Opposition Brief — Recovery Innovations, Inc., et al., Petitioners v. Kenneth Rawson

Supreme Court briefJul 9, 2021

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No. 20-1287

In the Supreme Court of the United States

--------------------------------- ♦ --------------------------------RECOVERY INNOVATIONS, INC.; SAMI FRENCH;

JENNIFER CLINGENPEEL; AND VASANT HALARNAKAR,

Petitioners,

KENNETH RAWSON,

Respondent.

--------------------------------- ♦ --------------------------------On Petition for Writ of Certiorari

to the United States Court of Appeals for the Ninth Circuit

--------------------------------- ♦ --------------------------------BRIEF IN OPPOSITION

--------------------------------- ♦ --------------------------------*Timothy K. Ford

Jesse Wing

MacDONALD, HOAGUE & BAYLESS

705 Second Avenue, #1500

Seattle, Washington 98104

(206) 622-1604

timf@mhb.com

jessew@mhb.com

Sam Kramer

MADIA LAW LLC

323 Washington Avenue N., #200

Minneapolis, Minnesota 55401

Attorneys for Respondent

*Counsel of Record

11310.02 of276701

QUESTION PRESENTED

The Court of Appeals panel below found that the petitioners acted

under color of state law because of several unusual aspects of their role in the

involuntary commitment process prescribed by the applicable state law in

2015. Because of that, and because the relevant record was not fully

developed, the panel “declined to resolve” the broader issue of whether

ostensibly “private medical professionals involved in longer term, courtordered involuntary commitment perform a public function, either in general

terms or specifically in the State of Washington.” Pet. App. 16n.8. The

petition presently before the Court nonetheless seeks review of that broader

issue: “[w]hether … private healthcare providers become state actors … when

they provide mental health services to a person … under the state’s

involuntary commitment law.” Petition i. The question thus presented is:

Whether the Court should grant review to address a broad legal issue

that the court below did not reach because the case was resolved on

narrower, case-specific grounds.

STATEMENT OF ADDITIONAL RELATED CASE

In re Detention of K.R., (Washington Court of Appeals No. 47320–8–II),

reported at 195 Wn. App. 843, 381 P.3d 158 (2016) (Resp. App. A1-A6).

11310.02 of276701

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................. i

STATEMENT OF ADDITIONAL RELATED CASE ................................... ii

INTRODUCTION ...........................................................................................1

ADDITIONAL OPINION BELOW ................................................................3

ADDITIONAL STATE STATUTES INVOLVED ..........................................4

STATEMENT OF THE CASE .......................................................................5

REASONS FOR DENYING THE WRIT .....................................................10

II.

THE DECISION BELOW NEITHER CREATES NOR

REVEALS ANY CONFLICT AMONG THE CIRCUITS,

BECAUSE THE DEFENDANTS’ ACTIONS IN THIS CASE

DIFFERED SIGNIFICANTLY FROM THOSE OF THE

DEFENDANTS IN THE CASES PETITIONERS CITE ..................10

Petitioners acted as “the State” jointly with a

state official .............................................................................13

Petitioners carried out government and court orders

and performed a function for which the state was

constitutionally responsible ....................................................18

Petitioners operated a facility whose purpose was the

involuntary confinement and treatment of people

pursuant to orders of the state courts and officials; and

they did so on property of a state hospital where

people have been confined under such orders for more

than a century .........................................................................24

THIS CASE IS NOT A GOOD VEHICLE THROUGH

WHICH TO REEXAMINE OR REVISE THE LAW OF

STATE ACTION ................................................................................26

CONCLUSION .............................................................................................29

iii

11310.02 of276701

RESPONDENT’S APPENDIX

TABLE OF CONTENTS

Page

In re Detention of K.R., 195 Wn. App. 843,

381 P.3d 158 (2016) .................................................................. Resp. App. A1

Versions of the Revised Code of Washington

Provisions Cited in the Petition in Force in

March and April, 2015 ............................................................. Resp. App. A7

11310.02 of276701

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40 (1999) ............................................................................................ 8

Ancata v. Prison Health Servs., Inc.,

769 F.2d 700 (11th Cir. 1985) ........................................................................ 22

Beltran-Serrano v. Tacoma,

193 Wn.2d 537, 442 P.3d 608 (2019) ............................................................. 23

Blum v. Yaretsky,

457 U.S. 991 (1982) ........................................................................................ 13

Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass’n,

531 U.S. 288 (2001) .................................................................................. 17, 26

Brown v. Jensen,

572 F. Supp. 193 ............................................................................................ 23

Burton v. Wilmington Parking Authority,

365 U.S. 715 (1961) ........................................................................................ 25

Carl v. Muskegon Cty.,

763 F.3d 592 (6th Cir. 2014) .......................................................................... 21

Caviness v. Horizon Cmty. Learning Ctr., Inc.,

590 F.3d 806 (9th Cir. 2010) ............................................................................ 8

Conner v. Salina Reg'l Health Ctr.,

56 F. App’x 898 (10th Cir. 2003) ................................................................... 11

Correctional Servs. Corp. v. Malesko,

534 U.S. 61 (2001) .......................................................................................... 22

Currie v. Chhabra,

728 F.3d 626 (7th Cir. 2013) .......................................................................... 21

Davenport v. Saint Mary Hosp.,

633 F. Supp. 1228 (E.D. Pa. 1986) ................................................................ 23

Davison v. Randall,

912 F.3d 666 (4th Cir. 2019) .......................................................................... 10

Doe v. Rosenberg,

996 F. Supp. 343 (S.D.N.Y. 1998) .......................................................... passim

Ellison v. Garbarino,

48 F.3d 192 (6th Cir. 1995) ................................................................ 11, 18, 19

Estades-Negroni v. CPC Hosp. San Juan Capestrano,

412 F.3d 1 (1st Cir. 2005) ...................................................................... passim

Fialkowski v. Greenwich Home for Children, Inc.,

683 F.Supp. 103 (E.D.Pa. 1987) .................................................................... 21

Herrold v. Case,

42 Wn. 2d 912, 259 P.2d 830 (1953) .............................................................. 13

11310.02 of276701

Hood v. King County,

743 F. App’x 79 (9th Cir. 2018) ..................................................................... 12

In re Detention of K.R.,

195 Wn. App. 843 (2016)........................................................................ passim

In re Detention of S.E.,

199 Wn. App. 609 (2017)................................................................................ 23

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974) .................................................................................... 9, 17

Jensen v. Lane County,

222 F.3d 570 (9th Cir. 2000) .................................................................. passim

Leeks v. Cunningham,

997 F.2d 1330 (11th Cir. 1993) ...................................................................... 21

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982) .................................................................................. 17, 26

