Kenneth Rawson v. Recovery Innovations, Inc. ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH RAWSON, an individual, No. 19-35520
Plaintiff-Appellant,
D.C. No.
v. 3:17-cv-05342-
BHS
RECOVERY INNOVATIONS, INC., a
corporation; SAMI FRENCH, an
individual; JENNIFER CLINGENPEEL, OPINION
an individual; VASANT
HALARNAKAR, M.D., an individual,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted July 8, 2020
Seattle, Washington
Filed September 9, 2020
Before: RICHARD R. CLIFTON, D. MICHAEL
FISHER, * AND MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable D. Michael Fisher, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
2 RAWSON V. RECOVERY INNOVATIONS
SUMMARY **
Civil Rights
The panel reversed the district court’s summary
judgment in favor of defendants and remanded in an action
brought pursuant to 42 U.S.C. § 1983 alleging that
defendants, a private nonprofit corporation and three of its
current and former employees, violated plaintiff’s Fourth
and Fourteenth Amendment rights by wrongfully detaining
him, forcibly injecting him with antipsychotic medications,
and misleading a court into extending his period of
involuntary commitment for a total of 55 days.
The district court dismissed plaintiff’s claims against
defendants based on the conclusion that defendants were not
acting under color of state law. The panel held that, although
defendants were nominally private actors, exercised
professional medical judgment, and were not statutorily
required to petition for additional commitment, on balance,
the facts weighed toward a conclusion that they were
nevertheless state actors. The panel held that given the
necessity of state imprimatur to continue detention, the
affirmative statutory command to render involuntary
treatment, the reliance on the State’s police and parens
patriae powers, the applicable constitutional duties, the
extensive involvement of the county prosecutor, and the
leasing of defendants’ premises from the state hospital, “a
sufficiently close nexus between the state and the private
actor” existed here “so that the action of the latter may be
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
RAWSON V. RECOVERY INNOVATIONS 3
fairly treated as that of the State itself.” Jensen v. Lane Cty.,
222 F.3d 570, 575 (9th Cir. 2000). The panel therefore
concluded that defendants were acting under color of state
law with respect to the actions for which plaintiff attempted
to hold them liable.
COUNSEL
Timothy K. Ford (argued) and Jesse Wing, MacDonald
Hoague & Bayless, Seattle, Washington; Sam Kramer,
Madia Law LLC, Minneapolis, Minnesota; for Plaintiff-
Appellant.
Benjamin R. Justus (argued) and Lory R. Lybeck, Lybeck
Pedreira & Justus PLLC, Mercer Island, Washington, for
Defendants-Appellees.
OPINION
M. SMITH, Circuit Judge:
Kenneth Rawson appeals the district court’s dismissal of
his 42 U.S.C. § 1983 claims against Recovery Innovations,
Inc. (RII) and its current and former employees Dr. Vasant
Halarnakar, Advanced Registered Nurse Practitioner
Jennifer Clingenpeel, and Mental Health Professional Sami
French (collectively, Defendants). Rawson alleges that
Defendants violated his Fourth and Fourteenth Amendment
rights by wrongfully detaining him, forcibly injecting him
with antipsychotic medications, and misleading a court into
extending his period of involuntary commitment for a total
of 55 days. On summary judgment, the district court
dismissed Rawson’s claims because it concluded that
4 RAWSON V. RECOVERY INNOVATIONS
Defendants did not act under color of state law. We
conclude to the contrary, and therefore reverse.
Facts and Prior Proceedings
On March 4, 2015, Rawson allegedly made comments
about automatic weapons and mass murder to a bank teller
in Clark County, Washington. When Rawson re-entered the
same bank the next day, the bank employees called the
sheriffs. Upon their arrival, the sheriffs immediately
detained Rawson, who did not physically resist but yelled
that he had a gun and that his rights were being violated.
Rawson had a valid concealed carry permit and was a
veteran; the sheriffs confiscated and unloaded Rawson’s
handgun without incident. After Rawson allegedly made
statements to the sheriffs about “how people are against
him,” the sheriffs took Rawson into protective custody,
placed him on a mental hold, and transported him by
ambulance to a general hospital. The sheriffs’ actions
triggered a series of events generally governed by
Washington’s Involuntary Treatment Act (ITA), Wash. Rev.
Code (RCW) Ch. 71.05. See RCW § 71.05.153(2)–(3). 1
At the hospital, a Clark County Designated Mental
Health Professional (DMHP) evaluated Rawson and filed a
petition in state court for a 72-hour involuntary commitment.
See RCW §§ 71.05.153(4), .020(11). The DMHP arranged
for Rawson to be taken to RII’s Lakewood facility in
neighboring Pierce County. 2 RII is a private nonprofit
1
Unless otherwise noted, citations herein to RCW Ch. 71.05 are to
the 2014 edition in effect at the time of Rawson’s commitment.
2
The following year, the Washington Court of Appeals concluded
that Rawson’s detention had been improper because the DMHP did not
RAWSON V. RECOVERY INNOVATIONS 5
corporation. It leases its Lakewood evaluation and treatment
facility from the State of Washington on the grounds of one
of the State’s main psychiatric hospitals, Western State
Hospital. RII’s Medical Director at Lakewood,
Dr. Halarnakar, is a full-time physician at Western State
Hospital.
