# 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/9478567

## 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:** Dissent by Cummings
- **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/9478567

## 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

CUMMINGS, Circuit Judge,
with whom CUDAHY, Circuit Judge, joins, dissenting.
Disagreeing with the majority’s conclusion that the actions of the defendants in committing Spencer to St. Elizabeth Hospital necessarily cannot constitute state action, I respectfully dissent from the majority’s holding. In order to determine whether the defendants’ roles in the involuntary commitment of the plaintiff qualify as state action such that the defendants may be subject to liability under 42 U.S.C. § 1983 , it is necessary to elaborate on the majority’s discussion of the statutory authority for defendants’ conduct.
Involuntary commitment to a mental health institution may be commenced against an individual who, as a result of mental illness, is reasonably expected to inflict serious physical harm upon himself or another in the near future or is unable *1386 to provide for his own physical needs. Ill.Rev.Stat. ch. 91V2, § 3-601(a) (Smith-Hurd 1988). The commitment proceedings may be initiated by any private individual, 18 years or older (such as friends or relatives), public officials (such as the police who have had an opportunity to observe the individual), hospital staff, or court order. Sections 3-601, 3-606, 3-607. However, none of those parties may detain a patient at a mental health institution for more than twenty-four hours without completing a petition detailing the petitioner’s basis for recommending commitment of the individual and obtaining a certificate executed by a “physician, qualified examiner, or clinical psychologist” who has examined the patient 72 hours prior to admission, stating that the respondent is subject to involuntary admission and requires immediate hospitalization. Sections 3-603, 3-604.
Upon presentation of the petition and physician’s certificate to the county sheriff, the patient is taken into custody and transported to a mental health facility. Section 3-605. A peace officer may take custody of a patient for purposes of involuntary commitment without a physician’s certificate if the officer personally observes a person who appears to be subject to involuntary commitment and completes the necessary petition upon arriving at the facility. Section 3-606. Similarly, a court may order a person to be taken into custody and transported to a mental health facility if as a result of observation in open court the person appears to require emergency commitment. Section 3-607. No private citizen may cause a law enforcement agency to take custody of the patient without the physician’s certificate. However, any of the enumerated individuals may cause a person to be detained for examination only at a mental health facility for a maximum of twenty-four hours without a physician’s certificate if “no physician, qualified examiner, or clinical psychologist is immediately available or it is not possible after a diligent effort to obtain the certificate.” Section 3-603. Presumably, without a physician’s certificate necessary to invoke the force of the police under Section 3-605 of the statute, a private individual must be capable of personally transporting the patient to the mental health facility. If the patient has been detained at the mental health facility on the basis of a petition alone under Section 3-603, the facility may complete the necessary medical certificate.
Within twenty-four hours of admission (exclusive of weekends and holidays), the patient must be examined by a psychiatrist, other than the individual who completed the physician’s certificate. The results will determine whether the patient should be dismissed or whether a judicial hearing should be scheduled within five days of admission. Section 3-610. Treatment may begin on the involuntarily admitted patient upon completion of the physician’s certificate, although the patient may refuse medication unless such medication is “necessary to prevent the [patient] from causing serious harm to himself or others.” Section 3-608. The patient may not be involuntarily treated in any event until a physician’s certificate has been completed. The patient may be held at the facility under the authority of a physician’s certificate and petition for a maximum of eight days prior to a hearing.
In reviewing the district court’s dismissal of plaintiff’s action, the truth of all well-pleaded allegations must be assumed and viewed in the light most favorable to Spencer. Vaden v. Village of Maywood, 809 F.2d 361, 363 (7th Cir.1987), certiorari denied, — U.S. -, 107 S.Ct. 2489 , 96 L.Ed.2d 381 . Further, this Court must liberally construe Spencer’s pro se complaint and affirm its dismissal only if he can prove no set of facts entitling him to relief. Conley v. Gibson, 355 U.S. 41 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957); Estelle v. Gamble, 429 U.S. 97 , 97 S.Ct. 285 , 50 L.Ed.2d 251 (1976).
In order to state an action under Section 1983, the plaintiff must allege that the defendant deprived him of a right secured by the Constitution or laws of the United States and that the defendant acted under “color of state law.” Lugar v. Edmondson Oil Co., 457 U.S. at 923, 937-939, 102 S.Ct. at 2746, 2753-2755. The inquiry as to whether a private person’s actions are performed “under color of state *1387 law” is identical to the “state action” determination required for a violation under the Fourteenth Amendment. Lugar at 928-935, 102 S.Ct. at 2749-2752.
