Freeman v. Arapahoe House et al
Filing
95
ORDER Defendants Motion for Summary Judgment ECF No. 75 is GRANTED as to Plaintiffs federal claims; The Court declines to exercise supplemental jurisdiction over Plaintiffs state claims, and those claims are DISMISSED WITHOUT PREJUDICE; and The Clerk shall enter judgment in favor of Defendant and against Plaintiff. Defendant shall have its costs, by Judge William J. Martinez on 8/6/2014.(evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-0064-WJM-MJW
HEATHER FREEMAN,
Plaintiff,
v.
ARAPAHOE HOUSE, a non-profit corporation,
Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Heather Freeman (“Plaintiff”) has brought this civil action under 42
U.S.C. § 1983 against Defendant Arapahoe House (“Defendant”), alleging negligence
claims and violations of her Fourteenth Amendment right to substantive due process.
(Second Am. Compl. (ECF No. 38).) This matter is before the Court on Defendant’s
Motion for Summary Judgment (“Motion”). (ECF No. 75.) For the reasons set forth
below, Defendant’s Motion is granted.
I. BACKGROUND
The relevant facts, viewed in the light most favorable to the Plaintiff, are as
follows. Defendant is a detoxification facility that has a contract with the City of Aurora,
Colorado, under which Defendant receives funding so that the City can utilize
Defendant’s facilities for intoxicated persons. (Dean Dep. (ECF No. 86-3) pp. 12, 4849, 95.) Approximately half of Defendant’s clients are brought in by the police,
frequently in handcuffs. (Id. at 55, 94.) Defendant assesses those individuals and
determines whether it will accept them as clients. (Id. at 49.) Police officers are in and
out of the facility on a regular basis. (Id. at 42.)
On January 29, 2011, in the early morning hours, Plaintiff was at her mother’s
house in Aurora, Colorado and had been drinking alcohol when she and her brother got
into an argument. (Movant’s Statement of Material Facts (“MSMF”) (ECF No. 75) ¶¶ 1,
3.)1 Plaintiff’s mother awoke and called the police. (Id. ¶ 2.) Plaintiff departed her
mother’s house before the police arrived, but was approached by police officers as she
stood on a nearby street corner. (Id. ¶¶ 4-5.) The officers gave Plaintiff a breathalyzer
test, determined that Plaintiff was intoxicated, and gave her the choice of being arrested
or going to a detox facility. (Freeman Dep. (ECF No. 86-2) pp. 13-14.) Plaintiff chose
detox, and was taken to Defendant’s facility. (Id. at 14.)
After Plaintiff was checked into the facility and used the telephone, a male client
of the facility named Christian Suarez told her that he could show her a place to get
water and hang out. (MSMF ¶ 12.) Suarez brought Plaintiff to an empty room in the
facility where he sexually assaulted her. (Id. ¶¶ 13-17.) Plaintiff shouted for help and
ran to the check-in area to report the assault. (Id. ¶¶ 17-18.) A police officer and one
of Defendant’s staff members were present when Plaintiff reported the assault. (Id. ¶
20; Dean Dep. p. 43.) None of Defendant’s staff was present to witness the assault,
and Defendant has no surveillance cameras inside the facility. (Dean Dep. pp. 44-45.)
When a female police officer arrived and interviewed Plaintiff about the assault,
Plaintiff became upset and agitated, and was placed under arrest. (MSMF ¶¶ 23-24.)
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The Court cites to Defendant’s statement of undisputed facts only where Plaintiff
admits the facts cited. (See ECF No. 86 at 2-4.)
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Suarez was arrested and subsequently pled guilty to the assault. (Id. ¶¶ 25-26.) The
charges against Plaintiff were later dismissed. (Id. ¶ 27.)
On March 12, 2013, Plaintiff filed the operative Second Amended Complaint in
this action, claiming that Defendant and the City of Aurora were liable pursuant to 42
U.S.C. § 1983 for violating her Fourteenth Amendment rights, that three Aurora police
officers arrested her without probable cause in violation of the Fourth Amendment, and
that Defendant was liable for negligence and negligent supervision in permitting the
assault to occur. (ECF No. 38.) Plaintiff subsequently dismissed her claims against the
City of Aurora and the three police officers. (ECF Nos. 77 & 79.)
Defendant filed the instant Motion on December 4, 2013. (ECF No. 75.) Plaintiff
filed her Response on January 10, 2014 (ECF No. 86), and Defendant filed its Reply on
February 3, 2014 (ECF No. 93).
II. LEGAL STANDARD
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal
Serv., 812 F.2d 621, 623 (10th Cir. 1987).
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A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248.
The Court must resolve factual ambiguities against the moving party, thus favoring the
right to a trial. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
III. ANALYSIS
Defendant moves for summary judgment as to all remaining claims against it.
