607 F.2d 858
Edward G. FAYLE, Appellant,
v.
Glenn STAPLEY, Treasurer of Maricopa County; Dr. Suzanne
Dandoy, Director of Health Services; Dr. G. Lee
Sandritter, Superintendent of the
Arizona State Hospital, Appellees.
No. 77-2875.
United States Court of Appeals,
Ninth Circuit.
Nov. 5, 1979.
Calvin Lee, Venable, Rice, Lee & Capra, Phoenix, Ariz., for appellant.
Linda A. Drake, Phoenix, Ariz., argued for appellees; William R. Jones, Jr., Jones, Telborg, Sanders, Haga & Parks, Phoeniz, Ariz., on the brief.
Appeal from the United States District Court for the District of Arizona.
Before DUNIWAY and ELY, Circuit Judges, and PORT, District Judge.
PER CURIAM:
The appellant Fayle seeks to overturn the District Court's summary judgment in favor of appellees in a civil rights suit brought by Fayle under 42 U.S.C. § 1983. In part, the judgment must be reversed and the cause remanded.
In the District Court, Fayle claimed that a state court order which required him to pay the cost of his own involuntary confinement in a state mental hospital violated his constitutional rights.
Specifically, Fayle contends that the Arizona statutory scheme, as applied by the appellees, deprived him (1) of his right to notice and the opportunity to be heard before his property was taken from him, (2) of equal protection of the laws by virtue of the fact that prison inmates and jail prisoners are not required to pay for the cost of their own confinement in state institutions while involuntarily committed mental patients are required to do so, and (3) of his right to counsel in this and other civil and criminal proceedings because, having been deprived of his only property, he was without means to hire counsel of his own choosing to represent him at the various hearings.
I.
On August 1, 1972, Fayle was indicted in an Arizona state court for assault with intent to murder. Prior to trial, on February 26, 1973, Fayle was adjudged incompetent to stand trial on the criminal charges and was involuntarily committed to the Arizona State Hospital. Three years later, on February 19, 1976, Fayle was again declared incompetent to stand trial, and, at that time, the criminal charges against him were dismissed with prejudice. Also, at the same hearing, the state court civilly committed Fayle to the Arizona State Hospital for mental health treatment.
Prior to Fayle's civil commitment, on September 17, 1975, the Maricopa County Attorney's office petitioned the Superior Court of Maricopa County, Arizona, for an order requiring Fayle to pay such expenses of his hospitalization and maintenance as he could afford, pursuant to Ariz.Rev.Stat. § 13-3992 (then § 13-1623). Acting on the petition, the state court ordered appellee Sandritter, Superintendent of the Arizona State Hospital, to investigate and report back to the court on Fayle's ability to pay for his confinement. Then, on December 17, 1975, the court ordered Sandritter, as custodian of Fayle's Patient Deposit Fund, consisting primarily of disability insurance benefits, to reimburse the county treasurer (appellee Stapley) in the amount of $5,000 for Fayle's past care and maintenance. The order also required Sandritter to remit to the county treasurer on a monthly basis ninety percent of any income Fayle received in the future for as long as Fayle remained a patient at the hospital and was being supported by county funds. In response, Fayle filed his civil rights action on July 23, 1976, seeking damages and declaratory and injunctive relief for the asserted violations of his constitutional rights.
Since the time Fayle was denied relief in the District Court and instituted this appeal, Fayle was adjudged mentally competent and was released from the state hospital. The state brought other charges against Fayle, tried and convicted him, and now has Fayle serving sentence in state prison. Since he is no longer being confined in the state hospital, Fayle's claim for injunctive relief from the continued attachment of his future income is moot. On the other hand, Fayle's claim for damages and return of the funds paid over to the county treasurer remains a live issue.
II.
Appellees concede that Fayle was denied the process he was due, admitting that Fayle was not given notice and a hearing prior to the order affecting his Patient Deposit Fund. Nonetheless, appellees contend that the summary judgment should be affirmed. They argue that Fayle filed his suit against the wrong parties, pointing out that these parties acted only in compliance with an order of the state court. Fayle should have brought his suit, so appellees argue, against the deputy county attorney who, without giving proper notice to Fayle, brought the petition in state court for reimbursement for the cost of Fayle's maintenance and care. Not only do appellees contend that they are insulated from liability under Section 1983 because the withdrawals from Fayle's account were authorized by the court order, but they also claim insulation from liability on the grounds that any involvement they might have had in obtaining the state court order was merely pursuant to acts of good faith enforcement of a state statute that was presumably valid. See Mosher v. Saalfeld, 589 F.2d 438, 441-42 (9th Cir. 1978).
