Pierce v. Pemiscot Memorial Health Systems et al

Filing 194

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion for partial summary judgment [Doc. # 132 ] is denied. IT IS FURTHER ORDERED that the first motion of defendant Pang for summary judgment [Doc. # 92 ] is denied. IT IS FURTHER ORDERE D that the second motion of defendant Pang for summary judgment [Doc. # 94 ] is denied. IT IS FURTHER ORDERED that the motion of defendant Moore to dismiss for failure to file health care affidavit [Doc. # 120 ] is denied. IT IS FURTHER ORDERED that the motion of defendant Moore for summary judgment [Doc. # 99 ] is granted with respect to plaintiffs claim for intentional infliction of emotional distress only, and denied in all other respects. IT IS FURTHER ORDERED that defendants motions to strike [Docs. # 137 and 182 ] are denied as moot. Signed by District Judge Carol E. Jackson on 6/13/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RUTH PIERCE,
Plaintiff,
vs.
PEMISCOT MEMORIAL HEALTH
SYSTEMS, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 1:11-CV-132 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the separate motions of defendants James
Pang, M.D., and Bonnie Moore, R.N., for summary judgment, the motion of plaintiff
Ruth Pierce for partial summary judgment, defendant Moore’s motion to dismiss for
failure to file a health care affidavit, and the defendants’ joint motions to strike
plaintiff’s statement of fact and to strike plaintiff’s reply.1
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, asserting claims that
defendants Pang and Moore improperly detained her in an inpatient psychiatric unit2
following the expiration of a 96-hour detention order. She alleges that her continued
detention violated her due process rights under the United States and Missouri
Constitutions and violated the provisions of Chapter 632, Mo.Rev.Stat., governing
involuntary commitment procedures.

She also asserts state law claims for false

imprisonment, assault and battery in the form of forced medication, and intentional

1

Plaintiff’s claims against defendants Pemiscot Memorial Health Systems, Affinity
Healthcare, Inc., and Benton Bloom were dismissed by stipulation pursuant to
Fed.R.Civ.P. 41(a)(1)(A)(ii).
2

The inpatient unit is known as “Resolutions.” Defendant Pang is the medical
director and defendant Moore is the program director. Pang Aff. at ¶5, Def. Pang Ex.
A [Doc. #94-1]; Moore Ans. to Inter. at ¶2, Def. Moore Ex. J [Doc. #100-10].

infliction of emotional distress. She seeks compensatory and punitive damages and
a declaration that defendants violated her due process rights.
I.

Background

At the time of the events giving rise to this lawsuit, plaintiff was an 84-year-old
widow living alone in Steele, Missouri. On May 15, 2009, an application for detention
was filed with the Pemiscot County Circuit Court based on allegations that she had
displayed mental instability and threatened bodily harm to others. Order, Pl. Ex. O
[Doc. #133-14]. The court issued an order of detention, evaluation and treatment at
Resolutions, an inpatient psychiatric unit based at Pemiscot Memorial Hospital. The
order stated that the period of detention was “not to exceed 96 hours unless a petition
for a further period of detention and treatment is filed with the court of competent
jurisdiction.” Id. (emphasis added). Plaintiff was admitted to Resolutions on May 16,
2009. Med. Rec. at Pierce 0308, Pl. Ex. A [Doc. #136-4]. She was not discharged
until July 22, 2009. It is undisputed that no petition was filed for a further period of
detention beyond the initial 96 hours.
Stacy Jeffers completed the initial paperwork at plaintiff’s admission on May
16th. Jeffers Dep. at p.21, Def. Moore Ex. N [Doc. #100-14]. She testified that she
placed an unsigned voluntary admission form on the top of plaintiff’s medical chart,
with the date May 21, 2009 filled in next to the blank signature line. She stated that
the dated form was meant to serve as a “flag” that plaintiff’s 96-hour detention expired
on May 21st, and that her signature on the voluntary admission form had to be
obtained on that date. In actuality, however, plaintiff did not sign the form until July
15, 2009. See Pl. Ex. A, Pierce 0508 [Doc. #136-5]. On that date, Jeffers and Randy
DeProw took the form to plaintiff for her signature. Jeffers testified that they crossed

