Harper v. Cserr, No. 76-1276

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before COFFIN, Chief Judge, McENTEE and CAMPBELL; LEVIN H. CAMPBELL
• Citation: 544 F.2d 1121
• Parties: Thomas HARPER, etc., Plaintiff, Appellant, v. Robert CSERR, M.D., etc., Defendant, Appellee.
• Docket Number: No. 76-1276
• Decision Date: 19 November 1976

Page 1121

544 F.2d 1121 Thomas HARPER, etc., Plaintiff, Appellant,
v.
Robert CSERR, M.D., etc., Defendant, Appellee. No. 76-1276. United States Court of Appeals,
First Circuit. Submitted Aug. 30, 1976.
Decided Nov. 19, 1976.

Page 1122

Leslie E. Bloomenthal, Sisson & Sarrouf, and Howard J. Alperin, Boston, Mass., on brief for appellant.

Francis X. Bellotti, Atty. Gen., and W. Channing Beucler, Asst. Atty. Gen., Boston, Mass., on brief for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This appeal is from the district court's dismissal, for failure to state a claim upon which relief may be granted, of a damages action brought under 42 U.S.C. §§ 1983 and 1988, with pendent state claims for wrongful death. It is alleged in the complaint that plaintiff's wife, Marilyn J. Harper, a voluntary patient at Medfield State Hospital in Massachusetts, hung herself after a long history of prior suicide attempts, including two such attempts at Medfield. The defendant Superintendent's purported failure to supervise her movements or take any steps to prevent her taking her own life was claimed to have violated the due process clause of the fourteenth amendment and the prohibition against the infliction of cruel and unusual punishment in the eighth amendment. In dismissing, the court said that the "Civil Rights Act does not create a general federal law of torts."

In reviewing the disposition of a motion to dismiss, we consider only those facts and allegations set forth in the complaint and must view them in a light most favorable to the plaintiff. A complaint should be dismissed only if plaintiff is not entitled to relief under any set of facts he could prove. Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); 2A Moore's Federal Practice § 12.08 at 2271, 2274. For plaintiff to have established a claim cognizable under § 1983, he must show that the defendant, Dr. Robert Cserr (the superintendent of Medfield), under color of state law, deprived Marilyn Harper of a right secured by the Constitution of the United States; and to recover damages he must also establish the requisite knowledge or malice on defendant's part. We conclude, tentatively, that while, as the court below held, § 1983 does not create a general federal law of torts, the complaint could conceivably encompass a federal cause of action for damages should plaintiff be able to establish a malicious or wanton dereliction of duty on the part of the state defendant as opposed to a mere negligent failure to afford proper treatment. It should not, therefore, have been dismissed under Rule 12(b).

I

The question of whether or not plaintiff has a federal cause of action at all is not free from doubt, and the following discussion, in which we conclude that a voluntary inmate in a state institution, or her representative, may in some circumstances have a cause of action under § 1983 for malicious or wanton maltreatment or neglect, cannot be regarded as more than tentative in the present state of the law. However, we think the likelihood sufficient to entitle plaintiff to develop the facts, if he so desires, beyond the pleading stage.

First, we reject the argument that plaintiff can claim for the deceased a "right to treatment" under such cases as Wyatt v. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974); see Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451, 453 (1966); Note, Right to Treatment, 86 Harv.L.Rev. 1282 (1973). Marilyn Harper was a voluntary patient, and it is not suggested that if she or her legal or natural guardian wished her

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to leave Medfield State Hospital, the state would have detained her assuming usual procedures were followed. Whether the state might have instituted proceedings to alter her status from voluntary to involuntary is purely speculative. The rationale of the above "right to treatment" cases is that treatment must be afforded in order to legitimate the inmate's continued detention which (given the nature and purpose of civil commitment proceedings) might otherwise amount to a deprivation of liberty without due process or the infliction of cruel and unusual punishment within the eighth amendment. Rouse v. Cameron, supra. Cf. O'Connor v. Donaldson, 422 U.S. 563, 573-76, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1974). Here, however, since the deceased was not involuntarily committed, such a quid pro quo analysis is not germane, and since she was free to leave at any time, there is no question of an "indefinite detention" which, minus treatment, becomes cruel and unusual punishment. These considerations are ably discussed by Judge Judd in New York State Association for Retarded Children, Inc. v. Rockefeller (Rockefeller), 357 F.Supp. 752, 758-62 (E.D.N.Y.1973). In any event, we find no support for plaintiff's complaint in the "right to treatment" line of cases predicated on the rationale described in Rouse v. Cameron, supra.

A different theory, however, which has been suggested though not fully developed in several cases, is more in point. In Spence v. Staras, 507 F.2d 554 (7th Cir. 1974), the court held that a cause of action under § 1983 was stated against agents and employees of a state hospital upon allegations that they failed to protect plaintiff's son, who was nonverbal, against a fatal beating administered by a fellow inmate. It was alleged that prior to the fatal beating, the son had been assaulted on twenty occasions known to defendants, who knew that he could not call for help and was a frequent target for such assaults. The court said it was "clear that the deceased had a right, under the Fourteenth Amendment, to be secure in his life and person while confined under state authority." Id. at 557. It cited two district court cases, in both of which reference is made to a right, "whether grounded on due process or the Eighth Amendment, or both, to a humane and safe living environment while confined under State authority." Welsch v. Likins, 373 F.Supp. 487, 502-3 (D.Minn.1974); Rockefeller, supra, 357 F.Supp. at 764-65. In Rockefeller, the patients were "voluntarily" confined in that the state asserted no right to retain them in its custody, although as the court pointed out they were incapable of voluntary waiver and were, in fact, locked in. Protection from the assaults of fellow inmates, the provision of...