Spencer has clearly articulated a sufficient liberty interest in his allegations of involuntary commitment and treatment during his detention at St. Elizabeth Hospital. See Addington v. Texas, 441 U.S. 418, 425 , 99 S.Ct. 1804, 1809 , 60 L.Ed.2d 323 (1979); Youngberg v. Romeo, 457 U.S. 307, 315-316 , 102 S.Ct. 2452, 2457-2458 , 73 L.Ed.2d 28 (1982). The only issue remaining is whether the actions of Dr. Lee and St. Elizabeth Hospital implicate state action. 1
I. INVOLUNTARY COMMITMENT
A. Function of the State
The involuntary commitment of an individual believed to be a danger to himself or others without a judicial hearing is no doubt one of the most severe infringements of personal liberty. However, the state has power to cause such a deprivation acting pursuant to its parens patriae power to protect and provide care for the mentally ill. Addington v. Texas, 441 U.S. at 426 , 99 S.Ct. at 1809 . Although neither Dr. Lee nor St. Elizabeth Hospital is a state employee, the state action component may be fulfilled if their actions may be “fairly attributable to the state.” Lugar, 457 U.S. at 939 , 102 S.Ct. at 2755 . The test of “fair attribution” involves two elements where a private party is alleged to be a state actor:
First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.... Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor.
Lugar at 937, 102 S.Ct. at 2753-2754 . The Supreme Court explained further that mere action by a private party pursuant to a statute without “something more” will not transform the private party into a state actor. The “something more” necessary to convert the private activity into state action varies with the factual circumstances, resulting in correspondingly varied tests: the “public function” test, the “state compulsion” test, the “nexus” test, and the “joint action” test. Lugar at 939, 102 S.Ct. at 2754-2755 .
In Blum v. Yaretsky, 457 U.S. 991 , 102 S.Ct. 2777 , the Court further elaborated that state action may be found in the conduct of a private entity when one of three elements is present:
‘[Tjhere is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.’ ... [The State] 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 ... The private entity has exercised powers that are ‘traditionally the exclusive prerogative of the State.’
Blum at 1004-1005 , 102 S.Ct. at 2786 (citations omitted).
Unlike the majority, I do not think Byrne v. Kysar, 347 F.2d 734 (7th Cir.1965), controls this case. Spencer was committed under the emergency involuntary commitment procedures contained in Section 3-600 et seq. while the plaintiff in Byrne was committed pursuant to court order, now Section 3-700 et seq. The physician in *1388 Byrne merely provided the certificate to fulfill the medical witness requirement for the execution of a petition to initiate a judicial inquiry into the mental health of the plaintiff. Byrne at 736 .
The distinction is significant because unlike Dr. Lee, the physician in Byrne was no more than an expert witness in the adjudication of the plaintiff for involuntary commitment. The certificate executed by the physician in Byrne was insufficient to cause the detention of the patient for up to eight days prior to a hearing. The authority to deprive the patient of his liberty rests in the court under the statute in Byrne whereas the private physician possesses that authority in the emergency commitment procedure. Since the physician’s action in Byrne is insufficient to commit and treat a patient on an emergency basis, the physician is not a state actor. Similar conclusions have been reached by other courts construing statutes which give physicians authority to execute an application which initiates the judicial machinery for committing a patient. See, e.g., Willacy v. Lewis, 598 F.Supp. 346, 348 (D.D.C.1984), and cases cited therein.
In reaching its conclusion that the physician’s participation in the emergency commitment procedure does not constitute state action, the majority applies the public function test from Flagg Bros. v. Brooks, 436 U.S. 149 , 98 S.Ct. 1729 , to determine whether the involuntary commitment of patients is a traditional, exclusively sovereign function which has merely been delegated to a private actor. If such a delegation has been made, the state cannot escape responsibility for constitutional deprivations caused by private parties acting under the delegation. West v. Atkins, — U.S. -, 108 S.Ct. 2250, 2259 , 101 L.Ed.2d 40 (1988).
