Petition — Washington County Hospital Ass'n v. Morrison

Office - Suoreme Court, U.S

i 2 - 1 986 FILED

No. JUN 6 1983

ALEXANDER L. STEVAS,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

WASHINGTON COUNTY HOSPITAL ASSOCIATION, INC..

Pe titione a

BERTHA MORRISON AS ADMINISTRATRIX

OF THE ESTATE OF SYLVESTER MORRISON, JR..

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

MACK B. BINION

Post Office Drawer

yo wk) ow f

y At at

Mobile, Alabama 36652

Tel. (205) 432-4481

Counsel for the Washi) gton

County Hosp tal

Association, Ine.

QUESTIONS PRESENTED

1. Is the discharge of a patient from a county hospital

by his private physician ‘“‘state action” on the part of the

Hospital?

2. Does a negligence claim against a county hospital

arise under the U.S. Constitution or federal law?

3. May a federal court, after summarily dismissing a

Plaintiff’s claims for lack of a federal question, never-

theless adjudicate those claims?

4. Was the district court’s grant of the Hospital’s

Motion for Summary Judgment proper as it is undis-

puted that the discharge of Morrison by his private

physician was not pursuant to any custom or policy of

the Hospital?

(i)

li

LIST OF ALL PARTIES

I. Petitioner:

Washington County Hospital Association, Inc.

II]. Respondents:

A. Plaintiff Below:

B.

Bertha Morrison, individually and as adminis-

tratrix of the Estate of Sylvester Morrison, Jr.

Defendants Below:

Dr. Paul Petcher

Washington County Commission, Abb Turner,

Leonard Sullivan, Bodie Carpenter, Sherwood

Dees, John Armstrong

Sheriff of Washington County, William Wheat

TABLE OF CONTENTS

QUESTIONS PRESENTED

LIST OF ALL PARTIES

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVI

SIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I. The discharge of a patient from a county hospital

by his private physician is not “state action” on

the part of the hospital

Il. Anegligence claim against a county hospital does

not arise under the I'S. Constitution or federal

law

III]. A federal court may not, after summarily dis-

missing a Plaintiff's claims for lack of a federal

question, nevertheless adjudicate those claims

IV. The district court’s grant of the Hospital’s mo-

tion for summary judgment was proper as it is

undisputed that the discharge of Morrison by his

private physician was not pursuant to any cus-

tom or policy of the Hospital

CONCLUSION

(ili)

Page

10

19

iv

TABLE OF CONTENTS—Continued

Page

APPENDIX A. Opinion of the Court of Appeals for

a. pee Circa... la

APPENDIX B. Opinion of the U.S. District Court for

the Southern District of Alabama l5a

APPENDIX C. Order of the U.S. District Court. 3la

APPENDIX D. Order of the U.S. District Court.. 35a

APPENDIX E. Memorandum of Decision of the U.S.

District Court 37a

APPENDIX F. Judgment of the Court of Appeals for

the Eleventh Circuit 65a

APPENDIX G. _ Denial of Petition for Rehearing by

the Court of Appeals for the Elev-

enth Circuit 67a

APPENDIX H. Affidavit of Dr. David H. Knott 69a

TABLE OF AUTHORITIES

United States Constitution Page

Amendment V .... BESTE SRG RES Sa 2, G, 26

Amendment VIII 2, 6, 16

Amendment XIV, Section 1 if 2, 6, lz, 1-17

Statutes

28 U.S.C. § 1264(1) 2.3

re Uo. § 193 3, o

38 U.S.C. § 18438(8) 3,5

42 U.S.C. § 19838 a, 6, 10, 14, 16, 16, 18, 20

Alabama Code § 6-5-410 4,5

Alabama Code § 22-21-31 4,11

Hospital Rule 17 5, 9, 10, 20, 21

Cases

Aldinger v. Howard, 427 U.S. 1, 49 L.Ed.2d 276

(1976) 10, 18, 21

Baker v. McCollan, 443 U.S. 137, 61 L.Ed.2d 443

(1979) 17

Barfield v. South Highland Infirmary, 68 So. 30

(Ala. 1915) . 20

Bium v. Yaretaky, ——- U.S. ——-., 78 L.Ed.2d 53

(1982) 11-13, 15, 2]

Clark v. Paul Gray, Inc., 306 U.S. 583, 83 L.Ed.

1001 (1939) 19

Estell v. Gamble, 429 U.S. 97, 50 L.Ed.2d 251

(1976) ee, 16

Ingraham v. Wright, 430 U.S. 651, 51 L.Ed.2d 711

(1977) 17

Lynch v. Baxley, 386 F. Supp. 378 (M.D. Ala.

1974) 15

Monell v. Denartment of Social Services, 436 U.S.

658, 56 L.Ed.2d 611 (1978) .. Cones 19, 20, 21

Parratt v. Tavior, 451 U.S. 527, 68 L.Ed.2d 420

(1978) 14, 16

Robinson v. Crotwell, 57 So. 23 (Ala. 1911) _........ 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No.

WASHINGTON COUNTY HOSPITAL ASSOCIATION, INC.,

f Petitioner,

BERTHA MORRISON AS ADMINISTRATRIX

OF THE ESTATE OF SYLVESTER MORRISON, JR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals for the Eleventh

Circuit, ——— F.2d —— (1983), is attached as Appen-

dix A.

The Opinion of the U.S. District Court for the South-

ern District of Alabama, 521 F.Supp. 947 (1981), is at-

tached for information as Appendix B. This Opinion

does not directly involve the Petitioner, which has granted

summary judgment prior to trial.

JURISDICTION

1. On March 17, 1983, the Court of Appeals for the

Eleventh Circuit entered its judgment, attached as Ap-

pendyx F, reversing the district court in this matter.

The Court of Appeals, by Order dated April 25, 1983,

2

and attached as Appendix G denied the Washington

County Hospital Association, Inc.’s Petition for Rehear-

ing and Suggestion for Hearing En Banc.

2. The jurisdiction of this Court to review the Judg-

ment of the Court of Appeals, and its issue the Writ of

Certiorari, is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

United States Constitution:

Amendment V:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a grand jury, except in cases arising

in the land or naval forces, or in the militia, when

in actual service in time of war or public danger;

nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb, nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall pri-

vate property be taken for public use without just

compensation”’.

Amendment VIII:

“Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishment in-

flicted”’.

Amendment XIV, Section 1:

‘All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they

reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person with-

in its jurisdiction the equal protection of the laws”.

Statutes:

28 U.S.C. § 1254(1):

“Cases in the court of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition

of any party to any civil or criminal case, before or

after rendition of judgment or decree”’.

28 U.S.C. § 1331:

“The district courts shall have jurisdiction of all

civil actions arising under the Constitution, laws, or

treaties of the United States’’.

28 U.S.C. § 1343:

(a) “The district courts shall have original jurisdic-

tion of any civil action authorized by law to be com-

menced by any person:

(3) “To redress the deprivation, under color of

any State law, statute, ordinance, regula-

tion, custom or usage, of any right, privilege

or immunity secured by the Constitution of

the United States or by any Act of Congress

providing for equal rights of citizens or of

all persons within the jurisdiction of the

United States”’.

42 U.S.C. § 1983:

“Every person who, under color of any statute, ordi-

nance, regulations, custom, or usage, of any State or

Territory or the District of Columbia, 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 im-

munities secured 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 re-

dress. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Co-

lumbia shall be considered to be a statute of the Dis-

trict of Columbia”’.

Alabama Code § 6-5-410:

“(a) A personal representative may commence an

action and recover such damages as the jury may as-

sess in a court of competent jurisdiction within the

State of Alabama, and not elsewhere, for the wrong-

ful act, omission or negligence of any person, per-

sons or corporation, his or their servants or agents,

whereby the death of his testator in intestate was

caused, provided the testator or intestate could have

commenced an action for such wrongful act, omission

or negligence if it had not caused death.

(b) Such action shall not abate by the death of the

Defendant, but may be revived against his personal

representative and may be maintained though there

has not been prosecution, conviction, or acquittal of

the Defendant for the wrongful act, omission or neg-

ligence.

(c) The damages recovered are not subject to the

payment of the debts or liabilities of the testator or

intestate, but must be distributed according to the

statute of limitations.

(d) Such action must be commenced within two

years from and after the death of the testator or

intestate.”

Alabama Code § 22-21-31:

“Nothing in this article shall be construed as author-

izing any person to engage in any manner in the

practice of medicine or any other profession nor to

authorize any person to engage in the business of

child-placing. Any child born in any such institution

whose mother is unable to care for such child or any

child who, for any reason, will be left destitute of

parental support shall be reported to the state de-

partment of pensions and security or to any agency

authorized or licensed by the state department of

pensions and security to engage in child placing for

such service as the child and the mother may re-

quire. In the rendering of such service, representa-

5

tives of the state department of pensions and security

and agencies authorized or licensed by the state de-

partment of pensions and security shall have free ac-

cess to visit the child and the mother concerned.

(Acts 1949, No. 530, p. 835, § 2; Acts 1962, Ex.Sess.,

No. 122, p. 157, § 2.)”

Washington County Hospital Rule 17:

“Patients shall be discharged only on the written or-

der of the attending physician. At the time of dis-

charge, the attending physician shall see that the

record is complete, state his final diagnosis and sign

the record.”

STATEMENT OF THE CASE

On November 7, 1979, Bertha Morrison, Administra-

trix of the Estate of Sylvester Morrison (hereinafter

“Plaintiff’’), filed suit in federal district court against

members of the Washington County Commission, the

Washington County Hospital Association, Inc. (herein-

after ‘“Hospital”), and the Washington County Sheriff.

By Amended Complaint, the Plaintiff added as a Defend-

ant, Sylvester Morrison’s (hereinafter ‘“Morrison’’) at-

tending physician, Dr. Paul Petcher. Plaintiff alleged

jurisdiction pursuant to 28 U.S.C. § 1331 and § 1343(3),

and sought to invoke the district court’s pendent juris-

diction with respect to a state wrongful death claim.’

(x. 1, 2)

1 Alabama Code § 6-5-410 provides: (a) A personal representative

may commence an action and recover such damages as the jury may

assess in a court of competent jurisdiction within the State of Ala-

bama, and not elsewhere, for the wrongful act, omission or negli-

gence of any person, persons or corporation, his or their servants or

agents, whereby the death of his testator in intestate was caused,

provided the testator or intestate could have commenced an action

for such wrongful act, omission or negligence if it had not caused

death; (b) Such action shall not abate by the death of the Defend-

ant, but may be revived against his personal representative and may

be maintained though there has not been prosecution, conviction, or

acquittal of the Defendant for the wrongful act, omission or negli-

6

Pursuant to 42 U.S.C. $1983, the Plaintiff alleged

that the Defendants deprived Morrison of life without

due process of law, and imposed on him cruel and un-

usual punishment in violation of the Fifth, Eighth, and

Fourteenth Amendments to the U.S. Constitution. (R.

1, 2)

Plaintiff alleged that the ‘Hospital, through its em-

ployees, negligently failed to provide adequate diagnosis,

supervision, and treatment for Mr. Morrison’s condi-

tion’, and “negligently allowed Mr. Morrison’s release

or transfer to the Washington County Jail”. (R. 3, 4)

The Hospital is a thirty (30) bed facility supported by

tax revenues. Located in a rural area, the Hospital af-

fords staff privileges to three (3) active physicians, all

of whom are in private practice in Washington County.

The Hospital employs no doctors.

The deposition of Dr. Paul Petcher, Morrison’s private

physician of some years, was taken on June 11, 1980.

Subsequent to Petcher’s deposition, the Hospital moved

for summary judgment on the federal and state claims.

(R. 154) By Memorandum of Decision dated October 8,

1980, the district court granted the Hospital’s motion as

to the federal claims, and dismissed the state pendent

claims, expressly noting that the Plaintiff had time to

file in state court before the two year Statute of Limita-

tions ran. The Court’s Memorandum detailed the undis-

puted facts on the record before it, and is attached as

Appendix E. A short summary of the record before the

district court is necessary for an understanding of this

case,

Dr. Petcher testified that Morrison voluntarily went

to the Hospital for treatment on November 7. 1979, and

gence; (c) The damages recovered are not subject to the payment of

the debts or liabilities of the testator or intestate, but must be dis-

tributed according to the statute of limitations; and (d) Such action

must be commenced within two years from and after the death of

the testator or intestate.”

7

was admitted on that day by Dr. Patterson, a partner

of Dr. Petcher. On November 8, 1979, Dr. Petcher

diagnosed his patient as suffering from both diabetes

mellitus and delirium tremens (D.T.’s). Morrison at-

tempted to leave the Hospital that morning, but Dr.

Petcher was then able to coax him back to his room. By

depositions, Hospital staff nurses testified that as the day

progressed, Morrison became uncontrollable. He threw

a lounge chair across the room and pulled the I.V. out of

his arm. He was actually locked in a private room to

protect other patients and the Hospital staff.

Dr. Petcher testified that on the morning of Novem-

ber 8, 1979, he had nurses attempt to call members of

Morrison’s family to the Hospital. Five (5) family

members arrived at 6:00 p.m. and left at 7:00 p.m. Dr.

Petcher testified that the family refused to stay in the

room with Morrison to help settle him, and furthermore,

would not agree to take him home for the night.2. That

night, the doctor called a local mental health official in an

attempt to have his private patient admitted to the

alcohol withdrawal unit at Searcy Mental Institution.

Petcher was told by the mental health official that such

a transfer was impossible without first having a com-

mitment hearing.

At approximately 8:00 p.m., Dr. Petcher ordered that

Morrison be sedated, and that a nurse call the police to

come to the Hospital. The nurse’s telephonic request that

a police officer come to the Hospital was the sole act by

the Hospital or its staff in any way related to Morrison’s

ultimate incarceration in the jail. Dr. Petcher told the

police officers who came to the Hospital to see that some-

* Dr. Petcher’s testimony of what he told Morrison's family was

not disputed hy the Plaintiff prior to the district court’s issuance of

the Memorandum of Decision. The content of Dr. Petcher’s conver-

sation with the family later became a disputed issue of fact. although

it is not material to the Plaintiff's federal claims against the Hos-

pital.

8

one checked on Morrison’s condition once every hour and

report any changes to him. Approximately eight hours

later, under no medical supervision, Morrison died in the

Washington County Jail.

Plaintiff responded to the Hospital’s motion for sum-

mary judgment with the affidavit of Dr. David H. Knott,

her expert witness. The affidavit is attached as Appen-

dix H hereto. Dr. Knott said in relevant part:

The

said

Having had the opportunity to review the Hospital

records ... it is inconceivable to me that the decision

was made to discharge the patient from a hospital

setting to a totally medically unsupervised environ-

ment... It is not incumbent upon family members

to assume any treatment responsibility for a patient

who is as psychotie and critically ill as was Mr. Mor-

rison ... While the decision to transfer Mr. Morri-

son was obviously that of the attending physician, I

find it curious that no other health professiona! ques-

tioned the sagacity of such a move. (Appendix H at

69a-70a)

Hospital records referred to in Dr. Knott’s affidavit

in part:

At 6:00 p.m., Petcher met with family members at

the Hospital. Morrison was restless, talking to him-

self and possibly hallucinating. At 7:00 p.m., Morri-

son was in a raging state; he was agitated, restless

and threw a chair across the room. Petcher re-

sponded at approximately 7:15 p.m. and visited with

Morrison until approximately 8:00 p.m. when he di-

rected a member of the nursing staff to call the

Sheriff.

At approximately 8:15 p.m., Morrison was discharged

from the Hospital by Petcher and was given 100 mg.

of vistaril. On discharge, Petcher made the follow-

ing written orders:

“Patient unruly and family will not stay with him—

transferred to jail to be held until commitment to-

morrow.”

9

“Patient stayed at Hospital but was transferred to

jail as family would not stay with him and he could

not safely be kept without help—to go to Searcy in

a.m.” (Exhibit 8, Admitted Pre-Trial, R. 213)

The administrator of the Washington County Hospital

was Hiller Dickerson. By deposition, Dickerson testified

that decisions pertaining to the discharge of patients are

medical decisions to be made only by doctors. He testi-

fied that pursuant to Hospital Rule 17, no employee (ad-

ministrator or nurse) had the authority to discharge a

patient. Hospital Rule 17 provides:

Patients shall be discharged only on the written or-

der of the attending physician. At the time of dis-

charge, the attending physician shall see that the

record is complete, state his final diagnosis and sign

the record. Deposition of Hiller Dickerson at 52.

(Exhibit 4, Admitted Pre-Trial, R. 213)

Based on the record before it, the district court held

that Dr. Petcher was not acting “pursuant to a custom,

policy or practice of the Hospital in discharging Morri-

son to the police”. (Appendix E at 50a). “Therefore. the

court holds that . . . no custom, practice or policy op-

erated which resulted in Morrison being sent to the

county jail.” (Id. at 5la).

Although the district court directed the Plaintiff to

take her tort claims to state court where the limitations

period had not yet run, the Plaintiff declined to so file.

However, by Order of December 12, 1980, the district

court reinstated the Plaintiff’s tort claims against the

Hospital, apparently on grounds of judicial economy.

This Order is attached as Appendix D.

On December 19, 1980, the Hospital moved the district

court to dismiss the claims against it for lack of juris-

diction. (R. 274) By Order dated February 6, 1981, the

district court denied the Hospital’s motion, ruling that

“, .. this is not a situation where this court would not

10

otherwise have had subject matter jurisdiction over

claims asserted against the . . . [Hospital], and that,

‘“. . nothing which the Supreme Court said in Aldinger

v. Howard * forecloses this court from adjudicating the

wrongful death claim of Bertha Morrison against the

Defendants who are not faced with liability under any

federal claim”. This Order of the district court is at-

tached as Appendix C.