-2-

out the May 21st date and wrote in “July 15, 2009.” Plaintiff signed the form and
Jeffers and DeProw signed as witnesses.
The Nurses’ Notes for July 15, 2009, include an entry at 10:55 that states: “Pt
awake in room states ‘That doctor told me I was getting to go home today.’ Voluntary
admission paperwork obtained per S. Jeffers.” Pl. Ex. A, Pierce 0236 [Doc. #136-3].
The notation “err” is made immediately above this entry. The nurse who made the
notation, Zanetta Dillard Johnson, testified that she recognized her handwriting but
could not recall why she struck out the entry. Johnson Dep. at p.10, Def. Moore Ex.
Q [Doc. #100-17]. The entry made at 2:00 p.m. states that plaintiff requested a bag
to pack her clothes. Nurse Johnson reviewed the chart and did not find an order for
discharge and noted “need Dr. Pang called.” Id. at pp.39-40. At 2:15, she noted,
“Spoke with Dr. Pang per G. Hosford RN, no orders received.” Pl. Ex. A, Pierce 0236.
She testified that Nurse Hosford spoke with Dr. Pang who declined to issue an order
discharging plaintiff. It was Nurse Johnson’s understanding that a patient could not
be discharged without Pang’s authorization.
Teresa Van Sickle, LPN, worked the overnight shift at Resolutions. Van Sickle
Dep. at p.6, Def. Moore Ex. O [Doc. #100-15]. Van Sickle testified that she knew
“fairly early” in plaintiff’s admission that she had been involuntarily committed and did
not want to be at Resolutions. Id. at p.10. On July 15, 2009, at 8:30 p.m., Van Sickle
wrote:
[Patient] sitting in dining room talking with another pt. Pt. upset and
agitated, stating that she had been lied to about going home. Pt. states
day nurse brought a paper to her to sign and told her it was for her
release to go home. Pt. found out later it was a voluntary admission
form. . .”

-3-

Pl. Ex. A, Pierce 0236. Van Sickle testified that plaintiff told her that she had signed
a release form.

When Van Sickle looked in the chart, she found the voluntary

admission form. She explained to plaintiff that what she had signed was not a release
form, but an agreement to stay voluntarily. Plaintiff was surprised and said that she
was told it was a form they had forgotten to have signed on the night she was
admitted. Van Sickle Dep. at pp.13-14. Plaintiff was “very very upset” and wanted to
go home. Van Sickle explained to her that she could request to be discharged against
medical advice and she would have to be released.

Van Sickle also explained,

however, that if plaintiff were discharged against medical advice, she would be walked
out of the facility and left to find her own way home. It was late at night by then, so
plaintiff decided to stay until the next day. Id. at pp.14-15.
On the morning of July 16, 2009, plaintiff told a nurse, “I get to go home
tomorrow when that doctor comes in,” and at 5:00 on the morning of July 17, 2009,
she asked “to speak with Dr. Pang about going home.” Pl. Ex. A, Pierce 0239.
Plaintiff submits the affidavit of Johnna McCrary, who worked at Resolutions
during the time plaintiff was present. McCrary Aff., Pl. Ex. B [Doc. #133-2]. McCrary
states that she knew that plaintiff was involuntarily committed and that a copy of the
order was in plaintiff’s file.

She also knew that plaintiff did not want to be at

Resolutions because she asked on a daily basis when she would be allowed to go
home. McCrary states that at a treatment review meeting in July, there was discussion
that “they had nothing in the file to justify holding her any longer.”

Id. at ¶15.

Someone suggested asking her to sign a voluntary admission form, but that was
rejected because she was unlikely to agree. “Dr. Pang then made the statement they
could trick her into signing a voluntary admission form. Nothing else was said and I

-4-

thought the remark by Dr. Pang must have been a joke. Dr. Pang certified her to be
detained for another week of treatment.” Id. On July 21, 2009, McCrary helped
plaintiff call her attorney. Plaintiff was discharged from Resolutions the following day.
Defendant Pang testified at deposition that determinations regarding patients’
eligibility for discharge were made at weekly treatment team meetings. He further
testified that plaintiff was not ready for discharge at the expiration of the 96 hours
authorized by court order. Pang Dep. at p.21, Def. Moore Ex. F [Doc. #100-6]. He did
not know why a petition for further detention was not filed. Id. at p.37.
Defendant Moore testified at deposition that she was responsible for day-to-day
operations of Resolutions, which she described as ensuring adequate staffing for the
unit. Moore Dep. at p.16, Def. Moore Ex. E [Doc. #100-5]. In response to questions
regarding who on the staff was responsible for making sure patients are discharged at
the expiration of court-ordered detention, Moore stated that, as “part of the
multidisciplinary approach,” patients “are discharged at the time that they are prepared
and have a safe discharge.” Id. at p.20. When asked whether she understood that a
patient must be discharged at the expiration of a 96-hour commitment unless a further
petition was filed, she answered: “You take care of the patient until they are ready to
be discharged.”

