# Petition — Washington County Hospital Ass'n v. Morrison

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 864

## Text

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 pr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1081%3A1. Public record. Not legal advice.