On July 13, 1981, after reviewing the applicable state

law, the district court granted summary judgment for

the Hospital on the wrongful death claim against it.

(R. 484) On appeal to the Court of Appeals for the

Eleventh Circuit, a three judge panel reversed both

grants of summary judgment in favor of the Hospital.

The Court of Appeals apparently ruled in respect to the

§ 1983 claim that there was state action:

While the Hospital staff may have performed under

the direction of Dr. Petcher, under the circumstances,

such is not sufficient to exonerate the Hospital as a

matter of law. F.2d at . (Appendix A at 6a).

The Petitioner herein contests 1) the Court of Appeals’

reversal of the district court’s summary judgment on the

$1983 claim; and 2) the jurisdiction of either the district

court or the Court of Appeals over the state claims

against the Petitioner.

REASONS FOR GRANTING THE WRIT

I. The Discharge of a Patient From a County Hospital by

His Private Physician is Not State Action on the Part

of the Hospital

Hospital Rule 17, which required all discharges to be

pursuant to written orders of a patient’s doctor, was, ac-

cording to the Plaintiff's own expert physician, good and

necessary medical practice. Deposition of Knott, at 50-51.

However, this did not prevent the Plaintiff, in her Court

3427 U.S. 1, 49 L.Ed.2d 276 (1976).

11

of Appeals Brief, from arguing that “the fact that the

Hospital chose to delegate to the medical staff” (of physi-

cians) the decision of discharging patients ‘will not in-

sulate it from liability”.

In Blum v. Yaretsky, ——— U.S. , 73 L.Ed.2d 534

(1982), a case involving the “delegation” to doctors of

authority to determine which levels of health care would

be given various patients in publicly funded nursing

homes, this Court found no state action and said in this

regard:

The purpose of this requirement is to assure that

constitutional standards are invoked only when it can

be said that the state is responsible for the specific

conduct of which the Plaintiff complains. The im-

portance of this assurance is evident when, as in

this case, the complaining party seeks to hold the

state liable for the actions of private parties.

U.S. at , 73 L.Ed.2d at 546.

It was clear on the record before the District Court

that Dr. Petcher’s decision to send Morrison to the jail

was made by the doctor alone. There was no genuine

issue of material fact that Dr. Petcher, rightly or

wrongly, took the initiative in all decisions of when, if,

and how to discharge Morrison. Dr. Petcher had testi-

fied in deposition that he sought to avoid sending his

patient to the jail by attempting an immediate transfer

of him to the alcohol withdrawal unit at a state mental

institution. Moreover, in opposing the Motion for Sum-

mary Judgment, the Plaintiff's expert by affidavit ad-

mitted “the decision to transfer Mr. Morrison was ob-

viously that of the attending physician”.

The Plaintiff's theory of state action by the Hospital

throughout this litigation has been that staff nurses failed

* Alabama Code § 22-21-31, which governs the licensure of Hos-

pitals, provides in part: “Nothing in this article shall be construed

as authorizing any person to engage in any manner in the practice

of medicine...” The discharge of a patient, as admitted by the

Plaintiff's expert, is manifestly a medical decision.

12

to object either to Dr. Petcher’s decision to discharge his

patient, or to his decision to have the Sheriff take the

patient to the county jail for the night until a commit-

ment hearing could be held the following morning. Ac-

cording to the Plaintiff’s Complaint, the nurses’ failure

was not only a breach of Morrison’s federal rights, but

also a breach of a tort duty under state law.

If the acquiescence in Dr. Petcher’s decision by the

nurses was negligent, the Plaintiff could have sued the

nurses for negligence, and the hospital for vicarious lia-

bility, in state court. But as this Court made clear in

Blum, supra:

Mere approval or acquiescence in the initiatives of

a private party is not sufficient to justify holding the

state responsible for those initiatives under the terms

of the Fourteenth Amendment. 73 L.Ed.2d at 547.

This is especially true when the Defendant is a hospital,

the initiatives are those of a private doctor, and the

acquiescence is by staff nurses.

Notwithstanding this Court’s opinion in Blum, the

Court of Appeals said:

This is not a ‘malpractice’ case as the hospital ap-

pellee contends, for it involves the practice and proce-

dures of the hospital’s treatment of “unruly” patients

and an incident where hospital staff telephoned the

Sheriff from the hospital to bodily remove a patient

from the hospital resulting in the patient’s death

in a jail cell .. . It is not merely the fact of dis-

charge but the manner of discharge which is at issue

in this case. F.2d (Appendix A at 6a).

These factual and legal conclusions of the Court of Ap-

peals, however, evade the record.

The Court of Appeals hypothesized the existence of

“the practices and procedures of the hospital’s treatment

of unruly patients” without delineating what those prac-

tices and procedures were. If they existed, what were

they? The undisputed record confirmed to the district

13

court that Dr. Petcher alone made the decisions about

what to do with Morrison, and that at least in Dr.

Petcher’s opinion, the unprecedented discharge by him

of one of his longtime patients to the jail was made nec-

essary by the unprecedented refusal of that violent pa-

tient’s family to stay with him in his hospital room.

(Appendix E at 48a). As the district court correctly said,

if Dr. Petcher was wrong, this is indeed a malpractice

case. (Id. at 48a)

It was not only the acquiescence of the nurses, but also

the alleged lack of facilities at the Hospital, that

prompted the Court of Appeals to find state action on

the part of the Hospital:

Morrison’s discharge was not purely a medical judg-

ment made by a private party according to profes-

sional standards. See Blum v. Yaretsky, - US.

——, 102 S.Ct. 2777, 2787, 73 L.Ed.2d 534, 549

(1982). Rather, the decision to discharge appears to

have been based upon administrative considerations

(e.g. lack of facilities, inadequate supervision) for

which the hospital cannot disavow responsibility.

(Appendix A at 5a-6a).

The Court of Appeals, ostensibly relying on Blum, ac-

tually embraced the dissent in that case to the effect that

since the “state’s desire to save money” (an administra-

tive consideration) influenced its delegation to doctors of

the authority to determine which facilities (and thus

funding) would be given various nursing home patients,

state action was present. Blum, supra, at 553 (| Brennan,

J. dissenting).

The fact that a hospital has limited facilities is no

more an indication of state action than the fact that a

government has a limited treasury. The allegations that

the hospital lacked proper facilities or adequate super-

visory personnel belong in a negligence suit in state

court.

14

II. A Negligence Claim Does Not Arise Under the U.S.

Constitution or Federal Law

The Court of Appeals decreed that the Hospital could

not “disavow responsibility” for its alleged “lack of fa-

cilities [and] inadequate supervision”. The allegation of

a lack of facilities and supervision thus predicated the

Court’s finding not only potential state action, supra,

but also a potential violation of a federally secured right.

See Parratt v. Taylor, 451 U.S. 527, 535, 68 L.Ed.2d 420

(1978) (Both state action and deprivation of a fed-

erally secured right jurisdictionally required for a

§ 1983 claim).

However, the Court of Appeals never said what pro-

vision of federal law a lack of facilities and supervision

putatively violated:

We do not here decide that the hospital’s conduct

caused the deprivation of Morrison’s rights, for that

is the task for the trier of fact after considering both

the general relationship between Dr. Petcher and

the hospital and the specific actions of the parties in

the rather unique situation of the police removing

the patient from the hospital. ——— F.2d at ——.

(Appendix A at 6a).

But what right did the hospital deny Mr. Morrison?

Did Mr. Morrison, who voluntarily went to the hospital,

have a federally secured right not to be admitted to the

allegedly inadequate facilities there? Should he have been

given notice and a hearing on what facilities were avail-

able before his admission to the hospital?

Whether the allegedly negligent conduct of any party

in this case was a proximate or even superseding cause

of Mr. Morrison's death is a question of state tort law.

Nevertheless, the Court of Appeals apparently thought

that if the Hospital’s allegedly inadequate facilities in-

fluenced Dr. Petcher’s decision to remove the dangerous

patient from his room, the Hospital may have been in-

15

directly chargeable under federal law with his subse-

quent death. Possible influences on Dr. Petcher’s course

of action, such as—the pre-commitment hearing require-

ment,* the alleged lack of hospital facilities, the failure

of Morrison’s family to stay with him in his room, or

for instance, the failure of medical science to have al-

ready discovered a cure for alcoholism—do not substi-

tute for the legal requirements of bringing a § 1983

action.

In § 1983 actions, “. .. the ultimate determination is

simply whether the $ 1983 Defendant has brought the

iorce of the State to bear against the $ 1983 Plaintiff in

a manner the Fourteenth Amendment was designed to

prohibit”. Blum, at 552 (Brennan, J. dissenting). The

hospital has searched the constitutional record of the

promulgation of the Fourteenth Amendment in vain to

find a design by its lawmakers to supplant or supple-

ment negligence lawsuits in state court.

Plaintiff never contended that any agent of the Hos-

pital was responsible for Morrison’s confinement in the

jail in the sense of false arrest or imprisonment. To the

contrary, Plaintiff’s sole contention was that the Hos-

pital nurses should have substituted their judgment for

Petcher’s. Additionally, Plaintiff never contended that at

any time material Petcher was anything but a physically

and mentally competent physician.

5In Lynch v. Baxley, 386 F.Supp. 378 (M.D. Ala. 1974), Judges

Rives and Johnson had ruled that a “due process” hearing must

precede all commitments to state mental institutions, thus influ-

encing Dr. Petcher’s decision to wait until morning for a commit-

ment hearing before sending his patient to Searcy Mental Insti-

tution.

Since the hospital had nothing to do with sending Mr. Morrison

to the Washington County Jail for the night, the hospital need

take no position on whether an emergency detention of a violent

person pending a “‘due process”’ commitment hearing is itself a

violation of the due process clause of the Fourteenth Amendment.

16

The Court of Appeals noted the two part inquiry in

any claim under § 1983, with the second being “.

whether this conduct deprived a person of rights .

secured by the Constitution or laws of the United States.”

Parratt v. Taylor, supra. However, the Court of Ap-

peals Opinion did not answer the question—what right

was violated?

Plaintiff alleges that the Hospital was “. . . deliber-

ately indifferent to Morrison’s serious medical needs . . .,

and that such violated rights under the Fifth, Eighth and

Fourteenth Amendments to the U.S. Constitution. This

phrase is abstracted from Estell v. Gamble, 429 U.S. 97,

50 L.Ed.2d 251 (1976), a case that involved the ade-

quacy of medica] treatment afforded a prisoner. As

stated, Plaintiff’s only contention, factually or otherwise,

that the Hospital was responsible for Morrison’s incar-

ceration was that it did not object to his discharge. This

certainly does not raise the spectre of the Eighth Amend-

ment proscription against cruel and unusual punishment

and the medica! treatment of persons whose liberty and

freedom has been restrained or taken. The alleged acts

or omissions of the Hospital a// preceded the confinement

for which Plaintiff does not contend the Hospital was

responsible.

Assuming agreement that the Hospital’s alleged acts

or omissions are not to be judged by Eighth Amendment

principals, the Hospital must assume the “right” in-

volved was the deprivation of life without due process of

law under the Fifth and Fourteenth Amendments:

“. . . If protected interests are implicated, we then

must decide what procedures constitute ‘due process

of law’... the range of interest protected by pro-

cedural due process is not infinite... We have re-

peatedly rejected the notion that any grievous loss

visited upon a person by the state is sufficient to in-

voke the procedural protections of the due process

clause. Due process is required only when a decision

17

of the state implicates an interest within the protec-

tion of the Fourteenth Amendment. And to deter-

mine whether due process requirements apply in the

first place, we must not look to the ‘weight’ but to

the nature of the interest at stake.” I/ngraham v.

Wright, 430 U.S. 651, 57 L.Ed.2d 711 (1977) (Cita-

tions omitted )

Assuming a protected “interest” the question remains

what process is due? In answering this question, the

Supreme Court has looked to the availability of adequate

state remedies:

“Due process, unlike some legal rules, is not a tech-

nical conception with a fixed content unrelated to

time, place and circumstances . . . whether in this

case the common law remedies . . . constitute due

process of law must turn on an analysis of the com-

peting interest at stake, viewed against the back-

ground of ‘history, reason [and] the past course of

decisions’.”’

“The analysis requires consideration of three distinct

factors: First, the private interest that will be af-

fected . . .; second, the risk of an erroneous depriva-

tion of such interest . . . and the probable, value, if

any, of additional or substitute procedural safe-

guards.” Ingraham v. Wright, 430 U.S. at 675, 51

L.Ed.2d at 732-733.

Applying the above, this Court stated in Baker v.

McCollan, 443 U.S. 137, 61 L.Ed.2d 443 (1979):

“Section 1983 imposes liability for violations of rights

protected by the Constitution, not for violations of

duties of care arising out of tort law. Remedy for

the latter type of injury must be sought in state

court under traditional tort-law principles. Just as

‘medical malpractice does not become 2 constitutional

violation merely because the victim is a prisoner,’

false imprisonment does not become a violation of the

Fourteenth Amendment merely because the Defend-

ant is a state official.” 443 U.S. at 146, 61 L.Ed.2d

at 443,

18

The Plaintiff in this case had as much right to sue the

Hospital for negligence in state court as any other citi-

zen of the State of Alabama. It is the Plaintiff who has

misused the federal judiciary in this case to undermine

the purpose of the due process clause. The Hospital has

the right to prove that its facilities were on par with

other small hospitals, that its nurses acted reasonably

under the circumstances, and that its conduct in any

event was not the legal cause of the death of Morrison.

However, by vaguely alleging deprivations of federal

rights under § 1983, the Plaintiff has subjected the Hos-

pital to an indecipherable course of judicial proceedings.

In this case, the Plaintiff sued the Hospital for “negli-

gence”. She claimed that this negligence was both a

breach of state law, and an act under color of state law.

To this day, there has yet to be a delineation of what

federal right of Morrison the Hospital putatively vio-

lated. The reason is that the hospital has violated no

federal right.

If. A Federal Court May Not, After Summarily Dismiss-

ing a Plaintiff's Claims for Lack of a Federal Question,

Nevertheless Adjudicate Those Claims

From the beginning of this case, the Plaintiff’s claims

against the Hospital have been for negligence. The dis-

trict court correctly adjudged the absence of a federal

question against the Hospital, and properly referred the

Plaintiff to state court before the applicable Statute of

Limitations had run. The Plaintiff, however, had an

aversion to state court, and declined to file there.

The district court based its reinstatement of the negli-

gence claims on a misunderstanding of the “pendent

party” doctrine rejected by this Court in Aldinger v.

Howard, 427 U.S. 1, 49 L.Ed.2d 276 (1976). The dis-

trict court thought that it had jurisdiction over the sub-

ject matter of these claims because “all of the Defend-

ants in this case were initially alleged to have violated

the same federal rights”. ( Appendix C at 33a).

19

This Court has on many occasions noted the funda-

mental importance of subject matter jurisdiction, which

may be raised at any juncture of litigation. Clark v.

Paul Gray, Inc., 306 U.S. 583, 83 L.Ed. 1001 (1939).

The district court apparently failed to realize that the

absence of state action is a jurisdictional defect going to

the heart issue of whether a case does in fact arise

under the U.S. Constitution or federal law.

This is not a case where the facts necessary to a juris-

dictional determination were genuinely in dispute. The

district court so ruled when it granted summary judg-

ment to the Hospital for lack of state action. Further-

more, beginning with her Complaint, the Plaintiff her-

self openly used an allegation of “negligence” to attempt

to bootstrap the Hospital into what was supposed to be

a civil rights case in federal court. The Hospital was

certainly entitled to judgment as a matter of law.

The district court had no authority to reinstate the

negligence claims for the sake of “judicial economy and

convenience” (Appendix C at 33a), especially since so do-

ing deprived the Hospital of a defense it would have had

in state court. Furthermore, since this case did not in-

volve a federal question, the Court of Appeals had no

jurisdiction to determine whether the Hospital was en-

titled to summary judgment as a matter of state tort

law.

[V. The District Court’s Grant of the Hospital’s Motion for

Summary Judgment was Proper as it is Undisputed

that the Discharge of Morrison by His Private Physi-

cian was not Pursuant to any Custom or Policy of the

Hospital

Arguendo, even if Plaintiff could allege and prove the

deprivation of a federally secured right that claim would

be proscribed by Monell v. Department of Social Services,

436 U.S. 658, 56 L.Ed.2d 611 (1978) and its holding:

20

“, . a local government may not be sued for an in-

jury inflicted solely by its employees or agents. In-

stead it is when execution of a government’s policy

or custom ... or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the

injury that the government entity is responsible un-

der § 1983.” Id. 694.

Plaintiff, who did not sue the nurses and perhaps rec-

ognized the prohibitions of Monel/, attempted to affix lia-

bility on the Hospital by “bootstrapping” her allegations

against Dr. Petcher to the Hospital. Plaintiff character-

ized Petcher’s actions as being pursuant to a Hospital

“policy or custom”. In numerous pleadings, Plaintiff

characterized Petcher as an “employee” of the Hospital.

However, when it came to the exact policy or custom, he

either promulgated or effected, Plaintiff was extremely

vague. The Hospital submits such was by design. Plain-

tiff’s only specific reference was to Medical Staff Rule 17.

Petcher and his physician-partners as members of the

medical staff, received no remuneration and in fact paid

a nominal annua! fee for the privilege. Morrison was a

long-standing patient of Petcher and his partners and

they had treated Morrison for his diabetic condition (and

related problems) for years. In the course of these treat-

ments they had on numerous occasions exercised their

staff privileges and admitted Morrison to the Hospital.

