It is quite apparent to this Court that (1) had the City Defendants maintained a policy of admitting patients in the absence of findings and procedures of which Plaintiff complains, (2) had that policy been established in the absence of Section 251 and Judge Rand's order, and (3) had Plaintiff been committed to Bellevue pursuant to that policy, Plaintiff's allegations would sufficiently plead the City Defendants' responsibility for Plaintiff's alleged constitutional deprivation. The question is whether the existence of Section 251 and the Family Court order so attenuate the connection between the City Defendants' conduct and Plaintiff's deprivation that the City Defendants cannot be deemed responsible for that deprivation for purposes of Section 1983 liability.
The Second Circuit has not yet explicitly articulated its position on what effect, if any, a state's mandate or authorization of a municipal policy has on that municipality's liability for the policy under Section 1983. This Court therefore looks for initial guidance to the decisions of other federal courts that have considered the issue. While the relevant cases of the other federal courts are not entirely consistent, two general strands of cases may be discerned.
On the one hand, at least one circuit has held that a municipality's constitutional policy of "enforcing state law" cannot be the basis for Section 1983 liability. Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991). In Surplus, the plaintiff store alleged that a police officer had seized two gold rings from it and returned the rings to their purported owner without providing a judicial hearing. Id. Three state statutes apparently authorized the police officer to seize and dispose of the rings in the manner alleged. Id. at 790-91. The Seventh Circuit held the store's Section 1983 claim untenable, finding that plaintiff's complaint failed to allege any city policy or custom in any way connected to the alleged deprivation, and ruling that the general policy of enforcing state law is not a sufficient basis for Section 1983 liability. Id. at 790-92.
A district court within the Seventh Circuit has held the mere enforcement of state law to be an inadequate basis for Section 1983 liability in circumstances where the municipality acted according to state law in an area over which the municipality had neither a duty nor the authority to set policy. Thompson v. Duke, 1987 WL 33188 at *5-6 (N.D.Ill. 1988), aff'd, 882 F.2d 1180 (7th Cir. 1989), cert. denied, 495 U.S. 929, 109 L. Ed. 2d 496, 110 S. Ct. 2167 (1990) (county's incarceration of parolee without making independent finding as to validity of his incarceration could not provide a basis for Section 1983 liability where the county acted according to its duties under state law and had no duty or authority to determine the validity of the parolee's confinement).
On the other hand, a number of cases indicate that the official adoption or implementation of an unconstitutional municipal policy provides a sufficient basis for Section 1983 liability even when that policy is authorized or mandated by state law. In Garner v. Memphis Police Dep't, the Sixth Circuit held that the city police department's adoption of a policy allowing officers to use deadly force against various suspects, including fleeing burglars, provided a basis for Section 1983 liability even though the policy was authorized by a state statute that permitted an even broader use of deadly force. Garner v. Memphis Police Dep't, 8 F.3d 358, 364-65 (6th Cir. 1993), cert. denied, 127 L. Ed. 2d 565, U.S. , 114 S. Ct. 1219 (1994).
In Evers v. County of Custer, a property owner claimed that the defendant county interfered with her property rights without due process of law by declaring a road on her land to be public and by serving her with a citation for interference with a public highway. Evers v. County of Custer, 745 F.2d 1196, 1198-99 (9th Cir. 1984). State statutes in Evers both (1) rendered roads public after a certain period of public use and maintenance and (2) gave the county commissioners the duty to record as public highways roads which had thereby become public. Id. at 1198 n.1, 1200 n.3. The Ninth Circuit held that the declaration and criminal action, although made pursuant to the state statutes, clearly constituted official actions which could provide a basis for the county's Section 1983 liability. Id. at 1203. The Evers court noted that Section 1983's policy of encouraging officials to err on the side of protecting citizen's constitutional rights supported the imposition of liability on the county in the event plaintiff was able to prove her case. Id. at 1203-04 (quoting Owen v. City of Independence, 445 U.S. 622, 650-52, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980)).
