Appendix — Hagan v. Downs

In THE

Supreme Court of the Gnited States

Oe os on ;

é¢

Octoper Term 1!

No.

RUTH A. HAGAN, MARILYN B. DOW,

MARY LOU PATTISON

AND

JOHN CURTIS, M.D..

Petitioner

V.

GEORGIA MAK DOWNS,

R: sponde vt

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

APPENDIX TO PETITION

Bruce A. CoGGESHALL

Matcotm L. Lyons

JosePH M. Kozak

Pieree, Aiwood, Seribner,

Allen, Smith & Lanecaste!

7¢ Winthrop Street

Augusta, Maine 04330

Attorneys tor Petitioners

INDEX TO APPENDIX

Decision of the State of Maine, District Court, District

Thirteen Re: Robert Scott Goodine

Bench Ruling of the United States District Court for the

District of Maine, Northern Division upon Defendanis’

Motion for a Directed Verdict

Opinion of the United States Court of Appeals for the

First Circuit

Judgment of the United States Court of Appeals for the

First Circuit

Relevant Statutory Provisions

PAGE

43

STATE OF MAINE

Piscataquis, ss. DISTRICT COURT

DISTRICT THIRTEEN

Division of Piscataquis

Civil Action, Docket No. 72-S8C

STATE OF MAINE

DEPARTMENT OF HEALTH & WELFARE

Vs.

GEORGIA MAK GOODINE

Re: Robert Scott Goodine

This matter was heard by the Judge of the District Court

on April 19, 1973. Richard Edwards, Esq. appeared for

Davis Goodine, paternal grandfather of Robert. Georgia

Mae Goodine, mother of Robert, appeared in her own be-

half. Mrs. Roberta Sawtelle, sister of Georgia and Guard-

ian of Georgia appeared in her own behalf and appeared as

Guardian. Miss Pattison and Mrs. Marilyn Dow were pres-

ent, representing the Department of Health & Welfare of

the State of Maine. Mrs. Witham, housekeeper for Mr.

Goodine, was also present.

The Health & Welfare offered testimony, to show that

Georgia, a deaf mute, was physically unable to care for her

child, and stated that they could and would provide a home

suitable for the child — that eventually the child would be

placed for adoption.

Davis Goodine stated that he and Mrs. Witham could and

would care for the child, though Health & Welfare officials

felt that their facilities were quite modest, to say the least.

2

They already have an older child of Georgia’s and wit-

nesses felt that the child was rather ill kept and unbridled.

Georgia, by means of written messages with the Court,

stated that she wanted the child to go “with Mrs. Dow”.

She was very positive about this.

Upon hearing all of the testimony the Court decrees that

the child be given to the State of Maine at this time as the

Court feels it is for the best interests of the child.

Dated at Dover-Foxcroft, Maine this nineieenth day of

April A.D. 1973.

MatrHew WILuiams, Judge

Maine District Court #13

Division of Piscataquis

3

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

NORTHERN DIVISION

GEORGIA MAE DOWNS

v. CIVIL NO. 75-20-ND

ROBERTA SAWTELLE, et als.

BENCH RULING OF THE COURT UPON DEFENDANTS’

MOTIONS FOR A DIRECTED VERDICT

Pursuant to notice, trial was commenced in the above-

entitled action before Honorable Edward T. Gignoux,

Judge, United States District Court, District of Maine, and

a jury, at the United States Post Office & Courthouse, Ban-

gor, Maine, on Monday, March 21, 1977. At the conclusion

of the presentation of the plaintiff's evidence on Friday,

Mareh 25, 1977, after hearing all counsel upon defendants’

motion for a directed verdict, the Court ruled from the

bench upon the motions as follows:

APPEARANCES:

For the Plaintiff: Douglas A. Clapp, Esq. &

Michael J. Cunniff, Esq.

Attorneys at Law

Pittsfieid, Maine

Stephen D. Clapp, Esq.

Attorney at Law

No. Attleboro, Mass.

For Defendant Sawtelle: John L. Eastman, Esq.

Attorney at Law

Dover-Foxcroft, Maine

APPEARANCES: (cont’d.)

For Defendants Hagan, Joseph M. Kozak, Esq.

Dow & Pattison: Asst. Attorney General

Department of Human Services

221 State Street

Augusta, Maine

For Defendant Curtis: Malcolm L. Lyons, Esq.

Attorney at Law

Augusta, Maine

For Defendant Goodine: Stephen H. Shook, Esq.

Attorney at Law

Milo, Maine

(In open court at 4:40 o’clock, p.m.)

THE COURT: In this case, all defendants have moved

at the close of the plaintiff's evidence for a directed ver-

dict in their favor and dismissal of the action against

them. Trial has been had of the cause of action set forth

in Count I of the amended complaint, Count II having pre-

viously been dismissed. In ruling upon such a motion, the

Court, of course, must accept the plaintiff’s evidence in the

light most favorable to the plaintiff. Applying this stan-

dard, the Court is persuaded that the plaintiff has failed

to produce the requisite quantum of evidence to reach the

jury with her claim.

In Count I of the amended complaint the plaintiff has

set forth a claim for compensatory and punitive damages

under the Civil Rights Act, 42 U.S.C. § 1983. Jurisdiction

is predicated on 28 U.S.C. § 1343(3). The defendants are

the plaintiff's sister, Roberta Sawtelle; the plaintiff’s

father, Davis A. Goodine; Dr. John B. Curtis, a general

surgeon with an office in Milo, Maine; and three employees

of the Maine State Department of Human Services — for-

merly entitled the Maine State Department of Health and

5)

Welfare — Marilyn B. Dow, Ruth A. Hagan and Mary L.

Pattison, whom the Court will hereafter refer to collectively

as the State defendants.

The plaintiff charges that the defendants violated her

constitutional rights by depriving her of her right to con-

ceive and bear children, by depriving her of her right to

raise her own child and by depriving her of her right to

marry. Plaintiff specifically alleges that these deprivations

occurred when defendants caused her to be sterilized, ini-

tially prevented and then delayed her from carrying out

her marriage plans with Carroll Downs, her present hus-

band, and removed her child, Robert Seott Goodine, from

her, all without her consent.

At the outset, it must be noted that the federal Civil

Rights Act, specifically, 42 U.S.C. § 1983, does not create a

general federal law of torts. As Mr. Justice Rehnquist

recognized, writing for the Court most recently in Paw vy.

Davis, 424 U.S. 698, 697-701 (1976), such a construction of

$1983 “would seem almost necessarily to result in every

legally cognizable injury which may have been inflicted by

a state official acting under ‘color of law’ establishing a

violation of the 14th Amendment.” Moreover, a reading of

the 14th Amendment due process clause to the effect that

it should extend to every person a right to be free of injury

wherever the state may be characterized as the tort-feasor

would make the 14th Amendment a font of to © law to be

superimposed upon whatever systems may already be ad-

ministered by the states. Cf. Griffin v. Breckenridge, 403

U.S. 88, 101 102 (1971). Paul v. Davis definitely rejected

such a construction of Section 1983. That case, as have nu-

merous other decisions of the Supreme Court and lower

federal courts, including the Court of Appeals for this Cir-

euit, has made elear that in order for the plaintiff to es-

tablish an actionable claim against a defendant under § 1983

6

the plaintiff must show that the defendant deprived her of

a right secured by the United States Constitution and that

such deprivation was achieved by a defendant acting under

color of state law. Further, it is established that in order

to recover damages ‘for such a deprivation, the plaintiff

must show that the defendant acted with the requisite mal-

ice or bad faith. Paul v. Davis, supra; Wood v. Strickland,

420 U.S. 308 (1975): O'Connor v. Donaldson, 422 U.S. 563,

576-77 (1975); Harper v. Cserr, 544 F.2d 1121 (1st Cir.

1976).

Cases which have arisen under § 1983 have established

certain principles which are applicable here, First, § 1983

does not afford a cause of action for negligence or malprac-

tice. Paw vy. Davis, supra at 698-701; Harper v. Cserr,

supra at 1124.

Second, a defendant’s possible violation of state law by

failing to comply with state statutes does not necessarily

mean that the plaintiff's federal rights have been invaded.

Paul v. Davis, supra, at 700; Screws v. United States, 325

U.S. 91, 108 (1945); Street v. Surdyka, 492 F.2d 368, 371

(4th Cir. 1974). Mere failure to comply with state statutes

does not, in and of itself, create the state action necessary

to support a viable claim under § 1983.

Third, there can be no doubt, as the defendants here con-

cede, that the deprivation of a person's ability to bear chil-

dren, of a person’s right to raise children, or of a person’s

right to marry are deprivations of constitutional rights

which the State cannot accomplish without due process of

law. See, e.g., Skinner v. Oklahoma, ex rel. Williamson, 316

U.S. 535, 541 (1942): Cox v. Stanton, 529 F.2d 47, 50 (4th

Cir. 1975).

Fourth, the burden of establishing that the defendants

deprived the plaintiff of a constitutional right, that the de-

7

fendants were acting under color of state law, and that the

defendants acted with the requisite malice or bad faith is

on the plaintiff. O'Connor v. Donaldson, supra; Wood vy.