At no time was Morrison treated by a physician in the

Hospital’s employ as there were none,

Under such facts, Alabama cases hold the same con-

clusive of an independent contractor relationship and not

principal-agent. Robinson v. Crotwell, 57 So. 23 (Ala.

1911); Barfield v. South Highland Infirmary, 68 So. 30

(Ala. 1915). This fact alone distinguished the cases

relied on by Plaintiff where governmental entities were

found to have delegated policy-making authority to sub-

ordinate employees. Plaintiff's attempt to impose liabil-

ity on the Hospital through Petcher was nothing more

21

than a respondent superior theory expressly proscribed

by Monell v. Department of Social Services, supra.

Plaintiff’s “bootstrapping” could be summarized as:

Petcher’s discharge of Morrison was malpractice and the

Hospital is liable by reason of Medical Staff Rule 17.

However, Rule 17 provides only that patients be dis-

charged on the written orders of a physician member of

the medical staff. As stated, Plaintiff’s expert, Knott,

opined that a decision to discharge is the practice of

medicine and that Rule 17 constitutes good practice, i.e.,

it insures that only physicians will practice medicine.

There was no casual relation between Rule 17 and

Petcher’s decision and the district court so held. The dis-

trict court correctly found that Petcher was not an em-

ployee of the Hospital, and that no regulation, policy or

custom mandated or even suggested that unruly patients

be turned over to the police. To the contrary, Dr.

Petcher, in the exercise of professional medical judg-

ment, acted for himself.

CONCLUSION

This case is an appropriate one for review by this

Court. The Court of Appeals’ imputation of state action

to the Hospital was contrary to this Court’s decision in

Blum v. Yaretsky, supra. The Court of Appeals’ review

of the state tort claims against the Hospital as a pendent

party was contrary to this Court’s decision in Aldinger

v. Howard, supra. The Court of Appeals’ apparent hold-

ing that a claim of negligence will lie under § 1983 was

contrary to this Court’s decision in Monell v, Depart-

ment of Social Services, supra. This litigant has had to

bear tremendous expense coming all the way to this

Court to defend a negligence case.

For the foregoing reasons, the Petition for Writ of

Certiorari to the Eleventh Circuit Court of Appeals should

be granted. Alternatively, ‘his Court should direct the

29

tee ae

Court of Appeals to Order that all claims against the

Hospital be dismissed for lack of a federal question.

Respectfully submitted,

MACK B. BINION

Post Office Drawer 2727

Mobile, Alabama 36652

Tel. (205) 432-4481

Counsel for the Washington

County Hospital

Association, Inc.

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 81-7778

BERTHA MORRISON,

Plaintiff-A ppellant,

WASHINGTON COUNTY, ALABAMA, et al.,

Defendants-A ppellees,

March 17, 1983

Appeal! from the United States District Court

for the Southern District of Alabama

Before GODBOLD, Chief Judge. FAY and SMITH *,

Circuit Judges.

FAY, Circuit Judge:

Bertha Morrison, administratrix of the estate of Sy)-

vester Morrison, appeals the district court’s judgments,

summary and final, in favor of the defendants, in an ac-

tion filed pursuant to 42 U.S.C. Section 1983 against the

Washington County (Alabama) Hospital Association,

Inc., Dr. Paul Petecher, Washington County, five commis-

sioners of Washington County and William Wheat, Sheriff

of Washington County. After careful consideration of

the district court's judgments, we reverse and remand.

521 F.Supp. 947

* Honorable Edward S. Smith, ! (oreuit Judge for the Federal

(Circuit, sitting by designation

2a

FACTUAL BACKGROUND

On November 7, 1978, Sylvester Morrison sought treat-

ment for his diabetic condition at Washington County

Hospital, in Chatom, Alabama, approximately thirty miles

from his home. Morrison had been a patient at this hos-

pital, under the care of Dr. Paul Petcher and other doc-

tors, on numerous occasions during the preceding years,

for diabetes and other conditions. During this visit, Mor-

rison was being treated primarily for diabetes, when he

was diagnosed as suffering from delirium tremens, a se-

vere form of alcohol withdrawal.' His condition wors-

ened and Morrison became irrational, agitated, restless

and was hallucinating.

Dr. Petcher determined that Morrison should not re-

main at the hospital, and directed a hospital staff member

to call the sheriff’s office. The staff member spoke to

Jesse Touchstone, the jailer on duty, and requested that

an officer be sent to the hospital. Touchstone radioed a re-

quest and Bickerstaff, a Chatom city policeman responded

to the call by going to the hospital.

When he realized the call was concerning a hospital

patient, Bickerstaff telephoned Sheriff Wheat at home.

Wheat told Bickerstaff that it was all right to proceed

if Dr. Petcher approved. A sedated Morrison was taken

‘While not provided by the parties as evidence for the district

court and not relied upon by this court as authoritative, the follow-

ing definition of delirium tremens is nevertheless informative:

A psychic disorder involving visual and auditory hallucina-

tions found in habitual and excessive users of alcoholic bev-

erages, usually seen during withdrawal from alcohol

NURSING PROCEDURE: The patient must never be left

alone even momentarily because attempts at suicide are fre-

quent in such cases. The nursing of delirium needs endless

patience, tact, and understanding. Restraint should be avoided

if possible.

CAUTION: This syndrome is a true medical emergency that

should be treated aggressively due to the possibility of death.

Taber’s Cyclopedic Medical Dictionary at 379 (Philadelphia: F.A.

Davis Company, 14 ed. 1981).

3a

from his hospital room in a wheel chair to the police car.

Dr. Petcher stated that he told the officer to check on Mor-

rison every hour, did not direct the officer to charge Mor-

rison with a criminal offense and did not describe Mor-

rison as drunk.

Morrison was taken to the Washington County jail,

placed in a one person cell, and charged with public

drunkenness. Touchstone, the jailer, testified in a deposi-

tion that he had no first aid or medical training, that he

was never told anything about giving Morrison any medi-

cine, that he thought Morrison was drunk, and that he

wasn’t given any instructions to call a doctor or nurse or

any other special instructions concerning Morrison.

Touchstone also stated that Morrison was hollering and

beating his fists and head against the walls. Around four

a.m., Touchstone looked in the cell with his flashlight and

could not see Morrison moving or breathing. He then

telephoned Sheriff Wheat to come to the jail.

The autopsy report prepared by the Alabama Depart-

ment of Forensic Sciences and submitted to the District

Attorney stated that the cause of Morrison's death was

“acute alcoho] abstinence syndrome.” *

One year after Sylvester Morrison’s death, Bertha

Morrison, as administratrix of his estate, filed an action

in federal district court against the hospital, Dr. Petcher,

the county, the county commissioners and Sheriff Wheat.

“In their brief, appellees Sheriff Wheat, Washington County and

the county commissioners contend that the State Forensic Sciences

report is not part of the record on appeal. This report was admitted

by the district court during the trial as Plaintiff's Exhibit 1 (Tr. at

29). The district court later considered the case as against the

Sheriff as ‘submitted on the record of the case as it has presently

progressed.”” (Tr. at 201). However, when the court inquired of

plaintiff's counsel which exhibits he wished considered in the resolu-

tion of the claims against Sheriff Wheat, plaintiff’s counsel failed to

mention Exhibit 1. (Tr. at 202). Nevertheless, the autopsy report,

having been duly admitted into evidence, is part of the record on

appeal.

4a

The complaint alleged claims pursuant to 42 U.S.C. Sec-

tions 1983, 1985/3), 1986 * and 1988 as well as a pendent

claim for wrongful death under state law.

The procedural history of this case in the district court

is confusing at best. The district court entered sum-

mary judgments, dismissed claims, vacated summary

judgments, granted a directed verdict and entered one

judgment on the merits. Because each of the defendants

below are in a different procedural posture on this ap-

peal, we shal] consider each defendant individually.

THE HOSPITAL

The district court entered summary judgment in favor

of the hospital on the civil rights claims (R. at 234) and

thereafter entered summary judgment in the hospital’s

favor on the pendent wrongful death claim under Ala-

bama law (R. at 484’. Summary judgment should only

be entered when the moving party has sustained its bur-

den of showing the absence of a genuine issue as to any

material fact when all evidence is viewed in the light

most favorable to the non-moving party. Adickes v. Kress

& Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d

142 (1970); Federal Rules of Civil Procedure, Rule 56.

The district court’s order granting summary judgment

is not a discretionary decision and should thus be inde-

pendently reviewed by the appellate court. Federal De-

posit Insurance Corporation v. Dye, 642 F.2d 887, 841

(5th Cir. 1981). Conclusions of law rendered by means

of summary judgment are subject to the same standard

of appellate review as any question of law raised upon

appeal. /d.

In considering the civil rights claim under 42 U.S.C.

Section 1983, the district court correctly noted that there

are two elements essential to such a claim: 1) that the

,

% Morrison has abandoned her claims under 42 U.S.C. Sections

1985 and 1986.

5a

conduct complained of was committed by a person acting

under color of state law; and 2) that the conduct de-

prived a person of rights secured by the Constitution or

laws of the United States. Parratt v. Taylor, 451 U.S.

527, 5385, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1978).

The district court found that although the hospital acts

under color of state law, “in this case the hospital took

no action.” (R. at 246). The district court reasoned

that Dr. Petcher was the actor who discharged Morri-

son and that the hospital did not set a custom, policy or

practice which resulted in the deprivation of Morrison’s

constitutional rights. Therefore, the district court held

that under Monell v. Department of Social Services, 436

U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the hos-

pital could not be liable under the respondeat superior

theory and since “nothing which the hospital did” de-

prived Morrison of any rights (R. at 247), the hospital

was not liable.

A hospital is in a unique position. Many of its serv-

ices are performed by salaried employees. Many others

are performed by physicians. These physicians may or

may not be independent contractors, residents, interns,

ete. A list of essential functions of a hospital would have

to include policies and procedures for the admission and

discharge of its patients. Hospitals are not hotels. Some-

one must necessarily make a decision in accord with an

established standard or criteria. In this instance the hos-

pital argues that it relied solely upon Dr. Petcher, as an

independent treating physician of the deceased, in dis-

charging Morrison.

From the facts before the district court we cannot

agree that there is no issue as to any material fact and

that the hospital is entitled to judgment as a matter of

law. Morrison's discharge was not purely a medical

judgment made by a private party according to profes-

sional standards. See Blum v. Yaretsky, —— U.S. ——,

——, 102 S.Ct. 2777, 2787, 73 L.Ed.2d 534, 549 (1982).

Rather, the decision to discharge appears to have been

6a

based on administrative considerations (e.g. lack of fa-

cilities, inadequate supervision) for which the hospital

‘annot disavow responsibility. Based on these considera-

tions, the hospital, acting in concert with Dr. Petcher,

arranged for Morrison to be placed in the custody of the

county police. Hospital staff telephoned the sheriff’s of-

fice and participated in the discharge. While the hos-

pital staff may have performed under the direction of

Dr. Petcher, under the circumstances, such is not suffi-

cient to exonerate the hospital as a matter of law.

We do not here decide that the hospital’s conduct

caused the deprivation of Morrison’s rights, for that is

the task for the trier of fact after considering both the

general relationship between Dr. Petcher and the hospital

and the specific actions of the parties in the rather unique

Situation of the police removing a patient from the hos-

pital. This is not a “malpractice” case as the hospital

appellee contends, for it involves the practice and pro-

cedures of the hospital’s treatment of ‘unruly’ patients

and an incident where hospital staff telephoned the sher-

iff to bodily remove a patient from the hospital resulting

in the patient’s death in a jail cell. It is not merely the

fact of discharge but the manner of discharge which is

at issue in this case. Upon an independent review of the

record, we conclude that the hospital was not entitled to

judgment as a matter of law on the Section 1983 claim.

After dismissa] and reinstatement of the plaintiff's

pendent state law claim for wrongful death, and its de-

nial of the hospital’s motion for summary judgment‘ the

district court again considered the claim on the morning

of trial. The court asked plaintiff's attorney if he would

Waive the notice requirements of Federal Rules of Civil

‘The district judge had formerly denied the hospital's motion for

summary judgment stating, “A genuine issue of fact is raised as to

whether the nurses at the Washington County Hospital adequately

discharged any duty which they may have owed Sylvester Morrison

to make an independent evaluation of the wisdom to discharge Mor-

rison from the hospital to the county jail.” (R. at 281).

Ta

Procedure, Rule 56, and pointed out that “as the Court

saw the case several defendants would be entitled to a di-

rected verdict.” (R. at 484). The plaintiff waived the

notice requirement and the district court entered sum-

mary judgment on the pendent state law claim for wrong-

ful death, Ala.Code Section 6-5-410 (1975), in favor of

the hospital. The district court reasoned that plaintiff’s

allegations concerning the hospital staff’s review of Dr.

Petcher’s decision were insufficient because Alabama does

not “impose a duty of care upon a nursing staff to in-

dependently review decisions made by the attending phy-

sician.” (R. at 487). The district court therefore con-

cluded that ‘without a duty of care which runs from the

defendant hospital to the decedent there can be no liability

for wrongful death.” (R. at 487).

The district court’s conclusion that a hospital owes its

patients no duty of care is erroneous, as is 2 conclusion

that Washington County Hospital owed no duty of care

to Sylvester Morrison. The district court found as a fact

that Morrison “presented himself to the Washington

County Hospital in Chatom, Alabama” and was admitted

to the hospital by Dr. Patterson, an associate of Dr. Pet-

cher’s. (R. at 493). Whether the hospital staff should

have subsequent!y questioned, acquiesced or participated

in the turning over of a patient to law enforcement au-

thorities is a question of fact. We cannot agree that the

hospital merely operates as a slavish handmaiden to the

whims of physicians on its staff it claims it has no re-

sponsibility for. Under Alabama law, a hospital does

have a duty of care to its patients. See e.g., Lloyd Noland

Foundation, Inc. v. Harris, 295 Ala. 63. 322 So.2d 709

(Ala.1975): Doctors Hospital of Mobile, Inc. v. Kirksey,

290 Ala. 220, 275 So.2d 651 (1973): Mobile In firmary 1.

Eberlein, 270 Ala. 360, 119 So.2d 8 (1960). The issue of

fact in this case is whether it breached that duty. The

district court’s entry of summary judgment on the pen-

dent wrongful death claim wil] accordingly be reversed.

8a

THE DOCTOR

The district court granted summary judgment in favor

of Doctor Petcher on the Section 1983 claim based on the

conclusion that “no state action was involved in the

decision by Dr. Petcher to discharge Morrison to the

police. The conduct of Dr. Petcher was wholly private.”

(R. at 249). Dr. Petcher was on the staff of Washington

County Hospital, treating a patient in the hospital, di-

recting hospital staff and utilizing hospital facilities.

While the decision concerning Morrison’s discharge in-

volved Dr. Petcher’s mental processes, the circumstances

and fact of the discharge are at issue. Under Parratt v.

Taylor, supra, the inquiry is not the doctor’s abstract

status, but whether the discharge was committed by ‘a

person acting under color of state law,” i.e., whether Dr.

Petcher was acting under color of state law when he ar-

ranged for the law enforcement authorities to remove

Morrison from the hospital.

in Lugar v. Edmondson Od Co., —— U.S. ——— 102

S.Ct. 2744, 73 L.Ed.2d 482 (1982), the Supreme Court

set out a two part test for determining if the deprivation

of a federal right is fairly attributable to the state.

First, the deprivation must be caused by the exercise

of some right or privilege created by the state or by

a rule of conduct imposed by the state or by a per-

son for whom the state is responsible.

Id., —— U.S. at ——, 102 S.Ct. at 2754. 73 L.Ed.2d at

495. In the case at bar the alleged deprivation was

caused in part by persons for whom the state is clearly

responsible—the hospital staff and county police.

Second, the party charged with the deprivation

must be a person who may fairly be said to be a

state actor. This may be because he is a state offi-

cial, because he has acted together with or has ob-

tained significant aid from state officials, or because

his conduct is otherwise chargeable to the state.

9a

Id. Dr. Petcher was faced with the problem of what to

do with Morrison. In solving this problem he enlisted the

aid of the hospital staff and the county police and ar-

ranged for Morrison’s confinement. In his treatment of

Morrison, Dr. Petcher ‘acted together with’ and ‘‘ob-

tained significant aid from state officials.” Under these

circumstances the district court erred in finding as a

matter of law that Dr. Petcher was not a state actor.

An independent review of the record in accordance with

Federal Deposit Insurance Corporation v. Dye, supra,

leads us to conclude that the doctor has failed to sustain

his burden of showing the absence of genuine issues as to

any material fact. Again, we do not intimate whether or

not Doctor Petcher’s conduct subjected him to liability

under Section 1983, but only that summary judgment

was erroneously granted on the state of the record before

the district court.

The pendent state law claim against Dr. Petcher for

wrongful death was dismissed and reinstated. Dr. Pet-

cher then filed a renewed motion fer summary judgment,

which the district court denied on the basis that a genu-

ine issue of materia] fact remained as to whether Dr.

Petcher failed to discharge the duty of care which he

owed to Morrison. The case proceeded to trial on the

State wrongful death claim against Dr. Petcher and the

district court directed a verdict in favor of the doctor.

As explained by the district court in its Order:

By the second day of the trial, July 14, 1981, the

plaintiff had called her expert witness to testify to

the quality of the treatment received by the decedent

from Dr. Paul Petcher. The Court ruled that the eX-

pert, Dr. David H. Knott, lacked sufficient basis

upon which to express an expert opinion. Dr. Knott

testified that he was unfamiliar with the quality of

care rendered by a general family practitioner in

the same general neighborhood in and around

Chatom, Alabama. Under Alabama law this ren-

10a

dered Dr. Knott’s testimony inadmissible. Without

expert testimony from a physician the plaintiff

would, as a matter of law, be unable to prove any

negligence against Dr. Petcher.