Id. at p.21.

She did not believe any staff member had been

designated to inform patients of their statutory rights. Id. at p.32.
Defendants argue that it was necessary to detain plaintiff until a safe discharge
plan could be made for her. They submit the affidavit of Debbie DiCarlo, a social
worker with the Missouri Department of Health and Senior Services (DHSS). DiCarlo
states “[i]t is standard procedure that a facility will not formally discharge a patient
once a 96-hour hold has expired and a safe discharge plan is not in place.” DiCarlo

-5-

Aff., Def. Pang Ex. F [Doc. #94-6]. The record reflects that the discharge coordinator
at Resolutions attempted to secure a nursing home placement for plaintiff. File notes,
Def. Pang Ex. H [Doc. #94-8]. The record also reflects that plaintiff was unwilling to
consent to placement in a nursing home. DHSS Rec., Def. Moore Ex. T [Doc. #10020].

Accordingly, Di Carlo asked Resolutions to provide documents to support a

petition for guardianship. The petition was filed on July 16, 2009, and on August 11,
2009, LeAnn Powell was appointed as temporary guardian for medical purposes. On
November 6, 2009, Ms. Powell arranged for plaintiff’s admission to a nursing home.
Additional facts will be included in the discussion as necessary.
II.

Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.”
In ruling on a motion for summary judgment the court is required to view the facts in
the light most favorable to the non-moving party and must give that party the benefit
of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing
v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of
showing both the absence of a genuine issue of material fact and its entitlement to
judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Once the moving party has met its burden, the non-moving party may not rest on the
allegations of his pleadings but must set forth specific facts, by affidavit or other
evidence, showing that a genuine issue of material fact exists. United of Omaha Life
Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).

-6-

Rule 56 “mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corporation v. Catrett, 477 U.S. 317, 322
(1986).
III.

Discussion
A.

Plaintiff’s Claims

Plaintiff seeks summary judgment on her claims under § 1983. To prevail, she
must establish the violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was committed by a person
acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
1.

Substantive Due Process

Plaintiff claims that defendants violated her substantive due process rights by
failing to discharge her at the expiration of the 96-hour order.

Substantive due

process prevents the government from engaging in conduct that shocks the conscience
or interferes with rights implicit in the concept of ordered liberty. Weiler v. Purkett,
137 F.3d 1047, 1051 (8th Cir. 1998) (en banc) (citing United States v. Salerno, 481
U.S. 739, 746 (1987)). There are two different ways of stating a substantive due
process claim. Id. First, the state violates substantive due process when it infringes
“fundamental” liberty interests, without narrowly tailoring that interference to serve a
compelling state interest. Id. (citing Reno v. Flores, 507 U.S. 292, 301–02 (1993)).
Second, the state violates substantive due process when it engages in conduct that is
so outrageous that it shocks the conscience or otherwise offends judicial notions of
fairness, [or is] offensive to human dignity. Id. (alteration in original; citation and

-7-

quotation omitted). The parties have not adequately addressed the application of
these principles to this case and thus all motions for summary judgment will be denied
with respect to plaintiff’s substantive due process claim.
2.

Procedural Due Process

Plaintiff claims that defendants violated the provisions of Chapter 632,
Mo.Rev.Stat., and thus her rights to procedural due process. To establish a procedural
due process violation, plaintiff must demonstrate that she has a protected liberty
interest at stake and that she was deprived of that interest without due process of law.
Hopkins v. Saunders, 199 F.3d 968, 975 (8th Cir. 1999). “For more than a century the
central meaning of procedural due process has been clear: Parties whose rights are to
be affected are entitled to be heard; and in order that they may enjoy that right they
must first be notified.

