Opposition Brief — Ondrizek v. Florida Department of Health & Rehabilitative Services

ame

89-539 °

JOSEPH F. Span

CLERK 7

CASE NO. —

in the

Supreme Court

of the

United States of America

OCTOBER TERM, 1988

JOSEPH ONDRIZEK and CONSTANCE ONDRIZEK

individually and as guardians for

ALISON, AUSTEN and IAN ONDRIZEK,

Petitioners,

vs.

FLORIDA DEPARTMENT OF HEALTH AND

REHABILITATIVE SERVICES and

NORTH CENTRAL FLORIDA COMMUNITY

MENTAL HEALTH CENTER, INC.,

Respondents.

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

RESPONSE TO

PETITION FOR WRIT OF CERTIORARI

J. DANIEL ENNIS, ESQ.

Merritt & Sikes, P.A.

Attorneys for Respondent,

NORTH CENTRAL FLORIDA

COMMUNITY MENTAL HEALTH

CENTER, INC.

111 Southwest 3rd Street

3rd Floor, McCormick Bldg.

Miami, Florida 33130-1989

(305) 371-3741

TABLE OF CONTENTS

Page

TABLE OF CITATIONS ...... haan ayes Cees i

eh bs GDh soso feu eke enn es ii

STATEMENT OF THE CASE ............... 1

STATEMENT OF THE FACTS .............. 2-3

REASON FOR DENYING WRIT

ot I RAGE a a a a 4-8

a ig 5 y's ce a PRS eRe ES SE 9-10

ee ae ere eee 11

CERTIFICATE OF SERVICE ................ 12

APPENDIX

ORDER GRANTING DEFENDANTS’

MOTION FOR SUMMARY

ES A1-A7

PER CURIAM DECISION, U.S.

ELEVENTH CIRCUIT COURT OF

APPEAL (OCTOBER 26, 1988) ........ B1-B9

PER CURIAM DECISION USS.

ELEVENTH CIRCUIT COURT OF

st a A iad ay a a C1-C3 ~—

TABLE OF CITATIONS

Page

Aldinger v. Howard,

aie so poke eed Oe 10

Carnegie-Mellon University v. Cohill,

RE ee eee 9, 10

Milonas v. Williams,

691 F.2d 931 (10th Cir. 1982).............. 7,8

Monell v. Department of Social Services,

PE PMID svc oc voc cecbevsevceen 6, 7

Monroe v. Pape,

I ED) a b'v'c'e wb wie see nveceues 5

Oklahoma City v. Tuttle,

471 U.S. 808, 105 S.Ct. 2427,

RES ae a ee er 7

Rendell-Baker v. Kohn,

457 U.S. 830, 102 S.Ct. 2767,

pg | ar 7

Rizzo v. Goode,

OD 5 ssbb on cv cen svbneses 6

United Mine Workers v. Gibbs,

I UPD nv vv ocd cccssesedaanwe 9, 10

United States v. Classic,

ee 5

CASE NO.

in the

Supreme Court

of the

United States of America

OCTOBER TERM, 1988

JOSEPH ONDRIZEK and CONSTANCE ONDRIZEK

individually and as guardians for

ALISON, AUSTEN and IAN ONDRIZEK,

Petitioners,

US.

FLORIDA DEPARTMENT OF HEALTH AND

REHABILITATIVE SERVICES and

NORTH CENTRAL FLORIDA COMMUNITY

MENTAL HEALTH CENTER, INC.,

Respondents.

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

RESPONSE TO

PETITION FOR WRIT OF CERTIORARI

ii

STATEMENT OF THE CASE

Plaintiffs filed this action for damages under the

Federal Civil Rights Statute and a common law theory

of negligence invoking Federal District Court

jurisdiction pursuant to 28 USC §13.31, §13.43, §22.01,

§22.02, and pendent State jurisdiction. Plaintiffs alleged

violations of their constitutional rights: to due process,

equal protection, violation of the Rehabilitation Act, and

State common law negligence. .

The Florida Department of Health and

Rehabilitative Services (HRS) was dismissed under the

Eleventh Amendment Immunity Doctrine.

North Central Florida Community Mental Health

Center, Inc. (MHC), after extensive discovery, filed a

Motion for Summary Judgment upon all Federal

questions and a Motion to Dismiss the State pendent

action for lack of jurisdiction.

The Federal District Judge granted both motions

and subsequently final judgment was entered based

upon the Order granting these motions.

Plaintiffs appealed all District Court judgments

pertaining to both Defendants, HRS and MHC, to the

Eleventh Circuit Court of Appeals, which affirmed the

District Court.

Plaintiffs now seek a Writ of Certiorari from this

Court.

STATEMENT OF THE FACTS

The Statement of Facts contained in the Petition for

Writ of Certiorari fited with this court dehors the record

in the lower tribunal. Respondent, NORTH CENTRAL

FLORIDA COMMUNITY MENTAL HEALTH

CENTER, INC. (“MHC”), states herein only those facts

germaine to the Ondrizeks’ causes of action alleged

against it as shown by the record below, and as set out

in the Order of the Federal District Judge in granting

MHC’s Moiion for Summary Judgment which Order

was Per Curiam Affirmed by the Eleventh Circuit Court

of Appeal. The District Court’s Order is included in the

appendix to this brief as well as the decisions of the

Eleventh Circuit Court of Appeals as pertains to this

Respondent. (Res. App. 1A-7A and Res. App. 1B-9B and

1C-3C).

