William Allen Spencer v. Bumyong Lee, M.D., and St. Elizabeth Hospital

and circumstances the facts 2000e-3 under case. of this to the delivered salary study was 5. The informing superintend- performance Jennings’ job Although board without 16. affected, protest ent. her of the form not was working rela- caused a breakdown answering included Jennings’ duties 6. cannot be at- tionship that breakdown telephone, and personal superintendent’s through it to Jen- reaction going Procunier’s his mail and tributed opening and Rather, documents him, typing confidential the breakdown nings’ and conduct. superin- as the Jennings acted also letters. Jennings’ conduct. attributable away, he was and ears eyes tendent’s Jenning’s dis- given for The reason 17. orally, rule writing and both reporting, upon, actually relied reason charge was the as well employees by other violations pretextual. it not was concern. of administrative other matters legit- provided defendant has Because presented not study was salary 7. plain- imate, non-discriminatory reason presenta- its before superintendent to the discharge failed tiff's enhance in order to the board tion pretext, de- merely a reason is prove that effectiveness. in their judgment entitled to fendants are superintend- Jennings’ belief 8. Judgment for defendant. favor. study or salary not deliver ent would to the objections secretary’s voice the

board, unreasonable. was Jennings be- discharged 9. Procunier i.e., protest, be- her form

cause of salary him of the not inform did cause she board, distributing it to the study before salary of the content not because protesting exist- she was study because SPENCER, Allen William salary schedules. ing Plaintiff-Appellant, Zeller- the Crown reasoning of 10. The of this to the facts applicable bach case to the objection form case because LEE, M.D., Bumyong and St. Elizabeth from an easily divorced cannot be protest Defendants-Appellees. Hospital, itself. protest objection No. 87-1203. discharged because Jennings was in a stood secretary who only she was Appeals, States Court United superin- relationship with confidential Seventh Circuit. instigator tendent, was the she not because 10, 1988. Argued Feb. protest. prime motivator 27, 1988. Sept. Jennings’ En Banc Reheard reason for proffered 12. The under the unreasonable discharge 3, 1989. Jan. Decided this case. circumstances facts the su- not unreasonable 13. It was personal secre- expect his perintendent study prior salary him the

tary to inform the board.

to its distribution expecta- disappointed

14. Procunier’s in him Jennings lack trust

tions and legitimate, non-discriminato-

constituted discharge under her reason for ry, business case. of this circumstances

the facts trust of lost claim

15. Procunier’s section undermine does not

confidence

POSNER, Judge. Circuit Do and a hos pital act under law, color of state lay therefore open themselves to suit under 42 U.S.C. they commit a men § tally person? disturbed Adhering to Byrne Kysar, v. (7th 347 F.2d 734 Cir. 1965), and Duzynski Nosal, v. 324 F.2d (7th Cir.1963), 929-31 they we hold do not. The other courts that have addressed agree this issue position, with our see Hall Quillen, (4th 631 F.2d 1154 Cir.1980), there, and cases cited exception with the plurality opinion in Burch Apalachee Community Mental Services, Health Inc., 840 F.2d Cir.1988)(en banc), which however devoted only three sen tences to the issue and authority cited no for its conclusion. plaintiff, Spencer, appeals William

from the dismissal of complaint his for claim, failure to state a so proceed we must assumption on the alleged that the facts complaint are true. In 1982 and Spencer’s physician, defendant Bumyong Lee, Spencer authorized involuntarily committed to Hospital. St. Elizabeth On the second of these occasions called in to take hospi- will, against tal his and on day the fourth days of his hospitalization five Dr. Lee directed inject Spencer a nurse to with a drug. Spencer protested that he was aller- gic drug, injected but he any- was way and sustained bodily injury. Spencer damages seeks under 42 U.S.C. 1983 for deprivation of his without due process of law and for the reckless inflic- injury tion during his second confine- damages ment. Pendent counts seek un- der the common of Illinois law for false imprisonment malpractice. Spencer Africk, Block, Chicago, Joel J. Jenner & lawyer court, had no the district and his Ill., plaintiff-appellant. for complaint barely coherent. The district Lynn Dowd, Thomas, D. Hinshaw & Cul- court him ordered to furnish a more defi- bertson, Ill., Chicago, defendants-appel- nite response, statement of his claim. In lees. Spencer submitted medical records which regular physi- indicate that Dr. Lee was his BAUER, Judge, Before Chief commitments; cian at the time of the CUMMINGS, WOOD, Jr., CUDAHY, attempted the first commitment POSNER, COFFEY, FLAUM, voluntary; suicide and was that his father EASTERBROOK, RIPPLE, MANION signed petition for the second commit- KANNE, Judges. ment; Circuit and that another doctor—not Dr. Code, provides that “when a which for that certificate the medical signed Lee — subject depict is asserted to be documents These commitment. im- suicidal in such a condition that schizophrenic with admission and

