Harvey v. Harvey

• Decision Date: 07 January 1992
• Docket Number: No. 90-9066,90-9066
• Citation: 949 F.2d 1127
• Parties: Betty Banks HARVEY, Plaintiff-Appellant, v. Joseph H. HARVEY, Jr., Dr. Mark F. Friedman, Dr. Conway Hunter, Charter-By-The-Sea, Inc. and William S. Perry, Defendants, Third-Party Plaintiffs, Appellees, William T. Harvey, Joseph H. Harvey, III; Barbara H. Wiseman and Patricia H. Robinson, Third-Party Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1127

949 F.2d 1127

Betty Banks HARVEY, Plaintiff-Appellant, v. Joseph H. HARVEY, Jr., Dr. Mark F. Friedman, Dr. Conway

Hunter, Charter-By-The-Sea, Inc. and William S.

Perry, Defendants, Third-Party

Plaintiffs, Appellees,

William T. Harvey, Joseph H. Harvey, III; Barbara H.

Wiseman and Patricia H. Robinson, Third-Party Defendants.

No. 90-9066.

United States Court of Appeals,

Eleventh Circuit.

Jan. 7, 1992.

Nancy Grey R. Grigg and Jesse W. Walters, Perry, Walters & Lippitt, Albany, Ga., for plaintiff-appellant.

Wallace E. Harrell, Gilbert, Harrell, Skelton, Gilbert, Sumerford & Martin, Brunswick, Ga., William E. Hoffmann, Jr., Frank C. Jones, King & Spalding, Atlanta, Ga., John T. McGoldrick, Jr., Martin, Snow, Grant & Napier, Macon, Ga., Joseph A. Mulherin, III, M. Brice Ladson, Bouhan, Williams & Levy, Savannah, Ga., and Philip R. Taylor, Fendig, McLemore, Taylor & Whitworth, Brunswick, Ga., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before EDMONDSON and DUBINA, Circuit Judges, and ESCHBACH ^*, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Plaintiff-appellant Betty Banks Harvey appeals the district court's decision dismissing her 42 U.S.C. § 1983 suit against her husband, Joseph H. Harvey, Jr., Dr. Conway Hunter, Jr., Dr. Mark F. Friedman, Charter-by-the-Sea, Inc., and William S. Perry, based on their respective roles in her involuntary commitment for mental health treatment. We AFFIRM the district court's judgment.

BACKGROUND

In late October 1987, Mr. Harvey told Dr. Hunter that Harvey believed Mrs. Harvey was mentally ill. The doctor conducted an examination of Mrs. Harvey and, in accordance with Georgia law, O.C.G.A. § 37-3-41, signed a certificate stating that she appeared to be mentally ill and to present a substantial risk of imminent harm to herself or others. Dr. Hunter then directed the police ¹ to pick up Mrs. Harvey and take her to Charter-by-the-Sea ("Charter"), a private hospital which had been designated as an emergency receiving and evaluating facility for involuntarily committed mental health patients. ² Upon her arrival, she was examined by Dr. Friedman, who executed a certificate indicating Mrs. Harvey required involuntary treatment. See O.C.G.A. § 37-3-43.

Within a week, Mr. Harvey and his lawyer, Mr. Perry, obtained an order from Berrien County Probate Judge John P. Webb appointing Mr. Harvey as his wife's emergency guardian. Mrs. Harvey was then transferred to Duke University Hospital in North Carolina.

In April 1989, appellant filed suit against Mr. Harvey, Dr. Hunter, Dr. Friedman, Charter and Mr. Perry, claiming that she had been involuntarily incarcerated, given medications against her will, and never informed of her procedural rights under the Georgia Mental Health Act, O.C.G.A. § 37-3-1, et seq. Mrs. Harvey alleged that these violations arose as the result of a conspiracy among the doctors, ³ Mr. Harvey and Charter to deprive her of her rights. In a second count, she charged that Mr. Harvey and his lawyer, Mr. Perry, falsely informed Judge Webb of her condition so that the resulting guardianship order failed to comport with Georgia law. Each defendant filed a motion to dismiss, ⁴ and the motions were granted by the district court Harvey v. Harvey, 749 F.Supp. 1118 (M.D.Ga.1990).

DISCUSSION

CHARTER

The initial barrier to appellant's relief from Charter is that the actions she questions are actually the actions of Charter's employees, not the actions of the hospital itself. The complaint alleges Mrs. Harvey was placed on a locked ward and given medication against her will. The hospital organization did not take these steps, hospital employees did.