Paraphrasing the facts in the District Court Order

(App. 1A-7A), they are as follows:

In early 1984 because of the mental illness of his

wife, Constance Ondrizek, Joseph Ondrizek placed the

care of their three children, Alison, Ian, and Austen,

with his sister, Mary Devlin, and her husband who lived

in Gainesville, Florida. Mrs. Devlin suspecting that

Alison, a little girl, had been sexually abused filed a

complaint with the Florida Department of Health and

Rehabilitative Services (HRS). HRS referred Mrs.

Devlin to MHC for the evaluation and treatment of

Alison where she was seen by Dr. Sandra Sullivan at

least four times. Dr. Sullivan did not furnish HRS with

a formal written report, nor was she asked to testify at

any of the dependency court hearings that followed, nor

were any of MHC’s records ever used in any court

proceeding. MHC’s Director testified that a patient’s

medical file is released only upon signature of the

patient’s legal guardian or by court Order.

In May of 1985 a dependency hearing was held in

the Circuit Court upon a Petition prepared by HRS

alleging that the Ondrizek’s had neglected and abused

their children. The Ondrizeks did not attend the hearing

because they were not notified. This Court on May 23,

1985 entered an Order for emergency detention of the

children. No evidence from MHC was used at this

hearing.

HRS filed a second Petition on May 30, 1985 and

the Court issued a Summons to the parents advising

them of a hearing on June 19, 1985. At that hearing

HRS opposed the Ondrizeks’ efforts to regain custody

of their children. No evidence from MHC was used at

this hearing.

The Court eventually returned custody of the

children to their parents and the Ondrizeks filed this

action against HRS and MHC in 1987 in the Federal

District Court of the Southern District of Florida.

REASONS FOR DENYING WRIT

POINT II

CAN A PRIVATE PERSON ONLY BE HELD

LIABLE IN A CIVIL RIGHTS SUIT

BROUGHT UNDER 42 U.S.C. §1983 FOR

ACTIONS THAT AMOUNT TO A “PUBLIC

FUNCTION’’?

(POINTS II AND III ONLY PERTAIN TO

RESPONDENT MHC)

This question as presented is inappropriate to the

judgment and decision of the lower tribunals. The

district court found that the evidence was “devoid of any

facts that might be construed to find that MHC acted

under color of state law”; and... “since MHC

performed no act that may be defined as a public

function, it did not act under color of state law for

purposes of liability under 42 U.S.C. §1983.”

In addition to finding that there was no evidence

that MHC in treating the child Allison Ondrizek was

a public function under color of state law, the district

court found that this treatment did not infringe upon

any of the Plaintiffs’ Constitutional Rights because the

treatment provided to the child played no part in the

dependency petitions filed in court by HRS, which said

petitions are the gravamen of Plaintiffs’ complaint. In

other words, nothing MHC did affected anything HRS

did regarding the Ondrizek’s children and the children’s

parents, Joseph and Constance Ondrizek. The Eleventh

Circuit Court of Appeal Per Curium Affirmed the

district court. (App. 1C-3C).

It was the lack of evidence that caused the adverse

judgment and the appellate decision against the

Plaintiffs, not any theory of recovery under §1983 or

any other Civil Rights cause of action as Petitioners

have attempted to suggest in drafting their Point I.

Although neither of the lower tribunals used the

exact term, in effect, each court found that there was

no “nexus” or “proximate cause” between any act of

MHC and the alleged infringement of the Plaintiffs’

Constitutional Rights. Each court found that MHC did

no act that caused such an infringement to any of the

Petitioners.

In summary, both lower tribunals found that not

only did MHC not perform 2 “public function under color

of state law” but in addition, each found that MHC did

no act that caused an infringement upon the

Constitutional Rights of any of the Petitioners. (Order

of the District Court, App. 5A. Eleventh Circuit Opinion,

App. 2C-3C).

To prevail in a 42 U.S.C. §1983 cause of action, a

plaintiff must show two essential things: First—that the

acts of the named defendant were done “under color of

state law”’.!

'\United States v. Classic, 313 U.S. 299, 326 (1941).

“Misuse of power possessed by virtue of state law and

made possible only because the wrongdoer is clothed

with the authority of state law, is action taken ‘under

color of state law.”

See, also: Monroe v. Pape, 365 U.S. 167 (1961). United States v.

Price, 383 U.S. 787,794 N.7.

(Footnote Continued)

Second—that the acts of the named defendant caused

the violation of plaintiffs’ Constitutional Rights.”

If either of these two elements are missing from the

plaintiffs evidence, he has no $1983 case.

In this case, Petitioners could prove neither of these

two essential elements.

Pursuant to Rule 17.1(aXc) of this court, Petitioners

have not demonstrated in their Brief that the decision

:eached by the lower tribunal in this case conflicts with

any decision of this court or any other court in the

federal judicial system as relates to the Respondent,

MHC.

