Kissner v. Orr, 2:20-cv-13445

On August 20, 2020, Donald Kissner attempted suicide by pouring lighter fluid on himself and attempting to light himself on fire; officers Orr and Rogers responded.
Officers detained Kissner for safety and transported him to Owosso Memorial Hospital for psychiatric evaluation instead of the jail; hospital took custody.
Dr. Jeremy Zarski, an emergency physician at the hospital, examined Kissner at about 10:30 p.m. and executed a clinical certificate diagnosing acute suicidal ideation and mental illness.
Kissner alleges he sat in a patrol car for ~1 hour 40 minutes covered in lighter fluid and experienced a delay in medical care at the hospital that caused chemical burns and scarring.
Dr. Zarski moved for summary judgment arguing he was a private physician, not a state actor; Kissner did not file a response to the motion.
The magistrate judge recommended granting Zarski’s motion, concluding Kissner failed to show Zarski acted under color of state law and thus cannot be liable under 42 U.S.C. § 1983.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Dr. Zarski was a state actor for § 1983 purposes	Kissner alleges Zarski’s evaluation and certification were part of state action tied to his custody and delayed medical care	Zarski argues he was acting as a private emergency physician exercising independent professional judgment, not under color of state law	Court: Zarski was not a state actor; Kissner failed to establish state action and summary judgment recommended for Zarski
Whether summary judgment was appropriate given procedural posture	Implicit: merits dispute over delay and injuries	Zarski: no genuine dispute of material fact and Kissner did not respond with evidence to defeat summary judgment	Court: Summary judgment proper; Kissner’s failure to respond and lack of evidence on state-action element warrants judgment for Zarski

Ellison v. Garbarino, 48 F.3d 192 (6th Cir. 1995) (private physician who evaluated person for involuntary commitment not a state actor where plaintiff was not in state custody)
Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir. 1992) (state-action test: actions must be fairly attributable to the state)
Lugar v. Edmondson Oil Co., 457 U.S. 922 (U.S. 1982) (articulates principle that private conduct is actionable under the Fourteenth Amendment only if fairly attributable to the state)
Carl v. Muskegon County, 763 F.3d 592 (6th Cir. 2014) (private physician treating a person in state custody can be a state actor under the public function test)
West v. Atkins, 487 U.S. 42 (U.S. 1988) (state’s obligation to provide medical care to those in custody establishes potential § 1983 liability for physician acting under color of state law)
Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment standards; movant need not disprove opponent’s claim but show absence of genuine issue)