Opposition Brief — Vicory v. Vermillion County

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No. 03-870 FEB 17 2004

Jn The

Supreme Court of the Anited States

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SUSAN VICORY, et al.,

Petitioners,

V.

VERMILLION COUNTY, INDIANA and

BOARD OF COMMISSIONERS OF

VERMILLION COUNTY, INDIANA,

Respondents.

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On Petition For Writ Of Certiorari

To The Court Of Appeals Of Indiana,

First District

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RESPONSE IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

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SHANNON L. ROBINSON 15253-82

Counsel of Record

DARLA S. BROWN

WILLIAM H. KELLEY

KELLEY, BELCHER & BROWN

301 West Seventh Street

Post Office Box 3250

Bloomington, Indiana 47402-3250

Telephone: 812-336-9963

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

Page

BE Te IE kekceri i tiinenteissctacepecsniennevarsawinioevnnntans i

cits htitixiasenicisieiiminiiviaadiammeion ii

CINE FO iascccssiccrerssaccanions ieninetanamenaemes 1

Jurisdiction......... Pane Mine eed SOR aN Di 1

Statutory Provisions Involved.................ccssceeceeeeeeees 1

eS OE ee I hci cine 2

HA, CRAG OE I oases cn evvencscesvenscceseassscees 2

es) Oe I sca dackiiicccmnihcecctantorincinsars ces 3

Reasons for Denying the Writ ..................cccceeceeeeeeeee 4

I. The Opinion of the Indiana Court of Appeals

herein is consistent with the relevant deci-

sions of this Court and properly states the

RPOCOUNLELS TUE OE LAW ooiccscesecvevneseccssaseccssovess 5

II. Petitioners are not entitled to a Writ of

Certiorari based on opinions from the United

States Courts of Appeals nor does the deci-

sion of the Indiana Court of Appeals herein

in any way conflict with the decisions of any

of the United States Courts of Appeals.......... 19

I ko a asda wuldauaemeioemedaeetaucnaes teenies 23

ii

TABLE OF AUTHORITIES

Page

CASES:

City of St. Louis v. Praprotnik, 485 U.S. 112, 108

S.Ct. 915, 99 L.Ed.2d 107 (1988).................000 7, 8, 16, 22

Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50

De Ba Cre tiikitvasnsenrcisinccnctasncectdaseaageeaiasesseanesann 18

DeShaney v. Winnebago County Department of

Social Services, 489 U.S. 189, 109 S.Ct. 998, 103

im oS | lh | eee eer 5, 6, 16, 17, 20

Hc -ton v. Flenory, 889 F.2d 454 (8rd Cir. 1989)................ 21

J.O. v. Alton Community Unit School District, 909

PO GET CPE TI issisdscetcncrtcanirenenn 18, 22

Malak v. Associated Physicians, Inc., 784 F.2d 277

CFs Sr Fe kinsicncscisnnicnnedacdsiesieinmnsiocepinasnadanen aaaeeanens 22

Milo v. Cushing Municipal Hospital, 861 F.2d 1194

COE Te FH veaciinesicescsdctheteanseene 22

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

658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).................... 18

Pembaur v. City of Cincinnati, 475 U.S. 469, 106

S.Ct. 1292. 89 L.E.2d 452 (1966).................50... 5, 6, 15, 16

Stevens v. Umsted, 131 F.3d 697 (7th Cir. 1997)... 18, 20, 21

Stoneking v. Bradford Area School District, 822

Pn Te GE CA FD ctistiesinticinksnnssiscntmniisendguamaiian 19, 20

Ross v. United States, 910 F.2d 1422 (7th Cir. 1997)....8, 16

Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452,

Te VT Be se icieseiivinicinsdertnnndeeenaaaeinn 17

ili

TABLE OF AUTHORITIES — Continued

Page

STATUTES AND REGULATIONS:

a5 ele naive enicdiianihesiatinandnanninenalioesie 1

aa. cocdnnleohtwepntbonesaastainnasenienanbiosonse 1, 8, 16, 20

ia ons da oman nininesennbenesnrabanensukanenacen 4,5, 19

an aan gt annenisandedansacenbisonebuiakninsnenisioons 3

Ind. Code Ann. § 16-20-1-1 (West 1997)........:ccccccseeeeeeeeee 8

Ind. Code Ann. § 16-20-1-9 (West 1997).............ceeseeeeseeeeees 9

Ind. Code Ann. § 16-20-1-10 (West 1997)............cceeeeesseeeeees 9

Ind. Code Ann. § 16-20-1-11 (West 1997)... essen 9

Ind. Code Ann. § 16-20-1-13 (West 1997)..............cccceeseeeeees 9

Ind. Code Ann. § 16-20-1-14 (West 1997)............ccceeeeeseees 10

Ind. Code Ann. § 16-20-1-17 (West 1997).............eeeeseeeeees 10

Ind. Code Ann. § 16-20-1-19 (West 1997)...........ceseeeeeeeeeee 11

Ind. Code Ann. § 16-20-1-21 (West 1997)............ccceeeeeeeees 11

Ind. Code Ann. § 16-20-1-22 (West 1997)............cecceeeeeeeee 11

Ind. Code Ann. § 16-20-1-23 . § .: ee 11

Ind. Code Ann. § 16-20-1-24 (West 1997)... eeeeeeeeeees 12

Ind. Code Ann. § 16-20-1-25 (West 1997)...........:::cccceeseeees 12

Ind. Code Ann. § 16-20-1-26 (West 1997).............ccccceeeeeee 13

Ind. Code Ann. § 16-20-1-28 (West 1997)............:ccccceseeeees 14

Ind. Code Ann. § 16-22-2-6 (West 1993)..............c ee ceeeeees 6, 7

Ind. Code Ann. § 16-22-2-7 (West 1993)............ sosseseeseens 6, 7

Ind. Code Ann. § 16-22-3-1(a) (West 1997) .........ccsescseeeeees 7

Ind. Code Ann. § 16-22-3-1(d) (West 1997) ............: essere 7

iv

TABLE OF AUTHORITIES — Continued

Ind. Code Ann. § 16-22-3-18 (West 1993)......

Ind. Code Ann. § 26-22-13-17(e) (West 1993)

OPINION BELOW

On June 3, 2003, the Memorandum Decision-not for

publication of the Indiana Court of Appeals affirmed in

part, reversed in part, and remanded for entry of summary

judgment in favor of the County Defendants, by Judge

Baker with Sullivan J. and Darwin J., concurring; it is

reproduced in the Appendix of the Petitioner. Pt. App. la-

25a. On September 26, 2003, the Indiana Supreme Court,

the state court of last resort, denied discretionary review.

Its order is reproduced in the Appendix of the Petitioner.

Pet. App. 39a-40a.

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JURISDICTION

The Indiana Court of Appeals entered its Memoran-

dum Decision on June 3, 2003.

Plaintiff/Appellee’s Petition for Transfer was denied

by the Indiana Supreme Court on September 26, 2003.

This court has jurisdiction under 28 U.S.C. § 1257(a).

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STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or any other person within the jurisdiction

thereof to the deprivation of any rights, privi-

leges, or immunities secured by the constitutions

and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper

2

proceedings for redress, except that any action

brought against a judicial officer upon act or

omission taken in such officer’s judicial capacity

injunctive relief shall not be granted unless a de-

claratory decree was violated or declaratory relief

was unavailable. For the purposes of this section,

any act of Congress applicable exclusively to the

District of Columbia shall be considered to be a

statute of the District of Columbia.

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STATEMENT OF THE CASE

A. Statement of Facts

Petitioners are the personal representative or next of

kin of persons who allegedly died while patients of the

Vermillion County Hospital, Vermillion County Indiana.

(Complaint 71, Appellants’ Appendix pp. 341-343.) Re-

spondents are the Board of Commissioners of Vermillion

County, the county where the hospital is located. Plaintiffs

claim that a nurse at the hospital murdered the decedents

while the latter were patients. (Complaint 2, Appellants’

Appendix, p. 343.)

The hospital was created pursuant tc the Act of 1917.

Pursuant to the statute, its management and operation is

controlled by the Board of Trustees of Vermillion County

Hospital, which is the “supreme authority” for the hospi-

tal. (Affidavit of Phyllis Orman, Exhibit “A”, Appellants’

Appendix, pp. 226-277.) During the relevant time period,

Dr. John Albrecht was on the staff of the hospital and was

in charge of the intensive care unit. (Plaintiffs’ Complaint,

q2, Appellants’ Appendix, p. 343.) During that relevant

time period, Dr. Albrecht also held the position of County

Health Officer for Vermillion County, Indiana. (Plaintiffs’

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Complaint (2, Appellants’ Appendix, p. 343.) The respon-

sibilities and duties of a County Health Officer are deline-

ated by Indiana statute, I.C. 16-20-1 et seq.

Pursuant to Supreme Court Rule 15, the Respondent

would point out to this Court that the Petitioners on page

3 of their Statement of the Case, state “there is no compa-

rable occurrence of epidemic hospital death in American

history.” The Petitioners cite to footnote 1 referencing a

Washington Times article of December 7, 1998. This

material was neither designated nor submitted to either

the trial court or the Court of Appeals below, and thus is

an inappropriate and improper reference in their Petition.