(Footnote 1 Continued)

“In cases under §1983, “under color” of law has

consistently been treated as the same thing as ‘state

action’.”

*CAUSATION:

The Supreme Court has made clear that an analysis of

liability under §1983 must focus on the question of causation,

the “affirmative link” found lacking in Rizzo v. Goode, 423

U.S. 362, 370-71 (1976). The court has emphasized that the

language of the statute imposes liability on any person who

“subjects”, or “causes to be subjected” another person to a

violation of his constitutional rights under “color of law”. For

example, in the area of municipal liability, the Supreme Court

has held that the essential issue is whether the conduct of

the municipality can be described as a cause of the immediate

incident from which Plaintiff suffered. Monell v. Department

of Social Services, 436 U.S. 658, 692 (1978):

(Footnote Continued)

Petitioners cite two cases: Rendell-Baker v. Kohn,

457 U.S. 830, 102 S.Ct. 2767, 73 L.Ed.2d 418 (1982) and

Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982). The

Kohn case relative to §1983 supports the position of

MHC and the Milonas case is clearly distinguishable

on the facts. .

In Milonas, a private school used a “behavioral-

modification” program, allegedly violative of §1983, on

youths placed at the school involuntarily by juvenile

courts and other state agencies. This school was also a

corrective and detention facility. Some students were

(Footnote 2 Continued)

“Indeed, the fact that Congress did specifically provide that

A’s tort became B’s liability if B ‘caused’ A to suffer

another to a tort suggests that Congress did not intend

§1983 liability to attach where such causation was absent.”

Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85

L.Ed.Zd 791.

“ . . Monell must be taken to require proof of a City’s

policy different in kind from this later example before a

claim can be sent to a jury on the theory that a particular

violation was “caused” by the municipal “policy”. At the

very least there must be an affirmative link between the

policy and the particular constitutional violation alleged.”

(Our emphasis).

Id. 105 §.Ct. at 2436.

Simply stated the acts complained of must be the proximate

cause of the violation of the Plaintiff's constitutional rights

before there is liability under $1983. If the acts or omission

are not the proximate cause then no cause of action lies

under §1983.

restricted to the grounds, others were confined—locked

in and up. If a student left without permission, he was

hunted down, taken into custody and returned. In short,

the school derived its authority over the students from

the state. Under these facts, the Tenth Circuit held that

the state institutionalized students still had their liberty

interests protected from state action by the Fourteenth

Amendment and in consequence of this, the defendants

were amenable to a §1983 action.

The facts of Milonas are not even remotely similar

to the facts of this case. Mary Devlin, the aunt of Allison

Ondrizek, was referr:d by HRS to MHC so that the child

suspected of being sexually abused, could receive

treatment and evaluation. MHC never sent any report

to HRS, nor were its records or the testimony of MHC’s

Dr. Sandra Sullivan used by HRS in any subsequent

court proceeding involving the Ondrizek’s. The

unrebutted evidence was that MHC’s recerds of its

patients are never released without written

authorization from the patient’s legal guardian or by

court order.

Petitioners have not demonstrated pursuant to Rule

17.1(aXc), a conflict between the decision in this case

with any decision from this court or with any decision

of any lower tribunal in the federal court system.

Neither have Petitioners shown any other grounds

cognizable under the rules of this court as a basis for

the granting of this Petition for Writ of Certiorari.

The Petition should be denied.

i aasereeniacnemamnennenae

POINT III

IS A DISTRICT COURT PRECLUDED

FROM EXERCISING PENDANT

JURISDICTION OVER A STATE LAW

CLAIM WHEN FEDERAL CLAIMS WHICH

OTHERWISE PROVIDED THE SOLE

BASIS FOR SUBJECT MATTER

JURISDICTION HAVE BEEN DISMISSED?

Petitioners totally misaprehends a federal court’s

jurisdiction over state civil law actions under pendant

jurisdiction. Pendant jurisdiction is a doctrine of

discretion, not of plaintiffs right. United Mine Workers

v. Gibbs, 385 U.S. 715 (1966).

Where no basis exist for federal court jurisdiction

of a state’s civil action, a federal court may, in its

discretion, accept jurisdiction of such action if the facts

giving rise to the state action arose from a common

nucleus of operative facts which also include a federal

cause of action, using guide-line criteria established in

United Mine Workers v. Gibbs, 383 U.S. 715 (1966). See

also, Carnegie-Mellon University v. Cohill, 108 S.Ct. 614,

618 (1988).

Gibbs and Cohill mandate that the federal court

should generally decline to exercise jurisdiction where

all the federal claims are dismissed before trial. Cohill,

108 S.Ct. at 618-19; Gibbs, 383 U.S. at 726-27. However,

the federal court has discretion to assert pendant

jurisdiction in such cases. Cohill, 108 S.Ct. at 619 N7.

The district court in this case after granting MHC

a summary judgment on all federal claims asserted by

the Ondrizeks made a Gibb’s analysis finding that the

remaining claim “was and is a state law claim’’, that

the claim was not time-barred in state court, and that

there exists a state forum to entertain this state claim.