As support for its decision, the majority traces the historical roots of involuntary commitment, concluding that since the commitment of the mentally ill has never been the exclusive prerogative or traditional function of the state, it is not state action when performed by a private entity. However interesting this history lesson may be, the more relevant question for determining whether state action exists is not whether private citizens were capable of unilaterally committing the mentally ill in the days when Bedlam existed in England, but whether under the present law private citizens are capable of depriving individuals of their liberty to the same extent as may the state or whether the state has a superior, unique authority to deprive individuals of liberty in this manner, an authority not inured in the general citizenry. Indeed, as the majority readily concedes, every public function has an analogous private function in history. The majority’s opinion, nonetheless, assumes as a premise of its argument that what constitutes a public function is relatively stagnant over time. It may have been the case that in the time of Bedlam the rights of the mentally ill were not recognized and protected to the same extent they are today, as were the rights of minorities prior to the Thirteenth and Fourteenth Amendments. Illinois has altered the course of history by affirmatively recognizing the rights of the mentally ill through its enactment of Chapter II of the Illinois Mental Health and Developmental Disabilities Code.
The majority finds further support for its conclusion that confinement of the mentally ill does not constitute state action by analogy to citizen’s arrest. The argument is that since citizens are capable of depriving individuals of personal liberty when they have a reasonable belief that an offense is being committed without becoming state actors, then the deprivation of liberty is not an exclusive state function. The analogy is faulty. Although the citizen may use reasonable force to prevent the commission of an offense, the citizen's right to make an arrest, now codified in Ill.Rev.Stat. ch. 38, § 107-3, is not coextensive with that of the state. The citizen’s role in such an arrest involves that minimal amount of restraint on the suspect’s liberty necessary to prevent the commission of an offense or escape of an offender. The line is one of degree. A citizen performing an arrest may only detain a suspect until law enforcement agents are available, while a physician may detain and treat an involun *1389 tarily committed patient for up to eight days without a hearing.
The analogy to citizen’s arrest is further inappropriate because prior to taking a suspect into custody based on the citizen’s complaint, a police officer must make an independent determination of reasonable grounds to believe the suspect has committed or is committing an offense. A private citizen could not cause an individual to be confined for up to eight days, as may a physician pursuant to Illinois law, unless the police had also found reasonable grounds for the arrest and detention of the individual. Ill.Rev.Stat. ch. 38, § 107-2(c). Under the mental health code, the sheriff is under a duty to take custody of and transport the patient based solely upon presentation of the petition and certificate, obviating the need for an independent determination of mental illness by the sheriff. The information provided by the citizen making or directing the arrest will often form a portion of the basis of the police officer's reasonable grounds determination. However, were the police officer to arrest a suspect solely on the word of the citizen without making a determination of credibility sufficient to satisfy the officer’s reasonable grounds requirement, the officer would no doubt be guilty of false arrest and the citizen of false imprisonment.
In Smith v. Brookshire Bros., Inc., 519 F.2d 93 (5th Cir.1975), certiorari denied, 424 U.S. 915 , 96 S.Ct. 1115 , 47 L.Ed.2d 320 (1976), the failure by the police to establish independently that probable cause existed to detain a suspected shoplifter, relying solely on the conclusory statements of the store employees, resulted in a finding that the store employees were state actors due to the existence of an implicit agreement with the police to arrest solely on the basis of the merchant’s information. “An arrest by an officer caused or procured by a private person is the same as an arrest by the private person.... Where the arresting officer relies solely on the information which the defendant’s employee gave him in making the arrest, the private party defendant may be held liable for false imprisonment.” Dutton v. Roo-Mac, Inc., 100 Ill.App.3d 116 , 55 Ill.Dec. 458 , 426 N.E.2d 604 (1981). Likewise in Lugar, a private citizen was found to be a state actor where, pursuant to state statute, sheriffs attached property on the ex parte application of a private party.
The examples of citizen’s arrest and other self-help remedies referred to by the majority are also distinguishable on the basis of the interest that these remedies serve. Whereas the physician acts in the interest of the public in executing a certificate authorizing emergency commitment, self-help remedies fulfill the private property interest of the individual. As Judge Gesell reasoned in addressing the question of whether state action existed in the physician’s detention and application for admission of the allegedly mentally ill plaintiff: “A physician who detains an individual ‘likely to injure himself or others’ ..., by contrast, is not simply availing himself of a ‘self-help’ remedy with the acquiescence of the state; instead, the function he performs is more akin to the state’s power and duty to protect against threats to the general public and to care for those unable to care for themselves.” Willacy v. Lewis at 349.
