Herer v. Burns, Civ. A. No. 82-0080-H.

• Citation: 577 F. Supp. 762
• Decision Date: 03 January 1984
• Docket Number: Civ. A. No. 82-0080-H.
• Court: U.S. District Court — Western District of Virginia
• Parties: Norman HERER, etc., et al., Plaintiffs, v. William J. BURNS, et al., Defendants.

577 F. Supp. 762

Norman HERER, etc., et al., Plaintiffs,
v.
William J. BURNS, et al., Defendants.

Civ. A. No. 82-0080-H.

United States District Court, W.D. Virginia, Harrisonburg Division.

January 3, 1984.

Steven D. Rosenfield, Charlottesville, Va., Bruce J. Ennis, Dover, Del., for plaintiffs.

Ronald D. Hodges, Harrisonburg, Patrick O'Hare, Asst. Atty. Gen., Richmond, Va., for defendants.

MEMORANDUM OPINION

MICHAEL, District Judge.

This is a 42 U.S.C. § 1983 action for compensatory and punitive damages brought by relatives of Jeffrey Herer, an involuntarily committed patient at Western State Hospital ("Hospital") in Staunton, Virginia. Plaintiffs assert a pendent wrongful death claim as well. Jeffrey Herer died on July 27, 1981, after suffering a seizure while at the Hospital. Plaintiffs allege in their complaint that Jeffrey Herer's death was the direct result of willful, deliberate acts and omissions of Western State Hospital and three individual defendants.

The Hospital has moved to dismiss the case against it and has also moved for summary judgment. The individual defendants, having already had the case dismissed against them in their official capacities, but not in their individual capacities, have moved to dismiss for failure to comply with the Virginia Medical Malpractice Act procedures, Va.Code §§ 8.01-581.1 to -581.9 and on several other grounds. Several of these motions, having been briefed and argued, are now ripe for disposition.

I. Eleventh Amendment Immunity

In support of its motion to dismiss and for summary judgment, the Hospital

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argues that it is immune from suit under § 1983. The eleventh amendment¹ to the United States Constitution bars suits by private parties who seek to impose a liability that must be paid out of the state treasury; thus an "arm" or "alter ego" of the state is immune from money damages unless immunity is expressly waived. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945). The Hospital urges that it is an agency of the Commonwealth of Virginia and has no identity distinct from the Commonwealth. Furthermore, it maintains that any damages won by a judgment for the plaintiffs would be paid out of the state treasury

The issue, then, is whether the Hospital is an arm of the Commonwealth or whether it has sufficient local powers and autonomy independent of the Commonwealth to take it from under the eleventh amendment umbrella. While in the appropriate case this issue might be decided as a matter of law, the court concludes that the immunity status of a state mental hospital is best considered "on the basis of its own peculiar circumstances," see Jacobs v. College of William and Mary, 495 F.Supp. 183, 189 (E.D.Va.1980), aff'd without opinion, 661 F.2d 922 (4th Cir.), cert. denied, 454 U.S. 1033, 102 S.Ct. 572, 70 L.Ed.2d 477 (1981), and therefore factual material shall inform the court's decision. The Hospital has provided the court with affidavits and other documents in support of its motion for summary judgment.

Courts examine a number of factors in determining whether an institution is an arm of the state for eleventh amendment purposes. Among the factors are the status of the defendant under state law, the degree of state control over the institution, whether and to what extent any judgment will be payable from the state treasury rather than its own funds. Other factors include whether the institution is separately incorporated, whether it has independent power to sue and be sued and enter into contracts, and whether the institution owns its own property. See United Carolina Bank v. Board of Regents, 665 F.2d 553, 557 (5th Cir.1982); Blake v. Kline, 612 F.2d 718, 722 (3d Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980); Gann v. Delaware State Hospital, 543 F.Supp. 268, 270 (D.Del.1982); Jacobs v. College of William and Mary, 495 F.Supp. 183, 189 (E.D.Va.1980), aff'd without opinion, 661 F.2d 922 (4th Cir.), cert. denied, 454 U.S. 1033, 102 S.Ct. 572, 70 L.Ed.2d 477 (1981).

The Hospital from its creation in 1825 has been a public mental hospital.² Today, it is one of a number of hospitals comprising the Department of Mental Health and Mental Retardation's ("Department") system of state facilities.³ To assure that the Department's system works cohesively, the General Assembly has placed all the institutions,⁴ including the Hospital, under the

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control of the Commissioner of the Department. The Commissioner enters into "all contracts and agreements," accepts and holds grants, donations, bequests, and trusts, employs personnel, and hires hospital directors. Va.Code §§ 37.1-42.1, -42.2. Hospital directors report directly to the Commissioner, thus giving the Commissioner direct line authority over the principal officer at the Hospital. The Department issues a number of regulations and procedures which extensively govern many areas of the Hospital's operation. In sum, Virginia law not only treats the Hospital as an arm of the State but the state maintains a substantial degree of control over the Hospital as well

Furthermore, revenue from patient charges is deposited in the state treasury. Other funding sources, such as grants, donations, and trusts are also subject to state control. The General Assembly appropriates the Hospital's operating budget. See 1983-84 Appropriations Act 147-48. According to affidavits, approximately $18,000, however, is maintained in a so-called "welfare funds special" account that is not subject to state control. These funds are raised by patients and staff through car washes, hot dog sales, and other similar activities. This fund, not under the State's direct control, amounts to only .065 percent of the Hospital's 1983-84 budget. Given the magnitude of the judgment sought by the plaintiffs against the Hospital, the court finds that any judgment in this case would necessarily be paid out of the state treasury.⁵

Finally, the Hospital lacks the power to sue or be sued. Rather, all suits involving the Hospital must be brought by or against the State's Comptroller. Va.Code §§ 8.01-193, -196. The Hospital may not enter into contracts; Va.Code § 37.1-42.1 imposes this duty on the Commissioner. Property, moreover, is owned in the name of the Commonwealth and not the Hospital itself. Va.Code § 37.1-11. Nor is the Hospital a separate corporation....