It is equally fundamental that the right to notice and an

opportunity to be heard must be granted at a meaningful time and in a meaningful
manner.” Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (internal quotations and
citations omitted). “These essential constitutional promises may not be eroded.” Id.
“[F]or the ordinary citizen, commitment to a mental hospital produces a massive
curtailment of liberty, and in consequence requires due process protection.” Vitek v.
Jones, 445 U.S. 480, 491-92 (1980) (alterations in original; internal quotations and
citation omitted); see also United States v. McAllister, 225 F.3d 982, 989 (8th Cir.
2000) (“It is undisputed that ‘civil commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection.’”). Even where a patient’s
initial confinement is founded on a constitutionally sound basis, it cannot
constitutionally continue after that basis no longer exists. O’Connor v. Donaldson, 422

-8-

U.S. 563, 574-75 (1975). “A finding of ‘mental illness’ alone cannot justify a State’s
locking a person up against his will and keeping him indefinitely.” Id. at 575.
Defendants contend that plaintiff has no cause of action arising from the
violation of Chapter 632. The Supreme Court has “repeatedly held that state statutes
may create liberty interests that are entitled to the procedural protections of the Due
Process Clause of the Fourteenth Amendment.” Vitek v. Jones, 445 U.S. 480, 488
(1980). “A person’s liberty is equally protected, even when the liberty itself is a
statutory creation of the State. The touchstone of due process is protection of the
individual against arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539,
558 (1974) (citing Dent v. West Virginia, 129 U.S. 114, 123 (1889)).
Under Chapter 632, Mo.Rev.Stat., any adult can file an ex parte application for
detention of another person for evaluation and treatment, supported by an affidavit
that the respondent “is suffering from a mental disorder and presents a likelihood of
serious harm to himself or to others.” § 632.305. This is the process that resulted in
plaintiff’s initial detention. The period of detention under this section may not exceed
96 hours.

Id.

At the end of court-ordered detention, the respondent “shall be

discharged unless a petition for further detention is filed.”

§ 632.360 (emphasis

added).3

3

Defendant Moore argues that, under Missouri rules of statutory construction,
the use of the word “shall” in this statute is merely “directory” and not “mandatory”
because the statute does not set forth sanctions for noncompliance. She further
argues that, because Chapter 632 does not use “mandatory” language, violation of its
provisions cannot give rise to liability under § 1983. She relies on Williams v.
Armontrout, 852 F.2d 377, 379 (8th Cir. 1988). At issue in Williams was a prisoner’s
claim that his due process rights were violated when he was not returned to general
population from administrative segregation. Williams conceded that there was no
“independent” constitutional right to remain in general population, but argued that
prison regulations created a liberty interest. The Eighth Circuit rejected his claim,
finding that the regulations did not “contain particularized substantive standards . . .
-9-

In order for a respondent to be detained for any additional time, the head of the
mental health facility or a mental health coordinator must file a petition for additional
detention.4

§ 632.330. While the initial detention can be based on an ex parte

application, Chapter 632 provides an array of procedural protections for a respondent
facing additional detention. First, a court hearing must be held within two days of the
filing of a petition for additional inpatient detention. § 632.335. And, at that hearing,
respondents are entitled to be represented by an attorney, present evidence on their
own behalf, cross-examine witnesses, view evidence in the court file, and have a
hearing before a jury. Id.; see also § 632.430 (“an attorney shall be appointed to
represent the respondent in all judicial proceedings under this chapter”). Finally,
involuntary treatment can be ordered only if the court finds, on clear and convincing
evidence, that the respondent, “as the result of mental illness, presents a likelihood of
serious harm to himself or to others.” § 632.335. The treatment is to be provided in
the least restrictive environment and is limited to a period not to exceed twenty-one
days. Id.
Chapter 632 also designates the steps required to provide patients with
meaningful notice of their rights.

For example, within three hours of a patient’s

admission to a mental health facility, she must be given a copy of the application for

that significantly guide the decisionmakers.” Id. Thus, the regulations did not create
a liberty interest in remaining in general population. As discussed above, there is an
independent constitutional right not to be confined to a mental institution against one’s
will without procedural protections. Defendant Moore’s assertion of a distinction
between “mandatory” and “directory” language is inapposite.
4

If there is reason to believe that the respondent is incapacitated or disabled,
a petition for guardianship under Chapter 475 must be filed, and a hearing on the
guardianship petition must be held within two days after the termination of the 96-hour
detention. Id.
-10-

initial detention and evaluation, a notice of her rights pursuant to section 632.325,5
and be assisted in contacting an attorney, if so requested.

Within four days of

admission, the mental health coordinator must meet with the respondent and explain
her statutory rights. § 632.320.
Chapter 632 creates a liberty interest entitling plaintiff to certain to procedural
protections. Defendants argue that those protections were not triggered, however,
because plaintiff has not established that she was detained against her will after the
96-hour order expired.