(R. at 492).

Appellant Morrison contends that the district court

erred in excluding the testimony of her expert, Dr. David

Knott, which if true undermines the rationale for the

directed verdict.

The district court excluded Dr. Knott's testimony be-

cause Dr. Knott was not familiar with the practice of

medicine in Alabama in 1978 and was therefore not

qualified to testify under Zills v. Brown, 382 So.2d 528

(Ala.1980). In Zills, the Alabama Supreme Court con-

sidered the various rules for the admission of testimony

of medica] experts and concluded that the “same general

neighborhood” rule rather than the “strict locality”? rule

applied in Alabama. The Alabama court noted that there

had not been a proper challenge to the “same general

neighborhood” rule at trial and thus such a rule could not

be abolished on that appeal. However, the Alabama court

opined:

|Wle are inclined to view that Alabama’s “same

general neighborhood” rule does in fact encompass a

national standard of care for reasonably skilled phy-

sicians acting in the same or similar circumstances,

unless there is evidence that demonstrates such a na-

tional medical neighborhood standard could not, be-

cause of justifiable cireumstances, be adhered to, We

deem the language “same general neighborhood” to

refer to the national medica! neighborhood or na-

tiona’ medical community, of reasonably competent

physicians acting in the same or similar circum-

stances. We are of the opinion that Alabama's

neighborhood rule, which was recently codified in Sec-

tion 6-5-484'a), Code 1975, is an enlightened one

lla

which takes into account the realities extant in the

present day national medical world, community, or

neighborhood; no matter which term one chooses.

The rule logically recognizes that today there is no

lack of opportunity for a physician or surgeon to

keep abreast of the advances made in his profession

and to be familiar with the latest methods, proce-

dures, and practices adopted.

382 So.2d at 532. (emphasis in original).

Attempting to apply Zills, the district court held that

evidence of a national standard was not sufficient under

Alabama law because “Zilis was maybe what the law will

be someday in Alabama. Judge Bloodworth is no longer

on the Supreme Court, one of the plurality. I don’t know

how it will come out, and I am not going to apply it to

this standard in this case.” (Tr. at 187). The district

court's question about the viability of the Zilis dicta was

Subsequently resolved by the Alabama Supreme Court

in Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412

§0.2d 254 (Ala.1982) where Alabama’s highest court

agreed with its prior description of the same general

neighborhood as the “national medical neighborhood or

national medical community, of reasonably competent

physicians acting in the same or similar circumstances.”

Id. at 258, quoting Zills, supra at 582.

The district court’s exclusion of Dr. Knott’s testimony

Was erroneous under Alabama law and thus the verdict

directed in favor of the doctor on the basis of lack of

expert testimony is reversed.

THE COUNTY AND COMMISSIONERS

The district court granted summary judgment in favor

of the Washington County Commissioners on the federal

law claims because the “commissioners were not. the

actors who discharged Morrison to the police.” (R. at

248). Shortly thereafter, the court also entered summary

12a

judgment on the federal claims in favor of Washington

County, a non-moving party. (R. at 262). During the

morning of trial conference, the court entered summary

judgment in favor of the commissioners and the county

on the wrongful death claim. (R. at 485).

Again, an independent review of the record, Federal

Deposit Insurance v. Dye, supra, leads us to a conclusion

that the county and commissioners have failed to sustain

the burden of showing the absence of genuine issues as to

material facts. The trial court focused on the discharge

of Morrison from the hospital. Morrison argues that the

liability of the county and commissioners arises from sys-

temic failures in the jail where Morrison died. Mate-

rial issues of fact remain concerning the operation of the

jail and the medical treatment for inmates, making

judgment as a matter of law on the Section 1983 claim

and wrongful death claim inappropriate. There was af-

firmative testimony showing a total lack of any training

of those in charge of the jail as to the handling of medi-

cal problems that might arise. The law has long since

passed the point where prisoners are incarcerated and

then totally ignored. Again, we do not intimate that the

county or its commissioners are legally liable, but only that

judgment as a matter of law on the state of the record

before the district court was improper.

THE SHERIFF

The district court entered findings of fact and con-

clusions of law dismissing the claims of Morrison against

Sheriff Wheat under Section 1983 and the Alabama

wrongful death statute. As explained by the district

court:

After {the] ruling that Dr. Knott would be un-

able to express an opinion the plaintiff huddled with

her attorneys and proposed for tactical reasons, sev-

eral alternatives to the Court. ... [T]he plaintiff

agreed to submit the case against Sheriff Wheat to

13a

the Court for decision by the Court as though the

case had been tried to the bench from the start

rather than to a jury.

[R. at 493-493]. The district court then entered lengthy

findings of fact, including:

The Court finds that the cause of death was acute

cardiac arrest. That an acute cardiac arrest is com-

pletely unpredictable and untreatable within three

minutes after it has occurred. That the cause of

death i.e. acute cardiac arrest, did not have any re-

lationship to the alcohol withdrawal or delirium

tremens of Sylvester Morrison. Dr. Petcher could

not and did not anticipate the occurrence of acute

cardiac arrest.

The Court finds that there was no way Jailer

Touchstone could have known of or anticipated the

occurrence of the acute cardiac arrest, it could have

happened anywhere at any time. The Court finds

that nothing was done that should not have been

done or not done that should have been done by

either the defendant Sheriff William Wheat or Jailer

Touchstone that in any way caused or contributed

to the acute cardiac arrest which resulted in the

death of Sylvester Morrison.

[R. at 498-99].

The district court entered its finding that there was

no causal connection between the delirium tremens and

the cardiac arrest without the benefit of the testimony of

plaintiff's expert, Dr. Knott. As discussed above, such

testimony was erroneously excluded under Alabama law.

Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So.2d

254 (Ala.1982). There is a serious issue in this case

concerning the relationship between the delirium tremens

and the cardiac arrest and what, if anything, anyone

could have done to prevent Morrison’s death. Exclusion

of Dr. Knott’s testimony was not harmless error and re-

l4a

quires reversal of the judgment in favor of the sheriff

in order that the finder of fact may consider plaintiff's

expert’s testimony.

In considering the section 1983 claim against Sheriff

Wheat, the district court concluded that ‘Sheriff Wheat

was entit!ed to authorize the incarceration of Morrison,

as he surely did when he told Officer Bickerstaff [a city

policeman] ‘to go ahead’ and incarcerate Morrison.”’

[R. at 50]. The district court noted that Alabama au-

thorizes the arrest of a person if that person commits a

public offense in the presence of the arresting officer.

Officer Bickerstaff arrested Morrison and charged him

with the offense of ‘public drunkenness.”” From the rec-

ord, it appears that Morrison was neither in public, but

in a hospital as a patient, nor drunk, but suffering from

lack of alcohol. The record indicates a constant flow of

information between Officer Bickerstaff, a city policeman,

and Sheriff Wheat. In addition to the reasons set forth

above relating to the exclusion of Dr. Knott’s testimonv

we remand this case to the district court for considera-

tion of Sheriff Wheat’s knowledge of the circumstances of

the arrest and subsequent decision to incarcerate. Seri-

ous factual issues remain concerning the removal of a

seriously ill patient from a hospital and his confinement

in a jail with no medical facilities under the observa-

tions of untrained personnel.

CONCLUSION

This case presents difficult and serious issues. The dis-

trict court conscientiously struggled to discern various

claims against multiple defendants, each attempting to

abdicate responsibility for the series of tragic events cul-

minating in the death of Sylvester Morrison. While the

trier of fact may ultimately find that none of the de-

fendants is legally liable for Mr. Morrison’s death, the

trier of fact should be afforded that opportunity. Ac-

cordingly, this case is REVERSED and REMANDED.

lda

APPENDIX B

UNITED STATES DISTRICT COURT

Ss. D. ALABAMA, S. D.

Civ. A. No. 79-0632-H

BERTHA MORRISON, ETC..

Plaintiff.

WASHINGTON COUNTY, ALABAMA, ef a/.,

Defendants.

Sept. 3, 1981

Larry T. Menefee & J. U. Blacksher, Mobile, Ala. and

Jack Drake, University, Ala., for plaintiff.

Walter M. Cook and Mack B. Binion, Mobile, Ala.. for

Washington County Hospital Ass’n, Inc.

Peter V. Sintz and Robert C. Campbell, III, Mobile,

Ala., for Washington County, Turner, Sullivan, Carpen-

ter, Deas, Armstrong and Wheat.

James J. Duffy, Jr. and Carroll H. Sullivan, Mobile.

Ala., for Dr. Paul Petcher.

ORDER

HAND, Chief Judge.

On July 13, 1981 the trial of this case to a jury com-

menced. Only two defendants remained in the case. The

two were Dr. Paul Petcher and Sheriff William Wheat.

The claim against Dr. Petcher was a state-law claim for

wrongful death. The claims against Sheriff William

Wheat arose under 42 U.S.C. £1983 and Alabama’s

Wrongful Death statute.

By the second day of the trial, July 14, 1981, the

plaintiff had called her expert witness to testify to the

l6a

quality of the treatment received by the decedent from

Dr. Paul Petcher. The Court ruled that the expert, Dr.

David H. Knott, lacked sufficient basis upon which to ex-

press an expert opinion. Dr. Knott testified that he was

unfamiliar with the quality of care rendered by a general

family practitioner in the same general neighborhood in

and around Chatom, Alabama. Under Alabama law this

rendered Dr. Knott’s testimony inadmissible. Without

expert testimony from a physician the plaintiff would,

as a matter of law, be unable to prove any negligence

against Dr. Petcher.

After ruling that Dr. Knott would be unable to express

an opinion the plaintiff huddled with her attorneys and

proposed, for tactical reasons, several alternatives to the

Court. First, the plaintiff proposed to rest her case

against Dr. Petcher. Second, the plaintiff agreed to sub-

mit the case against Sheriff Wheat to the Court for de-

cision by the Court as though the case had been tried to

the bench from the start rather than to a jury.

Both proposals were agreeable to the Court. In light

of the decision by the plaintiff to rest as to Dr. Petcher

the Court directed a verdict in favor of Dr. Petcher. The

findings of fact and conclusions of law which the Court

enters today address only the claims against Sheriff

Wheat under 42 U.S.C. § 1983 and Alabama’s Wrongful

Death statute.

I. Findings of Fact

After the parties appeared in open court, after hearing

the testimony of Mr. Hiller Dickerson, Dr. Paul Petcher,

Dr. William Knott, and after reviewing the depositions

of the defendant Sheriff William Wheat, Dr. Terrance

Collins and Jesse Touchstone, the Court finds the facts

to he as follows

The decedent, Svivester Viorrison. ITt.. was a thirtv-

nine-year-old black male who resided in Citronelle.

Alabama.

17a

Sylvester Morrison, Jr. presented himself to the Wash-

ington County Hospital in Chatom, Alabama on Novem-

ber 7, 1978 at approximately 1:00 p.m. at which time he

was admitted to the hospital by Dr. H. C. Patterson of

the Chatom Clinic.

The defendant, Sheriff William Wheat, was at all

times material to this action, the Sheriff of Washington

County, Alabama and the Washington County Commis-

sion provides some public funds for the operation of the

Sheriff’s Department on an annual basis.

Dr. Paul Petcher and Dr. Patterson were at all times

material to this action admitted to the medical staff of

the Washington County Hospital, (hereinafter called

Hospital) and Dr. Patterson was the admitting physician

for Sylvester Morrison, Jr. on November 7, 1978.

Ricky Bickerstaff was at all times material to this ac-

tion employed by the City of Chatom, Alabama as a City

Police Officer and that Mike Barnett was at all times

materia! to this action employed by the State of Alabama

as an Alabama State Trooper.

Sylvester Morrison, Jr. had been a longstanding pa-

tient of several years at the Chatom Clinic, which is com-

posed of Dr. Paul Petcher, Dr. H. C. Patterson and Dr.

J. L. Hubbard, Jr.. Throughout the course of Sylvester

Morrison's treatment by the Chatom Clinic, there had

been a suggestion of alcoholism.

In the early afternoon of November 7, 1978, Sylvester

Morrison was admitted to the Hospital by Dr. H. C. Pat-

Terson with i dy ivnosi- of actite gastro enteritis and dia

hetes mellitus

Ry the morning of November S. 14978 Morrison begut

to manifest symptoms of alcohol withdrawal. He was

treated by Dr. Pau! Petcher with appropriate medications

for alcoho! withdraw iil

18a

Dr. Petcher instructed the staff at the Hospital to call

the family of Morrison at approximately 8:00 a.m. and

again at 3:00 p.m. on November 8, 1978 for the purpose

of obtaining assistance in treating him.

Dr. Petcher found Mr. Morrison in the lobby of the

hospital at about 8:00 a.m. on November 8, 1978 trying

to leave the hospital. After talking with Morrison, Dr.

Petcher was able to get him to return to his room.

During the day of November 8, 1978, Morrison be-

came increasingly restless, agitated and confused on an

intermittent basis. It became necessary during the day

to move Sylvester Morrison into a hospital room in which

the door could be locked. On one oceasion while in the

locked room, Morrison threw a chair in the direction of

nurses who were standing behind the locked door.

By 6:00 p.m. on the evening of November 8. 1978,

various family members of Morrison had arrived at the

Hospital and met with Dr. Petcher. Dr. Petcher sought

to enlist their aid by getting one family member to sit in

the hospital room with Morrison throughout the remain-

der of the evening. Dr. Petcher explained to the family

that in his judgment this was necessary in order to con-

trol Morrison until a comn nt hearing could be had

the following morning to ac vit him to Searcy Hospital,

a State institution in Mt. Vernon, Alabama, with an al-

cohol detoxification unit. The family members present

refused to stay with Morrison.

As a second alternative. Dr. Petcher asked the family

members to take Morrison home with them where they

could take care of him and return him to Chatom the

following mornine for a commitment hearing. The fam-

ily members again refused.

It is not altowether clear who s iggested using the

Washington County Jail as the facility in which to house

Sylvester Morrison overnight until the commitment hear

ing the following morning. One member of. the family

19a

did request that the Citronelle City Jail be used as op-

posed to the Washington County Jail since Morrison was

known to the people of the City of Citronelle. This was

not a satisfactory alternative to Dr. Petcher as the Cit-

ronelle Jail was too far away from him and his office in

the event he were needed to render further medical treat-

ment to Morrison.

Dr. Petcher contemplated having a commitment hear-

ing to get Morrison admitted to Searcy Hospital, at the

earliest possible time on November 9, 1978. Dr. Petcher

determined during the evening of November 8. 1978 that

he could not get Sylvester Morrison admitted to searcy

Hospital that evening and that a commitment hearing

Was a Necessary prerequisite.

Dr. Petcher was seeking satisfactory alternatives and

a place to house Sylvester Morrison until the commitment

hearing could be held early on the morning of November

9, 1978. Dr. Petcher determined that without family as-

sistance, he could not safely house Morrison at the Hos-

pital until the commitment hearing could be held.

Dr. Petcher also concluded and determined that it Was

not practical to put Morrison into the University of

South Alabama Medical Center or the Providence Hos-

pital in Mobile, Alabama on the evening of November

8, 1978.

By this time, 6:00 p.m. on November &, 1978. Morrison

was suffering from delirium tremens and that his other

medical problems such as his diabetes were under satis-

factory control and management at that time. Dr. Petcher

then made the decision to discharge Morrison from the

Hospital.

After this decision was made, Dr. Petcher prescribed

100 m.g. of Visaril, which is double the usua! dosage

given, and instructed the Hospital staff to call the Wash-

ington County Jail. It was Dr. Petcher’s expectation that

this medication in conjunction with the medications Mor-

20a

rison had been receiving during the day of November 8,

1978 would last Morrison 10 to 12 hours. The last in-

jection of the 100 m.g. of Visaril was given at &:00 p.m.

on November 8, 1978. He did not think Morrison would

need any further medication or treatment before the next

morning.

Someone from the Hospital called the Washington County

Jail and spoke with the jailer, Jesse Touchstone, (here-

inafter called Touchstone) and requested that an officer

be sent to the Hospital. The Hospital is located within

the city limits and police jurisdiction of the Town of

Chatom, Alabama.

Touchstone radioed Ricky Bickerstaff, (hereinafter

ealled Bickerstaff), a City of Chatom Police Officer to re-

spond to the call because the Hospital is in the city police

jurisdiction.

The caller did not inform Touchstone that a hospital

patient was to be picked up or that there was to be a

commitment hearing the following morning of November

9, 1978.

The City of Chatom Police Officer, Bickerstaff, arrived

at the Hospital with an Alabama State Trooper, Mike

Barnett. Dr. Petcher met Officer Bickerstaff and _ in-

structed him to take Sylvester Morrison to the Washing-

ton County Jail with the directions that Morrison should

be looked in on at least every hour. The information and

direction was never imparted to Jailer Touchstone or to

Sheriff William Wheat.

While at the Hospital, Officer Bickerstaff called Sheriff

William Wheat at his home. During this conversation, he

did not inform Sheriff Wheat that Morrison was a pa-

tient at the hospital. He informed Sheriff Wheat that

there was a drunk at the hospital that Dr. Petcher wanted

to keep in jail until a commitment hearing could be held

the next morning. The Sheriff replied that it was all

right with him if it was all right with Dr. Petcher.

2la

Sheriff Wheat was not informed of the identity of Morri-

son nor that he was a patient at the Hospital in the throes

of delirium tremums. In addition, Sheriff Wheat did not

go to the Washington County Jail that night.

During his conversation with Sherifi Wheat, Officer

Bickerstaff did not express any reservations about placing

Morrison in jail. Based on the conversation with Officer

Bickerstaff, Sheriff Wheat assumed that Sylvester Morri-

son had just shown up at the Hospital since he was drunk

at that time.

