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June 20, 1984


The opinion of the court was delivered by: GESELL

Motions now before the Court present the question whether a private physician who detains an individual and makes application for that person's admission to a hospital pursuant to D.C. Code § 21-521, which authorizes such action if the individual's physician has reason to believe the patient is mentally ill, thereby acts "under color of state law" within the meaning of 42 U.S.C. § 1983. *fn1"

 Plaintiff alleges that she was detained and involuntarily committed to a mental hospital based on a misdiagnosis that she was mentally ill. The ten counts of her complaint include claims under the common law, 42 U.S.C. § 1981, and the Fourth Amendment. Defendants, Dr. Leroy Lewis (hereinafter Dr. Lewis), the Washington Hospital Center, and Dr. Ante Lundberg, have moved to dismiss Counts Three, Four and Six of the complaint, which each allege violations of § 1981. Plaintiff has opposed these motions.

 In considering a motion to dismiss the Court must, of course, accept the allegations of the complaint as true. The complaint states, in pertinent part, that on the evening of February 4-5, 1983, plaintiff was driven by her employer to the emergency room of the Washington Hospital Center, where she sought medical care from a Dr. Smith. For some reason not stated, plaintiff was instead seen by Dr. Lewis, who told plaintiff she would die if she did not receive medication he sought to prescribe. Plaintiff nevertheless refused treatment, whereupon Dr. Lewis "threatened to detain Plaintiff for an extended period of time" and "forbade Plaintiff from leaving." After consulting with Dr. Lundberg by telephone, Dr. Lewis then called the police and "caused" them to arrest or detain plaintiff. Dr. Lewis also executed an application for plaintiff's emergency hospitalization, and she was taken by the police to St. Elizabeth's Hospital, a federal mental hospital located in the District of Columbia, where she was involuntarily committed. Plaintiff was later released upon a finding by that hospital's staff that she was not mentally ill.

 Defendants argue that these allegations fail to state a claim under § 1983 because the requisite "state action" has not been alleged. Plaintiff responds that state action is present because defendants detained her and executed an application for her admission to St. Elizabeth's pursuant to D.C. Code § 21-521, which plaintiff argues "has authorized physicians to perform what is clearly a state function." Section 21-521 provides:

 State action exists where "there is a sufficiently close nexus between the state and the challenged action . . . so that the [challenged action] may be fairly treated as that of the state itself." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974). In Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978), the Supreme Court considered under what circumstances the actions of a private citizen can be deemed "state action" under § 1983. State action is present "when the State, by its law, has compelled the act." 436 U.S. at 164, quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). State action may also be found where private individuals are given authority under state law to perform "public" functions, that is, those functions "traditionally exclusively reserved to the State." 436 U.S. at 157, quoting Jackson, 419 U.S. at 352.

 The complaint alleges two separate pertinent acts on the part of Dr. Lewis: that he took plaintiff into custody, and that he executed an application for her involuntary admission to St. Elizabeth's. Dr. Lundberg is alleged to have "ordered and/or advised" Dr. Lewis to make application for plaintiff's commitment, an action which Dr. Lundberg "knew, or should have known, . . . would result in the false imprisonment and/or involuntary commitment of Plaintiff." In essence Dr. Lundberg is thus charged with the two actions taken by Dr. Lewis. Defendant Washington Hospital Center is likewise charged with the actions of Dr. Lewis under the doctrine of respondeat superior.

 It is clear that Dr. Lewis was not "compelled" by the District of Columbia to perform the acts alleged. The question, therefore, is whether in allegedly detaining plaintiff and making application for her involuntary admission to a hospital under D.C. Code § 21-521 he performed a function "traditionally exclusively reserved to the State."

 A number of federal courts have addressed the issue of whether state action exists when a physician acts pursuant to state statutes similar to D.C. Code § 21-521. Those cases which have involved the mere execution of an application requesting that a person be admitted have uniformly held that no state action is involved. *fn2" The rationale behind these cases is that the "power" to, in essence, simply recommend that a person be involuntarily committed has traditionally not been reserved to state officials but has been made available to the individual's physician, family, and, under some statutes, members of the general public.

 District of Columbia law is similar in this respect. Under D.C. Code § 21-541, an individual's parents, spouse, legal guardian or physician, as well as state officials, may petition for that person's involuntary admission based on mental illness. Such a petition must be made to the Commission on Mental Health, and the individual is entitled to a jury trial in Superior Court on the issue of whether he is mentally ill before being committed. Clearly such a petition, which merely invokes the legal process, does not constitute state action.

Thus, the consequence of a certificate is nothing more than an examination, albeit involuntary. The power of a certificate is very limited. It does not commit a person for treatment. It merely subjects a person to any emergency care that may be required and an examination by the state to confirm or reject the beliefs stated in the certificate. . . . Basically, the certificate simply initiates the state's involvement and is not of and in itself the point of origin of state action.

 Watkins, 529 F. Supp. at 329. *fn3" The Court concludes, therefore, that in executing an application for plaintiff's ...

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