(ECF No. 75 at 7-10.) The Court will discuss each in turn below.
A.
Section 1983 Claim
A claim under § 1983 “requires a plaintiff to show both the existence of a
federally-protected right and the deprivation of that right by a person acting under color
of state law.” Wittner v. Banner Health, 720 F.3d 770, 773 (10th Cir. 2013) (citing Lugar
v. Edmondson Oil Co., 457 U.S. 922, 924 (1982)). Defendant’s Motion challenges the
second of these requirements, arguing that Plaintiff has failed to show that it acted
under color of law. (ECF No. 75 at 7.)
The “under color of law” requirement in § 1983 cases is identical to the state
action requirement of the Fourteenth Amendment. Lugar, 457 U.S. at 928. For a
deprivation of a right to be committed under color of law, it “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,” and “the party charged
with the deprivation must be a person who may fairly be said to be a state actor.” Id. at
937. The Tenth Circuit has established four tests under which a private actor may be
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held accountable as a state actor for a constitutional deprivation: (1) the “nexus test,”
(2) the “public function test,” (3) the “joint action test,” and (4) the “symbiotic relationship
test.” Wittner, 720 F.3d at 775. The Court will discuss each of these tests in turn.
1.
Nexus Test
The nexus test evaluates whether the state has coerced or compelled a private
actor to perform the challenged action. Id.; see also Gallagher v. Neil Young Freedom
Concert, 49 F.3d 1442, 1448 (10th Cir. 1995) (“[A] plaintiff must demonstrate that there
is a sufficiently close nexus between the government and the challenged conduct such
that the conduct may be fairly treated as that of the State itself.”) (internal quotation
marks omitted).
In Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996), the Tenth Circuit reviewed a
§ 1983 claim against a doctor at a private hospital, whose psychiatric evaluation
resulted in the plaintiff’s involuntary detention pursuant to state statute. Id. at 1466.
The Tenth Circuit concluded that the doctor did not act under color of law pursuant to
the nexus test because his decision was not coerced or compelled by the state. Id.
The Tenth Circuit came to the same conclusion in Wittner v. Banner Health, a similar
case involving an involuntary hold, despite the hospital’s receipt of state funding and the
fact that state police officers had detained the plaintiff and had taken him to the
hospital. Wittner, 720 F.3d at 776.
Here, Defendant argues that its contract with the City of Aurora does not
sufficiently establish state coercion, because Defendant makes its own policies with
respect to admission to its facility and treatment of its clients. (ECF No. 75 at 8.) In her
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Response, Plaintiff makes a blanket statement that “there is support for a finding of
state action under each of the four tests,” but does not otherwise argue that Defendant
is a state actor under the nexus test or point to any specific evidence or case law
supporting such a finding. (ECF No. 86 at 10.)
Defendant’s challenged conduct here has far fewer indicia of state compulsion
than those present in Pino and Wittner, both of which failed the nexus test in spite of
the fact that the challenged conduct was authorized by state statutes. While there is a
dispute of fact as to how analogous Defendant’s facility is to a detention facility with
respect to the role of police officers and the ability of clients to leave at will (see ECF
No. 86 at 5-7), there are no facts which would support a conclusion that the challenged
staffing, supervision, and client monitoring policies are determined by the state, or by
anyone other than Defendant. (See, e.g., Dean Dep. p. 26 (noting that no state
“licensure or standard” requires a policy of completely segregating male and female
clients, and Defendant has no such policy).) Accordingly, given the lack of evidence
supporting a finding that Defendant’s challenged practices and policies with respect to
staffing and supervision are compelled by the state, the Court finds that no reasonable
jury could conclude that Defendant is a state actor under the nexus test.
2.
Public Function Test
The public function test inquires whether the challenged action “is a traditional
and exclusive function of the state.” Wittner, 720 F.3d at 777. “This test is difficult to
satisfy. While many functions have been traditionally performed by governments, very
few have been exclusively reserved to the State.” Gallagher, 49 F.3d at 1456 (internal
quotation marks omitted). Traditional and exclusive functions of the state include such
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functions as administering public elections, operating towns, or managing city parks, but
not educating children or enforcing statutory liens. See id.
Defendant argues that there is no support for a finding that operating
detoxification facilities is a traditional and exclusive function of the state. (ECF No. 75
at 8.) At least one district court has found that operating a drug detoxification facility is
not an exclusive state function. See Graves v. Narcotics Serv. Counsel, Inc., 605 F.
Supp. 1285, 1287 (E.D. Mo. 1985). As with the nexus test, Plaintiff does not address
the public function test in her Response, other than the previously-referenced general
statement that she believes there is evidence supporting all four tests. (See ECF No.
