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April 7, 1992

JANE RUBENSTEIN, and MARY ANN BAGATTA, Individually, and on Behalf of all Others Similiarly Situated, and DISABILITY ADVOCATES, INC., as the Protection and Advocacy Agency for Mentally Ill Individuals in the Hudson Valley Region of New York State, Plaintiffs, against BENEDICTINE HOSPITAL, DR. GEORGE JOSEPH, DR. K. GULATI, and UNIDENTIFIED STAFF PHYSICIAN, Defendants.


The opinion of the court was delivered by: CON. G. CHOLAKIS


 This action involves the involuntary commitment of the two individual plaintiffs and, ostensibly, of the members of the would-be class of plaintiffs. Plaintiffs Rubenstein and Bagatta are individuals who, by different means, arrived, on different dates, at the emergency room of defendant Benedictine Hospital, a private "hospital" as that term is defined in Article 28 of the New York Public Health Law, and a "facility" as that term is defined in the New York Rental Hygiene Law.

 Defendant Gulati is a physician who was working in the emergency room of the Hospital on the days that the individual patients arrived. Defendant Joseph is a physician who works in the psychiatric ward of the Hospital. Finally, plaintiff Disability Advocates, Inc. ("DAI") is a not-for-profit corporation, "dedicated to providing advocacy and legal representation to people with a diagnosis of mental illness." Complaint par. 5.

 As presently filed, the complaint alleges nine causes of action: (1) § 1983; (2) deprivation of liberty without due process, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 6 of the New York State Constitution; (3) that defendants' reliance on the plaintiffs' past diagnoses of mental illness in making the determination to involuntarily commit them violated plaintiffs' rights equal protection under the Fourteenth Amendment to the United States Constitution and Article I, Section 11 of the New York State Constitution; (4) false imprisonment; (5) battery; (6) assault; (7) negligence with respect to plaintiff Bagatta; (8) intentional infliction of emotional distress; and (9) negligence.

 By this complaint, plaintiffs seek (a) certification of a class; (b) a declaratory judgment declaring that defendants' involuntary commitment based solely on previous diagnoses is unlawful; (c) an injunction enjoining defendants from involuntarily committing individuals unless there is a present finding of a mental illness which poses a substantial risk of serious danger to the individual or others; (d) compensatory and punitive damages; (e) attorneys' fees under § 1988; and (f) costs and disbursements. Plaintiffs also demand a jury trial.


 Plaintiff Rubenstein

 According to the complaint, on January 24, 1991, plaintiff Rubenstein went to the New Paltz Police Department complaining of chest pains and shortness of breath. Id. par. 14. She requested that the police call an ambulance to take her to an emergency room. Id.

 Upon arrival, Rubenstein told defendant Dr. Gulati of her chest pains but, rather than treat her physical distress, Gulati allegedly ignored the somatic complaints and instead made a statutory application for an involuntary commitment of plaintiff, pursuant to NYMHL § 9.37. *fn1" Id. par. 17.

 Plaintiff alleges that Gulati's application gave no indication that it was based on his own evaluation or that plaintiff posed a substantial risk of physical harm to herself or others. Gulati, allegedly a designee of the director of community services stated "This request is made due to the behavior and/or specific acts described below: Pt. talking continuously; shouting at people; crying intermittently on street as per New Paltz police." Id. Plaintiff further alleges that, based upon Gulati's application, plaintiff was physically restrained and transported to and subsequently admitted to Hudson River Psychiatric Center ("HRPC"). Id. par. 19.

 Plaintiff Bagatta

 In September 1990, Bagatta was an outpatient receiving treatment for previously diagnosed mental illness, and taking certain medication in connection with her treatment. Although Bagatta had been hospitalized in the past for the illness, she had not been hospitalized for approximately ten years prior to the events underlying the complaint in this action. Id. par. 26.

 Around that time, Bagatta's medication was reduced from 50 mg to 10 mg doses, a change "plaintiff was having difficulty adjusting to." Id. par. 27. According to the complaint, "upon information and belief," on September 17, 1990 Bagatta's parents called the Ulster County Mental Health clinic ("UCMH") to report changes in Bagatta's behavior. UCMH issued a pick up order to be executed by local police officers. Id. par. 28. Police allegedly forcibly removed Bagatta from her apartment, in four-point leather restraints, and a Hudson Valley Ambulance ambulance transported her to defendant Hospital's emergency room. Id. par. 29.

 Again, upon information and belief, defendant Gulati was the admitting physician, allegedly examining plaintiff pursuant to N.Y. MENTAL HYG. LAW § 939. *fn2" According to plaintiff, Gulati's basis for plaintiff's admission, as stated on the admission form, consisted of the following statements: "Pt. is known to have paranoid schizophrenia. Has not taken medications for one week; scared people are hurting her." Complaint Par. 31.