Once at RII, Rawson was evaluated by Clingenpeel and
French, who prescribed medication and completed a petition
for an additional 14 days of intensive treatment, certifying
that Rawson was both “gravely disabled” and “presents a
likelihood of serious harm to others.” See RCW
§§ 71.05.170, .210, .230. They based these conclusions on
their evaluations of Rawson and information in the police
report. The petition also stated that Rawson “den[ied]
[having] any problem other than the bank and police
misunderstanding.” The court held a probable cause hearing
and granted the 14-day petition on March 10.
During the 14-day commitment, Dr. Halarnakar met with
Rawson. Dr. Halarnakar’s notes indicate that Rawson was
calm, cooperative, and polite, but had pressured speech.
Though Rawson reported no symptoms of schizophrenia,
Dr. Halarnakar wrote that Rawson needed to keep taking his
medication. In his second evaluation of Rawson,
Dr. Halarnakar documented only that Rawson was
argumentative and denied having a mental illness, denied
needing antipsychotic medications, and denied having
suicidal or homicidal ideations. Dr. Halarnakar nevertheless
concluded that Rawson was paranoid, had no insight, and
needed further treatment.
consult with an examining physician before initiating commitment. In
re Det. of K.R., 381 P.3d 158, 159 (Wash. Ct. App. 2016).
6 RAWSON V. RECOVERY INNOVATIONS
Dr. Halarnakar and French then petitioned for an
additional 90-day commitment, alleging that Rawson had
“threatened, attempted, or inflicted physical harm” upon a
person or property “during the period in custody.” See RCW
§§ 71.05.230(8), .290. They recommended that the court
involuntarily commit Rawson to Western State Hospital. In
response to a later request for the specific statements that
were threatening, French conceded Rawson had made no
“threatening statements.”
Rawson exercised his right to request a jury trial, which
was continued multiple times while he remained
involuntarily committed at RII. See RCW § 71.05.300. In
preparation for the trial, Dr. Halarnakar and French
communicated extensively with the Pierce County Deputy
Prosecuting Attorney regarding discharge possibilities,
current treatment methods, the strength of the evidence
against Rawson, and the theory to argue to the jury. See
RCW § 71.05.130. Meanwhile, a court-appointed expert
psychiatrist evaluated Rawson and concluded that he was not
dangerous, his frustrations were not unreasonable, and he
had no symptoms related to psychosis or a mood disorder.
On April 29, almost two months after Rawson’s arrival,
RII finally released Rawson pursuant to an attorney-
negotiated agreement. Rawson later brought this § 1983
action against RII and many of the individuals involved in
his commitment.
On summary judgment, the district court dismissed
Rawson’s claims against Defendants based on the
conclusion that they were not acting under color of state law.
The court found that the “public function” test was not
satisfied because Rawson did not establish “that involuntary
commitments are both traditionally and exclusively
governmental.” The court found that the “joint action” /
RAWSON V. RECOVERY INNOVATIONS 7
“close nexus” test was not satisfied because Rawson did not
establish “government involvement sufficient to override the
purely medical judgment of the private individual.”
Rawson timely appealed.
Jurisdiction and Standard of Review
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review a grant of summary judgment de novo, construing the
evidence in the light most favorable to the non-moving party.
Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
“[W]e must determine whether there are any genuine issues
of material fact and whether the district court correctly
applied the relevant substantive law.” Id.Analysis
I.
Pursuant to § 1983, a defendant may be liable for
violating a plaintiff’s constitutional rights only if the
defendant committed the alleged deprivation while acting
under color of state law. See Jensen v. Lane Cty., 222 F.3d
570, 574 (9th Cir. 2000). Similarly, a violation of the
plaintiff’s constitutional rights cognizable under the
Fourteenth Amendment can occur only by way of state
action. Id. Thus, the color of law and state action inquiries
are the same. Id.Before we can answer the question of whether
Defendants acted under color of law, we must identify the
“specific conduct of which the plaintiff complains.”
Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806,
812 (9th Cir. 2010) (quoting Am. Mfrs. Mut. Ins. Co. v.
8 RAWSON V. RECOVERY INNOVATIONS
Sullivan, 526 U.S. 40, 51 (1999)). Here, Rawson seeks to
hold Defendants liable for certain actions relating to the 14-
day and 90-day petitions, as well as his detention and
forcible medication pursuant to the authority provided by
those petitions. The specific alleged conduct Rawson
challenges includes involuntarily committing him without
legal justification, knowingly providing false information to
the court, and forcibly injecting him with antipsychotic
medications without his consent. 3 The relevant inquiry is
therefore whether Defendants’ role as custodians, as
litigants, or as medical professionals constituted state action.
See id.II.
The determination of whether a nominally private person
or corporation acts under color of state law “is a matter of
normative judgment, and the criteria lack rigid simplicity.”