Manhattan Community Access Corp. v. Halleck,

139 S. Ct. 1921 (2019) .................................................................................... 17

McGugan v. Aldana-Bernier,

752 F.3d 224 (2d Cir. 2014) ................................................................... passim

Minneci v. Pollard,

565 U.S. 118 (2012) ........................................................................................ 22

Moore v. Wyo. Med. Ctr.,

825 F.Supp. 1531 (D.Wyo. 1993) ................................................................... 11

Pino v. Higgs,

75 F.3d 1461 (10th Cir. 1996) ........................................................................ 18

Plain v. Flicker,

645 F. Supp. 898 (D.N.J. 1986) ..................................................................... 23

Pollard v. The GEO Grp., Inc.,

629 F.3d 843 (9th Cir. 2010) .......................................................................... 22

Richardson v. McKnight,

521 U.S. 399 (1997) ........................................................................................ 22

Rockwell v. Cape Cod Hosp.,

26 F.3d 254 (1st Cir. 1994) ...................................................................... 18, 23

Rodriguez v. Plymouth Ambulance Serv.,

577 F.3d 816 (7th Cir. 2009) .................................................................... 10, 11

Rosborough v. Mgmt. & Training Corp.,

350 F.3d 459 (5th Cir. 2003) .......................................................................... 22

Rubenstein v. Benedictine Hosp.,

790 F.Supp. 396 (N.D.N.Y. 1992) .................................................................. 11

Ruffler v. Phelps Mem’l Hosp.,

453 F. Supp. 1062 (S.D.N.Y. 1978) ................................................................ 23

Ruhlmann v. Ulster County Dep't of Soc. Servs.,

234 F.Supp.2d 140, (N.D.N.Y. 2002) ............................................................. 11

S.P. v. City of Takoma Park, Md.,

134 F.3d 260 (4th Cir. 1998) .................................................................... 11, 18

11310.02 of276701

Sanchez v. Oliver,

995 F.3d 461 (5th Cir. 2021) .......................................................................... 21

Schorr v. Borough of Lemoyne,

265 F. Supp. 2d 488 (M.D. Pa. 2003)............................................................. 11

Skelton v. Pri–Cor, Inc.,

963 F.2d 100 (6th Cir. 1991) .......................................................................... 22

Smith v. Cochran,

339 F.3d 1205 (10th Cir. 2003) ...................................................................... 22

Spencer v. Lee,

864 F.2d 1376 (7th Cir. 1989) ........................................................................ 19

Street v. Corrections Corp. of America,

102 F.3d 810 (6th Cir. 1996) .......................................................................... 22

Sykes v. Bank of America,

723 F.3d 399 (2d Cir. 2013) ........................................................................... 10

Tewksbury v. Dowling,

169 F.Supp.2d 103 (E.D.N.Y. 2001) .............................................................. 11

U.S. v. Esquenazi,

752 F.3d 912 (11th Cir. 2014) ........................................................................ 10

U.S. v. Miller,

982 F.3d 412 (6th Cir. 2020) .......................................................................... 10

West v. Atkins,

487 U.S. 42 (1988) .......................................................................... 2, 19, 20, 21

Willacy v. Lewis,

598 F. Supp. 346 (D.D.C. 1984) ..................................................................... 16

Statutes

28 U.S.C. 1367(c) ................................................................................................. 8

42 U.S.C. § 1983 ................................................................................................ 22

RCW § 71.05.300 ................................................................................................. 6

RCW §§ 71.05.170.......................................................................................... 6, 19

RCW §§ 71.05.230(8) ........................................................................................... 6

RCW 36.27.005 .................................................................................................. 15

RCW 36.27.020 .................................................................................................. 15

RCW 71.05 ......................................................................................................... 24

RCW 71.05.010 .................................................................................................... 4

RCW 71.05.020 .................................................................................................... 4

RCW 71.05.130 .......................................................................................... passim

RCW 71.05.201 .................................................................................................. 15

RCW 71.05.210(1), (2) ....................................................................................... 19

RCW 71.05.230(1), (4) ....................................................................................... 15

RCW 71.05.237 .............................................................................................. 4, 13

RCW 71.05.310 .............................................................................................. 7, 20

vii

11310.02 of276701

INTRODUCTION

There is no compelling reason to review the unanimous panel decision

below. It neither creates a circuit split, nor conflicts with this Court’s

decisions, nor presents a novel or important federal question. Rule 10.

Washington’s involuntary commitment system is unusual if not unique, and

the functions within it that petitioner Recovery Innovations, Inc. (“RII”) and

its employees performed differed significantly from those of the truly private

defendants in the allegedly conflicting lower court cases the petition cites.

Washington law gave the petitioners the authority to initiate and

prosecute court proceedings like the one that led to respondent Kenneth

Rawson’s prolonged wrongful confinement in the name of “the State.” See In

re Detention of K.R., 195 Wn. App. 843 (2016). Petitioners did so through,

and in consultation with, a county-employed Deputy Prosecuting Attorney

who was assigned by statute to work with them and represent them on such

matters. Two of the individual petitioners were trained in this work by the

Deputy Prosecuting Attorney; the third was a full-time state employee

moonlighting as RII’s medical director.

Petitioner RII and its employees also executed the court orders they

obtained, confining Mr. Rawson in a locked facility that RII leased from the

State of Washington for that purpose—with government funds—on the

grounds of the historic, state-owned Western State Hospital. While Mr.

Rawson was so confined, RII and its employees were wholly responsible for

his medical care, which he alleges they provided with deliberate indifference

to his rights and safety.

None of the mental health systems involved in the lower court

decisions cited in the petition were like Washington’s involuntary

commitment system in these respects. The defendants in those cases were

truly private hospitals or physicians who authorized or supported initial

short-term detentions for psychiatric evaluation. Mr. Rawson’s complaint

against RII involves only the longer term, additional 14- and 90-day

commitments that its employees sought and obtained after he was placed in

its custody for evaluation. Washington law does not allow people to be

deprived of their liberty for such extended periods without a court order, and

it does not allow private individuals or physicians—or anyone other than

county officers or employees of state- authorized and -funded “evaluation and

treatment” facilities like RII—to seek or carry out such court orders.

Moreover, none of the plaintiffs in the cases cited in the petition

claimed, as Mr. Rawson does, that they received constitutionally deficient

medical treatment while being held in custody under court order, unable to

get medical treatment themselves. The panel’s judgment that West v. Atkins,

487 U.S. 42 (1988) “unquestionably supports a finding of state action” with

respect to that aspect of Mr. Rawson’s claims (Pet. App. A-19n.10) is clearly

correct and not in conflict with any decision of another circuit.

Having found that the petitioners acted under color of state law on

these grounds, the panel below found it unnecessary to decide “whether

nominally private medical professionals involved in longer term, courtordered involuntary commitment perform a public function, either in general

terms or specifically in the State of Washington.” Pet. App. 17n.8. That left

in place Ninth Circuit authority that, in general, “mental health

commitments do not constitute a function ‘exclusively reserved to the State,’”

see Jensen v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000) (emphasis

added), belying petitioners’ claim of a split on that issue (Pet. 22-23, 35-36).

In sum, the Court of Appeals’ decision is a correct application of settled

law to a unique set of facts that provides no occasion for this Court’s review.

ADDITIONAL OPINION BELOW

In addition to the decisions cited in the petition and set out in its

appendix, the following decision of the Court of Appeals of the State of

Washington involves this case: In re Detention of K.R., 195 Wn. App. 843,

381 P.3d 15 (Wash. Ct. App. No. 47320–8–II, August 16, 2016). A copy of this

decision is appended to this brief. Resp. App. A1-A6.

ADDITIONAL STATE STATUTES INVOLVED

The provisions of the Revised Code of Washington set out in the

petition appendix (Pet. App. 110-144) are the current versions of those

statutes. However, all of them have been amended—some several times—

since the events in this case. See, e.g., Pet. App. 110-11 (RCW 71.05.010, as

amended by Wash. Laws 2020 c 302 § 1); Pet. App. 111-125 (RCW 71.05.020,

as amended by Wash. Laws 2020 c 256 § 302, c 302 §12). The statutes as

they read in early 2015 are appended to this brief. Resp. App. A7-A21.