Spencer as necessary in and out of for the hospitalization been mediate tendencies who Among many times. person or others from protection institutions of such mental he was harm, years age “all winter of any person delusions are that physical his starting the time peti- until this when may present sick or older [commitment] operation also near prostitution a kind of facility director of a mental tion to the they staying, have been he is motel where facility county in the re- health the where produc- saw, chain the saw running a chain present.” Ill.Rev. spondent resides or is he couldn’t testes and in his ed hormones 91V2, 3-601(a). petition ch. Stat. § Lee’s one of Dr. is still.” This from sit much detail and be must include factual by Spencer’s reports is corroborated but certificate, signed by a accompanied injunc- court for in the district request professional, physician qualified or other hospital Elizabeth “bar St. tion that would respondent requires imme- stating that the hearing circular my damaging hospitalization that diate and However, judge did not district saws.” respondent examined the within has records —which any rely on of medical hours, setting forth the previous 72 and (he just produced for did not Spencer vouch physician’s opinion for factual basis order) and judge’s response to them required. hospitalization immediate that (away) explain had no chance to has —and 3-601(b), 24 hours of the 3-602. Within §§ rely either. won’t on them we to the mental respondent’s admission as one for casting of lawsuit facility, facility must forward health the Fourteenth of a violation court, redress papers the local state the relevant clause, which process due Amendment’s hearing must in turn within 5 which hold life, forbids states deprive persons of (exclusive holidays— days of weekends process of due liberty, property or without longest possible prehearing commit- so the eye the innocent law, certainly strike would there are days) ment is 8 on whether process clause puzzling. The due as respon- grounds continuing to hold the for government; by state directed to action dent. 3-611. n remedy against 1983 creates U.S.C. § complex provisions, Spencer ar- This law, of state acting color persons under private physi- gues, operates “deputize” The defendants police officers. such private hospitals cians such as Dr. Lee and They employees. not this case are carry out the exclu- such as St. Elizabeth to contract no provide services committing men- function of sive state any of its subdivi- government state or Foods, Big Del’s Saver Compare tally ill. (so as is They not participate sions. do far Cook, Inc., 795 F.2d Carpenter Inc. v. case) any state or other to this relevant (7th Cir.1986). For a maximum purely private A programs. governmental ostensibly private ac- eight days these private hospital are purely physician and a Health empowered the Mental tors are plaintiff alleged to have confined against people treat their to hold and Code injured him and to have against his will concludes, is a power, This will. These are improper medical treatment. such power that does cease be state not imprisonment allegations false classic private per- merely delegated to because for which the com- malpractice —torts sons. remedies that provides of Illinois mon law suggest are inade- does not plaintiff or encour If of Illinois ordered the State quate. persons commit the mental aged private actors, ill, they be state ly would indeed are none- arguing that the defendants doing state’s business. they be would purposes of the theless state actors United States discussion See our recent and section Fourteenth Amendment Koenig, 856 F.2d v. Cir. 847-51 Mental the Illinois relies on difference 1988). no It would make Developmental Disabilities Health employees present have to situate the technically We case they grid. governmen in this It is not a case of to contract Or if the state decided state. encouragement tal or direction of highway police or provision of state out the persons; normally “a State can be held prisons pri- of state the administration responsible only for a decision security and correc- entrepreneurs vate power it has exercised coercive or services, entrepreneurs and their tional provided significant encourage assume) (we employees would ment, covert, either overt choice rela- of the contractual actors. The details must law be deemed to be that of the agencies and the tionship between state Yaretsky, supra, State.” Blum poli- persons actually implement who U.S. at 102 S.Ct. at 2786. See also em- persons are state cy those —whether Hospital, Tunca v. Lutheran General independent contractors or the ployees (7th Cir.1988); Ezpeleta F.2d contractors —are employees independent Mercy Corp., 800 F.2d Sisters Health of moment. In accordance with Marsh of no 119, (7th Cir.1986). Spencer 122 does not 276, Alabama, 90 326 U.S. 66 S.Ct. v. suggest provisions that the relevant of the (1946), may further assume L.Ed. 265 we Mental Health Code enacted because if a residential subdi- that the state allowed commitments, encourage to wants building high-rise apartment to or vision any repossession more than state are laws govern- municipal form its own de facto encourage passed states to because want ment, an arm of government that would be repossess goods. creditors to their debtors’ purposes the state for of the Fourteenth Brothers, Brooks, 436 Flagg See Inc. v. Amendment, jure municipal just as de 98 56 L.Ed.2d 185 U.S. S.Ct. (1978). argument His is that the commit are; again technicality of governments ill, mentally like the of ment of the arrest not con- governmental employment would suspects, criminal is so central tradi trol the case. The Fourteenth Amendment government tional a function of of state prescribe does not structure responsibility per state cannot limit government. Beverage v. United Co. forming Any private the function. individ Comm’n, Beverage 760 Indiana Alcoholic empowered to commit a ual who is (7th Cir.1985). F.2d 155 does the Who against person’s is to an institution will state’s business is state’s actor. government, just "company as the town” opposite At the extreme is the situation government of part Marsh was scope where state decides reduce Alabama, although part that had been government. Suppose of state owned private entity handed to adminis over railroad, it to a and decided sell ter. person. deemed Would new owner be appealing Spencer is thus —with Constitution, a state actor under the on the support language of cases like Blum ground “deputized” him that state had and in the outcome of Marsh —to the idea operate “its” railroad? He would not. governmental functions that have tra fixed; government scope of is not de- ditionally prerogative of been exclusive regulation of does not create a host government, usually they involved because sector, actors in the like the mo- coercion, delegated high degree can of raine that marks the farthest advance of a The treatment of the but not abandoned. however, glacier. powers, Certain are disabled, however, as of the sick “traditionally prerogative the exclusive of func generally, and infirm is not such a State,” and their exercise Kohn, See, e.g., Rendell-Baker v. tion. persons Yaretsky, is state action. Blum v. 2764, 2772, 830, 842, 102 73 457 U.S. S.Ct. 2777, 2786, 457 73 U.S. Suriano, (1982); L.Ed.2d 418 Musso v. 586 can L.Ed.2d 534 Marsh be under- Cir.1978); (7th Hoyt F.2d 63 v. St. deregu- light in this a case not of stood Center, F.2d Mary’s 711 Rehabilitation —as lation, delegation pow- (8th Cir.1983); of Taylor but 866 v. First Bank, (9th 707 F.2d 388 Cir. Wyoming actors. ers argu- question. At enlighten us on this issue not cited there. The 1983), and cases if it make no difference ment he said would true, involuntary commitment here, it is analogy following procedure But the Illinois had been than treatment. rather Health Code to draw arrest in the current Mental seeks set forth Spencer subject not make years. arrest is But it would citizen’s the last 200 inapt, since a show, 1983. Lee v. section tend to challenge under It would difference. some (10th Park, F.2d 1112 prove, Estes that commit- although Town it would of Airlines, Cir.1987); Carey v. Continental exclusively public not been ment had Cir.1987); Inc., F.2d function, transportation, any more than 681, 687 Donnell, F.Supp. Bryant prop- one’s trespassers from removal of Maryland, (W.D.Tenn.1965); cf. goods from erty, repossession or the Griffin exclusively public defaulting debtor are (where proposition (1964) L.Ed.2d century almost a before functions—that assumed). is the Nor seems to have been Amend- of the Fourteenth the enactment self-defense, or the defense exercise of doing ment, persons were what repos- evicting trespassers property of the state contends is the work action, though chattels, even sessing persons, by private today even when done prop- and the defense often self-defense Hospital. Elizabeth as Dr. Lee and St. degree force involve a erty sometimes the Mental specific provisions operations. There characteristic dealing emergency com Health Code long as for as citizen arrests have been physicians private to by private mitment much public there have been —indeed old; they years are hospitals are not 200 Rome, and Greece and longer. ancient Mental years old. than 50 See Revised less century, nineteenth England in until Act, 5, 1945 1011. But art. Ill.Laws Health by pri- prosecutions arrests and most long private reme been a commitment crimes, (Some shop- e.g., individuals. vate (like repossession, subject dy, one albeit prosecuted in privately lifting, are still arrest, in self-defense, and other citizen’s exclu- England.) Arrest has never been an proper rights of or fringements on all function. sively governmental Not public safeguards. Even rigorous ty) to government ac- coercion is state-authorized sense, in private in Illinois a commitment tion. of vol requires relatives because That the end of case. This cannot be involuntarily men untarily committed and private de- prosecuted by a was Socrates of their pay to cost patients tal alike place prosecution of does nouncer not institutions, it and upkeep the state’s core of today outside the crime in Illinois to be involuntarily committed allows the Every governmental function functions. public as well as placed private homes analogue government has an performed by ch. private hospitals. See Ill.Rev.Stat. and govern- performed privately when that was 3-811; 5-105, 5-115, People v. 91V2,§§ rudimentary, or was before there ment was 257, 265, 17 Ill.Dec. Ill.App.3d Sharkey, 60 order is than government social older —for (1978). And 465, 470, 376 N.E.2d that establishes government. The tradition passage of the 1945 stat long before governmental exclusive functions a core of the con ute, of Illinois authorized the law so far. not reach back does by private of an insane finement question history is The we But relevant. days, if he was a up to ten persons, private trying to is whether are answer See or others. Craw danger himself doing the state’s business person 151 N.E. Brown, 321 Ill. ford other employee as an or should be treated (1926), the Act to Re interpreting ask, is agent the state. So we formal Commit in Relation the Law vise treating civil commit- there a tradition Lunatics, 2, 1893 Detention of ment and gov- mentally disturbed as ment of the Ill.Laws and, so, if well how ernmental function not novel was commitment argument Private The is it? brief established Illinois. Ac- 1893; was it invented in do nor distinguished Spencer’s counsel of Mr. Blackstone, writing cording just himself, not, “On tried to kill they do lunacy, first attack of or other action, occa- virtue of this become state actors insanity, hope sional while there be subject to suit under section 1983. reason, speedy restitution of it is usual family members, To physicians, allow unhappy objects confine the cus- private persons and other to exercise the tody under the direction of their nearest power safeguards, without friends and relations.” 1 Commentaries on however, including provision for a hear England the Laws 305. Histories of the ing eventually sooner rather than la —and public treatment of the insane focus on ter—would be monstrous. If institutions, involuntary extrajudicial but eight days thinks the allowed Illinois long commitment to institutions has prior law for confinement hearing is too commonplace. been London’s notorious lu- much, challenge he can the constitutionali asylum, “Bedlam,” natic nicknamed was statute, ty of the by analogy to Fuentes v. originally private; representative it Shevin, 407 U.S. 32 L.Ed. private medieval institutions to which 2d 556 He has not done In so. insane were committed to have their de- deed, he relies on the statute to make the Deutsch, mons exorcised. Albert See defendants state actors. But a 15, 40, 62, Mentally Ill in America 418-24 commitment is no more state action than (2d 1949). early hospitals ed. “When arrest, repossession citizen’s of chat asylums sprang up, for the ill tels, ejection trespassers or the is. The commitment could be effected with the authorizing statutes constraining these greatest of pauper indi- ease.... may or may activities consti be gent might summarily insane committed (Fuentes); tutional the activities them poorhouse, prison hospital by selves remain (Flagg Broth friends or relatives or officials_” order of Lugar ers — and see also v. Edmondson Id. at 420. See also 1 The Co., Oil Institutional Care of the Insane in the Unit- (1982); 73 L.Ed.2d 482 Winterland (Hurd ed and Canada States 313-17 ed. Trela, 257, Concessions Co. v. 735 F.2d 262 Bell, 1916); Treating Mentally Ill 46-47 (7th Cir.1984); 393, Loyd Loyd, v. 731 F.2d (1980). (7th Cir.1984); Guss, 398-99 Greco v. 775 The reasons for commit 161, (7th Cir.1985)). F.2d 164-67 This con ment, self-defense, arrests, as for citizen’s specific clusion has been reached with ref remedies, and other intensely are daughter’s erence to a use of a com civil practical. person displays If a symptoms mitment statute to institutionalize her fa illness, of acute and violent mental his fam remarry, ther so that he would not ily appropriate case a —in remarking pro court that “armed with less passerby stranger may or other have to — necessary cess than would be to seize a immediately act him to restrain from harm refrigerator, peace dragged Texas officers others, ing may himself or and there be no deposited Dahl from his home and him with public why institution at hand. That is Presbyterian Hospital in Dallas.” Dahl v. Illinois Mental Health Code allows Akin, 277, (5th Cir.1980). 630 F.2d 279 (as persons to commit to well as to given pause by allega- We are some public) institutions. We do not know the Spencer’s complaint tion in of involvement circumstances in which Mr. police: specifically the local that Dr. Lee committed, appears but it that the first given Spencer injection had “After commitment was because he had tried cau[s]ing psychiactric emergency by suicide, commit and let us assume this was [sic] dismissing Hospital me from St. Elizabeth indeed the reason. If his father and Dr. and a false arrest the Danville Police Lee and St. Elizabeth had had to initiate a him, Department seeking medical treat- judicial proceeding committing before while might Spencer’s he killed ment.” None of numerous sub- they have himself before necessary sequent filings police; no- could obtain order. When mentions the family person suggested they conspired members commit a who has is it that where 1382 test,” Supreme defendants, named no infallible Court has and he has

