Schwartz et al v. Assisted Recovery Centers of America, LLC et al

Filing 119

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Movants' (ARCA Defendants) Motion to Dismiss Counts I, II, and III of Plaintiffs' Amended Complaint for Failure to State a Claim (ECF No. 73), Defendant Dr. Paul Selvadurai's Motion t o Dismiss All Counts of Plaintiffs' Amended Complaint for Failure to State a Claim (ECF No. 75), Defendant Sheryl Castro's Motion to Dismiss Counts I, II, and III of Plaintiffs' Amended Complaint for Failure to State a Claim (ECF No . 88), and Dr. Shannon Jennings' Motion to Dismiss Counts I, II, and IV of Plaintiffs' Amended Complaint for Insufficient Service of Process under Rule 12(b)(5) and Failure to State a Claim under 12(b)(6) (ECF No. 91) are GRANTED with res pect to Plaintiffs' federal claims. IT IS FURTHER ORDERED that Plaintiffs' state-law wrongful death and medical malpractice claims (Counts III and IV) are DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Defendant Dr. Paul Selvadu rai's Motions to Strike All Exhibits Attached to Plaintiffs' Consolidated Memorandum of Law in Opposition to All Defendants' Motions to Dismiss and/or Summary Judgment (ECF No. 77) and to Dismiss Count IV of Plaintiffs' First Am ended Complaint for Failure to File a Health Care Affidavit in Compliance with Mo. Rev. Stat. § 538.225 and to Strike All Exhibits Attached to Plaintiffs' Consolidated Memorandum of Law in Opposition to All Defendants' Motions to Dismiss and/or Summary Judgment (ECF No.102) ARE DENIED AS MOOT.. Signed by Magistrate Judge John M. Bodenhausen on 3/3/17. (LGK)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THE ESTATE OF MICHAEL
SCHWARTZ and BRENDA FISCHER,
Plaintiffs,
v.
ASSISTED RECOVERY CENTERS
OF AMERICA, LLC, et al.,
Defendants.

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No. 4:16 CV 673 JMB

MEMORANDUM AND ORDER
This matter relates to the unfortunate drug-related death of Michael Schwartz. All
matters are pending before the undersigned United States Magistrate Judge, with the consent of
the parties, pursuant to 28 U.S.C. § 636(c).
Plaintiffs are the Estate of Michael Schwartz (“Schwartz or Decedent”) and his mother,
Brenda Fischer. Currently before the Court is a four-count First Amended Complaint.
Defendants are Assisted Recovery Centers of America, LLC (“ARCA”), Percy Menzies,
Judealyne Menzies, Suneal Menzies, Tim Dalavias, Andrea Shaw, Katherine Kruse, (collectively
“ARCA Defendants”), Dr. Paul Selvadurai (“Selvadurai”), Dr. Shannon Jennings (“Jennings”),
and Sheryl Castro (“Castro”) (all Defendants collectively “Defendants”).1

1

In their First Amended Complaint, Plaintiffs identify ARCA as a duly registered
Missouri corporation which operates multiple addiction treatment centers throughout St. Louis
and surrounding areas. Percy Menzies is the President of ARCA. (First Am. Compl. at ¶ 7)
Judealyne Menzies is Percy Menzies’s wife and nursing director for ARCA. Ms. Menzies
operates ARCA facilities, and is responsible for the daily supervision of the facilities. (Id. at ¶ 9)
Suneal Menzies is the Menzies’ son and the program director of the ARCA facilities. Suneal
Menzies also serves as corporate liaison officer of ARCA to the Missouri Department of Mental
Health. (Id. at ¶ 10) Tim Dalaviras is the CEO of ARCA, and is responsible for the daily
operation of the ARCA facilities. (Id. at ¶ 11) Andrea Shaw is the clinical director of ARCA
and is responsible for program development and clinical oversight of ARCA’s outpatient

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The First Amended Complaint includes four claims—two federal claims and two
supplemental Missouri tort claims. The focus of the present Memorandum and Order is Counts I
and II, which assert federal claims against all Defendants under 42 U.S.C. §§ 1983 and 1988.
Broadly speaking, Counts I and II allege violations of Schwartz’s substantive due process rights
under the Fourteenth Amendment to the Constitution, including deliberate indifference, and
failure to train and/or supervise. In Count III, Plaintiffs assert a wrongful death claim under
RSMo § 537.080 against all Defendants except Drs. Selvadurai and Jennings. Count III alleges
that Defendants owed Schwartz a duty to use the highest degree of care and seeks compensatory
damages exceeding $10 million. In Count IV, Plaintiffs assert a medical malpractice claim under
RSMo § 538.205 against Drs. Selvadurai and Jennings. (ECF No. 63, First Am. Compl.)
Currently pending before the Court are the following six motions:
1.