There is only one jail or detention facility in Washing-

ton County, Alabama. The City of Chatom, under an ar-

rangement with the county, also uses it to house their

prisoners. Pursuant to this agreement, Officer Bickerstaff

transported Morrison to the Washington County Jail.

When they arrived at the Washington County Jail,

Officer Bickerstaff charged Morrison with public drunken-

ness. The Court finds that Mr. Morrison was then a

prisoner of the City of Chatom.

The defendant Sheriff William Wheat will not allow

anyone to be held in his jail without either a charge or

a court order authorizing the detention.

Jailer Touchstone had never seen or heard of Sylvester

Morrison until he arrived at the jail. Mr. Morrison ap-

peared to Touchstone to be drunk and he looked and acted

like a drunk to Touchstone. Touchstone then placed Mor-

rison in a one-man cell.

Touchstone does not have anything to do with the dock-

eting or charging of prisoners with either city or state

offenses. The arresting officer makes the appropriate

charge.

No instructions, medications or directions concerning

Morrison were given to Touchstone or to Sheriff William

Wheat by anyone. While in the one-man cell, Morrison

became loud and disruptive several times during the

course of the evening. Jailer Touchstone went to the cell

and talked with Morrison during the course of the eve-

ning in an attempt to calm and quiet him. The last time

he spoke with Morrison was approximately 4:00 a.m. on

November 9, 1978.

After talking with Morrison, Morrison quieted down

and sat down on the edge of the shower. At that time he

appeared to be quiet and remained quiet the rest of the

night.

Morrison was subsequently found dead in the shower

at approximately 5:30 to 5:45 a.m. by Touchstone.

The Court finds that the cause of death was acute

cardiac arrest. That an acute cardiac arrest is com-

pletely unpredictable and untreatable within three min-

utes after it has occurred. That the cause of death i.e.

acute cardiac arrest, did not have any relationship to the

alcohol withdrawal or delirium tremens of Sylvester Mor-

rison. Dr. Petcher could not and did not anticipate the

occurrence of an acute cardiac arrest.

The Court finds that there was no way Jailer Touch-

stone could have known of or anticipated the occurrence

where at any time. The Court finds that nothing was

done that should not have been done or not done that

should have been done by either the defendant Sheriff

William Wheat or Jailer Touchstone that in any way

caused or contributed to the acute cardiac arrest which

resulted in the death of Sylvester Morrison.

I]. Conclusions of Law

This Court has jurisdiction over this controversy under

both its original jurisdiction, 28 U.S.C. $$ 1331, 1343,

and its pendent jurisdiction.

The plaintiff alleges several violations of the constitu-

tional rights of Sylvester Morrison during his incarcera-

23a

tion in the Washington County Jail pending a commit-

ment hearing to Searcy Hospital. The crux of the plain-

tiff’s complaint is that Morrison’s constitutional freedoms

under the fourth and fourteenth amendments were

abridged and that Sheriff William W hea if responsible

under state law for the wrongful death of Morrison.

A. The Fourth Amendment

At the time the police took custody of Morrison at the

Hospital he was under arrest. An arrest was effectuated

because he was not free to go as he pleased. The police

were free to arrest Morrison in one of two situations: 1)

upon the issuance of an arrest warrant or 2) if a war-

rantless arrest was authorized under Ala. Code § 15-10-3

(1975).

Initially it should be noted that the plaintiff never

proved whether Morrison was taken into custody under

the authority of an arrest warrant. One might assume

that the record is clear on this point, but that assumption

is unfounded. After examining the record in this case

Alabama law allows a warrantless arrest by a dulv authorized

police officer under the following circumstances

- 15-30-83. Arrest without warrant—-When and for wl ved

An officer may arrest anv pe vithout a rray nanv day

and at any time, for

] An\ public f ffense t ed ' i i ? r rw ‘

threatened in his presence;

2 \\ he i & fel ny has Phetert ; ' }

presence t t he per narrested

Wher } }

thie cause to bx —— . ,

j \\} bigs } "

arr teqd ? F

ani } } '

(hy +

= Tet | i? ;

24a

the Court is left to speculate whether, in fact, Morrison

was taken into custody pursuant to a regularly-issued

arrest warrant. Nothing appears in the record on this

point either one way or the other. The burden of proof

on this point is upon the plaintiff, since it is she who

seeks to prove that Morrison was denied his fourth

amendment right under the Constitution. Before the

Court can determine whether a regularly-issued arrest

warrant was used to arrest Morrison the plaintiff would

have had to have offered evidence showing the absence of

an arrest warrant. A court may not speculate any more

than may a jury in reaching a verdict. For this reason

alone the plaintiff’s claim under the fourth amendment

must fail.

But even assuming that the record adequately estab-

lished the absence of a regularly-issued arrest warrant,

under the facts of this case Sheriff Wheat was entitled

to authorize the incarceration of Morrison, as he surely

did when he told Officer Bickerstaff “to go ahead’ and

incarcerate Morrison in the Washington County Jail.

Wheat Deposition at 10. Bickerstaff told Wheat that

Morrison was intoxicated in public. Bickerstaff charged

Morrison with public drunkenness when he reached the

county jail. Jd. at 15; Plaintiff's Exhibit 5. Section 15-

10-3 authorizes the arrest of a person without an arrest

rarrant if that person commits a public offense in the

presence of the arresting officer. Bickerstaff arrested

Morrison, and given that arrest, the Sheriff was justified

in authorizing Morrison's incarceration. Cf. Cade v.

State, 375 So.2d 802, 826 (Ala.Cr.App. 1978), aff'd with-

out opinion, 375 So.2d 828 (Ala. 1979). The Court holds

that no violation of the fourth amendment occurred.

B. The Fourteenth Amendment

The due process clause of the fourteenth amendment

and not the cruel and unusual punishment clause of the

eighth amendment sets the standard by which this Court

25a

must judge the medical care which Morrison received

while he was incarcerated in the Washington County

Jail.?

Due process requires that a pretrial detainee not be

punished. A sentenced inmate, on the other hand,

may be punished, although that punishment may not

be “cruel and unusual” under the Eighth Amend-

ment. The Court recognized this distinction in Jngra-

ham v. Wright, 430 U.S. 651, 671-672, n.40, 97 S.Ct.

1401 [1412-1413, n.40], 51 L.Ed.2d 711, 97 S.Ct.

1401 (1977):

“Eighth Amendment scrutiny is appropriate only

after the State has complied with the constitutional

guarantees traditionally associated with criminal

prosecutions. See United States v. Lovett, 328 U.S.

303, 317-318 [66 S.Ct. 1073, 1079-1080, 90 L.Ed.

1252] (1946) ... [T]he State does not acquire the

power to punish with which the Eighth Amendment

is concerned until after it has secured a formal ad-

judication of guilt in accordance with due process of

law. Where the State seeks to impose punishment

without such an adjudication, the pertinent constitu-

tional guarantee is the Due Process Clause of the

Fourteenth Amendment.”

Bell v. Wolfish, 441 U.S. 520, 535 n.16, 99 S.Ct. 186}.

1872 n.16, 60 L.Ed.2d 447 (1979). “The standard by

which to measure the medical attention that must be af-

forded pretrial detainees has never been spelled out. The

Bell v, Wolfish criterion, applied to medical attention, en-

titled pretrial detainees to reasonable medical care unless

the failure to supply it is reasonably related to a legiti-

mate government objective.” Jones v. Diamond, 636 F.2d

1364, 1378 (5th Cir. 1981) ‘en bane

‘Originally when the Court addressed this issue

October 7. 1980 the Court missed the distinction between pretr

detainees and convicted prisoners

26a

In this case the medical care which Morrison received

was reasonable. Morrison’s attending physician, Dr. Paul

Petcher, discharged Morrison from the Hospital at ap-

proximately 8:00 p.m. on November 8, 1978. At the time

of the discharge Morrison was heavily sedated with Visa-

ril. Dr. Petcher testified that ordinarily no further medi-

cation or treatment would be necessary prior to the morn-

ing of November 9, 1978, when Morrison was scheduled

to appear in state court for commitment proceedings to

the state mental health hospital. Thus, it was the expert

opinion of Dr. Petcher that Morrison had the medical care

which he should receive during the evening of November

8th through the early morning of November 9th. Noth-

ing changes this fact, regardless of what Jailer Touch-

stone did or failed to do and regardless of what Touch-

stone knew or did not know about Morrison’s prior treat-

ment and present medical condition. Morrison received

reasonable medical care; there was no failure on the part

of Sheriff Wheat to provide reasonable medical care.

The absence of a highly trained medical technican or

a physician at the Washington County Jail does not ren-

der the medical care per se unreasonable. A small, rural

jail, with no prior history of medical emergencies, is not

constitutionally required to maintain a medical technician

or a physician on the premises. In fact, Dr. Petcher tes-

tified that he was on-call at the county jail and available

to treat any medical emergencies. This was the standard

operating procedure.

As in all aspects of life the United States Constitution

sets the minimal standards which government owes its

citizens when it protrudes into constitutionally protected

areas. The due process clause requires that pretrial de-

tainees receive reasonable medical care. Undoubtedly,

Morrison might have received better medical care than

that which he received. However, this case does not turn

upon whether Morrison might have received better medical

care or whether he received the best medical care. The

27a

care which he received was reasonable. The Constitution

requires nothing more of Sheriff Wheat. Therefore, the

Court holds that the plaintiff has failed to prove any vio-

lation of Morrison’s fourteenth amendment rights.

C. Immunity

Had liability under $ 1983 been established for a viola-

tion of Morrison’s fourth amendment or fourteenth

amendment rights the Sheriff would be protected from

liability in his individual capacity because of his quali-

fied, good-faith immunity. Wood v. Strickland, 420 U.S.

$308. 322. 95 S.Ct. 992, 1000, 48 L.Ed.2d 214 (1978);

Familias Unidas v. Briscoe, 619 F.2d 391, 403 (5th Cir.

1980). As to the fourth amendment claim the Sheriff

recognized that a person could only be confined in the

Washington County Jail if he had either 1) been charged

with an offense or 2) been arrested pursuant to the terms

of regularly issued judicial process. Wheat Deposition at

15-16. Thus the authorization which the Sheriff extended

to Bickerstaff to incarcerate Morrison was made with a

careful eye toward constitutional limitations.

Under the fourteenth amendment claim, if one had

been made out, the Sheriff would be shielded from liabil-

ity in his individual capacity. At the time Morrison trag-

ically died in the Washington County Jail the Supreme

Court had vet to decide Bel! v. Wolfish. That case was

decided May 14, 1979; Morrison died November 9, 1978.

It goes without saying that a sheriff from a rural com-

munity is not charged with forecasting the development

of constitutional doctrine.

Had the Sheriff been judged by the deliberate indiffer-

ence standard of Estelle v. Gamble, 429 U.S. 97, 104, 97

S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), which would have

appeared to be the prevailing standard in November,

1978, no liability would attach to Sheriff Wheat. The

record is clear that Wheat knew nothing about the details

of the medical treatment which Morrison received while

28a

in the jail. Without some personal knowledge of the medi-

al care which Morrison received, the Sheriff could not

have acted with the intent required by Estelle v. Gamble,

i.e. deliberate indifference to the serious medical needs of

Morrison.

Moreover, nothing in this case suggests that Wheat set

out with the malicious intention to deprive Morrison of

his constitutional rights. Had liability under $ 1983 been

established, Wheat would enjoy immunity for damages in

his individual capacity.

D. Wrongful Death

In addition to the claims under $ 1983 the plaintiff

seeks recovery of punitive damages under Alabama’s

Wrongful Death Statute. Ala.Code § 6-5-410 (1975).

Section 6-5-410 provides a cause of action to the personal

representative of the decedent against any person or cor-

poration where the wrongful act, omission, or negligence

of the person or corporation caused the death of the de-

cedent. A person or corporation can also be bound by an

agent.

Undoubtedly the Sheriff, or his jailer acting within the

scope of his employment, had a duty to exercise reason-

able care to see to it that pretrial detainees and prisoners

alike were afforded reasonable medical care. Reasonable

medical care is that degree of care which a reasonable

person under like circumstances as Sheriff Wheat would

have made available. In this case, Morrison was dis-

charged directly from the Hospital to the jail. Dr.

Petcher testified that Morrison was adequately sedated

and that, in his opinion, no additional treatment or medi-

cation would be required by Morrison at least through the

night. While neither Sheriff Wheat or Jailer Touchstone

were aware of this, the fact remains that a doctor had

been supervising Morrison up to the time he was dis-

charged to the jail and it was the opinion of the doctor

that Morrison would need no additional medication or

29a

treatment. The duty to exercise reasonable care which

the Sheriff owed a pretrial detainee such as Morrison was

satisfied. The Sheriff could have done no more had it

been his policy to have each prisoner examined by a phy-

sician upon being admitted to the jail. Morrison was ex-

amined and treated by a physician shortly before being

placed in the one-man cell at the Washington County

Jail. For purposes of this analysis it is quite irrelevant

that the examination took place a few miles from the

jail and a few minutes before Morrison actually crossed

the threshold of the jailhouse door. The Court holds that

the duty of care which Sheriff Wheat owed to provide

adequate medical supervision at the jail was not breached.

Likewise, it cannot be said that the duty which the

Sheriff owed to properly supervise pretrial detainees in a

reasonable manner was breached. The testimony is that

Jailer Touchstone repeatedly checked on Morrison as the

evening progressed. Morrison was locked in a one-man

cell, protected from others. While it may be said that

Morrison’s conduct had the potential to physically injure

him, the record does not support such a finding. Morrison

was no more unruly than many people who were incar-

cerated in the Washington County Jail. A_ sheriff is

charged under the law with the duty to reasonably super-

vise his prisoners and not with the duty to absolutely in-

sure their safety under all conceivable circumstances. The

Sheriff discharged his duty.

Rut even if it could be said that Sheriff Wheat was

vicariously liable for some failure by Jailer Touchstone to

discharge the duty of care which the Sheriff owed Morri-

son, it cannot be said that the breach of the duty of care

was the proximate result of Morrison’s death. Dr.

Petcher testified on the stand that, in his opinion, the

cause of Morrison’s death was acute cardiac failure. This

opinion differed from that reached by the state forensic

science laboratory which performed the autopsy on Mor-

rison. The state forensic science laboratory determined

30a

that the cause of death was “acute alcohol abstinence

syndrome.” The two diagnosis, as the plaintiff recognizes

in her posttrial brief, are not inconsistent.

Acute cardiac failure is unpredictable and unforesee-

able. Even assuming that Sheriff Wheat failed to exercise

reasonable care in providing medical attention or super-

vision to Morrison, no failure on the part of the Sheriff

proximately caused the acute cardiac failure. Because the

death of Morrison was caused by an acute cardiac failure

even assuming that the Sheriff was negligent in some re-

spect, that negligence would not be the proximate cause

of Morrison’s death. The acute cardiac failure was an

unforeseeable superseding cause. A sheriff is required

only to take reasonable care of the medical and super-

visory needs of his charges. A sheriff does not insure the

safety of those who are placed in his jail. Accordingly,

the Court finds that nothing which either the Sheriff or

his agent, Jailer Touchstone, did negligently cause the

death of Sylvester Morrison, Jr. on November 9, 1978.

III. Order

It is hereby ordered that the claims against Sheriff

Wheat be dismissed with prejudice.

Costs are taxed against the plaintiff.

sla

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Civil Action No. 79-0632-H

BERTHA MORRISON,

Plaintiff,

VS.

WASHINGTON COUNTY, ALABAMA, et al.,

Defendants.

ORDER

This order will address the pending state-law claim for

wrongful death under Ala. Code § 6-6-410 (1975).

I. Jurisdictional Defects

Several defendants have moved to dismiss the wrongful

death claim on the ground that this Court lacks subject-

matter jurisdiction over all of the defendants except

Sheriff Wheat. The defendants argue that the decision of

the Supreme Court in Aldinger v. Howard, 427 U.S. 1,

96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976), mandates that

the state claim be dismissed because all defendants ex-

cept Sheriff Wheat are now pendent parties. In Aldinger

the plaintiff coupled her civil-rights claim under 42 U.S.C.

$1983 against county officials with a state-law claim

against the county itself. The claim against the county

sought damages against the county under the theory of

respondeat superior. At the time the claims in Aldinger

arose no 1983 claim was recognized against counties. But

see Mondell v. Department of Social Services, 436 U.S.

658 (1978). Thus, the plaintiff in Aldinger sought to ob-

tain federal court jurisdiction over the state-law claim

against the county through the doctrine of pendent-party

jurisdiction. The plaintiff reasoned that, since jurisdiction

existed over the county official through 28 U.S.C. § 1343

32a

(3), because her claims against the county official and the

county itself arose from the same nucleus of operative

facts, then she should be allowed to obtain pendent-party

jurisdiction over the county. The rationale which led the

Supreme Court to conclude that pendent-party jurisdic-

tion was inappropriate was rooted in the recognition that,

at the time, a county was not a person within the meaning

of section 1983. Therefore, the Supreme Court reasoned

that a state-law claim against the county could not be

joined with the federal claim against the county officials

in federal court because the scope of federal! jurisdiction

did not extent far enough to include the state-law claim

against a party who could not otherwise be joined.

The factual situation in Aldinger is significantly dif-

ferent from the factual situation in the case at bar. All

the defendants in this lawsuit were subject to federal ju-

risdiction. The wrongful death claim was injected into

this lawsuit under the familiar analysis found in United

Mine Workers of America v. Gibbs, 383 U.S. 715 (1966).