Strickland, supra. See, Scheuer v. Rhodes, 416 U.S. 232,

247-48 (1974); Kermit Construction Corp. v. Banco Credito,

547 F.2d 1 (1st Cir. 1976).

Fifth, the appropriate standard for determining whether

or not a defendant acted in “good faith” contains both ob-

jective and subjective elements. Under the Supreme Court’s

decision in Wood v. Strickland, supra, the relevant question

is whether the defendant “knew or reasonably should have

known that the action he took within the sphere of his offi-

cial responsibility would violate the Constitutional rights

of the plaintiff, or if he took the action with the malicious

intention to cause a deprivation of Constitutional rights or

other injury to the plaintiff ... A compensatory award

will be appropriate only if the defendant has acted with

such impermissible motivation or with such disregard of

the plaintiff’s clearly established Constitutional rights that

his action cannot reasonably be characterized as being in

good faith.” 420 U.S. at 322.

Sixth, as this ease involves both state and private defen-

dants, the Court must determine the extent to which the

private defendants, who acted in association with the state

defendants, themselves acted “under color of state law.”

Burton v. Wilmington Parking Authority, 365 U.S. 715

(1961), instruets that “only by sifting facts and weighing

circumstances can the non-obvious involvement of the State

in private conduct be attributed its true significance.” 365

U.S. at 722.

Applying these established principles to the evidence

which the plaintiff has presented as against the various

individual defendants in this case, the Court will first con-

sider the evidence as it relates to the actions of the State

8

defendants. It is conceded, and indeed entirely clear, that

the State defendants as State employees were acting under

color of State law in the actions which they took as dis-

closed by the record in this case. Plaintiff has failed, how-

ever, to establish by the evidence any significant State

action that “caused” the deprivation of the constitutional

rights of which plaintiff alleges she has been deprived.

Cf. Rizzo v. Goode, 423 U.S. 362, 374-375 (1976). Further,

the Court can find no evidence which would justify a find-

ing by the jury that these defendants intentionally influ-

enced or manipulated the actions of the private defendants

through their State authority. More importantly, the plain-

tiff’s evidence wholly fails to establish that any one of the

three State defendants acted otherwise than in complete

good faith and with the reasonable belief that the steps

being taken in encouraging the placement of plaintiff’s un-

born child, in encouraging the delay of plaintiff's marriage,

and in approving the proposed sterilization of the plaintiff

were in accordance with the plaintiff's wishes and were

proper and lawful. In short, a review of this record dis-

closes no evidence from which a jury could reasonably

conclude that the plaintiff has sustained her burden of

showing “bad faith, knowing misconduct or unreasonable

action” on the part of these defendants. //ahn v. Sargeant,

523 F.2d 461, 467 (1st Cir. 1975). Not only is there a com-

plete absence of evidence that these defendants acted with

any malice towara the plaintiff, but plaintiff's own evi-

dence plainly shows that they acted in accordance with

what thev reasonably believed was their duty. The Court

can only conelude on this record that to hold the State

defendants liable would indeed be, in the words of the

Court of Appeals for this Cireuit, a “preposterous result.”

Joyce v. Farraz2, 323 F.2d 931, 933 (1st Cir. 1963).

Turning next to the first of the private defendants, Dr.

Curtis, the reeord discloses that the only actions taken by

9

Dr. Curtis were taken by him in his capacity as a private

practicing physician providing medical care and advice to

the Goodine family. As such, his actions were those of a

private citizen, and he clearly is not one of the class of

persons exposed to liability under $1983. Joyce v. Far-

razz, supra; Byrne v. Kysar, 347 F.2d 734 (7th Cir. 1965),

cert. denied, 383 U.S. 913 (1966), Sebastian v. United

States, 531 F.2d 900 (Sth Cir. 1976). See also Francis v.

Lyman, 216 F.2d 583, 588 (1st Cir. 1954). Compare, De-

Latte v. Genovese, 273 F.Supp. 654, 656-57 (E.D. La.,

1967), (the doctor in question was found to have been act-

ing in his official capacity as an elected coroner, a public

official.) Moreover, to the extent that Dr. Curtis would he

entitled to the defense of qualified immunity otherwise

available to a State official, but see Kermit Construction

Corp. v. Banco Credito, supra, at 3, plaintiff has failed to

meet her burden of showing that Dr. Curtis acted with

malice or otherwise in bad faith. With respect to the plain-

tiff’s claim against Dr. Curtis, the Court again wishes to

emphasize that § 1983 does not afford a cause of action for

malpractice or negligence. The Court is aware that there

is pending in a court of the State of Maine an action

brought by this plaintiff through the same counsel against

Dr. Curtis predicated upon alleged malpractice and negli-

gence, a state tort. In ruling, as the Court does now, that

the present evidence does not establish a § 1983 cause of

action, the Court is expressing no view whatsoever as to

what, if any, liability may rest upon Dr. Curtis in the

State court action.

With respect to the next defendant, Roberta Sawteile,

the evidence establishes that the only actions taken bv her

were also those of a private citizen. As such, she was not

acting under co'+r of State law and is not one of the class

of persons exposed to liability under § 1983. Moreover, to

the extent that she as a private person would be entitled

10

to the defense of qualified immunity available to a public

official, the plaintiff has failed to meet her burden of show-

ing that Mrs. Sawtelle acted with malice or otherwise in

bad faith.

The remaining defendant is Davis Goodine. As to Mr.

Goodine, the record is devoid of evidence that he in any

way participated in the various actions of which the

plaintiff complains after October 31, 1976. His guardian-

ship petition was rejected by the Probate Court and Mrs.

Sawtelle was appointed as plaintiff’s guardian. Thus,

there is no basis in the evidence from which a jury could

conclude that he “caused” any deprivation of plaintiff's

constitutional rights. Moreover, as with Mrs. Sawtelle,

the evidence discloses that the only actions taken by Davis

Goodine were taken by him as a private citizen, and as

such he is not one of the class of persons exposed to lia-

bility under $1983. To the extent that his actions may

have taken in association with the State defendants, and

if he would be entitled to the defense of qualified immu-

nity available to public officials, the plaintiff has failed to

meet her burden of showing that Mr. Goodine acted with

malice or otherwise in bad faith.

The Court has only two further comments: (1) the plain-

tiff’s contention that the defendants “conspired” to deprive

her of constitutional rights is not supported by the evi-

dence: (2) the plaintiff’s charges, as restated in the recent

amendment to the complaint, that the private defendants

“collaborated” with the State defendants to deprive her of

constitutional rights cannot sfrvive the determination that

the plaintiff has not established a § 1983 claim against the

State defendants. Hahn vy. Sargeant, supra at 468.

In conclusion, the Court wishes to emphasize its initial

observation Section 1983 does not convert every action

which has traditionally been a tort under State law into a

11

federal cause of action. It is apparent that the plaintiff,

through her counsel, has attempted that conversion in this

ease. Whether or not any or all of these defendants are

liable to this plaintiff for tortious conduct — malpractice,

negligence or intentional infliction of injury — under the

law of the State of Maine will presumably be determined

in the State court action filed by the plaintiff now pending

in the Somerset County Superior Court. The Court’s de-

termination in granting the present motions is no more

than that the plaintiff’s evidence is insufficient to justify

a fiinding by the jury that any of these defendants are

liable to her for damages under the Civil Rights Act, 42

U.S.C. § 1983.

The defendants’ motions for a directed verdict are

granted. Judgment will be entered dismissing the action,

with prejudice and with costs.

To the extent that a transcript of the Court’s ruling is

desired, the Court reserves its usual privilege of editing

a bench ruling, which undoubtedly contains mis-citations,

grammatical errors, but hopefully not errors of substance.

Is there anything further?

(All defendants’ counsel reply in the negative.)

MR. STEPHEN CLAPP: No, your Honor.

THE COURT: May the Court say that it has been a

pleasure to have worked with counsel, both the Messrs.

Clapp and Mr. Cunniff for the plaintiff and the battery of

lawyers for the defendants. The Court appreciates the

expedition, courtesy and competence with which this mat-

ter has been presented during this rather long week.

Court will be in recess until 11 o’elock on Monday

morning.

12

(Whereupon, this bench ruling was concluded at 5:15

o’clock, p.m.)

CERTIFICATE

| hereby certify that the foregoing bench ruling in the

above-entitled action, which proceedings were reported

verbatim by me on the date indicated heretofore, is true

and correct, subject, however, to editing by Judge Gignoux

prior to release.

Harry B. Derry

Official Court Reporter

United States Court of Appeals

for the First Circuit

No. 77-1260

GEORGIA MAE DOWNS,

PLAINTIFF, APPELLANT,

v.

ROBERTA SAWTELLE, et al.,

DEFENDANTS, APPELLEES.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[ Hox. Epwarp T. Gienovx, U.S. District Judge |

Before Corrix, Chief Judge,

Tutte, Circuit Judge,*

Wotenserc, District Judge.**

Stephen D. Clapp, with whom Armstrong, Pollis & Clapp,

Douglas A. Clapp, Michael J. Cunniff, and Stitham, Clapp &

Cunniff were on brief, for appellant.

