ORDER
CHARLES SCHWARTZ, Jr., District Judge.
This matter is before the Court on the motions of the defendants, Charles B. Odom, Oliver Sanders and Joseph L. Palotta to dismiss, or alternatively, for summary judgment. Following oral argument, the motions were taken under submission. Having considered the argument, memoranda submitted herein, the record and the law applicable to this matter, the Court denies the motions of Charles B. Odom and Oliver Sanders and grants the motion of Joseph L. Palotta for the following reasons.
It is undisputed that on or about September 1, 1981, Jeanne Landry, the plaintiff’s sister, requested Dr. Charles Odom, coroner
of Jefferson Parish, to issue an emergency-certificate temporarily confining her sister.
The certificate was issued which resulted in the confinement of Mary Ann Landry at East Jefferson General Hospital. On or about the second day of her confinement, Dr. Joseph Palotta, a private psychiatrist practicing at East Jefferson General Hospital examined Ms. Landry and also issued a certificate. Dr. Sanders also examined Ms. Landry and issued a certificate. As a result of the execution of these certificates, Ms. Landry was transferred to East Louisiana State Hospital on or about September 8, 1981 where she was confined until September 22, 1981. Plaintiff filed suit against Drs. Odom, Sanders and Palotta, among others, alleging a cause of action under 42 U.S.C. § 1983 and state law. Defendants Odom, Sanders and Palotta filed motions to dismiss, or alternatively, for summary judgment.
Drs. Odom and Sanders
These defendants argue that plaintiff’s suit should be dismissed on the basis that it is barred by the Eleventh Amendment to the United States Constitution,
claiming that Odom, as coroner, and Sanders, as Odom’s independent contractor, are clearly state agencies, and as such cannot be sued in federal court. Defendants rely on La. R.S. 13:5108.1 in support of their position. This statute provides that the state of Louisiana will indemnify officers and employees of the state for financial loss arising out of any claim, demand, suit or judgment in federal court brought pursuant to the provisions of Sections 1981 through 1983 of Title 42 of the United States Code.
Defendants claim that pursuant to this statute, any recovery by Ms. Landry would have to be paid from state funds, and that Eleventh Amendment immunity thus extends to these state officials.
The Eleventh Amendment does not bar an action against a state official that is based on a theory that the officer acted beyond the scope of his statutory authority, or, if within that authority, that such authority is unconstitutional.
Florida Dept. of State v. Treasure Salvors,
Inc., - U.S. -, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982);
Scheuer v. Rhodes,
416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Plaintiff’s allegations against these defendants encompass the preceding prerequisite; it is thus premature for this Court to dismiss plaintiff’s 1983 claim against these defendants where the question remains unanswered as to whether the challenged conduct of these officials constitutes an unconstitutional withholding of plaintiff’s constitutional rights. Accordingly, the motion of Drs. Odom and Sanders to dismiss, or alternatively, for summary judgment, is hereby denied.
Dr. Palotta
Plaintiff has also asserted a cause of action under 42 U.S.C. § 1983 against Dr. Palotta, a private psychiatrist, claiming that as a result of Dr. Palotta’s issuance of a commitment certificate she was deprived of liberty without due process of law. In order to receive relief under Section 1983, a plaintiff must show (a) that the defendant deprived him of a right secured to him by the Constitution or federal law, and (b) that the deprivation occurred under color of state law.
Sims v. Jefferson Downs, Inc.,
611 F.2d 609 (5th Cir.1980) and cases cited therein. It is undisputed that Dr. Palotta issued a certificate pursuant to La.R.S. 28:53(G) which resulted in Ms. Landry’s continued confinement.
However, the mere fact that an activity may be subject to state regulation does not sufficiently implicate the state in the particular conduct complained of so as to constitute state action.
Id.
The determination of whether there is sufficient state action by non-state persons must be made by weighing circumstances on a case-by-case basis. The Supreme Court has articulated a number of different factors in different contexts for the purpose of determining whether state action is involved; these include the “public function” test, the “state compulsion” test, and the “nexus” test.
Lugar v. Edmonson Oil Co.,
Inc., - U.S. -, -, 102 S.Ct. 2744, 2755, 73 L.Ed.2d 482 (1982) (citations omitted).