After discovery was completed the court entered summary

judgment in favor of all defendants (except Sheriff

Wheat) on all federal claims. Moreover, the federal claims

in this lawsuit were substantial. Cf. Haggans v. Lavine,

415 U.S. 528, 94 S. Ct. 1872, 39 L. Ed. 2d 577 (1974)

(a substantial federal ground will support jurisdiction

over a pendent statutory claim which is related to the

federal ground.) The federal claims in this case were not

pled in a frivolous effort to obtain pendent-party jurisdic-

tion.

In the case at bar only Sheriff Wheat has a remaining

federal claim to be tried before the jury. It does not fol-

low, as the other defendants urge, that the dismissal of

the federal claims against them divest this Court of sub-

ject-matter jurisdiction over the wrongful death claim

against them. The federal statutory claims against them

were non-frivolous. Unlike A/dinger, this was not a situ-

ation where this Court would not otherwise have had

33a

subject-matter jurisdiction over claims asserted against

the defendants (except Wheat). The 1983 claims against

Wheat and the wrongful death claim against the other

defendants involve the same basic facts. Judicial econ-

omy and convenience would be served by trying all of the

claims together.

The Fifth Circuit has recently examined a pendent-

party situation which is closely analogous to the facts in

this case. In Boudreaux v. Puckett, 611 F.2d 1028 (5th

Cir. 1980), the court concluded that pendent-party juris-

diction was proper even after the two defendants against

whom the federal claims had been pled were out of the

lawsuit. The facts in Boudreaux presented a less com-

pelling basis for asserting jurisdiction over the state

claims than do the facts in the case at bar. In the case

at bar there are still pending federal claims and all of

the defendants in this case were initially alleged to have

violated the same federal rights. In short, the Court holds

that nothing which the Supreme Court said in Aldinger

v. Howard forecloses this Court from adjudicating the

wrongful death claim of Bertha Morrison against the de-

fendants who are not faced with liability under any fed-

eral claim.

II. Motions for Summary Judgment

It is ordered that the motion to strike which the de-

fendant Washington County Hospital Association, Ine.

filed is denied. The affidavits of Earline McRae and

David Knott, M.D. comply with the requirements of Fed.

R. Civ. P. 56(e). Both affidavits affirmatively show that

the affiants are competent to testify in light of their qual-

ifications, that their testimony is based upon their opinion

as experts under Fed. R. Evid. 703, and that the affi-

davits disclose the facts which form the basis of their ex-

pert opinions.

The motion for summary judgment which the Wash-

ington County Hospital Association, Inc. filed is denied.

34a

A genuine issue of fact is raised as to whether the nurses

at the Washington County Hospital adequately discharged

any duty which they may have owed Sylvester Morrison

to make an independent evaluation of the wisdom to dis-

charge Morrison from the hospital to the county jail.

The Court notes that the duty, if any, which the nurs-

ing staff owes a patient was not briefed by the parties.

The Court would expect this issue to be thoroughly briefed

in the trial briefs which the parties are ordered to sub-

mit.

The motion of Dr. Paul Petcher for summary jJudg-

ment is likewise denied. A genuine issue as to material

fact remains: Did Dr. Petcher fail to discharge the duty

cee 4

of care which he owed to Sylvester Morrison?

DONE this 6th day of February, 1981.

= W. B. Hand

United States District Judge

35a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Civil Action No. 79-0632-H

BERTHA MORRISON,

Plaintiff,

WASHINGTON CoUNTY, ALABAMA, et al..

DD f¢ ndants.

ORDER

It is hereby ORDERED that the Court’s previous rul-

ing of October 7, 1980, in which it found Sheriff Wheat

liable for violation of 42 U.S.C. $ 1983, be vacated. Ac-

cordingly, those portions of the Order which deal with

Sheriff Wheat from page 16 through page 22 are hereby

vacated.

Since the case against Sheriff Wheat will be tried be-

fore a jury, there is no reason to dismiss the pendant-

state claim for wrongful death. Therefore, it is hereby

ORDERED that page 25 and that portion of page 26

which deals with the pendant-state claim be vacated. The

Case of Bertha Morrison against all of the defendants on

the question of wrongful death will be tried to a jury.

The Court will allow the parties leave to file motions

for summary judgment as to the wrongful death claim.

The previous motions for summary judgment contained

language which was broad enough to encompass the pend-

ant-state claim. However, with the exception of the Wash-

ington County Hospital Association, Inc., no party ad-

dressed the pendant-state claims in their brief. If any

;

defendant, including the Washington County Hospital As-

36a

sociation, Inc., wishes to renew its motion for summary

judgment as regards the wrongful death claim, they may

do so by filing the appropriate motion, supported by a

brief and proposed Findings of Fact and Conclusions of

Law, no later than December 31, 1980. The plaintiff must

respond to any motion for summary judgment as regards

the wrongful death claim by January 23, 1981.

It is further ORDERED that this case is set for trial

on the jury term which shall commence March 23, 1981.

DONE this 12th day of December, 1980.

s/ W.B. Hand

W. B. HAND

37a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Civil Aetion No. 79-0632-H

BERTHA MORRISON,

— Plaintiff,

WASHINGTON COUNTY, ALABAMA, et al..,

Defendants.

MEMORANDUM OF DECISION

The federal claims in this case arise under the Civil

Rights Act of 1871, Rev. Stats. $1979 (1875), and a

pendent state claim arises under Alabama’s wrongful

death statute, Ala. Code § 6-5-410 (1975). All of the de-

fendants, with the exception of Washington County, have

moved for summary judgment on all of the claims. For

the reasons set forth below,' the Court holds: 1) that

'The plain language of the Federal Rules of Civil Procedure do

not require a court to enter findings of fact or conclusions of law

when it enters summary judgment. Fed. R. Civ. P. 52(a) provides

in part, that “!flindings of fact and conclusions of law are unnec-

essary on decisions of motions under Rules 12 or 56 or any other

motion except as provided in Rule 41(b)."" Yet ‘even when the rules

do not require that findings of fact and conclusions of law be is-

sued, a concise statement by the district court of the grounds for its

decision is desirable."” Huckeby v. Frozen Food Express, 555 F.2d

542, 545 n.4 (5th Cir. 1977); see Hanson v. Aetna Life & Cas., No.

78-3661, slip. op. at 9113 (5th Cir. Sept. 4, 1980) (“{Wle have in

practice insisted that district courts record—however informally—

their reasons for entering summary judgment, at least where their

underlying holdings would otherwise be ambiguous or inascertain-

able.”): Stone v. Board of Regents, 620 F.2d 526, 528 (5th Cir.

1980); Jackson v. Marine Exploration Co., Inc., 614 F.2d 65, 66-67

(5th Cir. 1980): Alabama v. Seeber, 502 F.2d 1238, 1242 n.3 (5th

Cir. 1974) (district court should supply reasons); Melancon v.

INA, 482 F.2d 1057, 1959 n.4 (5th Cir. 1973) (state reasons);

38a

summary judgment is granted as to all defendants, ex-

cept Washington County, on the claims under 42 U.S.C.

$$ 1985(3) and 1986; 2) that summary judgment is

granted as to all defendants, except Washington County

and Sheriff Wheat, on the claim under 42 U.S.C. § 1983;

3) that summary judgment is granted to the plaintiff, a

non-moving party, on the issue of the liability of Sheriff

Wheat under the claim under 42 U.S.C. $ 1983; and 4)

that che pendent state claim under Alabama’s wrongful

death statute is dismissed without prejudice.

I. The Facts

A. The Hospital

This case involves the tragic death of Sylvester Morri-

son, Jr. On November 7, 1978, Sylvester Morrison {here-

inafter the decedent] was admitted to Washington County

Hospital. Morrison came to the hospital at noon in order

to seek treatment of a severe diabetic condition from

which he suffered. Although Morrison was admitted by

Dr. Patterson at the emergency room, Dr. Petcher was

the attending physician. Dr. Petcher continued to treat

Morrison on November 8, 1978, the second day of the

decedent’s stay at Washington County Hospital. On No-

vember &th, Dr. Petcher diagnosed the decedent as suffer-

ing from both delirium tremens and diabetes mellitus.

After diagnosing that the decedent suffered from delirium

tremens at about 9:00 a.m. in the morning, Dr. Petcher

had members of the nursing staff telephone some family

members of the decedent. Family members were tele-

phoned in the hope that one of them would come to the

hospital and sit with the decedent and aid the hospital

Mosley v. Ogden Marine, 480 F.2d 1225 (Sth Cir. 1973) (district

court should make clear which theory it relied upon in granting

motion for summary judgment); Steed v. Central of Georgia Ry.

Co. 447 2d 1208. 1806 Coth Cir. 1978 (district court should

“elucidate its rationale”). This short memorandum of decision ade-

quately informs the appellate court of this Court's rationale in a

concise manner.

39a

staff in nursing the decedent and controlling his violent

behavior during his withdrawal from alcohol.

The record is unclear as to whether the nursing staff

was able to contact members of the family initially.

However, by 3:20 p.m. on the afternoon of November 8,

1978, hospital records show that family members had

contacted the hospital. Deposition of Dr. Paul Petcher

at 31.

Late that afternoon, around 6:00 p.m., Dr. Petcher

meet with five family members at the hospital. Jd. at 32.

Dr. Petcher explained to the various family members that

their help was needed in caring for Mr. Morrison, and that

if they refused to help care for Mr. Morrison at the hos-

pital the doctor might be forced to discharge Mr. Morri-

son to his family. Jd. at 34. None of the five family mem-

bers who met with Dr. Petcher were willing to stay at the

hospital.

After the family refused to help, despite repeated re-

quests, id. at 38, Dr. Petcher explored other alternatives

for controlling Morrison short of sending him to the

county jail, one of the alternatives which Dr. Petcher had

discussed with the family. Dr. Petcher spoke with a psy-

chologist at the Washington County Mental Health Unit,

Ray Sasser. Id. at 38. Dr. Petcher explored the possi-

bility with Mr. Sasser of transferring Morrison from the

Washington County Hospital to a mental health center

such as Searcy Hospital in Mount Vernon, Alabama or

the University of South Alabama Hospital in Mobile, Ala-

bama for treatment in a mental health ward. Dr. Petcher

learned that it would be impossible to transfer Morrison

without a commitment hearing. /d. at 39. Dr. Petcher

concluded that the only viable alternative left open to him

was the Washington County jail if Morrison became un-

manageable.

To Dr. Petcher, it was clear that the family’s decision

was that the doctor discharge the decedent to a jail if it

became impossible to supervise him at the hospital. Jd.

40a

at 56. This was preferred by the family over the alter-

natives of staying at the hospital and helping with the

nursing or taking the decedent home. Jd. at 34. It ap-

pears from the record that Morrison’s mother suggested

to Dr. Petcher that the doctor intern Morrison in the

county jail. Jd. at 40-41.

As the day of November 8th progressed Morrison had

become increasingly violent. ‘‘|H]e pulled the I.V. out of

his arm.” Jd. at 35. He was talking to himself, and he

reported seeing insects on the walls. Deposition of Jean

Young at 23. By the early evening Morrison was “irra-

tional and uncontrollable’, Deposition of Sarah Lankford

at 6, throwing a lounge chair across his hospital room,

id. at 17. Morrison had been locked in a private room in

an effort to protect other patients and the hospital staff.

Deposition of Jean Young at 9.

The family members who had arrived at the hospital

at 6:00 p.m. left at 7:00 p.m. /d. at 23. By 7:25 p.m.,

Dr. Petcher had instructed the nursing staff to prepare

Morrison for discharge. Deposition of Sarah Lankford at

8-9. The record is unclear as to who contacted the Wash-

ington County Sheriff's Department. Deposition of Jesse

Touchstone at 11-12. At any rate, the record is crystal

clear that the decision to discharge Morrison if he became

unmanageable was made by his family and that the in-

struction to discharge Morrison was made by Dr. Petcher

without consulting any members of the nursing staff, the

hospital staff, or the local police or sheriff departments.

As with most civil rights cases, the race of the actors

is important. Morrison is Negro. Dr. Petcher, the nurs-

ing staff, Sheriff Wheat, and Jailer Touchstone are Cau-

casian.

A Chatom police officer, Officer Bickerstaff, and Ala-

bama Highway Patrolman Michael Barnett came to the

hospital around 8:00 p.m. Id, at 8. When tney arrive

Morrison was wheeled from his hospital room in a wheel-

chair and placed in a squad car. Deposition of Dr. Paul

4la

Petcher at 57. Dr. Petcher recalls directing the police

officers to check on the condition of Morrison once each

hour. Jd. at 57. Morrison was sedated when he was

turned over to the two law enforcement officers. Jd. at 57.

When Dr. Petcher turned over Morrison to the two po-

lice officers, he did not tell the officers that Morrison was

being charged with any criminal offense. Dr. Petcher’s

“only intent was to take care of the man until the next

day when he was [able to be commited to a mental in-

stitution.]” Jd. at 58. Dr. Petcher did not direct the po-

lice officers to charge Morrison with any criminal offense.

Id. Nor did Dr. Petcher describe Morrison as a drunk to

the two officers. Jd. at 60. However, despite this infor-

mation, the police treated Morrison as though he was

being arrested for drunkeness.? As between Dr. Petcher

* Someone at the hospital had telephoned the Sheriff's office asking

to have 2 police officer sent to the hospital. Deposition of Jesse

Touchstone at 11. The jailer who answered the phone was told there

was “a disturbance or something out there [at the hospital! like

that.” Jd. at 13. Because the hospital was within the police jurisdic-

tion of the Chatom City Police, the jailer forwarded the request for

assistance to the Chatom City Police. He also contacted Trooper

Michael Barnett of the Alabama Highway Patrol. /d. at 11. When

Officer Bickerstaff and Trooper Barnett turned Morrison over to

Jailer Touchstone, the jailer assumed Morrison was intoxicated. /d.

at 10. Neither officer told the jailer Morrison was intoxicated. /d.

Nor did either officer convey Dr. Petcher’s instructions to the jailer.

Deposition of Dr. Petcher at 57-59.

When Officer Bickerstaff telephoned Sheriff Wheat for permission

to incarcerate Morrison at the county jail Bickerstaff told the sheriff

that Morrison was intoxicated. Deposition of Sheriff Wheat at 9,

14. The Sheriff concluded that Officer Bickerstaff had arrested Mor-

rison for “public drunk,” | sic!) id. at 15, 1. 15, although Bickerstaff

did not tell the sheriff that Morrison was charged with a crime, id.,

at 31, 1. 21-22. Thus, the uncontroverted record shows that Dr.

Petcher told Officer Bickerstaff that Morrison was not to be charged

with a criminal offense, that Officer Bickerstaff, for some reason, told

Sheriff Wheat that Morrison was a public drunk, and that nobody

said anything to Jailer Touchstone. The jailer reached his own

conclusions.

42a

and Officer Bickerstaff, something was lost in the trans-

lation.

Before Chatom Police Officer Bickerstaff took Morrison

to the Washington County jail he contacted Washington

County Sheriff William Wheat. Deposition of William

Wheat at 9. Wheat was at home that evening. Bicker-

staff “told [Wheat] that he had a drunk out at the hos-

pital and that the doctor had talked to the mental health

man and they had set up for a hearing to get with the

judge the next morning to have a commitment hearing

and that they needed to bring him to the jail to hold him

until the next morning until they could have the hear-

ing.” Id. at 9. When Officer Bickerstaff asked Sheriff

Wheat whether Morrison should be placed in the county

jail Sheriff Wheat said “to go ahead.” /d. at 10, 1. 6.

Any person whom the Chatom City Pelice arrested was

jailed at the Washington County jail. /d. at 8. In fact,

Morrison was never charged with any crime. /d. at 21.

Officers Bickerstaff and Barnett arrived at the Wash-

ington County jail around 8:30 or 9:00 p.m. on the eve-

ning of November 8, 1978. Deposition of Jesse Touch-

stone at 9. The record is unclear whether the two officers

used the same car or whether they used different cars.

If different cars were used by both officers it is unclear

which officer physically transported Morrison to the jail.

Deposition of Sheriff Wheat at 20.

When Bickerstaff and Barnett brought Morrison to the

jail they directed Touchstone to place Morrison in a cell.

Deposition of Jesse Touchstone at 10. At the time Morri-

son was first presented to Touchstone, the jailer concluded

that Morrison was drunk because of “the way he was

hollering and cutting up.” /d. at 10. Morrison was “just

wanting to go home; he said he had to go; had to go to

work for Dr. Petcher.” Jd. At that point the jailer placed

Morrison in a cell.

Jesse L. Touchstone, the jailer at the county jail, who

was on duty when they arrived, had been employed as a

43a

jailer for the past five years. He had a third grade edu-

cation. Jd. at 4. The jailer did not know whether Morri-

son had been charged with a crime. The procedure at the

Washington County jail was to have the arresting officer

fill out the docket sheet; the jailer ordinarily did not see

the docket sheet. /d. at 9-10.

After Morrison had been placed in the cell, according

to Touchstone, “he just—just like a drunk person.

Well, he didn’t go to sleep; he kept beating and knocking

and hollering, wanting to go home. He wanted to call his

wife and he couldn't even tell me his phone number . .

I taken him to be drunk.” /d. at 14. The jailer did not

know whether Morrison had been charged with a crime.

He did not ask Officer Bickerstaff or Trooper Barnett

why Morrison was in jail. And he was not given any

medicine to administer to Morrison. /d. at 14.

Several times during the early morning hours of No-

vember 9, 1978 the jailer offered water to Morrison or

spoke with Morrison in an effort to calm him. Morrison

was talking incoherently, saying that he wanted to go

home because he had to go to work. 7d. at 16. He beat

the walls of his cell with his fist, and he bumped his head

against the glass window in the cell. /d. at 17. During

all of this Touchstone continued to believe that Morrison

was simply drunk. /d. at 17.

