Bass v. Parkwood Hospital

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-60446

MYRON BASS,

Plaintiff-Appellant,

versus

PARKWOOD HOSPITAL, Parkwood Hospital/Staff;
DESOTO COUNTY, MS; SUBBULAXMI RAYUDU, Dr.;
VICTORIA SHEETS,

Defendants-Appellees.

Appeal from the United States District Court for the
Northern District of Mississippi

July 1, 1999

Before GARWOOD, DUHÉ and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Myron Bass (Bass) appeals the district

court’s order revoking his in forma pauperis status and dismissing

with prejudice his complaint, which asserted purported claims

related to his involuntary civil commitment at Parkwood Hospital

(Parkwood or the hospital) in Mississippi. We affirm in part,

vacate in part, and remand.

BACKGROUND

The Mississippi Code regulates the involuntary commitment of
persons to mental health institutions within Mississippi. See

Miss. Code Ann. §§ 41-21-61 to -107 (1993 & Supp. 1998). The

comprehensive regulatory scheme safeguards the rights of persons

subjected to involuntary commitment procedures. See Chill v.

Mississippi Hosp. Reimbursement Comm’n, 429 So.2d 574, 578 (Miss.

1983) (“Without doubt the State of Mississippi . . . has vested

rights in the mentally ill substantially in excess of those minimum

protections required by the federal constitution.”). The

regulations govern commitment to private as well as public

institutions operating within the State. See Lee v. Alexander, 607

So.2d 30 (Miss. 1992).

To initiate civil commitment proceedings, any “interested

person” may file an affidavit with the clerk of the state chancery

court. Section 41-21-65. This affidavit must contain specific

factual descriptions of the behavior of the proposed patient (or

proposed respondent), and must be supported by observations of

named witnesses. “Affidavits shall be stated in behavioral terms

and shall not contain judgmental or conclusory statements.” Id.

Section 41-21-79 provides that if the respondent is found by the

court not to be in need of medical treatment, the costs of the

proceedings, including prehearing hospitalization costs, shall be

taxed to the affiant. Section 41-21-79.

If the affidavit is sufficient,1 the clerk, upon the

1
See section 41-21-67(1) (”Provided, however, that when such
affidavit fails to set forth factual allegations and witnesses
sufficient to support the need for treatment, the chancellor shall
refuse to direct issuance of the writ.”)

2
chancellor’s direction, will issue a writ directing the county

sheriff to bring the respondent before “said clerk or chancellor,

who shall order pre-evaluation screening and treatment by the

appropriate community mental health center . . . and for

examination as set forth in Section 41-21-69.” Section 41-21-

67(1). “Upon issuance of the writ” the chancellor is directed to

appoint two reputable physicians (or one physician and one

psychologist) to examine the respondent. Section 41-21-67(2). The

clerk is directed to ascertain whether the respondent has an

attorney, and if not, the chancellor is directed to “appoint an

attorney for the respondent at the time the examiners are

appointed.” Section 41-21-67(3). If the chancellor finds probable

cause to believe that the defendant is mentally ill and no

reasonable alternative exists to detention, then the chancellor may

order that the respondent be detained as an emergency patient

pending an admission hearing. Section 41-21-67(4).

Within twenty-four hours after the order for examination, the

respondent must be given an examination. Within the same twenty-

four-hour period, the physicians must have completed the

examination and filed reports and certificates with the court,

reporting on their findings as to the respondent’s mental and

physical health and opining whether the respondent should be

committed. Section 41-21-69(2).2 At the beginning of the

2
If the period would end in nonbusiness hours, it is extended
to the commencement of the next business day. Id. The code also
authorizes the court, upon request, to extend this time frame by no
more than eight hours. See section 41-21-69(2). The timely filing
of the physicians’ certificates is also a predicate to the

3
examination, the respondent is entitled to be told of the purpose

of the examination, his right to refuse to answer any questions,

and his right to have an attorney present. Section 41-21-69(3).

If the examiners certify that the respondent is not in need of

treatment, the chancellor or clerk “shall” dismiss the affidavit.

Section 41-21-71. This language arguably removes any discretion

from the chancery court to continue commitment procedures or

otherwise detain the respondent without the recommendation of the

appointed physicians.

