Spencer v. Lee

• Decision Date: 03 January 1989
• Docket Number: No. 87-1203,87-1203
• Citation: 864 F.2d 1376
• Parties: William Allen SPENCER, Plaintiff-Appellant, v. Bumyong LEE, M.D., and St. Elizabeth Hospital, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1376

864 F.2d 1376

57 USLW 2427

William Allen SPENCER, Plaintiff-Appellant, v. Bumyong LEE, M.D., and St. Elizabeth Hospital, Defendants-Appellees.

No. 87-1203.

United States Court of Appeals Seventh Circuit.

Argued Feb. 10, 1988.

Reheard En Banc Sept. 27, 1988.

Decided Jan. 3, 1989.

Joel J. Africk, Jenner & Block, Chicago, Ill., for plaintiff-appellant.

Lynn D. Dowd, Thomas, Hinshaw & Culbertson, Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION and KANNE, Circuit Judges.

POSNER, Circuit Judge.

Do a private physician and a private hospital act under color of state law, and therefore lay themselves open to suit under 42 U.S.C. Sec. 1983, when they commit a mentally disturbed person? Adhering to Byrne v. Kysar, 347 F.2d 734 (7th Cir.1965), and Duzynski v. Nosal, 324 F.2d 924, 929-31 (7th Cir.1963), we hold they do not. The other courts that have addressed this issue agree with our position, see Hall v. Quillen, 631 F.2d 1154 (4th Cir.1980), and cases cited there, with the exception of the plurality opinion in Burch v. Apalachee Community Mental Health Services, Inc., 840 F.2d 797, 803 (11th Cir.1988) (en banc), which however devoted only three sentences to the issue and cited no authority for its conclusion.

The plaintiff, William Spencer, appeals from the dismissal of his complaint for failure to state a claim, so we must proceed on the assumption that the facts alleged in the complaint are true. In 1982 and 1984, Spencer's physician, defendant Bumyong Lee, authorized Spencer to be involuntarily committed to St. Elizabeth Hospital. On the second of these occasions the police were called in to take Spencer to the hospital against his will, and on the fourth day of his five days of hospitalization Dr. Lee directed a nurse to inject Spencer with a drug. Spencer protested that he was allergic to the drug, but he was injected anyway and sustained bodily injury. Spencer seeks damages under 42 U.S.C. Sec. 1983 for the deprivation of his liberty without due process of law and for the reckless infliction of injury during his second confinement. Pendent counts seek damages under the common law of Illinois for false imprisonment and malpractice. Spencer had no lawyer in the district court, and his complaint is barely coherent. The district court ordered him to furnish a more definite statement of his claim. In response, Spencer submitted medical records which indicate that Dr. Lee was his regular physician at the time of the commitments; that the first commitment was for attempted suicide and was voluntary; that his father signed the petition for the second commitment; and that another doctor--not Dr Lee--signed the medical certificate for that commitment. These documents depict Spencer as a schizophrenic with suicidal tendencies who has been in and out of mental institutions many times. Among his delusions are that "all winter he was sick until this time when the police starting a kind of prostitution operation also near motel where he is staying, they have been running a chain saw, the chain saw produced hormones in his testes and he couldn't sit still." This is from one of Dr. Lee's reports but is corroborated by Spencer's request in the district court for an injunction that would "bar St. Elizabeth hospital from damaging my hearing with circular saws." However, the district judge did not rely on any of the medical records--which Spencer did not vouch for (he just produced them in response to the judge's order) and has had no chance to explain (away)--and we won't rely on them either.

The casting of this lawsuit as one for the redress of a violation of the Fourteenth Amendment's due process clause, which forbids states to deprive persons of life, liberty, or property without due process of law, would certainly strike the innocent eye as puzzling. The due process clause is directed to action by state government; 42 U.S.C. Sec. 1983 creates a remedy against persons acting under color of state law, such as police officers. The defendants in this case are not public employees. They provide no services under contract to the state government or any of its subdivisions. They do not participate (so far as is relevant to this case) in any state or other governmental programs. A purely private physician and a purely private hospital are alleged to have confined the plaintiff against his will and to have injured him by improper medical treatment. These are classic allegations of false imprisonment and malpractice--torts for which the common law of Illinois provides remedies that the plaintiff does not suggest are inadequate.

