Daniels v. Twin Oaks Nursing Home

HOFFMAN, District Judge,

concurring specially:

Plaintiff, Bob Daniels, as administrator of the estate of the decedent, Isaac Daniels, asserts two claims in this non-diversity action. The first is a claim under 42 U.S.C. § 1983 in which the plaintiff alleges that the defendants deprived Isaac Daniels of the right to life as guaranteed by the Constitution of the United States, while acting under color of law, by failing to properly supervise and provide safe care for him. The second claim is a pendent state law negligence claim for the wrongful death of Isaac Daniels which, under Alabama law, is limited to a recovery for punitive damages.

The case was tried by a magistrate and, upon an agreement of the parties that the federal and state theories of recovery were identical, both claims were submitted to the jury under a single negligence instruction. The jury returned a single general verdict for the plaintiff, awarding $1 million. The magistrate, however, entered a judgment n.o.v., and in the alternative, granted a new trial on the ground that damages were excessive.

Judge Godbold, in this appeal, affirms the granting of the judgment n.o.v. on the ground that there was insufficient evidence under the federal standard to support the jury’s verdict. I agree with Judge God-bold’s opinion as to the granting of judgment n.o.v. I concur specially, however, because in my opinion the 42 U.S.C. § 1983 claim does not present a substantial federal claim and as such the section 1983 claim should have been dismissed. Since no substantial federal claim was presented, the court lacked jurisdiction to hear the state negligent wrongful death claim.

A federal court has jurisdiction to hear a pendent state claim only when the court is presented with a substantial federal question and the state and federal claims derive from a common nucleus of operative fact. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966); Jackson v. Stinchcomb, 635 F.2d 462, 470 (5th Cir.1981). If a substantial federal claim is not presented, the court does not have pendent jurisdiction to hear a related state claim. See also Gellert v. Eastern Airlines, Inc., 688 F.2d 723 (11th Cir.1982). A claim is insubstantial if it lacks merit or if prior decisions clearly foreclose the matter. See Jackson v. Stinehcomb, supra, at 471; Florida East Coast Railway Co. v. United States, 519 F.2d 1184, 1194 n. 26 (5th Cir.1975). The question of whether pendent jurisdiction is proper normally will be resolved on the pleadings, but *1330if jurisdiction is' assumed the question should remain open throughout the litigation. United Mine Workers v. Gibbs, supra, at 727, 86 S.Ct. at 1139. Thus, if it appears from the pleadings that a substantial federal question is not presented, the court does not have jurisdiction to hear the pendent state claim, or if it appears during the trial that the federal claim is insubstantial the pendent claim must then be dismissed.

It is my opinion that the plaintiff in this case failed to present a substantial federal question and thus the court lacked jurisdiction to hear either the federal or state claim.1

A claim for relief under 42 U.S.C. § 19832 must embody two essential elements. First, the conduct complained of must have deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.' Second, the conduct complained of must have been committed by a person acting under color of law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981);3 Adickes v. S.H. Kress *1331& Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). These two elements are jurisdictional requisites for a section 1983 action, thus if the plaintiff fails as to either the court cannot hear the suit. See Polk County v. Dodson, 454 U.S. 312, 315, 102 S.Ct. 445, 448, 70 L.Ed.2d 509 (1981). The plaintiff, in the present case, has not satisfied either of the requirements for a section 1983 claim.

I. CONSTITUTIONAL DEPRIVATION?

First, the plaintiff has not complained of conduct involving a deprivation of constitution magnitude. The plaintiff alleges that the defendant nursing home deprived Isaac Daniels of life by negligently failing to properly supervise and provide safe care for him. Presumably, the plaintiff is claiming that the defendant’s conduct violated the fourteenth amendment’s protection against deprivation of life without due process of law. There cannot, of course, be a constitutional right to life without more.

On several occasions the Supreme Court has warned that section 1983 imposes liability for violations of rights protected by the Constitution, and not for violations of duties of care arising out of tort law. See, e.g., Baker v. McCollan, 443 U.S. at 146, 99 S.Ct. at 2695; Estelle v. Gamble, 429 U.S. 97, 104-06, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976); Paul v. Davis, 424 U.S. 693, 698-701, 96 S.Ct. 1155, 1159-1160, 47 L.Ed.2d 405 (1976). To warrant section 1983 relief, the defendant’s actions must amount to a constitutional violation. See Baker v. McCollan, supra. While some conduct may clearly be violative of tort law, it may not be a constitutional injury, and the proper remedy is not a section 1983 claim but a suit in state court under traditional tort principles. Id. at 146, 99 S.Ct. at 2695. See also Shillingford v. Holmes, 634 F.2d 263 (5th Cir.1981).