Further, pursuant to Supreme Court Rule 15, the

Respondent would point out that the Petitioners continu-

ally attempt to characterize the duties of the County

Health Officer as including the duty or responsibility to

review death charts and records in their drumbeat repeti-

tion of the statutory duties of the County Health Officer in

footnote 4, footnote 5 and on pages 3 and 12, respectively.

A careful reading of the statutes in question reveals that

no such duty or responsibility is imposed upon the County

Health Officer. Each of the statutory duties relate to

disease control and prevention — not on investigating

deaths having no apparent connection to communicable

diseases.

B. Prior Proceedings

The Respondents agree with the Petitioners’ rendition

of prior proceedings and disposition of courts below,

contained at pages 5-10 of their Petition.

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REASONS FOR DENYING THE WRIT

The Petition for Writ herein should be denied because

the decision of the Indiana Court of Appeals is not incon-

sistent with the decisions of this Court. Supreme Court

Rule 10 provides for the considerations governing review

on certiorari. Rule 10 states that a Petition will only be

granted for a compelling reason and indicates the charac-

ter or nature of the reasons this Court will consider,

stating in pertinent part:

(a) a United States court of appeals

has entered a decision in conflict with

the decision of another United States

court of appeals on the same important

matter; has decided an important fed-

eral question in a way that conflicts

with a decision by a state court of last

resort; or has so far departed from the

accepted and usual course of the judi-

cial proceedings, or sanctioned such a

departure by a lower court, as to call for

an exercise of this Court’s supervisory

power;

(b) a state court of last resort has de-

cided an important federal question in

a way that conflicts with the decision of

another state court of last resort or of a

United States court of appeals;

(c) a state court or a United States

court of appeals has decided an impor-

tant question of federal law that has

not been, but should be, settled by this

Court, or has decided an important fed-

eral question in a way that conflicts

with relevant decisions of this Court.

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A petition for a writ of certiorari is rarely granted

when the asserted error consists of erroneous

| factual findings or the misapplication of a prop-

erly stated rule of law.

In the case at bar, the Petitioners must bring their writ

under subsection (c) of Rule 10, as they are seeking review

of a judgment of a lower state court, and one on which the

state court of last resort, the Indiana Supreme Court, has

denied discretionary review. The Petition for Writ should

be denied because the Court of Appeals’ decision herein is

consistent with relevant decisions of this Court and the

lower court correctly and properly stated the rule of law.

I. THE OPINION OF THE INDIANA COURT OF

APPEALS HEREIN IS CONSISTENT WITH

THE RELEVANT DECISIONS OF THIS COURT

AND PROPERLY STATES THE APPROPRIATE

RULE OF LAW.

The Petitioners began their argument by alleging that

the Indiana Court of Appeals erred in applying this Court’s

decision in DeShaney v. Winnebago County Department of

Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d

249 (1989) to the facts in the case at bar, instead of apply-

ing this Court’s holding in the case Pembaur v. City of

Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452

(1986).

Petitioners initially and improperly cite this Court to

paragraph 16 of the trial court’s ruling denying the second

Motion for Summary Judgment as a proper characteriza-

tion of their federal claims in the case at bar. Paragraph

16 of the trial court’s Order denying the second Motion for

Summary Judgment is contained in the Petitioner’s

Appendix at page 35a. Petitioners reference paragraph 16

6

of the trial court’s Order for the proposition that Pembaur

and not DeShaney apply to the facts of this case. In para-

graph 16 the trial court stated:

At issue in this case is the alleged failure of the

county defendants to comply with Indiana law

and administrative rules and regulations and not

with the enforcement of law against third par-

ties.

Petitioners’ reliance on paragraph 16 and their citation of

this Court to that paragraph is without foundation or

merit as the trial court’s reference in paragraph 16 is to

tort claims and to the Defendants/Respondents immunity

status under the Indiana Tort Claim Act and not in refer-

ence to the Petitioners’ claim of civil rights violations to

which the Indiana Tort Claim Act would not even apply.

Further, the trial court’s finding is not precedent for either

the Indiana Court of Appeals or this Court.

Petitioners contend that the County and the County

Health Officer herein owed an affirmative duty to the

Petitioners to protect their constitutional rights from

violations by Majors, the nurse at the hospital. The Indi-

ana Court of Appeals found that the County and The

County Health Officer owed no duties to the Petitioners to

protect their constitutional rights, as neither the County

nor the County Health Officer were responsible for the

general management or control of the hospital. Absent

authority to act, there can be no duty.