ARCA Defendants’ Motion to Dismiss Counts I, II, and III of Plaintiffs’
First Amended Complaint for Failure to State a Claim (ECF No. 73);

2.

Dr. Selvadurai’s Motion to Dismiss All Counts of Plaintiffs’ Amended
Complaint for Failure to State a Claim (ECF No. 75);

3.

Dr. Selvadurai’s Motion to Dismiss Count IV of Plaintiffs’ First Amended
Complaint for Failure to File a Healthcare Affidavit in Compliance with
Mo. Rev. Stat. § 538.225 (ECF No. 77);

4.

Castro’s Motion to Dismiss Counts I, II, and III of Plaintiffs’ First
Amended Complaint for Failure to State a Claim (ECF No. 88);

5.

Dr. Jennings’ Motion to Dismiss Counts I, II, and IV of Plaintiffs’
Amended Complaint for Insufficient Service of Process under Rule
12(b)(5) and Failure to State a Claim under Rule 12(b)(6) (ECF No. 91);
and

services. (Id. at ¶ 12) Drs. Paul Selvadurai and Shannon Jennings are staff physicians at ARCA,
and provide medical services and outpatient substance abuse treatment for ARCA clients. (Id. at
¶¶ 13-14) Katherine Kruse is a psycho-therapist for the ARCA outpatient psychotherapy
services. (Id. at ¶15) Sheryl Castro is a registered medical assistant who was employed by
ARCA. (Id. at ¶ 16)
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6.

I.

Dr. Selvadurai’s Motion to Strike All Exhibits Attached to Plaintiffs’
Consolidated Memorandum of Law in Opposition to All Defendants’
Motion to Dismiss and/or Summary Judgment (ECF No. 102).

Relevant Factual Background
ARCA operates multiple addiction-recovery clinics and offers two programs relevant to

this matter, the Comprehensive Substance Treatment and Rehabilitation program (“CSTAR”)
and the Medication Assisted Treatment program (“MAT”). (Id. at ¶¶ 7, 25-26) CSTAR and
MAT are programs defined by the Missouri Department of Mental Health, Division of Alcohol
and Drug Abuse. (Id. at ¶ 26) Plaintiffs allege that ARCA obtained state-mandated
certifications to practice CSTAR and MAT, and that compliance with state regulations is
required to maintain the certifications. (Id. at ¶ 24-25) Plaintiffs allege that ARCA is not only
required to be certified by the State of Missouri, it must also contract with the Department of
Mental Health to provide community-based services. (Id. at ¶¶ 23, 30)
ARCA is one of the authorized, community-based addiction service providers for the
Missouri Department of Corrections. (Id. at ¶ 38) According to Plaintiffs’ First Amended
Complaint, on July 21, 2014, Schwartz entered into a contract with ARCA as a mandatory
condition of his Missouri probation and parole. (Id. at ¶ 36; ECF No. 76-1, ARCA’s Release of
Information) Schwartz’s participation in ARCA’s outpatient drug treatment program was
pursuant to multiple court orders following a period of incarceration in the Missouri Department
of Corrections for drug-related offenses.
Plaintiffs assert that Schwartz, ARCA, and the Department of Corrections, through
Schwartz’s supervising probation officer, completed a mandatory form (“Referral Form”) that
eliminated the physician/patient privilege and required ARCA to act as an agent and arm of the
Department of Probation and Parole by providing prompt notice, within two business days, of