Even if I were to ássume that the defendant nursing home may have been negligent and as such its conduct was wrongful, the conduct was only tortious and did not constitute a constitutional deprivation. My opinion is based on previous decisions of this court and other courts. In Williams v. Kelley, 624 F.2d 695 (5th Cir.1980), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981), the Fifth Circuit addressed whether negligent wrongful death stated a deprivation of a constitutional right cognizable in a section 1983 claim. In Williams the decedent died as a result of a choke hold placed on him by a police custodial officer while the officer was attempting to restrain him. 624 F.2d at 696. The mother of the decedent sued the officers involved under section 1983 for wrongful death. Id. at 697. The court concluded that the allegations did not state a deprivation of a federal right and thus the requirements for a section 1983 suit had not been met. Id. at 697-98.4

More recently in Hull v. City of Duncanville, 678 F.2d 582 (5th Cir.1982), the Fifth Circuit continued the Williams v. Kelley analysis and applied it to a section 1983 suit for injuries arising out of a train-vehicle collision. The father of the injured minor sued the city under section 1983 for depriving “the minor without due process of law of the minor’s right to be free from permanently-disabling injuries.” 678 F.2d at 583. The action was based upon the city’s failure to enforce its train traffic speed limit, and its negligent failure to maintain the crossing and traffic signals. Id. at 583-84. The court found that the actions pleaded may constitute a tort, but did not establish a constitutional violation actionable under section 1983. Id. at 584-85.5

*1332Additionally, dicta in Supreme Court cases leads me to the conclusion that this type of negligent wrongful death claim does not state a constitutional violation. In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), Justice Rehnquist, writing for the majority, cautioned against opening up section 1983 to such litigation. He stated:

If [plaintiffs] view is to prevail, .... it would be difficult to see why the survivors of an innocent bystander mistakenly shot by a policeman or negligently killed by a sheriff driving a government vehicle, would not have claims equally cognizable under § 1983.

424 U.S. at 698, 96 S.Ct. at 1159. The caution was reiterated in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), when Justice Rehnquist stated:

To accept respondent’s argument that the conduct of the state officials in this case constituted a violation of the Fourteenth Amendment would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under “color of law” into a violation of the Fourteenth Amendment cognizable under § 1983. It is hard to perceive any logical stopping place to such a line of reasoning. Presumably, under this rationale any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983. Such reasoning “would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States.” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976). We do not think that the drafters of the Fourteenth Amendment intended the Amendment to play such a role in our society.

451 U.S. at 544, 101 S.Ct. at 1917. Similarly, Justice Powell stated in his concurrence in Parratt:

[Section 1983] was enacted to deter real abuses by state officials in the exercise of governmental powers. It would make no sense to open the federal courts to lawsuits where there has been no affirmative abuse of power, merely a negligent deed by one who happens to be acting under color of state law.

451 U.S. at 549, 101 S.Ct. at 1920.

For the above stated reasons, I believe that the conduct of the defendant nursing home, which the plaintiff bases his section 1983 claim upon, clearly does not amount to a constitutional deprivation.

II. STATE ACTION?

Second, the conduct of the defendant nursing home that the plaintiff complains of does not constitute state action.6 The *1333plaintiff focuses on several factors in arguing that the nursing home’s conduct is state action. The plaintiff relies on the fact that the nursing home receives substantial funding from the state and that nursing homes are regulated by the state. Additionally, the plaintiff points to the contract between the defendant and the state that provided for the care of Daniels. According to the plaintiff, these factors evidence an interdependence and symbiotic relationship between the nursing home and the state. The plaintiff argues, also, that in caring for Daniels the nursing home was carrying out an inherently and exclusively government function, and thus there was state action.