(App. 6A). After making these findings, the judge

exercised his discretion afforded him by Gibbs and

Cohill and dismissed the state law claim. Factually, this

case is controlled by Gibbs, since both here and in Gibbs

the place of original filing was in the federal court,

whereas, in Cohill plaintiffs claim was filed first in the

state court and subsequently removed to the federal

court, thus presenting to the Supreme Court a question

whether pursuant to 28 U.S.C. §1441-1451, the district

court had discretion to remand the case back to the state

court.

In Gibbs, the court gave severa! examples where the

exercise of discretiona.y jurisdiction over state claims

would be improper, one of which was where the federal

claim is dismissed before trial. Gibbs, 383 U.S. at

726-727; See also, Aldinger v. Howard, 427 U.S. 1 (1976)

where it was held that since a municipality could not

be sued under §1983, there was no basis for federal

jurisdiction on the state claim.

10

CONCLUSION

No grounds for granting the Writ of Certiorari

having been demonstrated, it is respectfully submitted

that the Writ be denied.

Respectfully submitted,

MERRITT & SIKES, P.A.

Attorneys for Respondent,

NORTH CENTRAL FLORIDA

COMMUNITY MENTAL HEALTH

CENTER, INC.

111 S.W. 3rd Street

3rd Floor, McCormick Building

Miami, Florida 33130-1989

(305) 371-3741

J. DANIEL ENNIS

11

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that pursuant to Rule 28(3),

Supreme Court Ru'es, that three (3) true and correct

copies of Respondent’s Response to Petition for Writ of

Certiorari to the Supreme Court of the United States

was mailed this ___._ day of May, 1989, upon: BRET

CLARK, ESQ., Attorney for Petitioner, P.O. Box

53-1131, Miami Shores, Florida 33153 and to JASON

VAIL, ESQ., Assistant Attorney General, Department

of Legal Affairs, The Capitol, Suite 1501, Tallahassee,

Florida 32399-1050.

Such service is in accordance with Rule 28(3), Supreme

Court Rules.

By:

J. DANIEL ENNIS

Attorney for Respondent,

NORTH CENTRAL FLORIDA

COMMUNITY MENTAL HEALTH

CENTER, INC.

12

APPENDIX A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 87-682-Civ-Atkins

JOSEPH and CONSTANCE ONDRIZEK,

ETC., ET. AL.

Plaintiffs,

v.

FLORIDA DEPARTMENT OF HEALTH AND

_ REHABILITATIVE SERVICES and

NORTH CENTRAL FLORIDA COMMUNITY

MENTAL HEALTH CENTER, INC.,

Defendants.

ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the court on defendant North

Central Florida Community Mental Health Center,

Inc.’s (““MHC’’) motion for summary judgment and

motion to dismiss the pendent state law claim. After

careful consideration of all the documents submitted and

the relevant law, it is ORDERED AND ADJUDGED

that this motion is GRANTED. In addition, the motion

to dismiss the pendent state law claim is granted.

Early in 1984, the plaintiff Constance Ondrizek,

suffering from a mental disorder, was hospitalized for

App. A-1

several weeks. During this period, the Ondrizeks

entrusted the care of their children, Alison, Ian, and

Austen, to Joseph Ondrizek’s sister and her husband,

Mary and Richard Devlin. After Alison began to exhibit

bouts of unusual behavior, Mary Devlin, suspecting that

the child had been sexually abused, filed a complaint

with the Florida Department of Health and

Rehabilitative Services (““HRS’’).

HRS referred Alison to the defendant MHC for

evaluation and treatment where she was seen by Dr.

Sandra Sullivan on at least four occasions. See

Deposition of James Winters at 21. Dr. Sullivan did not

furnish HRS with a 1ormal written report, nor was she

asked to testify at any of the dependency hearings that

ensued. See Deposition of Sandra Sullivan at 28;

Deposition of James Winters at 25. In fact, a patient’s

medical file is released only upon signature of the

patient’s legal custodian. See Deposition of James

Winters at 25.

During May of 1985, a dependency hearing was held

in the circuit court in Alachua County to consider a

detention petition prepared by HRS which alleged that

the Ondrizeks had abused and neglected their children.

The Ondrizeks were not present at the hearing. On May

23, 1985, the court entered an ORDER for Emergency

Detention.

On May 30, 1985, HRS filed a second petition. The

Alachua Juvenile Court issued a summons to the

Ondrizeks advising them of a hearing on June 19, 1985.

At that hearing, HRS opposed the Ondrizeks’ efforts to

regain the custody of their children. The court set a trial

App. A-2

for August of 1985. On August 8, the Juvenile Court

witheld adjudication of dependency and placed the

children with relatives in North Miami and the

Ondrizeks were granted reasonable visitation. HRS was

directed to file a petition seeking return of the children

to the Ondrizeks. The children were returned to their

parents in January of 1986 and the Ondrizeks filed this

action against HRS and MHC in 1987.

The plaintiffs filed this action for damages under the

federal civil rights statutes and common law theory of

negligence invoking this Court’s jurisdiction pursuant

to 28 U.S.C. section 1331, 1343, 2201, 2202 and pendent

jurisdiction. The plaintiffs allege violations of their

constitutional right to due process, right to equal

protection, violation of the Rehabilitation Act, and

negligence. The defendant HRS was dismissed under

the Eleventh Amendment immunity doctrine. MHC

now seeks summary judgment on the civil rights claims

and dismissal of the pendent state law claim.