In arguing that the defendants are nonetheless state actors for purposes of the Fourteenth Amendment and section 1983, the plaintiff relies on the Illinois Mental Health and Developmental Disabilities Code, which provides that "when a person is asserted to be subject to involuntary admission and in such a condition that immediate hospitalization is necessary for the protection of such person or others from physical harm, any person 18 years of age or older may present a [commitment] petition to the facility director of a mental health facility in the county where the respondent resides or is present." Ill.Rev.Stat. ch. 91 1/2, Sec. 3-601(a). The petition must include much factual detail and be accompanied by a certificate, signed by a physician or other qualified professional, stating that the respondent requires immediate hospitalization and that the physician has examined the respondent within the previous 72 hours, and setting forth the factual basis for the physician's opinion that immediate hospitalization is required. Secs. 3-601(b), 3-602. Within 24 hours of the respondent's admission to the mental health facility, the facility must forward the relevant papers to the local state court, which must in turn hold a hearing within 5 days (exclusive of weekends and holidays--so the longest possible prehearing commitment is 8 days) on whether there are grounds for continuing to hold the respondent. Sec. 3-611.

This complex of provisions, Spencer argues, operates to "deputize" private physicians such as Dr. Lee and private hospitals such as St. Elizabeth to carry out the exclusive state function of committing the mentally ill. Compare Del's Big Saver Foods, Inc. v. Carpenter Cook, Inc., 795 F.2d 1344, 1346 (7th Cir.1986). For a maximum of eight days these ostensibly private actors are empowered by the Mental Health Code to hold and treat people against their will. This power, Spencer concludes, is a state power that does not cease to be such merely because delegated to private persons.

If the State of Illinois ordered or encouraged private persons to commit the mentally ill, they would indeed be state actors, for they would be doing the state's business. See our recent discussion in United States v. Koenig, 856 F.2d 843, 847-51 (7th Cir.1988). It would make no difference that they were not technically employees of the state. Or if the state decided to contract out the provision of state highway police or the administration of state prisons to private entrepreneurs of security and correctional services, the entrepreneurs and their employees would (we may assume) be state actors. The details of the contractual relationship between state agencies and the persons who actually implement state policy--whether those persons are state employees or independent contractors or the employees of independent contractors--are of no moment. In accordance with Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), we may further assume that if the state allowed a residential subdivision or high-rise apartment building to form its own de facto municipal government, that government would be an arm of the state for purposes of the Fourteenth Amendment, just as de jure municipal governments are; again the technicality of governmental employment would not control the case. The Fourteenth Amendment does not prescribe the structure of state government. United Beverage Co. v. Indiana Alcoholic Beverage Comm'n, 760 F.2d 155 (7th Cir.1985). Who does the state's business is the state's actor.

At the opposite extreme is the situation where the state decides to reduce the scope of government. Suppose the state owned a railroad, and decided to sell it to a private person. Would the new owner be deemed a state actor under the Constitution, on the ground that the state had "deputized" him to operate "its" railroad? He would not. The scope of government is not fixed; deregulation does not create a host of state actors in the private sector, like the moraine that marks the farthest advance of a glacier. Certain powers, however, are "traditionally the exclusive prerogative of the State," and their exercise by private persons is state action. Blum v. Yaretsky, 457 U.S. 991, 1005, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982). Marsh can be understood in this light--as a case not of deregulation, but of the delegation of public powers to private actors.

We have to situate the present case in this grid. It is not a case of governmental encouragement or direction of private persons; and "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky, supra, 457 U.S. at 1004, 102 S.Ct. at 2786. See also Tunca v. Lutheran General Hospital, 844 F.2d 411, 414 (7th Cir.1988); Ezpeleta v. Sisters of Mercy Health Corp., 800 F.2d 119, 122 (7th Cir.1986). Spencer does not suggest that the relevant provisions of the Mental Health Code were enacted because the state wants to encourage commitments, any more than state repossession laws are passed because states want to encourage creditors to repossess their debtors' goods. See ...