# William Allen Spencer v. Bumyong Lee, M.D., and St. Elizabeth Hospital

> Court of Appeals for the Seventh Circuit · January 3, 1989 · 864 F.2d 1376

URL: https://www.frixlaw.com/law-library/cases/9478566

## Case

- **Full name:** William Allen SPENCER, Plaintiff-Appellant, v. Bumyong LEE, M.D., and St. Elizabeth Hospital, Defendants-Appellees
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** January 3, 1989
- **Citations:** 864 F.2d 1376; 1989 U.S. App. LEXIS 289; 1989 WL 1049
- **Precedential status:** Published
- **Opinion:** Concurring in part by Ripple
- **Judges:** Bauer, Cummings, Wood, Cudahy, Posner, Coffey, Flaum, Easterbrook, Ripple, Manion, Kanne
- **Cited by:** 87 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9478566

## How later opinions describe it (automated extraction)

- concluding that “involuntary extrajudicial commitment to private institutions has long been commonplace” in England and the United States
- holding that private facilities and their employees do not engage in state action by virtue of participating in Illinois process for involuntary commitment
- holding that physicians of private facilities do not engage in state action by virtue of participating in a state process for involuntary commitment
- holding that private facilities do not engage in state action by virtue of participating in a state process for involuntary commitment
- finding that a private party is not transformed into a state actor merely because the private party acted pursuant to a state statute