The plaintiffs seek to impose liability on the

defendant MHC under 42 U.S.C. section 1983 for alleged

violations of their civil rights. Count I alleges that the

plaintiffs’ right to enjoy an interpersonal relationship

as a family, free from urdue interference by the

government, was placed in jeopardy without affording

them a full and fair opportunity to be heard. Count II

alleges that the plaintiffs right to be free from

unreasonable discrimination on the basis of a mental

handicap was violated because a substantial, if not

overridding, motive behind the defendant’s actions was

Constance Ondrizek’s illness. Count III alleges that

Constance Ondrizek’s mental illness qualifies her as a

App. A-3

handicapped individual as defined by the Rehabilitation

Act, 29 U.S.C. section 794, and the plaintiffs suffered

discrimination by reason of her illness. Finally, Count

IV alleges that the Jefendant MHC acted negligently

in its evaluation of Alison Ondrizek and that HRS acted

negligently in its investigation and filing of the

detention petitions.

Title 42 U.S.C. section 1983 requires that a plaintiff

show that the defendant acted under color of state law

to deprive them of a right protected by the constitution

and laws of the United states. See White v. Scrivner

Corp., 594 F.2d 140, 141 (5th Cir. 1979) (citing Flagg

Bro.s, Inc. v. Brooks, 436 U.S. 144 (1970)). The

complaint and the depositions filed in support of the

motion for summary judgment are devoid of any facts

that might be construed to find that MHC acted “under

color of state law.” The plaintiffs acknowledge that the

defendant MHC is a private corporation. See Plaintiffs’

Memorandum of Law in Reply (sic) to Defendant’s

Motion for Summary Judgment at 8. It is true that a

private indivdaul’s performance of public functions may

be attributed to the state. See White v. Scrivner Corp.,

594 F.2d at 142. The Supreme Court has determined,

however, that such an attribution of state action to a

private individual is appropriate only when it performs

a function that is “exclusively reserved to the state.”

Flagg Bro.s, Inc. v. Brooks, 436 U.S. at 157. The

plaintiffs here urge that the defendant’s evaluation and

treatment of the child was a public function. Such a

result is unwarranted. The definition of public function

is very narrow. It inc'udes activities such as the conduct

of elections. See, e.g., Terry v. Adams, 345 U.S. 461

(1953), and the performance of municipal functions in

App. A-4

a “company town.” See, e.g., Marsh v. Alabama, 326

U.S. 501 (1946). No basis exists for finding that

evaluation and treatment of a child for suspected child

abuse is a public function. The facts show that MHC

evaluated and treated the child, made no formal

recommendation to HRS, did not participate in the filing

of the detention petitions, did not attend or otherwise

participate in the dependency hearings. Since MHC

performed no act that may be defined as a public

function, it did not act under color of state law for the

purposes of liability under 42 U.S.C. section 1983.

Summary judgment is proper when the pleadings,

depositions, answers to interrogatories, and affidavits

show that there exists no genuine issue of material fact.

Fed.R.Civ.Pro. 56(a). The Supreme Court has moved a

step further by interpreting Fed.R.Civ.Pro. 56(A) as

mandating entry of summary judgment after a sufficient

time for discovery, upon motion, against a party who

fails to make a showing sufficient to establish the

existence of an element essential to that party’s case

and on which that party will have the burden of proof.

See Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552-53

(1986). The standard for summary judgment mirrors

that for a directed verdict under Fed.R.Civ.Pro. 50(a)

and asks if the evdience is so one sided that one party

must prevail as a matter of law. See Anderson v. Liberty

Lobby, Inc., 106 S.Ct. 2505, 2511 (1986). Although the

moving party has the burden of demonstrating the basis

of its motion, the opposing party must produce evidence

in the form of specific facts that would support a jury

verdict. Mere denials or allegations are not sufficient

to form a genuine issue of material fact. See Anserson,

106 S.Ct. at 2514.

App. A-5

In the instant case, the defendant has anply

demonstrated to the court the basis of its motion. The

plaintiffs have failed to present evidence that there

exists a genuine issue of material fact and therefore

defendant’s motion for summary judgment is granted

on Counts I, II and III.

Implicit in the concept of pendent jurisdiction is the

existence of jurisdiction over the parties involved

because of diversity or because of the presence of a

federal question. See Fundiller v. City of Cooper City,

777 F.2d 1436 (11th Cir. 1985). A federal court may

exercise pendent party jurisdiction over a party whose

claim asserts purely state law violations if that claim

arose from a common nucleus of operative facts that

gave rise to a federal claim against another party

properly before the court. Questions of judicial economy

dictate that the claims be tried together. See Giardiello

v. Ba;lbao Insurance Co., ___F .2d. (11th Cir. 1988).

Such is not the case before this court which has no

independent jurisdiction to consider the state law claim.