In addition to these statutes, this case involves the following provisions

of the Revised Code of Washington:

RCW 71.05.130 (2014), which provided in relevant part:

In any judicial proceeding for involuntary commitment or detention, or

in any proceeding challenging such commitment or detention, the

prosecuting attorney for the county in which the proceeding was

initiated shall represent the individuals or agencies petitioning for

commitment or detention and shall defend all challenges to such

commitment or detention: PROVIDED, That … the attorney general

shall represent and provide legal services and advice to state hospitals

or institutions … except in proceedings initiated by such hospitals and

institutions seeking fourteen day detention.

RCW 71.05.237 (1998), which provides:

In any judicial proceeding in which a professional person has made a

recommendation regarding whether an individual should be committed

for treatment under this chapter, and the court does not follow the

recommendation, the court shall enter findings that state with

particularity its reasoning, including a finding whether the state met

its burden of proof in showing whether the person presents a likelihood

of serious harm.

STATEMENT OF THE CASE

Ken Rawson was confined and involuntarily medicated at petitioner

RII’s Western State facility after he complained to a teller at his bank about

an error in the deposit of his veterans’ benefits. See In re Detention of K.R.,

195 Wn. App. at 845 (Resp. App. A2). Mr. Rawson allegedly said to the teller

“I wonder if there is, like, people that go around messing with somebody and

that is what may be cause [sic] the—the shooting in Colorado.” Id. at Resp.

App. A3. The teller asked him to come back the next day to complete

paperwork, but when he did, he was approached by two sheriff’s deputies.

The deputies found he was carrying a handgun, which he had a permit to

carry concealed. Id. Although he had committed no crime and “did not

display or threaten anyone with his handgun” (id.), the deputies transported

him to a local hospital.

At the hospital, he was seen by a Clark County Designated Mental

Health Professional (DMHP) who—based on an investigation the Washington

Court of Appeals later held was statutorily inadequate—decided to have him

detained for a 72-hour evaluation. Id. The Court of Appeals’ decision below

describes the lengthy ordeal that followed:

The DMHP arranged for Rawson to be taken to RII’s Lakewood facility

in neighboring Pierce County. RII is a private nonprofit corporation. It

leases its Lakewood evaluation and treatment facility from the State of

Washington on the grounds of one of the State’s main psychiatric

hospitals, Western State Hospital. RII’s Medical Director at Lakewood,

[petitioner Dr. Vasant] Halarnakar, is a full-time physician at Western

State Hospital. Once at RII, Rawson was evaluated by [petitioners]

Clingenpeel and French, who prescribed medication and completed a

petition for an additional 14 days of intensive treatment, certifying

that Rawson was both “gravely disabled” and “presents a likelihood of

serious harm to others.” See RCW §§ 71.05.170, .210, .230.

They based these conclusions on their evaluations of Rawson and

information in the police report. The petition also stated that Rawson

“den[ied] [having] any problem other than the bank and police

misunderstanding.”

The court held a probable cause hearing and granted the 14-day

petition on March 10. During the 14-day commitment, Dr. Halarnakar

met with Rawson. Dr. Halarnakar’s notes indicate that Rawson was

calm, cooperative, and polite, but had pressured speech. Though

Rawson reported no symptoms of schizophrenia, Dr. Halarnakar wrote

that Rawson needed to keep taking his medication. In his second

evaluation of Rawson, Dr. Halarnakar documented only that Rawson

was argumentative and denied having a mental illness, denied needing

antipsychotic medications, and denied having suicidal or homicidal

ideations. Dr. Halarnakar nevertheless concluded that Rawson was

paranoid, had no insight, and needed further treatment.

Rawson v. Recovery Innovations, Pet. App. 3-4. During this two-week period,

Mr. Rawson was held at the RII facility under a court order which required

that he be “involuntarily detained …for not more than 14 days involuntary

treatment at Recovery Innovations E&T, or Clark County E&T.” Order dated

March 10, 2015, 9th Cir. ER 1320).

Dr. Halarnakar and French then petitioned for an additional 90-day

commitment, alleging that Rawson had “threatened, attempted, or

inflicted physical harm” upon a person or property “during the period

in custody.” See RCW §§ 71.05.230(8), .290. They recommended that

the court involuntarily commit Rawson to Western State Hospital. In

response to a later request for the specific statements that were

threatening, French conceded Rawson had made no “threatening

statements.”

Rawson exercised his right to request a jury trial, which was continued

multiple times while he remained involuntarily committed at RII. See

RCW § 71.05.300.

In preparation for the trial, Dr. Halarnakar and French communicated

extensively with the Pierce County Deputy Prosecuting Attorney

regarding discharge possibilities, current treatment methods, the

strength of the evidence against Rawson, and the theory to argue to

the jury. See RCW § 71.05.130.

Rawson v. Recovery Innovations, Pet. App. 4-5.

Meanwhile, a court-appointed expert psychiatrist evaluated Rawson

and concluded that he was not dangerous, his frustrations were not

unreasonable, and he had no symptoms related to psychosis or a mood

disorder.

On April 29, almost two months after Rawson’s arrival, RI finally

released Rawson pursuant to an attorney-negotiated agreement.

Id. Although the 14-day commitment order expired and the 90-day petition

was never acted upon, Mr. Rawson was held during this additional month

under a series of court-issued continuance orders which required him to

remain under treatment at RII’s Western State facility. See Pet. App. 5, 103;

RCW 71.05.310 (Resp. App. A18).

The year after Mr. Rawson’s release, the state Court of Appeals

reversed the commitment orders because of the DMHP’s failure to consult

with the doctors who had examined him at the hospital. In re the Detention

of K.R., 195 Wn. App. 847-48 (Resp. App. A6). Mr. Rawson then filed the

lawsuit below. His complaint made both federal and state claims. See Pet.

App. 160-62. His federal claims alleged that the petitioners had deprived

him of rights under the Fourth and Fourteenth Amendments by making false

or misleading statements in their petitions to extend his confinement,

physically confining him without legal cause, and forcibly injecting him with

psychoactive medications with deliberate indifference to his rights and safety,

all under color of state law. Pet. App. 145, 158-160.

After several rounds of summary judgment briefing, the District Court

dismissed Mr. Rawson’s federal claims, holding that the defendant/

petitioners did not engage in the challenged conduct under color of state law

because their judgment was not “overcome” by the Deputy Prosecuting

Attorney they worked with. Pet. App. 106-107. However, it denied the

defense motions for summary judgment of dismissal of Mr. Rawson’s state

law claims, which included claims of false imprisonment, medical

malpractice, and violation of the state Involuntary Treatment Act. Pet. App.

62, 64. The District Court then exercised its discretion under 28 U.S.C.

1367(c) to dismiss the pendant state claims without prejudice. Those claims

were then refiled in state court, where they have been held in abeyance

pending this appeal. See Pet. 39.

Mr. Rawson appealed from the dismissal order, and a panel of the

Ninth Circuit unanimously reversed. It began its discussion of the color of

law issue by focusing on the specific conduct the lawsuit challenged.