It is clear from the statutory framework that no private individual may commit a patient to a mental health institution for treatment on an emergency basis without a prior determination by a qualified physician or mental health facility that the patient warrants confinement. In the commitment procedure, the physician’s certificate serves a quasi-judicial function correlative to an arrest warrant issued by a judge authorizing the seizure of a suspect. This Court recognized the nature of the physician’s function in the commitment process in Byrne, 347 F.2d at 736 , where doctors, who were members of a court-appointed committee, were held to have performed a quasi-judicial function in examining and recommending commitment of the patient. Under the Illinois mental health code, the state has delegated its adjudicatory determination in the emergency context to the physician, empowering the physician to use the force of state law enforcement agencies to confine any individual the physician *1390 determines to be in need of emergency commitment.
This reasoning was used in Burch v. Apalachee Community Mental Health Services, Inc., 840 F.2d 797 (11th Cir.1988) (en banc). In Burch , the plaintiff alleged that a concerned citizen found the plaintiff wandering on the side of the highway and took him to a private community mental health facility designated by Florida as capable of receiving patients suffering from mental illness. While in a psychotic state, at the request of the private facility, Burch signed a form for voluntary admission and treatment. After a stay of three days, the private facility transferred him for further treatment to Florida State Hospital. Throughout his 152 days at the private facility and the hospital, the plaintiff was never accorded a hearing at which to challenge his commitment in violation of Florida law requiring the release, commencement of involuntary commitment procedures, or the voluntary express, informed consent of the patient to evaluation or treatment. Since Burch was under the influence of psychotropic drugs when his signature for commitment was procured, his consent was neither voluntary nor informed as required under the statute. After concluding that the plaintiffs complaint alleged a deprivation of liberty without due process of law, the court applied the Lugar test to determine the state action requirement of Section 1983. Writing for the plurality, Judge Frank Johnson explained that the hospitals’ actions constituted state action because “[t]he appellees deprived Burch of his liberty in a way not available to a private citizen.” Burch at 803 . In concurring with Judge Johnson’s opinion, Judge Clark further stated that the two hospitals’ "deprivation of Burch’s freedom was authorized and done in the course of their employment as mental health professionals acting under color of and pursuant to Florida law. Their responsibility and consequent liability under § 1983 is no different from that of police officers who search a citizen’s home, arrest the citizen and detain him at the jail, all without a warrant or proceeding before a magistrate.” Burch at 805, n. 2 .
Recognizing that the plaintiff in Burch was detained by the two defendant hospitals for a much greater amount of time than was Spencer, the reasoning of Burch nonetheless applies with equal force to this case. Just as in Burch no private citizen could detain an individual in a mental health institution for 152 days, similarly no citizen can commit an individual in Illinois for eight days without a hearing. In both cases, only the physicians and hospitals were capable of depriving the plaintiffs of their liberty for the respective amounts of time.
Two district courts have reached the same conclusion construing similar statutes. In Plain v. Flicker, 645 F.Supp. 898 (D.N.J.1986), the court, criticizing the “rudimentary analysis” of this Court in Byrne , found state action in the conduct of two physicians who certified the emergency involuntary commitment of the plaintiff for twenty days prior to a hearing. An emergency involuntary commitment is appropriate under New Jersey law “where the condition of the patient, in the judgment of the certifying physicians, is such that the patient should be placed under immediate restraint and confinement in an institution, and where it is impossible to obtain an order of temporary commitment.” N.J.S.A. 30:4-38. The New Jersey emergency commitment statute required the signatures of two physicians “of reputable character” qualified as “practicing physicians” in order to commit an individual. N.J.S.A. 30:4-29. The presentation of the certificates and complaint to the chief executive of the mental health institution by the person seeking the involuntary commitment became sufficient to detain the patient for up to twenty days without a hearing. N.J.S.A. 30:4-38.
The court held that the physicians’ participation in the involuntary commitment procedure constituted state action because the physicians were performing a public function. “The state could have developed its statutory scheme to require state public health doctors or state hospital physicians to make competence determinations, just as state actors are required to determine the *1391 need of quarantine. Instead it has delegated to physicians its police power to certify institutionalization for up to 20 days whether the physicians are in private practice or are public employees.” Plain at 908 .