Allegations of Bass which are either uncontroverted or are

supported by summary judgment-type evidence indicate that several

of these procedural safeguards were not followed with respect to

his eight-day confinement at Parkwood, as outlined below.3 On

Monday, April 22, 1996, Bass decided to seek mental health

counseling for “job related stress.” Bass, a resident of West

Memphis, Arkansas, discovered Parkwood through his telephone

directory. Parkwood, located in DeSoto County, Mississippi, is a

private hospital and is not associated with either the County or

the State.

Bass contacted Parkwood and spoke briefly with defendant-

appellee Case Management Associate Victoria Sheets (Sheets), who

invited Bass to come to Parkwood for counseling. Satisfied that

continuation of commitment procedures and the order for a
commitment hearing. See section 41-21-71.
3
We do not determine whether on a more fully and appropriately
developed record these factual assertions of Bass will be either
established or adequately supported.

4
Parkwood would be both confidential and affordable to him, Bass

agreed, and drove approximately thirty miles from his home to

Parkwood. Bass intended to receive outpatient treatment and return

home that evening.

Bass arrived at approximately 1:00 p.m. Sheets interviewed

Bass upon his arrival. Sheets reported that during the interview,

Bass claimed to have been hearing voices and that he planned to

poison his co-workers at a pot-luck dinner. Sheets arranged for a

psychologist, Russel Reynolds, Ph.D. (Dr. Reynolds), not a

defendant herein, to evaluate Bass. Dr. Reynolds also reported

that Bass revealed hallucinations and plans to kill his co-workers.

Bass denies having made any of these statements, and states that he

answered “NO!” when asked if he were carrying a weapon.

Parkwood thereafter determined that Bass should be detained,

and proceeded to the chancery court to initiate commitment

procedures. Sheets signed an affidavit stating “Pt [patient] is

very psychotic and paranoid. He is hearing voices telling him to

harm people and is thinking about killing coworkers with cyanide at

a pot luck supper. Thinks government is out to get him.”4

Meanwhile, two plainclothes DeSoto County sheriff’s deputies

(not named as defendants) approached Bass and identified themselves

as officers from the DeSoto County Sheriff’s Office. The officers

told Bass that he would be staying in the hospital overnight. When

4
The affidavit erroneously lists Bass as a resident of DeSoto
County, Mississippi. It also attests that after diligent inquiry,
Bass’s next of kin remained unknown. Bass resided in Arkansas with
his wife and children.

5
Bass protested that he wanted to leave, the officers told Bass that

he was not free to do so. At some time before 2:15 p.m., Bass was

taken to “the quiet room,” where he stayed overnight. Bass alleges

that the doors were locked behind him.

At 3:00 p.m., a special master of the chancery court of

Mississippi’s Third Judicial Court District issued a Writ to Take

Custody [of Bass] for Mental Examination or Retention (Writ). The

Writ commanded the Sheriff of DeSoto County to “immediately take

RESPONDENT into your custody and transport him/her to be assessed

for pre-evaluation screening at the Region II Mental Health Center

and if recommended, for examination for commitment according to law

by those appointed and named on the attached Appointment of

Physician/Psychologist.” A notation at the top of the Writ states:

“ATTENTION DEPUTY SHERIFF: Please serve the attached copy on Myron

Bass who is presently located at Parkwood Hospital. You should

then leave him/her at Parkwood.”

No document appointing a physician appears to have been

attached to the Writ. No attorney was ever appointed for Bass,

despite Bass’s request for an attorney during his first day at

Parkwood.

Bass asked to speak to a doctor, but was not permitted to do

so until the next day when a doctor prescribed Bass eight

milligrams of the anti-psychotic drug Trilafon. Bass objected to

taking the medication, but was informed that he could not refuse

the medication, and that if he did not swallow the pill, the nurse

would inject him with medication. Bass states that he only

6
pretended to swallow the pill. The doctor did not conduct any

examination of Bass at this time.

Bass waited three days before receiving a medical examination

on Thursday, April 25, 1996. The examining physician found that

Bass was not in need of mental treatment. Despite the examining

physician’s determination, Bass was held at Parkwood for five more

days until Tuesday, April 30, 1996, when the chancery court vacated

the writ and ordered Bass’s release.

Parkwood has since billed Bass over $7,000 for the cost of his

hospitalization.