Here, the state of Louisiana is undoubtedly responsible for the statute in question, but Dr. Palotta’s involvement, by his actions pursuant to that statute, without something more, is not sufficient to justify a characterization of him as a state actor.
Id.
The uncontroverted affidavit submitted by Dr. Palotta indicates that he was contacted by a nurse at East Jefferson General Hospital and conducted an examination of plaintiff pursuant to La.R.S. 28:53(G) which requires that a second examination shall be made within 72 hours “by any physician at the treatment facility where the person is confined.” Dr. Palotta testified that he was not compelled to examine the patient nor to sign the certificate which he executed. He had not discussed the care and/or treatment of plaintiff with any of the other defendants prior to his examination. Dr. Palotta did not initiate plaintiff’s
admission to the hospital but his action was determinative of the question of further treatment. However, we cannot agree that the examination performed by Dr. Palotta was sufficient to constitute “state action”:
To open physicians to federal suit by decreeing that they act for the state in making purely medical decisions would effectively chill the use, and accompanying benefit, of a private physician’s judgment in an emergency situation simply because the physician may not be willing to give it for fear of being exposed to a lawsuit.
Watkins v. Roche,
529 F.Supp. 327, 331 (S.D.Ga.1981). The actions of Dr. Palotta do not satisfy either the “public function” or “state compulsion” tests. He did not initiate the process leading to plaintiff’s examination; in fact, her sister, a layperson, requested that Dr. Odom’s office issue an emergency certificate authorizing plaintiff’s detention. Neither was Dr. Palotta compelled to sign the certificate.
Plaintiff also claims that Dr.
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ORDER
CHARLES SCHWARTZ, Jr., District Judge.
This matter is before the Court on the motions of the defendants, Charles B. Odom, Oliver Sanders and Joseph L. Palotta to dismiss, or alternatively, for summary judgment. Following oral argument, the motions were taken under submission. Having considered the argument, memoranda submitted herein, the record and the law applicable to this matter, the Court denies the motions of Charles B. Odom and Oliver Sanders and grants the motion of Joseph L. Palotta for the following reasons.
It is undisputed that on or about September 1, 1981, Jeanne Landry, the plaintiff’s sister, requested Dr. Charles Odom, coroner
of Jefferson Parish, to issue an emergency-certificate temporarily confining her sister.
The certificate was issued which resulted in the confinement of Mary Ann Landry at East Jefferson General Hospital. On or about the second day of her confinement, Dr. Joseph Palotta, a private psychiatrist practicing at East Jefferson General Hospital examined Ms. Landry and also issued a certificate. Dr. Sanders also examined Ms. Landry and issued a certificate. As a result of the execution of these certificates, Ms. Landry was transferred to East Louisiana State Hospital on or about September 8, 1981 where she was confined until September 22, 1981. Plaintiff filed suit against Drs. Odom, Sanders and Palotta, among others, alleging a cause of action under 42 U.S.C. § 1983 and state law. Defendants Odom, Sanders and Palotta filed motions to dismiss, or alternatively, for summary judgment.
Drs. Odom and Sanders
These defendants argue that plaintiff’s suit should be dismissed on the basis that it is barred by the Eleventh Amendment to the United States Constitution,
claiming that Odom, as coroner, and Sanders, as Odom’s independent contractor, are clearly state agencies, and as such cannot be sued in federal court. Defendants rely on La. R.S. 13:5108.1 in support of their position. This statute provides that the state of Louisiana will indemnify officers and employees of the state for financial loss arising out of any claim, demand, suit or judgment in federal court brought pursuant to the provisions of Sections 1981 through 1983 of Title 42 of the United States Code.
Defendants claim that pursuant to this statute, any recovery by Ms. Landry would have to be paid from state funds, and that Eleventh Amendment immunity thus extends to these state officials.
The Eleventh Amendment does not bar an action against a state official that is based on a theory that the officer acted beyond the scope of his statutory authority, or, if within that authority, that such authority is unconstitutional.
Florida Dept. of State v. Treasure Salvors,
Inc., - U.S. -, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982);
Scheuer v. Rhodes,
416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Plaintiff’s allegations against these defendants encompass the preceding prerequisite; it is thus premature for this Court to dismiss plaintiff’s 1983 claim against these defendants where the question remains unanswered as to whether the challenged conduct of these officials constitutes an unconstitutional withholding of plaintiff’s constitutional rights. Accordingly, the motion of Drs. Odom and Sanders to dismiss, or alternatively, for summary judgment, is hereby denied.