with the said, “impossible remains an task.” Reit possible It is police officers as defendants. 378, 369, Mulkey, 387 U.S. 87 man v. S.Ct. police called to assist with 1627, 1632, (1967). 830 18 L.Ed.2d “While commitments, though this Spencer’s one of principle private action is immune alleging. he is seem to be what does not from the restrictions of the Fourteenth events, police At all assistance law- easily Amendment is well established and self-help does not create a exercise of ful stated, question particular con whether conspiracy private person exercis- hand, ‘state ‘private,’ duct is on the one ing self-help. Lugar v. Edmondson action,’ other, frequently on the admits of Co., supra, 457 U.S. at 939 n. 102 Oil easy Metropoli no answer.” Jackson 21; at 2755 n. Gramenos v. Jewel S.Ct. Co., 345, 349-50, tan 95 Edison (7th Cir.1986); Cos., 435-36 797 F.2d 453, 42 S.Ct. L.Ed.2d 477 167-68; Guss, supra, 775 F.2d at Greco v. warning that echo the of Justice words Co., Realty v. Robert Bartlett Tarkowski Wilmington Parking Clark Burton v. Cir.1980). (7th F.2d Authority, 365 U.S. arrest is not citizen who makes a citizen’s (1961), 6 L.Ed.2d 45 now-Chief Justice by handing into a state actor transformed Rehnquist pointedly remarked that over the arrested —in- true nature of the State’s involve “[t]he so, deed, if he fails to do the arrest obvious, may immediately ment not be imprison- he for false invalid and is liable inquiry required detailed in order to ment. determine whether the test is met.” Jack pressure to transform state common son, 419 U.S. at 95 S.Ct. at 453-454. law torts into federal constitutional torts that, require Several factors in the case damage the immunities and the comes from us, special before we take heed Chief impose ceilings frequently that states on Rehnquist’s injunction. Justice As a (see, e.g., against suits their officials matter, noting threshold it that this bears Racine, 847 F.2d City Archie v. pro case comes on before court se (7th Cir.1988) (concurring opinion)), complaint patient. obliged, We are judges are some from a sense that state therefore, complaint by to evaluate the less against unsympathetic times to suits stringent pleadings standards than formal state, availability of attor and from the by lawyers. Pryzina Ley, drafted rights ney’s fee awards in civil suits under (7th Cir.1987); F.2d Palmer v. Only the last of these U.S.C. § Decatur, City 814 F.2d present in case such considerations is Cir.1987). fundamentally, More this is an only defendants are where pro- commitment case. As the institutions) (or acting persons Supreme nouncements of the make Court pursuant judicial to formal order. See Ex obvious, present such commitments an ex- Services, ecutive Commercial Ltd. v. Das traordinary possibility of to individu- abuse kalakis, 760, 766, Ill.App.3d 31 Ill.Dec. 74 Texas, liberty. al Addington See 58, 62, 1365, 1369(1979). 393 N.E.2d There 418, 425-27, 1804, 1809-10, U.S. 99 S.Ct. practical legal is neither nor basis for this (1979) (discussing L.Ed.2d 323 state inter- suit. justify involuntary ests sufficient to civil AFFIRMED. commitment); Donaldson, O’Connor v. 563, 573-76, 2486, 422 U.S. 95 S.Ct. 2492- RIPPLE, Judge, Circuit with whom 94, (1975) (discussing 45 L.Ed.2d 396 crite- FLAUM, Judge, joins, Circuit commitment). involuntary ria for civil dissenting concurring part respect, Supreme the cases this Court’s part. century. mirror the harsh lessons of this Despite great the of cases and many per- number commitment has Civil served world; seemingly the lexicon of countries of the well-honed verse end other “tests,” learned, permit concept hopefully, not to the of “state action” re- we have slightest movement in that direction “[FJormulating mains a difficult one. the Blum, recognize 1004-05, re- Lastly, here. we must U.S. at 102 S.Ct. at —and Indeed, state of Illinois to spect efforts of the below, as will be discussed —the delicate area. The prevent abuses this family’s the decision subject is signifi- England or experience historical even scrutiny by cant the state. early America are of little value when a Step 4 in process the is also rath- prevent affirmatively has acted er good than state action. While a deal of occurring incrementally here the sort persons the care of afflicted with mental parts seen in other of abuse we have provided disease has been and is by the world. state, it cannot be said that this task is one statutory The Illinois scheme must be “traditionally exclusively reserved to the starting analysis. point of our Under Jackson, 352, State.” 419 U.S. at 95 S.Ct. scheme, separate the Illinois there are four Bros., Flagg See also Inc. v. at 454. involuntary steps commit- involved Brooks, patient ment of a institution: (1978). 56 L.Ed.2d 185 “The mere