In July 1996, Bass, proceeding pro se, filed this suit in the

court below against Parkwood, DeSoto County, and Sheets.5 Bass’s

in forma pauperis complaint alleges that Parkwood and Sheets

maliciously and in bad faith falsified the affidavit, that Bass was

denied due process throughout his detention, that Parkwood failed

to accommodate his religious dietary preferences, that Parkwood

failed to accommodate his disability (involving a leg injury), and

that Parkwood discriminated against him on the basis of race. Bass

requested $100,000 in damages in addition to costs, and an order

that defendants “discontinue bad faith commitments.” We interpret

Bass’s complaint to attempt to assert claims under 42 U.S.C. § 1983

(1999), 42 U.S.C. § 2000a (1999), and Mississippi tort law.

The district court referred the case to a magistrate judge for

a Spears hearing. See Spears v. McCotter, 766 F.2d 179 (5th Cir.

5
Bass also named Dr. Subblaxami Rayudu as a defendant. The
district court dismissed the claims against Dr. Rayudu and Bass has
voluntarily abandoned them on appeal.

7
1985); 28 U.S.C. § 636(b)(1)(A) (1999). At the hearing, the

magistrate judge revoked Bass’s in forma pauperis status. The

magistrate judge recognized that the general procedure in such a

situation has been to dismiss a complaint without prejudice,

granting the plaintiff leave to amend. Nonetheless, the magistrate

judge determined that Bass’s claims should be dismissed on the

merits. The district court in June 1997 adopted the magistrate

judge’s report and recommendations and dismissed Bass’s complaint.

See 28 U.S.C. § 1915(e)(2)(B)(ii) (1999) (directing court to

dismiss in forma pauperis action if case “fails to state a claim on

which relief may be granted.”).

We affirm the revocation of Bass’s in forma pauperis status.

We also affirm the dismissal of Bass’s claims under 42 U.S.C. §

1983, and 42 U.S.C. § 2000a against all defendants, as well as all

claims against DeSoto County. We vacate the dismissal of Bass’s

state law claims against Parkwood and Victoria Sheets and remand

those claims to the district court.

DISCUSSION

I. Standard of Review

We review the dismissal of a complaint under subsection

1915(e)(2)(B)(ii) de novo. The district court’s dismissal of a

complaint under this subsection may be upheld only if, taking the

plaintiff’s allegations as true, it appears that no relief could be

granted based on the plaintiff’s alleged facts. See Bradley v.

Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). See also United

States v. Robinson, 78 F.3d 172, 174 (5th Cir. 1996)

8
(“[Plaintiff’s] pro se pleading must be treated liberally as

seeking the proper remedy.”) (citation omitted).

II. In Forma Pauperis

The determination whether to allow a plaintiff to proceed in

forma pauperis is committed to the discretion of the district

court. Finding no abuse of discretion, we affirm the court’s

revocation of Bass’s in forma pauperis status.

III. The Proper Defendant

The magistrate determined that Parkwood could not be sued

because Parkwood is not a legal entity, but is instead merely the

name of the hospital in question, which is owned by Magellan, Inc.

(Magellan), and Magellan is not named as a defendant in the suit.6

In timely objections to the magistrate judge’s report, Bass, inter

alia, noted this aspect of the magistrate judge’s ruling and also

requested that the district court “[a]llow plaintiff . . . leave to

amend his complaint.”

While the grant or denial of leave to amend pleadings is

committed to the sound discretion of the district court, that

discretion is tempered by the rule’s requirement that “leave shall

be freely given when justice so requires.” See Fed. R. Civ. P.

15(a); Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998). The

suit was dismissed before any defendants answered or were served,

so no party would have been prejudiced by allowing amendment to

6
At the time of the events in question, Parkwood was owned by
Community Health Systems, Inc., a Tennessee corporation. Community
Health Systems, Inc. is not a named party to the suit. In February
1997, Parkwood became “Charter Parkwood,” owned by Magellan, Inc.

