Harvey v. Harvey

• Decision Date: 17 October 1990
• Docket Number: Civ. No. 89-42-VAL(DF).
• Citation: 749 F. Supp. 1118
• Parties: Betty Banks HARVEY, Plaintiff, v. Joseph H. HARVEY, Jr., et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

749 F. Supp. 1118

Betty Banks HARVEY, Plaintiff, v. Joseph H. HARVEY, Jr., et al., Defendants.

Civ. No. 89-42-VAL(DF).

United States District Court, M.D. Georgia, Valdosta Division.

October 17, 1990.

COPYRIGHT MATERIAL OMITTED

Jesse W. Walters, Albany, Ga., for plaintiff.

Frank C. Jones, William E. Hoffman, Jr., Gregory S. Smith, Atlanta, Ga., Phillip R. Taylor, Brunswick, Ga., O. Wayne Ellerbee, Valdosta, Ga., John T. McGoldrick, Jr., Macon, Ga., Wallace E. Harrell, Timothy Harden, III, Gilbert, Whittle, Harrell, Brunswick, Ga., Joseph A. Mulherin, III, Savannah, Ga., J. Converse Bright, Black, Bright & Edwards, Valdosta, Ga., for defendants.

FITZPATRICK, District Judge.

This case is now before the court on motions to dismiss by all defendants and a third-party claim by one of them. While reviewing the motions to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) the court must take the allegations of the complaint as true, 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), and liberally construe the complaint in favor of the plaintiff. See, Fed.R.Civ.P. 8(f); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). After a careful consideration of the law and facts in this case, the court has concluded that the motions to dismiss should be GRANTED.

I. BACKGROUND

The sequence of events giving rise to this suit began when the plaintiff's husband, Joseph H. Harvey, Jr., informed Dr. Conway Hunter, Jr., that he believed his wife was mentally ill. Dr. Hunter then signed a certificate, pursuant to O.C.G.A. § 37-3-41, stating that the plaintiff appeared to be mentally ill and to present a substantial risk of imminent harm to herself or others as required by the statute. The plaintiff alleges that Mr. Harvey and Dr. Hunter were involved in a conspiracy to involuntarily commit her to a mental institution. She alleges that the certificate signed by Dr. Hunter was untrue and that he conducted an inadequate examination of her before signing it.

On October 22, 1987, Dr. Hunter had the police pick up the plaintiff and transport her to Charter-by-the-Sea Hospital (Charter), a private institution, on St. Simons Island, Georgia, which had been designated as an emergency receiving and evaluating facility under O.C.G.A. § 37-3-40. When she arrived, she was examined by Dr. Mark F. Friedman who executed a certificate stating that the plaintiff required involuntary treatment as required by O.C.G.A. § 37-3-43. The plaintiff alleges that the certificate was based on a superficial and inadequate examination.

The plaintiff also alleges that she was at no time informed of her rights under O.C. G.A. § 37-3-1, et seq. She claims that she was involuntarily incarcerated and that Dr. Friedman administered medications to her against her will. She alleges that both Dr. Hunter and Dr. Friedman failed to perform proper examinations and acted in concert with Mr. Harvey and Charter-by-the-Sea to deprive her of her constitutional rights.

In Count Two of her complaint, the plaintiff alleges that Mr. Harvey and his attorney, William S. Perry, falsely informed Berrien County Probate Judge John P. Webb that the plaintiff was incapacitated in order to keep her involuntarily incarcerated. She claims that they submitted a false statement of her condition to Judge Webb, who signed an order on October 29, 1987, appointing Mr. Harvey as his wife's emergency guardian without complying with the requirements given by O.C.G.A. §§ 29-5-6 and 29-5-8 for such an order. The plaintiff claims that her husband then used this order to have her involuntarily transported from St. Simons Island by airplane to Duke University Hospital in Durham, North Carolina.

On April 25, 1989, the plaintiff filed this suit against Mr. Harvey, Dr. Hunter, Dr. Friedman, Charter and Mr. Perry alleging violations of her constitutional rights as guaranteed by 42 U.S.C. § 1983. Each of the defendants filed a motion to dismiss (Charter and Harvey jointly) and Dr. Friedman also filed a motion to transfer, which was denied by this court on April 2, 1990. Mr. Perry filed a third-party complaint on June 6, 1989, against William T. Harvey, Joseph H. Harvey, III, Barbara H. Wiseman and Patricia H. Robinson, claiming that he relied on their sworn statements in preparing the guardianship petition and that he is entitled to indemnification and/or contribution if he is found liable to the plaintiff. Joseph H. Harvey, III filed a motion to dismiss this complaint on June 19, 1989.