1) patient’s family fact that a subject the decision of the business to state physician regulation is re- and its that does not itself convert quired taken to and that action must be action purposes into that of the State Jackson, patient; institutionalize Fourteenth Amendment.” 419 U.S. at 95 S.Ct. at 453. While 2) physician the decision of a licensed there indeed be instances a dif- justifies information im- available ferent result would be necessitated because commitment; mediate encouraged par- commanded or 3) involuntary institutionalization treatment, ticular no such situation is set patient pursuant physician’s to the cer- complaint forth this even when the doc- tification; according ument is read to the lenient stan- 4) day-to-day patient, care of the pro se applicable dards evaluation of institutionalized, once insti- complaints. presume Nor can we that af- tution. present. firmative direction the state is are, Step step process 1 and 4 of this provides The Mental Health Code for an law, prevailing case ac- plan individualized medical treatment respect tion rather than state action. With designed solely by recipient, step 1, simple of state invocation relatives, (Ill.Rev. physician. his and his alone, legal procedures, standing does not Stat.1985, 91V2, 2-102(a), 2-107.) pars. ch. joint participation conspiracy constitute give The statute does not the court a Lugar See officials. place process except in the treatment Co., Edmondson Oil 939 n. U.S. plan periodically moni review and to 2755 n. 73 L.Ed.2d (Ill.Rev. recipient’s progress. tor (1982). Therefore, even on the basis 9IV2, 3-814.) Stat.1985, par. ch. rambling pro se complaint, we can Orr, Illinois v. Ill.App.3d 125 Ill. family conclude that the decision of the Dec. 531 N.E.2d 64 to seek commit- Steps procedure 2 and 3 of the Illinois ment is not action to the state. attributable problematic. respect are far more With The state neither nor encour- commands step physician’s required certification Blum v. See ages private such initiative. may before an Yaretsky, 457 991, 1004, 102 U.S. S.Ct. place part comprehensive adju- take of a 2777, 2785, (1982). 73 L.Ed.2d 534 The by dicative scheme mandated state law to merely provides opportunity for state an patient deprived ensure that the is not private parties through these to seek relief statutory his the unless criteria judicial process. approval the “Mere of or Ol- See acquiescence involuntary commitment are met. of a initiatives Karwoski, sen v. 1031, party justify holding Ill.App.3d to 68 25 is not sufficient 444, responsible State for those Ill.Dec. 386 N.E.2d 450 initiatives (1979). If, states, the terms the Fourteenth Amendment.” as is the case in some 1384 self-defense, trespassers, or the eviction of simply in physician’s certificate of chattels. Nor can the designed repossession to assist a tribu

formational decision-maker, it would considered a citizen’s ar- physician’s other act be nal or the execution of situation, to characterize In a the arrest results difficult rest. Hall “state action.” See certificate as any purely private initiative without Cir.1980), 1154, (4th 1155 Quillen, F.2d 631 v. customary procedure, “prearranged plan, 1141, 102 denied, 454 U.S. S.Ct. rt. judgment of a policy that substituted ce (1982) (physician ap L.Ed.2d 293 71 police or al- private party for that of the professional render by court pointed pow- party exercise state a lowed pro voluntary commitment evaluation Airlines, Inc., Carey er.” v. Continental However, actor).1 ceeding not a state (10th Cir.1987). Here, F.2d 1404 823 “contrasts with the situation hypothetical contrast, physician acts under the emergency admis in Illinois for procedure statutory authorization of the state direct sion, medical certificate physician’s a where specific part of a perform a act that is judge of a receive the attention does not adjudication procedure in an broader state already has been patient until after express area where the state has assumed Olsen, Ill. hospital.” 25 admitted decision. responsibility for the ultimate Here, at 450. 386 N.E.2d Dec. at Step accept health care institution’s a initial asser is the physician’s certification ing patient keeping patient a authority to commit of the state’s tion will, involves, under the against his also decision, not involuntarily. It is a patient scheme, of state au Illinois the assertion acts not as a opinion. physician considered thority and therefore must be state’s decision- person as the but per ill delegat state action. The care authority By maker. virtue state, traditionally physician may sons is not a matter entrusted ed to him the person can control of the state. The authorize what no other to the exclusive authorize, involuntary commitment of controlled, however, the exclusive state has patient to an institution. may authority “[A] determine private party delegate authority to a against his will and Illinois has be held party a state actor.” thereby make that authority. certainly most asserted that — —, Tarkanian, 109 U.S. v. NCAA Co., Trust 321 Cowdery v. Northern See (1988); L.Ed.2d 469 102 see also S.Ct. (1944). Ill.App. 53 N.E.2d When — —, Atkins, U.S. West v. care institution Illinois health L.Ed.2d 40 patient against pursuant his will holds a certification, custodial physician’s certification, as the Illi- physician’s judi of the state’s duties are direction id., recognized, see nois courts have Indeed, quite process. it is clear that cial private action which hardly enforce police power exercise of will acquiesces, such as the simply Quillen, (1st Cir.1980), the First Circuit held that majority 631 F.2d F.2d 15 cites Hall v. 1. The denied, (4th Cir.1980), court-appointed attorney was not a state actor. cert. (1982), quite for a far of course is different from 71 L.Ed.2d 293 This situation holding. presented It proposition than its actual in our case. The same is broader the situation physician opinion who examines a whether a Second Circuit in Housand deals with true of the Heiman, (2d Cir.1979). judicial proceeding patient part for com of a F.2d United v. Hall, physician Zibilich, is a state actor. mitment Simmons v. 542 F.2d 259 States ex rel. (5th Cir.1976), pa appointed by judge examine the court-appointed also involves a opinion professional tient and to render Eldredge, attorney. v. 505 F.2d See also Harkins very respect is a different to his condition. This (8th Cir.1974). Espinoza Rogers, 470 F.2d case, us. In our from the one before Cir.1972), situation involving the is also a case and has the is the decision-maker the authority Szijarto public defender. actions of a state specified person for a to commit the (9th Cir.1972), Legeman, also in 466 F.2d 864 any judicial ap further period of time without attorney. a re In this case it was volves an provals. attorney. is true of Thomas v. tained The same (3d Cir.1972) Howard, and Mulli distinguish- F.2d 228 455 cited in Hall are also The cases Schlachter, (6th 1968). Salon, instance, gan Cir. v. 389 F.2d 231 in Jackson v. 614 able. For