Stephen H. Shook, with whom Edgerly & Shook was on brief,

for Davis A. Goodine, appellee.

Joseph M. Kozak, Assistant Attorney General, for Ruth A.

Hagan, Marilyn B. Dow, and Mary Lou Pattison, appellees.

John L. Easton, Jr., with whom C. W. & H. M. Hayes was on

brief, for Roberta Sawtelle, appellee.

Phillip D. Buckley, with whom Rudman, Winchell, Carter &

Buckley was on brief, for Car! H. Carlson, appellee.

Malcolm L. Lyons, with whom Wathen & Wathen was on brief,

for John B. Curtis, appellee.

John M. Wallach, with whom Rudman, Winchell, Carter &

Buckley was on brief, for Milo Community Hospital and Ava

Strout, appellees.

March 30, 1978

*Of the Fifth Circuit, sitting by designation.

**Of the Northern District of California, sitting by designation.

14 GEORGIA MAE DOWNS U. SAWTELLE

Corrix, Chief Judge. Georgia Mae Downs, a deaf mute

mother of two children born out of wedlock, brought this

action for damages under 42 U.S.C. § 1983, alleging a con-

spiracy to sterilize her against her will, to delay her mar-

riage to her present husband, and to remove her second

child from her custody, all in violation of her constitutional

rights. Before trial, summary judgment was granted to

defendants Milo Community Hospital, where the operation

was performed, its administrator, Ava Strout, and the town

manager of Milo, Maine, Mr. Carlson, who authorized pay-

ment for the sterilization out of municipal funds. At the

close of the plaintiff’s evidence before a district court jury,

verdicts were directed for defendants, Roberta Sawtelle,

plaintiff's sister and spendthrift guardian’; Dr. John Cur-

tis, the Chief of Staff of Milo Community Hospital and

attending surgeon at the operation; three social workers of

the state of Maine Department of Health and Welfare, who

approved and helped arrange the guardianship proceedings,

custody surrender, and sterilization; and Davis Goodine,

the plaintiff’s father. Plaintiff now appeals.’

This was an exceptionally confusing and emotional case.

The district court was required to deal with a large quan-

tity of conflicting evidence and extraordinary problems of

communication. Our discussion will not fairly reflect these

problems, for, in accordance with the standards for appel-

late review of orders disposing of a case by summary judg-

ment and directed verdict, we present the evidence in the

light most favorable to the plaintiff. See Adickes v. Kress

‘Under 18 M.R.S.A. § 3601(2) a spendthrift guardian may be appointed

for adults who “so spend or waste their estate as to expose themselves or

families to want or suffering or their towns to expense.”

2 We affirm the judgment of the district court as to defendants Strout,

Goodine and Carlson. Our review of the record makes it plain that their

conduct, which amounted to no more than mere negligence, is not action-

able under section 1983. See Paul v. Davis, 424 U.S. 693, 700-701 (1976).

OPINION OF THE COURT. 15

ێ Co., 398 U.S. 144, 157 (1970); Wilson v. Nooter Corp.,

475 F.2d 497, 501 (1st Cir. 1973).

Although she was apparently born with normal hearing,

plaintiff became deaf at age three, when hot coffee scalded

her ear. Her primary and secondary school years were

spent at the Governor Baxter State School for the Deaf.

Although plaintiff was instructed in American Sign Lan-

guage and taught to read and write, communication with

her was frequently quite difficult. Tests showed her to have

the reading comprehension of a fourth grader and border-

line or dull normal intelligence.

Following her graduation from the Baxter School at age

18, plaintiff returned to her home town of Milo, Maine.

Her social behavior provoked considerable conflict among

the members of her family. At age 19, plaintiff gave birth

to her first out-of-wedlock child. She cared for it for a time,

but later surrendered it to her father, who obtained legal

custody of the child and boarded it with his girl friend.

Marilyn Dow, a state social worker assigned to plaintiff's

ease, and Dr. Curtis, the family physician, attempted to

introduce plaintiff to various methods of contraception,

but fifteen months after the birth of her first son, plaintiff

Was again pregnant.

The prospect of a second child gave rise to two concerns:

placement of the baby and prevention of future pregnancies.

Plaintiff’s father petitioned the state probate court to be

appointed her guardian in order to place the second child

with its half-brother. Roberta Sawtelle opposed her father’s

petition and, with the backing of Mrs. Dow, herself sought

appointment as plaintiff's spendthrift guardian, with a view

to surrendering the child for adoption. At some point

Sawtelle learned that plaintiff planned to marry Carroll

Downs and wanted to have children with him. Although

Downs was not the father of the child plaintiff was carry-

16 GEORGIA MAE DOWNS U. SAWTELLE

ing, he intended to keep it after his marriage to plaintiff

and wanted it to bear his name. Dow and Sawtelle, how-

ever, were aware that the existence of a husband could

impede efforts to have the child adopted, and they agreed

that Sawtelle would persuade plaintiff and Downs that her

consent to the marriage was required and would withhold

it until after the baby’s birth.

There is conflicting evidence as to the origin of the idea

to have plaintiff sterilized. Social worker Mary Lou Pat-

tison asserted that the father contacted the Department of

Health and Welfare for help in coping with plaintiff's

second pregnancy and for state funds to pay for the sterili-

zation. However, the father’s deposition and the agency's

own reports indicate that the agency initiated the idea.

Sawtelle, who had herself been sterilized, seems to have

favored it from the beginning. In any event, it was Dow

who assumed responsibility for contacting Dr. Curtis about

medical preparations for the operation and arranged to

have the town of Milo assume the necessary medical

expenses.

As plaintiff’s pregnancy progressed, sterilization was

repeatedly proposed to her by Dr. Curtis and her sister,

who accompanied her on each prenatal visit. Attempts to

explain the meaning of sterilization through handwritten

notes from the doctor and sign language interpretation by

Sawtelle met with considerable difficulty. Dr. Curtis and

Sawtelle asserted that plaintiff ultimately understood that

sterilization meant she would have “no more babies” and

that she agreed with the proposal. Plaintiff insisted that,

to the extent of her limited ability to communicate, she

registered her opposition but Sawtelle and the doctor con-

tinued to discuss plans for the sterilization. Some time

before the operation was to be performed, plaintiff wrote a

letter to Dr. Curtis which, although difficult to decipher,

OPINION OF THE COURT. 17

expressed her plan to marry Carroll Downs and her wish

to have additional children with him.’ Dr. Curtis testified

at trial that he treated the letter “so lightly that I didn’t

attach too much importance to it.” He continued to make

the necessary arrangements for the operation.

There was considerable testimony, much of it confusing

and contradictory, as to the authority under which the

operation was actually performed and the understanding

of the participants in that regard. The policy of Milo Com-

munity Hospital, of which Dr. Curtis was Chief of Staff,

permitted sterilizations in any of six circumstances. It was

conceded that only one of them, mental retardation, could

even arguably apply to the plaintiff. Dr. Curtis testified,

however, that he did not consider plaintiff to be feeble-

minded or retarded and that he had not read any test

results indicating she was either. Yet Dr. Curtis’ hospital

report recommended sterilization “based 90% on this girl’s

low mentality involving poor judgment and her lack of

restraint on sex appetite and its consequences.”

Dr. Curtis requested that two other physicians consult

with him on the case. Their written reports were devoid

of any medical analysis or any indication that plaintiff

consented to the operation. One physician concluded, with-

out elaborating, that plaintiff “apparently lack[ed] ability

to curtail normal appetite for sex”, that she was “[{ pjoten-

tially dangerous”, and that her low economic earning power

demonstrated “irresponsibility”. The second physician’s

report stated, “uncontrolled appetite leads to promiscuity.

Apparently retarded. Incapable of functioning in a mater-

nal role.”

* The letter read: “My Boyfriend Carrol Downs said he want my baby

two family agains. I will get married on March 3 over Carroll want me to

new baby agains ok. I want Baby agains to 2 my family.”

18 GEORGIA MAE DOWNS U. SAWTELLE

Hospital policy also required that the patient and another

party (the form suggests a spouse) sign a standardized

sterilization consent form. Although plaintiff signed other

minor forms on her entry into and discharge from the

hospital, she was never approached to sign the sterilization

consent form. Indeed none of the defendants attempted to

explain the form to her, although Dr. Curtis conceded that

it could have been explained in terms she could have under-

stood. Instead of plaintiff, her spendthrift guardian, Saw-

telle, signed the form.

Dr. Curtis testified that he relied on the guardian’s con-

sent to perform the operation, although he had never before

done so. Some time prior to the operation he asked social

worker Marilyn Dow who could legally consent to the oper-

ation. Although Dow suggested that he obtain that infor-

mation from the probate judge, the doctor ignored the

advice and made no other effort to determine the legal

prerequisites for an operation of this nature. He relied

on his memories from medical school and his internship,

which concluded in 1937, that a guardian’s consent sufficed.