They somewhat speciously characterize her frequent

statements that she did not belong at Resolutions as “homesickness.” However, it is
undisputed that plaintiff did not seek discharge against medical advice once Nurse Van
Sickle explained the procedure to her. Accordingly, the Court concludes that there is
a dispute of material fact with respect to whether plaintiff’s continued residence at
Resolutions constituted “detention,” subject to the protections of Chapter 632.
Defendants’ additional arguments are addressed below.
B.

Defendants’ Motions for Summary Judgment

Defendants argue that plaintiff’s claims amount to no more than a disagreement
regarding the appropriate course of treatment or claims that they failed to exercise the
proper standard of care. Thus, they argue, plaintiff is merely asserting claims for
professional negligence, for which no recovery is available under 42 U.S.C. § 1983.
As the discussion above demonstrates, defendants have misapprehended the claims

5

Defendants cite a document entitled “Pemiscot Memorial Health Systems Patient
Rights” that appears in plaintiff’s medical record. Pl. Ex. A, Pierce 0501. This
document does not satisfy the requirements of § 632.325.
-11-

stated in plaintiff’s first amended complaint. The majority of their arguments are easily
dispensed with since they are addressed to claims plaintiff has not asserted.6
1.

Plaintiff’s Failure to Obtain Affidavit

Defendants first assert that they are entitled to judgment under § 538.225,
Mo.Rev.Stat. This provision requires a plaintiff in a medical malpractice tort action to
file an affidavit from a health care provider stating that the defendant “failed to use
such care as a reasonably prudent and careful health care provider would have under
similar circumstances and that such failure to use such reasonable care directly caused
or directly contributed to cause the damages claimed in the petition.” White v.
Gammon, 2:04 CV 23 JCH, 2005 WL 3079043 at *3 (E.D. Mo. Nov. 16, 2005) (quoting
§ 538.225). If the affidavit is not filed within 90 days of the filing of the petition, and
the court does not find good cause for the failure, the claim must be dismissed without
prejudice.
Defendants cite St. John’s Reg. Med. Ctr., Inc. v. Windler, 847 S.W.2d 168 (Mo.
Ct. App. 1993), as support for their contention that plaintiff was required to supply an
affidavit under § 538.225. In that case, Windler was transported against her will to St.
John’s to determine whether she qualified for confinement under the mental health
statutes.

A physician determined that Windler was not suicidal and she was

discharged. Id. at 170 n.4. Some months later, the hospital sued Windler for unpaid
medical bills and she filed a counterclaim for false imprisonment.

The trial court

dismissed the counterclaim pursuant to § 538.225 because Windler did not file a health

6

Similarly, defendants’ evidence relating to plaintiff’s conduct in the community
before admission, the adequacy of her care while at Resolutions, and her condition
when she was admitted to a nursing home in November 2009 is irrelevant to plaintiff’s
constitutional claim.
-12-

care affidavit. The court of appeals affirmed, finding that the affidavit was required
under the circumstances presented by the case. Id. at 169. The court specifically
declined to decide whether the affidavit would be required “if Windler had alleged that
as a patient in the hospital she was ready for discharge but was unlawfully restrained
or detained.” Id. at 171 n.7. This case presents the circumstance the court declined
to consider and thus St. John’s does not apply.
Contrary to defendants’ assertions, it is well established that § 538.225 does not
apply to a plaintiff’s constitutional claims under § 1983. See Moore v. Ernest-Jackson,
16 Fed. Appx. 517, 518 (8th Cir. 2001) (although prisoner’s state law claim was
dismissed for failure to file health care affidavit, his § 1983 claim for delay in providing
medical care went to jury); Banks v. Jordon, 1:05CV0139 TCM, 2006 WL 2349625
(E.D. Mo. Aug. 11, 2006) (§ 538.225 did not apply to prisoner’s claims that defendants
were deliberately indifferent to serious medical needs); White, 2005 WL 3079043.
See also Morrison v. St. Luke’s Health Corp., 929 S.W.2d 898, 906 (Mo. Ct. App. 1996)
(Windler does not apply in case brought by patient who tripped over briefcase while
visiting medical office).
Defendant Pang’s first motion for summary judgment and defendant Moore’s
motion to dismiss will be denied.
2.