As to appellee Dandoy, the director of the state health department, we agree that no liability can be shown. Fayle has not alleged that Dandoy personally participated in the taking of his property. Rather, the alleged liability is based solely on Dandoy's status as director of the state health department and her supervisory power over the Arizona State Hospital. We have held that in a Section 1983 action, vicarious liability may not be imposed on a state or municipal official for acts of lower officials in the absence of a state law imposing such liability. Mosher v. Saalfeld, supra, 589 F.2d at 441; Boettger v. Moore, 483 F.2d 86, 87 (9th Cir. 1973). Fayle has cited no Arizona law imposing such vicarious liability. Accordingly, the suit against Dandoy cannot stand, and the judgment in her favor is affirmed.
As to appellees Sandritter and Stapley, we have concluded that material issues of fact remain to be resolved in the District Court. Fed.R.Civ.P. 56(c). Left unresolved is the factual dispute as to whether Sandritter, as director of the state hospital and the "custodian" of Fayle, was vested with the duty to ensure that Fayle received actual notice of the petition for a maintenance order. Also in doubt is whether Sandritter, as the custodian of Fayle's Patient Deposit Fund, stood in a fiduciary relationship to Fayle in respect to claims asserted against the fund. Likewise, Stapley, as county treasurer, may also be implicated in the failure to ensure that Fayle received notice of the petition.
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607 F.2d 858
Edward G. FAYLE, Appellant,
v.
Glenn STAPLEY, Treasurer of Maricopa County; Dr. Suzanne
Dandoy, Director of Health Services; Dr. G. Lee
Sandritter, Superintendent of the
Arizona State Hospital, Appellees.
No. 77-2875.
United States Court of Appeals,
Ninth Circuit.
Nov. 5, 1979.
Calvin Lee, Venable, Rice, Lee & Capra, Phoenix, Ariz., for appellant.
Linda A. Drake, Phoenix, Ariz., argued for appellees; William R. Jones, Jr., Jones, Telborg, Sanders, Haga & Parks, Phoeniz, Ariz., on the brief.
Appeal from the United States District Court for the District of Arizona.
Before DUNIWAY and ELY, Circuit Judges, and PORT, District Judge.
PER CURIAM:
The appellant Fayle seeks to overturn the District Court's summary judgment in favor of appellees in a civil rights suit brought by Fayle under 42 U.S.C. § 1983. In part, the judgment must be reversed and the cause remanded.
In the District Court, Fayle claimed that a state court order which required him to pay the cost of his own involuntary confinement in a state mental hospital violated his constitutional rights.
Specifically, Fayle contends that the Arizona statutory scheme, as applied by the appellees, deprived him (1) of his right to notice and the opportunity to be heard before his property was taken from him, (2) of equal protection of the laws by virtue of the fact that prison inmates and jail prisoners are not required to pay for the cost of their own confinement in state institutions while involuntarily committed mental patients are required to do so, and (3) of his right to counsel in this and other civil and criminal proceedings because, having been deprived of his only property, he was without means to hire counsel of his own choosing to represent him at the various hearings.
I.
On August 1, 1972, Fayle was indicted in an Arizona state court for assault with intent to murder. Prior to trial, on February 26, 1973, Fayle was adjudged incompetent to stand trial on the criminal charges and was involuntarily committed to the Arizona State Hospital. Three years later, on February 19, 1976, Fayle was again declared incompetent to stand trial, and, at that time, the criminal charges against him were dismissed with prejudice. Also, at the same hearing, the state court civilly committed Fayle to the Arizona State Hospital for mental health treatment.