According to Dr. Curtis, plaintiff at all times indicated

her consent to be sterilized. There is considerable dispute

as to her agreement as the time for the operation ap-

proached. Plaintiff testified that the night before she was

to be sterilized she informed Dr. Curtis she did not want

the operation. That same evening her fiance communicated

to Sawtelle and the doctor both plaintiff's opposition and

his own. A newspaper reporter who later covered the story

testified that he discussed the operation with Dr. Curtis,

who said he “went up later to talk with Georgia and,

although she was opposed at first,... she eventually agreed

to the sterilization.” According to the reporter, the doctor

observed, “She follows what the last person s..vs to her.”

* According to Downs’ deposition, Dr. Curtis replied, “You cannot stop

me on the operation.”

OPINION OF THE COURT. 19

On March 20, 1973, plaintiff gave birth to a baby boy,

Robert Scott Goodine. Four days later she was sterilized

by means of a fallotomy. From that day forward she has

been permanently incapable of bearing children. Plaintiff

was not permitted to see her child after its birth, despite

her requests to do so. The child was removed from the

hospital by Mary Pattison and placed in a foster home.

The authorization for taking the child is also in dispute.

Before the birth of the child, the Maine Attorney General

had advised the state social workers that plaintiff’s guard-

ian could not legally consent to the adoption of plaintiff's

child. The day the child was taken from the hospital,

Roberta Sawtelle signed an Agreement of Responsibility

for Temporary Care of the baby. Six days later a petition

for temporary termination of custody was filed with the

probate court. A hearing was set for April 19, but no

interim custody order was entered. At the April 19 hear-

ing the probate court ordered that plaintiff's child be placed

in the temporary custody of the state of Maine.

From the birth of the child until April 19, the only au-

thority the state’s social welfare employees had for keeping

the child from its mother was the Agreement of Responsi-

bility for Temporary Care signed by plaintiff’s guardian.

One of the social workers, Miss Hagen, testified that the

use of such an Agreement was not unusual.

At the present time plaintiff is married to Carroll Downs.

The spendthrift guardianship has been dissolved and the

custody of Robert Scett Goodine has been restored to her.

I. STATE ACTION

The threshold question for our analysis is whether Milo

Community Hospital can be considered a “state actor”

for the purposes of § 1983 liability.”. The district court

*The Second Cireuit has adopted a flexible approach to state action

analysis, providing for less rigorous scrutiny in racial discrimination cases.

20 GEORGIA MAE DOWNS U. SAWTELLE

did not rule on this issue although it intimated that the

weight of authority is to the contrary. The issue is far from

simple. For the past sixteen years courts have struggled

to follow the admonition of the Supreme Court in Burton

v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961)

that “[o]nly by sifting facts and weighing circumstances”

ean the legal significance of state involvement in private

conduct be determined. On balance we conclude from the

record at this stage of the proceedings that the “State has

so insinuated itself into a position of interdependence with

{Milo Community Hospital] that it must be recognized as

a joint participant in the challenged activity, which, on that

account, cannot be considered to have been so ‘purely pri-

vate’ as to fall without the scope of the Fourteenth Amend-

ment.” Jd. at 725.

The involvement of the state in the operation of Milo

Community Hospital is multi-faceted. Thirty pereent or

more of its operating budget resulted from Medicare funds.

The hospital was subject to significant governmental regu-

lation. The entire board of directors subsequent to the

original incorporators was appointed by the Board of

Selectmen of the town of Milo. Any profits earned by the

hospital are to be distributed to the town of Milo. If the

hospital should be dissolved, all assets after payment of

debts revert to the town of Milo.

Appellees present an imposing array of cases holding

that partial governmental funding of a hospital and the

See Weise v. Syracuse University, 522 F.2d 397, 406 (1975) (“A con-

sideration of whether there is state action necessarily entails a balancing

process. As the conduct complained of becomes more offensive, and as the

nature of the dispute becomes more amendable to resolution by a court,

the more appropriate it is to subject the issue to judicial serutiny.”) We

have expressed our reservations to this approach, in Lamb v. Rantoul, 561

F.2d 409, 411 (Ist Cir. 1977). Even were we to adopt such an approach,

however, we would be inclined to group infringements of fundamental!

rights and racial discrimination together for the purpose of state action

analysis just as they receive comparable scrutiny in equal protection cases.

OPINION OF THE COURT. 21

fact that it is subject to general state regulation does

not transform a private hospital into a state actor.° We

have carefully examined these decisions. However, even

the case with the strongest indicia of state action of all

those cited, Greco v. Orange Memorial Hospital Corp., 513

F.2d 873 (5th Cir. 1975), presents state involvement of

considerably less magnitude than the present case.’

® Appellees Milo Community Hospital and Ava Strout cite the following

cases in which hospitals were held not to be state actors: Chrisman v.

Sisters of St. Joseph of Peace, 506 F.2d 308 (9th Cir. 1974) (hospital

received 13% of its construction budget from Hill-Burton and HEW funds,

received state tax exemptions, and was generally regulated by the state) ;

Ascherman v. Presbyterian Hospital of Pacific Medical Center, 507 F.2d

1103 (9th Cir. 1974) (hospital received Hill-Burton funds and federal and

state tax exemptions — no agency of the state selected or was represented

on its governing board); Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976)

(hospital was non-profit and tax exempt, was subject to extensive state

regulation, received Hill-Burton funds, and was a member of a county

health planning agency, (Alliance for Regional Community Health) ) ;

Taylor v. St. Vincent’s Hospital, 523 F.2d 75 (9th Cir. 1975) (hospital

was non-profit, received tax benefits and Hill-Burton funds, and was alleged

to be the only hospital in the area); Jackson v. Norton-Children’s Hospi-

tal, Inc., 487 F.2d 503 (6th Cir. 1973) (hospital received Hill-Barton funds

and was regulated by the state) ; Doe v. Bellin Memorial Hospital, 479 F.2d

756 (7th Cir. 1973) (hospital received Hil!-Burton funds and was regu-

lated by the state); Allen v. Sisters of Saint Joseph, 361 F. Supp. 1212

(N.D. Texas 1973) (hospital received Hi!l-Burton funds, was licensed by

the state, received welfare funds, and was tax exempt); Barrett v. United

Hospital, 376 F. Supp. 791 (S.D.N.Y. 1974) (hospital received Hill-Bur-

ton funds, was tax exempt, was subject to extensive state regulation).

7 In Greco the hospital facility, publicly financed and owned by the

county, was leased for a de minimis fee to a non-profit, tax exempt hospi-

tal. The hospital was obligated by the lease to accept indigent patients but

was given complete control over its medical policies and quality of care

provided. In the case at bar, the hospital's board is, as we have noted,

controlled by the town. Here also, the town has the right to receive profits

and to the extent that the sterilization of indigents relieved both the town

and the hospital of providing uncompensated obstetrical services and ear-

ing for indigent children in the future, the town did stand to benefit finan-

cially from the operation. Finally, it should be noted that the court in

Greco (which divided on the issue of state action), coneluded that the fact

that the hospital was not accused of racial discrimination should make it

more difficult to establish that the hospital was a state actor. As we have

noted, see note 4 supra, we would, in this setting, equate racial diserimina-

tion with deprivation of a fundamental right for the purposes of state

action analysis. ;

22 GEORGIA MAE DOWNS U. SAWTELLE

More important, there is a wide range of authority sug-

gesting that the indicia of state involvement here, aside

from partial funding and general regulation, are more than

sufficient to support liability under § 1983. The most com-

pelling factor is the power of the Milo selectmen to appoint

the hospital’s board of directors. Two Supreme Court

eases, Evans v. Abney, 396 U.S. 435 (1970), and Pennsyl-

vania Vv. Board of Trustees, 353 U.S. 230 (1956), found that

discriminatory conduct by institutions of which city or state

agencies are trustees was discrimination by the state. The

fact that in the present case, the town of Milo only ap-

pointed the trustees as opposed to serving on the board

itself, does not diminish this nexus between the hospital's

operation and the town. In evaluating a private foundation,

four of whose seven man board were appointed by state

officers, the Second Circuit concluded:

“Even indirect governmental participation in the man-

acement of an organization is persuasive evidence of

the existence of ‘state action’ where that participation

is both substantial and other than neutral... [Hlere

publie officials, named in their ex officio capacities,

control the selection of a majority of the governing

body, and the Buffalo Foundation appears to have

established this procedure for the very purpose of

involving the publie in its activities. This participation

is neither insignificant nor neutral. Therefore, as to

the Buffalo Foundation, a finding of ‘state action’ may

be warranted even if the court should find only some

other significant evidence of ‘state action’”. Jackson

v. Statler Foundation, 496 F.2d 623, 635 (2d Cir. 1974).

Other courts have also held that the appointment by the

state of a majority of an iustitution’s board is either deter-

minative of state action or an important factor in establish-

ing state action. See Meredith v. Allen County War Memor-

OPINION OF THE COURT. 23

ial Hospital, 397 F.2d 33 (6th Cir. 1968) ; Chiaffitelli v. Dett-

mer Hospital, Inc., 487 F.2d 429 (6th Cir. 1971); O’Nedl v.