Vermillion County Hospital was created pursuant to

the Act of 1917, and thus its governing board was created

pursuant to I.C. 16-22-2-6 and 16-22-2-7. The governing

board of the hospital “is the supreme authority in the

hospital and is responsible for the management, control,

and operation of the hospital.” I.C. 16-22-3-1(a) (West

1997) (emphasis added). Furthermore, Indiana statutory

law provides that the hospital board “may appoint and

specify the privileges of the medical staff” and provides

that the “medical staff is responsible to the board for the

clinical and scientific work of the hospital and should

advise the board of professional problems and policies.”

Indiana Code Annotated 16-22-3-1(d) (West 1997). The

Indiana Court of Appeals found these two statutory

provisions to be persuasive that the County Commissioners

had no authority to direct daily operations at the hospital

and thus no duty to manage or control the hospital.

The Court of Appeals rejected the trial court’s findings

that the County owed a duty to the Petitioners simply

because the County: 1) had the authority to appoint the

members of the governing board of the County hospital,

pursuant to I.€. 16-22-2-6 (1993); and 2) had the authority

to make a limited expansion of the governing board of the

hospital pursuant to I.C. 16-22-2-7 (1993). The Court of

Appeals also rejected any holding by the trial court that

the County owed a duty to the Plaintiffs herein based

upon Indiana statutes which provide that during certain

rare eveiits the County’s participation in hospital matters

is required, such as if the hospital were to cease doing

business or cease to exist (I.C. 26-22-13-17(e) (1993)), or if

the hospital would transfer the management to a non-

profit organization. I.C. 16-22-3-18 (1993).

The Petitioners assert that “... without authority, the

Court of Appeals of Indiana negated the statutory duties of

the County Defendants cited by the trial court... .” Both

courts were interpreting Indiana statutory codes. The

determination of whether a governmental entity has final

policy making authority is a question of state law. See City

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of St. Louis v. Praprotnik, 485 U.S. 112 at 124-125, 108

S.Ct. 915, at 924-925. In the case at bar, the Indiana Court

of Appeals reviewed the statutes and decided that the

County Commissioners and the County Health Officer did

not have final policy making authority over the hospital or

its employee, thus deciding this issue as a matter of state

law. The Indiana Supreme Court, the court of last resort,

with discretionary review, has declined to grant transfer in

this matter. Thus, any claims the Petitioners may have

under § 1983 relating to policies and customs of the

hospital are properly addressed to the hospital and its

governing board and do not lie against the County or its

health officer. In other words, governmental entities are

only liable or responsible for its own policies, not those of

another entity. See Praprotnik, ibid., 485 U.S. 112 at 123,

108 S.Ct. 915 at 924; Ross v. United States, 910 F.2d 1422,

1428-1429 (7th Cir. 1990).

The duties and responsibilities of the County Health

Officer are established pursuant to statute. The statutes

setting forth the duties and responsibilities of the County

Health Officer can be found in Title 16, Article 20, Chapter

1, of the Indiana Code:

16-20-1-1 Application; limited area

Sec. 1. (a) Powers and duties described in this

chapter and I.C. 16-20-8 apply to all local health

officers and local health boards. However, this

article does not apply to a county that is subject

to I.C. 16-22-8.

(b) The powers and jurisdiction of a local health

officer or local board are limited to the area in

which the officer or board serves.

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16-20-1-9 Duties of officers and employees

Sec. 9. The board of each local health depart-

ment shall prescribe the duties of all officers and

employees.

16-20-1-10 Records; minutes

Sec. 10. The local health officer shall keep full

and permanent records of the public health work

of the local health department and minutes of all

meetings of the board of the local health depart-

ment.

16-20-1-11 Monthly reports; approval; per-

manent records

Sec. 11. The local health officer shall make a

monthly report of the work done by the local

health department to the board of the local

health department. After the report is approved

by the board, the local health officer shall make

the report a permanent record.

16-20-1-13 Local health officer or represen-

tative; consultative meetings with state de-

partment; expenses

Sec. 13. (a) The local health officer or a repre-

sentative of all county or city boards of health

shall attend meetings of the state department,

when requested by the state department, for con-

sultation concerning any matter concerning pub-

lic health.

(b) The expenses of the local health officer or

representative must be paid out of the health

fund of the county or the city where the board of

health is established, in an amount determined

by the local board of health.