Before we can answer the question of whether Defendants acted under

color of law, we must identify the “specific conduct of which the

plaintiff complains.” Caviness v. Horizon Cmty. Learning Ctr., Inc., 590

F.3d 806, 812 (9th Cir. 2010) (quoting Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 51 (1999)). Here, Rawson seeks to hold

Defendants liable for certain actions relating to the 14-day and 90-day

petitions, as well as his detention and forcible medication pursuant to

the authority provided by those petitions. The specific alleged conduct

Rawson challenges includes involuntarily committing him without

legal justification, knowingly providing false information to the court,

and forcibly injecting him with antipsychotic medications without his

consent. The relevant inquiry is therefore whether Defendants’ role as

custodians, as litigants, or as medical professionals constituted state

action.

Pet. App. 7-8 (footnote omitted). The decision specifically noted that Mr.

Rawson’s claims did not challenge “his initial 72-hour confinement” pursuant

to the order of the county DMHP. Pet. App. 7n.3.

Applying and analyzing “four different general tests that may aid us in

identifying state action,” derived from this Court’s decisions, the panel

concluded:

Given the necessity of state imprimatur to continue detention, the

affirmative statutory command to render involuntary treatment, the

reliance on the State’s police and parens patriae powers, the applicable

constitutional duties, the extensive involvement of the county

prosecutor, and the leasing of their premises from the state hospital,

we conclude that “a sufficiently close nexus between the state and the

private actor” existed here “so that the action of the latter may be

fairly treated as that of the State itself.”

Pet. App. 29 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350

(1974), and Jensen v Lane County, 222 F.3d 570, 575 (9th Cir. 2000)).

Because it so concluded on these bases, the panel found it unnecessary to

reach the far broader question of whether involuntary commitment in

Washington and elsewhere always constitutes state action: “[G]iven that the

historical evidence was not directly evaluated by the district court, and that

the remainder of our analysis is sufficient to support a judgment in Rawson’s

favor, we decline to resolve the historical exclusivity question.” Pet App. 16

n.8 (citations omitted, emphasis added).

Petitioners sought rehearing, but the panel unanimously denied it, and

no circuit judge requested a vote on petitioner’s alternative petition to have

the case reheard by the full court en banc. Pet. App. 108.

REASONS FOR DENYING THE WRIT

THE DECISION BELOW NEITHER CREATES NOR REVEALS

ANY CONFLICT AMONG THE CIRCUITS, BECAUSE THE

DEFENDANTS’ ACTIONS IN THIS CASE DIFFERED

SIGNIFICANTLY FROM THOSE OF THE DEFENDANTS IN

THE CASES PETITIONERS CITE.

The Court of Appeals panel below reached its decision by reciting,

considering, and applying principles and tests for state action derived directly

from this Court’s opinions.

We have recognized at least four different general tests that may aid

us in identifying state action: “(1) public function; (2) joint action; (3)

governmental compulsion or coercion; and (4) governmental nexus.”

Pet. App. 8. Petitioners call this “an entirely different set of factors than had

previously been applied by other federal courts,” the Ninth Circuit’s “own

unique test,” and “a very different array of ‘state action’ factors” from those

applied elsewhere. Pet. 17, 22, 26. That is beyond hyperbole. Although

there are some “semantic variations,” Rodriguez v. Plymouth Ambulance

Serv., 577 F.3d 816, 823 (7th Cir. 2009), essentially the same tests are

applied in other circuits, in the cases cited in the petition and many others.1

1 Compare, McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014) (“the

‘compulsion test’ … the ‘close nexus test’ or ‘joint action test’, or … the ‘public

function test’”); Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4–5

(1st Cir. 2005) (“the state compulsion test, the nexus/joint action test, and the public

function test…. ”); Doe v. Rosenberg, 996 F. Supp. 343, 349 (S.D.N.Y. 1998), aff'd,

166 F.3d 507 (2d Cir. 1999) (“These three tests have been employed by various

courts of appeals ….”). Accord, U.S. v. Miller, 982 F.3d 412, 422 (6th Cir. 2020) (“the

Supreme Court has stated that what is fairly attributable is a matter of normative

judgment.… It … uses different factors or tests in different contexts …. a “function”

test … a “compulsion” test … a “nexus” test ….”); Davison v. Randall, 912 F.3d 666,

679–80 (4th Cir. 2019) (“a matter of normative judgment, and the criteria lack rigid

simplicity”); U.S. v. Esquenazi, 752 F.3d 912, 926–27 (11th Cir. 2014) (state action is

“a matter of normative judgment [whose] criteria lack rigid simplicity,” and relevant

factors include “significant encouragement” and “public purpose ….”); Sykes v. Bank

Petitioners rest their case on a partial handful of decisions from other

circuits—McGugan, Estades-Negroni, and Rosenberg—where the involuntary

mental health evaluation or treatment of the plaintiff was found not to have

involved state action, on the facts presented there. Pet. 26-34. They don’t

mention that other courts have reached different results applying essentially

the same tests to different facts and circumstances.

Other district courts have found state action in the context of involuntary

commitment where there was more significant interdependence or

entwinement between the state and hospital or doctors than in the cases

holding to the contrary. See, e.g., Ruhlmann v. Ulster County Dep't of Soc.

Servs., 234 F.Supp.2d 140, 165, (N.D.N.Y. 2002) (finding material issue of

fact as to whether state action issue was satisfied under the compulsion test);

Tewksbury v. Dowling, 169 F.Supp.2d 103, 109 (E.D.N.Y. 2001) (finding that

medical defendants acted jointly with state actors and the decision to commit

was not made pursuant to “independent medical judgment”); Moore v. Wyo.

Med. Ctr., 825 F.Supp. 1531 (D.Wyo. 1993); Rubenstein v. Benedictine Hosp.,

790 F.Supp. 396 (N.D.N.Y. 1992) (finding state action where the defendant

hospital had a contract with the county to provide the involuntary

commitment services at issue).

Schorr v. Borough of Lemoyne, 265 F. Supp. 2d 488, 494–95 (M.D. Pa. 2003): see also

Jensen v. Lane County, 222 F.3d at 575-76 and federal cases cited at note 12, below.

of America, 723 F.3d 399, 406 (2d Cir. 2013) (“a matter of normative judgment” so

“no one fact can function as a necessary condition … nor is any set of circumstances

absolutely sufficient.”); Rodriguez, 577 F.3d at 823–24 (there are “several tests for …

the “range of circumstances” that might constitute state action. …. We … describe

these tests as the symbiotic relationship test, the state command and

encouragement test, the joint participation doctrine and the public function test.”);

Conner v. Salina Reg'l Health Ctr., 56 F. App’x 898, 902 (10th Cir. 2003) (“’[w]hat is

fairly attributable is a matter of normative judgment …. [W]e have utilized … a

variety of approaches … the close nexus, symbiotic relationship, joint action, and

public function tests.”); S.P. v. City of Takoma Park, Md., 134 F.3d 260, 269 (4th Cir.

1998) (noting that private entities may be “regulated by the state acts under color of

state law (1) when there is close nexus, or joint action … (2) when the state has,

through extensive regulation, exercised coercive power over, or provided significant

encouragement … or (3) when the function performed … has traditionally been an

exclusive public function.”); Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir. 1995)

(“the public function test, the state compulsion test, and the nexus test.”) (Citations,

footnotes, and internal punctuation omitted throughout).

Similarly, in this case, the panel reached the result it did because of

substantial, material differences between the functions performed by the

petitioners and those of the defendants whose status was at issue in the cases

petitioners cite. It was not “an entirely different set of factors” but an

entirely different set of facts that produced the decision below.