9
name Parkwood’s owner.7 Further considering the pro se nature of

Bass’s complaint, the district court abused its discretion by

dismissing with prejudice Bass’s claims on this basis without

affording him an opportunity to amend to name Parkwood’s owner as

a defendant.8

IV. Bass’s Federal Claims

Bass’s complaint cannot support a cause of action under

section 1983. To state a claim under section 1983, a plaintiff

must allege facts tending to show (1) that he has been “deprived of

a right ‘secured by the Constitution and the laws’ of the United

States,” and (2) that the deprivation was caused by a person or

persons acting “under color of” state law. Flagg Bros. v. Brooks,

98 S.Ct. 1729, 1733 (1978). Because the Fourteenth Amendment

protects liberty and property interests only against invasion by

the state, a section 1983 plaintiff alleging the deprivation of Due

Process under the Fourteenth Amendment must also show that state

action caused his injury. See Landry v. A-Able Bonding, Inc., 75

F.3d 200, 203 (5th Cir. 1996). In such cases, the “under color of

law” and state action inquiries merge into one. See Lugar v.

Edmonson Oil Co., 102 S.Ct. 2744, 2756 (1982) (where state action

caused deprivation, actors were necessarily acting “under color of”

law.).

7
Because Bass had already filed an amended complaint (twelve
days after his original complaint and well prior to the Spears
hearing), he did not technically come within the first sentence of
Fed. R. Civ. P. 15(a).
8
For clarity’s sake, we will continue to refer to the hospital
as Parkwood (or the hospital) throughout this opinion.

10
 Having been confined to a psychiatric ward against his will,

Bass was unquestionably deprived of liberty. See Dahl v. Akin, 630

F.2d 277, 279 (5th Cir. 1980); Humphrey v. Cady, 92 S.Ct. 1048,

1052 (1972). The issue, therefore, is whether the deprivation of

Bass’s liberty was caused by state action sufficient to come within

section 1983 as to any of these defendants.

Neither the actions of Parkwood nor Sheets may be considered

state action. Private action may be deemed state action, for

purposes of section 1983, only where the challenged conduct may be

“fairly attributable to the State.” Lugar, 102 S.Ct. at 2753. The

fair attribution test has two parts:

“First, the deprivation must be caused by the exercise of
some right or privilege created by the State or by a rule
of conduct imposed by the state or by a person for whom
the State is responsible. . . . Second, the party charged
with the deprivation must be a person who may fairly be
said to be a state actor. This may be because he is a
state official, because he has acted together with or has
obtained significant aid from state officials, or because
his conduct is otherwise chargeable to the state.”
Lugar, 102 S.Ct. at 2753-54.

The Supreme Court has applied several different formulas to

determine whether seemingly private conduct may be charged to the

state. See Lugar, 102 S.Ct. at 2754-55 (recognizing public

function test, state compulsion test, nexus test, and joint action

tests). Under the public function test, a “private entity may be

deemed a state actor when that entity performs a function which is

traditionally the exclusive province of the state.“ See Wong v.

Stripling, 881 F.2d 200, 202 (5th Cir. 1989). However, “[w]hile

many functions have been traditionally performed by governments,

very few have been ‘exclusively reserved to the State.’” Flagg

11
Bros, 98 S.Ct. at 1734 (finding that “resolution of private

disputes,” was not a traditionally exclusive function of

government).

The state compulsion (or coercion) test holds that “a State

normally can be held responsible for a private decision only when

it has exercised coercive power or has provided such significant

encouragement, either overt or covert, that the choice must in law

be deemed to be that of the State.” Blum v. Yaretsky, 102 S.Ct.

2777, 2786 (1982) (citations omitted). The state’s mere

acquiescence in private conduct, even where authorized by statute,

will not transform that conduct into state action. See Flagg

Bros., 98 S.Ct. at 1737-38 (holding warehouseman’s sale of goods

pursuant to statutory self-help measures was not state action).

Under the nexus or joint action test, state action may be

found where the government has “so far insinuated itself into a

position of interdependence with the [private actor] that it was a

joint participant in the enterprise.” Jackson v. Metropolitan

Edison Co., 95 S.Ct. 449, 457 (1974) (citation omitted). For

example, in Lugar, the Court found state action based on a statute

unconstitutionally authorizing the sheriff to attach a debtor’s

property on the basis of an ex-parte writ. See Lugar, 102 S.Ct. at

2744. “[A] private party’s joint participation with state

officials in the seizure of disputed property is sufficient to

characterize that party as a ‘state actor’ for purposes of the

Fourteenth Amendment.” Id. at 2756. Under any formula, however,

the inquiry into whether private conduct is fairly attributable to

12
the state must be determined based on the circumstances of each

case. Id. at 2755.