The Grayson County War Memorial Hospital, 472 F.2d

1140 (6th Cir. 1973); Isaacs v. Board of Trustees of Temple

University, 385 F. Supp. 473 (E.D. Penn. 1974); Braden v.

University of Pittsburgh, 392 F.Supp. 118 (W.D. Penn.

1975). In Assum vy. Good Samaritan Hospital, 395 F.Supp.

363 (D. Ore.), aff'd, 542 F.2d 792 (9th Cir. 1976), the court

concluded that the appointment of three of seven directors

of the hospital’s board by city, county and state officials

did not make the hospital a state actor, but the court also

specifically distinguished Jackson vy. Statler Foundation,

supra, as involving state appointment of a majority of the

board, while the Oregon hospital only had a minority of

its board appointed by the state. Similarly, we did not find

the Rhode Island School of Design to be a state actor,

although five of its forty-three directors were required to

be state or city officials.” See Lamb vy. Rantoul, 561 F.2d

409 (ist Cir. 1977). The crucial fact, as noted previously,

is that the town of Milo appoints the entire board of Milo

Community Hospital.

Although the other aspects of state involvement do not

appear to us to be as critical as the appointment of the

Board of Directors, they nevertheless offer additional sup-

port for our conclusion. Other courts have found that

ownership by the city or state of a reversionary interest

in an institution’s property is an important factor in find-

ing state action. Sce Hampton vy. City of Jacksonville, 304

F.2d 320 (Sth Cir. 1962); Eaton v. Gibbs, 329 F.2d 710

(4th Cir. 1964). Moreover, the distribution of the hospital’s

* On the other hand, in Rivas Tenorio v. Liga Atletica Interuniversitaria,

554 F.2d 492 (1st Cir. 1977), we found defendant athletic league to be a

state actor despite its financial self-sufficiency in part because a majority

of the league's directive board was composed of representatives ot public

institutions.

24 GEORGIA MAE DOWNS U. SAWTELLE

profits, if any, to the town of Milo represents the very

kind of mutually beneficial relationship which formed the

basis of state action in Burton.

Appellees’ reliance on Jackson v. Metropolitan Edison

Co., 419 U.S. 345 (1974), is not persuasive. The Jackson

Court dealt with a private utility and held that the combi-

nation of extensive regulation by the state and a monopoly

position do not justify a finding of “state action”, unless

“there 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.” /d. at 351. If this nexus analysis was required

to establish state action in any context, Burton, which based

its holding on purely passive state involvement, would be

overruled. However, Jackson specifically reaffirmed Bur-

ton’s vitality in cases where, after searching scrutiny, a

true symbiotic relationship can be said to exist. As the

Second Circuit has explained :

“Although Jackson stressed the failure to establish that

Pennsylvania was directly involved in the challenged

activities of [the publie utility] — an emphasis which

was far from novel... the Court took pains to stress

that the absence of any proof of state initiation or en-

forcement would not necessarily be dispositive in all

eases. It recognized the continued viability of the prin-

ciple enunciated in Burton yv. Wilmington Parking

Authority ... and Moose Lodge ... that where the

state goes bevond mere regulation of private conduct,

and becomes in effect a ‘partner’ or ‘joint venturer’ in

the enterprise, the inference of state responsibility for

the proscribed conduct could more easily be made.”

Holodnak v. Aveo Corp., Avco-Lycoming Div., Strat-

ford, 514 F.2d 285, 288 (2d Cir. 1975) (suit under $301

OPINION OF THE COURT. 25

of the Labor-Management Relations Act, 29 U.S.C.

§185).

See also Braden vy. University of Pittsburgh, 392 F. Supp.

at 125. :

The essence of Burton which survives Jackson is that the

relationship between the state and the private institution

may be so intertwined that the state will be held responsible

for conduct of the institution with which it had no direct

connection.” In this respect the present case is similar to

Fortin v. Darlington Little Leaque, Inc., 514 F.2d 344 (1st

Cir. 1975), in which we held that despite the city’s lack

of participation in formulating the discriminatory policy

of the defendant, there was sufficient involvement with

defendant's activities in general to subject the defendant

to the Fourteenth Amendment. Here, although Milo Com-

munity Hospital is not technically a lessee or privileged

user of a public entity’s facility, its position is no less

intertwined. The town’s appointment of the entire board,

general governmental support and regulation of the hos-

pital, the town’s right to receive profits and, on dissolution,

the hospital's assets, together constitute such a close rela-

tionship that the conduct of the hospital must be attributed

to the government even though a “nexus” in the Jackson

sense is not present.””

® See Judicial Review of Private Hospital Activities, 75 Mich. L. Rev.

445, 463 (1976) (“It would seem entirely proper, however, when no nexus

is found, for a court then to weigh all the circumstances of the case and

appropriately hold that the state is involved in the otherwise private activ-

ity to such a significant extent that state action must be found under

Burton. It is this ‘non obvious involvement of the state in [the] private

conduct’ that has been overlooked in many recent decisions, including per-

haps the Jackson decision itself.”).

'© There is evidence in the record to the effect that the town of Milo

paid the expenses for the sterilization operation performed on the plain-

tiff. However, it is unclear to us how much, if any, discretion was exer-

cised by the town in determining to make the payment. If not all

26 GEORGIA MAE DOWNS U. SAWTELLE

The district court ruled that Dr. Curtis acted “in his

capacity as a private practicing physician” in sterilizing

plaintiff and as such his conduct was beyond the remedial

scope of § 1983. Since summary judgment had already

heen granted for Milo Community Hospital, we do not

know whether the district court’s characterization of Dr.

Curtis as a private party is a consequence oi its earlier

decision or whether the court believed that Dr. Curtis was

acting in 1 private capacity even if the hospital was found

to be a state actor.

.

Having determined that the hospital was a state actor,

however, we must decide if the connection between Dr. Cur-

tis and the Milo Community Hospital was such that the

doctor’s conduct should also be characterized as state action.

Dr. Curtis was not simply a private physician making use

of the hospital’s facilities at the time of the sterilization

operation. He was also Chief of Staff of the hospital.

Article XVIII of the by-laws of the hospital state: “Re-

sponsibility for the operation and maintenance of the Hos-

pital and evaluation of Hospital practices shall be a joint

effort by the Board of Trustees, Administrator, and the

Chief of Staff, cach to be a check on the other.” (Em-

phasis added.) Article V See. Il of the By-Laws, Rules,

and Regulations of The Medical Staff of Milo Community

Hospital, Ine., describes the functions of the Chief of Staff

even more explicitly: “He shall be responsible for the

functioning of the clinical organization of the hospital and

shall keep or cause to be kept careful supervision over the

clinical work of the hospital.”

Just as agents and employees of state hospitals may be

sued under § 1983, see Fitzgerald v. Porter Memorial Hos-

indigents’ hospital bills were paid by the town as a matter of course and

if plaintiff's bill was paid as a matter of discretionary judgment, such

facts would point to a nexus between the town and the hospital as to the

specific conduct complained of.

OPINION OF THE COURT. 27

pital, 523 F.2d 716, 718-19 n. 7 (7th Cir. 1975); Spence v.

Staras, 507 F.2d 554 (7th Cir. 1974); Harper v. Cserr, 544

F.2d 1121 (1st Cir. 1976), agents and employees of private

hospitals determined to be state actors are similarly liable.

We do not see how Dr. Curtis can be held to be divorced

from his official and responsible role at Milo Community

Hospital simply because he is also administering directly

toa patient.’ As Chief of Staff of Milo Community Hospi-

tal with duties designated by its by-laws, Dr. Curtis must

also be held to be subject to § 1983 liability.

In summary, we conclude that both the Milo Community

Hospital’ and Dr. Curtis were “state actors” for purposes

of section 1983. The social workers were, of course, state

employees at the time of their involvement in plaintiff’s

ease and acted in their official capacities. Sawtelle also

acted under color of state law, since her actions were taken

in concert with state officials. Adickes v. S.H. Kress € Co.,

1! The cases cited by the trial court in its bench ruling do not persuade

us to the contrary. Joyce v. Ferrazzi, 323 F.2d 931 (1st Cir. 1963) and

Byrne v. Kysar, 347 F.2d 734 (7th Cir. 1965), both involve physicians

whose only official relation to the plaintiff in their respective cases was in

certifying him tor commitment to a mental institution pursuant to state

statutes. Here Dr. Curtis’ responsibilities at Milo Community Hospital are

of a general supervisory nature and cannot be ignored. In Sebastian v.

United States, 531 F.2d 900 (Sth Cir. 1976), claims against a legal aid

attorney were dismissed because she was not acting under color of state

law; but there is no discussion to indicate the basis for the court’s conelu-

sion. Also, hospital employees were held not to be under § 1983 both

because they acted pursuant to a facially valid court order and because

they were federal and not state employees. Again the decision of this case

does not appear to be applicable to the facts before us.