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n,
531 U.S. 288, 295–96 (2001). “[N]o one fact can function
as a necessary condition across the board for finding state
action; nor is any set of circumstances absolutely sufficient,
for there may be some countervailing reason against
attributing activity to the government.” Id.We have recognized at least four different general tests
that may aid us in identifying state action: “(1) public
function; (2) joint action; (3) governmental compulsion or
coercion; and (4) governmental nexus.” Kirtley v. Rainey,
326 F.3d 1088, 1092 (9th Cir. 2003) (citation omitted).
3
Rawson does not seek to hold Defendants liable for their actions
relating to his initial 72-hour commitment for evaluation. Thus, neither
Defendants’ acceptance of Rawson from the County DMHP, their
detention of Rawson for the initial 72 hours, nor their treatment of
Rawson during that time, are at issue.
RAWSON V. RECOVERY INNOVATIONS 9
“Satisfaction of any one test is sufficient to find state action,
so long as no countervailing factor exists.” Id. “Whether
these different tests are actually different in operation or
simply different ways of characterizing the necessarily fact-
bound inquiry that confronts the Court in such a situation
need not be resolved here.” Lugar v. Edmondson Oil Co.,
Inc., 457 U.S. 922, 939 (1982).
“The public function test is satisfied only on a showing
that the function at issue is ‘both traditionally and
exclusively governmental.’” Kirtley, 326 F.3d at 1093(quoting Lee v. Katz, 276 F.3d 550, 555 (9th Cir. 2002)).
The close nexus and joint action tests may be satisfied where
the court finds “a sufficiently close nexus between the state
and the private actor ‘so that the action of the latter may be
fairly treated as that of the State itself,’” or where the State
has “so far insinuated into a position of interdependence with
the [private party] that it was a joint participant in the
enterprise.” Jensen, 222 F.3d at 575–58 (quoting Jackson v.
Metro. Edison Co., 419 U.S. 345, 350, 357–58 (1974)).
Governmental compulsion or coercion may exist where the
State “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.” Blum
v. Yaretsky, 457 U.S. 991, 1004 (1982).
At bottom, the inquiry is always whether the defendant
has “exercised power ‘possessed by virtue of state law and
made possible only because the wrongdoer is clothed with
the authority of state law.’” West v. Atkins, 487 U.S. 42, 49
(1988) (quoting United States v. Classic, 313 U.S. 299, 326
(1941)).
10 RAWSON V. RECOVERY INNOVATIONS
III.
Before we proceed with our full analysis, it is appropriate
to explain why we do not apply the color of law test as
articulated by the district court. The district court analyzed
the issue before us under a species of the close nexus/joint
action test purportedly applicable specifically to medical
professionals. Derived from language in Jensen, 222 F.3d at
575, the district court’s test asked whether state actors
overrode the independent professional medical judgment of
the Defendants. The district court analyzed the
communications between Defendants and the County
prosecutor and concluded that none of the prosecutor’s
statements were the cause of any decisions made by
Defendants relating to treatment or detention. Accordingly,
the district court concluded that the prosecutor did not
override the Defendants’ medical judgment, and that
Defendants therefore did not act under color of state law.
A.
The origins of the district court’s analysis lie in the
Supreme Court’s decision in Blum v. Yaretsky, 457 U.S. 991(1982). In Blum, the Supreme Court held that state Medicaid
administrators were not liable under § 1983 for decisions
made by privately owned and operated nursing homes to
discharge Medicaid patients without notice or hearing. Id.
at 993, 1003. The Court noted that the case before it was
“obviously different” from cases where (as in our case) the
defendant is the nominally private party, but found that such
cases nevertheless “shed light upon the analysis necessary to
resolve the present case.” Id. at 1003–04. The Court
interpreted such cases as “assur[ing] that constitutional
standards are invoked only when it can be said that the State
is responsible for the specific conduct of which the plaintiff
complains.” Id. at 1004.
RAWSON V. RECOVERY INNOVATIONS 11
The Court concluded that the state Medicaid
administrators were not “responsible” for the nursing
homes’ discharge decisions. Id. at 1005. 4 While the state
administrators responded to the discharges by adjusting
Medicaid benefits, the discharge decisions themselves were
made by the physicians and nursing home administrators
alone. Id. There was “no suggestion that those decisions
were influenced in any degree by the State’s obligation to
adjust benefits.” Id. The Court rejected the argument that
the State’s requirement that nursing homes fill out placement
forms should change its analysis. Id. at 1008. The relevant
regulations did “not require the nursing homes to rely on the
forms” in making discharge decisions. Id. Rather, the
discharge decisions “ultimately turn[ed] on medical
judgments made by private parties according to professional
standards that are not established by the State.” Id. The
Court noted that if it had been the case that the state
“affirmatively commands” the summary discharge or
transfer of Medicaid patients who are thought to be
inappropriately placed in the nursing facilities, “we would
have a different question before us.” Id. at 1005.
A few years later, the Court clarified the reach of Blum’s
professional judgment analysis in West v. Atkins, 487 U.S.
42 (1988). West involved a private contract physician
rendering treatment services for inmates at a state prison,
whom the Court ultimately concluded was acting under color
of state law. Id. at 43, 57. Reviewing a Fourth Circuit
decision that had concluded that the physician did not act
under color of state law because he applied his independent
4
The Court held that state subsidization of a private facility is
insufficient to convert that facility’s actions into state action, even
though in this case Medicaid was paying the expenses of more than 90%
of the patients. Id. at 1011.