Dr. Palotta
Plaintiff has also asserted a cause of action under 42 U.S.C. § 1983 against Dr. Palotta, a private psychiatrist, claiming that as a result of Dr. Palotta’s issuance of a commitment certificate she was deprived of liberty without due process of law. In order to receive relief under Section 1983, a plaintiff must show (a) that the defendant deprived him of a right secured to him by the Constitution or federal law, and (b) that the deprivation occurred under color of state law.
Sims v. Jefferson Downs, Inc.,
611 F.2d 609 (5th Cir.1980) and cases cited therein. It is undisputed that Dr. Palotta issued a certificate pursuant to La.R.S. 28:53(G) which resulted in Ms. Landry’s continued confinement.
However, the mere fact that an activity may be subject to state regulation does not sufficiently implicate the state in the particular conduct complained of so as to constitute state action.
Id.
The determination of whether there is sufficient state action by non-state persons must be made by weighing circumstances on a case-by-case basis. The Supreme Court has articulated a number of different factors in different contexts for the purpose of determining whether state action is involved; these include the “public function” test, the “state compulsion” test, and the “nexus” test.
Lugar v. Edmonson Oil Co.,
Inc., - U.S. -, -, 102 S.Ct. 2744, 2755, 73 L.Ed.2d 482 (1982) (citations omitted).
Here, the state of Louisiana is undoubtedly responsible for the statute in question, but Dr. Palotta’s involvement, by his actions pursuant to that statute, without something more, is not sufficient to justify a characterization of him as a state actor.
Id.
The uncontroverted affidavit submitted by Dr. Palotta indicates that he was contacted by a nurse at East Jefferson General Hospital and conducted an examination of plaintiff pursuant to La.R.S. 28:53(G) which requires that a second examination shall be made within 72 hours “by any physician at the treatment facility where the person is confined.” Dr. Palotta testified that he was not compelled to examine the patient nor to sign the certificate which he executed. He had not discussed the care and/or treatment of plaintiff with any of the other defendants prior to his examination. Dr. Palotta did not initiate plaintiff’s
admission to the hospital but his action was determinative of the question of further treatment. However, we cannot agree that the examination performed by Dr. Palotta was sufficient to constitute “state action”:
To open physicians to federal suit by decreeing that they act for the state in making purely medical decisions would effectively chill the use, and accompanying benefit, of a private physician’s judgment in an emergency situation simply because the physician may not be willing to give it for fear of being exposed to a lawsuit.
Watkins v. Roche,
529 F.Supp. 327, 331 (S.D.Ga.1981). The actions of Dr. Palotta do not satisfy either the “public function” or “state compulsion” tests. He did not initiate the process leading to plaintiff’s examination; in fact, her sister, a layperson, requested that Dr. Odom’s office issue an emergency certificate authorizing plaintiff’s detention. Neither was Dr. Palotta compelled to sign the certificate.
Plaintiff also claims that Dr. Palotta is liable to her under a Section 1983 conspiracy charge. A conspiracy claim under this section requires one or more of the conspirators to be a state officer acting under color of state law. Clearly, Dr. Odom fulfills that requirement. Although plaintiff has alleged a conspiracy action, she has not successfully defended such allegation on this motion for summary judgment. Defense of a proper summary judgment motion requires more than a mere denial. The party opposed to the motion “is required to bring forward ‘significant probative evidence’ demonstrating the existence of a triable issue of fact.”
Union Planters Nat. Leasing v. Woods,
687 F.2d 117, 119 (5th Cir.1982). Dr. Palotta’s affidavit states that he has only been requested by the coroner to examine mental patients in order to issue a physician’s emergency certificate on three or four other occasions, and that such examinations are not a routine part of his psychiatric practice. The affidavits of Drs. Odom and Sanders support this testimony. Plaintiff was unable to produce “significant probative evidence” to warrant this Court’s retention of the conspiracy claim against Dr. Palotta. Accordingly, the claims brought against this defendant pursuant to 42 U.S.C. § 1983 are dismissed. As the Court finds no continuing basis for federal jurisdiction of this defendant, plaintiff’s remaining grievances against Dr. Palotta relative to state law are hereby dismissed.