The last time Touchstone saw Morrison alive was at

4:00 a.m. on the morning of November 9, 1978. Morrison

was still knocking on his cell walls at that time. After

checking on Morrison, Touchstone returned to his guard

station. He noticed that Morrison had gotten quiet.

Touchstone again returned to Morrison's cell to check on

Morrison. When Touchstone opened the cell door he “saw

there was something wrong with [Morrison]... .” 7d.

at 22. Touchstone left the cell and returned to his post

to retrieve a flashlight. After retrieving the flashlight he

went back to the cell. He “opened the food hole to where

I could look and see and be sure. I just knowed [sic]

44a

there was something wrong before I called the sheriff.”

Id. at 22. Touchstone made no effort to apply first aid.

“I didn’t open the door [to the cell]; I just opened the

food door and I got and called the Sheriff.” Jd. at 23.

After spending approximately eight hours at the Wash-

ington County jail, Morrison was dead.

C. Official Policies and Custom of the Sheriff

When a person was jailed for being intoxicated the

policy of the sheriff was this:

The only policy we have is we usually try—if they’re

drunk, we put them as near to theirself [sic] as we

can instead of putting them back with a lot of the

older prisoners that [sic] had [sic] been there a long

time.

Deposition of Sheriff Wheat at 22. The sheriff’s policy

on providing medical attention to prisoners was:

If the [arresting]! officer thinks that—or the jailer

thinks that they should have some medical treatment

or be checked by a medical doctor, then they carry

them to the hospital or the clinic.

Usually [drunks] are just brought to the jail, unless

they've been in a wreck or something like that, and

put in a cell and the jailer checks by them so often.

And then they usually sober on up and [sic] ready

to get out.

Id. at 23. The deposition testimony of the sheriff was

that the jailer would check the cell of an intoxicated per-

son on an hourly basis. /d. at 24.

It was a regular practice of the sheriff to hold people

with mental health problems at the jail until commitment

hearings could be scheduled in state court. Apparently,

this was done, as a practice and policy of the sheriff, when

45a

no judicial order had issued authorizing commitment. /d.

at 24-26. In short, Morrison was treated the same as any

drunk would be treated. Jd. at 24.

Jailer Touchstone agreed that Morrison “acted like all

the other drunks that come [sic] in,” Deposition of Jesse

Touchstone at 29, and that he treated Morrison by follow-

ing the usual practice of the jail: refraining from call-

ing for medical help in response to Morrison’s physical

reaction because he did not suffer from a “cut or some-

thing like that,” id. at 27.

D. The Parties

This action was filed on November 7, 1979 by Ms.

Bertha Morrison, administratrix of the estate of Sylvester

Morrison, Jr. The defendants are William Wheat, Sheriff

of Washington County, in his individual and official ca-

pacity; each of the Washington County Commissioners in

their individual and official capacities; Washington County;

the Washington County Hospital Association, Inc.; and

Dr. Paul Petcher.

The Washington County Hospital Association, Inc. is

governed by a seventeen-member board of directors. The

board of directors is appointed by the Washington County

Commission. The hospital receives tax revenues to help

support its operations. Deposition of Hiller Dickerson at

15. The hospital has thirty beds. It presently has three

active physicians, including Dr. Petcher, on the staff. /d.

at 14. Two others, a retired physician and a local dentist,

are members of the courtesy medical staff at the Wash-

ington County Hospital. /d. at 16.

Physicians on the staff have the privilege of using the

hospital facilities. However, they act as private physi-

cians. Staff physicians are not employees of the hospital.

Id. at 53. “Patients [are] discharged only on written or-

der of the attending physician.” /d. at exhibit A of the

Rules and Regulations no. 17 [hereinafter Rule 17]. No

46a

regulation or custom of the hospital directs doctors to

discharge unruly patients to the county jail. Public funds

support both the hospital and the county jail.

II. Conclusions of Law

The complaint alleges four causes of action. One cause

of action is alleged under 42 U.S.C. § 1985(3) for a con-

spiracy, another cause of action is claimed under 42

U.S.C. $ 1986 alleging negligence for failing to prevent a

conspiracy under § 1985/3), a third cause of action is al-

leged to be under 42 U.S.C. § 1983, and a fourth claim is

alleged under Alabama's wrongful death statute. Ala.

Code § 6-5-410. All of the defendants, except Washing-

ton County, have moved for summary judgment as to all

of the claims.”

A. The Claim Under § 1985/3)

The Court begins its analysis with the claim under 42

U.S.C. § 198513). A claim under § 1985/3) does not re-

* See pp. 22-24 & notes 14 & 15 infra (discussing the manner in

which the Court will treat Washington County).

* Section 1985/3) provides:

(3) Depriving persons of rights or privileges. If two or more

persons in any State or Territory conspire, or go in disguise

on the highway or on the premises of another, for the purpose

of depriving, either directly or indirectly, any person or class

of persons of the equal protection of the laws, or of equal priv-

ileves and immunities under the laws, or for the purpose of

preventing or hindering the constituted authorities of any State

or Territory from giving or securing to all persons within such

State or Territory the equal protection of the laws; or if two

or more persons conspire to prevent by force, intimidation, or

threat, any citizen who is lawfully entitled to vote, from giving

his support or advocacy in a legal manner, toward or in favor

of the election of any lawfully qualified person as an elector for

President or Vice-President, or as a member of Congress of the

United States; or to injure any citizen in person or property on

account of such support or advocacy; in any case of conspiracy

set forth in this section, if one or more persons engaged therein

47a

quire state action. However, as an essential element,

“there must be some racial, or perhaps otherwise class-

based invidiously discriminatory animus behind the con-

spirators’ action.” Griffin v. Breckenridge, 403 U.S. 88,

102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971): Sims

v. Jefferson Downs, Inc., 611 F.2d 609, 613-14 (5th Cir.

1980); Baskin v. Parker, 602 F.2d 1205, 1206-07 (5th

Cir. 1979). Absolutely not one scintilla of evidence es-

tablishes that any racial animus or other class-based, in-

vidiously discriminatory animus existed in this case.

Dr. Petcher and all of the attending nurses at the

Washington County Hospital were Caucasian. Sheriff

Wheat and Jailer Touchstone were Caucasian. Morrison

was a Negro. However, there is not a scintilla of evidence

in the record which shows that the decision to transfer

Morriso~ from the hospital to the county jail was rooted

in racially discriminatory animus. In fact, every partic-

ipant who was asked expressly denied any racial animus

played any part in the decision to transfer Morrison.

The plaintiff argues that the simple difference in skin

color between Morrison and the defendants is sufficient

circumstantial evidence from which one could infer the

necessary racial animus. The Court rejects this argument

as being unfounded in either fact or experience. In fact,

the deposition testimony of Dr. Petcher shows that he

served as a physician in Nigeria from 1951 to 1954 and

again from 1956 to 1960. For the seven years during

which he served as a physician-missionary in Nigeria he

was the only doctor for 250,000 people. Deposition of Dr.

do, or cause to be done, any act in furtherance of the object of

such conspiracy, whereby another is injured in his person or

property, or deprived of having and exercising any right or

privilege of a citizen of the United States, the party so injured

or deprived may have an action for the recovery of damages,

occasioned by such injury or deprivation, against any one or

more of the conspirators.

42 U.S.C. § 1985 (3).

48a

Petcher at 4. Rather than being a racist, the man is more

accurately described as a saint.

Nothing in the record indicates that the treatment af-

forded Morrison was class-based. The Washington County

Hospital, as a practical matter, is so small and limited

that any unusual problem such as the one presented by

Morrison was likely to be unique. Indeed, the record

shows that this was the first instance in which a family

refused to help nurse another member of the family when

the hospital requested help. The manner in which Dr.

Petcher chose to resolve the problem with which he was

faced may well have amounted to malpractice* or false

arrest,® but it does not amount to a violation of the civil

rights conspiracy statute. Accordingly, the Court holds

that the motion for summary judgment filed by all] de-

fendants ‘except Washington County) is granted as to

the § 1985/3) claim.

B. The Claim Under § 1986

The complaint also alleges a cause of action under 42

U.S.C. § 1986. That section provides:

Every person who, having knowledge that any of the

wrongs conspired to be done, and mentioned in the

preceeding section [42 U.S.C. £1985], are about to

be committed, and having power to prevent or aid in

preventing the commission of the same, neglects or

refuses so to do, if such wrongful act be committed,

shali be liable to the party injured, or his legal rep-

resentatives, for all damages caused by such wrong-

ful act, which such person by reasonable diligence

could have prevented; and such damages may be re-

* The joint pretrial order which the parties filed on August 29,

1980 recognized that a medical malpractice claim might be main-

tained against Dr. Petcher on these facts. Pretrial Order at 1.

* Arrests by private persons are governed by Ala. Code § 15-10-7

(1975).

49a

covered in an action on the case: and any number of

persons guilty of such wrongful neglect or refusal

may be joined as defendants in the action, and if the

death of any party be caused by any such wrongful

act and neglect, the legal representatives of the de-

ceased shall have such action therefor, and may re-

cover not exceeding five thousand dollars damages

therein, for the benefit of the widow of the deceased,

if there be one, and if there be no widow, then for

the benefit of the next of kin of the deceased. But

no action under the provisions of this section shal]

be sustained which is not commenced within one year

after the cause of action has accrued.

42 U.S.C. § 1986. Because the Court held that the plain-

tiff has failed to establish a conspiracy under § 1985/3)

it necessarily follows that the claim under £ 1986 must

also fail. Dowsey v. Wilkins, 467 F.2d 1022, 1026 (5th

Cir. 1972). Therefore, the Court holds that summary

judgment in favor of all of the defendants except Wash-

ington County is granted as to the claim for relief under

> 1986.

C. The Claim Under § 1983

In order to be entitled to relief under § 19837 the plain-

tiff must show 1) that the defendant deprived him of a

right secured to him by the Constitution or federal law

and 2) that the deprivation occurred under color of state

law. Flagq Brothers, Inc. v. Brooks, 436 U.S. 149, 155

’ Section 1983 provides:

Every person who, under color of any statute, ordinance. regu-

lation, 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, shal! be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

50a

(1978) ; Adickes v. S. H. Kress and Co., 398 U.S. 144,

150 (1970); White v. Scrivner Corp., 594 F.2d 140, 141

(5th Cir. 1979).

1. Washington County Hospital Association, Inc.

Without doubt the hospital acts under color of state

law. A board of directors, which is appointed by the pub-

lically-elected county commission, governs the hospital.

The hospital is supported by public tax dollars. In short,

the hospital is engaged in state action. Jackson v. Metro-

politan Edison Co., 419 U.S. 345 (1974); Burton v. Wil-

mington Parking Authority, 365 U.S. 715 (1961).

However, as pointed out above, in order to be liable for

violation of § 1983 the defendant must deprive the plain-

tiff of a right, privilege or immunity secured to him by

the Constitution or federal laws. In this case the hos-

pital took no action. Dr. Petcher was the actor. A state

entity is not liable under the respondeat superior theory

unless its agent acted pursuant to the direction, custom,

or policy of the superior. Monell v. Department of Social

Services, 436 U.S. 658 (1978): Baskin v. Parker, 602

F.2d 1205 (5th Cir. 1979). Here Dr. Petcher was not an

employee of the hospital. Deposition of Hiller Dickerson

at 53. Nor was he acting pursuant to a custom, policy, or

practice of the hospital in discharging Morrison to the

police. For instance, there was no regulation promulgated

by the hospital or its governing board which required un-

ruly patients to be turned over to the police. Dr. Petcher

acted by himself in deciding to discharge Morrison. Rule

17, which authorized an attending physician to discharge

a patient, see p. 9 supra (text of Rule 17), did not com-

pel Dr. Petcher to follow the course of action he chose to

follow. Martinez v. California, 444 U.S. 277 (1980) ‘no

state action where parolee murders a person after release

from prison). It set no custom, policy, or practice which

resulted in the abridgement of Morrison’s federally se-

cured rights. Cf. Adickes v. S. H. Kress and Co., 398

5la

U.S. 144 (1970); Wanger v. Bonner, 621 F.2d 675, 683

(5th Cir. 1980) (an employer is liable under § 1983 for

acts of employee only where employee acts pursuant to

official policies and customs). Therefore, the Court holds

that nothing which the hospital did deprived Morrison of

any right, privilege or immunity secured by the Constitu-

tion or federal laws; no custom, practice, or policy op-

erated which resulted in Morrison being sent to the county

jail. Waters v. City of Ocean Springs, No. 80-3192, slip

op. at 158 (5th Cir. Oct. 3, 1980) ‘applying Monell’s re-

quirement that liability of municipality attaches under

s 1983 only where execution of governmental policy causes

injury). As to the hospital, the plaintiff’s claim under

s 1983 fails, and summary judgment is hereby entered in

favor of the defendant hospital.

2. The Washington County Commission

Jack Armstrong, as Probate Judge, Ed Turner, Leonard

Sullivan, Bodie Carpenter, and Sherwood Dees, as com-

missioners of Washineton County, are named as defend-

ants in their individual capacities. As in the case of the

hospital, state action is present. The commissioners de-

rive their authority from state law.

Again, as with the hospital, the commissioners were

not the actors who discharged Morrison to the police. Nor

were they the actors who decided that Morrison should be

discharged. Dr. Petcher made the decision to discharge

Morrison. The decision of Dr. Petcher was not based on

any custom, policy, or practice established by the commis-

sion. The commission did not, either formally or infor-

mally, set any policy requiring unruly patients to be dis-

charged in the middle of the night to the police. The de-

cision to discharge Mr. Morrison to the police was made

by Dr. Petcher. No one else participated. Thus, the Court

holds that the commissioners in both their individual and

representative capacities are entitled to summary judg-

52a

ment on the § 1983 claim brought by the plaintiff... Marti-

nez v. California; Monell v. Department of Social Serv-

ices; Waters v. City of Ocean Springs, No. 80-3192 (5th

Cir. Oct. 3, 1980) ; Baskin v. Parker.

3. Dr. Paul Petcher

The $1983 claim against Dr. Petcher also fails. Dr.

Petcher did not act under color of state law. “[|A] State

is responsible for the . . . act of a private party when

the State, by its law, has compelled the act.” Flagg

Brothers, Inc., v. Brooks, 436 U.S. 149, 164 (1978) ;

Waters v. St. Francis Hospital, Inc., 618 F.2d 1105, 1107

(5th Cir. 1980) (a state statute which authorizes a pri-

vate hospital to revoke staff privileges of doctors does not

compel revocation of privileges so that if a private hos-

pital chooses to revoke staff privileges there is no state

action). Nothing which the hospital or the county com-

mission did compelled Dr. Petcher to take the action

which he took. The State, in short, did not put its weight

behind the private action of Dr. Petcher. Nor did Dr.

Petcher consult with any hospital administrator before

deciding to discharge Morrison. Adickes v. S. H. Kress

& Co., 398 U.S. 144, 146 (1970) (private persons who act

jointly with state official in prohibited conduct are liable

under § 1983); cf. Sparks v. Duval County Ranch, Inc.,

604 F.2d 976 (5th Cir. 1979) (en banc) (private con-

duct becomes state action where there is a conspiracy

® The defense of qualified immunity was not raised by any of the

defendants. See, e.g., Procunier v. Navarette, 434 U.S. 555 (1978)

(qualified immunity for prison officials and officers) ; Imber v. Pacht-

man, 424 U.S. 409 (1976) (absolute immunity for prosecutors in

initiating and presenting the state’s case) ; O'Connor v. Donaldson,

422 U.S. 563 (1975) (qualified immunity for superintendent of state

hospital) ; Wood v. Strickland, 420 U.S. 308 (1975) (qualified im-

munity for local school board members); Scheuer v. Rhodes, 416

U.S. 2832 (1974) (qualified “good-faith” immunity for state governor

and other executive officers for discretionary acts performed in the

course of official conduct).

53a

with a state official). Thus, the Court holds that the

plaintiff may not properly characterize the conduct of Dr.

Petcher as state action by arguing that the hospital au-

thorized or encouraged his conduct. Flagg Brothers, Inc.

v. Brooks, 436 U.S. at 165. No state action was involved

in the decision by Dr. Petcher to discharge Morrison to

the police. The conduct of Dr. Petcher was wholly pri-

vate. Martinez v. California, 444 U.S. 277 (1980).

Therefore, the remedy which § 1983 affords is not avail-

able against Dr. Petcher. Summary judgment is granted

as to the $ 1983 claim in favor of the defendant Dr. Paul

Petcher.

4. Sheriff Wheat

a. The Arrest

Sheriff Wheat is the paradigm of state action. His

authority is come by because of his badge, his gun, and

the other indicia of office bestowed on him as Sheriff of

Washington County. Because of the peculiar facts of this

case, the Sheriff is unable to use as a shield the holding

in Monell that £ 1983 did not create a federal law of re-

spondeat superior. 436 U.S. at 693; Baskin v. Parker,

602 F.2d 1205, 1207-08 (5th Cir. 1979).

The facts in this case are that Officer Bickerstaff con-

tacted Sheriff Wheat at his home at 8:00 p.m. on Novem-

ber 8, 1978 before taking Morrison from the hospital to

the county jail to clear the action with the sheriff and to

get his permission. The sheriff authorized the seizure and

incarceration of Morrison. This was a warrantless ar-

rest wholly unauthorized under Alabama law” in viola-

* Under Alabama law, a warrantless arrest by a duly authorized

law enforcement officer is governed by Ala. Code § 15-10-83, which

reads:

Arrest without warrant~-When and for what allowed.

An officer may arrest any person without a warrant, on any

day and at any time, for:

54a

tion of the liberty guarantee afforded by the fourteenth

amendment. Hence § 1983 affords a remedy for vindica-

tion of the right. Waters v. City of Ocean Springs, No.