12 RAWSON V. RECOVERY INNOVATIONS
professional medical judgment, the Court clarified that “‘the
exercise of . . . independent professional judgment,’ is not,
as the Court of Appeals suggested, ‘the primary test.’” Id.
at 52 n.10 (alteration, internal quotation marks, and citation
omitted); see also id. at 52 (“Defendants are not removed
from the purview of § 1983 simply because they are
professionals acting in accordance with professional
discretion and judgment.”). Instead, the Court looked to
factors such as the State’s constitutional duty to provide
adequate medical care to those it has incarcerated, id. at 54,
the physician’s reliance on state authority to treat the
plaintiff, id. at 55, the necessity of the physician cooperating
with prison management, id. at 51, and the inability of the
incarcerated plaintiff to access other medical care of his own
choosing, id. at 55. The Court concluded that neither Blum,
nor the then-recent decision in Rendell-Baker v. Kohn, 5
dictated that a physician who otherwise should be found to
be acting under color of state law “does not act under color
of state law merely because he renders medical care in
accordance with professional obligations.” Id. at 52 n.10.
We previously considered the application of Blum in the
context of involuntary civil commitment in Jensen v. Lane
County, 222 F.3d 570 (9th Cir. 2000). Jensen concerned a
private contract psychiatrist in Oregon who participated in
the initial emergency detention of the plaintiff for mental
health evaluation, and whom we ultimately concluded was
acting under color of state law under the close nexus/joint
action test. Id. at 575–76. The plaintiff’s detention had been
initiated by police and was first reviewed by a county mental
health specialist, who forwarded the case to the defendant
5
457 U.S. 830 (1982). In Rendell-Baker, the Court concluded that
the discharge decisions of a privately owned and operated school for
maladjusted high school students were not state action. Id. at 842.
RAWSON V. RECOVERY INNOVATIONS 13
contract psychiatrist (Dr. Robbins) and a second county
mental health specialist. Id. at 572–73. Without personally
examining the plaintiff, Dr. Robbins signed an order
authorizing up to five days of detention for evaluation. Id.
at 573. The plaintiff would be held at the county psychiatric
hospital, for which Dr. Robbins’ private practice group
helped develop the mental health policies. Id. at 573, 575.
Based on his subsequent personal examinations, Dr. Robbins
would have released the plaintiff by day three. Id. at 573.
However, the plaintiff was held the maximum five days until
the second county mental health specialist completed his
investigation and concluded that there was insufficient
evidence upon which to pursue further detention. Id.
We found Blum to be “instructive in this case, but not
controlling.” Id. at 575. We acknowledged that in
Dr. Robbins’ circumstances, “by contract and in practice,”
the committing physician must exercise “medical
judgment.” Id. However, we concluded that “[t]he real issue
here is whether the state’s involvement in the decision-
making process rises to a level that overrides the ‘purely
medical judgment’ rationale of Blum.” Id. We concluded
that “[t]he record is clear that Dr. Robbins and the County
through its employees have undertaken a complex and
deeply intertwined process of evaluating and detaining
individuals who are believed to be mentally ill and a danger
to themselves or others.” Id. We thus concluded that “the
state has so deeply insinuated itself into this process” that
“Dr. Robbins’ conduct constituted state action” under the
close nexus/joint action test. Id. at 575–76. The fact that
Dr. Robbins may have applied his independent medical
judgment to any particular decision did not insulate him
from a finding of state action.
14 RAWSON V. RECOVERY INNOVATIONS
B.
The district court here applied a specific interpretation of
our Jensen opinion articulated by another district court in
Hood v. King Cty., No. C15-828RSL, 2017 WL 979024(W.D. Wash. Mar. 14, 2017), aff’d sub nom. Hood v. Cty. of
King, 743 F. App’x 79 (9th Cir. 2018). As here, Hood
involved nominally private institutions involved in the
involuntary commitment process pursuant to Washington’s
ITA. 6 The district court in Hood interpreted Jensen as
premised on the conclusion that “the state’s involvement in
the decision-making process overrode the private provider’s
‘purely medical judgment.’” Id. at *12 (emphasis added).
The court concluded that “[t]he facts here reveal sustained
and routine cooperation between King County and the
hospitals, but they do not show that the county’s
involvement overrode the hospital staff’s medical judgment
such that the hospitals’ actions can fairly be treated as those
of the government.” Id. at *13. 7
6
However, Hood concerned actions taken during an initial 72-hour
commitment for emergency evaluation, which distinguishes it from the
case before us. See 2017 WL 979024, at *3.
7
We affirmed Hood in an unpublished memorandum disposition,
but we did not expressly endorse the district court’s “overrode the . . .
medical judgment” test. 2017 WL 979024 at *12; see 743 F. App’x
at 81. We agreed with the district court that the private hospital’s
employees had “evaluated Hood and developed a course of action based
on their ‘medical judgments’ and ‘according to professional standards,’”
id. (quoting Blum, 457 U.S. at 1008), but we also relied more generally
on Jensen’s language that the defendant and the county had engaged in
a “complex and deeply intertwined process of evaluating and detaining
individuals,” id. (quoting Jensen, 222 F.3d at 575), which we found
lacking in Hood.