The differences stem in large part from significant differences between

Washington law and the laws and procedures of other states—although the

unusual facts surrounding Mr. Rawson’s detention distinguish his claims

case even from others in Washington itself. See Pet. App. 14-15

(distinguishing Hood v. King County, 743 F. App’x 79 (9th Cir. 2018)).

Mr. Rawson’s complaint alleges that the petitioners violated his

constitutional rights in three ways, as to each of which their conduct, and

their authority, differed from that of the defendants in the cases relied on in

the petition. They acted on behalf of “the State,” with and through a state

deputy prosecuting attorney, in petitioning for orders that prolonged Mr.

Rawson’s confinement for almost two months beyond the 72- hour evaluation

for which he was originally committed. They held him in custody pursuant to

those orders. And while he was so held they were solely responsible for his

medical care, which they provided with deliberate indifference to his rights

and safety. See Amended Complaint, Pet. App. A-158-59.

Petitioners acted as “the State,” jointly with a state

official.

Unlike the defendants in the other-circuit cases petitioners cite, the

petitioners here actually initiated and prosecuted the court proceedings that

were required to hold Mr. Rawson for the last 52 days of his confinement.

Petitioners Clingenpeel and French were the named petitioners on the 14-day

confinement petition; Halarnakar and French were named on the 90-day

petition; both petitions identified them as agents of “Recovery Innovations

Evaluation and Treatment, a facility certified by the Department of Social

and Health Services.” See Petitions, 9th Cir. ER 1511, 1516.

In initiating these proceedings, the panel below noted that petitioners

were “required to apply state-promulgated criteria.” Resp. App. 29n.15

(contrasting Blum v. Yaretsky, 457 U.S. 991, 1006 (1982)).2 They also acted

in the name of “the State”. See In re Detention of K.R., 195 Wn. App. at 844

(Resp. App. A1) (“The State filed a petition to detain [ Kenneth Rawson] and

for a 14–day involuntary treatment.”); RCW 71.05.237 (requiring findings

regarding “whether the state met its burden of proof” in commitment

proceedings). That designation gave them the standing to go to court on a

matter in which they had no personal interest. See Herrold v. Case, 42 Wn.

2d 912, 916, 259 P.2d 830 (1953) (party whose “interests in the right asserted

does not differ from that of the public generally” lacks standing to sue).

2 The panel also recognized that petitioners “exercised professional medical

judgment, and were not statutorily required to petition for additional commitment,”

but it held that the numerous countervailing “facts weigh toward a conclusion that

they were nevertheless state actors.” Resp. App. 28-29.

Consistent with their appearance as “the State,” petitioners were

represented in these proceedings by a Pierce County Deputy Prosecuting

Attorney who was assigned to them pursuant to statute for that purpose. See

RCW 71.05.130 (1998). The prosecutor, Ken Nichols, had previously trained

petitioners French and Clingenpeel and other RII employees on petitioning

for involuntary commitments. 9th Cir. ER 1462-63. He started working with

petitioners to secure Mr. Rawson’s continued confinement the day after Mr.

Rawson arrived at RII, filing the 14-day and 90-day petitions for petitioners,

and then representing them on those petitions in court.

When the lawsuit was filed below, petitioners initially claimed their

conversations with Mr. Nichols about Mr. Rawson were protected by attorney

client privilege. When that claim was withdrawn, it was learned that Mr.

Nichols had weighed in on petitioners’ decisions regarding Mr. Rawson’s

treatment and potential discharge and discussed with them legal and medical

theories that could justify holding Mr. Rawson despite the absence of

evidence he was dangerous. See Pet. App. 38-43.3 Petitioner Halarnakar

testified in deposition that he sought Mr. Nichols’ “expert” opinion when

deciding whether to release Mr. Rawson, and when asked in deposition

whether it was “up to Nichols whether to release” Mr. Rawson, he testified

3 This joint effort was spelled out, among other places, in e mail exchanges between

Prosecutor Nichols’ and petitioners. See, e.g., Nichols to French 4/9/15: “If he would

be agree[able] to [Less Restrictive Alternative] conditions, would that work for us?”

(9th Cir. ER 1551). Nichols to Halarnakar 4/15/15 (after outside examiner found

Rawson was no danger): “We didn’t allege grave disability? Perhaps we should?”

(9th Cir. ER 1552).

that the decision was “a combination of that and consultation with … the

treatment team.” 9th Cir. ER 916-917.

Washington Prosecuting Attorneys are state and county employees

who are “attorneys authorized by law to appear for and represent the state

and the counties thereof in actions and proceedings before the courts and

judicial officers.” RCW 36.27.005. The duties of prosecutors and their

deputies include advising local legislators and other government officials as

well as representing the state and county in court. See RCW 36.27.020. RCW

71.05.130 added an additional category of state representatives whom

prosecutors are required to advise and represent: “individuals or agencies

petitioning for commitment or detention” “[i]n any judicial proceeding for

involuntary commitment or detention.” The only “individuals or agencies”

who can file petitions for 14- or 90-day involuntary commitments in

Washington state are county DMHPs and the “professional staff of the

facility providing evaluation services” like RII. See RCW 71.05.230(1), (4).4

4 In 2016, RCW 71.05.201 was amended to let family members and guardians

petition for a 72-hour evaluation (though not a 14- or 90-day commitment) when a

county DMHP declines to do so. At the same time, RCW 71.05.130 was amended to

exempt such cases from the mandate that prosecuting attorneys represent “all

individuals … petitioning for commitment or detention.” Although it postdates this

case (and involves a different kind of petition), this underscores that, unlike the laws

in the cases petitioners rely on, in 2015 Washington law did not allow anyone but a

county DMHP or an employee of an Evaluation or Treatment Center like RII to

petition for involuntary commitments of any length. It is also significant that when

private petitions were authorized prosecuting attorneys could not support them but

were assigned only to officially sanctioned petitions or detentions initiated by “the

State” through DMHPs or Evaluation and Treatment Centers like RII.

The panel decision below properly found that the “complex and

intertwined” relationship created by these laws was a mark of state action.

The county prosecutor played an outsized role in the duration of

Rawson’s detention, particularly during the pendency of Rawson’s jury

trial on the 90-day petition…. The evidence even suggests that the

prosecutor altered Dr. Halarnakar’s medical diagnosis—from

“likelihood of serious harm” to “gravely disabled”—after exposing

Defendants’ lack of evidence for the former and proposing the latter.

Regardless of whether the prosecutor “overrode” any particular

decision Dr. Halarnakar otherwise would have made, the evidence at

minimum shows that the prosecutor was heavily involved in the

decisionmaking process regarding Rawson’s detention, diagnosis, and

treatment.

…. The ITA’ s mandate that civil commitment petitions be argued only

by the county prosecutor (or state attorney general), see RCW §

71.05.130, only strengthens the conclusion that the State is a joint

participant in this enterprise. The ITA itself insinuates the State into

the process of involuntary civil commitment at issue here, regardless of

whether the treatment facility is nominally public or private….

… The prosecutor here is not advocating for the private interests of the

hospital or mental health professionals.… Instead, Defendants

cooperate with the executive arm of the State to further the State’s

interest in protecting both the public and the patient[5]… Accordingly,

the role played by the county prosecutor here, in practice and by

statute, supports a finding of state action by the Defendants.