The actions of a private party can be so closely associated with the state as to constitute state action. A private party will be subject to suit under section 1983 if the conduct allegedly causing the deprivation of a federal right is “fairly attributable to the state.” Lugar v. Edmondson Oil Co., - U.S. -, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982); Rendell-Baker v. Kohn, - U.S. -, 102 S.Ct. 2764, 2770, 73 L.Ed.2d 418 (1982). The state must be shown to be sufficiently connected with the particular aspect of the defendant’s conduct complained of so that the defendant is treated as a state actor and the defendant’s act is treated as that of the state. See Lugar v. Edmondson Oil Co., 102 S.Ct. at 2754-55; Blum v. Yaretsky, - U.S. -, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982). See also Sims v. Jefferson Downs, 611 F.2d 609, 611 (5th Cir.1980). A number of different factors or tests have been articulated which can be looked to in determining whether conduct of a private party is fairly attributable to the state.7

The complaining party can demonstrate that “there is a sufficiently close nexus [or symbiotic relationship] between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974) (emphasis added). See also Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Sims v. Jefferson Downs, 611 F.2d at 611. The plaintiff may also demonstrate that the state exercised its coercive power or provided significant encouragement such that the defendant’s act was coerced by the state. Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90 S.Ct. 1598, 1615, 26 L.Ed.2d 142 (1970). Last, the plaintiff may demonstrate that the private defendant exercised some power delegated to it by the state which is “traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison Co., 419 U.S. at 352-53, 95 S.Ct. at 454-55. See also, Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157-61, 98 S.Ct. 1729, 1733-36, 56 L.Ed.2d 185. Considering all of the factors in this case that may be evidence of state action, in my opinion, there is no state action.

I believe the Supreme Court decision in Blum v. Yaretsky, - U.S. -, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), controls this case and directs a finding of no state action.8 In Blum v. Yaretsky, the Supreme Court considered whether a nursing home was a state actor when decisions were made regarding the transfer of Medicare patients. 102 S.Ct. at 2781-82. The challenged transfers primarily involved decisions of a utilization review committee to move Medicare patients from “skilled nursing facilities” to less expensive “health related facilities.” Id. at 2781, 2786. The nursing home took care of Medicare patients and the state paid the medical expenses of more than 90% of the patients. The state also subsidized the operating and capital costs of the facility. Id. at 2789. The nursing home was licensed and regulated by the state, and subject to on-site inspections by state medical review *1334teams. Id. at 2788 n. 21, 2789. The Supreme Court considered all the factors and concluded that there was no state action. The Court stated:

But accepting all of these assertions as true, we are nonetheless unable to agree that the State is responsible for the decisions challenged by respondents. As we have previously held, privately owned enterprises providing services that the State would not necessarily provide, even though they are extensively regulated, do not fall within the ambit of Burton. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357-358, 95 S.Ct. 449, 456-57, 42 L.Ed.2d 477. That programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than the fact of regulation of such an entity in demonstrating that the State is responsible for decisions made by the entity in the course of its business.

Id. at 2789 (emphasis added). The Court specifically concluded that nursing homes do not perform a function that falls within the exclusive prerogative of the state. Id. at 2789-90. The Court stated:

We are also unable to conclude that the nursing homes perform a function that has been “traditionally the exclusive prerogative of the State.” Jackson v. Metropolitan Edison Co., supra, at 353, 95 S.Ct., at 454.... Even if respondents’ characterization of the State’s duties were correct, however, it would not follow that decisions made in the day-to-day administration of a nursing home are the kind of decisions traditionally and exclusively made by the sovereign for and on behalf of the public. Indeed, respondents make no such claim, nor could they.

Id. (emphasis added).

In Blum the Supreme Court likened the nursing home situation to the public defender situation in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981).9 Blum v. Yaretsky, 102 S.Ct. at 2788. The Court explained:

This case, therefore, is not unlike Polk County v. Dodson, ... in which the question was whether a public defender acts “under color of” state law within the meaning of 42 U.S.C. § 1983 when representing an indigent defendant in a state criminal proceeding. Although the public defender was employed by the State and appointed by the State to represent the respondent, we concluded that “[t]his assignment entailed functions and obligations in no way dependent on state authority.”. .. The decisions made by the public defender in the course of representing his client were framed in accordance with professional canons of ethics, rather than dictated by any rule of conduct imposed by the State. The same is true of nursing home decisions to discharge or transfer particular patients because the care they are receiving is medically inappropriate.