RAWSON V. RECOVERY INNOVATIONS 15
The parties dispute whether Hood’s test is a fair
interpretation of Jensen or Blum. We observe first that
neither Jensen nor Blum suggested that the exercise of
independent medical judgment is dispositive of the color of
state law inquiry. Both cases undertook a close, fact-
intensive analysis in which the exercise of professional
judgment was only one factor. This approach was consistent
with Supreme Court precedents telling us that the color of
state law “criteria lack rigid simplicity,” and “no one fact can
function as a necessary condition across the board.”
Brentwood Acad., 531 U.S. at 295–96. Moreover, West held
that “‘the exercise of . . . independent professional
judgment,’ is not . . . ‘the primary test.’” 487 U.S. at 52 n.10
(alteration and citation omitted).
Additionally, we did not actually ask in Jensen whether
state actors “overrode” the defendant’s “purely medical
judgment.” Our exact language was: “The real issue here is
whether the state’s involvement in the decision-making
process rises to a level that overrides the ‘purely medical
judgment’ rationale of Blum.” Jensen, 222 F.3d at 575(emphasis added). Essentially, our question was whether the
state’s involvement in the conduct at issue provided
sufficient reason to find state action, notwithstanding the
“countervailing reason” of some purely medical judgment.
Brentwood Acad., 531 U.S. at 295–96.
A finding that individual state actors or other state
requirements literally “overrode” a nominally private
defendant’s independent judgment might very well provide
relevant information. But it is a mistake to focus too
narrowly on this question.
16 RAWSON V. RECOVERY INNOVATIONS
IV.
With the foregoing clarification, we consider the full
factual context of this case, paying particular attention to the
facts that played a material role in previous decisions. We
conclude that the facts in this case show that the Defendants
acted under color of state law. 8
A.
The Supreme Court has recognized that private parties
may act under color of state law when they exercise powers
traditionally held by the state. As noted above, the Supreme
Court in West v. Atkins, 487 U.S. 42 (1988) held that a
private contract physician rendering treatment services for
prisoners at a state prison acted under color of law. Id. at 57.
Part of the Court’s reasoning was that any deprivation
effected by the private contract physician would be
8
Rawson argues that Defendants acted under color of law under the
“public function” test, contending that the relevant provisions of the
Washington Code of 1881 and 1915 demonstrate that involuntary
commitment was an exclusively governmental function in Washington
prior to the passage of the ITA in 1973. “While many functions have
been traditionally performed by governments, very few have been
‘exclusively reserved to the State.’” Flagg Bros., 436 U.S. at 158
(quoting Jackson, 419 U.S. at 352). We have not previously addressed
whether nominally private medical professionals involved in longer
term, court-ordered involuntary commitment perform a public function,
either in general terms or specifically in the State of Washington. See
Jensen, 222 F.3d at 574–75 (discussing courts’ application of the public
function test to the initial phase of committing someone for no more than
a few days for emergency evaluation) (citing Doe v. Rosenberg, 996 F.
Supp. 343, 349 (S.D.N.Y. 1998) (collecting cases)). However, given that
the historical evidence was not directly evaluated by the district court,
and that the remainder of our analysis is sufficient to support a judgment
in Rawson’s favor, we decline to resolve the historical exclusivity
question.
RAWSON V. RECOVERY INNOVATIONS 17
necessarily “caused, in the sense relevant for state-action
inquiry, by the State’s exercise of its right to punish [the
plaintiff] by incarceration and to deny him a venue
independent of the State to obtain needed medical care.” Id.
at 55.
As in West, any deprivation effected by Defendants here
was in some sense caused by the State’s exercise of its right,
pursuant to both its police powers and parens patriae
powers, to deprive Rawson of his liberty for an extended
period of involuntary civil commitment. See RCW
§ 71.05.010 (2020) (“The provisions of this chapter . . . are
intended by the legislature . . . [t]o protect the health and
safety of persons suffering from behavioral health disorders
and to protect public safety through use of the parens patriae
and police powers of the state.”); Addington v. Texas,
441 U.S. 418, 426 (1979) (“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.”). 9
In that sense, Defendants were “clothed with the
authority of state law” when they detained and forcibly
treated Rawson beyond the initial 72-hour emergency
evaluation period. West, 487 U.S. at 49 (quoting Classic,
313 U.S. at 326). Thus, under West, if Defendants “misused
[their] power by demonstrating deliberate indifference to”
9
See also Beltran-Serrano v. City of Tacoma, 442 P.3d 608, 614 n.9
(Wash. 2019) (referring to the “detention of a person suffering from
mental illness” as a “law enforcement related activit[y]”); Developments
in the Law, Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190,
1207–12, 1222–23 (1974) (describing the origins of the parens patriae
and police powers relating to the mentally ill).
18 RAWSON V. RECOVERY INNOVATIONS
Rawson’s rights to liberty, refusal of treatment, and/or due
process, “the resultant deprivation was caused, in the sense
relevant for state-action inquiry, by the State’s exercise of its
right to” civilly commit Rawson for purposes of protecting
both the public and Rawson himself. Id. at 55. 10 These facts,
in light of West, weigh in favor of finding that Defendants
acted under color of state law.
