Davis v. Holly, 85-3769

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation835 F.2d 1175
Docket NumberNo. 85-3769,85-3769
PartiesLeona DAVIS, Plaintiff-Appellee, v. Frank HOLLY, et al., Defendants, Timothy B. Moritz, M.D., Barry I. Fireman, PH.D., Calvert A. Walker, George Gintoli, James J. Ungvarsky, Christopher Robey, Donzella Robinson, Robert J. Ivancic, Cherrie N. Miller, Magdi Rizk, Virginia Brauer, Beverly Ekberg, Sheila Dailey, Defendants-Appellants.
Decision Date30 December 1987

Page 1175

835 F.2d 1175
Leona DAVIS, Plaintiff-Appellee,
Frank HOLLY, et al., Defendants,
Timothy B. Moritz, M.D., Barry I. Fireman, PH.D., Calvert A.
Walker, George Gintoli, James J. Ungvarsky, Christopher
Robey, Donzella Robinson, Robert J. Ivancic, Cherrie N.
Miller, Magdi Rizk, Virginia Brauer, Beverly Ekberg, Sheila
Dailey, Defendants-Appellants.
No. 85-3769.
United States Court of Appeals,
Sixth Circuit.
Argued Oct. 6, 1986.
Decided Dec. 30, 1987.

Page 1176

David J. Kovach (argued), Asst. Atty. Gen., Cleveland, Ohio, for defendants-appellants.

Joseph J. Marcoguiseppe (argued), Lakewood, Ohio, for plaintiff-appellee.

Before ENGEL, JONES and NELSON, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

This is a civil rights action brought against certain administrators and supervisors of a state mental hospital by a patient who claims that the defendants' failure to perform their jobs in a proper manner led to her being raped by one of the hospital's employees. The plaintiff also complains that the defendants allowed her to inflict numerous injuries on herself. The defendants' alleged misconduct is claimed to have constituted a clear violation of the United States Constitution, to say nothing of the common law of Ohio. The trial court dismissed three of the five counts in the plaintiff's complaint, but declined to recognize a qualified-immunity defense as to the other two counts. The defendants perfected an interlocutory appeal. Believing that the defendants are wholly immune from suit for their alleged violations of the Federal Constitution, we shall reverse the judgment of the district court insofar as it failed to dismiss the complaint in its entirety.


The plaintiff, Ms. Leona Davis, was a patient at the Western Reserve Psychiatric Habilitation Center during much of 1978 and 1979. She filed suit under 42 U.S.C. Secs. 1981, 1983, 1985 and 1986 against numerous

Page 1177

individuals and governmental entities involved in the operation of the Center. In the first of the counts left standing by the district court Ms. Davis claims that staff members Frank Holly and James Taylor drove her and three other patients off in a Center-owned van and plied them with alcohol. Holly then allegedly took advantage of her intoxication and mental impairment by having sexual intercourse with her. This happened, according to the complaint, on May 24, 1979. On February 3, 1980, Ms. Davis gave birth to a daughter, Marlene Davis.

The second count, added by amendment after the filing of the original complaint, alleges that because of poor hospital management Ms. Davis was able to injure herself in a variety of ways. Thus she took a large quantity of Thorazine away from a nurse and drank it; she drank steel polish; she tried to commit suicide several times; she tried to destroy property, sometimes injuring herself in the process; she jumped out of a second-story window; she paid a fellow patient to beat her with an iron cord; and she ingested a large open safety pin on one or more occasions.

Named as defendants in the original complaint were staff members Holly and Taylor; the Center and its superintendent; Summit County, Ohio, and its Board of County Commissioners; the Ohio Department of Mental Retardation and Developmental Disabilities and its director; the State of Ohio; and unknown "John Doe" defendants "who were responsible for the protection of plaintiff and for the hiring, conduct, and/or retention of Frank Holly and James Taylor or who could have prevented the wrongful acts complained of herein." (Although Holly was named as a defendant, his whereabouts are unknown and he has never been served with process.) In her first amended complaint Ms. Davis added the Summit County Board of Health and Retardation and its individual members as additional defendants.

The various county and state defendants moved for dismissal of the complaint, and Ms. Davis filed briefs in opposition to these motions. Thereafter a second amended complaint was filed adding Ms. Davis' daughter Marlene as a plaintiff and joining as additional defendants fifteen current or former supervisors and administrators of the Center and former members of the Center's patient abuse committee.

