Byrne v. Kysar
| Decision Date | 22 June 1965 |
| Docket Number | No. 14911.,14911. |
| Parties | Paul V. BYRNE, Jr., Plaintiff-Appellant, v. John KYSAR, Alfred L. Fein, Stanley J. Imbiorski, Francis E. Schlax and Charles I. Barish, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joseph Keig, Sr., Chicago, Ill., for plaintiff-appellant.
Daniel P. Ward, State's Atty., Donald J. Veverka, Asst. State's Atty., William T. Kirby, Thomas D. Allen, Chicago, Ill., for defendants-appellees, Edward J. Hiadis, Chief of Civil Division, of counsel.
Before CASTLE and KILEY, Circuit Judges, and GRANT, District Judge.
Plaintiff-Appellant, Paul V. Byrne, Jr., prosecutes this appeal from an order of the District Court denying his motion for leave to file an amended complaint. Plaintiff's original complaint sought recovery of damages against the several defendants allegedly resulting from plaintiff's confinement in a mental hospital. The claim was predicated on 42 U.S.C.A. § 1983, a provision of the federal Civil Rights Act.1 The original complaint and exhibits attached thereto disclose that plaintiff's confinement as a mentally ill person was made under the provisions of the Illinois Mental Health Code (). The complaint neither alleged that at the pertinent times involved plaintiff was not a mentally ill person nor in what respect the conduct of the individual defendant was improper but referred to the commitment proceeding in the State court as "mock proceedings" and stated that each defendant acted with purpose and intent to deprive plaintiff of his constitutional civil rights. The court granted the defendants' motions to dismiss grounded on the failure of the complaint to state a claim on which relief can be granted, and dismissed the action. Plaintiff did not appeal from the judgment order dismissing the action but some three weeks later presented a motion for leave to amend the complaint as shown in a tendered amendment. Insofar as here pertinent the proposed amendment contained an allegation that plaintiff "never had suffered from any mental illness and has never been in need of mental care or treatment", and sought to add an additional count predicating recovery on 42 U.S.C.A. § 1985. The District Court denied plaintiff's motion for leave to amend and this appeal followed.
It is evident from the allegations made by the plaintiff and the exhibits attached to the complaint that the defendant Dr. John Kysar is the physician whose certification furnished the medical witness requirement (Ill.Rev.Stat. 1961, ch. 91½, par. 5-1) for the execution of a petition by "any reputable citizen" to initiate the judicial inquiry into plaintiff's mental condition. The petition was signed by defendant Charles I. Barish, an assistant state's attorney. Drs. Alfred J. Fein and Stanley J. Imbiorski are alleged to have been the members of the medical commission appointed by the county court to examine the plaintiff and who in their report to the court recommended that he be committed to a mental hospital. The defendant Francis E. Schlax is alleged to be an officer of the courts of Illinois by virtue of his license to practice law. He appeared in the proceeding as representing the plaintiff's wife.
In examining the plaintiff, diagnosing his condition, and certifying thereto, Dr. Kysar acted in his capacity of private physician, although in the employ of an instrumentality of the City of Chicago, and not under color of law within the meaning of § 1983. Duzynski v. Nosal, 7 Cir., 324 F.2d 924, 929-930. Drs. Fein and Imbiorski as members of the court-appointed statutory commission share the court's judicial immunity, and in the performance of their quasi-judicial function are not subject to suit under the sections of the statute here involved. Duzynski v. Nosal, supra, p. 928-929; Bartlett v. Weimer, 7 Cir., 268 F.2d 860. Defendant Schlax's participation in the proceeding as a private lawyer did not make him a state functionary acting under color of law within the meaning of the Federal Civil Rights Act. Skolnick v. Martin, 7 Cir., 317 F.2d 855, 857. And defendant Barish's execution of the petition was not an act done under "color of law" within the meaning of § 1983; and the fact that he added his official title to his signature is of no import. Although he was an assistant state's attorney, he acted not in his official position but as a...
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