B.
The Supreme Court has also held that private parties may
act under color of state law when they perform actions under
which the state owes constitutional obligations to those
affected. The Court reasoned in West that the State has an
Eighth Amendment obligation “to provide adequate medical
care to those whom it has incarcerated,” and that the State
10
West did not articulate which of the four color of law “tests,” if
any, its reasoning pertained to. Cf. Lugar, 457 U.S. at 939 (observing
that it remains unclear “[w]hether these different tests are actually
different”). In a now-vacated opinion, we previously assumed that West
was decided under the “public function” test. Pollard v. The GEO Grp.,
Inc., 629 F.3d 843, 856 (9th Cir. 2010), rev’d sub nom. Minneci v.
Pollard, 565 U.S. 118 (2012). However, that test as traditionally
formulated requires close scrutiny of historical exclusivity, see Flagg
Bros. v. Brooks, 436 U.S. 149, 158 (1978), and West did not analyze
historical exclusivity at all. Indeed, the Court later observed that private
contractors “were heavily involved in prison management during the
19th century.” Richardson v. McKnight, 521 U.S. 399, 405 (1997). But
see Pollard, 629 F.3d at 857 (reasoning that the power of incarceration
was exclusively governmental even if prison management was not). For
purposes of this opinion, we find it unnecessary to peg West to one of
our four recognized tests. Whether understood as undertaking a “public
function” analysis, or a more open-ended “close nexus” inquiry with the
greater the role of state authority (and/or state duties, as discussed in the
subsequent subsection), the greater the nexus with the State, subject to
countervailing considerations, see Brentwood Acad., 531 U.S. at 295–
96, West unquestionably supports a finding of state action here.
RAWSON V. RECOVERY INNOVATIONS 19
employs private contract physicians, and relies on their
professional judgment, to fulfill this obligation. Id. at 54–
55. 11
Similarly here, the State has a Fourteenth Amendment
obligation toward those whom it has ordered involuntarily
committed. See Addington, 441 U.S. at 425 (“This Court
repeatedly has recognized that civil commitment for any
purpose constitutes a significant deprivation of liberty that
requires due process protection.”). In the now-vacated
Pollard opinion, where we held that employees of a
privately-operated prison acted under color of state law, we
rejected the notion that “by adding an additional layer, the
government can contract away its constitutional duties” by
having private actors rather than state actors perform some
of the work. See Pollard, 629 F.3d at 856 (quoting Holly v.
Scott, 434 F.3d 287, 299 n.1 (4th Cir. 2006) (Motz, J.,
concurring in the judgment)). Accordingly, the State’s
particular Fourteenth Amendment duties toward persons
involuntarily committed weighs toward a finding of state
action in this case.
11
Both Blum and Jackson also recognized the relevance of state
duties regarding the care or service at issue. In Blum, the Court noted
that although the relevant state constitutional provisions “authorize[d]
the legislature to provide funds for the care of the needy,” the state
constitution did not “mandate the provision of any particular care, much
less long-term nursing care.” 457 U.S. at 1011. In Jackson, the Court
noted that while the state had imposed a duty on regulated utilities to
furnish service, the state itself had no duty to furnish service. 419 U.S.
at 353. In both cases, the Court made these observations in the context
of rejecting a “public function” theory of state action. In accordance with
the preceding footnote, we find the Court’s concern with state duties
relevant to the “close nexus” inquiry as well.
20 RAWSON V. RECOVERY INNOVATIONS
C.
We have recognized that private parties may act under
color of state law when the state significantly involves itself
in the private parties’ actions and decisionmaking at issue.
In Jensen, the defendant private physician was part of a team
of mental health professionals that included individuals
acting in their capacity as county employees. 222 F.3d
at 575. That team was jointly responsible for making the
medical determinations relevant to the duration of the
plaintiff’s emergency detention. Id. We concluded that the
defendant and the county employees were together involved
in a “complex and deeply intertwined process” that satisfied
Jackson’s standard for whether the State has “so far
insinuated into a position of interdependence with the
[private party] that it was a joint participant in the
enterprise.” Id. (quoting Jackson, 419 U.S. at 357–58); see
also id. (“We are convinced that the state has so deeply
insinuated itself into this process that there is ‘a sufficiently
close nexus between the State and the challenged action of
the [defendant] so that the action of the latter may be fairly
treated as that of the State itself.’” (quoting Jackson,
419 U.S. at 350)).
With respect to the conduct challenged here, Defendants
did not work in coordination with mental health
professionals acting in their capacity as county or state
employees. 12 However, mental health professionals were
not the only relevant actors. Here, the county prosecutor
12
However, we note that RII’s medical director at Lakewood,
Dr. Halarnakar, was a full-time state employee at Western State
Hospital. The record before us does not reveal whether or the extent to
which Western State Hospital, through Dr. Halarnakar, may therefore
have been involved in the administration of RII’s Lakewood facility.
RAWSON V. RECOVERY INNOVATIONS 21
played an outsized role in the duration of Rawson’s
detention, particularly during the pendency of Rawson’s jury
trial on the 90-day petition.