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any violations related to Schwartz’s treatment, including missed appointments, positive drug or
alcohol tests, and any failure to comply with treatment. (Id. at ¶¶ 39-42, 61-62; ECF No. 98-11,
Missouri Department of Corrections and Department of Mental Health – Community Treatment
and Recovery Services Referral Form/Community-Based Mental Health and Substance Abuse
Treatment and Recovery Services – Client Treatment and Recovery Services Guidelines)2 Based
on this contract, Plaintiffs contend that ARCA “agree[d] … to act as an agent and arm of the
Department of Probation and Parole by providing notice to them of any violations or conditions
of the offender related to his treatment.” (Id. at ¶ 40) Plaintiffs allege that if ARCA failed to
make probation violation reports, the probation officer and the sentencing courts would not have
knowledge of the violations of the court orders, resulting in Schwartz’s probation not being
revoked. (Id. at ¶ 61)
Plaintiffs further allege that ARCA’s agents and employees were aware of their
responsibilities to Schwartz’s probation officer as evidenced by ARCA’s own release. That
release required ARCA and its agents and employees to disclose specified, confidential medical,
substance abuse/dependence, and/or information obtained in the treatment at ARCA to
Schwartz’s probation officer. According to Plaintiffs, the information to be disclosed included
lab results and a treatment plan. (Id. at ¶ 65-67)
As noted above, Plaintiffs allege that Schwartz commenced outpatient treatment with
ARCA in July 2014. This was not, however, the first time Schwartz received treatment with
ARCA. In this regard, Plaintiffs allege that, after Schwartz was released on probation in 2011,
he also registered with ARCA. In Schwartz’s prior stint with ARCA, his substance abuse
2

In the First Amended Complaint, Plaintiffs assert that Schwartz, ARCA, and his
supervising probation officer, executed the Referral Form as a condition of his probation. (First
Am. Compl. at ¶ 39-44) Plaintiffs assert that after Schwartz’s death, Paul Koessel, his last
probation officer, destroyed the document. (Id. at ¶ 44)
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counselor was Ned Presnall. (Id. 68-69) On November 22, 2011, Presnall contacted Schwartz’s
Probation Officer, Jeffrey Martin (now deceased), and informed him that Schwartz had taken at
least 45 lithium tablets, resulting in Schwartz’s hospitalization. On November 29, 2011, Presnall
again contacted Martin, advising him that Schwartz had taken ten Xanax and had again been
hospitalized. (Id.) Plaintiffs allege that Martin sought to have Schwartz’s probation revoked.
Martin justified the revocation, noting that Schwartz’s ARCA counselor did not believe there
was anything more that could be offered to Schwartz because he had exhausted all the
community based resources available. (Id. at ¶ 70) According to Plaintiff, Martin decided the
only recourse available was to revoke Schwartz’s probation and execute his sentence. (Id.)
Regarding Schwartz’s treatment at issue in this case, which commenced in 2014,
Plaintiffs allege that, although ARCA, its staff, and employees were contractually obligated to
report various aspects of Schwartz’s treatment to his probation officer and/or his mother, they
failed to do so. (Id. at ¶¶ 71-72) According to Plaintiffs, Schwartz incurred numerous violations
of his treatment with ARCA that Defendants allegedly failed to report to Schwartz’s probation
officer. (See, e.g., id. at 62-64) Schwartz eventually died of a heroin overdose. Plaintiffs
contend that the cause of Schwartz’s death by heroin overdose was due to Defendants’ failure to
notify the Missouri Department of Probation and Parole of his addiction related violations and/or
his mother of his ongoing failures so that an intervention could have occurred as had occurred in
November 2011. (Id. at ¶¶ 71-74)
II.

Legal Standard – Motion to Dismiss
The purpose of a motion to dismiss for failure to state a claim is to test the legal

sufficiency of a complaint. To survive a motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for relief “must
include sufficient factual information to provide the ‘grounds’ on which the claim rests, and to
raise a right to relief above a speculative level.” Schaaf v. Residential Funding Corp., 517 F.3d
544, 549 (8th Cir. 2008) (quoting Twombly, 550 U.S. at 555 & n.3). This obligation requires a
plaintiff to plead “more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Twombly, 550 U.S. at 555.
On a motion to dismiss, the Court accepts as true all of the factual allegations contained
in the complaint, even if it appears that “actual proof of those facts is improbable,” and reviews
the complaint to determine whether its allegations show that the pleader is entitled to relief. Id.
at 555-56; Fed. R. Civ. P. Rule 8(a)(2). The principle that a court must accept as true all of the
allegations contained in a complaint does not apply to legal conclusions. Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”).
“While courts primarily consider the allegations in the complaint in determining whether
to grant a Rule 12(b)(6) motion, courts additionally consider ‘matters incorporated by reference
or integral to the claim, items subject to judicial notice, matters of public record, orders, items
appearing in the record of the case, and exhibits attached to the complaint whose authenticity is
unquestioned;’ without converting the motion into one for summary judgment.” Miller v.
Redwood Toxicology Lab, Inc., 688 F.3d 928, 931 & n.3 (8th Cir. 2012) (quoting 5B Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure §1357 (3d ed., 2004)). Where
the extraneous documents are central to the plaintiff’s case, such as a written contract in a
contract dispute, the court may examine the documents in deciding a motion to dismiss. See

