William Allen Spencer v. Bumyong Lee, M.D., and St. Elizabeth Hospital , 864 F.2d 1376 ( 1989 )

POSNER, Circuit Judge.

Do a private physician and a private hospital act under color of state law, and therefore lay themselves open to suit under 42 U.S.C. § 1983, when they commit a mentally disturbed person? Adhering to Byrne v. Kysar, 347 F.2d 734 (7th Cir.1965), and Duzynski v. Nosal, 324 F.2d 924, 929-31 (7th Cir.1963), we hold they do not. The other courts that have addressed this issue agree with our position, see Hall v. Quillen, 631 F.2d 1154 (4th Cir.1980), and cases cited there, with the exception of the plurality opinion in Burch v. Apalachee Community Mental Health Services, Inc., 840 F.2d 797, 803 (11th Cir.1988) (en banc), which however devoted only three sentences to the issue and cited no authority for its conclusion.

The plaintiff, William Spencer, appeals from the dismissal of his complaint for failure to state a claim, so we must proceed on the assumption that the facts alleged in the complaint are true. In 1982 and 1984, Spencer’s physician, defendant Bumyong Lee, authorized Spencer to be involuntarily committed to St. Elizabeth Hospital. On the second of these occasions the police were called in to take Spencer to the hospital against his will, and on the fourth day of his five days of hospitalization Dr. Lee directed a nurse to inject Spencer with a drug. Spencer protested that he was allergic to the drug, but he was injected anyway and sustained bodily injury. Spencer seeks damages under 42 U.S.C. § 1983 for the deprivation of his liberty without due process of law and for the reckless infliction of injury during his second confinement. Pendent counts seek damages under the common law of Illinois for false imprisonment and malpractice. Spencer had no lawyer in the district court, and his complaint is barely coherent. The district court ordered him to furnish a more definite statement of his claim. In response, Spencer submitted medical records which indicate that Dr. Lee was his regular physician at the time of the commitments; that the first commitment was for attempted suicide and was voluntary; that his father signed the petition for the second commitment; and that another doctor — not Dr. Lee — signed the medical certificate for that commitment. These documents depict Spencer as a schizophrenic with suicidal tendencies who has been in and out of mental institutions many times. Among his delusions are that “all winter he was sick until this time when the police starting a kind of prostitution operation also near motel where he is staying, they have been running a chain saw, the chain saw produced hormones in his testes and he couldn’t sit still.” This is from one of Dr. Lee’s reports but is corroborated by Spencer’s request in the district court for an injunction that would “bar St. Elizabeth hospital from damaging my hearing with circular saws.” However, the district judge did not rely on any of the medical records — which Spencer did not vouch for (he just produced them in response to the judge’s order) and has had no chance to explain (away) — and we won’t rely on them either.

The casting of this lawsuit as one for the redress of a violation of the Fourteenth Amendment’s due process clause, which forbids states to deprive persons of life, liberty, or property without due process of law, would certainly strike the innocent eye as puzzling. The due process clause is directed to action by state government; 42 U.S.C. ■ § 1983 creates a remedy against persons acting under color of state law, such as police officers. The defendants in this case are not public employees. They provide no services under contract to the state government or any of its subdivisions. They do not participate (so far as is relevant to this case) in any state or other governmental programs. A purely private physician and a purely private hospital are alleged to have confined the plaintiff against his will and to have injured him by improper medical treatment. These are classic allegations of false imprisonment and malpractice — torts for which the common law of Illinois provides remedies that the plaintiff does not suggest are inadequate.

In arguing that the defendants are nonetheless state actors for purposes of the Fourteenth Amendment and section 1983, the plaintiff relies on the Illinois Mental Health and Developmental Disabilities Code, which provides that “when a person is asserted to be subject to involuntary admission and in such a condition that immediate hospitalization is necessary for the protection of such person or others from physical harm, any person 18 years of age or older may present a [commitment] petition to the facility director of a mental health facility in the county where the respondent resides or is present.” Ill.Rev. Stat. ch. 91V2, § 3-601(a). The petition must include much factual detail and be accompanied by a certificate, signed by a physician or other qualified professional, stating that the respondent requires immediate hospitalization and that the physician has examined the respondent within the previous 72 hours, and setting forth the factual basis for the physician’s opinion that immediate hospitalization is required. §§ 3-601(b), 3-602. Within 24 hours of the respondent’s admission to the mental health facility, the facility must forward the relevant papers to the local state court, which must in turn hold a hearing within 5 days (exclusive of weekends and holidays— so the longest possible prehearing commitment is 8 days) on whether there are grounds for continuing to hold the respondent. § 3-611.