Prior to Fayle's civil commitment, on September 17, 1975, the Maricopa County Attorney's office petitioned the Superior Court of Maricopa County, Arizona, for an order requiring Fayle to pay such expenses of his hospitalization and maintenance as he could afford, pursuant to Ariz.Rev.Stat. § 13-3992 (then § 13-1623). Acting on the petition, the state court ordered appellee Sandritter, Superintendent of the Arizona State Hospital, to investigate and report back to the court on Fayle's ability to pay for his confinement. Then, on December 17, 1975, the court ordered Sandritter, as custodian of Fayle's Patient Deposit Fund, consisting primarily of disability insurance benefits, to reimburse the county treasurer (appellee Stapley) in the amount of $5,000 for Fayle's past care and maintenance. The order also required Sandritter to remit to the county treasurer on a monthly basis ninety percent of any income Fayle received in the future for as long as Fayle remained a patient at the hospital and was being supported by county funds. In response, Fayle filed his civil rights action on July 23, 1976, seeking damages and declaratory and injunctive relief for the asserted violations of his constitutional rights.
Since the time Fayle was denied relief in the District Court and instituted this appeal, Fayle was adjudged mentally competent and was released from the state hospital. The state brought other charges against Fayle, tried and convicted him, and now has Fayle serving sentence in state prison. Since he is no longer being confined in the state hospital, Fayle's claim for injunctive relief from the continued attachment of his future income is moot. On the other hand, Fayle's claim for damages and return of the funds paid over to the county treasurer remains a live issue.
II.
Appellees concede that Fayle was denied the process he was due, admitting that Fayle was not given notice and a hearing prior to the order affecting his Patient Deposit Fund. Nonetheless, appellees contend that the summary judgment should be affirmed. They argue that Fayle filed his suit against the wrong parties, pointing out that these parties acted only in compliance with an order of the state court. Fayle should have brought his suit, so appellees argue, against the deputy county attorney who, without giving proper notice to Fayle, brought the petition in state court for reimbursement for the cost of Fayle's maintenance and care. Not only do appellees contend that they are insulated from liability under Section 1983 because the withdrawals from Fayle's account were authorized by the court order, but they also claim insulation from liability on the grounds that any involvement they might have had in obtaining the state court order was merely pursuant to acts of good faith enforcement of a state statute that was presumably valid. See Mosher v. Saalfeld, 589 F.2d 438, 441-42 (9th Cir. 1978).
As to appellee Dandoy, the director of the state health department, we agree that no liability can be shown. Fayle has not alleged that Dandoy personally participated in the taking of his property. Rather, the alleged liability is based solely on Dandoy's status as director of the state health department and her supervisory power over the Arizona State Hospital. We have held that in a Section 1983 action, vicarious liability may not be imposed on a state or municipal official for acts of lower officials in the absence of a state law imposing such liability. Mosher v. Saalfeld, supra, 589 F.2d at 441; Boettger v. Moore, 483 F.2d 86, 87 (9th Cir. 1973). Fayle has cited no Arizona law imposing such vicarious liability. Accordingly, the suit against Dandoy cannot stand, and the judgment in her favor is affirmed.
As to appellees Sandritter and Stapley, we have concluded that material issues of fact remain to be resolved in the District Court. Fed.R.Civ.P. 56(c). Left unresolved is the factual dispute as to whether Sandritter, as director of the state hospital and the "custodian" of Fayle, was vested with the duty to ensure that Fayle received actual notice of the petition for a maintenance order. Also in doubt is whether Sandritter, as the custodian of Fayle's Patient Deposit Fund, stood in a fiduciary relationship to Fayle in respect to claims asserted against the fund. Likewise, Stapley, as county treasurer, may also be implicated in the failure to ensure that Fayle received notice of the petition. The county treasurer, as recipient of the payments made on behalf of Fayle, may have been at least partially responsible for instigating the maintenance action in the state court. These issues of fact must be addressed in the first instance by the District Court.