Unlike Giardiello, the situation before this court did not

give rise to a simultaneous federal basis for jurisdiction

over this party or another. The claim was and is a state

law claim. See United Mine Workers of America v. Gibbs,

383 U.S. 715, 726 (1966) (“Certainly, if the federal

claims are dismissed before trial, even though not

insubstantial in a jurisdictional sense, the state claims

should be dismissed as well.’’). Since the claim is not

time barred, there exists a state forum to entertain a

suit. See Shahawy v. Harrisonb, 778 F.2d 636 (1 1th Cir.

1985).

Apo. A-6

DONE AND ORDERED at Miami, Fiorida this 8th

day of April, 1988.

(signed)

UNITED STATES DISTRICT

JUDGE

App. A-7

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nos. 87-5942, 88-5404, 88-5414

Non-Argument Calendar

D.C. Docket No. 87-0682

JOSEPH ONDRIZEK and CONSTANCE ONDRIZEK,

individually and as guardians for

ALISON AUSTEN and IAN ONDRIZEK,

Plaintiffs-Appellants,

versus

FLORIDA DEPARTMENT OF HEALTH AND

REHABILITATIVE SERVICES and

NORTH CENTRAL FLORIDA COMMUNITY

MENTAL HEALTH CENTER, INC.,

Defendants-Appellees.

Appeals from the United States District Court

for the Southern District of Florida

(October 26, 1988)

Before FAY, HATCHETT and ANDERSON, Circuit

Judges.

App. B-1

PER CURIAM

This case comes to us on appeal from the United

States District Court for the Southern District of

Florida. The district court dismissed the claims filed

against the Florida Department of Health and

Rehabilitative Services (“HRS”’) for lack of jurisdiction.

We agree that the Eleventh Amendment barred the suit

against HRS, and, therefore, affirm the district court’s

ruling.

The Ondrizeks sued both HRS and the North

Central Florida Community Mental Health Center, Inc.

(“North Central’). Joseph and Constance Ondrizek

alleged that HRS and North Central unfairly deprived

them of the custody of their children, Alison Austen and

Ian Ondrizek, and, in so doing, violated their

constitutional rights to due process and equal protection

under 42 U.C.C. section 1983 (1982), and their rights

under the Rehabilitation Act. 29 U.S.C. section 794

(1982 & Supp. III 1985). In addition, the Ondrizeks

asserted that the defendants were guilty of common law

negligence, and asked that the trial court consider the

state law claims under the theory of pendent

jurisdiction.

Initially, HRS did not respond to the Ondrizeks’

complaint, and the district court entered a default

judgment against it. The district court, however,

granted HRS’ motion to set aside the default based on

“excusable neglect.’”” Subsequently, HRS asserted

immunity from the lawsuit based on the Eleventh

Amendment. The district court agreed and dismissed

the federal claims. In addition, the court stated that,

App. B-2

“(ljacking jurisdiction of the federal claims, this court

is without the power to adjudicate the pendent state

claim.”’ However, the court did not dismiss the claim

against North Central at that time.

The Ondrizeks have appealed the dismissal of HRS

from the lawsuit to this court. They raise three

arguemnts as to why the Eleventh Amendment does not

bar their suit. First, they contend that the Eleventh

Amendment, as written, was not meant to apply to suits

brought by citizens of a state against their own states.

Second, they argue that the Eleventh Amendment does

not apply to suits that seek declaratory and injunctive

relief. Third, they claim that, even if HRS is immune

from suit, HRS has waived its immunity with respect

to the federal claims by its procedural default, and has

waived its immunity with respect to the state claim by

its failure to raise the immunity defense. HRS disputes

all of these contentions. Further, HRS states that this

court has no jurisdiction to consider these questions

because there was never a final appealable judgment.

Before we can consider any of the Ondrizeks’

contentions, we must determine whether HRS is correct

in asserting that we have jurisdiction to decide whether

there is jurisdiction. HRS argues that, because the

district court’s order did not dismiss North Central from

the case, there is no final order from which the

Ondrizek’s can appeal. We agree that, in general, when

there has been no final order, no appeal is possible. 28

U.S.C. section 1291 (1982); see In re Chicken Antitrust -

Litigation American Poultry, 669 F.2d 228, 235 (5th Cir.

Unit B 1982). However, an order subsequently issued

by the district court has finally resolved the case by

App. B-3

‘ granting North Central’s motion for sumary judgment.

And, as this court stated in Rivers v. Washington County

Board of Education, 770 F.2d 1010, 1011 (11th Cir. 1985)

(per curiam), “courts will consider ‘the seperate appeal

of a nonfinal judgment where a subsequent judgment

of the district court effectively terminates the

litigation.’ ” (quoting Martin v. Campbell, 692 F.2d 112,

114 (11th Cir. 1982). Therefore, we can move on to the

Eleventh Amendment questions raised in this appeal.