102 S.Ct. at 2788.

Although not involving a nursing home, another case the Supreme Court decided along with Blum v. Yaretsky, directs a finding of no state action in this case. In Rendell-Baker v. Kohn, - U.S. -, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), the Supreme Court addressed whether a private school was a state actor when it discharged certain employees. The school was a nonprofit institution in Brookline, Massachusetts, that specialized in giving high school instruction to students with drug, alcohol, or behavioral problems, or other special needs. 102 S.Ct. at 2755-67. Students were referred to the school by the Brookline or Boston school committees, or by the Drug Rehabilitation Division of the Massachusetts Department of Mental Health. The school had a contract with the Boston School Committee requiring it to carry out the individualized plans developed for each student. The school also had a contract with the State Drug Rehabilitation Division. During the years pertinent to the case, the school had approximately 50 students, most having been referred to the *1335school, and none paying tuition. Public funds provided at least 90% of the school’s operating budget and the school was regulated by the public authorities. Id. The Supreme Court followed the same analysis it applied in Blum v. Yaretsky, supra, considered all of the factors, and concluded that there was no state action. Id. at 2770-72. In referring to the contracts the Court stated, “Acts of such private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.” Id. at 2771. The Court also specifically concluded that there was no “public function” or “symbiotic relationship” involved. Id. at 2772.

In my opinion, considering the results in Blum v. Yaretsky, supra, Rendell-Baker v. Kohn, supra, Polk County v. Dodson, supra, and other cases, the facts of the present case clearly indicate that there is no state action.

For the reasons discussed above, I believe the decisions of the district court and the magistrate that there was a constitutional deprivation and that there was state action were erroneous. Since the plaintiff did not allege any deprivation amounting to a violation of a federal right, and the activities of the defendant did not involve any state action, the plaintiff did not present a substantial federal question and the district court was without jurisdiction to consider the section 1983 claim or the pendent state claim.

Nevertheless, I join in the views of Chief Judge Godbold on the merits of the pendent state action.

. Even where the district court has pendent jurisdiction, it is discretionary with the court whether to exercise the pendent jurisdiction. United Mine Workers v. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139; Jackson v. Stinchcomb, 635 F.2d at 472. In deciding whether to exercise pendent jurisdiction there are several factors the court should weigh. See United Mine Workers v. Gibbs, 383 U.S. at 725-26, 86 S.Ct. at 1138-39. The justification for exercising pendent jurisdiction lies in weighing the considerations of (1) judicial economy; (2) convenience and fairness to the litigants; (3) avoiding needless decisions of state law as a matter of comity, and to promote justice between the parties by procuring for them a surer-footed reading of the applicable law; (4) whether the state issues predominate in terms of proof, scope of the issues, or comprehensiveness of the remedy sought; and (5) the likelihood of jury confusion in treating divergent legal theories of relief. Id. See also Jackson v. Stinchcomb, 635 F.2d at 472-73. If after considering these factors, the balance is against the court exercising pendent jurisdiction, it should not hear the pendent claim. See United Mine Workers v. Gibbs, supra. Additionally, if the federal claims are dismissed before trial, even though not insubstantial, the state claims should be dismissed as well. Id. at 726, 86 S.Ct. at 1138.

In the present case, even assuming a substantial federal claim was presented, it was an abuse of discretion for the court to exercise its pendent jurisdiction. After weighing all the factors listed above, the balance falls unquestionably on the side of refraining from exercising pendent jurisdiction.

. 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

. Parratt v. Taylor involved a section 1983 claim alleging a negligent deprivation of property. The Supreme Court allowed the claim based upon the allegation of simple negligence because section 1983 does not contain a “state-of-mind” requirement. 451 U.S. at 531-35, 101 S.Ct. at 1910-12. The Court went on to point out, however, that the fourteenth amendment protects only against deprivations occurring “without due process of law.” Id. at 531, 101 S.Ct. at 1910. The Court held that the plaintiff had not been deprived of property without due process because the State of Nebraska provided a tort claims procedure that satisfied the due process of law requirement of the fourteenth amendment. Id. at 535-44, 101 S.Ct. at 1912-17.