86 at 10.) Plaintiff has not cited any authority supporting a finding that operating a
detoxification facility is a traditional and exclusive function of the state, and the Court
has found none. Rather, the undisputed evidence here suggests that the majority of
such facilities are private organizations under contract to provide detoxification services
for the state. (See Dean Dep. pp. 97-98.)
Therefore, the Court finds that no reasonable jury could conclude that Defendant
is a state actor pursuant to the public function test.
3.
Joint Action Test
The joint action test inquires whether the state and the private party have “acted
in concert in effecting a particular deprivation of constitutional rights.” Gallagher, 49
F.3d at 1453. To constitute state action, the joint action must involve the state in an
active role; private action taken “‘with the mere approval or acquiescence of the State is
not state action.’” Wittner, 720 F.3d at 777 (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan,
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526 U.S. 40, 52 (1999)).
Defendant argues that there is no evidence that the City of Aurora did anything
more than acquiesce to Defendant’s policies and procedures, which is insufficient to
establish that Defendant was a state actor under the joint action test. (ECF No. 75 at
9.) Plaintiff contends that the role of police officers at Defendant’s facility—first in
taking Plaintiff there in handcuffs against her will, and later in arresting her, allegedly at
Defendant’s instruction—show that the state actively participated in the challenged
conduct. (ECF No. 86 at 12.) However, Plaintiff’s constitutional claim is not related to
these acts. Rather, Plaintiff alleges that Defendant’s customs, practices, and policies of
allowing male and female patients to commingle, failing to train or supervise personnel,
and failing to maintain a video surveillance system were the actions that deprived
Plaintiff of her substantive due process rights. (See Second Am. Compl. ¶¶ 32-42.)
Thus, Plaintiff has not identified any joint actions in which the state acted in concert with
Defendant to deprive Plaintiff of her constitutional rights. See Gallagher, 49 F.3d at
1453.
Plaintiff cites numerous authorities in support of her joint action argument, but
the Court finds none of them to be relevant to the instant case. (See ECF No. 86 at 1213.) The majority of the cases Plaintiff cites deal with the qualified immunity analysis in
circumstances where the defendant had already conceded that it was a state actor
under § 1983, including the Ninth Circuit case involving a detoxification facility on which
Plaintiff seeks to rely. (Id. (citing Halvorsen v. Baird, 146 F.3d 680, 685 (9th Cir. 1998)
(noting defendant’s position that it was “performing a quasi-governmental function
pursuant to Oregon statute”, and citing statutes providing that the police take a publicly
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intoxicated person to a treatment facility and establishing standards for approving public
and private treatment facilities).) Plaintiff does not explain how the qualified immunity
analysis conducted in these cases informs in any meaningful manner the inquiry into
whether a defendant is a state actor under § 1983. Indeed, only two of the cases cited
by Plaintiff included any type of analysis of state action, one of them under the nexus
test and the other apparently under the public function test. See Jensen v. Lane Cnty.,
222 F.3d 570, 572-73 (9th Cir. 2000) (consultation between private doctor and county
psychiatric hospital for involuntary hold established “sufficiently close nexus” to
constitute state action); West v. Atkins, 487 U.S. 42, 54-55 (1988) (private physician
was state actor where he was employed by prison to fulfill state’s constitutional
obligation to provide adequate medical care to prisoners); see also Wittner, 720 F.3d at
779 (noting that “West is at its core a public function case”). Thus, neither West nor
Jensen is persuasive authority in regards to the joint action test.
As there is no evidence supporting a finding that Defendant acted in concert with
the state in depriving Plaintiff of her constitutional rights, the Court finds that no
reasonable jury could conclude that Defendant was a state actor under the joint action
test.
4.
Symbiotic Relationship Test
The symbiotic relationship test asks whether the state has “so far insinuated
itself into a position of interdependence with a private party that it must be recognized
as a joint participant in the challenged activity.” Gallagher, 49 F.3d at 1451 (internal
quotation marks omitted). This analysis “starts by asking whether and to what extent
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the state’s relationship with the private actor goes beyond the ‘mere private purchase of
contract services.’” Wittner, 720 F.3d at 778 (quoting Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Assn., 531 U.S. 288, 299 (2001)) (brackets omitted); see also
Gallagher, 49 F.3d at 1453 (“Payments under government contracts and the receipt of
government grants and tax benefits are insufficient to establish a symbiotic relationship
between the government and a private entity.”). “[A] public-private relationship can
transcend that of mere client and contractor if the private and public actors have
sufficiently commingled their responsibilities.” Wittner, 720 F.3d at 778.
In Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982), the Tenth Circuit found a
symbiotic relationship between the state and a private school for behaviorally
challenged boys. 691 F.2d at 940. The school in Milonas had students placed there for
entire school terms by courts, state agencies, and public school districts; received
significant state funding to mitigate tuition, which it touted to prospective students; and
its educational program was extensively regulated by the state. Id. In Wittner v.