1385 Step presents a much more difficult necessary.2 Estate custody if that Cf. Hosp., 119 at all clear that question. Memorial It is not v. Condell Johnson 53, N.E.2d 117 Ill.Dec. accompanying papers Ill.2d complaint and to (1988)(“If had admitted Holt been allegation that the health care state an admittee, involuntary the fa as an Condell facility wrongfully held Mr. by the authorized have been cility would However, required we are against his will. apprehend request to to Code complaint charitably and pro to read a se her....”). applied requirement ought to be scru- that notes, if at majority opinion dealing As the are with the pulously when we provi- to contract out decided history workproduct an individual with a police or the adminis- highway sion of state plead- problems. of mental health While entrepre- to prisons of state tration good ings present individuals state neurs, considered they would well be material, deal of extraneous their authors case, Similarly, actors. incapable making a co- particularly are task of enforc- delegated effect job presentation. It is our to ensure herent pri- commitment ing a state-ordered protected at the rights their are even that facility. that au- Without health care vate judicial efficiency. Conse- cost of some unable would be thority, the institution judgment of I reverse the quently, would Therefore, function. perform its custodial case for court and remand the the district to the state. fairly attributable action is respect to this proceedings further Community Men- Apalachee See Burch aspect of the case. (11th Serv., 840 F.2d tal Health Cir.1988). possessed power, “Misuse of CUMMINGS, Judge, with Circuit only possible made of state law virtue CUDAHY, Judge, joins, Circuit clothed with the wrongdoer is whom because law, ‘un- action taken authority dissenting. of state state law.” United States der color of majority’s conclu- Disagreeing with the Classic, of the defendants that the actions sion (1941). 85 L.Ed. Hospi- committing Spencer to St. Elizabeth foregoing analysis, I con applying the state ac- necessarily cannot constitute tal complaint improperly clude majori- tion, from the respectfully I dissent Spencer’s entirety. Mr. in its dismissed determine wheth- holding. In order to ty’s steps 1 and 4 of respect to allegations with in the roles er the defendants’ process cannot sustain qualify as commitment of under section 1983. With cause of action that the defendants action such join as a step he has failed respect to liability under U.S.C. subject signed the certifi physician who party the on the necessary to elaborate it is § necessary therefore to ad It is not cate. statutory au- majority’s discussion important question whether dress the defendants’ conduct. thority for event, would, enjoy any to a mental Involuntary commitment Anno generally, immunity from suit. See may be commenced health institution tation, Federal Civ Right Under to Relief who, result of as a against an individual 1983) (42 Act U.S.C.S. Rights il illness, reasonably expected to mental Alleged Wrongful Commitment upon harm himself physical inflict serious 16 A.L. Hospital, in Mental Confinement or is unable in the near future another R. Fed. 450-63 necessary Foods, it was not Carpenter the order. In this case Big Saver Inc. v. 2. In Del's Cir.1986), Cook, Inc., fact ‘‘[t]he The court held that 795 F.2d 1344 call the sheriff. person background became a state court held that a that the sheriff remained require- purposes action of the state actor joined does as a defendant hence could not be they repossessed on the collateral ment when deprive Carpenter Cook’s action in enforc- parte court. strength order issued of an ex as state ing judicial of its character order parte instructed the sheriff The ex order action." Id. at carry out if need be to assist the 1386 provide physical capable for his needs. personally own Ill. of transporting pa- 91V2, 3-601(a) (Smith-Hurd

Rev.Stat. ch. tient to the facility. mental health If 1988). proceedings may The commitment patient has been detained at the mental individual, by any private be initiated facility health petition on the of basis a (such relatives), years or older friends 3-603, alone under Section facility may (such police as the officials who have complete necessary medical certificate. opportunity had an to observe individu twenty-four Within hours of admission al), staff, court order. hospital Sections (exclusive of weekends holidays), 3-606, However, 3-601, 3-607. none of patient must by psychiatrist, be examined a parties may patient a those detain at a other than completed the individual who mental health institution for more than physician’s certificate. The results will twenty-four completing pe hours without determine patient whether the should be detailing petitioner’s tition basis for dismissed or judicial hearing whether a recommending commitment of the individu should days be scheduled within five of obtaining al and a certificate executed admission. Section 3-610. Treatment may examiner, “physician, qualified or clinical begin on involuntarily patient admitted psychologist” pa who has examined the upon completion physician’s of the certifi- admission, prior tient 72 hours stating cate, although patient may refuse medi- respondent subject to involun cation unless such “necessary medication is tary requires admission and immediate hos prevent [patient] causing seri- 3-603, pitalization. Sections 3-604. ous harm to himself or others.” Section Upon presentation petition of the patient may 3-608. The not be involuntari- physician’s sheriff, county certificate to the ly in any treated event until physician’s patient custody is taken into and trans- completed. certificate has pa- been ported facility. to a mental health Section may tient held facility at the under the peace may custody 3-605. A officer take authority physician’s of a certificate and patient purposes of a of petition eight for a days prior maximum of physician’s without certifi- hearing. personally cate if the officer observes a reviewing the district court’s dismissal person appears subject who to be to invol- action, plaintiff’s the truth of all well- untary completes commitment and the nec- pleaded allegations must be assumed and essary petition upon arriving facility. at the light viewed in the most favorable to Section Similarly, may 3-606. a court or- Spencer. Village Maywood, Vaden v. person der a custody be taken into (7th Cir.1987), 809 F.2d certiorari transported facility to a mental health if as — denied, -, U.S. 107 S.Ct. open a result of observation court the Further, L.Ed.2d 381. this Court must lib- person appears require emergency com- erally Spencer’s pro complaint construe se mitment. Section 3-607. No citi- only affirm its dismissal if he can may zen cause a agency law enforcement prove entitling no set of facts him to relief. custody patient to take without the Gibson, Conley However, physician’s any certificate. (1957); Gamble, L.Ed.2d 80 Estelle v. the enumerated individuals cause a U.S. 50 L.Ed.2d 251 only to be detained for examination In order to state an action facility under Section at a mental health for a maximum allege twenty-four hours must physician’s without a deprived defendant him physician, qualified right certificate if “no of a exam- secured iner, by the psychologist or clinical Constitution or immediately laws the United possible or it States and available is not after a dili- that the defendant acted under gent effort to obtain the certificate.” “color Lugar Sec- law.” Co., tion 3-603. Presumably, physi- without a Edmondson Oil 457 U.S. at 937- cian’s necessary certificate invoke the S.Ct. at 2753-2755. The force inquiry Section 3-605 of as to person’s whether a statute, performed individual must be actions are “under color of state fairly said to may who be be action” deter- to the “state is identical law” actor. required for violation mination 928- Lugar at Amendment.