Immunity under Mo.Rev.Stat. § 632.440

Defendants assert they are immune from liability under § 632.440, because
plaintiff cannot establish bad faith and gross negligence. This section states:
No . . . registered professional nurse [or] licensed physician . . . shall be
civilly liable for investigating, detaining, transporting, conditionally
releasing or discharging a person pursuant to this chapter . . . at or
before the end of the period for which the person was admitted or
detained for evaluation or treatment so long as such duties were
performed in good faith and without gross negligence.
-13-

Mo.Rev.Stat. § 632.440 (emphasis added). Plaintiff’s claims arise from her continued
detention after the expiration of the 96-hour detention order and, therefore, § 632.440
does not apply.
3.

Immunity under Mo.Rev.Stat. § 537.120

Defendants similarly assert they are immune from liability under § 532.120,
which states:
No regular practicing or licensed physician or surgeon or the owner or
operator of any private sanatorium or hospital shall be liable in damages
for restraint of any mentally incapacitated person by reason of having in
good faith furnished care, treatment or attention to such person, and
while such person is under the care of such physician or surgeon or
confined in such sanatorium or hospital.
Mo.Rev.Stat. § 537.120 (emphasis added).

Defendants assert that, although

Resolutions was physically housed within the Pemiscot Memorial Hospital, it was owned
and operated by defendant Affinity Healthcare, Inc., and thus was a private sanatorium
within the meaning of the statute.
Pemiscot Memorial Health Systems and Affinity entered into a service agreement
on May 1, 2009. Agreement, Pl. Ex. N [Doc. #133-13]. The agreement specifies that
the hospital retained the services of Affinity to assist in the operation of its existing
inpatient psychiatric unit. Affinity “agreed to provide the services necessary to assist
in the provision of such psychiatric services by the Hospital.” Id. Section I (emphasis
added). It was further agreed that the “Program is a service provided by the Hospital
to its patients and ultimate control and supervision over the Program and its operations
shall reside with the Hospital.” Id. Section V(a) (emphasis added). Pemiscot Memorial
Hospital is a county hospital and, thus, is not a private entity.

Aff. of Jack B.

Pennington at ¶5, Def. Pemiscot Ex. A [Doc. 98-2]. Section 537.120 does not apply
in this case.
-14-

4.

Failure to Disclose Expert on Causation

Defendants argue that plaintiff is foreclosed from recovery on her claims
because she failed to disclose an expert witness to testify that any damages she
sustained are attributable to their conduct. Once again, this argument is directed to
negligence claims that plaintiff does not assert.
Nominal, compensatory, and punitive damages may be awarded in an action
brought pursuant to 42 U.S.C. § 1983 for violation of a plaintiff’s constitutional rights.
Carey v. Piphus, 435 U.S. 247 (1978). If plaintiff establishes that defendants violated
her constitutional rights, she will be entitled to recover at least nominal damages.
Compensatory damages may be available for physical injury, mental distress,
humiliation, financial loss, and for the period spent in wrongful confinement. See
Kernan v. City of New York, 374 F.3d 93, 125-26 (2d Cir. 2004) (“The damages
recoverable for loss of liberty for the period spent in a wrongful confinement are
separable

from

damages

recoverable

for

such

injuries

as

physical

harm,

embarrassment, or emotional suffering; even absent such other injuries, an award of
several thousand dollars may be appropriate simply for several hours’ loss of liberty.”)
Plaintiff will not require expert testimony on causation to recover damages if she
establishes that defendants wrongfully confined her and deprived her of a liberty
interest.
5.

Punitive Damages

Defendants argue that they are entitled to summary judgment on plaintiff’s
claim for punitive damages. To be entitled to punitive damages, plaintiff must prove
that defendants’ conduct was “motivated by evil motive or intent, or . . . involve[d]
reckless or callous indifference to the federally protected rights of others.” Smith v.

-15-

Wade, 461 U.S. 30, 56 (1983). “It is a question of fact whether a defendant’s conduct
was motivated by an evil motive or involves reckless indifference to the federally
protected rights of others.” Schaub v. VonWald, 638 F.3d 905, 923 (8th Cir. 2011).
Factual disputes preclude summary judgment on this issue.
6.

Qualified Immunity

Defendants assert that they are entitled to qualified immunity.

Qualified

immunity protects “government officials performing discretionary functions.” Rush v.
Perryman, 579 F.3d 908, 913 (8th Cir. 2009) (internal quotations and citations
omitted). Public officials are entitled to qualified immunity from liability for damages
under 42 U.S.C. § 1983 if “their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Domina v.
Van Pelt, 235 F.3d 1091, 1096 (8th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). Private individuals, however, are not necessarily shielded from
liability under § 1983 by the immunity afforded public officials. Id. (citing Richardson
v. McKnight, 521 U.S. 399, 402-04 (1997)); Jensen v. Lane County, 222 F.3d 570, 576
(9th Cir. 2000) (a finding that psychiatrist at private hospital was “state actor” under
§ 1983 did not automatically entitle him to qualified immunity).