The Eleventh Amendment

Bars Federal Suits

brought by citizens against

its (sic) own state

In 1890, the Supreme Court of the United States

unequivocably declared that, under the Eleventh

Amendment, federal courts do not have jurisdiction to

consider claims brought against a state by its own

citizens. Hans v. Louisiana, 134 U.S. 1, (1890). Although

in recent years the doctrine has met with some

criticism,' it has not been overruled by statue or by the

Supreme Court. See, Papasan v. Allain, 478 U.S. 265,

106 S.Ct. 2932, 92 L.Ed.2d 209, 225 (1986) (adhering to

Hans rule); Atascadero State Hospital v. Scanlon, 472

U.S. 234, 237-38 (1985) (following Hans). Because we are

bound by Supreme Court precedent, we refuse to even

consider the merits of the Ondrizeks’ arguments in favor

of overruling Hans.?

App. B-4

No exceptions apply to

permit this lawsuit

Despite te general rule, “[tJhere are. . . certain

well-established exceptions to the reach of the Eleventh

Amendment.” Antascadero, 473 U.S. at 238. The

Ondrizeks argue that their case falls within two of these

execeptions. First, they claim that they have asked for

injunctive as well as monetary relief. They argue that

the Eleventh Amendment does not apply to suits in

which injunctive relief or declaratory relief is sought,

and that, therefore, the amendment does not operate to

preclude the district court from considering their request

for injunctive relief. Second, the Ondrizeks claim that

HRS has waived its Eleventh Amendment immunity.

We reject both of these arguments. First, we

acknowledge that, in some cases, equitable actions

brought against state officials raise no Eleventh

Amendment problems. See Edelman v. Jordan, 415 U.S.

651, 663-69 (1974). Because a state has no authority to

instruct officials to engage in unconstitutional conduct,

for example, ‘“‘a suit challenging the constitutionality

of a state official’s action is not one against the State.”

Pennhurst State School & Hospital v. Halderman, 465

U.S. 89, 102 (1984); Ex Parte Young, 209 U.S. 123, 160

(1908). Therefore, federal courts may hear such lawsuits

without violating the Eleventh Amendment.

However, the Supreme Court has clearly

distinguished the situation described above, in which

a state official is sued, from one in which the state or

a state agency is sued. In the latter cases, the Eleventh

Amendment bar remains, whether the plaintiff has

App. B-5

sought legal or equitable relief. Papasan v. A;llain, 92

L.Ed.2d 209, 225-26 (1986); Pennhurst, 465 U.S. 89,

100-02 (1984). HRS is a state agency; therefore, Supreme

Court precedent bars the Ondrizeks’ claim for equitable

relief as well as their claim for monetary relief.

Second, we find that there was no waiver of Eleventh

Amendment immunity. HRS’ initial procedural default

has no effect because, as the Supreme Court declared

in Edelman, the defense of Eleventh Amendment

immunity “sufficiently partakes of the nature of a

jurisdiction bar so that it need not be raised in the trial

court.” Edelman, 415 U.S. at 678. This bar is only lifted

when a state clearly waives its immunity from suit in

federal court in its constitution, its statutes, or its courts’

decisions. Ford Motor Co. v. Department of Treasury of

Indiana, 323 U.S. 459, 467 (1945); Silver v. Baggiano,

804 F.2d 1211, 1214 (11th Cir. 1986). The Florida

constitution limits the state’s ability to waive its

immunity from suit. It states: “Provision may be made

by general law for bringing suit against the state as to

all liabilities now exisiting or hereafter originating.”

Fla. Const. art. X, section 13 (emphasis added). Thus,

only an “explicit act of the state legislature” is effective

to waive the state’s Eleventh Amendment immunity.

Tuveson v. Florida Governor’s Council on Indian

Affairs, Inc., 734 F.2d 730, 734 (11th Cir. 1984); see also

Hess v. Metropolitan Dade County], 467 So.2d 297, 300

(1985) (reaching identical conclusion in context of state’s

sovereign immunity). Sinee Florida has not waived its

Eleventh Amendment immunity in section 1983 cases,

see Hill v. Department_of Corrections], 513 So.2d 129,

133 (Fla. 1987), there is no basis for finding a waiver

in this case. :

App. B-6

Pendent state law claim

Finally, the Ondrizeks state that the district court

erred in dismissing their pendent state claim. They

concede that the court was not obligated to exercise

jurisdiction over the state law claim, even if it had the

power to hear those claims. In this case, however, the

district court stated that it had no power to hear the

claims because it had dismissed-the federal claims. The

Ondrizeks argue that the district court did have the

power to hear the pendent claim even though the federal

claims had all been dismissed prior to trial. Therefore,

the Ondrizeks allege, the district court did not make the

discretionary determination required of it by law and

its decision cannot stand.

We disagree. The Ondrizeks are correct in stating

that, whenever a district court has the power to hear

a pendent state claim, it also has great discretion in

determining whether to exercise that power. “Under

[United Mine Workers v. Gibbs, 383 U.S. 715 (1966)],

a federal court should consider and weigh in each case,

- and at every stage of the litigation, the values of judicial

economy, convenience, fairness, and comity in order to

decide whether to exercise jurisdiction over a case

brought in that court involving pendent state law

claims.” Carnegie-Mellon University v. Cohill, 108 S.Ct.