This complex of provisions, Spencer argues, operates to “deputize” private physicians such as Dr. Lee and private hospitals such as St. Elizabeth to carry out the exclusive state function of committing the mentally ill. Compare Del’s Big Saver Foods, Inc. v. Carpenter Cook, Inc., 795 F.2d 1344, 1346 (7th Cir.1986). For a maximum of eight days these ostensibly private actors are empowered by the Mental Health Code to hold and treat people against their will. This power, Spencer concludes, is a state power that does not cease to be such merely because delegated to private persons.

If the State of Illinois ordered or encouraged private persons to commit the mentally ill, they would indeed be state actors, for they would be doing the state’s business. See our recent discussion in United States v. Koenig, 856 F.2d 843, 847-51 (7th Cir.1988). It would make no difference that they were not technically employees of the state. Or if the state decided to contract out the provision of state highway police or the administration of state prisons to private entrepreneurs of security and correctional services, the entrepreneurs and their employees would (we may assume) be state actors. The details of the contractual relationship between state agencies and the persons who actually implement state policy — whether those persons are state employees or independent contractors or the employees of independent contractors — are of no moment. In accordance with Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), we may further assume that if the state allowed a residential subdivision or high-rise apartment building to form its own de facto municipal government, that government would be an arm of the state for purposes of the Fourteenth Amendment, just as de jure municipal governments are; again the technicality of governmental employment would not control the case. The Fourteenth Amendment does not prescribe the structure of state government. United Beverage Co. v. Indiana Alcoholic Beverage Comm’n, 760 F.2d 155 (7th Cir.1985). Who does the state’s business is the state’s actor.

At the opposite extreme is the situation where the state decides to reduce the scope of government. Suppose the state owned a railroad, and decided to sell it to a private person. Would the new owner be deemed a state actor under the Constitution, on the ground that the state had “deputized” him to operate “its” railroad? He would not. The scope of government is not fixed; deregulation does not create a host of state actors in the private sector, like the moraine that marks the farthest advance of a glacier. Certain powers, however, are “traditionally the exclusive prerogative of the State,” and their exercise by private persons is state action. Blum v. Yaretsky, 457 U.S. 991, 1005, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982). Marsh can be understood in this light — as a case not of deregulation, but of the delegation of public powers to private actors.

We have to situate the present case in this grid. It is not a case of governmental encouragement or direction of private persons; and “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.” Blum v. Yaretsky, supra, 457 U.S. at 1004, 102 S.Ct. at 2786. See also Tunca v. Lutheran General Hospital, 844 F.2d 411, 414 (7th Cir.1988); Ezpeleta v. Sisters of Mercy Health Corp., 800 F.2d 119, 122 (7th Cir.1986). Spencer does not suggest that the relevant provisions of the Mental Health Code were enacted because the state wants to encourage commitments, any more than state repossession laws are passed because states want to encourage creditors to repossess their debtors’ goods. See Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). His argument is that the commitment of the mentally ill, like the arrest of criminal suspects, is so central and traditional a function of government that the state cannot limit its responsibility for performing the function. Any private individual who is empowered to commit a person to an institution against the person’s will is government, just as the "company town” in Marsh was a part of the government of Alabama, although a part that had been handed over to a private entity to administer.