10

16-20-1-14_ Personnel; delegation of duties on

agent-principal relationship; requirements

Sec. 14. (a) Local health officer may appoint

and employ public health nurses, environmental

health specialists, computer programmers,

clerks, other personnel, and an administrator of

public health, subject to the confirmation of the

local board of health, as is necessary and reason-

able to carry out and perform the duties of the lo-

cal health department.

(b) The employees of local health departments

shall perform any of the duties of the health offi-

cer delegated by the health officer, with the ap-

proval of the local board of health, on the basis of

an agent-principal relation.

(c) The public health personnel of local health

departments:

(1) must meet the minimum qualification

requirements of the local board of health;

(2) by local ordinance, become part of the

county classification system for the respective

public health personnel positions; and

(3) shall perform additional duties prescribed

by the rules of the state department and local

board of health under the general supervision of

the local health officer.

16-20-1-17 Vital statistics; birth and death

records

Sec. 17. (a) The local health officer shall col-

lect, record, and report to the state department

the vital statistics for the local health officer’s

area of jurisdiction.

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(b) The local health officer shall be the registrar

of births and deaths. After making a birth or

death record, the local health officer shall, by the

fourth day of each month, forward the original

record to the state department.

16-20-1-19 Enforcement

Sec. 19. Local health officers shall enforce the

health laws, ordinances, orders, rules, and regu-

lations of the officer’s own and superior boards of

health.

16-20-1-21 Communicable disease control;

powers

Sec. 21. Each local health board has the re-

sponsibility and authority to take any action au-

thorized by statute or rule of the state

department to control communicable diseases.

The board of each local health department or a

designated representative may make sanitary

and health inspections to carry out this chapter

and I.C. 16-20-8.

16-20-1-22 Sanitary inspections and surveys

of public buildings and institutions

Sec. 22. Local health officers may make sani-

tary inspections and surveys of all public build-

ings and institutions.

16-20-1-23 Inspection of private property;

property in which officer has interest

Sec. 23. (a) Except as provided in subsection

(b), the local health officer or the officer’s desig-

nee may enter upon and inspect private property,

at proper times after due notice, in regard to the

possible presence, source, and cause of disease.

The local health officer or designee may order

12

what is reasonable and necessary for prevention

and suppression of disease and in all reasonable

and necessary ways protect the public health.

(b) However, a local health officer, or a person

acting under the local health officer, shall not in-

spect property in which the local health officer

has any interest, whether real, equitable, or oth-

erwise. Any such inspection or any attempt to

make such inspection is grounds for removal as

provided for in this article.

(c) This section does not prevent inspection of

premises in which a local health officer has an

interest if the premises cannot otherwise be in-

spected. If the premises cannot otherwise be in-

spected, the county health officer shall inspect

the premises personally.

16-20-1-24 Epidemic controls; powers

Sec. 24. (a) Local health officers may order

schools and churches closed and forbid public

gatherings when considered necessary to prevent

and stop epidemics.

(b) An individual who takes action under this

section shall comply with state laws and rules.

16-20-1-25 Unlawful conditions; abatement

order; enforcement

Sec. 25. (a) A person shall not institute, per-

mit, or maintain any conditions that may trans-

mit, generate, or promote disease.

(b) A health officer, upon hearing of the exis-

tence of such unlawful conditions within the offi-

cer’s jurisdiction, shall order the abatement of

those conditions. The order must:

13

(1) bein writing if demanded;

(2) specify the conditions that may transmit

disease; and

(3) name the _ shortest reasonable time for

abatement.

(c) Ifa person refuses or neglects to obey an or-

der issued under this section, the attorney repre-

senting the county of the health jurisdiction

where the offense occurs shall, upon receiving

the information from the health officer, institute

proceedings in the courts for enforcement. An or-

der may be enforced by injunction. If the action

concerning public health is a criminal offense, a

law enforcement authority with jurisdiction over

the place where the offense occurred shall be no-

tified.

16-20-1-26 Injunctive enforcement; legal

representation of health authorities

Sec. 26. (a) A local board of health or local

health officer may enforce the board’s or officer’s

orders by an action in the circuit or superior

court. In the action, the court may enforce the

order by injunction.

(b) The county attorney in which a local board '

of health or local health officer has jurisdiction

shall represent the local health board and local

health officer in the action unless the county ex-

ecutive employs other legal counsel or the matter

has been referred through law enforcement au-

thorities to the prosecuting attorney.

14

16-20-1-28 Removal of local health officers;

grounds; hearing rights

Sec. 28. (a) A local health officer may be re-

moved only for failure to:

(1) perform the officer’s statutory duties; or

(2) enforce the rules of the state department.

(b) Except as provided in I.C. 16-19-3-12, I.C.