A similar conclusion was reached by the court in Davenport v. Saint Mary Hospital, 633 F.Supp. 1228 (E.D.Pa.1986). The statute in question allowed a physician to detain a patient involuntarily for up to 120 hours if the physician determined that the patient was severely mentally disabled and in need of emergency treatment. Pa.Stat.Ann. tit. 50, § 7302(b), (d) (Purdon 1985). The court found that the involvement of the physicians and hospitals in the commitment procedure implicated state action. “In contrast to the lack of state involvement in a private individual’s decision to utilize state law to resolve a private dispute, ... Pennsylvania’s delegation of authority to the hospital defendants, if established, potentially implicates the state in their decisions. Courts have held that when the state gives a select individual or group powers that are traditionally exercised by the state and not possessed by the general citizenry, a person exercising these powers is ‘clothed with the authority of state law,’ ... and may therefore be deemed a state actor.” Davenport at 1237 (citations omitted). In contrast to the majority in this case, the district court in Davenport did not find that the citizenry possesses the same authority to commit involuntarily an individual as does the state.
Spencer does not, however, argue that a private person becomes a state actor by completing a petition setting forth the reasons for believing an individual is in need of involuntary treatment as part of the requisite commitment documents. Neither the private person performing a citizen’s arrest nor a private person completing the petition for commitment is acting on behalf of the state. In contrast, the physician who completes the certificate which triggers the involuntary commitment procedure makes a determination similar to that of a police officer who must find reasonable grounds to believe an offense has been committed in order to keep a suspect in custody after a citizen transports the suspect to the law enforcement agency, or requests that a policeman take custody of the suspect. Both the physician and the police represent the state in making the essential respective factual determinations that the individual should be deprived of his personal liberty interest pending a judicial hearing.
B. Participation of State Officials
In addition to the Flagg Bros, test which focuses on the nature of the service purported to be traditionally a state function, state action may be found where private persons engage in joint activity with state officials. Adickes v. S.H. Kress and Co., 398 U.S. 144, 152 , 90 S.Ct. 1598, 1605 , 26 L.Ed.2d 142 (1970). “Conspiracy” with a private actor may transform such purely private activity into state action through the participation of the state officials using the authority they possess by virtue of the state.
The majority’s example of citizen’s arrest may even become subject to challenge as state action under Section 1983 when two factors are present: (1) In detaining the suspect, the citizen acts in accordance with a preexisting plan between the citizen and police; and (2) that plan’s content must involve the citizen’s exercise of functions exclusively reserved to the state. Klimzak v. City of Chicago, 539 F.Supp. 221 (N.D.Ill.1982). Accordingly, where police routinely arrested suspected shoplifters based solely on a shopkeeper’s statement without independent investigation, the involvement of the police was sufficient to transform the merchant into a state actor for purposes of Section 1983. Smith v. Brookshire Bros., Inc., 519 F.2d 93 (5th Cir.1975).
In his pro se complaint, as indicated by the majority opinion, Spencer does not specifically allege a “conspiracy” with police officers in his emergency involuntary commitment at St. Elizabeth Hospital. Indeed, it would be surprising if a pro se plaintiff with a history of mental illness had sufficient working knowledge of the law to plead the legal phrases which compose the elements of a Section 1983 action. The *1392 Court should not penalize Spencer for his inartfully pleaded complaints and subsequent motions. Nonetheless, the majority summarily disposes of this claim due to Spencer’s inability to name police officers as defendants or mention the involvement of the police with sufficient frequency. Given the Court’s obligation to construe Spencer’s complaint liberally and dismiss the complaint only if he can prove no set of facts which would entitle him to relief, Spencer has sufficiently alleged the involvement of the Danville Police Department to sustain defendants’ motion to dismiss.
Spencer initially implicates the involvement of the Danville Police in his complaint in which he alleged the “false arrest by the Danville Police Department.” In his motion for an injunction, Spencer again alleges an “arrest while seeking admission.” Spencer also refers to an arrest in his more definite and complete statement ordered by the district court. Finally, the medical records attached to Spencer’s more definite statement which were completed by Dr. Lee and other members of the St. Elizabeth staff indicate that Spencer was brought to the hospital by the police.