Spencer is thus appealing — with support in the language of cases like Blum and in the outcome of Marsh — to the idea that governmental functions that have traditionally been the exclusive prerogative of government, usually because they involved a high degree of coercion, can be delegated but not abandoned. The treatment of the mentally disabled, however, as of the sick and infirm generally, is not such a function. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 2772, 73 L.Ed.2d 418 (1982); Musso v. Suriano, 586 F.2d 59, 63 (7th Cir.1978); Hoyt v. St. Mary’s Rehabilitation Center, 711 F.2d 864, 866 (8th Cir.1983); Taylor v. First Wyoming Bank, 707 F.2d 388 (9th Cir. 1983), and cases cited there. The issue here, it is true, is involuntary commitment rather than treatment. But the analogy that Spencer seeks to draw to arrest is inapt, since a citizen’s arrest is not subject to challenge under section 1983. Lee v. Town of Estes Park, 820 F.2d 1112 (10th Cir.1987); Carey v. Continental Airlines, Inc., 823 F.2d 1402, 1404 (10th Cir.1987); Bryant v. Donnell, 239 F.Supp. 681, 687 (W.D.Tenn.1965); cf. Griffin v. Maryland, 378 U.S. 130, 135, 84 S.Ct. 1770, 1772, 12 L.Ed.2d 754 (1964) (where this proposition seems to have been assumed). Nor is the exercise of self-defense, or the defense of property by evicting trespassers or repossessing chattels, state action, even though self-defense often and the defense of property sometimes involve a degree of force characteristic of police operations. There have been citizen arrests for as long as there have been public police — indeed much longer. In ancient Greece and Rome, and in England until the nineteenth century, most arrests and prosecutions were by private individuals. (Some crimes, e.g., shoplifting, are still privately prosecuted in England.) Arrest has never been an exclusively governmental function. Not all state-authorized coercion is government action.

This cannot be the end of the case. That Socrates was prosecuted by a private de-nouncer does not place the prosecution of crime in Illinois today outside the core of governmental functions. Every function performed by government has an analogue that was performed privately when government was rudimentary, or before there was government — for social order is older than government. The tradition that establishes a core of exclusive governmental functions does not reach back so far.

But history is relevant. The question we are trying to answer is whether a private person is doing the state’s business and should be treated as an employee or other formal agent of the state. So we ask, is there a tradition of treating civil commitment of the mentally disturbed as a governmental function and, if so, how well established is it? The brief and argument of Mr. Spencer’s distinguished counsel do not enlighten us on this question. At argument he said it would make no difference if Illinois had been following the procedure set forth in the current Mental Health Code for the last 200 years. But it would make some difference. It would tend to show, although it would not prove, that commitment had not been an exclusively public function, any more than transportation, or the removal of trespassers from one’s property, or the repossession of goods from a defaulting debtor are exclusively public functions — that almost a century before the enactment of the Fourteenth Amendment, private persons were doing what Spencer contends is the work of the state today even when done by private persons, such as Dr. Lee and St. Elizabeth Hospital.

The specific provisions of the Mental Health Code dealing with emergency commitment by private physicians to private hospitals are not 200 years old; they are less than 50 years old. See Revised Mental Health Act, art. 5, 1945 Ill.Laws 1011. But commitment has long been a private remedy, albeit one subject (like repossession, self-defense, citizen’s arrest, and other infringements on rights of liberty or property) to rigorous safeguards. Even public commitment in Illinois is private in a sense, because the state requires relatives of voluntarily and involuntarily committed mental patients alike to pay the cost of their upkeep in the state’s institutions, and it allows the involuntarily committed to be placed in private homes as well as public and private hospitals. See Ill.Rev.Stat. ch. 91V2, §§ 5-105, 5-115, 3-811; People v. Sharkey, 60 Ill.App.3d 257, 265, 17 Ill.Dec. 465, 470, 376 N.E.2d 464, 469 (1978). And long before the passage of the 1945 statute, the law of Illinois authorized the confinement of an insane person by private persons, for up to ten days, if he was a danger to himself or others. See Crawford v. Brown, 321 Ill. 305, 316, 151 N.E. 911, 915 (1926), interpreting the Act to Revise the Law in Relation to the Commitment and Detention of Lunatics, § 2, 1893 Ill.Laws 141.

Private commitment was not novel in 1893; nor was it invented in Illinois. According to Blackstone, writing in 1765, “On the first attack of lunacy, or other occasional insanity, while there may be hope of a speedy restitution of reason, it is usual to confine the unhappy objects in private custody under the direction of their nearest friends and relations.” 1 Commentaries on the Laws of England 305. Histories of the treatment of the insane focus on public institutions, but involuntary extrajudicial commitment to private institutions has long been commonplace. London’s notorious lunatic asylum, nicknamed “Bedlam,” was originally private; it was representative of private medieval institutions to which the insane were committed to have their demons exorcised. See Albert Deutsch, The Mentally Ill in America 15, 40, 62, 418-24 (2d ed. 1949). “When the early hospitals and asylums for the mentally ill sprang up, commitment could be effected with the greatest of ease.... The pauper and indigent insane might be summarily committed to the poorhouse, prison or hospital by friends or relatives or by order of public officials_” Id. at 420. See also 1 The Institutional Care of the Insane in the United States and Canada 81, 313-17 (Hurd ed. 1916); Bell, Treating the Mentally Ill 46-47 (1980).

