuntarily commits the individual or, at some
       point during the term of one’s voluntary
       commitment, takes affirmative steps to restrain
       one’s 

. In addition,
       . . . a voluntary commitment may, over time, take
       on the character of an involuntary one. 

change could occur [for example] as a result of
       use of physical or chemical restraints. 

22 (quoting United States v. Pennsylvania, 

, 124 (E.D. Pa. 1993)).



                                13
        Indeed, even commitments formally labeled as
“voluntary” may arguably amount to de facto deprivations of
liberty from their inception. See Sarah C. Kellogg, Note, The
Due Process Right to a Safe and Humane Environment for
Patients in State Custody: The Voluntary/Involuntary
Distinction, 23 Am. J.L. & Med. 339, 341-43 (1997) (listing
“eight overlapping types of commitment, only one of which can
truly be considered voluntary in the sense that it results from the
patient’s uncompelled free choice”). In addition, when plaintiffs
voluntarily consent to enter state institutions, those institutions
may set limits on a patient’s ability to leave. See 

(“In
a voluntary commitment, a facility admitting a competent adult
may retain the right to institute involuntary commitment
proceedings or demand that certain bureaucratic requirements be
met before granting the patient’s request for discharge.”); 1
Michael L. Perlin, Mental Disability Law § 2C-7.2 at 482-83
(2nd ed. 1998) (“Many commentators have suggested that
voluntary procedures are ‘subject to abuse’ or involve
‘substantial elements of coercion,’ and that the distinction
between ‘voluntary’ and ‘involuntary’ patients is often an
‘illusory’ or ‘murky’ one, with voluntary residents often having
even fewer opportunities for discharge than those involuntarily
committed.”) (footnotes omitted). We note that in Pennsylvania
a voluntarily committed inmate may be subject to a waiting
period of up to 72 hours before he or she can secure release. See
50 Pa. Cons. Stat. § 7206(a).

       The existing case law supports the District Court’s
approach of looking beyond the label of an individual’s
confinement to ascertain whether the state has deprived an
individual of liberty in such a way as to trigger Youngberg’s
protections. The Supreme Court noted in Youngberg itself that
“the facts in cases of confinement of mentally retarded patients
vary widely” and “it is essential to focus on the facts and
circumstances of the case before a 

n.25.
Courts of appeals have looked to the particular facts of an

                                14
individual’s custody and, in particular, to whether the individual
is free to leave state custody. The Eighth Circuit ruled in
Kennedy v. Schafer, 

, 295 (8th Cir. 1995), that
summary judgment on a voluntarily committed mental patient’s
Youngberg claim was inappropriate when there was a genuine
issue of material fact as to whether the patient “may have
effectively become an involuntary patient.” In Monahan v.
Dorchester Counseling Ctr., 

, 992 (1st Cir. 1992),
the First Circuit ruled that a voluntarily committed mental health
patient could not assert rights under Youngberg, but looked
beyond the plaintiff’s formal status to emphasize that the
“complaint did not allege that he would have been barred from
leaving” and that it was the plaintiff’s “own mental condition
alone that impinged upon his freedom to leave, it was not the
state that deprived him of that freedom.” See also Walton v.
Alexander, 

, 1305 (5th Cir. 1995) (ruling that the
state owed no duty to protect a voluntary resident of a state
school for the deaf, but examining the record evidence to
determine that the plaintiff attended the school voluntarily “with
the option of leaving at will, an option that was never
withdrawn”). Finally, in a case factually similar to the instant
case, the Court of Appeals for the Second Circuit noted in
Brooks v. Guiliani, 

, 1467-68 (2nd Cir. 1996), that
even though the plaintiffs’ commitment to out-of-state
residential treatment facilities did not give rise to Youngberg
rights, an “involuntary transfer” to in-state facilities would
“restrict plaintiffs’ liberty” and thereby “implicate the Due
Process Clause.”

       District courts have similarly recognized that patients
who have formally been voluntarily committed may nonetheless
find themselves in a de facto involuntary status. See United
States v. Pennsylvania, 

, 124 (E.D. Pa. 1993)
(“[W]here the initial institutionalization of an individual is made
pursuant to a ‘voluntary’ decision, such institutionalization in its
course may become one which necessarily curtails an

                                15
individual’s liberty.”); Halderman v. Pennhurst State Sch. &
Hosp., 

, 222 (E.D. Pa. 1992) (rejecting
argument that “only those residents who were court-committed”
should be treated as involuntary residents for purposes of
Youngberg), aff’d 

(3d Cir. 1992); Clark v.
Donahue, 

, 1162 (S.D. Ind. 1995) (“[E]ven
though Plaintiffs concede that the guardians . . . did initially
voluntarily commit them to the state, the relevant inquiry must
focus upon the actual circumstances of Plaintiffs’
confinement.”).

        Count V of the complaint alleges that each plaintiff was
in state custody and was injured physically and psychologically
in the course, and as a result, of a transfer to an inappropriate
institution. It further alleges that the plaintiffs were separated
from their guardians and loved ones by a police blockade, and
were transferred “[a]gainst their will,” and that “[p]hysical and
psychological force was utilized by state employees . . . in the
course of the transfer.” Am. Compl. ¶¶ 41, 42. We conclude
that plaintiffs may be able to prove facts consistent with these
allegations that would establish a deprivation of liberty and a
violation of Youngberg’s duty of care and protection.

        While we conclude that a constitutional violation may
have occurred, the current record does not provide an adequate
basis for passing on the defendants’ claim to qualified immunity.
Indeed, contrary to the assumption underlying appellants’ entire
appeal, we do not even know whether any of the plaintiffs were
the subject of a court-ordered commitment at the relevant time.5

  5
   The defendants submitted a Declaration to the District Court
indicating that “[o]nly one plaintiff . . . is currently subject to
involuntary commitment, and she currently resides at a private
facility.” Geis Decl. ¶ 7. The Declaration says nothing about
the commitment status of any of the plaintiffs at the time of the
transfer.

                                16
Moreover, assuming that none were, it is far from clear that any
of the plaintiffs were in a position to extricate themselves from
state custody at the time of the transfer that allegedly inflicted
their injuries.

                               IV.

       We hold that the District Court erred in concluding that
the state owes an affirmative due process duty of care to
residents of a state institution who are free to leave state
custody. We will affirm the order of the District Court denying
the motion to dismiss on grounds of qualified immunity,
however, so that the matter of immunity can be determined on
the basis of a more fully developed record. The order of the
District Court entered January 27, 2005, will be affirmed.6




   6
     If the District Court, on remand, determines that plaintiffs,
whose complaint seeks damages and injunctive relief, are
abandoning their damage claim, the District Court will have no
occasion to devote further efforts to resolving the question
whether defendants Thaler and Houston are entitled to qualified
immunity. Our opinion – indeed, our jurisdiction to review the
District Court’s order denying defendants’ motion to dismiss on
qualified-immunity grounds – is based on our understanding that
plaintiffs have not abandoned their damage claim. Nothing in
the record establishes that plaintiffs have abandoned their
damage claim. Further, the docket shows that plaintiffs have
made some, albeit procedurally inadequate, effort to participate
in this appeal. These facts satisfy us that defendants remain at
risk of being subjected to further litigation on a claim for which
they argue they are entitled to qualified immunity. Accordingly,
we conclude that the requirements of the collateral order
doctrine are met and we have jurisdiction over the appeal. See
Mitchell v. Forsyth, 

, 526-27 (1985).

                               17