Generally, to

determine whether a private individual may rely on a qualified immunity defense, the
courts look to the policy considerations supporting the doctrine of qualified immunity
and to the historical availability of the defense to the group to which the individual
belongs. Id. Courts have determined that qualified immunity is not available to health
professionals employed by contract. Id. at 579 (contract psychiatrist not entitled to
qualified immunity); Harrison v. Ash, 539 F.3d 510, 525 (6th Cir. 2008) (refusing to
extend qualified immunity to nurses employed by CMS); Hinson v. Edmond, 192 F.3d

-16-

1342, 1345–47 (11th Cir. 1999) (refusing to extend qualified immunity to privately
employed prison physician); Johnson v. Neiman, 4:09CV689 AGF, 2011 WL 3794255
at *10 (E.D. Mo. Aug. 25, 2011) (no qualified immunity for employees of private
mental health facility that contracted with state corrections system).
Defendants argue that they are entitled to qualified immunity because they
acted in “joint participation” with public officials. In support of this argument, they cite
Lux by Lux v. Hansen, 886 F.2d 1064, 1066-67 (8th Cir. 1989), in which the court
found that a counselor employed by a private entity was entitled to qualified immunity.
The “joint participation” test is called into question by Domina, in which the Eighth
Circuit adopted Richardson’s focus on the “policy considerations” and “historical
availability” of the defense. Defendants have made no effort to explain how this case
falls outside of Richardson and Domina and thus have not established that they are
entitled to qualified immunity.
Defendant Moore also argues that, because her conduct in this case was
“discretionary,” rather than “ministerial,” it did not violate established statutory or
constitutional rights of which a reasonable person would have known. This distinction
between discretionary and ministerial conduct is borrowed from Missouri’s doctrine of
official immunity.

This judicially-created doctrine protects public employees from

liability for alleged acts of negligence committed during the course of their official
duties for the performance of discretionary, but not ministerial, acts. Southers v. City
of Farmington, 263 S.W.3d 603, 610 (Mo. 2008) (en banc). The doctrine does not
apply to plaintiff’s constitutional claims. To the extent that Moore attempts to claim
that she did not know that plaintiff had a right to either be released or appear in court,
her subjective awareness of the law is immaterial, as “a reasonably competent public

-17-

official should know the law governing his conduct.” Harlow v. Fitzgerald, 457 U.S.
800, 819 (1982). Defendants have not established that they are entitled to qualified
immunity.
7.

Color of State Law

Defendant Moore asserts that plaintiff cannot establish that her conduct
constituted action under color of state law because her salary was paid by Affinity, a
private entity.
The psychiatric unit Resolutions is owned and operated Pemiscot Memorial
Hospital, Defts. Resp. to Pl. Facts at ¶10 [Doc. 145], which is in turn owned and
operated by Pemiscot County.

Pennington Aff. at ¶5. Defendant Moore was the

program director and reported to the administrator of the hospital’s long term care
facility. Pol. & Proc. Manual at p.22, Pl. Ex. C [Doc. #187-3]. However, she was
employed by Affinity, a private entity. Benton Bloom Dep. at p.22, Def. Moore Ex. G
[Doc. #100-7].
Plaintiff can establish that Moore is a state actor if she can show that Moore’s
employer, Affinity, acted under the authority of the State for § 1983 purposes. See
Rosborough v. Management & Training Corp., 350 F.3d 459, 461 (5th Cir. 2003)
(employees of private prison-management corporations may be sued under § 1983).
It is well established that a private entity which contracts with the state to perform a
“traditional state function” such as providing medical services to prison inmates may
be sued under § 1983 as one acting “under color of state law.” West v. Atkins, 487
U.S. 42, 54 (1988). Similarly, a nominally private entity is properly treated as a state
actor when it is controlled by an “agency of the State,” Brentwood Acad. v. Tennessee
Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001) (citing Pennsylvania v. Board

-18-

of Directors of City Trusts of Philadelphia, 353 U.S. 230, 231 (1957)), or when the
public entity is “entwined” in the management and control of the nominally private
entity. Id. at 302 (“Entwinement will support a conclusion that an ostensibly private
organization ought to be charged with a public character and judged by constitutional
standards.”) Moore has not addressed the relationship between Affinity and Pemiscot
County and thus is not entitled to summary judgment on this basis.
8.