Finally, in Davis v. City of Camden, a fellow district court ruled that the defendant county could be held liable under Section 1983 for its official adoption of an unconstitutional policy of strip searching persons in county jail even though that policy was mandated by state law. Davis v. City of Camden, 657 F. Supp. 396, 402-04 (D.N.J. 1987). The Davis court relied in part on its finding that Section 1983's policy of compensating victims of unconstitutional state action would be served by imposing Section 1983 liability on municipalities which officially adopt unconstitutional policies mandated by state law. Id. at 403 (quoting Owen, 445 U.S. at 655).
The Second Circuit has addressed a related issue in an appeal contesting an attorney's fee award against a county in a Section 1983 case challenging an element of New York state's social services program. Koster v. Perales, 903 F.2d 131, 136-38 (2d Cir. 1990). While the merits of the case had been decided by stipulation, the award and allocation of attorney's fees were made by the district court. The Second Circuit affirmed the attorney's fee award against the county, reasoning that the county was responsible for administration of the challenged portion of the social services program and that plaintiff's complaint challenged the county's own policy as well that of the state.
This Court need not decide whether each of the holdings of Surplus, Garner, Evers, and Davis will be fully followed by the Second Circuit. The Court believes, however, that these four cases, along with Koster, suggest a reasoned distinction between (1) cases in which a plaintiff alleges that a municipality inflicted a constitutional deprivation by adopting an unconstitutional policy that was in some way authorized or mandated by state law and (2) cases in which a plaintiff alleges that a municipality, which adopted no specific policy in the area at issue, caused a constitutional deprivation by simply enforcing state law. While allegations of the former type have been found to provide a basis for Section 1983 liability, see Garner, 8 F.3d at 364-65; Evers, 745 F.2d at 1203; Davis, 657 F. Supp. at 402-04, allegations of the latter variety may not10 provide a remedy against the municipality, see Surplus, 928 F.2d at 790-92; Thompson, 1987 WL 33188 at *5-6.
D. The "Policy or Custom" at Issue
Before applying the relevant case law to the case at hand, the Court must first delineate the particular municipal "policy or custom" which Plaintiff's complaint alleges. In making such a delineation at the dismissal stage, the Court must, of course, (1) treat all material factual allegations in the complaint as true, Leatherman, U.S. at , 113 S. Ct. at 1161; Cohen, 25 F.3d at 1171-72, (2) read the complaint generously, drawing all reasonable inferences in plaintiff's favor, Cosmas, 886 F.2d at 11, and (3) determine if Plaintiff can prove any "set of facts in support of his claim which would entitle him to relief," Yusuf, 35 F.3d at 713 (quoting Conley, 355 U.S. at 45-46).
The Report characterizes the City Defendants' actions as "mere" acquiescence in orders of Family Court judges, see Report at 16, 19, and holds that the case law does not support a finding of Section 1983 "responsibility" with regard to those actions.
The Magistrate Judge's characterization of Plaintiff's allegations appears to be based on a very narrow view of the pleadings. While Plaintiff's allegations may be interpreted to charge the City Defendants with employing a policy or custom of following court orders, they may, with equal ease, be cast in a different light. Plaintiff's complaint may, for example, be read to charge the City Defendants with officially adopting or executing a policy, in an area over which the City Defendants had policy-making authority, of admitting Section 251 remandees to Bellevue for involuntary confinement without making independent findings as to the dangerousness of the remandees or as to less restrictive, available alternatives and without providing the requisite procedural safeguards.
The latter policy may be more generally described as one of confining individuals without due process of law. These two possible characterizations of Plaintiff's allegations carry strikingly different connotations. The former policy or custom appears constitutional on its face and is arguably not a "policy" at all, while the latter appears unconstitutional on its face and implies affirmative adoption of a policy decision. The discussion of the relevant case law in the preceding section clearly demonstrates that the Court's consideration of one characterization rather than another will be highly significant to the Court's analysis, if not outcome determinative of the case. In light of the importance of the characterization used and the standards that a court must apply in deciding a motion to dismiss, the Court rejects the Magistrate Judge's narrow reading of Plaintiff's allegations and instead utilizes the reasonable characterization of Plaintiff's allegations that is most favorable to Plaintiff. Thus, for purposes of this motion, Plaintiff's complaint charges the City Defendants with adopting a policy of admitting certain individuals to Bellevue without substantive or procedural due process.