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Stahl v. U.S. Dep’t of Agriculture, 327 F.32d 697, 700 (8th Cir. 2003). This is even so, where
the relevant contract documents are attached as exhibits to the motion to dismiss instead of the
pleadings. Id. at 661.
III.

Discussion
A.

Section 1983 Claims Generally

According to the First Amended Complaint, ARCA is a private, addiction recovery
treatment center certified by the State of Missouri, and requiring compliance with state
regulations. ARCA is an authorized provider for the Missouri Department of Corrections and
contracts with the Missouri Department of Mental Health to provide community-based services.
Schwartz started ARCA’s outpatient drug treatment program on July 21, 2014, as a mandatory
condition of his probation and parole pursuant to multiple court orders. According to Plaintiffs,
Schwartz, ARCA, and the Department of Corrections, through Schwartz’s supervising probation
officer, completed a mandatory Referral Form that eliminated the physician/patient privilege and
required ARCA to act as an agent of the Department of Probation and Parole by providing twoday’s notice of any violations of the offender related to his treatment. Plaintiffs allege that
Defendants failed to make mandatory violation reports, depriving Schwartz’s probation officer
and the sentencing courts of knowledge of the violations of the court orders. Thus, according to
Plaintiffs, Schwartz’s probation was not revoked when it should have been.
Counts I and II, are brought under 42 U.S.C. § 1983. Defendants contend that ARCA is a
private drug addiction treatment center and that none of Defendants were clothed in the authority
of state law with respect to the factual allegations in the First Amended Complaint. Defendants
argue that Plaintiffs cannot establish that they were state actors and that their actions were under
color of state law. Thus, Defendants contend that this Court must dismiss Plaintiffs’ § 1983

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claims. Plaintiffs oppose the motions to dismiss and argue that state action may be properly
found inasmuch as Defendants had been delegated a public function by the state—reporting
probation violations. Plaintiffs argue that Defendants executed contracts wherein they agreed to
be state actors.
To state a claim under § 1983, a plaintiff must prove the “(1) violation of a constitutional
right, (2) committed by a state actor, (3) who acted with the requisite culpability and causation to
violate the constitutional right.” Kuha v. City of Minnetonka, 365 F.3d 590, 606 (8th Cir. 2003).
“To constitute state action, the deprivation must be caused by the exercise of some right or
privilege created 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.”
Neighborhood Enters., Inc. v. City of St. Louis, 540 F.3d 882, 885 (8th Cir 2008) (quotations
omitted). But private conduct, no matter how egregious, discriminatory, or harmful, is beyond
the reach of § 1983. See Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (“[T]he under-colorof-state law element of § 1983 excludes from its reach ‘merely private conduct, no matter how
discriminatory or wrongful.’”) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982);
Americans United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509
F.3d 406, 421 (8th Cir. 2007) (citing American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
(1999)).
B.

State Action / Color of Law Requirement

An essential ingredient of a § 1983 claim, therefore, is that the defendant(s) acted under
color of state law. See Dossett v. First State Bank, 399 F.3d 940, 947 (8th Cir. 2005) (“Section
1983 imposes liability for certain actions taken ‘under color of’ law that deprive a person ‘of a
right secured by the Constitution and laws of the United States.”) (quoting Lugar, 457 U.S. at