'2In Santiago v. Corporacion de Renovacion Urbana Y Vivienda de

Puerto Rico, 554 F.2d 1210 (1st Cir. 1977), we diseussed whether the de-

fendant, a public body created by the Commonwealth of Puerto Rico, was

a “person” under section 1983 in light of Monroe v. Pape, 365 U.S. 167

(1961) and City of Kenosha v. Bruno, 412 U.S. 507 (1973). Implicit in

the entire discussion was the belief that aside from Monroe v. Pape munie-

ipal immunity, a corporate or institutional entity may be fully liable under

section 1983. No party has suggested nor do we see any reason to conclude

that Milo Community Hospital is not a person subject to suit for the pur-

poses of this action.

28 GEORGIA MAE DOWNS U. SAWTELLE

398 U.S. 144, 152 (1970); Smith v. Brookshire Brothers,

Inec., 519 F.2d 93, 94 (Sth Cir. 1975). We must now deter-

mine if and to what extent any of these defendants are

immune from liability for damages.

Il, IMMUNITY

Section 1983 provides that “[e]very person” who, acting

under color of state law, deprives another of a constitutional

right is answerable to the injured party in a suit for

damages."* On its face, “(t]he statute thus creates a

species of tort liability that . .. admits of no immunities.”

Imbler v. Pachtman, 424 U.S. 409, 417 (1976). On several

occasions, however, the Supreme Court has rebuffed at-

tempts to apply the statute as strictly as it reads. Specific-

ally, the Court has held that legislators and judges enjoy

absolute immunity from $1983 damage diability for acts

performed in their official capacities. See Pierson v. Ray,

386 U.S. 547, 554-55 (1967) and Bradley v. Fisher, 80 U.S.

(13 Wall.) 335, 344-57 (1872) (judges); Tenny v. Brand-

hove, 341 U.S. 367, 372-79 (1951) (legislators). More re-

cently the Court extended a similar immunity to prosecu-

tors for actions taken in connection with “initiating a prose-

cution and ... presenting the State’s case.” Imbler v.

Pachtman, supra, 424 U.S. at 431.

These decisions were grounded in part upon the reasoned

conclusion that in enacting § 1983 the Reconstruction Con-

gress did not intend “to abolish wholesale all common-law

immunities.” Pierson v. Ray, 386 U.S., supra, at 554. To

18 The statute provides as follows:

“Every person who, under color of any statute, ordinance, regula-

tion, custom, or usage, of any State or Territory, subjects, or causes

to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other proper pro-

ceeding for redress.” 42 U.S.C. § 1983.

OPINION OF THE COURT. 29

date, however, the Court has jealously guarded the protec-

tion accorded judges, legislators and prosecutors to the

extent that no other state officials have been cloaked with

absolute immunity. Instead the Court has sanctioned a

“qualified immunity” which shields certain state actors

from damage liabilicy ior official actions found to have been

taken in “good faith.” O’Connor v. Donaldson, 422 U.S.

563 (1975); Wood v. Strickland, 420 U.S. 308 (1975);

Scheuer v. Rhodes, 416 U.S. 232 (1974); Pterson v. Ray,

supra. As the Court said in Wood, an official entitled to

assert the immunity will be subject to liability for damages

under § 1983.

“if he knew or reasonably should have known that the

action he took within the sphere of his official responsi-

bility would violate the constitutional rights of the

[plaintiff], or if he took the action with the malicious

intention to cause a deprivation of constitutional rights

or other injury to the [plaintiff].... A compensatory

award will be appropriate only if the [defendant]...

acted with such an impermissible motivation or with

such disregard of the [plaintiff’s] clearly established

constitutional rights that his action cannot reasonably

be characterized as being in good faith.” 420 U.S. at 322

(citation omitted).

As stated, the inquiry is comprised of both objective and

subjective components. And although the test was an-

nounced in the specific context of the liability of school

board members for'acts of “school discipline”, it is beyond

dispute that a much broader range of officials and official

actions are included within the test’s reach. See O'Connor

v. Donaldson, 422 U.S., supra, at 576-77.

Since O'Connor and Wood, the courts of appeals have

displayed little hesitancy in extending the qualified im-

30 GEORGIA MAE DOWNS U, SAWTELLE

munity to a variety of officials, including: (1) parole of-

ficers, Wolfel v. Sanborn, 555 F.2d 583, 591 (6th Cir. 1977) ;

(2) jailers, Bryan v. Jones, 530 F.2d 1210, 1213-15 (5th

Cir.) (en banc), cert. denied, 429 U.S. 865 (1976); (3) state

bank officials, Guzman v. Western State Bank of Devils

Lake, 540 F.2d 943, 951-52 (Sth Cir. 1976); (4) correctional

administrators, Knell v. Bensinger, 522 F.2d 720, 725 (7th

Cir. 1975); and (5) police officers, Foster v. Zuko, 540 F.2d

1310, 1314 (7th Cir. 1976). Perhaps in part because of the

readiness with which the courts have sanctioned Wood’s

application, the district court in this case presumed that the

three social workers and Dr. Curtis were entitled to assert

a qualified immunity.

We do not disagree with the district court’s conclusion

that a physician in Dr. Curtis’ position should be permitted

to assert a qualified immunity defense, see O'Connor v.

Donaldson, supra. As to the merits of his defense, we have

no difficulty in holding that a member of the medical profes-

sion reasonably should be aware that irrevocably terminat-

ing a patient’s ability to bear children without her consent

is a deprivation of a fundamental constitutional right. See

generally Roe v. Wade, 410 U.S. 113 (1975); Griswold v.

Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316

U.S. 535 (1942); Meyer v. Nebraska, 262 U.S. 390 (1923),

as to primacy of the right to bear and raise children.

What is less clear here is whether or not there was

sufficient evidence for a jury to determine that there was

no free and informed consent and that this lack of consent

was intelligbly communicated to Dr. Curtis. If Dr. Curtis

negligently interpreted plaintiff’s communications to indi-

cate she consented to the operation he is not liable under

the standards enunciated in Wood, even if plaintiff did not

intend to consent. However, if a jury could reasonably

conclude that Dr. Curtis determined that sterilizing the

OPINION OF THE COURT. 31

plaintiff was for her own good or the good of society and

as a consequence of that belief ignored indications from

the plaintiff that she did not consent to the operation, or

if it could conclude that he attempted to take advantage

of her mental and communication limitations to unduly

influence her decision, he would be liable under both com-

ponents of the Wood test. He should reasonably have

known that such conduct amounted to an unconstitutional

deprivation and he would be acting with a malicious motive.

The fact that the doctor thought he had plaintiff’s best in-

terests at heart would not justify a qualified immunity for

constitutional purposes any more than would the belief, if

asserted by a discriminatory employer or educator, that

minority group members are happier and more productive

in a segregated environment.

The district court’s bench ruling directing a verdict for

Dr. Curtis did not elaborate on its finding that “plaintiff

has failed to meet her burden of showing that Dr. Curtis -

acted with malice or otherwise in bad faith.” In reviewing

this conclusion we must reverse the district court’s judg-

ment if “the evidence, viewed in the light most favorable

to the party against whom the motion for directed verdict

is made, is such that fair-minded men may draw different

inferences therefrom and reasonably disagree as to what

the verdict should be... .” Arnold vy. Aetna Engineering

Co., 514 F.2d 1147, 1148 (1st Cir. 1975). We find that there

is sufficient evidence for reasonable men to disagree as to

Dr. Curtis’ intentions and that this issue should be pre-

sented to the jury.

'* See Duchesne v. Sugarman, No. 76-7475, slip op. 6111, 6126-27 n.24

(2d Cir. Sept. 28, 1977) (“Nevertheless, ‘{[o]f all tyrannies a tyranny sin-

cerely exercised for the good of its victims may be the most oppressive ....

{T] hose who torment us for our own good will torment us without end for

they do so with the approval of their own conscience.’ Goldstein {Medical

Care for the Child at Risk: On State Supervention of Parental Autonomy,

86 Yale L. J. 645 n.19 (1977) ], quoting, Lewis, The Humanitarian Theory

of Punishment, 6 Res Judicatae 224, 228 (1952).”).

32 GEORGIA MAE DOWNS U. SAWTELLE

A jury could conclude (1) that Dr. Curtis believed plain-

tiff to be promiscuous, of low intelligence and easily in-

fluenced, and that he concluded that her sterilization would

be in her best interest; (2) that as a consequence of that

belief, he deliberately ignored repeated indications from

piaintiff and her fiance that they did not want the opera-

tion to take place; (3) that for the same reason the doctor

failed to take any of the precautionary steps that might

have prevented the operation, i.e., that he did not call the

probate judge to determine if plaintiff's guardian could

legally consent to the sterilization,** he did not obtain plain-

tiff’s signature on the sterilization permit, and he accepted

without dispute advisory reports from his colleagues that

included non-medical conclusions of a speculative and

prejudicial nature; and (4) that Dr. Curtis took advantage

of plaintiff’s difficulty in communicating and impressionable

nature to manipulate her into consenting to the operation.