In preparation for the jury trial, Dr. Halarnakar and
French communicated extensively with the prosecutor
regarding discharge possibilities, current treatment methods,
the strength of the evidence against Rawson, and the theory
to argue to the jury. The evidence even suggests that the
prosecutor altered Dr. Halarnakar’s medical diagnosis—
from “likelihood of serious harm” to “gravely disabled”—
after exposing Defendants’ lack of evidence for the former
and proposing the latter. Regardless of whether the
prosecutor “overrode” any particular decision
Dr. Halarnakar otherwise would have made, the evidence at
minimum shows that the prosecutor was heavily involved in
the decisionmaking process regarding Rawson’s detention,
diagnosis, and treatment.
Defendants attempt to explain away their coordination
with the prosecutor by arguing that the ITA gives them no
choice. This argument is unavailing. The ITA’s mandate
that civil commitment petitions be argued only by the county
prosecutor (or state attorney general), see RCW § 71.05.130,
only strengthens the conclusion that the State is a joint
participant in this enterprise. The ITA itself insinuates the
State into the process of involuntary civil commitment at
issue here, regardless of whether the treatment facility is
nominally public or private. To conclude that Defendants
act under color of state law within this process does not cast
blame on them. It simply charges Defendants with meeting
the constitutional standards applicable to those whose
actions are “made possible only because [they are] clothed
with the authority of state law.” West, 487 U.S. at 49(quoting Classic, 313 U.S. at 326).
22 RAWSON V. RECOVERY INNOVATIONS
Defendants also argue that the prosecutor’s role here is
analogous to the public defender in Polk County v. Dodson,
454 U.S. 312 (1981), and therefore that the prosecutor is not
a state actor when prosecuting commitment petitions. We
disagree. The prosecutor here is not advocating for the
private interests of the hospital or mental health
professionals. Neither the prosecutor’s nor Defendants’
“professional and ethical obligation[s] . . . set [them] in
conflict with the State.” West, 487 U.S. at 51. Instead,
Defendants cooperate with the executive arm of the State to
further the State’s interest in protecting both the public and
the patient. See id.Accordingly, the role played by the county prosecutor
here, in practice and by statute, supports a finding of state
action by the Defendants.
D.
The Supreme Court has also recognized that private
parties may act under color of state law when the state
authorized or approved the private parties’ actions. In
Jackson v. Metropolitan Edison Company, 419 U.S. 345(1974), the Court held that a privately owned and operated
utility, despite extensive state regulation and a state-
protected monopoly, did not commit state action when it
terminated electrical service to the plaintiff without notice or
hearing. Id. at 346, 358–59. The Court explained that
extensive state regulation is not enough to create state action,
but rather that “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,
358.
RAWSON V. RECOVERY INNOVATIONS 23
The Court devoted particular attention to rejecting the
argument that the State had “specifically authorized and
approved” the challenged termination practice. Id. at 354.
The Court observed that while the utility was required to file
its general tariff with the public utility commission, which
included a provision reserving the right to terminate service
for nonpayment, it was unclear whether the commission
actually had the power to disapprove that provision. Id.
at 355. In addition, the tariff became effective when the
commission took no action to disapprove it, rather than after
a hearing and commission approval. Id. at 355, 357. The
Court distinguished Public Utilities Commission v. Pollak,
343 U.S. 451 (1952), where the public utilities commission
had commenced its own investigation of a practice and given
its imprimatur to the practice after a full hearing. Jackson,
419 U.S. at 356–57. In the case at hand, “there was no such
imprimatur placed on the practice” by the State. Id. at 357.
Here, much of the challenged activity received clear state
imprimatur. Medical providers in Washington can neither
detain nor forcibly treat a mental health patient past an initial
72-hour emergency evaluation period without a court order.
See RCW §§ 71.05.153, .210. In contrast to the public
utilities commission in Jackson, the reviewing state court
here unquestionably has the power to disapprove a petition
for involuntary commitment and treatment. See id.
§ 71.05.237. In fact, the state court approved the 14-day
petition in this case.
Accordingly, the role of state authorization and approval
weighs in favor of a finding of state action in this case.
E.
The Supreme Court has also reasoned that state action
may lie in private conduct that is “affirmatively
24 RAWSON V. RECOVERY INNOVATIONS
commanded” by state protocols. In Blum, for example, the
Supreme Court highlighted that if it had been the case that
the State “affirmatively commands” nursing homes to
summarily discharge or transfer Medicaid patients thought
to be inappropriately placed there, “we would have a
different question before us.” 457 U.S. at 1005. Here, in
multiple respects, we have that different question.
Defendants are charged with applying state protocols
and criteria in making evaluation and commitment
recommendations, and are “affirmatively command[ed]” by
the state to render treatment without informed consent in
many circumstances. Id.; see RCW §§ 71.05.210, .214. 13
These state requirements and protocols that command
private action weigh in favor of finding that Defendants
acted under color of state law in this case.
F.