The reasons for private commitment, as for self-defense, citizen’s arrests, and other private remedies, are intensely practical. If a person displays symptoms of acute and violent mental illness, his family or physician — in an appropriate case a passerby or other stranger — may have to act immediately to restrain him from harming himself or others, and there may be no public institution at hand. That is why the Illinois Mental Health Code allows private persons to commit to private (as well as to public) institutions. We do not know the circumstances in which Mr. Spencer was committed, but it appears that the first commitment was because he had tried to commit suicide, and let us assume this was indeed the reason. If his father and Dr. Lee and St. Elizabeth had had to initiate a judicial proceeding before committing him, he might have killed himself before they could obtain the necessary order. When family members commit a person who has just tried to kill himself, they do not, by virtue of this action, become state actors subject to suit under section 1983.

To allow family members, physicians, and other private persons to exercise the commitment power without safeguards, however, including a provision for a hearing eventually — and sooner rather than later — would be monstrous. If Spencer thinks the eight days allowed by Illinois law for confinement prior to hearing is too much, he can challenge the constitutionality of the statute, by analogy to Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). He has not done so. Indeed, he relies on the statute to make the defendants state actors. But a private commitment is no more state action than a citizen’s arrest, the repossession of chattels, or the ejection of trespassers is. The statutes authorizing or constraining these private activities may or may not be constitutional (Fuentes); the activities themselves remain private (Flagg Brothers—and see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 940, 102 S.Ct. 2744, 2755, 73 L.Ed.2d 482 (1982); Winterland Concessions Co. v. Trela, 735 F.2d 257, 262 (7th Cir.1984); Loyd v. Loyd, 731 F.2d 393, 398-99 (7th Cir.1984); Greco v. Guss, 775 F.2d 161, 164-67 (7th Cir.1985)). This conclusion has been reached with specific reference to a daughter’s use of a civil commitment statute to institutionalize her father so that he would not remarry, the court remarking that “armed with less process than would be necessary to seize a refrigerator, Texas peace officers dragged Dahl from his home and deposited him with Presbyterian Hospital in Dallas.” Dahl v. Akin, 630 F.2d 277, 279 (5th Cir.1980).

We are given some pause by the allegation in Spencer’s complaint of involvement by the local police: specifically that Dr. Lee had given Spencer the injection “After cau[s]ing a psychiactric [sic] emergency by dismissing me from St. Elizabeth Hospital and a false arrest by the Danville Police Department while seeking medical treatment.” None of Spencer’s numerous subsequent filings mentions the police; nowhere is it suggested that they conspired with the defendants, and he has named no police officers as defendants. It is possible that the police were called in to assist with one of Spencer’s commitments, though this does not seem to be what he is alleging. At all events, police assistance in the lawful exercise of self-help does not create a conspiracy with the private person exercising that self-help. Lugar v. Edmondson Oil Co., supra, 457 U.S. at 939 n. 21, 102 S.Ct. at 2755 n. 21; Gramenos v. Jewel Cos., 797 F.2d 432, 435-36 (7th Cir.1986); Greco v. Guss, supra, 775 F.2d at 167-68; Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1208 (7th Cir.1980). The citizen who makes a citizen’s arrest is not transformed into a state actor by handing over the arrested person to the police — indeed, if he fails to do so, the arrest is invalid and he is liable for false imprisonment.

The pressure to transform state common law torts into federal constitutional torts comes from the immunities and the damage ceilings that states frequently impose on suits against their public officials (see, e.g., Archie v. City of Racine, 847 F.2d 1211, 1227 (7th Cir.1988) (concurring opinion)), from a sense that state judges are sometimes unsympathetic to suits against the state, and from the availability of attorney’s fee awards in civil rights suits under 42 U.S.C. § 1988. Only the last of these considerations is present in a case such as this where the only defendants are private persons (or private institutions) not acting pursuant to formal judicial order. See Executive Commercial Services, Ltd. v. Daskalakis, 74 Ill.App.3d 760, 766, 31 Ill.Dec. 58, 62, 393 N.E.2d 1365, 1369 (1979). There is neither practical nor legal basis for this suit.

AFFIRMED.