As the majority correctly notes, the mere invocation of statutory remedies does not of itself transform private activity into state action. See, e.g., Earnest v. Lowentritt, 690 F.2d 1198 (5th Cir.1982) (no state action was found by individual invoking mortgage foreclosure law without state official being involved). However, Spencer’s allegations of the involvement of the police in his commitment are no different than those in Lugar where the sheriff assisted the plaintiff in attaching property. Similarly, in Del’s Big Saver Foods, Inc. v. Carpenter Cook, Inc., 795 F.2d 1344 (7th Cir.1986), the mere presence of a sheriff while private parties executed an ex parte order of attachment was sufficient to transform the private parties into “deputy sheriffs pro tem.” Del’s Big Saver at 1346. The fact that the order to repossess collateral was executed by the private parties without calling on the sheriff did not distinguish the case from Lugar. Likewise, the mere presence of the police while Spencer was detained at St. Elizabeth Hospital is sufficient participation to constitute state action.
II. TREATMENT
Spencer alleges that the mistreatment he received from defendants during his emergency commitment amounted to a deprivation of his liberty interest without due process of law. As noted earlier, the Supreme Court has recognized the rights of mentally retarded patients committed involuntarily in Youngberg v. Romeo, 457 U.S. 307 , 102 S.Ct. 2452 . In Youngberg , a mentally retarded respondent was involuntarily committed to a Pennsylvania state institution. As a result of the mistreatment he received, his mother filed an action on his behalf under Section 1983 naming the institution as defendant. The Court determined that the respondent was entitled to “constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by those interests.” 457 U.S. at 324, 102 S.Ct. at 2462. In his concurrence, Justice Black-mun notes a distinction between “care” and “treatment,” leaving open the question whether treatment alone raises the same due process concerns. Youngberg at 318 and n. 23, 102 S.Ct. at 2459 and n. 23 (Blackmun, J., concurring).
Spencer raises similar claims of mistreatment during the period of his involuntary commitment at St. Elizabeth Hospital. However, unlike Romeo, Spencer was treated at a private facility. Illinois does not distinguish between the two types of facilities in recognizing its responsibility to care for the mentally disabled by regulating both public and private hospitals. The Mental Health Code guarantees that:
A recipient of services shall be provided with adequate and humane care and services in the least restrictive environment, pursuant to an individual services plan, which shall be formulated and periodically reviewed with the participation of the recipient to the extent feasible and, where appropriate, such recipient’s nearest of kin or guardian.
*1393 Ill.Rev.Stat. ch. 9IV2, § 2-102(a) (Smith-Hurd 1988). This special care takes place at a supervised “mental health facility,” which:
means any licensed private hospital, institution, or facility or section thereof, and any facility, or section thereof, operated by the State or a political subdivision thereof for the treatment of persons who are mentally ill and includes all hospitals, institutions, clinics, evaluation facilities, and mental health centers which provide treatment for such persons.
Ill.Rev.Stat. ch. 9IV2, § 1-114 (Smith-Hurd 1988) (emphasis added). The extent of the state’s regulation may be illustrated through the statutory rules governing the care and treatment of mentally ill in both public and private institutions. See, e.g., Ill.Rev.Stat. ch. 9D/2, § 2-107 (right to refuse medication); Ill.Rev.Stat. ch. 91 ¥2, § 2-108 (use of restraints); Ill.Rev.Stat. ch. 9IV2, § 2-109 (use of seclusion); Ill.Rev. Stat. ch. 9IV2, § 2-110 (use of electro-con-vulsion therapy or psychosurgery); Ill.Rev.Stat. ch. 9IV2, § 2-111 (determination of when medical or dental emergency exists so that patient’s consent is not required).
Illinois has enacted the above regulations to cover private mental health care facilities. By accepting the state's delegated custodial responsibility to care for mentally ill persons such as Spencer, St. Elizabeth Hospital must not be allowed to absolve itself of these responsibilities by claiming that as a private entity it is not liable for any constitutional deprivation caused by its policies in dealing with patients.
The majority summarily dispenses with Spencer’s claim that the treatment he received during his emergency involuntary commitment at St. Elizabeth Hospital constitutes state action for purposes of his Section 1988 claim, reasoning that the treatment of the ill is generally not an exclusive state function even when the state chooses to fund such care. While this proposition is indeed correct, Spencer’s treatment is distinguishable from the treatment provided to other ill persons. Spencer’s treatments with prolixin injections, allegedly resulting in his suffering incapacitating alkathesia, were forcibly administered during his involuntary commitment at St. Elizabeth Hospital. His involuntary commitment and subsequent treatment were procured by Dr. Lee pursuant to the authority delegated to him by the state under the mental health code. The treatment of Spencer by Dr. Lee and St. Elizabeth Hospital constitutes state action under both the “public function” and “nexus” tests.