Pet. App. 22-23 (citations omitted).

The petition here omits mention of all of this. It says nothing about

the Deputy Prosecutor’s involvement and never refers to him by title or by

name. In fact, it goes so far as to elide the panel’s reference to “the extensive

5 Cf. Willacy v. Lewis, 598 F. Supp. 346, 350 (D.D.C. 1984):

A physician who detains an individual “likely to injure himself or others” …

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.

involvement of the county prosecutor” from a purported quotation of the

Court of Appeals’ list of the “determinative factors” in its analysis.6 This

omission grossly distorts the petition’s depiction of the decision below, which

was based in large part on the fact that a state official was “a joint

participant in the enterprise” that petitioners were involved in. Pet. App. 21

(quoting Jackson, 419 U.S. at 358, and Jensen, 222 F.3d at 575). “[W]hen the

government acts jointly with the private party” is one of the core

circumstances in which this Court has said that there is state action.

Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019)

(citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 941–942 (1982)); accord,

Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288,

311 (2001) (dissenting opinion of Justice Thomas).

Nothing like this kind of joint action with a government official was

involved in any of the cases petitioners point to. See, e.g., Estades-Negroni,

412 F.3d at 2-3 (petition for involuntary hospitalization was filed by the

plaintiff’s son, who was not a defendant; the defendants were doctors who

suggested he do so or filed “documents” in support); McGugan, 752 F.3d at

228 (involuntary treatment authorized by physician certification, no court or

6 Compare Petition 18 (“‘. . . the necessity of state imprimatur to continue detention,

the affirmative statutory command to render involuntary treatment, the reliance on

the State’s police and parens patriae powers, [and] the applicable constitutional

duties . . ..’” [sic]) with Pet. App. 29 (“the necessity of state imprimatur to continue

detention, the affirmative statutory command to render involuntary treatment, the

reliance on the State’s police and parens patriae powers, the applicable

constitutional duties, the extensive involvement of the county prosecutor,

and the leasing of their premises from the state hospital ….” (Emphasis

added.)

official involvement); Rosenberg, 996 F. Supp. at 347 (same, no court or

official involved in the confinement or treatment decision).7 That alone belies

the claim that a circuit split has resulted from the decision below.

Petitioners carried out government and court orders and

performed a function for which the state was

constitutionally responsible.

None of the plaintiffs in the cases petitioners cite alleged that the

defendants there acted pursuant to a court or administrative order. In

Estades-Negroni, the court noted that the plaintiff’s “complaint [was] silent”

regarding whether a court order actually authorized her confinement, and

she signed a document “’agreeing that her commitment had been voluntary”

(though she claimed she was coerced) ….” 412 F.3d at 3 and n.6, 7 n.15.8

Similarly, in McGugan, the plaintiff was held and treated pursuant to

physicians’ certifications, not a court or administrative order, because the

7 See also, e.g., S.P. v. Takoma Park, 134 F.3d 260, 264-65 (4th Cir. 1998) (defendant

hospital and emergency room held plaintiff overnight for evaluation; no government

attorney involvement); Pino v. Higgs, 75 F.3d 1461, 1463-64 (10th Cir. 1996)

(defendant therapist called police and emergency room physicians authorized

transport to evaluation center for two days; no government attorney involvement);

Ellison, 48 F.3d at 194 (order for 4-day evaluation commitment obtained by

plaintiff’s wife); Rockwell v. Cape Cod Hosp., 26 F.3d 254, 259 (1st Cir. 1994) (noting

distinction under Massachusetts law between state action “’commitment’ requir[ing]

action by a judge” and private “temporary emergency admission” which is “left

entirely to the discretion of the person seeking admission of the mentally ill person

and the institution receiving the person ….”).

8 The Estades-Negroni opinion says in one of its footnotes that “whether the Court of

the First Instance ultimately granted the petition does not affect our inquiry into

whether Appellees are subject to suit under §1983.” 412 F.3d at 3 n.6. But that is

obviously dictum, and is contradicted by the court’s later, crucial statement that the

plaintiff was “in theory … free to seek treatment from [other] physicians from her

Plan,” id. at 7 n.15—which she plainly would not have been under court orders like

the ones in this case, which required Mr. Rawson to be held in the locked facility at

RII.

New York law applied there did not involve or require such orders. See 752

F.3d at 228; Rosenberg, 996 F.Supp. at 347 (describing New York physicianauthorized commitment procedures); see also id. at 355 (“Unlike Plaintiff in

the instant case, the prisoner in West [v. Atkins, 487 U.S. 42 (1988)], was not

free to consult a physician of his choosing.”)9

Mr. Rawson was not so free. He was confined to RII’s Western State

facility by orders issued by state officials—first, a county-employed

“Designated Mental Health Professional” (DMHP) and then a state Superior

Court judge. The “Authorization” issued by the DMHP mandated that “Any

Peace Officer or Mental Health Professional” “Take or Cause [Respondent,

Kenneth N. Rawson] To Be Taken Into Custody Forthwith” and placed in

RII’s Western State facility. See 9th Cir. ER 1485-86 (capitalization reduced).

Under Washington law, this required petitioners to “immediately accept on a

provisional basis the petition and the person” (RCW 71.05.170 (2000) [Resp.

App. A14]) and “examine[] and evaluate[]” him and provide him “such

treatment and care as his or … condition requires” for up to 72 hours (RCW

71.05.210(1), (2) (2009) [Resp. App. A14]).

9 In addition, the medical care provided to the plaintiff in Rosenberg was not at issue

there. See id. (“[i]t is not the care [the plaintiff] may have received after

commitment that [was] at issue but the decision by the Hospital Defendants to

commit [them] in the first instance.”); see also Ellison, 48 F.3d at 197 (“Ellison is not

complaining of the treatment which he received during his confinement”); Spencer v.

Lee, 864 F.2d 1376, 1380 (7th Cir. 1989)(“The issue here, it is true, is involuntary

commitment rather than treatment.”)

When the 72-hour period ran, this “Authorization” was replaced by a

Superior Court Order that said “Respondent shall be involuntarily detained

… for not more than 14 days of involuntary treatment” at RII (or an

“Evaluation and Treatment Center” in Clark County). See 9th Cir. ER 1320

(emphasis added). When the defendants later sought to have Mr. Rawson

held for 90 days beyond that date and he requested a jury trial, the Superior

Court issued a series of continuance orders which similarly required him to

remain under treatment at RII’s Western State facility. See Pet. App. 3, 103;

RCW 71.05.310 (Resp. App. A18).

On this record, the panel below correctly recognized the circumstances

were indistinguishable from those of the prisoner-plaintiff in West v. Atkins,

where this Court

held that a private contract physician rendering treatment services for

prisoners at a state prison acted under color of law. Id. at 57. Part of

the Court’s reasoning was that any deprivation effected by the private

contract physician would be necessarily “caused, in the sense relevant

for state-action inquiry, by the State’s exercise of its right to punish

[the plaintiff] by incarceration and to deny him a venue independent of

the State to obtain needed medical care.” Id. at 55.

Pet. App. 17. The panel held that West’s relevance to this case was twofold.

First, it meant that, “[a]s in West, any deprivation effected by Defendants

here was in some sense caused by the State’s exercise of its right, pursuant to

both its police powers and parens patriae powers, to deprive Rawson of his

liberty for an extended period of involuntary civil commitment.” Pet. App. 18.