Fourteenth 937, 102 at 2753-2754. The Lugar at S.Ct. at 2749-2752. 102 S.Ct. explained Supreme Court further that mere suffi- clearly articulated a Spencer has pursuant by private party to a action allegations of in his liberty interest cient “something more” will not statute without treatment involuntary commitment and private party into a state transform the Hospi- at St. Elizabeth during his detention “something necessary more” actor. The Texas, 441 U.S. Addington v. tal. See activity private into state action convert the 323 60 L.Ed.2d 99 S.Ct. circumstances, re- factual varies with Romeo, (1979); 457 U.S. Youngberg v. tests: the sulting correspondingly varied 2457-2458, 315-316, 102 S.Ct. test, compul- the “state “public function” remain- only The issue L.Ed.2d test, test, “joint and the sion” the “nexus” of Dr. Lee and the actions ing is whether at 102 S.Ct. at Lugar action” test. implicate state ac- Hospital St. Elizabeth 2754-2755. tion.1 991, 102 Yaretsky, Blum v. 2777, the Court further elaborated S.Ct. COMMITMENT I. INVOLUNTARY may found in the con- that state action be A. Function the State entity one of three duct of a when of an indi- involuntary commitment The present: elements is danger to himself or to be a vidual believed ‘[Tjhere sufficiently close nexus be- is a hearing is no judicial others without challenged ac- and the tween the State infringements most severe one of the doubt entity so that the regulated tion However, the state personal liberty. may fairly treated of the latter be action act- deprivation cause such a power has itself.’ ... as that of the State [The power parens patriae ing pursuant to its power coercive or has exercised State] mentally protect provide care encourage- significant provided has Texas, 441 U.S. at Addington ill. covert, ment, overt or either Although Dr. Lee at 1809. neither deemed to must in law be be choice em- Hospital is a state nor St. Elizabeth entity of the State ... may component be ployee, the state action ‘traditionally that are powers exercised “fairly at- may if their actions fulfilled prerogative of the State.’ the exclusive at Lugar, 457 U.S. state.” tributable (cita- 1004-1005, at 2786 Blum at of “fair at 2755. The test S.Ct. omitted). tions elements where a involves two attribution” Byrne I do not think alleged majority, actor: party is to be a state Unlike the Cir.1965), (7th con- Kysar, 347 F.2d 734 First, by deprivation must be caused Spencer was committed trols this case. privilege right of some or the exercise involuntary commit- emergency under the a rule of created the State contained Section 3-600 procedures ment imposed by the State conduct Byrne seq. respon- et while is person for whom State order, now pursuant to court Second, charged committed party sible.... physician in seq. The 3-700 et deprivation must be a Section appeal. prema- prior It is Supplemen to this district court for Dr. Lee assert in their 1. Counsel sign physician’s dispute pursuant Brief that Dr. Lee did to resolve this factual tal ture involuntary Spencer’s com certificate used for & Ken- v. Archibald motion to dismiss. Mitchell 5). (Supp. This statement Cir.1978). Br. at Inc., mitment supported dall, F.2d by Spencer’s records 1984 medical com- Lee’s role in the 1982 determination of Dr. sub his more definite statement attached to properly a factual issue mitment to the district court on November mitted to his role in postponed trial. In addition until However, Spencer alleges that Dr. Lee commitment, poten- Lee remains Spencer's Dr. in his was involved for the treat- tially Section 1983 liable under 3). (Pl. Spencer’s Br. at both 1982 and 1984 Spencer in 1982 and 1984. ment of submitted to the medical records were not Byrne merely provided the certificate to whether state action exists is not whether requirement fulfill the medical witness capable citizens unilaterally petition the execution of a to initiate a committing ill in days judicial inquiry mental into the health of Bedlam England, existed in but plaintiff. Byrne at 736. present whether under the law citi- capable depriving zens are individuals of significant The distinction is because un- their to the same extent as Lee, physician Byrne like Dr. was no superior, state or whether the state has a expert an adjudi- more than witness the unique authority deprive to individuals of involuntary cation of the for com- manner, liberty in authority this an not mitment. The by certificate executed the general Indeed, inured in citizenry. the physician in Byrne was insufficient to majority readily concedes, the every public patient up cause the detention of the for to analogous function has an function eight days prior hearing. to a The authori- history. ty deprive majority’s opinion, The none- patient liberty to the of his rests theless, premise argu- in the court assumes as a Byrne under the statute in ment private physician possesses public whereas the that what constitutes a func- authority relatively stagnant tion is emergency commit- over time. It procedure. physician’s may ment Since the ac- have been the case that in the time of in Byrne rights tion is mentally insufficient to commit and Bedlam the ill were patient basis, emergency treat a on an recognized protected not to the same physician is not a state actor. Similar con- they today, rights extent are as were the clusions have been reached other courts prior minorities to the Thirteenth and Four- construing give physicians statutes which teenth Amendments. Illinois has altered authority to application execute an which the history by course of affirmatively judicial machinery initiates the for commit- recognizing rights ill ting See, Lewis, patient. e.g., a Willacy v. through Chapter its enactment of II of the F.Supp. 346, (D.D.C.1984), Illinois Developmental Mental Health and cases cited therein. Disabilities Code. reaching its conclusion physi majority The support finds further for its participation cian’s in the emergency com conclusion that confinement of the mental- procedure mitment does not constitute ly ill does not state action constitute action, state the majority applies analogy to citizen’s argument arrest. The Brooks, function test Flagg Bros. v. is capable depriv- that since citizens are to determine ing personal liberty individuals of when whether the involuntary pa commitment of they have a reasonable belief an of- traditional, tients is a exclusively sovereign being fense is committed becoming without merely function which has delegated been actors, deprivation then the delegation actor. If such a is not an exclusive state function. The made, been escape respon cannot analogy faulty. Although the citizen sibility for deprivations constitutional may prevent use reasonable force to by private parties caused acting under the offense, commission of an the citizen's — delegation. Atkins, U.S. -, West v. right arrest, to make an codified now (1988). 101 L.Ed.2d 40 38, 107-3, Ill.Rev.Stat. ch. is not coexten- § support decision, As for its majority sive with that of the state. The citizen’s

traces the historical roots of role in such an arrest involves that minimal commitment, concluding that since the com- amount of suspect’s liberty restraint on the mitment of the mentally ill has necessary prevent never been the commission of an prerogative exclusive or traditional offense escape of an offender. The line state, function of the it is not degree. state action is one of A performing citizen an performed by private entity. a may only suspect How- arrest detain a until law interesting ever history be, available, agents lesson enforcement are while a question more relevant determining physician may for detain and treat an involun- pri Lugar, Likewise eight 2d 604 up patient tarily committed a state actor found to be vate citizen was hearing. days without statute, where, sheriffs pursuant further arrest analogy to citizen’s applica parte the ex property on attached taking a sus- prior to because inappropriate party. tion of the citizen’s on custody based into pect must make officer police complaint, arrest and oth- examples of citizen’s of reasonable determination independent referred to self-help remedies er suspect has commit- grounds to believe on the distinguishable majority are also A committing an offense. or is ted remedies that these basis of interest individual cause an citizen could physician acts Whereas serve. may a days, as up eight confined executing certifi- public in interest of the law, unless pursuant Illinois commitment, emergency authorizing cate reasonable found had also proper- self-help remedies fulfill detention for the arrest and grounds Judge ty of the individual. As interest 107-2(c). ch. Ill.Rev.Stat. individual. addressing question in the reasoned Gesell code, the sheriff health mental the Under physi- in existed the state action of whether custody of and trans- duty to take under a admis- application and for cian’s detention upon presenta- solely patient based port the plaintiff: ill allegedly sion of the certificate, obviat- petition and of the tion an individual who detains physician “A determina- independent for an ing the need ..., by or others’ ‘likely injure to himself sheriff. illness the by mental tion of availing of a contrast, simply is not himself making citizen by the provided information acquiescence of remedy the ‘self-help’ with a often form arrest will directing the state; instead, per- function he the the police officer's of the the basis portion of power state’s and akin to the forms is more How- grounds determination. reasonable gen- against threats to protect the duty to a ever, police arrest the officer were for those unable public and to care eral the citizen the solely on word suspect at Willacy v. Lewis themselves.” care for of credibil- making a determination without satisfy officer’s reason- the ity sufficient statutory framework It is clear from the requirement, the officer grounds able a commit private individual that no false guilty of arrest no doubt be would for health institution mental patient to a imprisonment. of false the citizen a emergency basis without on an treatment Bros., Inc., 519 v. Brookshire In Smith physician by qualified a prior determination denied, Cir.1975), certiorari F.2d 93 patient facility that the health or mental 47 L.Ed.2d S.Ct. U.S. In the commitment confinement. warrants police to by establish (1976), failure the the serves certificate physician’s the procedure, cause existed probable independently correlative to function quasi-judicial relying shoplifter, suspected detain a by judge authoriz- warrant issued arrest of the conclusory statements solely on the suspect. Court This of a ing seizure the finding that in a employees, resulted store the physician’s recognized the nature due employees were state actors the store process in the commitment function implicit agreement of an to the existence doctors, who where F.2d at Byrne, 347 solely on the basis to arrest with the com- court-appointed of a were members “An information. arrest merchant’s of the qua- performed to have mittee, held were pri procured caused or by an officer examining recom- si-judicial function the an arrest is the same as vate patient. Un- mending commitment arresting Where private person.... code, the health Illinois mental der the solely the information on officer relies deter- adjudicatory delegated state has him gave employee defendant’s which emergency context mination arrest, private party making use physician to empowering physician, im liable for false may be held defendant agen- enforcement Inc., of state law Roo-Mac, the force prisonment.” Dutton any individual cies to confine 426 N.E. Ill.App.3d 55 Ill.Dec. in need emergency determines Recognizing plaintiff in Burch commitment. was detained hospi- two defendant tals for a greater much amount of time reasoning This was used in Burch v. Spencer, than was the reasoning of Burch Apalachee Community Mental Health nonetheless applies equal force to this Services, Inc., (11th Cir.1988) 840 F.2d 797 case. Just as in Burch no citizen (en banc). Burch, plaintiff alleged In could detain an individual in a mental plaintiff that a concerned citizen found the health institution days, for 152 similarly no wandering highway on the side of the citizen can commit an individual in Illinois took him community mental eight days hearing. without a In facility designated by both health Florida as ca cases, only physicians pable receiving hospitals patients suffering capable state, depriving psychotic plaintiffs mental illness. in a While their request respective at the for the facility, Burch amounts of signed voluntary a form for time. admission and stay treatment. After days, of three Two district courts have reached the private facility transferred him for further same conclusion construing similar stat treatment Hospital. Florida State utes. Flicker, Plain F.Supp. Throughout days his 152 at the (D.N.J.1986), court, criticizing the “ru facility hospital, and the plaintiff dimentary analysis” of this Court in Byrne, hearing never accorded a at which to chal found state action the conduct of two lenge his violation of Flor physicians who certified the emergency in release, requiring ida law commence voluntary commitment of involuntary ment of proce commitment twenty days prior to hearing. a An emer dures, or the voluntary express, informed gency involuntary appropri commitment is patient consent of the to evaluation or ate Jersey under New law “where the con treatment. Since Burch was under the in patient, dition of the judgment of the psychotropic drugs fluence of sig when his certifying physicians, is such pa that the nature for procured, commitment was his tient placed should be under immediate re consent voluntary was neither nor in straint and institution, confinement in an required formed as under the statute. Af and impossible where it is to obtain an concluding ter plaintiffs complaint that the order of temporary commitment.” N.J. alleged deprivation liberty a of without due S.A. 30:4-38. The Jersey New emergency process law, the applied court the Lugar required commitment statute signa the test to determine the state require action physicians tures of two reputable “of char ment of Writing Section 1983. plu for the qualified “practicing acter” as physicians” rality, Judge explained Frank Johnson that in order to commit an individual. N.J.S.A. hospitals’ the actions constituted state ac presentation 30:4-29. The of the certifi tion appellees because deprived “[t]he complaint cates and to the chief executive Burch way of his in a not available of the mental health per institution the citizen.” Burch at 803. In seeking son the involuntary commitment concurring Judge with opinion, Johnson’s became sufficient to detain patient the