In the case of Milonas v. Williams, 691 F.2d 931 (10th Cir.1982), certiorari denied, 460 U.S. 1069 , 103 S.Ct. 1524 , 75 L.Ed.2d 947 , the court concluded that the treatment by a private school of children with behavioral problems constituted conduct under color of state law. In Milonas, many of the students had been involuntarily assigned by the state courts or agencies to the defendant private school for treatment and education. The school was funded in part by the federal and state governments and subject to significant state regulation. The Court concluded that “there was a sufficiently close nexus between the states sending boys to the school and the conduct of the school authorities so as to support a claim under Section 1983.” Milonas at 940. The court distinguished Rendell-Baker v. Kohn, 457 U.S. 830 , 102 S.Ct. 2764 , relied on here by the majority, as holding that the actions of the defendant school in making personnel decisions, as opposed to treatment of its students, cannot be attributed to the state. Milonas at 940. The Milonas court reasoned that a personnel decision by a state-funded and state-regulated school may not constitute state action because it is not sufficiently interrelated with the state-regulated subject matter — education of maladjusted students. However, the treatment of students was sufficiently related to the function of the school to attribute the school’s treatment of the students to the state. Similarly, the involuntary commitment of Spencer by the state and the significant regulation of St. Elizabeth Hospital form a sufficiently close nexus with the state to constitute state action.
*1394 In Ruffler v. Phelps Memorial Hospital, 453 F.Supp. 1062 (S.D.N.Y.1978), the court held that the treatment of the mentally ill by a private hospital is a delegated state function, relying on the extensive regulation of mental health care providers and the explicit statutory assumption by the state of responsibility for the mentally incompetent. Quoting the Supreme Court from O’Connor v. Donaldson, 422 U.S. 563, 582-583 , 95 S.Ct. 2486, 2496-2498 , the Ruffler court emphasized the historical tradition of state involvement with involuntary civil commitment:
There can be little doubt that in the exercise of its police power a State may confine individuals solely to protect society ... Additionally, the States are vested with the historic parens patriae power, including the duty to protect “persons under legal disabilities to act for themselves.” ... The classic example of this role is when a State undertakes to act as “ ‘the general guardian of all infants, idiots, and lunatics.’ ” (Burger, Ch. J., concurring) (citations omitted).
Ruffler at 1070 .
In Fialkowski v. Greenwich Home for Children, Inc., 683 F.Supp. 103 (E.D.Pa.1987), the court found the treatment by a private hospital of a mentally retarded patient to constitute state action in spite of the fact that the patient sought admission voluntarily. “[W]hen a state takes on the responsibility to care for its retarded citizens by institutionalizing them, it assumes an affirmative duty, imposed by the due process clause of the fourteenth amendment, for the individuals’ care and well-being. This includes the duty to provide reasonable care and safe surroundings and conditions. Where the state chooses to delegate these responsibilities, and an institution or other private entity chooses to assume them, neither the state nor the private entity may assert that the entity’s acts and omissions do not occur under color of state law.” Fialkowski at 105 (citations omitted). Similarly, Spencer’s treatment by St. Elizabeth Hospital performing the state’s function in caring for the mentally ill sufficiently implicates state action.
In my opinion, the judgment should be reversed and the cause remanded for further proceedings.
. Counsel for Dr. Lee assert in their Supplemental Brief that Dr. Lee did not sign the physician’s certificate used for Spencer’s involuntary commitment (Supp. Br. at 5). This statement is supported by Spencer’s 1984 medical records attached to his more definite statement submitted to the district court on November 19, 1987. However, Spencer alleges that Dr. Lee was involved in his involuntary commitment in both 1982 and 1984 (Pl. Br. at 3). Spencer’s 1982 medical records were not submitted to the district court prior to this appeal. It is premature to resolve this factual dispute pursuant to a motion to dismiss. Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir.1978). The determination of Dr. Lee’s role in the 1982 commitment of Spencer is a factual issue properly postponed until trial. In addition to his role in Spencer's commitment, Dr. Lee remains potentially liable under Section 1983 for the treatment of Spencer in 1982 and 1984.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478567. Public record. Not legal advice.