A private citizen does not become a state actor by initiating

civil commitment procedures against another person. Dahl v. Akin,

630 F.2d 277, 281 (5th Cir. 1980). Mr. Dahl was an elderly widower

who intended to remarry. Fearing the loss of her inheritance,

Dahl’s daughter and her husband convinced a state court to commit

Dahl to a mental institution. After his release, Dahl sued his

daughter and her husband for the deprivation of his civil rights

under section 1983. This Court noted that Dahl’s confinement,

consummated under the order of a state court, seemed “at first

blush” to result from state action. See id. at 277. However, upon

closer inspection, we concluded that the defendants’ alleged acts

were more akin to the filing of a private lawsuit which, at least

in that case, did not implicate state action. See id. at 281-82.

A private citizen does not become a state actor merely by filing a

private civil action, even where authorized by state statutes. See

Dahl, 630 F.2d at 281. “It is not enough, where the state in no

way compelled appellees’ actions [citation], that they acted ‘with

knowledge of and pursuant to’ [state] statutes.” Id., (quoting

Flagg Bros. 98 S.Ct. at 1733) (internal citations omitted). We

accordingly affirmed dismissal of Dahl’s complaint for failure to

state a section 1983 claim. Id. at 278 n.1.

Similarly, a private hospital is not transformed into a state

actor merely by statutory regulation. See, e.g., Blum, 102 S.Ct.

at 2786; Wong, 881 F.2d at 202 (finding no state action in

13
hospital’s disciplinary action against doctor, even though statutes

regulated hospital and provided limited judicial review of

disciplinary action); Diagle v. Opelousas Health Care, Inc., 774

F.2d 1344, 1348-49 (5th Cir. 1985) (finding no state involvement to

support section 1983 action against private nursing home despite

state regulation and public funding).

On facts similar to these, several circuit courts have held

that a private citizen or hospital does not become a state actor by

participating in the civil commitment of a mentally ill individual.

See, e.g., Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996); Ellison v.

Garbarino, 48 F.3d 192 (6th Cir. 1995); Rockwell v. Cape Cod

Hospital, 26 F.3d 254 (1st Cir. 1994); Harvey v. Harvey, 949 F.2d

1127 (11th Cir. 1992); Spencer v. Lee, 864 F.2d 1376 (7th Cir.

1989). See also Jarrell v. Chemical Dependency Unit of Acadiana,

791 F.2d 373, 374 (5th Cir. 1986) (per curiam) (assuming arguendo

involuntary commitment might be state action but holding treatment

inside hospital was not connected to state).

In Spencer, the Seventh Circuit found no state action based on

Illinois statutes regulating involuntary commitment procedures.

See Spencer, 864 F.2d at 1378-79. The statutes in that case

permitted the private initiation of commitment procedures.

However, the statutes neither encouraged nor required the

commitment of mentally ill individuals. See id. at 1379. Nor did

the case fall under the “public function” theory of state action.

See id. at 1379. After thorough review of civil commitment

procedures, the court determined that private citizens had

14
traditionally been permitted to initiate commitment proceedings.

The private commitment of the mentally ill was common practice in

eighteenth century England. See id. at 1381 (noting that “Bedlam”

was originally a private institution). Thus, the commitment and

treatment of the mentally ill could not be deemed a function

traditionally within the exclusive province of the state. See id.

Finally, the court compared civil commitment to a citizen’s arrest,

which has been held not subject to section 1983 challenges. Id. at

1380. See also White v. Scrivner Corp., 594 F.2d 140, 142-143 (5th

Cir. 1979) (finding no state action in store employees’ detention

of suspected shoplifters). As in the case of a citizen’s arrest or

a warehouseman’s sale, the statutory authorization of private acts

does not transform such conduct into state action: “The statutes

authorizing or constraining these private activities may or may not

be constitutional [citation]; the activities themselves remain

private [citations].” Spencer, 864 F.2d at 1381 (citations

omitted).

Similarly, Mississippi’s civil commitment statutes neither

compel nor encourage the private initiation of commitment

proceedings. Instead, they merely authorize and regulate the

commission of such acts. The fact that the defendants in this case

invoked the assistance of the courts and police officers is not

sufficient to show a nexus or joint effort between the defendants

and the state. See Spencer, 864 F.2d at 1381 (“[P]olice assistance

in the lawful exercise of self-help does not create a conspiracy

with the private person exercising that self-help.”) (citing Lugar,

15
102 S.Ct. at 2755 n.21).