A defendant cannot be held liable under section 1983 on a respondeat superior or vicarious liability basis. Monell v. Department of Social Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell involved a municipal corporation, but every circuit court to consider the issue has extended the holding to private corporations as well. See Lux v. Hansen, 886 F.2d 1064, 1067 (8th Cir.1989) (private mental health center); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir.1982) (department store); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (security guard employer); see also Jones Even if Mrs. Harvey could attribute liability to Charter directly and not vicariously, she is unable to state a claim for section 1983 relief. A successful section 1983 action requires a showing that the conduct complained of (1) was committed by a person acting under color of state law and (2) deprived the complainant of rights, privileges, or immunities secured by the Constitution or laws of the United States. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156-57, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). Taking the factual allegations of Mrs. Harvey's complaint as true, which we must do when reviewing motions to dismiss, Walker Process Equip. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-75, 86 S.Ct. 347, 348-49, 15 L.Ed.2d 247 (1965), we see a claim for deprivation of a constitutional right: involuntary commitment implicates the liberty interest protected by the due process clause of the Fourteenth Amendment. ⁵ Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979). So, the critical question before this court is whether Charter acted under color of state law or, in the context of the Fourteenth Amendment, whether Charter's alleged actions are "fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982). ⁶

                v. Preuit & Mauldin, 851 F.2d 1321, 1325 (11th Cir.1988) (en banc), vacated on other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170 (1989) (private defendants in 42 U.S.C. § 1983 actions should have at minimum same defenses available to public defendants).   We believe the same holds true for Charter:  the hospital cannot be faulted for the conduct of its employees
                

For a defendant's actions to be fairly attributable to the state, "[f]irst, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.... Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor." Id., 102 S.Ct. at 2753-54. ⁷ Mrs. Harvey's complaint survives the first part of the test: her commitment at Charter was made possible by Georgia statute. Her complaint ultimately fails, however, because Charter is no state actor.

Only in rare circumstances can a private party be viewed as a "state actor" for section 1983 purposes. The Eleventh Circuit recognizes three tests for establishing state action by what is otherwise a private person or entity: the public function test, the state compulsion test, and the nexus/joint action test. NBC v. Communication Workers of America, AFL-CIO, 860 F.2d 1022, 1026 (11th Cir.1988). An analysis under each test reveals no state action in this case.

We agree with Watkins v. Roche, 529 F.Supp. 327, 331 (S.D.Ga.1981), that the Georgia statutes neither compel nor encourage involuntary commitment, precluding Charter's becoming a state actor by Nor does the statute create a sufficiently close nexus between the state and Charter to mandate Charter's classification as a state actor. Watkins, 529 F.Supp. at 329. The nexus/joint action test involves situations where the government has "so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise." NBC, 860 F.2d at 1026 (citation omitted). Both the Supreme Court and our predecessor circuit ⁹ have concluded that such a nexus is lacking in circumstances much more compelling than the circumstances of this case. See Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (private nursing home not state actor despite extensive regulation and 90% fees from state); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (private school that treats students with drug/alcohol problems not state actor despite operating under contract with the state and receiving 90% state funding); Greco v. Orange Memorial Hosp. Corp., 513 F.2d 873 (5th Cir.1975) (no state action where private hospital operated on land leased from county). So, we are unable to convert Charter into a state actor under the nexus or joint action test.

                state compulsion. 8  Like the plaintiff in the similar case of Spencer v. Lee, Mrs. Harvey cannot seriously allege that "the relevant provisions of the Mental Health Code were enacted because the state wants to encourage commitments, any more than state repossession laws are passed because states want to encourage creditors to repossess their debtors' goods."  Spencer v. Lee, 864 F.2d 1376, 1379 (7th Cir.1989) (en banc) (citation omitted), cert. denied, --- U.S. ----, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990)
                

Appellant finally argues that the commitment process is a traditional public function, implying that state law guiding private participation in this function effectively transforms the private participant into a state actor. But this argument does not take the public function analysis far enough. That the private party has powers co-extensive with the state is irrelevant; ¹⁰ the public function test shows state action only when private actors are given powers (or perform functions) that are "traditionally the exclusive prerogative of the State." Id. (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 95 S.Ct. 449, 454-55, 42 L.Ed.2d 477 (1974)) (emphasis added).

Few activities are "exclusively reserved to the states." Flagg Brothers, 436 U.S. at 158-59, 98 S.Ct. at 1734; see also White v. Scrivner Corp., 594 F.2d 140, 142 (5th Cir.1979) (public function "embraces very few activities"; even...