16-19-3-13, and I.C. 16-19-3-15, a local health of-

ficer may be removed only by the board that ap-

pointed the health officer.

(c) When removal of a local health officer is

sought by the appointing authority, the local

health officer is entitled to the following:

(1) At least five (5) days notice.

(2) An open hearing.

(3) Representation by counsel.

I.C. 16-20-1 (West 1997).

The Court of Appeals reviewed the relevant statutes and

found, as a matter of state law, that the County Health

Officer is not responsible for investigating the deaths of

the Petitioners’ decedents.

Each of the statutory areas of authority, duties and

responsibilities of the County Health Officer relates to

disease control and prevention, not to investigating deaths

having no apparent connection to communicable diseases.

The Court of Appeals further found in footnote 9 of their

opinion contained at page 20a of the Petitioners’ Appendix

that Dr. Albrecht’s alleged knowledge of the deaths

gleaned from his private medical practice cannot be

15

attributed to him in his role as County Health Officer. The

Court of Appeals made this ruling, in part, based upon

public policy. In his role as County Health Officer, Dr.

Albrecht owed no duty to the Plaintiffs to investigate the

high number of deaths taking place at the hospital.

The Petitioners argue that the Court of Appeals erred

in that its decision is in conflict with this Court’s decision

in the case of Pembaur v. City of Cincinnati, 475 U.S. 469,

106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). It is not. In the case

of Pembaur, this court stated at pages 481-482:

Having said this much, we hasten to emphasize

that not every decision by municipal officers

automatically subjects the municipality to § 1983

liability. Municipal liability attaches only where

the decisionmaker possesses final authority to

establish municipal policy with respect to the ac-

tion ordered. The fact that a particular official —

even a policymaking official — has discretion in

the exercise of particular functions does not,

without more, give rise to municipal liability

based on an exercise of that discretion. (Citations

omitted.) The official must also be responsible for

establishing final government policy respecting

such activity before the municipality can be held

liable. Authority to make municipal policy may be

granted directly by a legislative enactment or may

be delegated by an official wie possesses such au-

thority, and of course, whether an official had fi-

nal policymaking authority is a question of state

law. (emphasis added)

The Indiana Court of Appeals found that a County Health

Officer does not have official policymaking authority over

a hospital created pursuant to the Acts of 1917 or over

deaths unrelated to communicable diseases. Thus, the

16

County Health Officer does not possess the authority

“respecting such activity” that could make the County

herein liable. The Court of Appeals has decided this

question, as a matter of state law, and the state court of

last resort, the Indiana Supreme Court, has waived

discretionary review in this matter.

It is inherent that government entities can be held

liable under § 1983 only for acts which the entity itself is

actually responsible, that is those acts which it has offi-

cially sanctioned or ordered. City of St. Louis v. Praprot-

nik, 485 U.S. 112, 123, 108 S.Ct. 915, 924, 99 L.Ed.2d 107

(1988), citing Pembaur. Also see, Ross v. United States, 910

F.2d 1422, 1428-1429 (7th Cir. 1990). In the case at bar,

the County and the County Health Officer had no final

policymaking authority over the entity or the individuals

that allegedly violated the Petitioners’ rights herein.

Further, and perhaps more significantly, the Petitioners

have failed even to articulate any such policy or custom of

the County or the County Health Officer that is directly or

casually linked to the alleged deprivations of civil rights.

Thus, the Indiana Court of Appeals decision in this case

does not in any way conflict with this Court’s decision in

the case of Pembaur v. City of Cincinnati.

Further, the Petitioners’ argument that the DeShaney

case is inapplicable to the case at bar is also without

merit. The DeShaney case, of course, holds that a govern-

mental entity’s failure to protect an individual against

private violence does not constitute a violation of the due

process clause. The Plaintiffs argue that DeShaney is

inapplicable to the case at bar because the alleged mur-

ders at the hospital were committed by an employee of the

Vermillion County Hospital and because Dr. Albrecht was

an employee of the County, as the County Health Officer.

17

Both of these arguments simply miss the mark. Majors

was not an employee of the County. He was an employee of

the Vermillion County Hospital. As previously noted, the

board of trustees of the Vermillion County Hospital had

full discretion, authority, and responsibility, for the opera-

tion of the hospital and for the staff. As to Dr. Albrecht, he

simply did not cause the alleged violations of Petitioners’

constitutional rights, either directly, or indirectly by his

actions or inactions herein.

Petitioners herein attempted to distinguish DeShaney

on the grounds that it involves “single acts of violence in a

private setting” and on the grounds that the Petitioners

were “placed” in danger by the Respondents herein. These

arguments fail.