Finally, the civil commitment process traditionally has not

been not a function exclusively reserved to the State of

Mississippi. The Mississippi Constitution of 1890 charged the

State with the duty to care for the mentally ill. See Chill, 429

So.2d at 579. However, in 1899 the Mississippi Supreme Court

upheld a civil suit against two physicians who filed certificates

attesting to a woman’s insanity and leading to her commitment, even

though those physicians were not the parties legally charged with

making commitment decisions. See Bacon v. Bacon, 24 So.2d 968

(Miss. 1899). This reflects that private citizens in Mississippi

have been participating in the civil commitment process for over

one hundred years. Mississippi civil commitment cannot be

considered a traditionally exclusive public function for purposes

of the state action analysis.

Neither Parkwood nor Sheets can be held liable under section

1983.

Bass’s section 1983 claims against DeSoto County also fail.

Bass first alleges that the officers illegally detained him before

the writ was signed, thereby violating his Fourth Amendment rights

as applied to the states by the Fourteenth Amendment. The officers

are indisputably state actors. However, they are not official

policy makers for DeSoto County, and therefore their conduct, even

if tortious, cannot bind the County under section 1983. See Monell

v. Department of Social Servs., 98 S.Ct. 2018, 2036, (1978).

“Under 42 U.S.C. § 1983, a county cannot be held liable on a theory

16
of respondeat superior merely because it employs a tortfeasor.”

Esteves v. Brock, 106 F.3d 674, 677 (1997). To hold a local

government liable for the acts of its agents or officers, the

plaintiff must prove that his injury was caused by an official

policy or custom of the municipality. See id. Bass has alleged no

facts indicating that he was illegally detained pursuant to any

official policy or custom of the County. Therefore, the County

cannot be held liable for the allegedly illegal detention.

Bass’s second complaint against the county—that he was

humiliated by being transported in shackles—simply does not present

a constitutional violation.

Similarly, the County cannot be held liable based on the acts

or omissions of the chancery court or the special master, because

neither’s actions represent any policy or custom of DeSoto County.

“We have repeatedly held . . . that a municipal judge acting in his

or her judicial capacity to enforce state law does not act as a

municipal official or lawmaker.” Johnson v. Moore, 958 F.2d 92, 94

(5th Cir. 1992). This principle extends to Bass’s claims against

the special master, who performed duties functionally equivalent to

those of a judge. See Boston v. Lafayette County, Mississippi, 743

F.Supp. 462, 471 (N.D. Miss. 1990); cf. Husley v. Owens, 63 F.3d

354 (5th Cir. 1995) (holding, under section 1983, that absolute

immunity for judicial officers applies to other officers performing

judicial functions). Because there is no allegation suggesting

that the allegedly improper judicial acts represent the official

policy or custom of DeSoto County, the acts cannot subject the

17
County to liability under section 1983. See Johnson, 958 F.2d at

94.9 See also Clark v. Tarrant County, 798 F.2d 736, 744 (5th Cir.

1986) (Texas district judges are state officers).

Neither Parkwood nor Sheets was a state actor. Furthermore,

no facts are alleged indicating that the acts of the peace officers

or of the judicial officers represent any official policy or custom

of DeSoto County. Therefore, we affirm the dismissal of Bass’s

claims under 42 U.S.C. § 1983 against all defendants.

In addition to challenging the lawfulness of his confinement,

Bass alleges that, while at Parkwood, he was discriminated against

on the basis of his race and his religion. 42 U.S.C. § 2000a

(1999) prohibits even private discrimination on the grounds of

race, color, or religion in places of public accommodations.10

Unlike many other civil rights statutes, however, 42 U.S.C. §

2000a allows only for prospective relief and does not authorize

damage awards. See 42 U.S.C. § 2000a-3 (1999); Newman v. Piggie

Park Ents., 88 S.Ct. 964, 966 (1968).