Banner Health, the Tenth Circuit contrasted the defendant hospital’s state contract to
provide involuntary psychiatric holds with the school arrangement in Milonas, and found
no symbiotic relationship. 720 F.3d at 778-79. The hospital in Wittner had a contract
authorizing acceptance of patients for involuntary holds of only 72 hours; allowed the
hospital to accept or reject patients in its discretion; did not involve extensive state
participation in patient care; and did not involve the state’s dictation of the medical
program. Id.
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Defendant contends that the evidence here supports a finding of mere client and
contractor, not commingled responsibilities. (ECF No. 75 at 9-10.) Plaintiff argues that
there is a dispute of fact as to the extent of the police officers’ role at Defendant’s
facility, and the police officers had a greater participatory role than Defendant admits.
(ECF No. 86 at 10-11.) It is undisputed that Defendant receives half of its clients as
referrals from law enforcement, and that police officers are frequently present at
Defendant’s facility during client intake. (Dean Dep. pp. 42, 55, 94.) Plaintiff also
presents evidence that her presence at Defendant’s facility was not voluntary, and that
she would have been detained involuntarily by Defendant’s staff until she was no longer
intoxicated. (Freeman Dep. pp. 19, 30.)
Nevertheless, the evidence demonstrates a limited level of interdependence here
that is more like Wittner than like Milonas. The regular presence and use of police
officers at Defendant’s facility goes beyond the mere existence of a contract, and the
state is heavily involved in referring clients to Defendant. However, Defendant may
reject those clients in its discretion, and the state does not extensively regulate or
dictate the program Defendant provides. (See Dean Dep. pp. 49, 94.) Thus, even the
greater police presence that Plaintiff alleges is insufficient to demonstrate the
interdependence required to attribute Defendant’s challenged conduct to the state
under the symbiotic relationship test. See Wittner, 720 F.3d at 779.
Plaintiff argues that her very presence at Defendant’s facility resulted from the
police officers’ actions in referring her there, and states that “[t]he conduct alleged here
is ‘fairly attributable to the State’, for it was undertaken by reason of contracts with the
state.” (ECF No. 86 at 11 n.5 (citing Gallagher, 49 F.3d at 1447).) However, it is well
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established that government contracts and grants do not establish a symbiotic
relationship. Gallagher, 49 F.3d at 1453. Notably, Plaintiff has cited no evidence that
the state is involved at all, whether by contractual dictate or otherwise, in establishing or
enforcing the policies she challenges in her Second Amended Complaint. Accordingly,
the Court finds that no reasonable jury could find that Defendant was a state actor
under the symbiotic relationship test.
As the Court has found Defendant to be a private actor under all four tests for
state action, it concludes that Plaintiff has failed to show a genuine dispute of material
fact as to whether Defendant was acting under color of law when it committed the
challenged conduct. Accordingly, summary judgment is appropriate in Defendant’s
favor as to Plaintiff’s § 1983 claims.
B.
Remaining Claims
Jurisdiction in this action is based on Plaintiff’s allegation of violations of federal
law. (Second Am. Compl. ¶ 4.) Because the Court had original jurisdiction over
Plaintiff’s § 1983 claims, it also had supplemental jurisdiction over Plaintiff’s state law
negligence claims. See 28 U.S.C. § 1367. However, as the Court has now granted
summary judgment on Plaintiff’s sole remaining § 1983 claim, the only basis for
jurisdiction is supplemental jurisdiction.
Federal supplemental subject matter jurisdiction over state law claims “is
extended at the discretion of the court and is not a plaintiff’s right.” TV Commc’ns
Network, Inc. v. Turner Network Television, Inc., 964 F.2d 1022, 1028 (10th Cir. 1992)
(citing United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)). If federal claims are
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dismissed before trial, leaving only issues of state law, the federal district court should
ordinarily decline to exercise supplemental jurisdiction. Brooks v. Gaenzle, 614 F.3d
1213, 1229 (10th Cir. 2010) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
(1988)). The Court sees no reason to vary from the ordinary course in this case.
Accordingly, the Court declines to exercise its supplemental jurisdiction over the
remaining state law claims, and will not consider Defendant’s arguments with respect to
the merits of Plaintiff’s negligence claims.
IV. CONCLUSION
For the foregoing reasons, the Court ORDERS as follows:
1.
Defendant’s Motion for Summary Judgment (ECF No. 75) is GRANTED as to
Plaintiff’s federal claims;
2.
The Court declines to exercise supplemental jurisdiction over Plaintiff’s state
claims, and those claims are DISMISSED WITHOUT PREJUDICE; and
3.
The Clerk shall enter judgment in favor of Defendant and against Plaintiff.
Defendant shall have its costs.
Dated this 6th day of August, 2014.
BY THE COURT:
William J. Martínez
United States District Judge
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