DeShaney does not involve a singular act of violence,

but ongoing child abuse, with consistent reports to the

county entity, from 1982 to 1984, resulting in “hemor-

rhages caused by traumatic injuries to the head inflected

over a long period of time.” See DeShaney at 193, S.Ct.

1002. The number of incidents or duration of the incidents

are irrelevant to a question of whether a government

entity has a duty to protect one’s constitutional rights. It is

simply not a determinative factor.

Petitioners next argue that DeShaney is distinguish-

able on the grounds that they were allegedly “placed” in

danger. How did the County and the County Health officer

place the Petitioners herein in danger? Liability for the

“placement” of an individual in danger is basically limited

to those situations where the individual’s freedom is so

restricted that the government has a duty therefore to

protect their constitutional rights. See Youngberg uv.

Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982)

18

(case of involuntary committed mental patients); Estelle v.

Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)

(duty to protect prisoners’ constitutional rights.) In these

cases, the duty to protect the constitutional rights arise

from the limitation that the state has imposed upon the

individual’s freedom to act on his own behalf. In the case

at bar the Respondents did not place any restrictions upon

the Petitioners’ freedom to act. They could have checked

into the Vermillion County Hospital, or any other hospital

of their choosing. They could have checked out of the

Vermillion County Hospital at any point in time. The

Petitioners were not “placed” in the Vermillion County

Hospital by the Respondents herein. For further authori-

ties see Stevens v. Umsted, 131 F.3d 697 (7th Cir. 1997)

(voluntary placement of child in state run school for

disabled individuals is not sufficient to create affirmative

duty to protect constitutional rights) and J.O. v. Alton

Community Unit School District, 909 F.2d 267 (7th Cir.

1990) (compulsory attendance laws requiring child to

attend school is insufficient to create affirmative duty to

protect constitutional rights).

Finally, the Petitioners argue that the Court of Ap-

peals opinion is contrary to this Court’s opinion in the case

of Monell v. Department of Social Services, 436 U.S. 658,

98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). This argument is

also without merit. As previously discussed, neither of the

Respondents herein, the County nor the County Health

Officer were the entity in charge of policies or customs

that affected the Petitioners’ constitutional rights. The

Petitioners go to great lengths to attempt to establish that

the County somehow has control over the Vermillion

County Hospital, or its board, or Nurse Majors himself.

Petitioners also go to great lengths to try and convince this

19

Court that the County Health Officer was somehow a

policymaker over the Vermillion County Hospital, its

board, or Nurse Majors himself. The Court of Appeals

found that in the case at bar neither the County nor the

County Health Officer were policymakers in reference to

the Vermillion County Hospital or the actions of the

hospital’s employees. Neither the County nor the County

Health Officer had a duty to protect the Petitioners’

constitutional rights in the case at bar.

II. PETITIONERS ARE NOT ENTITLED TO A WRIT

OF CERTIORARI BASED ON OPINIONS FROM

THE UNITED STATES COURTS OF APPEALS

NOR DOES THE DECISION OF THE INDIANA

COURT OF APPEALS HEREIN IN ANY WAY

CONFLICT WITH THE DECISIONS OF ANY OF

THE UNITED STATES COURTS OF APPEALS.

Petitioners next make the argument that the decision

of the Indiana Court of Appeals herein conflicts with

decisions of the United States Courts of Appeals. First of

all, such an argument is not an appropriate consideration

under Supreme Court Rule 10. Further, even if one con-

sidered that there are inconsistent opinions existing out

there, as Supreme Court Rule 10 provides, a petition is

rarely granted when the asserted error consists of errone-

ous factual findings or the misapplication of a properly

stated rule of law.

Petitioners first assert that the case at bar is in

conflict with that of Stoneking v. Bradford Area School

District, 822 F.2d 720 (3rd Cir. 1989). It is not. In the

Stoneking decision, the alleged perpetrator of the constitu-

tional violations was in fact an employee of the entity

being sued. While respondeat superior liability could not

20

apply in the § 1983 claim, the school was alleged to have

had actual knowledge of the ongoing violations and was

alleged to have taken no actions. The court therein stated

at page 724:

Unlike DeShaney’s father, who was referred to

throughout the DeShaney opinion as a private

third party, Wright was a school district em-

ployee subject to defendants’ immediate control.

In fact, many of Wright’s interactions with

Stoneking occurred in the course of his perform-

ance of his official responsibilities, such as dur-

ing school-sponsored events and trips, and

sometimes on school property.