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931; see also Carlson v. Roetzel & Andress, 552 F.3d 648, 650 (8th Cir. 2008) (“Only state
actors can be held liable under section 1983.”) (quotation marks omitted). Plaintiffs do not assert
§ 1983 claims against any state or local officials. Rather, Counts I and II are directed at private
parties. The Court must decide, therefore, whether Counts I and II can satisfy the color of law
requirement.3 As will be explained below, on the allegations of Plaintiffs’ First Amended
Complaint, the Court finds that Plaintiffs have not satisfied the state action requirement for
bringing a § 1983 action. Therefore, Counts I and II must be dismissed. Further, absent a viable
federal cause of action, the undersigned will decline to retain supplemental jurisdiction of Counts
III and IV.
“The traditional definition of acting under color of state law requires that the defendant in
a § 1983 action have exercised power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 42,
49 (1988) (internal citation and quotation marks omitted). Under certain circumstances, a private
party may be held liable pursuant to § 1983.
The Supreme Court has recognized a number of circumstances in which a private
party may be characterized as a state actor, such as where the state has delegated
to a private party a power traditionally exclusively reserved to the State, where a
private actor is willful participant in joint activity with the State or its agents, and
where there is pervasive entwinement between the private entity and the state....
The one unyielding requirement is that there be a “close nexus” not merely
between the state and the private party, but between the state and the alleged
deprivation itself. No such nexus exists where a private party acts with the mere
approval or acquiescence of the state, but a private entity may be considered a
state actor if it acted together with or has obtained significant aid from state
officials in furtherance of the challenged action.

3

“If a defendant’s conduct satisfies the state-action requirement of the Fourteenth
Amendment, the conduct also constitutes action ‘under color of state law’ for § 1983 purposes.”
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 n.2 (2001) (quoting
Lugar, 457 U.S. at 935 (1982).
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Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 2007) (internal quotations
omitted). “Thus, … state action may be found if, though only if, there is such a close nexus
between the State and the challenged action that seemingly private behavior may be fairly treated
as that of the State itself.” Brentwood Acad. 511 U.S. at 295 (internal quotation marks omitted).
To be a state actor, it is not enough that an actor have a contract with the state; there is
state action when a private actor had a contract with the state and additional factors strengthened
the nexus between the state and the challenged action. See Rendell, 457 U.S. at 840-42 (holding
that a private school was not a state actor despite its operation under a contract with the state and
receipt of state funds); West, 487 U.S. at 54 (holding that physician under contract with the state
to provide medical services to inmates in a state prison acted under color of law within the
meaning of section 1983); Smith v. Insley’s Inc., 499 F.3d 875, 880-81 (8th Cir. 2007) (holding
that a towing company acted under color of state law when it had a contract with the state and
towed a vehicle at the request of the sheriff’s office as part of an official criminal investigation).
As one might reasonably glean from the Supreme Court’s cases, application of the color
of law action requirement often presents one of the more difficult and troublesome issues in §
1983 litigation, and is not easily satisfied. See Holloway v. Ameristar Casino St. Charles, Inc.,
2010 WL 148441 at *10 (E.D. Mo. Jan. 12, 2010).
“Although there are many tests to determine whether a private corporation [or person]
acts under color of state law, the ultimate issue is whether the private corporation's actions are
fairly attributable to the state.” Estate of Beelek v. Farmington Missouri Hosp. Co., LLC, 2011
WL 4008018 *3 (E.D. Mo. Sept. 8, 2011) (internal quotations omitted) (citing Rendell–Baker,
457 U.S. at 838; see also Lugar, 457 U.S. at 937. In Brentwood Academy, the Supreme Court
cataloged some of the factors and tests used to attribute the activity of private persons to the

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state. See 531 U.S. at 295–96. Although the undersigned has considered Plaintiffs’ § 1983
claims under all of these standards, as the Court in Brentwood Academy aptly noted, given the
variety of tests and standards, “examples may be the best teachers.” Id. at 296.
The undersigned has not identified any cases from the Supreme Court or the Eighth
Circuit that address factual circumstances substantially similar to the circumstances alleged in
Counts I and II of Plaintiffs’ First Amended Complaint.
On the one hand, it is now well-established that private medical providers can act under
color of law when providing services that a state is required to provide to confined persons. A
state has an obligation to provide basic medical care to those it incarcerates, “because the
prisoner is unable by reason of the deprivation of his liberty [to] care for himself, it is only just
that the State be required to care for him.” Estelle v. Gamble, 429 U.S. 97, 103-04 (1976)
(citations and internal quotations omitted); see also Youngberg v. Romeo, 457 U.S. 307 (1982)
(involuntarily committed mental patients); DeShaney v. Winnebago County Dept. of Soc. Servs.,
489 U.S. 189, 199-200 (1989) (explaining that “when the State takes a person into its custody
and holds him there against his will, the Constitution imposes upon it a corresponding duty to
assume some responsibility for his safety and general well-being”) (citing Youngberg). Upon
these principles, the courts have concluded that private doctors who provide medical services to
confined person, even on a part-time basis pursuant to a contract with the state, act under color of
law for § 1983 purposes. See West, 487 U.S. at 54 (medical care); Harris v. Corizon, LLC, 2014
WL 5564248 *1-2 (E.D. Mo. Oct. 31, 2014) (dental care).
On the other hand, the cases are not so favorable to Plaintiffs when they involve services
for non-incarcerated persons. And Schwartz has not identified, nor has the undersigned located,
any cases indicating that a state must provide medical, psychological, or out-patient drug