The Supreme Court has also found state action may exist
when private parties operate on public property or in public
facilities. In Burton v. Wilmington Parking Authority,
365 U.S. 715 (1961), the Supreme Court found that a
privately owned and operated restaurant that leased its
premises from a municipal parking authority committed
13
RCW § 71.05.210 provides that a detained individual “shall
receive such treatment and care as his or her condition requires,”
regardless of whether that individual consents to treatment, except in
some circumstances regarding antipsychotic medications within
24 hours of a trial or hearing. RCW § 71.05.214 provides that “[t]he
department shall develop statewide protocols to be utilized by
professional persons and [DMHPs] in administration of this chapter . . .
The protocols shall provide uniform development and application of
criteria in evaluation and commitment recommendations, of persons who
have, or are alleged to have, mental disorders and are subject to this
chapter.”
RAWSON V. RECOVERY INNOVATIONS 25
state action when it refused service to the plaintiff because
he was a “Negro.” Id. at 716–17. The Court noted that the
parking authority provided the premises, the utilities, and the
repair work to the restaurant, as well as tax-exempt status.
Id. at 720. The Court also noted that the building was clearly
marked as a public building. Id. In addition, the Court noted
that the financial success of the restaurant, which was
purportedly enhanced by segregation, was essential to the
financing of the public parking structure. Id. at 723–24.
The Court concluded that, by its “inaction” of failing to
require nondiscriminatory service as a term of the lease, the
parking authority had “not only made itself a party to the
refusal of service, but ha[d] elected to place its power,
property and prestige behind the admitted discrimination.”
Id. at 725. The parking authority, “and through it the State,”
had “so far insinuated itself into a position of
interdependence” with the restaurant that the restaurant’s
discrimination constituted state action under a “joint
participant” theory. Id. Highlighting the factually bound
nature of its decision, the Court limited its holding to cases
where “a State leases public property in the manner and for
the purpose shown to have been the case here.” Id. at 726.
This case resembles Burton in that RII was leasing its
Lakewood premises from the State on the grounds of
Western State Hospital, which was not only clearly marked
as a state hospital but was also historic and recognizable. See
Burton, 365 U.S. at 726; see also Jackson, 419 U.S. at 358(finding that a particularly salient aspect of Burton was that
the nominally private defendant paid money to the State not
just as a common taxpayer, but as a “lessee[] of public
property”). Unlike in Burton, the record here does not
indicate whether Western State Hospital is in any sense
financially dependent upon the business of RII’s Lakewood
26 RAWSON V. RECOVERY INNOVATIONS
facility. See Burton, 365 U.S. at 723–24. Presumably,
however, the State receives some rent from its lessee. While
it is unclear how closely the facts of a particular case must
match Burton to find state action on that basis alone, 14
Burton remains instructive and there are enough similarities
here to consider the leasing of state property as a factor
weighing in favor of finding state action.
Conclusion
Although Defendants were nominally private actors,
exercised professional medical judgment, and were not
statutorily required to petition for additional commitment,15
on balance, the facts weigh toward a conclusion that they
were nevertheless state actors.
As in Jensen, the State here has “undertaken a complex
and deeply intertwined process [with private actors] of
evaluating and detaining individuals” for long-term
commitments, and therefore, “the state has so deeply
insinuated itself into this process” that “[the private actors’]
conduct constituted state action.” See Jensen, 222 F.3d
at 575. Just as West found state action with private contract
14
Some courts have described the Supreme Court’s later American
Manufacturers Mutual Insurance v. Sullivan decision as casting doubt
on Burton, noting that the Court referred to Burton as an “early” case
that promulgated a “vague” standard. 526 U.S. 40, 57 (1999); see, e.g.,
Crissman v. Dover Downs Ent. Inc., 289 F.3d 231 (3d Cir. 2002) (en
banc) (limiting the reach of Burton to cases that replicate Burton’s facts,
rejecting broad “symbiotic relationship” test). However, Burton remains
good law, and is relevant here because RII is in fact a “lessee[] of public
property.” Jackson, 419 U.S. at 358.
15
See Blum, 457 U.S. at 1006 (“[T]he physicians, and not the forms,
make the decision.”). However, Defendants were required to apply state-
promulgated criteria. See RCW § 71.05.214.
RAWSON V. RECOVERY INNOVATIONS 27
physicians rendering treatment services for prisoners at a
state prison, we hold the same under the arrangement the
State has devised for involving private actors in long-term
involuntary commitments. Defendants were not merely
subject to extensive regulation or subsidized by state funds.
See Blum, 457 U.S. at 1011; Jackson, 419 U.S. at 358.
Given the necessity of state imprimatur to continue
detention, the affirmative statutory command to render
involuntary treatment, the reliance on the State’s police and
parens patriae powers, the applicable constitutional duties,
the extensive involvement of the county prosecutor, and the
leasing of their premises from the state hospital, we conclude
that “a sufficiently close nexus between the state and the
private actor” existed here “so that the action of the latter
may be fairly treated as that of the State itself.” See Jensen,
222 F.3d at 575 (quoting Jackson, 419 U.S. at 350).
We therefore conclude that Defendants were acting
under color of state law with respect to the actions for which
Rawson attempts to hold them liable. We reverse the district
court’s grant of summary judgment to the contrary and
remand for further proceedings.
REVERSED and REMANDED.