In evaluating the doctor’s conduct we may take cogni-

zance of the extraordinary degree of helplessness of the

plaintiff. Malice for constitutional purposes includes “eal-

lous” or “wanton neglect”, Harper v. Cserr, 544 F.2d, supra,

at 1121, and “ ‘reckless indifference to the rights of the

individual citizen’”, Kelley v. Dunne, 344 F.2d 12% (lst

Cir. 1965). Whether conduct is wanton or reckless depends

in part on the context in which it occurs, and this ineludes

the inability of the victim to protect himself.

'* Even though he did not attempt to determine if he had a legal basis to

perform the operation, it might be that a spendthrift guardian, appointed

under 18 M.R.S.A. § 1801, has authority to consent. But see Wade v.

Bethesda Hospital, 356 F. Supp. 380, 383 (S.D. Ohio 1973). In such

event, the doctor would have acted in accordance with the statute. This

being the case, there could be a deprivation of plaintiff's constitutional

rights only if the statute were to be held unconstitutional at least as ap-

plied here. See Sparkman v. McFarlin, 552 F.2d 172, 173 (7th Cir. 1977),

petition for cert. filed, 45 U.S.L.W. 3847 (U.S. June 8, 1977) (No.

76-1750). We express no position on this issue at this time.

OPINION OF THE COURT. 33

We do not intimate that any of the above inferences

are true. The evidence that supports them is in dispute. In

many cases conflicting inferences can be drawn from the

same set of facts. We are solely concerned with the pos-

sibility that, given the condition of the plaintiff and the

evidence described, reasonable men could come to the con-

clusion that the doctor did not act in good faith.”* As the

Second Cireuit noted recently in Duchesne v. Sugarman,

supra, in a complicated § 1983 suit against welfare em-

ployees and child care institutions for taking custody of two

children without their mother’s consent, “the issue of good

faith presents questions of fact which are peculiarly within

the jury’s province.” We think that generalization is

equally applicable to this case. Plaintiff should be given

the opportunity to convince a jury that she has a right to

recover damages for the injury she alleges.

The district court also assumed that the state social

workers were entitled to rely upon the good faith immunity.

Based upon our reading of the Supreme Court’s decisions

in this area, we believe that such an assumption was im-

proper.’ As we interpret the existing precedent, the Court

has never attempted to articulate a wholesale immunity for

all state officials. As the Court recently explained in Jmbler,

the

“earlier decisions on § 1983 immunities were not products

of judicial fiat that officials in different branches of

16 Reversal of the directed verdict granted the doctor is limited to the

cause of action for sterilizing plaintiff. Because the doctor was not involved

in postponing plaintiff's marriage or removing the second child from her

custody, we affirm so much of the district court ruling as directed a verdict

for the doctor on those allegations.

*? Sections I and III of this opinion reflect the unanimous judgment of

the court, as does the discussion of Dr. Curtis’ immunity in Section II.

The balance of Section II, which treats the purported immunity of the

social workers and Roberta Sawtelle, reflects the judgment of the majority,

Judges Tuttle and Wollenberg. Chief Judge Coffin dissents from this por-

tion of Section II.

34 GEORGIA MAE DOWNS U. SAWTELLE

government are differently amenable to suit under § 1983.

Rather each was predicated upon a considered inquiry

into the immunity historically accorded the relevant

official at common law and the interests behind it.” 424

U.S. at 421 (emphasis added).

The requisite inquiry thus is two-fold. As an initial matter,

the district court should consult the cezmnon law to deter-

mine whether or not the particular official sued has tradi-

tionally been accorded any sort of immunity in actions com-

parable to the cause of action asserted under § 1983. For

example, in Pierson the Court held that

“the defense of good faith and probable cause, which

the Court of Appeals found available to [police] offi-

cers in the common-law action for false arrest and im-

prisonment, is also available to them in the action under

§ 1983.” 386 U.S. at 557.

And in Wood, the grant of a qualified immunity to the

school officials sued there was based in part upon the find-

ing that

“lajlthough there have been differing emphases and

formulations of the common-law immunity of public

school officials in cases of studeni expulsion or suspen-

sion, state courts have generally recognized that such

officers should be protected from tort liability under state

law for all good-faith, nonmalicious action taken to ful-

fill their official duties.” 420 U.S. at 318 (footnote

omitted ).

In light of the significant role played by an analysis of

relevant common-law principles in the Supreme Court’s

decisions, no less can be required each time a lower court

seeks to extend the immunity to yet another category of

officials.

OPINION OF THE COURT. 35

The second phase of the analysis recognizes that the

common-law tradition may not always serve as an infallible

guide. When necessary, the Court has exhibited a willing-

uess to make available a qualified immunity “to avoid

discouraging effective official action by public officers

charged with a considerable range of responsibility and

discretion.” Wood vy. Strickland, 420 U.S. at 317-18. That

en element of public policy is in some instances inherent in

the inquiry was made clear in Scheuer, where the Court

summarized as follows:

“This official immunity [of government officials] appar-

ently rested, in its genesis, on two mutually dependent

rationales: (1) the injustice, particularly in the absence

of bad faith, of subjecting to liability an officer who is

required, by the legal obligations of his position, to exer-

cise discretion; (2) the danger that the threat of such

liability would deter his willingness to execute his office

with the decisiveness and the judgment required by the

public good.” 416 U.S. at 239-40.

Against this background, the Court went on to hold that

in each instance the immunization available depends upon

ihe “scope of discretion and responsibilities of the office

and all of the circumstances as they reasonably appeared

at the time of the action” for which relief is sought. /d.

at 247. In this context, the qualified immunity rests in

part upon the idea that public policy requires that certain

officials be able to perform their discretionary duties with-

out having to fear that good-faith errors in judgment may

ultimately result in damages liability.

Neither the Supreme Court nor this court has ever held

that state social workers are entitled to assert a qualified

immunity.'* As previously indicated, the district court

** One court has applied the Wood standards in a § 1983 action against

“supervisory level municipal welfare employees.” Duchesne v. Sugarman,

36 GEORGIA MAE DOWNS U. SAWTELLE

merely presumed that such was the case. Consequently, the

“considered inquiry” referred to in Imbler was never un-

dertaken. The exacting nature of the task imposed requires

that the defendants first be given an opportunity to develop

the relevant factual data and legal principles, thus pro-

viding the district court a proper basis for decision. It

may well be that if this court is subsequently called upon

to review the findings made in this regard, these defend-

ants’ beliefs in the availability of a qualified immunity

will be sustained. However, in the absence of any factual

development as to the nature of the positions involved and

the range of responsibilities committed to these defend-

ants, it would be inappropriate at this point for this court

to attempt to answer such a crucial question.”

No. 76-7475, slip op. 6111 (2d Cir. Sept. 28, 1977). However, the opinion

in that case suffers from the same lack of analysis evidenced in the instant

case.

Only if the district court is able to conelude that the social workers

are entitled to rely upon a good faith defense will the sufliciency of plain-

tiff’s proof of bad faith be called into issue. In this regard, we reiterate

that summary disposition is peculiarly inappropriate in cases in which

motive and intent play a leading role. And, while our resolation of the

immunity issues makes it unnecessary to pass upon the sufficiency of plain-

tiff’s proof, we note that our review of the record indicates that her claims

against the social workers should be resolved by the jury.

We do not believe that our requiring the district court to examine the

common law, the nature of the office involved, and the relevant policy con-

siderations before extending the good faith immunity to yet another class

of state officials is inconsistent with the recent decision in Procunier v.

Navarette, 46 U.S.L.W. 4144 (U.S. Feb. 22, 1978). Although one of the

dissenters in Procunier suggested that the majority opinion there, when

“coupled with O’Connor v. Donaldson . . . . strongly implies that every

defendant in a § 1983 action is entitled to assert a qualified immunity from

damage liability”, id. at 4148 (Stevens, J., dissenting), we do not share

that view.

The defendants in Procunier were state prison officials, and, as stated in

the majority opinion: “The courts of appeals have generally accorded

prison and jail administrators performing discretionary functions a quali-

fied immunity from monetary liability under § 1983." /d. at 4146 n7

(citations omitted). Although the Court's conelusion that the defendants

before it were entitled to rely upon the good faith immunity was not predi-

OPINION OF THE COURT. 37

There remains then only the asserted immunity of Ro-

herta Sawtelle, whese role in the operation and the taking

of plaintiff's child was played in concert with Dr. Curtis

and the social workers. Even if the district court is able to

conclude that the officials are protected by some qualified

immunity, Sawtelle is not entitled to benefit from such a

holding.

In Adickes v. Kress & Co., 398 U.S. 144 (1970) the plain-

tiff alleged in a $1983 action for damages a deprivation

of her Fourteenth Amendment equal protection rights as

a result of concerted action between certain police officers

and a public restaurant facility. /d. at 146-47. The Supreme

Court held that the district court had erred in granting

summary judgment against the plaintiff and explained:

“The involvement of a state official in... a conspiracy

{with a private party] plainly provides the state action

essential to show a direct violation of petitioner’s Four-

teenth Amendment equal protection rights, whether or

not the actions of the police were officially authorized or

lawful; ... Moreover, a private party involved in such a

conspiracy, even though not an official of the State, can

be liable under § 1983.” Jd. at 152 (citations omitted)

(emphasis added).