614, 618 (1988). In cases in which the federal claims are

all dismissed before trial, the federal court should

generally decline to hear the state claims. Cohill, 108

S.Ct. at 618-19; Gibbs, 383 U.S. at 726-27. However, the

federal court still has the discretion to assert pendent

jurisdiciton in such cases. See Cohill, 108 S.Ct. at 619

ia. *

App. B-7

In this case, though, the federal court clearly had

no power to embark on a Gibbs analysis. For, pendent

jurisdicition does not override a state’s immunity under

the Eleventh Amendment. County of Oneida v. Oneida

Indian Nation, 470 U.S. 226, 251 (1985); Pennhurst, 465

U.S. at 121; Silver, 804 F.2d at 1213. Thus, the Eleventh

Amendment bars jurisdiction over even the pendent

state claims brought against HRS, and the pendent

jurisdiction question never really arose. Although the

court may have had the power to exercise pendent

jurisdiction if a non-state had been the defendant,’ it

had no power to exercise pendent jurisdiction over this

claim.‘

Conclusion

For all of the above reasons, we find that there was

no jurisdiction in this case.

AFFIRMED.

1. See, e.g., Atascadero State Hospital v. Scanlon, 472 U.S. 234,

259-302 (1985) (brennan, J., dissenting) (discussing the language

and history of the amendment to support the contention that

“{t]here simply is no consitutional principle of state sovereign

immunity, and no constitutionally mandated policy of excluding

suits against states from federal court,” id. at 259).

2. The Ondrizeks also suggest that the present Supreme Court

would overrule Hans today if faced with the issue. Therefore, they

argue, we should refuse to follow the existing Supreme Court

precedent. However, we are bound by that precedent and will not

try to predict how the Supreme Court would rule on the Hans issue

today. If and when the Court overrules Hans, we will follow their

dictate.

App. B-8

Pi

3. When there is no Eleventh Amendment problem and there is

no compelling reason for a federal court to hear a state claim, it

may constitute an abuse of discretion for a federal court to assert

jurisdiction. See, Maguire v. Marquette University], 814 F.2d 1213,

1218 (7th Cir. 1987) (federal court erred in retaining jurisdiction

where district court did not state, and record did not reveal, any

“pressing” reasons for this action). In such a case, although a

district court technically has discretion to reach its decision, it

actually only has the ability to decide to dismiss the pendent claim.

4. For the same reason that HRS’ initial procedural defect did not

waive its Eleventh Aendnment immunity defense, HRS’ initial

failure to argue that the Eleventh Amendment bars the pendent

state claims does not operate as a waiver of the defense.

App. B-9

Appendix C

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nos. 87-5942, 88-5404, 88-5414

JOSEPH ONDRIZEK and CONSTANCE ONDRIZEK,

individually and as guardians for

ALISON AUSTEN and IAN ONDRIZEK,

Plaintiffs-Appellants,,

versus

FLORIDA DEPARTMENT OF HEALTH AND

REHABILITATIVE SERVICES and

NORTH CENTRAL FLORIDA COMMUNITY

MENTAL HEALTH CENTER, INC.,

Defendants-Appellees.

Appeais from the United States District Court

for the Southern District of Florida

Before FAY, HATCHETT and ANDERSON, Circuit

Judges.

App. C-1

PER CURIAM:

This matter is before the Court upon appellants’

petition for rehearing. As appellants’ correctly point out,

the three different appeals filed in this court have been

the subject of some confusion. The first appeal, docketed

as 87-5942, dealt with the district court’s dismissal of

the suit as agaisnt the Florida Department of Health

and Rehabilitative Services (HRS). We affirmesd that

ruling in a per curiam opinion dated October 26, 1988,

which remains in full force and effect. While that

opinion was being processed administratively, two other

appeals were consolidated with the earlier one. These

two new appeals, docketed as 88-5404 and 88-5514, dealt

with the granting of summary judgment in favor of

North Central Florida Community Mental Health

Center, Inc. (MHC). Unfortunately, when our opinion

issued on October 26, 1988, it was not noted that the

appeals in 88-5404 and 88-5514 had been consolidated.

The clerk issued the opinion under all three appellate

numbers because the matters had been consolidated.

Appellants correctly point out that we have not ruled

upon the questions raised in the appeals dealing with

MHC.

In brief, the district court granted summary

judgment in favor of MHC based upon the absence of

the “‘state action” required under 42 U.S.C. section

1983. As to that claim, we affirm the judgment for the

reasons stated in the district court’s Order Granting

Defendant’s Motion for Summary Judgment entered

April 8, 1988.

App. C-2

Appeliants also contend that the district court erred

in granting summary judgment because of their alleged

claim under the “Rehabilitation Act,” 29 U.S.C. section

794. A review of the file, however, convinces us that

there is simply no evidence that the defendant MHC

discriminated in any way against appellants. The fact

that MHC treated Connie Ondrizek does not, standing

alone, equate with acts attempting to seperate the

Ondrizek family. MHC cannot be held responsible for

the actions taken by HRS or the state judicial officers

involved. MHC was entitled to summary judgment on

this claim and the ruling is affirmed.

The question of pendent jurisdiction was dealt with

in our earlier opinion but, in addition, as to those state

claims made against MHC we find no abuse of discretion

by the district court in its refusal to retain jurisdiction.

The judgment of the district court is affirmed in all

respects.

App. C-3