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treatment services to persons on probation or parole. In fact, the cases suggest an opposite
conclusion.
In Blum v. Yaretsky, 457 U.S. 991 (1982), the Court held that Medicaid recipients had
not established that certain nursing home decisions to discharge or transfer patients amounted to
state action. First, the Court explained that the mere fact that the nursing homes were heavily
regulated by the state did not transform them into state actors. See id. at 1004. Rather, a § 1983
plaintiff “must also show that ‘there is a sufficiently close nexus between the State and the
challenged action of the regulated entity so that the action of the latter may fairly be treated as
that of the State itself.’” Id. (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351
(1974)). Second, the Court explained that “although the factual setting of each case will be
significant, our precedents indicate 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 over or covert, that the choice must in law be deemed that of the State.”
Id. (citing cases). Third, the Court noted that, “the required nexus may be present if the private
entity has exercised powers that are ‘traditionally the exclusive prerogative of the State.’” Id. at
1005 (quoting Jackson, 419 U.S. at 353).
In Rendell-Baker v. Kohn, 457 830 (1982), relying on its contemporaneous decision in
Blum, the Court held that a private school with special programs for students with substance
abuse and other problems was not a state actor for § 1983 purposes. See id. at 832, 843. This
was true even though the school worked with a state department of mental health, was subject to
significant state and local regulations, and most of its budget came from state funds. Id. at 832.
In contrast to the lack of cases supporting Plaintiffs’ position, several cases, including
cases cited by Defendants, support a conclusion that private businesses which provide services to

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former inmates (e.g., persons on parole or supervision) are not state actors because such
functions/services are not traditionally the exclusive prerogative of the State, and such businesses
lack the authority to return the person to prison.
The most apt case, perhaps, is a reported decision from this District. In Graves v.
Narcotics Serv. Counsel, Inc., 605 F.Supp. 1285 (E.D. Mo. 1985), this Court addressed the
question of whether the actions of the employees of a nonprofit halfway house were taken under
color of law pursuant to § 1983. The plaintiff in Graves alleged that the defendants failed to
properly treat his drug addiction and prematurely released him from a detoxification program
that he had been ordered to attend as a condition of probation. Like ARCA, the halfway house
was subject to a number of state regulations and certified by the Department of Mental Health.
Relying on Rendell-Baker and Blum (both discussed above), our Court held that the plaintiff had
not shown that the defendants acted under color of state law. See id. at 1287.
In Smith v. Devline, 239 Fed. Appx. 735, 2007 WL 1989689 (3d Cir. July 11, 2007), the
Third Circuit considered a § 1983 action filed by a person who was paroled from a state prison to
a private residential treatment center. Id. at 735-36. Based on the facts of that case, the court
held that the plaintiff failed to show the center acted under color of state law. The court
reasoned, inter alia, that “[w]hen a resident commits a program violation, [the treatment center]
does not have the authority to return the resident to prison. [Instead, the treatment center] is
required to notify the proper governmental authority, who then determines whether the resident
should be returned to prison or remain in the program.” Id. at 736.
Similarly, in Byng v. Delta Recovery Servs, LLC, 2013 WL 3897485 at *1 (N.D.N.Y.
July 29, 2013), a parolee filed suit against a residential substance abuse treatment facility,
alleging, among other things, a civil rights claim under § 1983. The court held that the facility