Plaintiff’s State Law Claims

Defendant Moore moves for summary judgment on plaintiff’s state law claims
for false imprisonment, assault and battery in the form of forced medication, and
intentional infliction of emotional distress.
Under Missouri law, a false imprisonment occurs when there is confinement
without legal justification by the wrongdoer of the person wronged. Desai v. SSM
Health Care, 865 S.W.2d 833, 836 (Mo. Ct. App. 1993) (citations omitted).

The

elements of false imprisonment are the detention or restraint of the plaintiff against
her will, and the unlawfulness of the detention or restraint. Liability attaches where
it is shown that defendants instigated, caused or procured the arrest or detention. Id.
Defendant Moore incorrectly asserts that plaintiff cannot establish that her detention
was “unlawful” because Chapter 632 is “directory” rather than “mandatory.” Her
motion for summary judgment will be denied with respect to plaintiff’s false
imprisonment claim.
To recover damages for battery, a plaintiff must plead and prove an “intended,
offensive bodily contact with another person.” Devitre v. Orthopedic Ctr. of St. Louis,
LLC, 349 S.W.3d 327, 334 (Mo. 2011) (en banc). Within the context of medical
examinations, “a battery occurs when a physician performs a medical procedure

-19-

without valid consent.” Cruzan by Cruzan v. Harmon, 760 S.W.2d 408, 417 (Mo.
1988) (en banc). To establish battery based on lack of consent, “a plaintiff is only
required to prove the occurrence of unconsented touching.” DeVitre, 349 F.3d at 334.
Therefore, plaintiff must plead and prove that she did not give consent or that she
withdrew consent. Id. Assault is “any unlawful offer or attempt to injure another with
the apparent present ability to effectuate the attempt under circumstances creating a
fear of imminent peril.” Id. at 335. To establish an assault, a plaintiff must prove: “(1)
defendant’s intent to cause bodily harm or offensive contact, or apprehension of either;
(2) conduct of the defendant indicating such intent, and (3) apprehension of bodily
harm or offensive contact on the part of the plaintiff caused by defendant’s conduct.”
Id. (citation omitted). Defendant Moore argues that plaintiff cannot establish either
claim because there is no evidence that Moore ever touched plaintiff or put her in fear
of such touching. However, a defendant can be liable for battery or assault committed
at her instruction. See Mansfield v. Smithie, 615 S.W.2d 649, 653 (Mo. Ct. App. 1981)
(bar owner liable for assault of patron committed by bouncer). Defendant Moore’s
motion for summary judgment on this claim will be denied.
In order to establish the tort of intentional infliction of emotional distress,
plaintiff must prove (1) the defendant’s conduct was outrageous or extreme; (2) the
defendant acted intentionally or recklessly; (3)plaintiff suffered extreme emotional
distress that resulted in bodily harm; (4) that was caused by the defendant’s conduct;
and (5) the conduct was intended solely to cause extreme emotional distress to the
victim. Crow v. Crawford & Co., 259 S.W.3d 104, 119 (Mo. Ct. App. 2008). Nothing
in the record suggests that Moore intended to cause plaintiff extreme emotional
distress and summary judgment will be granted on this claim.

-20-

C.

Defendants’ Motions to Strike

Defendants move to strike plaintiff’s statements of facts and certain statements
in her memoranda for failure to comply with Local Rule 4.01.

Plaintiff submitted

corrected documents and the motions to strike are moot.
*****
For the reasons set forth above,
IT IS HEREBY ORDERED that plaintiff’s motion for partial summary judgment
[Doc. #132] is denied.
IT IS FURTHER ORDERED that the first motion of defendant Pang for
summary judgment [Doc. #92] is denied.
IT IS FURTHER ORDERED that the second motion of defendant Pang for
summary judgment [Doc. #94] is denied.
IT IS FURTHER ORDERED that the motion of defendant Moore to dismiss for
failure to file health care affidavit [Doc. #120] is denied.
IT IS FURTHER ORDERED that the motion of defendant Moore for summary
judgment [Doc. #99] is granted with respect to plaintiff’s claim for intentional
infliction of emotional distress only, and denied in all other respects.
IT IS FURTHER ORDERED that defendants’ motions to strike [Docs. ## 137
and 182] are denied as moot.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 13th day of June, 2014.

-21-