II. DISCUSSION

Plaintiff's claims against the defendants rest on alleged violations of her constitutional rights under the fourth, sixth and fourteenth amendments as guaranteed by 42 U.S.C. § 1983. This statute requires a showing that the plaintiff has been deprived of a right or privilege secured by the Constitution or laws of the United States and that such deprivation was achieved under color of state law. See, Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). Taken as true, the plaintiff's complaint would state a claim for the deprivation of her constitutional rights, so the remainder of the court's analysis will rest on the question of whether the defendants acted under color of state law.

The Georgia statutes in question are those allowing for the involuntary commitment of persons showing signs of mental disorders. See, O.C.G.A. §§ 37-3-40, -85. The laws the defendants acted under in the present case show a detailed commitment procedure. O.C.G.A. § 37-3-40 allows state and private hospitals to be designated as emergency receiving facilities. An involuntary admission to such a center requires either a physicians's certificate issued after an examination or a court order based on such a certificate or the affidavits of at least two persons attesting that they observed the irrational behavior of the person to be taken into custody within the preceding forty-eight hours. § 37-3-41. Once admitted, the patient must be examined within twenty-four hours and released unless she shows signs of mental illness or is under criminal charges. § 37-3-43. The facility must give the patient notice of her right to petition for a writ of habeas corpus and her right to legal counsel. § 37-3-44. Court-ordered evaluations are also permitted upon application by any person, but a hearing must be held and notice given to the patient, who has a right to counsel. §§ 37-3-61, -62.

The plaintiff is essentially claiming that by acting according to these statutes the otherwise private defendants were converted into state actors. Only in rare circumstances can private parties be converted into state actors for § 1983 purposes. The determination of whether there was sufficient state action so as to invoke the protections of federal civil rights statutes must be made on a case-by-case basis. Sims v. Jefferson Downs, Inc., 611 F.2d 609, 611 (5th Cir.1980). In NBC v. Communications Workers of America, AFL-CIO, 860 F.2d 1022 (11th Cir.1988), the court listed three tests employed by the Supreme Court in making this decision: (1) the public function test; (2) the state compulsion test; and (3) the nexus/joint action test.¹ The public function test covers only private actors performing functions traditionally within the exclusive prerogative of the state. The state compulsion test limits state action to cases where the government has coerced or at least significantly encouraged the action in question. Finally, the nexus/joint action test concerns situations where the government has insinuated itself into a position of interdependence with the private party so that they can be considered joint participants in the action. 860 F.2d at 1026-27. The court will now examine each of the defendants in the order of their involvement to determine whether any of them can be considered state actors.

A. Mr. Harvey

It is unquestioned that Mr. Harvey is a private citizen, neither employed nor directed by the state. The only connection between Harvey and the state is his initiation of and participation in the hospitalization and guardianship process as allowed by state law. The court does not believe that this is sufficient to render him a state actor.

The public function test requires that a private actor perform a function within the exclusive prerogative of the state. Involuntary commitments, as Judge Posner reasoned in Spencer v. Lee, 864 F.2d 1376 (7th Cir.1989) (en banc), cert. denied, ___ U.S. ___, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990), have long been performed by private actors and cannot be considered an exclusive function of the state even when rigorously regulated by the state. In some circumstances, a private party may be forced to take action to prevent a disturbed person from harming himself or others before the state becomes involved. A private commitment such as this does not become a state action merely because it is allowed by a state statute. To hold as such would be the equivalent of saying that a citizen's arrest, repossession of a chattel or ejection of a trespasser could be a state action even though these are really private activities merely authorized by state law. 864 F.2d at 1379-81. Also, the court notes that the Georgia statutes allow laypersons to initiate the involuntary commitment process, O.C.G.A. § 37-3-41, which argues against a claim that such acts are within the exclusive prerogative of the state. Although they must comply with the requirements of state statutes, private commitments remain private actions. The public function test has not been met, and Harvey cannot be considered a state actor under it.

Likewise, the state compulsion test cannot be satisfied. There is simply no evidence that the state compelled or significantly encouraged Harvey to begin or participate in the involuntary commitment of his wife. Nothing in the Georgia statutes would force a private actor to...