 Bagatta further alleges that Gulati relied on statements of Bagatta's mother to the effect that Bagatta had been confused, unable to sleep and had been reading and underlining the Bible and books about Hitler. Id. par. 33. Gulati allegedly notified defendant Joseph of Bagatta's admission. Id. par. 34. On September 18, 1990, Bagatta was examined by an as-yet unidentified physician on the psychiatric staff of the Hospital, who stated in writing that Bagatta had the "potential for self endangerment." Id. par. 36.

 Bagatta alleges that, after the individual defendants labelled her as "uncooperative" and "treatment resistant", they failed to create a properly therapeutic relationship with plaintiff. This allegation is made "particularly" with respect to defendant Joseph. Id. par. 37. Bagatta alleges that, as a result of the acts and omissions of the defendants, her condition worsened while she was at the Hospital, which condition continued to exist during a subsequent appearance before a New York State Supreme Court Justice. Id. pars. 38-40. *fn3"

 In November 1990, "the defendants" petitioned Judge Bradley of the Ulster County Supreme Court to further retain Bagatta and to medicate her over her objection. The judge dismissed the petition to medicate but ordered Bagatta's transfer to HRPC. Id. par. 45. Finally, Bagatta claims to have dramatically improved upon admission to HRPC, voluntarily accepted medication and was soon spending weekends at home. Id. pars. 47-49.

 A separate set of allegations in the complaint, under the title "Organizational and Class-Wide Plaintiffs," states that the defendants "routinely and systematically involuntarily admit people who are not at the time of admission posing a substantial risk of danger to themselves or others," id. par. 52, that such practices "result in wide-spread denial of liberty without meeting the statutory requirements and without the required due process of law," id. par. 53, and that the hospital is liable for the acts and omissions of its employees under respondeat superior. Id. par. 54.

 Applicable Legal Standards

 Defendants move for summary judgment and to dismiss. On a motion to dismiss, the district court must construe the complaint's allegations in the light most favorable to the plaintiff and accept the well-pleaded allegations as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Wanamaker v. Columbian Rope Co., 740 F. Supp. 127, 133 (N.D.N.Y. 1990). Summary judgment, on the other hand,

 shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 Fed.R.Civ.P. 56(c). "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (citation omitted).

 If the movant meets its initial burden of demonstrating that there is no genuine issue as to any material fact, the nonmovant, "by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (all reasonable inferences and any ambiguities are drawn in favor of the nonmoving party).

 The mere existence of some alleged factual dispute between the parties, however, will not defeat an otherwise properly supported summary judgment motion. Instead, "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.

 The function of the judge "is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. Although to do so would be helpful to a reviewing court, there is no requirement that the trial judge make findings of fact. See id. at 250.

 1. Section 1983 and "State Action"

 All defendants move for summary judgment with respect to the plaintiffs' claim under 42 U.S.C. § 1983. *fn4" Section 1983 liability is premised upon a finding that a defendant has, under color of state law, deprived a plaintiff of rights secured by the Constitution and laws of the United States. Section 1983 plaintiffs must therefore prove two elements: First, plaintiff must demonstrate that he or she has been deprived of a right secured by the Constitution and the laws of the United States. Second, plaintiff must prove that the defendant depriving plaintiff of such right was acting under color of any statute of the state. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978). *fn5"

 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 person for whom the State is responsible . . . . 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 official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.

 Id. at 937 (emphasis added). In addressing the "necessarily fact-bound inquiry that confronts the Court" in these cases, the Court has developed several "factors" or "tests" to determine what makes a private entity or individual a "state actor" for purposes of § 1983. These tests have been characterized as (1) the "public function" test; (2) the "state compulsion" test; (3) the "nexus" test; and, (4), in the case of prejudgment attachments, the "joint action" test.

 In Jackson v. Metropolitan Edison Co., 419 U.S. 345, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974), plaintiff sued the defendant utility under § 1983 after the defendant terminated its electric service to plaintiff for nonpayment of amounts due. The Supreme Court, rejecting plaintiff's claim that the defendant was a state actor, first stated that "the mere fact that a business is subject to state regulation does not by itself convert its action into that of the state for purposes of the Fourteenth Amendment." Id. at 350. One's status as a regulated entity or practitioner (e.g., a doctor) is insufficient, absent more, to convert a private action into state action. Id. at 354.

 Instead, said the Court, "the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." Id. at 351. The Court first rejected plaintiff's contention that the utility's monopoly status required a finding of state action. Id.

 The Court then addressed plaintiff's claim that defendant provided an "essential public service", therefore performing a "public function." The Court stated that, although it has "found state action present in the exercise by a private entity of powers traditionally exclusively reserved to the State," id. at 352, Pennsylvania courts have rejected the argument that the furnishing of utility services is a state function. The Court further stated that the case would be different "if we were dealing with the exercise by [the defendant] of some power delegated to it by the State which is traditionally associated with sovereignty, such as eminent domain." Id. at 352-353 (emphasis added).

 In Flagg Bros., supra, the Court held that a warehouseman's sale of goods entrusted to him for storage, as permitted under a New York statute, was not "state action." Plaintiffs there claimed that defendant warehouseman deprived them of property without due process of law.

