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November 27, 1989

HOWARD LEE, et al., Plaintiffs
GATEWAY INSTITUTE & CLINIC, INC., et al., Defendants

The opinion of the court was delivered by: SMITH


 Before the Court are defendants' motions to dismiss plaintiffs' complaint for want of subject-matter jurisdiction and for failure to state a claim. They require us to survey the state of the law under the Civil Rights Act of 1871, 42 U.S.C. § 1983, applied to claims for deprivation of life without due process under the Fourteenth Amendment.


 This matter arises from the tragic death of plaintiffs' decedent, Donald M. Lee. The complaint, which we accept as undisputed for purposes of the motions to dismiss, alleges that Donald Lee was intentionally killed on April 21, 1987, by defendant Frederick E. Wommer. Wommer, a paranoid schizophrenic with known propensities for violent behavior, intoxication, and the collection of martial arts paraphernalia, stabbed Lee to death with a six inch "ninja-butterfly" knife in a Clearfield, Pennsylvania, department store. There was no motive for the attack; Wommer simply had encountered Lee, a complete stranger, in the store into which he had wandered after signing himself out of a local mental health center.

 Wommer was a resident of defendant Gateway Institute & Clinic's personal care boarding home, the Gateway Comprehensive Care Center, in Clearfield. Gateway Institute operated the only supervised residency program for mentally ill patients receiving treatment at the defendant Clearfield-Jefferson Community Mental Health Center ("CMHC"). While at the Gateway Comprehensive Care Center, Wommer was under the control of and in the custody of defendant Pamela DiGilarmo, R.N., who managed the Center. Wommer received outpatient mental health treatment and assessment from defendant Raymond Navarro, a psychologist on the staff of CMHC, and from two psychiatrists, defendants, William Chen, M.D., and James Fugate, M.D. Doctor Fugate was the medical director of both Gateway and CMHC, and a member of the staff of defendant DuBois Regional Medical Center. Defendant Rex McClure was the managing director of both Gateway and CMHC.

 Approximately one month before the murder, from February 24, 1987, through March 21, 1987, Wommer had been hospitalized at DuBois Regional Medical Center, where he was treated by defendant Fugate and defendant John E. Allen, M.D., a physician at DuBois. Wommer's behavior was violent, irrational, and hostile to others. He experienced command delusions which told him to hurt himself or others, and he attacked and threatened therapists and other patients. Despite objective evidence from these episodes and from a prior outpatient facility that Wommer should not be released, defendants DuBois, Allen, and Fugate deliberately discharged him to reside at Gateway while seeking outpatient treatment of CMHC.

 Wommer was discharged allegedly because defendants DuBois, Allen and Fugate had a dual financial interest in "dumping" patients into a less intensive treatment facility, which served to reduce costs to DuBois and to increase revenues for Gateway and CMHC. Generally, plaintiffs allege that the Pennsylvania Mental Health Procedures Act, 50 P.S. § 7101, et seq., as it is implemented in the Commonwealth, leads to the delegation of authority for administering Pennsylvania's public mental health care system to counties which contract with private entities, such as defendants, to provide necessary care. Because the counties also bear the cost of reimbursing patient costs for both private entities and the more intensive state facilities (the maximum security facility at Farview, and the medium security facility at Mayview, for instance) there is an incentive to downgrade a patient's treatment regardless of what sound medical judgment dictates. The plaintiffs allege this occurs sufficiently often to rise to the level of custom, or sufficiently deliberately to rise to the level of policy for defendants in the mental health system. It was defendants' actions taken pursuant to this policy, plaintiffs allege, which proximately caused Wommer's placement in a facility from which he could, despite the known and disregarded danger he threatened, simply walk away, and murder Donald Lee. Plaintiffs also allege that this repeated dumping to less intensive facilities virtually guaranteed the deterioration of Wommer's state. *fn1"


 Section 1983 does not create a cause of action of itself; it provides redress for certain violations of rights arising under the federal constitution or laws of the United States which are caused by persons acting under color of state law. Baker v. McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979). It is not a tort statute, see Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976), although tort principles may be relevant to its application. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981); Carey v. Piphus, 435 U.S. 247, 257-59, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978). The first inquiry, therefore, is whether plaintiffs have been deprived of a right secured by the constitution or laws of the United States. DeShaney v. Winnebago County Department of Social Services, 489 U.S. , 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989). We must then examine whether plaintiffs have alleged that the deprivation was caused by a person acting under color of state law, Blum v. Yaretsky, 457 U.S. 991, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982), or in the case of a municipality or political subdivision, pursuant to an established policy or custom of that body. Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Finally, the unconstitutional action taken under color of law must effectively be the cause of the deprivation of the rights of plaintiffs. Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481 (1980).

 Where, as here, the plaintiffs are claiming that the actions by defendants DuBois, Gateway, Allen, Chen, Navarro, DiGilarmo, Fugate, and McClure were taken pursuant to a policy established under color of state law for the control of patients like defendant Wommer, Complaint, Paragraphs 31, 34, 35, 36, 39, 50, 54, 59, they must show that the policies attacked have a close connection to the deprivation alleged. Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412, 428 (1989) ("Respondent must still prove that the deficiency in training actually caused the police officers' indifference to her medical needs.") (emphasis added; footnote omitted). Canton v. Harris, quoting the plurality opinion in Oklahoma City v. Tuttle, explained the reason for this:

"Obviously, if one retreats far enough from a constitutional violation some municipal 'policy' can be identified behind almost any . . . harm inflicted by a municipal official; for example, [a police officer] would never have killed Tuttle if Oklahoma City did not have a 'policy' of establishing a police force. But Monell must be taken to require proof of a city policy different in kind from this latter example before a claim can be sent to a jury on the theory that a particular violation was 'caused' by the municipal 'policy.'" Tuttle, 471 U.S. 808, 823, 85 L. Ed. 2d 791, 105 S. Ct. 2427.
Cf. also Id, at 833, n 9, 85 L. Ed. 2d 791, 105 S. Ct. 2427 ...

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