The facts of Stoneking are inopposite to the facts in

the case at bar. In the case at bar, Nurse Majors was not

an employee of the County. This would be like the plaintiff

in the Stoneking case suing Bradford County, rather than

the Bradford Area School District. Further, it is distin-

guishable on the grounds that there are no allegations

that the County or the County Health Officer had actual

knowledge of Majors’ alleged violation of the Petitioners’

constitutional rights herein. Contrary to Petitioners’

assertion, the Stoneking case is simply inapplicable to the

case at bar.

Plaintiffs next assert that an exception to the De-

_ Shaney opinion of “state created danger” is applicable in

this case, citing the Court to Stevens v. Umsted, 131 F.3d

697 (7th Cir. 1997). The “state created danger” exception

to DeShaney is not applicable to this case either. In the

Stevens v. Umsted case, the Court stated at page 705:

In order to maintain a theory under the state

created danger exception, a plaintiff must plead

facts showing some affirmative act on the part of

21

the state that either created a danger to the

plaintiff or rendered him more vulnerable to an

existing danger. In order for the state created

danger theory to be available, the ‘state [must]

affirmatively place [] a particular individual in a

position of danger the individual would not oth-

erwise have faced.’

As previously outlined above, neither the County nor the

County Health Officer “placed” the Petitioners’ decedents

in danger. Nor did they take any “affirmative act” that

created the danger or rendered the Petitioners’ decedents

herein more vulnerable to an existing danger. All of the

Petitioners’ allegations against the Respondents speak of

“failures to investigate”, and failure to act. In the Stevens

case, the Court ultimately held at page 705:

liln action by the state in the face of a known

danger is not enough to trigger the obligation [to

protect private citizens from each other] Reed

986 F.2d at 1125. Stevens’s complaint is phrased

entirely in terms of Umsted’s failure to act, and

thus, does not allege an affirmative act by the

state. Just as in DeShaney, ‘[t]he most that can

be said of the state functionaries in this case is

that they stood by and did nothing when suspi-

cious circumstances dictated a more active role

for them.’ (Citations omitted).

Thus, the Stevens v. Umsted case, rather than conflicting

with the case at bar, is in fact consistent with the ruling of

the Court of Appeals in this matter.

The case of Horton v. Flenory, 889 F.2d 454 (3rd Cir.

1989) is distinguishable on its face. In that case, the Court

found that a governmental entity had an official policy of

deferring to private individuals a governmental function.

The Court therein found that the governmental entity

22

could be liable for constitutional violations that may have

occurred during the execution of the governmental func-

tion. That is simply not the situation in the case at bar.

The Petitioners herein are attempting to blur the line

between the Vermillion County Hospital, its board, the

Vermillion County Commissioners and the County Health

Officer.

Further, neither Milo v. Cushing Municipal Hospital,

861 F.2d 1194 (10th Cir. 1988) nor Malak v. Associated

Physicians, Inc., 784 F.2d 277 (7th Cir. 1986) are applica-

ble to the case at bar. Both those cases involve the actions

by a private person or a private entity which might consti-

tute actions of the state under the color of state law, i.e.,

when the state contracts with a private entity to fulfill a

governmental function. This is not a case where the

County or the County Health Officer has attempted to

insulate themselves from liability by transferring policy-

making authority to some type of private entity. See City

of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915,

924, 99 L.Ed.2d 107 (1988) (Praprotnik opinion) at 127;

and at 926.

Finally, Petitioners begin to digress into arguments

regarding assertions of the various constitutional rights

that were violated. In response, the Respondents would

simply cite the Petitioners in this Court to the Seventh

Circuit in the case of J.O. v. Alton, at page 273 wherein

the Court stated:

What the plaintiffs need to show is not an expan-

sive list of liberties allegedly taken from them

but some action by the defendants that would

justify the imposition of liability. The plaintiffs

have failed to make this showing no matter how

23

their rights are characterized, and for this reason

their claims must fail.

This language is applicable to the case at bar, no matter how

Petitioners frame their alleged constitutional rights — as life,

liberty or family association — they cannot show any action on

the part of the Respondents herein that would justify the

imposition of liability in this case. Therefore, the Court of

Appeals was correct in its ruling in this matter. Said ruling is

consistent with the opinions of this Court and, therefore, the

Petition for Writ of Certiorari should be denied.

,

v

CONCLUSION

For: all the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

SHANNON L. ROBINSON 15253-82

Counsel of Record

DARLA S. BROWN

WILLIAM H. KELLEY

KELLEY, BELCHER & BROWN

301 West Seventh Street

Post Office Box 3250

Bloomington, Indiana 47402-3250

Telephone: 812-336-9963

Attorneys for Respondents