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was not a state actor for § 1983 purposes. Id. at *9, 15. The court explained that the case was
different from situations involving privately run prisons. Id. at *6 (citations omitted). Rather,
the court noted that the defendant facility lacked the authority to return a parolee to prison;
instead, “they notify that individual’s parole officer or other governmental entity, who then, at
the officer or entity’s discretion, files a petition seeking revocation of parole.” Id. at 8 (citing
Smith v. Devline, supra). The court analogized private drug treatment facilities to private
transitional housing facilities, citing cases finding that “the provision of transitional housing to
former inmates under parole supervision is not a function that has traditionally been the
exclusive prerogative of the state.” Id. at *9 (citations omitted).4
In the present case Schwartz received out-patient drug treatment services from ARCA; he
was no longer incarcerated at the time in question. Moreover, ARCA was not providing
essential medical services to Schwartz in the same way that a physician or dentist provides such
services to a prisoner.
Applying the foregoing precedent to Plaintiffs’ First Amended Complaint, the
undersigned concludes that Counts I and II fail to state a claim because, as a matter of law, they
fail to allege that Defendants acted under color of state law. First, Schwartz was not incarcerated

4

In Young v. Halle Hous. Assoc., L.P., 152 F. Supp.2d 355, 365 (S.D.N.Y. 2001), a
district court explained that, “[a]lthough the State of New York has a constitutional interest in
providing housing for the needy, the provision of housing, for the poor or anyone else, has never
been the exclusive preserve for the state, but has been left to a regulated, and occasionally
subsidized, private marketplace.” See also Moore v. Broady, 2010 WL 3125008 (S.D.N.Y. Aug.
6, 2010) (no state action by transitional housing facility for parolees). But see Lemoine v. New
Horizons Ranch and Center, Inc., 990 F. Supp. 498 (N.D. Texas 1998). In Lemoine, a district
court held that a private juvenile residential treatment center, and one of its contract physicians,
were state actors for § 1983 purposes. Id. at 502-03. A key factor in Lemoine is that court
equated the juvenile treatment center to a private prison, and the contract physician to a prison
doctor. See id. The instant case is distinguishable for several reasons, including that Schwartz
was not incarcerated or detained by ARCA.
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or involuntarily detained at the time in question. Instead, Schwartz was an out-patient participant
at ARCA. Out-patient substance abuse treatment services are not the type of essential services
that are exclusively provided by the State, and Plaintiffs do not suggest otherwise. 5 Thus,
Defendants cannot be held to the standard that applies to private prisons and those who provide
services to confined persons. Compare West, 487 U.S. at 54; and Estelle, 429 U.S. at 103-04;
with Smith, 239 Fed. Appx. at 735-36. In Smith, the plaintiff/parolee was receiving in-patient
services, yet the Third Circuit found that the service provider was not acting under color of state
law. See id. Here, ARCA provided out-patient services to Schwartz.
Second, the fact that ARCA contracted with the State of Missouri to provide services to
parolees such as Schwartz, received state funding, and was subject to substantial regulations,
does not render Defendants state actors. In this regard, Schwartz’s case is substantially
indistinguishable from our Court’s prior decision in Graves. In Graves, Judge Nangle considered
those same factors in a comparable situation and found them insufficient to show state action.
See 605 F.Supp. at 1285.
Finally, even accepting for present purposes that ARCA had a contractual duty to
disclose Schwartz’s program violations to the State, such a contractual duty does not rise to the
5

At oral argument, Plaintiffs argued that Schwartz’s probation/parole status was an
exclusive function of the State. That much is certainly true. Plaintiffs further argued that,
reporting probation/parole violations to the supervising court is also a function of the State, and
Schwartz was in ARCA’s program only because ARCA allegedly agreed to report any violations
to Schwartz’s State Probation Officer. Plaintiffs, however, offer no meaningful case support for
their contention that a duty to report probation/parole violations is a unique function of the State.
Moreover, the power to revoke or not revoke parole/probation is a discretionary state
function, based on any number of means by which a violation may be reported or discovered.
Indeed, there is considerable discretion in deciding which violations may result in revocation and
whether a particular violation should result in a return to prison. See Sincup v. Blackwell, 608
S.W.2d 389, 392-93 (Mo. 1980) (en banc); Abel v. Wyrick, 574 S.W.2d 411, 418 (Mo. 1978) (en
banc); Schmeets v. Turner, 706 S.W.2d 504, 507 (Mo. Ct. App. 1986); Ex Parte Moore v.
Stamps, 507 S.W.2d 939, 948-49 (Mo. Ct. App. 1974) (each discussing judicial discretion
regarding revocation).
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level of state action in this case. As the Third Circuit explained in Smith, the duty to report a
violation does not equate to the authority to return a program violator to prison. See 239 Fed.
Appx. at 736; see also Byng, 2013 WL 3897485 at *1. Plaintiffs do not contend that ARCA or
any defendant had the authority to return Schwartz to prison. Rather, Plaintiffs contend that
ARCA had a duty to report violations. Such a duty does not convert Defendants’ private conduct
herein, however egregious, distasteful, or negligent any particular defendant’s conduct may have
been, into state action. See, e.g., Rendell-Baker, 457 U.S. at 838. Therefore, Plaintiffs’ Counts I
and II fail to allege that Defendants acted under color of state law and Counts I and II must be
dismissed.
C.