## Opinion text

RIPPLE, Circuit Judge,
with whom FLAUM, Circuit Judge, joins, concurring in part and dissenting in part.
Despite the great number of cases and the seemingly well-honed lexicon of “tests,” the concept of “state action” remains a difficult one. “[FJormulating an infallible test,” the Supreme Court has said, remains an “impossible task.” Reitman v. Mulkey, 387 U.S. 369, 378 , 87 S.Ct. 1627, 1632 , 18 L.Ed.2d 830 (1967). “While the principle that private action is immune from the restrictions of the Fourteenth Amendment is well established and easily stated, the question whether particular conduct is ‘private,’ on the one hand, or ‘state action,’ on the other, frequently admits of no easy answer.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349-50 , 95 S.Ct. 449, 453 , 42 L.Ed.2d 477 (1974). In words that echo the warning of Justice Clark in Burton v. Wilmington Parking Authority, 365 U.S. 715, 723 , 81 S.Ct. 856, 860 , 6 L.Ed.2d 45 (1961), now-Chief Justice Rehnquist has pointedly remarked that “[t]he true nature of the State’s involvement may not be immediately obvious, and detailed inquiry may be required in order to determine whether the test is met.” Jackson, 419 U.S. at 351 , 95 S.Ct. at 453-454 .
Several factors require that, in the case before us, we take special heed of Chief Justice Rehnquist’s injunction. As a threshold matter, it bears noting that this case comes before the court on the pro se complaint of the patient. We are obliged, therefore, to evaluate the complaint by less stringent standards than formal pleadings drafted by lawyers. Pryzina v. Ley, 813 F.2d 821, 822 (7th Cir.1987); Palmer v. City of Decatur, 814 F.2d 426, 428 (7th Cir.1987). More fundamentally, this is an involuntary commitment case. As the pronouncements of the Supreme Court make obvious, such commitments present an extraordinary possibility of abuse to individual liberty. See Addington v. Texas, 441 U.S. 418, 425-27 , 99 S.Ct. 1804, 1809-10 , 60 L.Ed.2d 323 (1979) (discussing state interests sufficient to justify involuntary civil commitment); O’Connor v. Donaldson, 422 U.S. 563, 573-76 , 95 S.Ct. 2486, 2492-94 , 45 L.Ed.2d 396 (1975) (discussing criteria for involuntary civil commitment). In this respect, the Supreme Court’s cases mirror the harsh lessons of this century. Civil commitment has served many a perverse end in other countries of the world; we have learned, hopefully, not to permit the slightest movement in that direction *1383 here. Lastly, we must recognize — and respect — the efforts of the state of Illinois to prevent abuses in this delicate area. The historical experience of England or even early America are of little value when a state has acted affirmatively to prevent from occurring incrementally here the sort of abuse we have seen in other parts of the world.
The Illinois statutory scheme must be the starting point of our analysis. Under the Illinois scheme, there are four separate steps involved in the involuntary commitment of a patient to a private institution:
1) the decision of the patient’s family and its physician that commitment is required and that action must be taken to institutionalize the patient;
2) the decision of a licensed physician that the available information justifies immediate commitment;
3) the involuntary institutionalization of the patient pursuant to the physician’s certification;
4) the day-to-day care of the patient, once institutionalized, by the private institution.
Step 1 and step 4 of this process are, under the prevailing case law, private action rather than state action. With respect to step 1, the simple invocation of state legal procedures, standing alone, does not constitute joint participation or conspiracy with state officials. See Lugar v. Edmondson Oil Co., 457 U.S. 922 , 939 n. 21, 102 S.Ct. 2744 , 2755 n. 21, 73 L.Ed.2d 482 (1982). Therefore, even on the basis of this rambling pro se complaint, we can conclude that the decision of the family and the physician to seek involuntary commitment is not action attributable to the state. The state neither commands nor encourages such private initiative. See Blum v. Yaretsky, 457 U.S. 991, 1004 , 102 S.Ct. 2777, 2785 , 73 L.Ed.2d 534 (1982). The state merely provides an opportunity for these private parties to seek relief through the judicial process. “Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the terms of the Fourteenth Amendment.” Blum, 457 U.S. at 1004-05 , 102 S.Ct. at 2786 . Indeed, as will be discussed below, the family’s decision is subject to significant scrutiny by the state.
Step 4 in the process is also private rather than state action. While a good deal of the care of persons afflicted with mental disease has been and is provided by the state, it cannot be said that this task is one “traditionally exclusively reserved to the State.” Jackson, 419 U.S. at 352 , 95 S.Ct. at 454 . See also Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157 , 98 S.Ct. 1729, 1734 , 56 L.Ed.2d 185 (1978). “The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.” Jackson, 419 U.S. at 350 , 95 S.Ct. at 453 . While there may indeed be instances when a different result would be necessitated because the state commanded or encouraged a particular treatment, no such situation is set forth in this complaint even when the document is read according to the lenient standards applicable to the evaluation of pro se complaints. Nor can we presume that affirmative direction by the state is present.
The Mental Health Code provides for an individualized medical treatment plan that is designed solely by the recipient, his relatives, and his physician. (Ill.Rev.Stat.1985, ch. 91V2, pars. 2-102(a), 2-107.) The statute does not give the court a place in the treatment process except to review the plan periodically and to monitor the recipient’s progress. (Ill.Rev.Stat.1985, ch. 9IV2, par. 3-814.)
Illinois v. Orr, 176 Ill.App.3d 498 , 125 Ill.Dec. 885 , 531 N.E.2d 64 (1988).
Steps 2 and 3 of the Illinois procedure are far more problematic. With respect to step 2, the physician’s certification required before an involuntary commitment may take place is part of a comprehensive adjudicative scheme mandated by state law to ensure that the patient is not deprived of his liberty unless the statutory criteria for involuntary commitment are met. See Olsen v. Karwoski, 68 Ill.App.3d 1031 , 25 Ill.Dec. 173, 179 , 386 N.E.2d 444, 450 (1979). If, as is the case in some states, *1384 the physician’s certificate were simply informational and designed to assist a tribunal or other decision-maker, it would be difficult to characterize the execution of the certificate as “state action.” See Hall v. Quillen, 631 F.2d 1154, 1155 (4th Cir.1980), ce rt. denied, 454 U.S. 1141 , 102 S.Ct. 999 , 71 L.Ed.2d 293 (1982) (physician appointed by court to render professional evaluation in voluntary commitment proceeding not a state actor). 1 However, this hypothetical situation “contrasts with the procedure in Illinois for emergency admission, where a physician’s medical certificate does not receive the attention of a judge until after the patient already has been admitted to the hospital.” Olsen, 25 Ill.Dec. at 179 , 386 N.E.2d at 450 . Here, the physician’s certification is the initial assertion of the state’s authority to commit the patient involuntarily. It is a decision, not an opinion. The physician acts not as a private person but as the state’s decision-maker. By virtue of the authority delegated to him by the state, the physician may authorize what no other private person can authorize, the involuntary commitment of the patient to an institution. “[A] state may delegate authority to a private party and thereby make that party a state actor.” NCAA v. Tarkanian, — U.S. —, 109 S.Ct. 454 , 102 L.Ed.2d 469 (1988); see also West v. Atkins, — U.S. —, 108 S.Ct. 2250 , 101 L.Ed.2d 40 (1988).
