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DAVENPORT v. ST. MARY'S HOSP.

April 28, 1986

KIM DAVENPORT
v.
SAINT MARY HOSPITAL, et al.



The opinion of the court was delivered by: LORD

 Plaintiff seeks relief for the alleged deprivation of her civil rights arising out of her involuntary commitment to St. Mary Hospital and the Philadelphia Psychiatric Center from April 29, 1983 to June 22, 1983. Plaintiff filed her original pro se complaint on September 21, 1984. Several of the defendants named in that complaint filed motions to dismiss. Plaintiff responded to some of those motions, then requested, and was granted, thirty days to secure an attorney to file an amended complaint on her behalf. Plaintiff was, however, unable to secure counsel within the time granted, and on April 12, 1985, she filed an amended pro se complaint.

 In her amended complaint, plaintiff states that her cause of action arises under article I, section 8, article IV, and the first, fourth, sixth, eighth and fourteenth amendments to the Constitution, and under federal statutes 42 U.S.C. §§ 1983, 1985(3) and 1986, 18 U.S.C. §§ 241 and 242, and 28 U.S.C. §§ 2201 and 2202. Plaintiff also alleges state law claims of assault and battery, medical malpractice, and intentional infliction of emotional distress, and requests that this court exercise pendent jurisdiction over these claims. Plaintiff names as defendants St. Mary Hospital (incorrectly designated as St. Mary's Hospital) and seven of the individuals who were involved in her involuntary commitment and hospitalization.

 Motions to dismiss plaintiff's amended complaint have been filed by six of the defendants. I will consider each of them in turn. Before turning to these motions, however, I will explain briefly for plaintiff's benefit why several of the constitutional and statutory provisions under which plaintiff states that her cause of action arises are not discussed in any of defendants' motions to dismiss and will not be discussed further by this court. A private individual cannot by filing a civil complaint bring criminal charges under 18 U.S.C. §§ 241 and 242. Article I, section 8, article IV, and the first, sixth and eighth amendments do not confer causes of action, either directly, through the fourteenth amendment, or through 42 U.S.C. § 1983, for the harms that plaintiff alleges she suffered. See Rennie v. Klein, 653 F.2d 836, 843-44 (3d Cir. 1981) (en banc) (discussing the constitutional basis for claims similar to those raised by plaintiff), vacated on other grounds, 458 U.S. 1119, 102 S. Ct. 3506, 73 L. Ed. 2d 1381 (1982). Finally, no substantive rights upon which plaintiff may request relief are created by 28 U.S.C. §§ 2201 and 2202.

 A. Officer Badge No. 3905's Motion to Dismiss

 Plaintiff has named as a defendant a Philadelphia police officer designated in her amended complaint as Officer Badge No. 3905. Plaintiff alleges that the sequence of events which ended in her involuntary commitment to two psychiatric hospitals began on April 29, 1983, when this officer forcibly took her into custody without a valid court order. The officer presently assigned badge No. 3905 has moved to dismiss plaintiff's claims against him. In support of his motion, defendant has submitted the affidavit of a personnel officer of the Philadelphia Police Department, who avers that no member of the Department was assigned badge No. 3905 on April 29, 1983.

 Under Federal Rule of Civil Procedure 41(a)(1), a plaintiff may dismiss an action without leave of court at any time before service by the adverse party of an answer or a motion for summary judgment, whichever first occurs. Because defendant submitted an affidavit in support of his motion to dismiss, and because I conclude that this affidavit is properly considered at this time rather than excluded, I must treat defendant's motion as one for summary judgment. Fed. R. Civ. P. 12(b). Therefore, plaintiff may no longer, as of right, dismiss her claims against Officer Badge No. 3905 without prejudice. See Fed. R. Civ. P. 41(a)(1); 5 J. Moore, J. Lucas & J. Wicker, Moore's Federal Practice para. 41.02[3] (2d ed. 1985). Dismissal must be by court order upon such terms and conditions as the court deems proper. Fed. R. Civ. P. 41(a) (2).

 As Officer Badge No. 3905 was improperly, albeit mistakenly, named as a defendant in this action, I deem it proper to dismiss plaintiff's claims against him with prejudice to her right to reinstitute suit against this officer. However, I do not deem it proper to preclude plaintiff from proceeding against the unknown officer who took her into custody. Therefore, plaintiff's claims against Officer Badge No. 3905 will be dismissed without prejudice to plaintiff's right to seek leave, under the procedures and requirements of Federal Rule of Civil Procedure 15, to join the officer who took her into custody in the present action, or to institute a new action against him.

 Plaintiff has moved, pursuant to Federal Rule of Civil Procedure 45, for an order compelling the production of documentary evidence to allow her to identify the officer who was driving van wagon No. 3905 when she was taken into custody. I will deny plaintiff's motion. A motion for an order to compel discovery is appropriate only after an opposing party has failed to comply with a discovery request made pursuant to specific provisions of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 37(a). If plaintiff wishes to conduct discovery, she must follow the procedures set forth in Rules 26 through 37. If plaintiff wishes, in connection with her discovery efforts, to obtain subpoenas under Rule 45, she must follow the procedures set forth therein. See Fed. R. Civ. P. 45(a).