E. Alternatives Available to the City Defendants
Before applying the relevant case law to the policy deemed at issue here) the Court must address the Magistrate Judge's apparent finding that the City Defendants lacked any alternative to their actions and that Plaintiff therefore failed to sufficiently plead any municipal policy. The Report states that "the City defendants had no immediate alternative but to admit [Plaintiff] for psychiatric observation pursuant to Judge Rand's order," Report at 16, and that, although the City Defendants could have brought a declaratory judgment action challenging Section 251, their failure to do so "does not transform the mere following of a court order into a municipal 'policy.'" Id. at 19. The Supreme Court has pointed out that the word 'policy' implies a choice of action among various alternatives. See Tuttle, 471 U.S. at 823; Pembaur, 475 U.S. at 483.
The Magistrate Judge's finding of no municipal policy was made within the context of her inquiry into whether the City Defendants had any immediate alternative to obeying the Family Court order. This Court believes that the relevant question should be framed somewhat differently. In light of the alleged policy or custom which this Court has determined to consider, the question is whether the City Defendants had alternatives to maintaining a policy or custom of confining individuals without first making the requisite findings or providing the requisite procedures.
The Court finds that Plaintiff's allegations, along with all reasonable inferences drawn in Plaintiff's favor, allow a finding that the City Defendants had alternatives to (1) maintaining the custom or policy alleged and (2) confining Plaintiff for thirty-two (32) days pursuant to that custom or policy. The City Defendants could, for example, have established a policy of only admitting involuntary patients after making an independent finding of the patients' dangerousness. Had the City Defendants attempted to follow such a policy with respect to Plaintiff and found that he did not meet their criteria for admission, they could have either (1) returned Plaintiff to Family Court and sought to have the remand order modified on the grounds that they did not believe they could constitutionally admit Plaintiff,
(2) temporarily admitted Plaintiff and immediately sought to have Judge Rand modify the order on the same grounds, or (3) temporarily admitted Plaintiff and immediately sought to challenge the constitutionality of Section 251 in a declaratory judgment action.
Thus, while the City Defendants arguably had no immediate alternative to obeying the court order,
they had alternatives to admitting and then confining Plaintiff for thirty-two (32) days without first ensuring that his confinement satisfied the requirements of a constitutional admissions policy. The Court holds, therefore, that the City Defendants' purported lack of alternatives fails to provide a basis on which to grant their motion to dismiss.
F. Application of Case Law to Policy or Custom at Issue
The Court finds that the Plaintiff's allegations sufficiently plead the official adoption or execution by the City Defendants of an allegedly unconstitutional policy to place this case within the parameters of Garner, Evers, Davis, and Koster, and to implicate sufficient municipal responsibility to sustain Section 1983 liability. Plaintiff's complaint may be read to charge the City Defendants with depriving him of his constitutional rights by officially adopting a policy or custom of confining certain individuals without making findings as to the dangerousness of those individuals or as to less restrictive available alternatives and without providing procedural safeguards. In light of the reasoning of the case law discussed earlier in this opinion and Section 1983's aims of (1) compensating victims of unconstitutional state action and (2) creating "an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens' constitutional rights," Owen, 445 U.S. at 650-52, 655, the Court believes that Plaintiff's allegations may prove to be a sufficient basis for imposing Section 1983 liability on the City Defendants despite the fact that the City Defendants' actions were, to some extent, constrained by the Family Court order made pursuant to Section 251. Thus, while Section 251 and Judge Rand's order also played roles in Plaintiff's involuntary confinement, Plaintiff's complaint sufficiently demonstrates, for purposes of surviving a motion to dismiss, that there was a "direct causal link" between Plaintiff's confinement and the City Defendants' alleged policy or custom, see Harris, 489 U.S. at 385, and that the City Defendants are in some way "at fault" for Plaintiff's deprivation, Tuttle, 471 U.S. at 818, and may be liable for that deprivation under Section 1983. See Garner, 8 F.3d at 364-65; Evers, 745 F.2d at 1203; Davis, 657 F. Supp. at 402-04.
For the foregoing reasons, it is hereby ordered that Defendants Boufford and Channing's motion to dismiss, as narrowed by the parties, is denied. The Court declines to address Plaintiff's motion to amend his complaint.
It is SO ORDERED.
Dated: New York, New York
March 25, 1995
Mary Johnson Lowe
United States District Judge