Second, the panel noted that “[t]he Supreme Court has … held that private

parties may act under color of state law when they perform actions under

which the state owes constitutional obligations to those affected” and “the

State has a Fourteenth Amendment obligation toward those whom it has

ordered involuntarily committed” to provide medical care they cannot get on

their own because of their lost liberty. Pet. App. 19-20.

This was clearly correct: “a physician who acts on behalf of the State to

provide needed medical attention to a person involuntarily in state custody

(in prison or elsewhere) and prevented from otherwise obtaining it” is, by

virtue of that fact alone, a state actor. West, 487 U.S. at 58 (concurring

opinion of Justice Scalia). Lower court cases uniformly so hold. See, e.g.,

Sanchez v. Oliver, 995 F.3d 461, 466 (5th Cir. 2021) (“there is no question

that … a medical professional treating a pretrial detainee on behalf of a

governmental entity…was acting under color of state law”; accord, Carl v.

Muskegon Cty., 763 F.3d 592, 598 (6th Cir. 2014); Currie v. Chhabra, 728

F.3d 626, 629 (7th Cir. 2013); Leeks v. Cunningham, 997 F.2d 1330, 1333

(11th Cir. 1993); Fialkowski v. Greenwich Home for Children, Inc., 683

F.Supp. 103, 105 (E.D.Pa. 1987) (states have a duty to provide care to

institutionalized “retarded citizens”). No decision petitioners have cited holds

otherwise. To the contrary, those decisions note and rely on the fact that the

plaintiffs there were not prevented from seeking health care elsewhere.10

10 See Estades-Negroni, 412 F.3d at 7n.15 (“[I]n West, … the plaintiff-prisoner was

precluded by state law from seeking treatment from a physician of his own

choosing…. Here, however, … in theory, Estades was free to seek treatment from

physicians other than those associated with the Plan.”); Rosenberg, 996 F. Supp. at

355 (“Unlike Plaintiff in the instant case, the prisoner in West was not free to

consult a physician of his choosing.”).

Moreover, petitioners not only treated Mr. Rawson while he was locked

up pursuant to court order, as the private doctors did in West; they were also

the ones who locked him up. In this respect they are indistinguishable from

employees of private prisons who physically confine people, albeit pursuant to

a different sort of court order. Although this Court has never held that

private prisons operate under color of state law, it has assumed that they do,

and most lower courts have concluded so as well.11

Based on this authority, Mr. Rawson argued below that confining

persons found to be dangerous due to mental illness constitutes state action

because it is a traditional “public function,” in Washington and elsewhere.

But the panel found it unnecessary to reach or rely on this argument.

Rawson argues that Defendants acted under color of law under the

“public function” test, contending that … involuntary commitment was

an exclusively governmental function in Washington prior to the

11 See, e.g., Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 81 (2001) (dissenting

opinion of Justices Stevens, et al.) (“Under 42 U.S.C. § 1983, a state prisoner may

sue a private prison for deprivation of constitutional rights ….”); Richardson v.

McKnight, 521 U.S. 399, 413 (1997) (leaving open whether employees of a private

corporation acted under color of state law); id. at 414 (dissenting opinion of Justice

Scalia, et al.)(“private prison management firms … perform the same duties as

state-employed correctional officials … exercise the most palpable form of state

police power, and … may be sued for acting “under color of state law.”); see also

Pollard v. The GEO Grp., Inc., 629 F.3d 843, 857–58 (9th Cir. 2010) (dictum), rev’d

on other grounds sub nom. Minneci v. Pollard, 565 U.S. 118 (2012); Rosborough v.

Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003) (per curiam); Smith v.

Cochran, 339 F.3d 1205, 1215-16 (10th Cir. 2003) (“[P]ersons to whom the state

delegates its penological functions … can be held liable for violations of the Eighth

Amendment.”); Street v. Corrections Corp. of America, 102 F.3d 810, 814 (6th Cir.

1996) (private prison employees “perform[ ] the ‘traditional state function’ of

operating a prison”); Skelton v. Pri–Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991) (per

curiam); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir. 1985).

passage of the ITA in 1973[12]…. We have not previously addressed

whether nominally private medical professionals involved in longer

term, court-ordered involuntary commitment perform a public

function, either in general terms or specifically in the State of

Washington…. However, given that the historical evidence was not

directly evaluated by the district court, and that the remainder of our

analysis is sufficient to support a judgment in Rawson’s favor, we

decline to resolve the historical exclusivity question.

Pet App. 16 n.8 (emphasis added).

If the panel had reached the issue, and if it had overruled circuit

precedent that, in general, “mental health commitments do not constitute a

function ‘exclusively reserved to the State’” and are not a “public function”

(see Jensen v. Lane County, 222 F.3d at 574), it might have created an

arguable circuit split. See Estades-Negroni, 412 F.3d at 8 (“involuntary

commitment is not a function that is or has been reserved exclusively to the

state in Puerto Rico”), and cases there cited. But it didn’t, so there is no

division among the circuits on the issue for this Court to resolve.

12 See Beltran-Serrano v.

Tacoma, 193 Wn.2d 537, 550 n.9, 442 P.3d 608 (2019) (the

“detention of a person suffering from a mental illness” is a “law enforcement related

activity”); In re Detention of S.E., 199 Wn. App. 609, 616-22 (2017) (describing

history of civil commitment in Washington). Washington’s territorial laws assigned

the functions performed by petitioners to a state-employed Superintendent of the

Western State “hospital for the insane.” See Code of 1881 §§2248-49, 2264-67. In

1915, they were extended to “county physicians” in charge of county hospital

“detention wards.” Laws of 1915, c.105, § 1, at 303-04. In 1973, they were further

extended to professionals at state regulated “Evaluation and Treatment” facilities

like RII, represented by prosecuting attorneys. See Laws of 1973, c.142 §18. But

when Mr. Nichols began commitment work in the early 2000s, the petitioners he

represented were county employees. See 9th Cir. ER 632, 780.

Were review granted, respondent would respectfully submit in the

alternative that commitment for prolonged periods is a public function, at least in

Washington state. See, e.g., Plain v. Flicker, 645 F. Supp. 898, 905 (D.N.J. 1986);

Davenport v. Saint Mary Hosp., 633 F. Supp. 1228, 1234 (E.D. Pa. 1986); Brown v.

Jensen, 572 F. Supp. 193, 197 n. 1 (D. Colo. 1983); Ruffler v. Phelps Mem’l Hosp., 453

F. Supp. 1062, 1068-71 (S.D.N.Y. 1978); see also Rockwell, 26 F.3d at 259 (dictum).

Petitioners operated a facility whose purpose was the

involuntary confinement and treatment of people

pursuant to orders of state courts and officials; and they

did so on the property of a state hospital where people

have been confined under such orders for more than a

century.

The facility where petitioners confined and allegedly mistreated Mr.