 B. Hospital Defendants' Motions to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted

 Motions to dismiss plaintiff's amended complaint for failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6), have been filed by defendant St. Mary Hospital, defendants Hosten, Yardumian and Jaffe, each of whom is a physician associated with either St. Mary Hospital or the Philadelphia Psychiatric Center, and defendant Patton, a social worker at the Philadelphia Psychiatric Center (the "hospital defendants"). To the extent that the motions of two or more of these hospital defendants raise common issues, I will discuss them in combination rather than individually.

 1. Plaintiff's Claims under 42 U.S.C. § 1983

 All five of the hospital defendants have moved to dismiss plaintiff's claims under section 1983. 42 U.S.C. § 1983. Each argues, inter alia, that the hospital defendants are private actors and that plaintiff's allegations do not provide a factual basis upon which plaintiff might establish that these defendants acted under color of state law.

 In order to recover under section 1983, plaintiff must establish that the conduct of the hospital defendants which allegedly deprived her of federal rights is "fairly attributable to the state." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). The determination of when the conduct of private parties is converted into state action is "necessarily [a] fact-bound inquiry." Id. at 939. "'Only by sifting facts and weighing circumstances can the nonobvious involvement of the state in private conduct be attributed its true significance.'" Id. (quoting Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961)).

 In this muddled area of section 1983 law, it is often difficult to attribute the proper significance to facts and circumstances in determining whether private conduct may fairly be considered that of the state. The usual difficulties are compounded in this case, as plaintiff's rambling, pro se complaint is in many respects imprecise, vague and conclusory, making it a formidable task even to ascertain, let alone to sift and weigh, the pertinent facts and circumstances.

 Fortunately, though, I need not decide at this time whether plaintiff will ultimately prevail on the state action issue. Rather, in considering the hospital defendants' motions to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted, the issue before me is a limited one: whether "it appears beyond doubt that . . . plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Scheuer v. Rhodes, 416 U.S. 232, 236-37, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). In evaluating the sufficiency of plaintiff's allegations, I must hold her pro se complaint "to [a] less stringent standard[] than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam). Moreover, while plaintiff may be expected to know, and to plead with specificity, the injuries she has suffered, I cannot expect her to proffer detailed evidence establishing the "nonobvious involvement" of the state in her involuntary commitment and treatment, as this is the type of evidence that may well be developed only through discovery. See Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 68 (3d Cir. 1986).

 Plaintiff's allegations against the hospital defendants are as follows. Plaintiff alleges that from April 29 to June 22, 1983, defendants engaged in a conspiracy aimed at depriving her of the due process and equal protection of the laws of the Commonwealth of Pennsylvania and the United States. Amended Complaint at 4. She further alleges that through specific acts of conspiracy, defendants violated her right to privacy, held her in false imprisonment without a showing of probable cause, deprived her of the right to secure counsel during this false imprisonment, subjected her to cruel and unusual punishment, and, by denying her the due process and equal protection of the laws, held her at St. Mary Hospital and the Philadelphia Psychiatric Center until June 22, 1983. Id. para. 8, at 11.

 Somewhat more specifically, plaintiff alleges that defendant St. Mary Hospital and its agents intentionally and in bad faith isolated her, beat her, and, in violation of state law, injected her with psychotropic or antipsychotic drugs before she was examined by a physician to determine whether she was mentally disabled. Id. para. 6, at 7. Plaintiff alleges that this denied her the opportunity to have her emergency examination [under Pa. Stat. Ann. tit. 50, § 7302 (Purdon 1985), pursuant to which a person determined to be severely mentally disabled may be given immediate emergency treatment] conducted on the same basis as for other citizens. Amended Complaint para. 7, at 7.

 As to defendants Hosten and Yardumian, physicians associated with St. Mary Hospital, plaintiff alleges, inter alia, that they knew or reasonably should have known that she was injected with unprescribed drugs before being examined by a physician, that they neglected to investigate the same before conducting their examinations of her, and that they covered up the fact that her rights had been violated. Id. paras. 8-11, at 8. In addition, plaintiff alleges that these defendants failed to act in good faith and pursuant to the mandate of state law, in that they made false and superficial examinations of her for the purpose of holding her in false imprisonment at St. Mary Hospital. Id. para. 13, at 8-9. Further, she alleges that these defendants threatened, intimidated and coerced her, for the purpose of preventing her from objecting to her false imprisonment and availing herself of the due process of law, id. paras. 14-15, at 9, and that they caused her money and property to be taken from her home, thereby depriving her of the means to secure counsel. Id. para. 16, at 9.

 Finally, as to defendant Jaffe, a physician associated with the Philadelphia Psychiatric Center, and defendant Patton, a social worker at that institution, plaintiff alleges, inter alia, that they forcibly restrained her from leaving St. Mary Hospital and had her recommitted to mental health custody at the Philadelphia Psychiatric Center. Id. para. 2, at 10. She alleges that these defendants accomplished the latter by affirming under penalty of perjury that she was mentally ill, despite the fact that they realized after superficially examining her that they did not have a sufficient diagnostic basis [to do so]. Id. paras. 3-4, at 10. She alleges in addition that these defendants purposely suppressed the facts regarding her false imprisonment from the proper authorities by pretending to hold a hearing [regarding her continued commitment] which was lacking in due process and denied her the equal protection of the laws. Id. paras. 5-6, at 10-11.

 Based on these allegations, I cannot conclude that plaintiff will ultimately prevail on the state action issue. Neither, however, can I dismiss her complaint on this ground, as based on plaintiff's allegations, read in conjunction with the state law under which her involuntary commitment took place, I cannot conclude that she will be unable to prove any set of ...


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