80-3192, slip op. at 157-58 (5th Cir. Oct. 3, 1980) ; Reeves

v. City of Jackson, 608 F.2d 644, 650 (1979). Thus,

while the sheriff was not the arresting officer, he is vacar-

iously liable for the acts of his agents because they acted

pursuant to his direction. The sheriff was an active par-

ticipant in the unconstitutional arrest of Morrison.

Wanger v. Bonner, 621 F.2d 675, 679 (5th Cir. 1980)

(explaining Baskin v. Parker).

b. The Confinement

As with the liability which flows to the sheriff because

of the acts of Officers Bickerstaff and Barnett, so too is

the sheriff liable for the death of Morrison once Morrison

was interned in the county jail. The policy which the

sheriff endorsed with regard to providing medical atten-

tion for people who were arrested imposes liability upon

the sheriff under $ 1983 for the death of Morrison. The

sheriff’s policy was to put those who were arrested for

intoxication in a cell by themself and to leave to the dis-

cretion of the arresting officer or the jailer the decision

to provide medical attention. Likewise, the decision to

(1) Any public offense committed or a breach of the peace

threatened in his presence;

(2) When a felony has been committed, though not in his

presence, by the person arrested ;

(3) When a felony has been committed and he has reasonable

cause to believe that the person arrested committed it;

(4) When he has reasonable cause to believe that the person

arrested has committed a felony, although it may afterwards

appear that a felony had not in fact been committed; or

(5) On a charge made, upon reasonable cause, that the person

arrested has committed a felony.

Ala. Code § 15-10-3 (1975).

55a

provide medical attention to those who were arrested on

other charges was delegated by the sheriff to his jailer.

To compound the problem, Touchstone, who was sup-

posed to check the cell of any person who was jailed for

intoxication, had no medical training. As a consequence,

he was unable to make an informed judgment as to

whether a prisoner needed medical attention. The affirma-

tive policy of the sheriff in delegating authority to the

arresting officers and the jailer to decide whether to seek

medical attention for a prisoner whom they thought was

intoxicated—as both Bickerstaff and Touchstone assumed

Morrison was—makes Sheriff Wheat liable if the eighth

amendment’s guarantee that a prisoner not be subjected

to * ‘unnecessary and wanton infliction of pain,’” through

deliberate indifferenec to his serious medical needs, was

violated. Estelle v. Gamble, 429 U.S. 97, 105 (1976)

(quoting Gregg v. Georgia, 428 U.S. 153, 182-83 (1976) ).

This conclusion is further buttressed by his policy of al-

lowing people to be jailed, without any judicial process,

while they await a commitment hearing. The death of

Morrison was a foreseeable consequence of the policies

and practices which the sheriff adopted for his jail. But

see, Martinez v. California, 444 U.S. 277 (1980).

C. Summary Judgment

It was Sheriff Wheat who moved for summary judg-

ment, asserting “no genuine issue as to any material facts

[exists] and that [he] is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c). The Court agrees that

the record does not show any dispute of fact as to the

involvement of Sheriff Wheat. However, contrary to the

conclusion of Sheriff Wheat, the record establishes lia-

bility under § 1983 for both the warrantless arrest and

the callous and conscious indifference to Morrison’s seri-

ous medical needs. Were the Court to stop here with its

56a

analysis, summary judgment would properly be entered

against Sheriff Wheat and in favor of the plaintiff, a

non-moving party.*®

d. Defense of Qualified Immunity

Nowhere in either his answer “ or in the pretrial order

which this Court has entered ** does Sheriff Wheat raise

the affirmative defense of qualified immunity. He would

be entitled to the defense, depending upon his state of

mind. Procunier v. Navarette, 434 U.S. 555 (1978)

(qualified immunity for prison officials and officers) ;

Pierson v. Ray, 386 U.S. 547, 555-58 (1967) (defense of

good faith available to police officers in § 1983 action) ;

Reeves v. City of Jackson, 608 F.2d 644, 652 n.3, (5th

Cir. 1979) (“good faith immunity inheres in the record

© Fed. R. Civ. P. 56 does not expressly address the granting of

summary judgment in favor of a non-moving party. The only di-

rection offered by Rule 56 is the two-pronged test which must be

followed in granting the motion: “that there is no genuine issue as

to any material fact and that the moving party is entitled to judg-

ment as a matter of law.” Fed. R. Civ. P. 56(c). One commentator

is of the opinion “that a cross-motion is not a prerequisite to the

entry of a judgment for the non-moving party ... .” 6 Moore's

Federal Practice § 56.12, at 56-331 (2nd ed. 1948) (summary judg-

ment for non-moving party). The modern rules of federal] pleading

emphasize the power of a court to do justice rather than elevating

the form of the pleadings over substance. Compare Fed. R. Civ. P.

54(c) (“every final judgment shall grant the relief to which the

party in whose favor it is rendered is entitled, even if the party has

not demanded such relief in his pleadings.) (emphasis added) with

Fed. R. Civ. P. 56(c) (no material facts in dispute). No material

facts are genuinely disputed in this case.

11 The answer from Sheriff Wheat was filed on December 10,

1979, twenty-two days after the complaint was filed with the Clerk’s

office. Sheriff Wheat was served with process on November 12,

1979. He filed his motion for summary judgment on August 5,

1980.

12 The pretrial conference in this case was held on September 3,

1980. The parties submitted a joint pretrial document to the Court

on August 29, 1980.

57a

as a matter of law”) ; Cruz v. Beto, 603 F.2d 1178, 1182-

84 (5th Cir. 1979) (it is plaintiff’s burden in piercing

defense of good faith to establish that the defendant offi-

cial acted recklessly or in a grossly negligent manner) ;

Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978) (leading

case of qualified immunity).

The sheriff could escape liability as an individual under

§ 1983 as long as the actions upon which the § 1983 claim

is predicated were taken in the good faith performance

of his official duties.

The Supreme Court explained the good faith stand-

ard of Scheuer in Wood, setting up two tests, one

objective and one subjective. Under the alternative

Wood formulations, an official is personally liable for

actions taken while discharging his official responsi-

bilities only if:

[1] |H]e knew or reasonably should have known

that the action he took within his sphere of offi-

cial responsibility would violate the constitu-

tional rights of the [individual] affected, or [2]

if he took the action with the malicious inten-

tion to cause a deprivation of constitutional

rights or other injury to the [individual]. That

is not to say that [officials] are “charged with

predicting the future course of constitutional

law.”

Familias Unidas v. Briscoe, 619 F.2d 391, 403 (5th Cir.

1980) (quoting Wood v. Strickland, 420 U.S. 308, 322

(1975) (citation omitted)). “Since qualified immunity is

a defense, the burden of pleading it rests with the de-

fendant. See Fed. Rule Civ. Proc. 8(c) (defendant must

plead any “matter constituting an avoidance or affirma-

tive defense”); 5 C. Wright & A. Miller, Federal Practice

and Procedure § 1271 (1969)." Gomez v. Toledo, 48

U.S.L.W. 4600, 4601 (U.S. May 27, 1980) (No. 79-5601).

The decision of the Supreme Court on the burden of

pleading was unanimous. “The failure to plead [quali-

58a

fied] immunity waives the affirmative defense. Fed. R.

Civ. P. 8(c); Henry v. First National Bank of Clarks-

dale, 595 F.2d 291, 298 n.1 (5th Cir. 1979).” Boyd v.

Carrol, No. 79-2242, slip op. at 8765 (5th Cir. Aug. 22,

1980) (judge failed to plead defense of absolute immu-

nity). The plaintiff is not required to rebut the defense

of qualified immunity unless it is pleaded in the answer.

Gomez v. Toledo, 48 U.S.L.W. at 4601. The Court need

not, and may not, consider the defense in this case.

On November 8, 1978, it was well-established constitu-

tional law that persons have a constitutional right to be

free from malicious, warrantless arrest, Brinegar v.

United States, 338 U.S. 160 (1949) (there must be prob-

able cause to arrest); sec Baker v. McCollan, 433 U.S.

137 (1979), and to be free from callous and conscious

indifference to their serious medical needs while they are

in jail, Estelle v. Gamble, 429 U.S. 251 (1976). The

Court holds that Sheriff Wheat is liable to the plaintiff,

in his individual capacity, for damages under § 1983, and

it grants summary judgment in favor of the plaintiff, a

non-moving party.”

As for liability in his representative capacity, that lia-

bility attaches only if the law permits an award of dam-

ages against the governmental entity whom the officer

represents. Monell v. Department of Social Services, 436

U.S. 658, 690 n.55 (1978). “Thus, damages may be

awarded against a defendant in his official capacity if

they would be available against the governmental entity,

itself.” Familias Unidas v. Briscoe, 619 F.2d 391, 403

(5th Cir. 1980). Washington County, as a municipal

corporation, is eminently suable under federal law. Sec

note 15 infra (discussing eleventh amendment immunity

vis-a-vis counties). Therefore, the sheriff is liable in both

his individual and his representaties capacities.

18 See note 10 eupra (discussing entry of summary judgment in

favor of a non-moving party).

59a

The only question remaining to be tried to the jury is

the question of the amount of the damages which Sheriff

Wheat owes the plaintiff. The Court intends to narrowly

restrict proof to this single issue.

D. Washington County, Alabama

One of the named defendants in this suit is Washing-

ton County, Alabama. The complaint alleges, and, indeed,

the record establishes, that Washington County funds, ei-

ther partially or wholly, the operations of the Washing-

ton County Hospital Association, Inc., the Washington

County jail, and the Washington County Sheriff’s Depart-

ment.

Service was perfected on the county by serving its

agents, Gerald Dennis Porter, who indicated by his signa-

ture that he was the county attorney for Washington

County on November 14, 1979." To date there has been

no appearance on behalf of the county, no responsive

pleading filed, and no effort to defend against this law

suit. Neither has the plaintiff moved for entry of default.

Fed. R. Civ. P. 55(a). The Court is left with the problem

of how to treat the defendant Washington County.”

™ The Marshal's receipt shows that service was made on “10-14-

79” on Gerald Porter. That date is obviously incorrect since this

law suit was not filed until November 7, 1979. The Marshal's re-

ceipts for other defendants show they were served on November 14,

1979. Given those other Marshal's receipts, the Court presumes that

service on Washington County was also on November 14, 1979.

'S Washineton County is a proper party under federal law. Since

1890 it has been recognized that counties are subject to suit under

federal law and that the eleventh amendment does not serve as a

bar. Lincoln County v. Luning, 1233 U.S. 529 (1890); see Edelman

v. Jordan, 415 U.S. 651, 667 n.12 (1974); Downing v. Williams, No.

78-2869, slip op. at 8629 (5th Cir. Aug. 21, 1980) (discussing elev-

enth amendment immunity).

Suit is barred only when the state is the defendant. Agencies

of the state come under this heading but its political subdivi-

sions do not. Thus municipal corporations, counties and school

60a

Our system of justice is an adversary system. It con-

templates that a plaintiff who has a claim will pursue a

defendant whom he claims is liable to him with the same

vigor and cunning which a fox would use when hunting

a rabbit. Our rules of civil procedure reflect this design.

While a district court possesses discretion to order the

clerk to enter default under Rule 55(a), Davis v. Park-

hill-Goodloe Co., 302 F.2d 489 ‘5th Cir. 1962); see gen-

erally, 10 C. Wright & A. Miller, Federal Practice and

Procedure § 2682, at 256 (1973), it is the plaintiff, as

the master of his law suit, who should ordinarily seek

entry of default. The plaintiff is free to name and pursue

those whom he thinks are liable to him as he sees fit to

do. Where a plaintiff fails to pursue his claims a court

has the inherent power to dismiss the claims for failure

to prosecute under Fed. R. Civ. P. 41(b). Link v. Wabash

Railroad, 276 U.S. 626, 629-32 (1962); Hildebrand v.

Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980);

Anthony v. Marion County General Hospital, 617 F.2d

1164, 1167 (5th Cir. 1980). The Court will wait ten

boards may be sued in federal court without raising an Eleventh

Amendment issue. If an entity is found to be merely the in-

strumentality of state government it shares the immunity, but

it has none if it is a politically independent unit.

J. Nowak, R. Rotunda, J. Young, Handbook on Constitutional Law

at 51 (1978) (footnotes omitted); see L. Tribe, American Constitu-

tional Law § 3-38, 144 n.2 (1978).

Moreover, a county is a person within the meaning of § 1983.

Monell v. Department of Social Services, 436 U.S. 658 (1978); ef.

Kingsville Independent School Dist. v. Cooper, 611 F.2d 1109, 1112

(5th Cir. 1980) (an independent school board is a local governing

body within the meaning of Monell). However, unlike many govern-

mental officials who enjoy qualified immunity against a § 1983 claim,

see, ¢.g., Pierson v. Ray, 386 U.S. 547, 555-57 (1967) (immunity of

local police officers); O'Connor v. Donaldson, 422 U.S. 563 (1975)

(qualified immunity for superintendent of state hospital), a munic-

ipal corporation like Washington County is not entitled to assert the

good faith of its offices or agents as a defense to liability under

§ 1983. Owen v. City of Independence, 48 U.S.L.W. 4389 (U.S. Apr.

16, 1980) ( No. 78-1779).

6la

days for the plaintiff to take appropriate action against

the defendant Washington County, Alabama. If the plain-

tiff fails to act the Court will dismiss the claims against

Washington County with prejudice. Fed. R. Civ. P.

4l(b).

The Clerk is further ordered to mail a copy of this

order to Mr. Gerald Dennis Porter, Esq., who was the

attorney for Washington County on November 14, 1979.

If the county files a responsive pleading prior to the

plaintiff moving for entry of default, the Court will treat

the responsive pleading as a motion for summary judg-

ment. After analyzing the liability of the county com-

mission and the county hospital it appears from the rec-

ord which has been developed in this case that no lia-

bility would attach to the county. The Court is giving

notice to the plaintiff that if a responsive pleading is filed

the Court will treat it as a motion for summary judg-

ment ten days after it is filed. See Friend v. Aetna Fi-

nance Co., 622 F.2d 1217 (5th Cir. 1980) (opposing party

must be put on notice that Court is entertaining sum-

mary judgment) ; Matter of Hailey, 621 F.2d 169 (5th

Cir. 1980) (Rule 56/c) must be strictly observed).

Whether the proceedings against Washington County are

disposed of through default, Fed. R. Civ. P. 55(a),

(b) (1), through involuntary dismissal, Fed. R. Civ. P.

41(b), or through summary judgment, Fed. R. Civ. P.

56, an evidentiary hearing will be unnecessary unless, of

course, the plaintiff raises some genuine dispute as to a

material fact. Cf. Kennett-Murray Corp. v. Bone, 622

F.2d 887, 893-95 (5th Cir. 1980).

E. Pendent State Claim

All of the federal claims presented in this action are

being, or will be, disposed of summarily. The fully devel-

oped record, in which all relevant facts are established

without any genuine dispute, permit summary disposition

of federal claims. The damage question which must be

62a

presented to the jury with regard to Sheriff Wheat under

$1983 will present very narrow issues of proof. The

proof will be susceptible to quick presentation.

In addition to the federal claims, the complaint al-

leges a cause of action under Alabama’s wrongful death

statute." The claim has been virtually ignored by the

parties, including the plaintiff, in their motions for sum-

mary judgment. Only the hospital addresses it.

In United Mine Workers v. Gibbs, 383 U.S. 715,

86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966) the Supreme

Court counselled against a federal court’s retention

of pendent state-law claims when there has been a

pre-trial disposition of the federal claims.

Needless decisions of state law should be

avoided both as a matter of comity and to pro-

mote justice between the parties, by procuring

for them a surer-footed reading of applicable

law. Certainly, if the federal claims are dis-

16 Alabama's wrongful death statute provides:

(a) A personai representative may commence an action and

recover such damages as the injury may assess in a court of

competent jurisdiction within the state of Alabama, and not

elsewhere, for the wrongful act, omission or negligence of any

person, persons or corporation, his or their servants or agents,

whereby the death of his testator in intestate was caused, pro-

vided the testator or intestate could have commenced an ac-

tion for such wrongful act, omission or negligence if it had not

caused death.

(‘b) Such action shall not abate by the death of the defend-

ant, but may be revived against his personal representative and

may be maintained through there has not been prosecution, con-

viction, or acquittal of the defendant for the wrongful act,

omission or negligence.

(ec) The damages recovered are not subject to the payment

of the debta or liabilities of the testator or intestate, but must

be distributed according to the statute of distributions.

(d) Such action must be commenced within two years from

and after the death of the testator or intestate

Ala. Code § 6-5-410 (1975).

63a

missed before trial, even though not insubstan-

tial in a jurisdictional sense, the state claims

should be dismissed as well.

Id. at 726, 86 S. Ct. at 1139 (footnotes omitted).

We have followed this teaching in declaring it within

the discretion of our district courts to dismiss these

pendent claims without prejudice when the federal

claims are dismissed before trial. Daniels v. All

Steel Equipment, Inc., 590 F.2d 111 (5th C’r. 1979):

Scranton Construction Co. v. Litton Industries Leas-

ing Corp., 494 F.2d 778 (5th Cir. 1974), cert. denied,

419 US. 1106, 95 S. Ct. 774, 42 L. Ed. 2d 800

(1975).

Pharo v. Smith, 621 F.2d 656, 674-75 (5th Cir. 1980),

rev'd on rehearing on other grounds, No. 77-1273, slip op.

9409-10 (5th Cir. Sept. 18, 1980).

Dismissal of the wrongful death action would promote

comity and conserve this Court’s resources. Moreover, the

State statute of limitations '’ would not bar refiling in

state court. Cf. Pharo v. Smith

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