Rawson was not a multifaceted public hospital that treated a variety of public

and private patients and conditions, like the ones in the cases petitioners rely

on.13 Instead, the facility was created as an E&T facility specifically to fulfill

the mandates of RCW 71.05. And petitioners “were not merely subject to

extensive regulation or subsidized by state funds” like the physicians in

Blum. Pet. App. 29. They ran a locked facility dedicated to the confinement,

evaluation, and treatment of persons whose liberty has been taken by court

or administrative orders. RII’s premises were located on the grounds of

Western State Hospital, where persons confined for mental illness have been

held since before statehood. Pet. App. 4, 27-28. It leased the property from

the state for that purpose, with government funds channeled through a

13 The Estades-Negroni opinion describes the defendant corporations only as “CPC

Hospital San Juan Capestrano … a private hospital and First Option Corporation

Puerto Rico … a private healthcare services provider”. 412 F.3d at 1-2. According to

CPC Hospital’s website, it is a nonprofit hospital that treats a variety of mental

health conditions and accepts private health insurance. See HOSPITAL SAN JUAN

CAPESTRANO, https://www.sanjuancapestrano.com (last visited 6/19/21). The opinion

in McGugan, similarly, describes the Jamaica Hospital Medical Center as “a private

hospital that receives federal funding and is licensed by the New York State Office of

Mental Health … to provide psychiatric services. 752 F.3d at 227. Its website says

it also “offers a full range of services, including pediatrics, internal medicine, family

medicine, podiatry, surgery, gastroenterology, dermatology,” and others. See

https://jamaicahospital.org/about-us/ (last visited 6/19/2021). The defendant in

Rosenberg was New York’s Columbia Presbyterian Medical Center. 996 F. Supp. at

346.

nonprofit intermediary. 9th Cir. ER 655, 684-85. Its “director,” petitioner

Halarnakar, was a full-time employee of Western State Hospital who

moonlighted at RII. See Pet. App. 22 n.12.

The panel found these unique facts significant under Burton v.

Wilmington Parking Authority, 365 U.S. 715 (1961), which it read to hold

that “state action may exist when private parties operate on public property

or in public facilities.” Pet. App. 26.

This case resembles Burton in that RII was leasing its Lakewood

premises from the State on the grounds of Western State Hospital,

which was not only clearly marked as a state hospital but was also

historic and recognizable….

While it is unclear how closely the facts of a particular case must

match Burton to find state action on that basis alone, Burton remains

instructive and there are enough similarities here to consider the

leasing of state property as a factor weighing in favor of finding state

action.

Pet. App. 27-28 (footnote omitted).

Again, petitioners try to make this factor disappear by ignoring it,

going so far as to erase the Court of Appeals’ reference to RII’s “leasing of

their premises from the state hospital” from what they represent as a list of

its “determinative factors”. Petition 18; compare Pet. App. 29; see note 6,

above. This again misrepresents the decision below and adds to the illusion

of a lower court conflict where there is none.

The panel was right to consider this a factor indicative of state action,

as common sense indicates, and in doing so it created no circuit split.

II.

THIS CASE IS NOT A GOOD VEHICLE THROUGH WHICH TO

REEXAMINE OR REVISE THE LAW OF STATE ACTION.

In the absence of a true circuit split, there is no reason to grant review

in this case. Most of the authorities that the petition cites in support of its

complaint that the law in this area is too unclear and complex are more than

twenty years old. See Petition 3, 5. Jensen v. Lane County, which set the

“close nexus/joint action” precedent on which the panel below principally

relied, was published in 2000. Nothing like the parade of horribles the

petitioners forecast has emerged since.

Even if the Court sees a need to consider revising or clarifying some

aspect of the law governing the determination of whether a private person

acts under color of state law, this case would not be a good one in which to do

so, for several reasons.

First, petitioners’ suggestion that the Court should grant review here

to “explain[] how its many distinct lines of state action precedent relate to

each other or to articulate which line of cases governs in each circumstance”

(Petition 3) is wholly unrealistic. The Court has long realized that the

assessment of whether conduct occurs under color of state law is “necessarily

fact-bound.” Lugar, 457 U.S. at 939; see Brentwood Academy, 531 U.S. at

295, and cases there cited. That is because the variety of facts and

circumstances on which the Court has had to make that assessment—let

alone the far wider variety with which the lower federal courts have been

faced—is much too great to be subsumed in a comprehensive rule. And even

if such a rule could be fashioned, it is highly unlikely to emerge from this

case. As shown above, the petitioners here performed so many different

functions which arguably constitute state action for so many different

reasons that a decision examining all those functions and all those reasons

would add more complexity and confusion to this area than it would remove.

Second, as shown above, Washington’s law is an outlier. It has

numerous features that are unusual if not unique, at least among the

statutes that have been referenced in this case. Petitioners have pointed to

no other jurisdiction that authorizes the employees of nominally private

corporations to appear in court as “the state,” by and through a stateemployed prosecutor, and grants them the exclusive power to seek court

orders extending involuntary confinements for weeks or months. Nor have

they tallied the jurisdictions that require all commitments to be courtordered or indicated how many of those assign the same people who seek

such orders to act as their subject’s jailors. And there are surely few if any

other states that have outsourced their constitutional responsibilities as

transparently as Washington has here, using an allegedly “private” facility

set up on the very same state-owned grounds where the state has always

performed that same function. See note 12, above. It is therefore unlikely

that review of these unusual facts by this Court would resolve issues of broad

application elsewhere.

Additionally, the Washington statutes that were in effect at the time of

Mr. Rawson’s detention have been amended numerous times and in

numerous ways since then. Some of the amendments have potential

significance to the issues potentially presented here. See, e.g., note 4; above.

And RII no longer operates its Western State facility. 9th Cir. ER 697. So,

determining whether the petitioners acted under color of state law as it

existed when they confined Mr. Rawson might not finally resolve the issue

even for the State of Washington—or RII itself.

Third, the decision below is interlocutory, rendered on competing

motions for summary judgment, without the benefit of a fully developed

factual and legal record. The panel remanded the case for trial, not for

judgment in Mr. Rawson’s favor. In that trial, the petitioners would have

ample opportunity to sharpen and preserve any specific questions about their

role as state actors that might be worthy of this Court’s consideration, if

there were any.

Finally, there is nothing about the result reached in the decision below

that is shocking or indicative that the law in this area has become confused

or misdirected. It is hardly “radical” (Petition 27, 36) to hold that a

corporation and its employees (including off-duty state employees) act under

color of state law when they take over the state’s responsibility to confine and

treat people whom its courts have ordered to be held as disabled or

dangerous—and they do so on state property, with state funding, appearing

in court as “the state” and working with a Deputy County Prosecuting

attorney. Indeed, it would be much more shocking and radical to hold that

the states can put people who have been deprived of their liberty because of

alleged mental illness outside of the reach of the Fourteenth Amendment by

consigning them to such corporations. And, as the Court of Appeals noted,

To conclude that Defendants act under color of state law within this

process does not cast blame on them. It simply charges Defendants

with meeting the constitutional standards applicable to those whose

actions are “made possible only because [they are] clothed with the

authority of state law.” West, 487 U.S. at 49 (quoting [United States v.]

Classic, 313 U.S. at 326).

Pet. App. 23. Nothing about that conclusion requires this Court’s review.

CONCLUSION

The petition for certiorari should be denied.

Respectfully submitted,

MacDONALD, HOAGUE & BAYLESS

s/ Timothy K. Ford____

Timothy K. Ford, Counsel of Record

Jesse Wing

705 Second Avenue, #1500

Seattle, Washington 98104

(206) 622-1604

timf@mhb.com

jessew@mhb.com

Sam Kramer

MADIA LAW LLC

323 Washington Avenue N., #200

Minneapolis, Minnesota 55401

(612) 349-2720

sjkramer@madialaw.com

Attorneys for Respondent

July 9, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.