Judge Clark further stated that the two up twenty days hearing. without a N.J. hospitals’ "deprivation of Burch’s freedom S.A. 30:4-38. was authorized and done in the course of The employment their court held profes physicians’ par- as mental health that the acting ticipation in sionals under color of the pursuant and procedure to Florida responsibility law. Their constituted state and action because consequent liability physicians performing 1983 is public no dif a § ferent police from that of officers function. “The state developed who could have home, search a citizen’s its statutory arrest the citizen require public scheme to state and detain him at jail, all health hospital without a doctors or state physicians proceeding warrant or magis determinations, before competence a to make just trate.” Burch at n. 2. required state actors are to determine the transports the sus- a citizen custody after delegat- it has Instead quarantine. need of or agency, enforcement to the law certify pect power police physicians toed custody take policeman requests that days wheth- up to 20 institutionalization and the suspect. Both private practice are in physicians er the making in represent state Plain at employees.” are determinations respective factual essential by the reached was conclusion A similar deprived of be should individual Hospi Mary Davenport v. Saint court judi- pending liberty interest personal his (E.D.Pa.1986). F.Supp. tal, 633 hearing. cial physician to allowed question statute up to 120 involuntarily for patient detain a State Participation B. Officials physician determined if the hours Bros, test which Flagg disabled severely In addition patient pur- Pa.Stat. emergency treatment. nature of service on the in need focuses 1985). (Purdon function, 7302(b), (d) traditionally a state tit. to be ported Ann. the involvement found where may be found The court action state commit hospitals activity physicians joint with state engage persons action. implicated state Co., procedure ment Kress Adickes S.H. officials. involve of state lack “In contrast U.S. decision private individual’s in a ment “Conspiracy” with L.Ed.2d dis to resolve state law utilize purely may transform private actor delegation au Pennsylvania’s pute, ... through action into activity state defendants, if estab hospital thority to the using state officials the participation state in implicates lished, potentially possess virtue authority they held that have Courts decisions. their state. select individual gives a arrest example of citizen’s majority’s traditionally exer that are powers group challenge as subject to become may even by the possessed and not by the state cised when two Section action under exercising these citizenry, a general (1) detaining present: are factors authority of with is ‘clothed powers accordance acts suspect, the citizen law,’ therefore ... citizen and the plan between preexisting at 1237 Davenport actor.” a state deemed content must plan’s (2) that police; ma omitted). In contrast (citations functions exercise the citizen’s involve court case, district the in this jority the state. Klimzak exclusively reserved citizenry the not find did Davenport (N.D. F.Supp. Chicago, 539 City authority to commit same the possesses rou police Accordingly, where Ill.1982). does the as individual involuntarily an shoplifters based suspected tinely arrested state. without statement shopkeeper’s on a solely however, argue not, does Spencer involvement the investigation, independent by actor a state person becomes transform sufficient police was the the rea- setting forth petition completing pur a state actor into merchant the inis need believing an individual sons for Brook Smith 1983. of Section poses part of the as involuntary treatment Cir.1975). Inc., Bros., 519 F.2d shire Neither documents. requisite by complaint, as indicated pro se In his a citizen’s performing person spe- does Spencer opinion, majority completing the nor arrest police with “conspiracy” allege a cifically on behalf acting for commitment petition involuntary com- emergency his officers contrast, In state. of the Indeed, Hospital. Elizabeth at St. mitment trig- certificate which completes who pro se if a surprising it would be proce- involuntary commitment gers the suffi- illness had history of mental awith to that similar a determination makes dure law to knowledge of working cient find reason- must who officer police aof compose which legal phrases plead the has been an offense to believe grounds able 1983 action. a Section elements suspect keep a in order committed penalize Spencer Spencer should not for his Court was detained at St. Elizabeth Hos- complaints and inartfully pleaded subse- pital is participation sufficient to constitute Nonetheless, quent majority motions. state action. disposes summarily of this claim due to Spencer’s inability police to name officers II. TREATMENT or mention the as defendants involvement Spencer alleges that the mistreatment he sufficient frequency. received from during defendants his emer obligation Given the Court’s to construe gency commitment depriva amounted to a Spencer’s complaint liberally and dismiss tion of his pro interest without due complaint prove if he no only can set of earlier, cess of Supreme law. As noted relief, facts entitle him to which would recognized rights Court has alleged Spencer sufficiently the in- patients retarded involuntarily committed Depart- volvement of the Danville Police Romeo, in Youngberg v. ment to sustain defendants’ motion to dis- S.Ct. 2452. In Youngberg, mentally re miss. respondent tarded involuntarily was com Spencer initially implicates the involve- Pennsylvania mitted to a state institution. complaint ment of the Danville Police in his As a result of the mistreatment he re alleged by in which he the “false arrest ceived, his mother filed an action on his Department.” Danville Police his mo- naming behalf under Section 1983 the insti injunction, Spencer again alleg- tion for an tution as defendant. The Court determined seeking es an “arrest while admission.” respondent was entitled to “consti Spencer also refers to an arrest in his more tutionally protected interests conditions complete definite statement ordered of reasonable care safety, reasonably Finally, the district court. the medical conditions, nonrestrictive confinement Spencer’s records attached to more definite training may required by those completed statement which were Dr. interests.” 457 U.S. at 102 S.Ct. at Lee and other members St. Elizabeth concurrence, In his Justice Black- brought staff indicate that mun notes a distinction between “care” and hospital by police. “treatment,” leaving open question notes, majority correctly As the the mere whether treatment alone raises the same statutory