As to Sandritter and Stapley's claims that they are clothed with immunity from suit because they acted under authorization of the state court order, we recognize that such immunity does shield appellees from civil rights liability for their actions Subsequent to the court's order. This immunity does not, however, extend to acts performed to obtain that order. Among the other issues of fact to be resolved at trial is whether appellees Sandritter and Stapley acted in good faith in procuring the maintenance order. The District Court never addressed the issue of good faith enforcement of the Arizona statute. Especially in light of the fact that Fayle was never personally informed of the state court proceedings and that the order was obtained at a hearing outside his presence, we conclude that the District Court's summary judgment in favor of Sandritter and Stapley was inappropriate. See Johnson v. Duffy, 588 F.2d 740, 745 (9th Cir. 1978). In granting summary judgment against Fayle, the District Court discussed only Fayle's equal protection challenge to the Arizona statutes. That the statutes are constitutional in a broad sense does not resolve Fayle's contention that he was denied due process by the manner in which the statutes were applied in his case. The record is clearly insufficient to warrant our affirming the judgment on grounds not considered by the District Court.
III.
Fayle also claims that the District Court erred in holding that the Arizona statutes did not deny him equal protection of the laws. Fayle contends that Arizona has created an impermissibly arbitrary classification by distinguishing between prisoners, who are not required to pay for the cost of their penal confinement, and persons involuntarily committed to state institutions because found incompetent to stand trial or because civilly committed, who are required to pay the cost of their own care and maintenance to the extent that they are financially able to do so. See Ariz.Rev.Stat. §§ 13-3992 and 36-545.01. We note that all courts that have considered similar equal protection claims have rejected the argument that the state has set up an artificial distinction between ordinary prisoners and hospital inmates. See State ex rel. Dorothea Dix Hospital v. Davis, 292 N.C. 147, 232 S.E.2d 698, 702 (1977); Department of Mental Health v. Pauling, 47 Ill.2d 269, 265 N.E.2d 159, 161 (1970); State v. Estate of Burnell, 165 Colo. 205, 439 P.2d 38, 40, Appeal dismissed, 393 U.S. 13, 89 S.Ct. 46, 21 L.Ed.2d 13 (1968); See also McAuliffe v. Carlson, 377 F.Supp. 896, 899-904 (D.Conn.1974), Supplemented, 386 F.Supp. 1245, Rev'd on other grounds, 520 F.2d 1305 (2d Cir. 1975), Cert. denied, 427 U.S. 911, 96 S.Ct. 3199, 49 L.Ed.2d 1203 (1976); In re Sargent, 116 N.H. 77, 354 A.2d 404, 407 (1976); Cf. Department of Mental Health v. Coty, 38 Ill.2d 602, 232 N.E.2d 686, 688 (1967) (upheld against equal protection claim an order requiring relatives of an incompetent to pay for incompetent's confinement). But cf. Department of Mental Hygiene v. Kirchner, 60 Cal.2d 716, 36 Cal.Rptr. 488, 388 P.2d 720 (1964), Vacated, 380 U.S. 194, 85 S.Ct. 871, 13 L.Ed.2d 753 (1965), On remand, 62 Cal.2d 586, 43 Cal.Rptr. 329, 400 P.2d 321 (1965) (order imposing liability on relatives of incompetent denied on equal protection grounds under State constitution). We likewise reject Fayle's argument.
Undoubtedly the state, and its citizens, benefit when the criminally insane are safely confined in hospitals and are receiving care for their disorders. Yet it is safe to assume, as the Arizona legislature has apparently done, that the greater benefit is to the involuntarily committed mental patient. It is not unreasonable to require the patient to contribute to his care to the extent of his reasonable ability.
As the Colorado Supreme Court has written:
The legislature has given recognition to the fact that the criminally insane persons are ill and that many usually cannot be put to profitable work. It would therefore be impractical to attempt to recover the costs of their care by requiring them to earn it, although there are undoubtedly some instances in which they do earn their care and maintenance. Also hospital care and treatment is generally more involved, more expensive and oftentimes of considerably longer duration than commitment in other institutions. We can see no constitutional inequality in requiring those receiving more expensive care to be liable for additional costs through assets which they may have accumulated.
State v. Estate of Burnell, supra, 165 Colo. at 209, 439 P.2d at 40.
IV.
Finally, Fayle contends that the taking of his property pursuant to the Arizona statutes deprived him of funds which he could have used to engage counsel to represent him at various civil and criminal hearings. The District Court never considered this claim. On remand, Fayle should be given the opportunity to raise this claim anew and to demonstrate how, as he contends, appellees Sandritter and Stapley caused him damage.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.