 The Court rejected plaintiffs' claim that the state had delegated to defendant powers "traditionally exclusively reserved to the State," reasoning that "the settlement of disputes between debtors and creditors is not traditionally an exclusive public function." 436 U.S. at 161. Such "public functions" have included elections, see, e.g., Terry v. Adams, 345 U.S. 461, 97 L. Ed. 1152, 73 S. Ct. 809 (1953) and Smith v. Allwright, 321 U.S. 649, 88 L. Ed. 987, 64 S. Ct. 757 (1944), and the "company town" phenomenon. See Marsh v. Alabama, 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276 (1946). The Court also stated that

 436 U.S. at 163-164.

 In Rendell-Baker v. Kohn, 457 U.S. 830, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982), one of a trio of cases on the issue that were written during the Court's term that year, plaintiffs were six teachers fired by the board of a private school serving maladjusted adolescents, which school received a large amount of state and federal support. The Court rejected plaintiffs' claim that the acts of the board constituted "state action."

 The Court first held that "the school's receipt of public funds does not make the discharge decisions acts of the State." Id. at 840. Second, the discharge decisions were not compelled or even influenced by any state regulation. Id. at 841. Third, the Court held that, although the education of maladjusted high school students is a public function, the State's mere legislative choice to provide services for such students at public expense does not mean the services were "the exclusive province of the State." Id. at 842. Fourth, the Court rejected plaintiffs' argument that there existed a "symbiotic relationship" between the school and the State so as to imbue the school's actions with the state's identity. *fn6"

 In Blum v. Yaretsky, 457 U.S. 991, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982), the Court found that the decisions of private nursing homes and physicians to transfer or discharge Medicaid patients did not constitute "state action" for purposes of the Fourteenth Amendment. As in its earlier cases, the Court held that the mere fact that a private entity is subject to extensive regulation by the State is insufficient to convert the entity into a "state actor." A plaintiff must also show that there is a "'sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of latter may be fairly treated as that of the State itself.'" Id. at 1004 (quoting Metropolitan Edison, 419 U.S. at 350).

 Second, the Court stated that

 although the factual setting of each case will be significant, our precedents indicate that a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. [citations omitted].

 Mere approval of 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.

 Id. at 1004. Finally, the Court reiterated that "the required nexus may be present if the private entity has exercised powers that are 'traditionally the exclusive prerogative of the State.'" Id. at 1005 (quoting Metropolitan Edison, 419 U.S. at 353).

 The Court thereafter found that there was no state action present in that case. Most relevant to the present case, the Court rejected plaintiffs' argument that the federal Medicaid statute and the New York State Constitution made the State responsible for providing every Medicaid patient with nursing home services. Id. at 1011. The Court held that the state Constitution only mandated money for the needy, not particular types of care, and that the federal statute only required the State, to be entitled to federal monies, to provide money for services, not provide services themselves. See id. Finally, the Court stated that

 Even if respondents' characterization of the State's duties were correct, however, it would not follow that decisions made in the day-to-day administration of a nursing home are the kind of decision traditionally and exclusively made by the sovereign for and on behalf of the public.

 Id. at 1011-1012.

 The first question on these motions is whether the defendants, in causing plaintiffs to be involuntarily committed, were "state actors," or whether their actions "under the color of state law" so as to be considered "state action."

 The Supreme Court has recognized "repeatedly" that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. See Addington v. Texas, 441 U.S. 418, 425, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979); O'Connor v. Donaldson, 422 U.S. 563, 580, 45 L. Ed. 2d 396, 95 S. Ct. 2486 (1974). The Addington Court stated:

 The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill.

 441 U.S. at 426. *fn7"

 Clearly, then, when a State deprives a person of his or her liberty through civil commitment, the person is entitled to due process safeguards. The question here presented is whether the private actors here involved were acting as the State in involuntarily committing the plaintiffs.

 The Hospital

 The Hospital claims that it cannot be a "state actor" because "there is simply no proof that government or municipal personnel or agencies played any role in [its] management and governance." Hosp. Mem. at 3-4. To support its position, the Hospital cites Schlein v. Milford Hosp., 561 F.2d 427 (2d Cir. 1977), in which the plaintiff doctor sued the hospital under § 1983 for rejecting his staff privileges without procedural due process. The Circuit held that there was no close nexus between the State and the challenged action:

 The State of Connecticut has not been shown to have played any part in the formulation or implementation of the procedures and standards utilized by the Medical Staff and Board of Directors of the Hospital in reaching their decision to reject Dr. Schlein's application for staff privileges . . . .

 * * *

 Although the State licenses both private hospitals and physicians, it has not required all licensed hospitals to adopt any particular standards or procedures for the granting of staff privileges.

 561 F.2d at 429.

 The Court further rejected plaintiff's "public function" argument, stating that, "although the activities of the Hospital are clearly 'affected with a public interest,' the functions performed by it have not been 'traditionally associated with ...

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