Watkins v. Roche, Civ. A. No. CV181-59.

• Decision Date: 24 December 1981
• Docket Number: Civ. A. No. CV181-59.
• Citation: 529 F. Supp. 327
• Parties: William Mark WATKINS, M.D., Plaintiff, v. W. P. ROCHE, Jr., M.D.; W. Douglas Skelton, M.D.; Commissioner of the Department of Human Resources of the State of Georgia and his Successors in Office; Mickey M. Crouch, M.D.; and Douglas Lee Smith, M.D., Defendants.
• Court: U.S. District Court — Southern District of Georgia

529 F. Supp. 327

William Mark WATKINS, M.D., Plaintiff, v. W. P. ROCHE, Jr., M.D.; W. Douglas Skelton, M.D.; Commissioner of the Department of Human Resources of the State of Georgia and his Successors in Office; Mickey M. Crouch, M.D.; and Douglas Lee Smith, M.D., Defendants.

Civ. A. No. CV181-59.

United States District Court, S. D. Georgia, Augusta Division.

December 24, 1981.

Stephen E. Shepard, Augusta, Ga., Kenneth R. Fielder, Cochran, Ga., for plaintiff.

Carol Cosgrove, Asst. Atty. Gen., Atlanta, Ga., W. Ward Newton, David R. Smith, Lyons, Ga., for defendants.

ORDER

BOWEN, District Judge.

On March 27, 1979, Dr. W. P. Roche, Jr., a defendant in this action, executed a physician's certificate, as authorized by Ga.Code Ann. § 88-404.2, which resulted in the plaintiff's involuntary temporary commitment to a state mental health facility for examination. The physician's certificate hereinafter "certificate" is a document which states that the person named therein has been personally examined by the signing physician and appears to be in need of involuntary treatment for either alcoholism, drug dependency or drug abuse. The certificate allows a peace officer to take the person into custody and deliver him or her to an emergency receiving facility for examination. Upon execution of the certificate, plaintiff was taken to the emergency receiving facility at Georgia Regional Hospital in Augusta, Georgia.

Plaintiff brought this action under 42 U.S.C. § 1983 against defendant Roche, among others, alleging that defendant's execution of the certificate unconstitutionally deprived him of his civil rights. Plaintiff alleges that the defendant's action in signing the certificate was negligent and performed under color of state law. Defendant Roche filed a motion to have himself dismissed from this suit on the ground that his acts did not constitute state action as contemplated by section 1983. Although defendant's motion is denominated as one to dismiss for lack of subject matter jurisdiction, it is more in the nature of a motion, under Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted and will be treated accordingly.

The single issue in this matter, to which there is no easy answer, is whether the defendant acted under the color of state law in executing the certificate, involuntarily subjecting the plaintiff to an examination. Plaintiff asserts that the defendant's acts, as authorized by statute, constitute state action in that he was performing a "public function," or a function traditionally left to the state. See Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). It is plaintiff's position that the defendant, though a private individual, was so cloaked with the authority of the state that his actions were, in effect, those of the state.

A determination of whether state action exists is made on a case-by-case basis. Sims v. Jefferson Downs, Inc., 611 F.2d 609 (5th Cir. 1980). In making this determination, the proper test to be applied is "whether there is a sufficiently close nexus between the state and the challenged action ... so that the challenged action may be fairly treated as that of the state itself." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974) (brackets added). A review of the plaintiff's allegations, which in a Rule 12(b)(6) motion are taken as true, and of the applicable law does not show a "sufficiently close nexus" to warrant a finding of state action.

Plaintiff alleges that the state action present in this case springs from the defendant's execution of the certificate under the authority of Ga.Code Ann. § 88-404.2. The defendant does not dispute he executed the certificate. He does dispute that that conduct was a performance of a "public function" such that he was, in reality, acting for the state.