Thus, even accepting as true Bass’s allegations that he was

discriminated against by Parkwood personnel on the basis of his

9
We note that the chancery court, under Mississippi law, is
not an entity of DeSoto County, but is instead a district court of
the State, established pursuant to Miss. Code Ann. § 9-5-11 (1991
& Supp. 1998). The county courts are authorized by Miss. Code Ann.
§ 9-9-1 (1991) et seq.
10
“All persons shall be entitled to the full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of any place of public
accommodation, as defined in this section, without discrimination
or segregation on the ground of race, color, religion, or national
origin.” 42 U.S.C. § 2000a(a) (1999).

18
race or religion, this statute does not provide a cause of action

for damages against Parkwood. Bass did request injunctive relief

under this statute by requesting that the district court order

Parkwood to “cease all discrimination.” However, Bass does not

have standing to assert a claim for injunctive relief against the

hospital because there is no allegation suggesting that he is

likely to again suffer from Parkwood’s discriminatory actions. See

Armstrong v. Turner Indus., 141 F.3d 554, 563 (5th Cir. 1998).

We also note Bass’s arguments on appeal that Parkwood failed

to accommodate his disability. However, we can find no facts in

Bass’s complaint related to any claim on this basis.

V. Bass’s State Law Claims

Bass’s complaint contains allegations tending to support state

law claims of false imprisonment and malicious prosecution arising

out of the allegedly false affidavit and his assertedly unlawful

detention. However, Bass has not alleged that DeSoto County or any

of the sheriff’s deputies were even aware of the falsity of the

affidavit, nor do any of the facts alleged suggest such knowledge.

Therefore, the County cannot be held liable under any tort theory

present here. However, Bass has made a colorable showing of tort

law claims against Parkwood and Sheets. The district court erred

in summarily dismissing these claims against Parkwood and Sheets

with prejudice.

Mississippi courts have long recognized that actions for false

imprisonment may arise out an unlawful civil commitment. See Bacon

v. Bacon, 24 So.2d 968 (Miss. 1899); Lee v. Alexander, 607 So.2d

19
30, 34 (Miss. 1992). Under Mississippi law, false imprisonment

requires proof only that the plaintiff was detained and that the

detention was unlawful. Lee, supra. On the record as it now

stands, Bass has made a colorable showing of both elements of false

imprisonment, and his claims should be allowed to proceed against

Parkwood and Sheets.

The district court similarly erred in its summary merits

dismissal of Bass’s claims for malicious prosecution. Malicious

prosecution under Mississippi law has six elements:

“(1.) The institution or continuation of original
judicial proceedings, either criminal or civil;
(2.) by, or at the insistence of the defendants;
(3.) the termination of such proceeding in plaintiff’s
favor;
(4.) malice in instituting the proceedings;
(5.) want of probable cause for the proceedings; and
(6.) the suffering of damages as a result of the action
or prosecution complained of.” Van v. Grand Casinos of
Mississippi, Inc., 724 So.2d 889, 891 (Miss. 1998)
(citations omitted).

The magistrate judge found that Bass could not prove that the

proceedings terminated in his favor, because the special master

issued the writ. However, we have been shown no law supporting

this position. At least one Florida court has explicitly rejected

this argument. See Pellegrini v. Winter, 476 So.2d 1363 (Fla.

Dist. Ct. App. 1985). In that case, the court concluded that the

initial ex parte order allowing a preliminary detention was the

initiation, rather than the termination, of commitment procedures.

Id. at 1365. Analogously, in a civil suit arising from the

wrongful commitment of the elderly Mr. Dahl, the Texas Supreme

Court ruled that the guardianship court’s initial commitment action

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of Dahl was not evidence of probable cause to initiate civil

commitment procedures against him. See Akin v. Dahl, 661 S.W.2d

917, 919 (Tex. 1983).

We think the Mississippi courts would likely agree that the

examination determining Bass was not in need of treatment and the

subsequent order for Bass’s release constituted a termination in

Bass’s favor. The examination more closely resembles a

determination on the merits than the special master’s ex parte

writ. Moreover, it is difficult to classify the writ as a

termination when it truly only authorizes the commencement of

commitment proceedings.