The significance of this holding becomes apparent only

when considered in the context in which it was announced —

the plaintiff sought damages from the private party alone,

and neither the state nor any state official was joined as

a defendant. It is thus plain that once the requisite show-

cated upon the “reasoned analysis” undertaken in prior cases, such an

analysis was not necessary under the circumstances. Prior to Procunier

there had developed in the circuits a substantial body of law as to the right

of prison officials to assert a qualified immunity under the terms and scope

of Wood. No such precedent exists with respect to the type of state official

sued in this ease.

38 GEORGIA MAE DOWNS VU, SAWTELLE

ing of concerted action is made, and assuming that some

colorable constitutional deprivation is made out, the in-

jured party has an independent cause of action for dam-

ages against the private party involved. The ultimate des-

tiny of the private party can in no way be said to depend

upon the status of the official with whom he conspired or

upon the defenses available to that official. The concerted

action which permits a finding of state action cannot simply

be erased by the absence of the state actor as a defendant

or by the fact that the state actor might later raise a sue-

cessful defense to the plaintiff’s claim.

Nor can it be said that a private individual shown to

have acted in concert with state officials may rely upon

any type of qualified immunity, whether derivatively or

otherwise. In Monroe v. Pape, 365 U.S. 167, 187 (1961),

the Supreme Court held that § 1983 “should be read against

the background of tort lie lity that makes a man respons-

ible for the natural consequences of his actions.” In the

ease of public officials, the Court has reasoned that a “good

faith” qualified immunity is an integral part of this back-

ground, Pierson v. Ray, 386 U.S. at 556-57, and that certain

officials are therefore entitled to rely upon such an immun-

itv. But the Court has never held that private individuals

are in any way shielded from damage liability in a compar-

able fashion. To the contrary, the Court in Adickes recog-

nized the plaintiff’s right to proceed solely against the

private defendant, despite the fact that three vears earlier

the Court had sanctioned a qualified immunity for the police

officers with whom the defendant allegedly had conspired.

See Pierson v. Ray, supra.

To place this court’s imprimatur upon an immunity in

favor of a private individual could in many instanees work

to eviscerate the fragile protection of individual liberties

afforded by the statute. Private parties simply are not

OPINION OF THE COURT. 39

confronted with the pressures of office, the often split-

second decisionmaking or the constant threat of liability

facing police officers, governors and other public officials.

Whatever factors of policy and fairness militate in favor

of extending some immunity to private parties acting in

concert with state officials were resolved by Congress in

favor of those who claim a deprivation of constitutional

rights. Consequent!y, we hold that the Wood defense is

not available to Roberta Sawtelle and that her liability is

to be determined by the jury without regard to any claim

of good faith.

Ill. THE §1985 CLAIM

Plaintiff has failed to present authority for her assertion

that the deaf constitute a class for the purposes of 42

U.S.C. § 1985. Even if such a class is cognizable, but see

Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972), plaintiff

has not established that her membership in it was the cause

of the alleged discrimination against her. See Harrison v.

Bracks, 519 F.2d 1358 (1st Cir. 1975). The district court

properly dismissed the § 1985 claim against all defendants.

Affirmed in part, reversed in part, and remanded,

Corrin, Chief Judge, dissenting. I respectfully dissent

from that part of the majority opinion relating to the

immunity of Roberta Sawtelle, and the three defendant

social workers. The majority contends that public officials

should receive absolute or qualified immunity from § 1983

liability only if common law traditions of immunity or

public policy interests in protecting the free exercise of

official discretion are found to require the extension of

such protection to particular classes of officials. As an

abstract proposition, this approach has a certain attrac-

tion. But at the present time a significant body of case law

has developed concerning who is eligible for immunity.

Reasonable inferences from these precedents convince me

40 GEORGIA MAE DOWNS U. SAWTELLE

that a remand is unnecessary on this issue and that social

workers fall within the range of those permitted to assert

the qualified immunity detailed in Wood v. Strickland, 420

U.S, 308 (1975).

The majority acknowledges that the Supreme Court has

extended qualified immunity to include hospital admini-

strators, school officials, police officers, prison officials, and

executive officers. Lower courts have applied the Wood vy.

Strickland test to parole officers, correctional staff, and

even state bank officials. I fail to see why one would doubt

that social workers would be included within this official

continuum. There seems little basis for distinguishing

them in terms of the public policy rationale, and social

workers are a new enough profession to make it unlikely

that relevant common law traditions will shed light on their

status. Rather than remand for a determination whether

or not the social workers were entitled to assert a qualified

immunity defense, | would hold that they are and proceed

directly to the question whether sufficient evidence has been

presented to reach the jury as to their subjective and

objective “bad faith”. However, in light of the majority’s

disposition of this issue, I express no opinion as to whether

the record supports a directed verdict on the immunity

question.

My second point of disagreement with the majority

concerns the liability ot Roberta Sawtelle. It is by no

means clear to me that a private party allegedly acting in

concert with state actors should be subject to damages, if

the state actors can successfully assert a qualified or abso-

lute immunity. The majority’s analysis based on the

Adickes ease is not without merit. And 1 share the desire

to avoid any erosion of the protections afforded citizens

by $1983. But both a sense of fairness and public policy

caution against adopting an inflexible rule permitting pri-

OPINION OF THE COURT. 41

vate parties to be held liable when relevant and perhaps

critically important state actors are immune. Particularly

strong is the case for not imposing liability on a private

person when his state actor collaborator has not manifested

sufficient bad faith to breach a qualified immunity. There-

fore, to the extent the state actors with whom Ms. Sawtelle

allegedly acted in concert are found to be immune under

Wood v. Strickland, | would hold that the corresponding

claims against Ms. Sawtelle should be dismissed.

Gnited States Court of Appeals

For the First Circuit

No. 77-1260.

GEORGIA MAF DOWNS,

PLAINTIFF, APPELLANT,

Vv.

ROBERTA SAWTELLE, ET AL.,

DEFENDANTS, APPELLEES.

JUDGMENT

Entered March 30, 1978

This cause came on to be heard on appeal from the

United States District Court for the District of Maine, and

was argued by counsel.

Upon consideration whereof, It is now here ordered,

adjudged and decreed as follows: The judgment of the

district court is affirmed in part, vacated in part and re-

manded for further proceedings in accordance with the

opinion filed this day.

Costs are to be assessed as follows: Appellant may re-

cover 60% of her costs from appellees Milo Community

Hospital and John B. Curtis; appellant may recover 20%

of her costs from appellees Ruth A. Hagan, Marilyn B.

Dow, Mary Lou Pattison and Roberta Sawtelle; Appellees

Davis A. Goodine, Ava Strout and Carl H. Carlson may

recover their costs from appellant.

By the Court:

/s/ Dana H. Gatuup

Clerk.

_—

43

RELEVANT STATUTORY PROVISIONS

Me. Rey. Stat. Ann. tit. 18, § 3505 (1964)

§ 3505. General duties of guardian

The guardian shall settle all accounts of his ward; pay all

his just debts out of his personal estate so far as it will go

without disposing of effects necessary for the use and com-

fort of the ward and his family, and in case of deficiency

thereof, then out of the real estate: demand, sue for and

receive all his dues, compound for the same and give dis-

charges thereof on such terms as the judge authorizes;

appear for and represent his ward in all legal proceedings

unless another is appointed for that purpose as guardian or

next friend; and may insure any estate of his ward

Me. Rev. Stat. Ann. tit. 18, § 3605 (1964)

§ 3605. Authority and duties

Such guardians shall have the custody of the persons of

their wards, if resident in the State, except so far as the

court of probate may from time to time otherwise order.

Every guardian appointed over any person for gambling,

idleness, drinking or debauchery shall ineuleate upon him

habits of sobriety and industry, and when of sufficient

health and strength, with the approbation of the judge,

mav bind him out to labor, not exceeding 6 months at any

one time, or employ him in his own service, giving credit

for his earnings or such sum as he receives therefor.

or é; :

}

44

Me. Rey. Stat. Ann. tit. 22, § 3794 (Supp. 1975), as amended,

Me. Rey. Stat. Ann. tit. 22, § 3794 (Supp. 1977)

§ 3794. Bond required for private custody; maintenance and

education; children and relatives not paupers

The department shall provide for the maintenance and

education in or by duly incorporated children’s institutions

and child welfare organizations, or in family homes, of any

children committed to its custody under sections 3791 to

3793. Bills itemizing the expense of maintenance and edu-

cation of children committed under this chapter, when

approved by the department, shall be paid by the State as

provided by law. At the request of the parents or next

friend of any dependent child under 18 years of age who is

without parent or grandparent of sufficient ability, or with-

out other relatives able and willing to provide for its care,

the department may make provision, without intervention

of court, for the care of such child. No such child, nor the

parents or grandparents of such child who are unable to

provide for its care, shall be deemed paupers by reason of

any care furnished to the child under this chapter. The

settlement of a child committed to custody other than that

of a parent under this chapter shall not change during the

period of such custody.

42 U.S.C. § 1983

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of7any State or Territory,

subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities se-

eured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other

proper proceeding for redress.