The physician’s certification, as the Illinois courts have recognized, see id., is hardly private action in which the state simply acquiesces, such as the exercise of self-defense, the eviction of trespassers, or the repossession of chattels. Nor can the physician’s act be considered a citizen’s arrest. In such a situation, the arrest results from purely private initiative without any “prearranged plan, customary procedure, or policy that substituted the judgment of a private party for that of the police or allowed a private party to exercise state power.” Carey v. Continental Airlines, Inc., 823 F.2d 1402, 1404 (10th Cir.1987). Here, by contrast, the physician acts under the direct statutory authorization of the state to perform a specific act that is part of a broader state adjudication procedure in an area where the state has assumed express responsibility for the ultimate decision.
Step 3, a health care institution’s accepting a patient and keeping that patient against his will, also involves, under the Illinois scheme, the assertion of state authority and therefore must be considered state action. The care of mentally ill persons is not a matter entrusted traditionally to the exclusive control of the state. The state has controlled, however, the exclusive authority to determine when a person may be held against his will and Illinois has most certainly asserted that authority. See Cowdery v. Northern Trust Co., 321 Ill.App. 243 , 53 N.E.2d 43, 49 (1944). When a private health care institution in Illinois holds a patient against his will pursuant to a physician’s certification, its custodial duties are by direction of the state’s judicial process. Indeed, it is quite clear that the police power of the state will enforce *1385 that custody if necessary. 2 Cf. Estate of Johnson v. Condell Memorial Hosp., 119 Ill.2d 496 , 117 Ill.Dec. 47, 53 , 520 N.E.2d 37, 43 (1988) (“If Holt had been admitted to Condell as an involuntary admittee, the facility would have been authorized by the Code to request the police to apprehend her....”).
As the majority opinion notes, at 1378, if the state decided to contract out the provision of state highway police or the administration of state prisons to private entrepreneurs, they would well be considered state actors. Similarly, in this case, the state has in effect delegated the task of enforcing a state-ordered commitment to a private health care facility. Without that authority, the institution would be unable to perform its custodial function. Therefore, its action is fairly attributable to the state. See Burch v. Apalachee Community Mental Health Serv., 840 F.2d 797, 803 (11th Cir.1988). “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of state law.” United States v. Classic, 313 U.S. 299, 326 , 61 S.Ct. 1031, 1043 , 85 L.Ed. 1368 (1941).
In applying the foregoing analysis, I conclude that the complaint was improperly dismissed in its entirety. Mr. Spencer’s allegations with respect to steps 1 and 4 of the commitment process cannot sustain a cause of action under section 1983. With respect to step 2, he has failed to join as a party the physician who signed the certificate. It is not necessary therefore to address the important question of whether that physician would, in any event, enjoy immunity from suit. See generally, Annotation, Right to Relief Under Federal Civil Rights Act of 1871 ( 42 U.S.C.S. § 1983 ) for Alleged Wrongful Commitment to or Confinement in Mental Hospital, 16 A.L.R. Fed. 440 , 450-63 (1973).
Step 3 presents a much more difficult question. It is not at all clear that the complaint and the accompanying papers state an allegation that the health care facility wrongfully held Mr. Spencer against his will. However, we are required to read a pro se complaint charitably and that requirement ought to be applied scrupulously when we are dealing with the workproduct of an individual with a history of mental health problems. While pleadings from such individuals present a good deal of extraneous material, their authors are particularly incapable of making a coherent presentation. It is our job to ensure that their rights are protected even at the cost of some judicial efficiency. Consequently, I would reverse the judgment of the district court and remand the case for further proceedings with respect to this aspect of the case.
. The majority cites Hall v. Quillen, 631 F.2d 1154 (4th Cir.1980), cert. denied, 454 U.S. 1141 , 102 S.Ct. 999 , 71 L.Ed.2d 293 (1982), for a far broader proposition than its actual holding. It deals with whether a physician who examines a patient as part of a judicial proceeding for commitment is a state actor. In Hall , the physician was appointed by the judge to examine the patient and to render a professional opinion with respect to his condition. This is a very different situation from the one before us. In our case, the physician is the decision-maker and has the authority to commit the person for a specified period of time without any further judicial approvals.
The cases cited in Hall are also distinguishable. For instance, in Jackson v. Salon, 614 F.2d 15 (1st Cir.1980), the First Circuit held that a court-appointed attorney was not a state actor. This situation of course is quite different from the situation presented in our case. The same is true of the Second Circuit opinion in Housand v. Heiman, 594 F.2d 923 (2d Cir.1979). United States ex rel. Simmons v. Zibilich, 542 F.2d 259 (5th Cir.1976), also involves a court-appointed attorney. See also Harkins v. Eldredge, 505 F.2d 802 (8th Cir.1974). Espinoza v. Rogers, 470 F.2d 1174 (10th Cir.1972), is also a case involving the actions of a state public defender. Szijarto v. Legeman, 466 F.2d 864 (9th Cir.1972), also involves an attorney. In this case it was a retained attorney. The same is true of Thomas v. Howard, 455 F.2d 228 (3d Cir.1972) and Mulligan v. Schlachter, 389 F.2d 231 (6th Cir.1968).
. In Del's Big Saver Foods, Inc. v. Carpenter Cook, Inc., 795 F.2d 1344 (7th Cir.1986), the court held that a private person became a state actor for purposes of the state action requirement when they repossessed collateral on the strength of an ex parte order issued by a court. The ex parte order instructed the sheriff to assist the private person if need be to carry out the order. In this case it was not necessary to call the sheriff. The court held that ‘‘[t]he fact that the sheriff remained in the background and hence could not be joined as a defendant does not deprive Carpenter Cook’s action in enforcing a judicial order of its character as state action." Id. at 1346 .

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478566. Public record. Not legal advice.