invocation of remedies does not process due concerns. Youngberg at 318 of itself activity transform into 23, 102 and n. S.Ct. at (Black 2459 and n. 23 See, e.g., state action. Earnest v. Lowen mun, J., concurring). tritt, (5th Cir.1982)(no 690 F.2d 1198 Spencer raises similar claims of mistreat- invoking action was found individual during ment period of his mortgage foreclosure law without state of commitment at Hospital. St. Elizabeth involved). being However, Spencer’s ficial However, Romeo, unlike Spencer was allegations police of the involvement of the treated at a facility. Illinois does in his commitment are no different than distinguish not types between the two of those in Lugar where the sheriff assisted recognizing responsibility facilities in its attaching property. Sim mentally by care for regulat- disabled ilarly, Big Foods, in Del’s Saver Inc. v. ing public private hospitals. both and The Carpenter Cook, Inc., (7th 795 F.2d 1344 guarantees Mental Health Code that: Cir.1986), presence the mere of a sheriff recipient A provided of services shall be private parties parte while executed an ex adequate and humane order of attachment care and ser- was sufficient environment, private parties vices the least “deputy transform the into restrictive pursuant pro plan, sheriffs to an Big tem.” Del’s Saver at individual services repossess periodical- 1346. The fact that the order to which shall be formulated and by ly collateral was executed par participation reviewed with the of the calling recipient and, ties without on the sheriff did not to the extent feasible distinguish Lugar. appropriate, the case from Like recipient’s where such near- wise, the presence mere of the guardian. while est of kin or incapaci- resulting suffering in his (Smith- legedly 2-102(a) 9IV2, ch. § Ill.Rev.Stat. alkathesia, forcibly adminis- tating place care takes 1988). special This Hurd involuntary commitment during his facility,” tered “mental health supervised aat involuntary Hospital. His Elizabeth at St. which: subsequent treatment and commitment hospital, in- any licensed means by pursuant Dr. Lee to the procured thereof, were stitution, facility or section him delegated to authority thereof, oper- facility, or section any and code. The treat- the mental health subdivi- political or a State by the ated Eliza- Spencer by Dr. Lee and St. ment of persons of the treatment for sion thereof state action under Hospital constitutes beth all includes mentally ill and who are “nexus” “public function” and clinics, institutions, both evaluation hospitals, tests. centers facilities, and mental health per- such for provide treatment which Williams, 691 Milonas v. In the case of sons. denied, Cir.1982), certiorari F.2d 931 (Smith-Hurd 9IV2, 1-114 Ill.Rev.Stat. ch. § L.Ed.2d 460 U.S. added). The extent 1988) (emphasis treatment the court concluded illustrated may be regulation state’s behav- of children with by private school statutory governing rules through the conduct under problems constituted ioral ill in both mentally care and treatment Milonas, many state law. color of See, e.g., private institutions. involuntarily as- been the students had re 9D/2, (right to 2-107 ch. Ill.Rev.Stat. § agencies to courts or signed by the state ¥2, medication); ch. Ill.Rev.Stat. fuse treatment private school for defendant restraints); ch. Ill.Rev.Stat. (use of 2-108 § school funded and education. seclusion); Ill.Rev. (use of 9IV2, 2-109 § governments and state part by the federal (use electro-con- 9IV2, 2-110 ch. Stat. § regulation. significant state subject to Ill.Rev psychosurgery); therapy vulsion was a that “there concluded The Court (determination of 9IV2, 2-111 ch. .Stat. the states nexus between sufficiently close emergency exists or dental medical conduct sending boys to the school required). is not consent patient’s so support a so as to school authorities regulations enacted the above Illinois has at 1983.” Milonas under Section claim facili- care mental health to cover distinguished Rendell- The court 940. delegated By accepting state's ties. Kohn, Baker for to care responsibility custodial majority, as by the here relied on St. Elizabeth Spencer, persons ill defendant actions of the holding that the to absolve not be allowed Hospital must decisions, as making personnel school claiming responsibilities itself of these students, can- its opposed treatment not liable entity it is that as a at Milonas state. attributed not be caused deprivation any constitutional that a court reasoned The Milonas patients. dealing with policies by a state-funded decision personnel constitute state-regulated school summarily dispenses with majority sufficiently is not it action because re- he treatment

Spencer’s claim state-regulated sub- interrelated with emergency his during ceived maladjusted stu- ject matter —education con- Hospital Elizabeth at St. However, of students treatment his dents. purposes action stitutes state function related sufficiently claim, reasoning that Section treat- the school’s school to attribute an generally not ill is treatment of Similar- the state. of the students ment even when function state exclusive involuntary commitment ly, the While such care. to fund chooses state regulation significant state and correct, by the Spencer’s is indeed proposition sufficient- Hospital form a Elizabeth of St. the treat- distinguishable from treatment constitute state to nexus with ly close Spenc- persons. ill to other provided ment action. al- state injections, prolixin er’s treatments Phelps Hospital, my opinion, Memorial In judgment v. should be Ruffler (S.D.N.Y.1978), F.Supp. the court reversed and the cause remanded for fur- mentally ill proceedings. held that the treatment ther hospital delegated is a function, regula- relying on the extensive providers

tion of health care mental statutory assumption by explicit responsibility mentally for the in- Quoting

competent. Supreme Court Donaldson, U.S. O’Connor

563, 582-583, 2486, 2496-2498, emphasized America, court the historical tra- UNITED STATES of Ruffler dition Plaintiff-Appellee, of state involvement with involun- tary commitment: civil There can be little doubt that Terry Wayne TURNER, police power exercise of its a State Defendant-Appellant. solely protect confine individuals socie-

ty Additionally, the ... States are vest- No. 87-3070. patriae parens pow- ed with the historic United States Appeals, Court of er, duty including protect “persons Seventh Circuit. legal to act for them- disabilities example The classic selves.” ... of this Argued April 1988. role is when a State undertakes to act as “ general guardian infants, ‘the Decided Jan. all ” idiots, (Burger, J., and lunatics.’ Ch. (citations omitted). concurring) at 1070.

Ruffler

In Fialkowski v. Greenwich Home for

Children, Inc., F.Supp. (E.D.Pa.

1987), the court found the treatment

private hospital mentally pa of a retarded

tient spite to constitute state action in patient sought

the fact that the admission

voluntarily. a state takes on the “[W]hen

responsibility to care for its retarded citi them, by institutionalizing

zens it assumes duty, imposed by affirmative the due

process clause of the fourteenth amend

ment, for the individuals’ care and well-be

ing. duty provide This includes the rea surroundings

sonable care and safe

conditions. Where chooses to del

egate responsibilities, these and an institu private entity

tion or other chooses to as them,

sume neither pri the state nor the entity may entity’s

vate assert that the acts

and omissions do not occur under color of (citations

state law.” Fialkowski at 105

omitted). Similarly, Spencer’s treatment Hospital St. performing Elizabeth

state’s caring function in for the

ill sufficiently implicates state action.

Case Details

Case Name: William Allen Spencer v. Bumyong Lee, M.D., and St. Elizabeth Hospital

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 3, 1989

Citation: 864 F.2d 1376

Docket Number: 87-1203

Court Abbreviation: 7th Cir.