Under Georgia law, a person believed to be an alcoholic, drug dependent, or a drug abuser may be taken to a state emergency receiving facility for examination. The purpose of the examination is to determine if there is reason to believe that the examined person fits one of the above-described categories and to determine whether that individual may therefore require involuntary treatment. Ga.Code Ann. § 88-404.4 (1979). Georgia Code Annotated § 88-404.2 sets out the circumstances under which a person may be taken, involuntarily, for examination and the procedures to invoke the process of examination. There are two methods. In section 88-404.2(a), any physician may execute a physician's certificate. The certificate states that the person was examined by the signing physician within the preceding forty-eight hours and that based upon the doctor's observations, the person appears to be an alcoholic, drug-dependent individual, or a drug abuser requiring involuntary treatment. The certificate is of limited duration, lasting only seven days. A peace officer must act within seventy-two hours of receiving the certificate to take the person into custody and transport him to the nearest emergency receiving facility for examination.

Thus, the consequence of a certificate is nothing more than an examination, albeit involuntary. The power of a certificate is very limited. It does not commit a person for treatment. It merely subjects a person to any emergency care that may be required and an examination by the state to confirm or reject the beliefs stated in the certificate. Once a person is admitted to a receiving facility, an examination must be made by a state doctor within twenty-four hours. The decision to refer a person for further evaluation and, perhaps, for treatment rests with the state and the state alone. A private physician cannot commit someone, in the usual sense of the word, solely by a certificate. Basically, the certificate simply initiates the state's involvement and is not of and in itself the point of origin of state action.

Physicians are not the only ones who may inaugurate the process subjecting a person to an examination. Subsection (b) of section 88-404.2 provides for a court ordered examination. The court must base its order on one of two things: an unexpired physician's certificate or the affidavits of at least two persons which meet the same empirical criteria of subsection (a). The order directs a peace officer to take the person named either to a physician who has agreed to examine the person or directly to an emergency facility for examination.

From the foregoing discussion, two notable points are evident. First, the subjugation of an individual for an involuntary examination is not dependent upon a physician's certificate. Laymen may, by way of affidavits, initiate the process leading to an examination as well, although in not as a direct a manner as physicians. Secondly, physicians are not compelled by the state to sign certificates. Both of these factors militate against the finding of state action.

The procedural differences of subsections (a) and (b) do not detract from the private nature of the conduct permitted by those sections. The beliefs of laymen, grounded on credible observations, are sufficient to warrant a court ordered examination. The fact that a court makes the final decision should not be viewed as meaning that the nature of a physician's conduct, in the context of section 88-404.2(a), is equal to that of the court in terms of state action. The distinction in procedure is justified since it is rare that laymen are qualified to make medical judgments. The presence, or rather, the interposition, of the court serves as a shield to guard against malicious or vexatious attempts to harass a person by subjecting him to needless examinations. The court is not saying that a doctor is necessarily above the abusive use of the authority of section 88-404.2. It recognizes that there are incentives not to abuse this authority that are not applicable to a layman, such as, perhaps, the loss of the license to practice medicine for professional misconduct or the possibility of being sued for malpractice. By allowing a physician to bypass the necessity of obtaining a court order, the legislature implicitly recognized that a physician's training, expertise, and professionalism qualify him to make a judgment in the best interests of a person to which a court could add but little, if anything.

Because section 88-404.2 permits ordinary citizens other than doctors to initiate the process for securing examinations, the suggestion of state action under the theory of performing a "public function" found in defendant's conduct is weakened, if not eliminated. Otherwise, the actions of laymen would be subjected to the label of state action. Furthermore, throughout the various provisions of section 88-4 et seq., the judgment of the private physician is sought, but is not required. Rather, it is the judgment of the state's physicians that is determinative of the question of further examination or treatment. To open physicians to federal suit by decreeing that they act for the state in making purely medical decisions would effectively chill the use, and accompanying benefit, of a private physician's judgment in an emergency situation simply because the physician may not be willing to give it for fear of being exposed to a lawsuit. The disadvantage in this is the statutory alternatives do not provide the immediacy of action of a physician's certificate.

The second important point gleaned from the statutes is that the physician is not required, or compelled in any way by the state, to execute a certificate; nor is he required to examine a person ordered, by a court, to be examined under section 88-404.2(b). Again, as stated earlier, a certificate is not the exclusive means for having a person examined. The state does not reward a physician for executing a certificate or punish him for failing to sign one. The language of section 88-404.2(a) clearly states that "Any...