In the fullness of time the district court dismissed the county defendants from the case, observing that they had nothing to do with the operation of the Center, a state facility. The State of Ohio, the Ohio Department of Mental Retardation and Developmental Disabilities, and the Center itself were dismissed on sovereign immunity grounds. Because the other "state" defendants were not protected by sovereign immunity insofar as they had been sued in their individual capacities, the court carefully evaluated each claim against those defendants and determined that all claims filed pursuant to 42 U.S.C. Secs. 1985 and 1986 should be dismissed. The claims brought pursuant to Secs. 1981 and 1983 were allowed to stand only to the extent that violations of the Fourteenth Amendment were alleged; allegations that the individual state defendants had violated Ms. Davis' rights under the Fifth, Eighth, and Thirteenth Amendments were dismissed.

The appellants on this appeal (all remaining defendants except Holly and Taylor) moved for summary judgment. The district court granted the motion as to all claims of the daughter, Marlene Davis, but declined to enter summary judgment as to the due process claims Leona Davis asserted under Sec. 1983.

Ms. Davis subsequently obtained leave to file a third amended complaint setting forth four counts alleging violations of her due process rights. The first such count charged the defendants with "gross negligence and wanton and reckless disregard of the rights" of Ms. Davis in connection with the rape allegedly committed by Holly on May 24, 1979. The second count related to the acts of self-injury, which were characterized as resulting from violations of Ms. Davis' "right to proper care and treatment, safe conditions of confinement, and personal security...." The third count alleged

Page 1178

that another mental patient on three occasions entered Ms. Davis' room and engaged in sexual relations with her, as a result of which she became pregnant and ultimately had a miscarriage; it was alleged that the defendants were "directly responsible for these incidents because they failed to prevent, report, and investigate these separate occurrences, all to plaintiff's harm." The fourth count alleged that certain of the defendants "violated their duties and institutional policy" by improperly releasing Ms. Davis from the Center. A fifth count asserted that the facts alleged in counts one through four also constituted violations of Ohio common law.

After the filing of the third amended complaint the remaining defendants (the Center officials named in the second amended complaint plus the individual state officials not dismissed earlier) moved for summary judgment on qualified-immunity grounds. In a memorandum opinion and order filed September 12, 1985, the district court dismissed counts three, four, and five. (The court declined, as a discretionary matter, to exercise pendent jurisdiction over the state common law claims asserted in count five because those claims had been pleaded, very late in the day, in language "so vague that the Court has not been put on notice of what violation of State law plaintiff is complaining [of]....") The court refused to dismiss counts one and two, however, holding that the qualified-immunity defense was inapplicable as to them because the facts there alleged, if true, would have constituted violations of "a clearly established constitutional right of which a reasonable person would have known." The defendants have perfected an interlocutory appeal from the denial of their motion for summary judgment on the first two counts.


Because this appeal was taken from the denial of a motion raising the defense of qualified immunity, we have jurisdiction under the rule of Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), as interpreted in Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987).

As a preliminary matter it behooves us to determine whether these defendants are being sued for "discretionary" acts as opposed to "ministerial" ones. Only officials "performing discretionary, as opposed to ministerial, functions are entitled to qualified immunity from suit." People of Three Mile Island v. Nuclear Regulatory Commissioners, 747 F.2d 139, 143 (3d Cir.1984). The Michigan Supreme Court recently explained the distinction as follows:

" 'Discretionary-decisional' acts are those which involve significant decision-making that entails personal deliberation, decision and judgment. 'Ministerial-operational' acts involve the execution or implementation of a decision and entail only minor decision-making."

Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641, 647 (1984). See also McIntosh v. Weinberger, 810 F.2d 1411, 1432 (8th Cir.1987), and Manion v. Michigan Board of Medicine, 765 F.2d 590, 594 n. 1 (6th Cir.1985).

The trial court has given us this description of the roles played by the various defendants in the case at bar:

"1. Mr. James Ungvarsky was a supervisor at the hospital during early 1979. The allegation is that he set up and maintained lax procedures for supervising the clients in the hospital.

2. Dr. Timothy Moritz ran the state mental hospital system during the relevant period of time. The claim against Dr. Moritz is rather attenuated and relates to a general laxity at the facility which plaintiffs contend he condoned.

3. Sheila Dailey was on the patient abuse committee at the facility but was not present when the Davis case was heard. The claim against Ms. Dailey focuses upon a lax atmosphere created by the committee's conduct.

4. Calvert Walker was superintendent of the facility beginning in June...

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