Finally, a recent decision of the Mississippi Supreme Court

arguably lends some support to this view. See Van, 724 So.2d at

893 (holding that a dismissal of criminal charges for failure to

prosecute results in the favorable termination of criminal

charges.). In Van, the court refused an interpretation of

“favorable termination” which would “inevitably [leave] some

criminal defendants [] with no remedy for a maliciously instituted

suit. We believe this result should be avoided.” Id. Similarly,

to hold that the issuance of an ex parte writ solely on the basis

of an alleged knowingly false affidavit constitutes an unfavorable

termination of commitment proceedings would undoubtably leave some

maliciously committed individuals without a civil remedy.

Therefore, we hold that the physician’s determination on April

25 that Bass was not in need of medical treatment and the chancery

court’s subsequent vacation of the writ constituted a termination

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in Bass’s favor for purposes of a malicious prosecution action.

Because Bass has made a colorable showing of state tort law claims

against Sheets and Parkwood, the district court erred in summarily

dismissing his complaint with prejudice.11

The lower court erred in determining that Sheets is immune

from civil prosecution for her role in procuring Bass’s commitment.

Section 41-21-105 grants immunity to persons who initiate

commitment proceedings in good faith. See Carrington v. Methodist

Medical Center, Inc., 1999 WL 275154 (Miss. 1994) (recognizing

good faith requirement). However, Bass has alleged that he made

none of the statements which the Sheets commitment affidavit says

he made in her presence and he has specifically alleged that Sheets

acted in bad faith, and on this record that allegation must be

taken as true for purposes of the district court’s summary

dismissal. Section 41-21-105 does not prevent Bass from stating a

claim against Sheets.

VI. Jurisdiction

Bass filed his complaint in federal court pursuant to the

general federal question jurisdiction statute, 28 U.S.C. § 1331.

As we affirm the dismissal of all of Bass’s federal claims, no

11
Bass’s pleadings also allege harm to his reputation and the
forced administration of medication against his will. These facts
might, upon further development, support additional tort claims
under Mississippi law. Moreover, Bass argues that he has been
charged over $7,000 for his treatment at Parkwood, and that he
fears continued collection of bills which he does not owe. The
Mississippi Code allows costs relating to a patient’s confinement
and treatment to be charged to the patient. Section 41-21-79.
However, “if the respondent is found by the court to not be in need
of mental treatment then all such costs shall be taxed to the
affiant initiating the hearing.” Section 41-21-79.

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federal question remains before the district court. However, this

fact does not divest the court of jurisdiction: instead, the court

must exercise its discretion whether to exercise supplemental

jurisdiction over Bass’s state law claims. See 28 U.S.C. §

1367(c)(3) (“The district courts may decline to exercise

supplemental jurisdiction over a claim under subsection(a) if . .

. (3) the district court has dismissed all claims over which it has

original jurisdiction”). When a court dismisses all federal claims

before trial, the general rule is to dismiss any pendent claims.

See Wong, 881 F.2d at 204. However, the dismissal of the pendent

claims should expressly be without prejudice so that the plaintiff

may refile his claims in the appropriate state court.12

CONCLUSION

We find no abuse of discretion in the district court’s

revocation of Bass’s in forma pauperis status. Bass’s federal

civil rights claims were properly dismissed as there was no state

action in either Sheets’ or Parkwood’s actions, and DeSoto County

cannot be held liable based on the actions of the peace officers or

the chancery court. However, Bass has asserted Mississippi law

causes of action in tort against Sheets and Parkwood, and Bass

should have been permitted to amend his complaint to name the

appropriate legal entity as the proper party defendant in lieu of

Parkwood. On remand, the district court should exercise its

12
While Bass has never asserted or pled facts sufficient to
support diversity jurisdiction, if on remand he timely and properly
seeks to do so, the district court should consider whether the
interests of justice, including consideration of Bass’s pro se
status, militates in favor of allowing Bass to do so.

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discretion under 28 U.S.C. § 1367 to either hear Bass’s state law

claims or, more likely, to dismiss those claims without prejudice.13

The dismissal of all of Bass’s federal claims, and of all of

his claims against Dr. Rayudu and DeSoto County, is affirmed; the

dismissal of the balance of the case is vacated and as to the

balance of the case the cause is remanded for further proceedings

consistent herewith.

AFFIRMED in part, VACATED in part, and REMANDED14

13
Assuming the case does not proceed on the basis of diversity
(see note 12 above).
14
Bass’s motions to file a supplemental reply brief and a
revised supplemental reply brief have been carried with the case.
Those motions are hereby granted.

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