Defendants’ Other Arguments Regarding Counts I and II

Defendants offer other arguments why Counts I and II must be dismissed. Because the
Court finds as a matter of law that Counts I and II fail alleged that Defendants acted under color
of state law, the Court will not address the other arguments raised herein.
D.

Counts III and IV – Supplemental Wrongful Death and Malpractice Claims

In their First Amended Complaint, Plaintiffs also included a Wrongful Death claim
(Count III) and a Medical Malpractice claim (Count IV) brought under Missouri law. (ECF No.
63, ¶¶ 87-98) Title 28, U.S.C. §1367(a) states that district courts have supplemental jurisdiction
“over [state] claims that are so related to [federal] claims in the action ... that they form part of
the same case or controversy[.]” A district court, however, may decline to exercise supplemental
jurisdiction over a state claim if “the district court has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c)(3); see also Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350(1988) (stating that “a federal court should consider and weigh in each case ... the
values of judicial economy, convenience, fairness, and comity” in deciding whether to exercise

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supplemental jurisdiction); Ivy v. Kimbrough, 115 F.3d 550, 552-53 (8th Cir. 1997) (stating that
“[i]n most cases, when federal and state claims are joined and the federal claims are dismissed on
a motion for summary judgement, the pendent state claims are dismissed without prejudice to
avoid needless decisions of state law ... as a matter of comity and to promote justice between the
parties.”).
Although the Court has supplemental jurisdiction over the state medical malpractice and
wrongful death claims by virtue of their connection to Plaintiffs’ federal claims, because the
Court will grant Defendants’ motions to dismiss on Plaintiffs’ federal claims, the Court declines
to exercise supplemental jurisdiction over Plaintiffs’ state claims. The principles of judicial
economy, comity, justice between the parties, and most importantly, the avoidance of needless
decisions of state law weigh against exercising supplemental jurisdiction over Plaintiffs’ state
claims in this particular case. Accordingly, the Court dismisses without prejudice Plaintiffs’
supplemental wrongful death and medical malpractice claims.
IV.

Conclusion
IT IS HEREBY ORDERED that Movants’ (ARCA Defendants) Motion to Dismiss

Counts I, II, and III of Plaintiffs’ Amended Complaint for Failure to State a Claim (ECF No. 73),
Defendant Dr. Paul Selvadurai’s Motion to Dismiss All Counts of Plaintiffs’ Amended
Complaint for Failure to State a Claim (ECF No. 75), Defendant Sheryl Castro’s Motion to
Dismiss Counts I, II, and III of Plaintiffs’ Amended Complaint for Failure to State a Claim (ECF
No. 88), and Dr. Shannon Jennings’ Motion to Dismiss Counts I, II, and IV of Plaintiffs’
Amended Complaint for Insufficient Service of Process under Rule 12(b)(5) and Failure to State
a Claim under 12(b)(6) (ECF No. 91) are GRANTED with respect to Plaintiffs’ federal claims.

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IT IS FURTHER ORDERED that Plaintiffs’ state-law wrongful death and medical
malpractice claims (Counts III and IV) are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Defendant Dr. Paul Selvadurai’s Motions to Strike
All Exhibits Attached to Plaintiffs’ Consolidated Memorandum of Law in Opposition to All
Defendants’ Motions to Dismiss and/or Summary Judgment (ECF No. 77) and to Dismiss Count
IV of Plaintiffs’ First Amended Complaint for Failure to File a Health Care Affidavit in
Compliance with Mo. Rev. Stat. § 538.225 and to Strike All Exhibits Attached to Plaintiffs’
Consolidated Memorandum of Law in Opposition to All Defendants’ Motions to Dismiss and/or
Summary Judgment (ECF No.102) ARE DENIED AS MOOT.

/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
Dated this 3rd day of March, 2017

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