The courts that have attempted to implement the Parratt decision, have thus far been unable to reach a concensus as to the full meaning and reach of the decision. See, e.g., Pantoja v. City of Gonzales, 538 F.Supp. 335 (N.D.Cal.1982); Howse v. DeBerry Correctional Institute, 537 F.Supp. 1177 (M.D.Tenn.1982); Starstead v. City of Superior, 533 F.Supp. 1365 (W.D.Wis. 1982). The present case at first blush appears to be one that may be impacted by Parratt, since it involves a simple negligence section 1983 claim, however, a thorough reading of Parratt and prior Supreme Court cases clearly reveals that this court does not need to address whether the Parratt analysis and holding applies. Before the Parratt analysis is reached and an exploration of the relationship between the defendant’s state-of-mind and liability under section 1983 is necessary, the plaintiff must first establish the basic elements of a section 1983 claim. Parratt v. Taylor, 451 U.S. at 535, 101 S.Ct. at 1912; Baker v. McCollan, 443 U.S. 137, 139-40, 99 S.Ct. 2689, 2692-93, 61 L.Ed.2d 433 (1979). See also Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981). If the basic elements of a section 1983 claim are not established initially, as is the case here, it is not necessary to decide whether Parratt applies because a valid claim has not been stated. Accord, Hull v. City of Duncanville, 678 F.2d 582, 584-85 (5th Cir.1982). See also Major v. Ben*1331ton, 647 F.2d 110, 112-13 (10th Cir.1981). See Baker v. McCollan, supra. The state-of-mind of the defendant, however, may be relevant as to the first element of a section 1983 claim; whether a constitutional violation occurred in the first place. Baker v. McCollan, supra, at 140 n. 1, 99 S.Ct. at 2692 n. 1.

. See Major v. Benton, 647 F.2d 110 (10th Cir. 1981). See also Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982).

. In Williams v. Kelly, 624 F.2d 695 (5th Cir. 1980), and Hull v. City of Duncanville, 678 F.2d 582 (5th Cir.1981), the court applied the “abuse of government power” standard in arriving at its conclusion that there was no constitutional violation. In Williams v. Kelly, the court stated:

Section 1983 plaintiffs must prove both (1) deprivation of a federal constitutional or legal right, ... which (2) resulted from “the sort of abuse of government power that is necessary to raise an ordinary tort by a *1332government agent to the stature of a violation of the Constitution.” ... This latter element renders federal rights protection far less extensive than that afforded by the common law of battery and negligence....
The deceased’s interest in life plainly was of constitutional dimension. U.S. Const, amend. XIV, § 1. We thus must ask whether defendants’ conduct — independent of its lawfulness or unlawfulness at state law — was sufficiently egregious as to be “constitutionally” tortious.... [T]he constitutionality of defendants’ conduct rests on
such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

624 F.2d at 697 (emphasis added) (citations omitted). See also Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981).

The plaintiff argues that this abuse of government power test does not survive Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), since Parratt allowed a section 1983 claim based on a negligent deprivation of property. This argument ignores language in Baker v. McCollan, 443 U.S. 137, 140 n. 1, 99 S.Ct. 2689, 2692 n. 1, 61 L.Ed.2d 433 (1979), where the Supreme Court pointed out that the defendant’s state of mind can be relevant as to whether a constitutional violation occurred. Additionally, Hull v. City of Duncan-ville was a post-Parratt case in which the Fifth Circuit discussed Parratt and applied the abuse of government power standard.

Even without the abuse of government power standard, I do not believe the plaintiff in the present case has stated a constitutional violation.

. In Lugar v. Edmondson Oil Co., - U.S. -, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the Supreme Court held that conduct which satisfies the “state action” requirement of the four*1333teenth amendment also satisfies the “under col- or of state law” requirement of section 1983. 102 S.Ct. at 2753.

. See Lugar v. Edmondson Oil Co., 102 S.Ct. at 2754-55; Blum v. Yaretsky, 102 S.Ct. at 2785-86.

. See also Greco v. Orange Memorial Hospital Corp., 513 F.2d 873 (5th Cir.1975); Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 87 (4th Cir.1978); Musso v. Suriano, 586 F.2d 59 (7th Cir.1978), cert. denied, 440 U.S. 971, 99 S.Ct. 1534, 59 L.Ed.2d 788 (1979).

. The reasoning in Polk County v. Dodson dealing with the “under color of law” requirement of section 1983 is equally applicable to cases where “state action” is the issue. Blum v. Yaretsky, 102 S.Ct. at 2788 n. 20.