Moore v. Wyoming Medical Center

ORDER DENYING THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS EXCEPT PLAINTIFF’S CIVIL CONSPIRACY CAUSE OF ACTION

The above-entitled matter having come before the Court upon the defendants’ motion for summary judgment and plaintiffs motion in opposition thereto, and the Court having-reviewed the materials on file herein, having heard argument from the parties, and being fully advised in the premises, FINDS and ORDERS as follows:

Background

Plaintiff Becky Moore (“Moore”) is a thirty-one year old person with a history of mental illness. On the afternoon of December 5, 1989, Moore called the Central Wyoming Counseling Center to request medication to help her sleep. Moore’s physician, Doctor Robert D. Brown, had prescribed Mellaril for Moore’s condition. 1 Mellaril is a drug often prescribed for schizophrenics and manic-depressives. 2 When Moore called, neither Dr. Brown nor Moore’s therapist, Ms. *1535 Susan Crabtree, were available. That evening, Ms. Crabtree returned Moore’s call. The conversation is disputed. Moore testified that she told Crabtree that “if I am unable to get some sleep, my body is going to shut down.” Crabtree testified in her deposition that Moore stated, “If I don’t get some sleep, I’m going to kill myself.”

Crabtree believed that Moore intended to commit suicide based on this conversation. Crabtree called to alert the Casper Police and the Wyoming Medical Center, both of whom dispatched personnel to Moore’s home as a result. Marla Ross, a co-worker of Moore’s, arrived at Moore’s home around the same time the police arrived. Ross went upstairs to find Moore showering in her bathroom. Ross asked Moore if she could enter, but Moore said no. The Casper police spoke with Ross and told Ross that they understood that Moore was suicidal. Ross apparently denied this. Ross and the police further consulted, jointly deciding that Ross should try again to enter the bathroom. All the while, Moore was unaware the police were present in her home.

Co-worker Ross successfully entered the bathroom and spoke with Moore. Moore reacted angrily, but then calmed down. Ross subsequently exited the bathroom and informed the police that Moore appeared calm. Ross testified in her deposition that one of the police officers told her that “It looks like you’ve got it under control. She sounds so much better now.” Ross re-entered the bathroom to urge Moore to dress (since Ross knew the police were outside, but Moore did not). Moore directed Ross to get her a blanket from Moore’s bedroom closet. Ross exited the bathroom a second time to procure the blanket.

While Ross sought a blanket, firemen and defendant-paramedics Timothy Weaver (“Weaver”) and Michael Hendershot (“Hen-dershot”) arrived at the house. Hendershot questioned the police officers on the scene. Hendershot testified in his deposition that one of the officers told him that “things were quiet right now.”

Hendershot, Weaver and two others proceeded to the top landing outside Moore’s bathroom door. At this point, Hendershot radioed the Wyoming Medical Center and advised that all was quiet. Dr. Ronald D. Iverson, the supervising physician at the medical center, apparently ordered Hender-shot to bring Moore to Wyoming Medical Center even if she had to be brought against her wishes. A transcript of this radio conversation indicates that Dr. Iverson wanted Moore brought to Wyoming Medical Center immediately because she was taking Mellaril and also told Crabtree that she would kill herself if she didn’t get some sleep.

Ross returned to the top of the stairs with the blanket requested by Moore. Ross asked the two paramedics if she might deliver the blanket before they entered the bathroom. One of the men allegedly pushed Ross back and stated, “if we need your help, we’ll ask for it.”

Hendershot then tapped on the bathroom door and identified himself. Moore responded that she did not want anyone to come in. The paramedics advised Moore that she should accompany them to the hospital. Moore said she did not want to go and threw a shampoo bottle at the men. Weaver and Hendershot entered the bathroom, grabbed Moore, forced her to the floor and handcuffed her. At the time Moore was naked. Moore requested that the men clothe her. One of the men apparently told her, “You don’t have a choice.”

'Weaver and Hendershot put Moore in a horizontal position and carried her outside to the ambulance. Neighbors had gathered outside Moore’s home to observe the commotion. On the way to the medical center, the paramedics were unable to perform any of the standard procedures typically required for drug-overdose patients including taking vital signs, checking respiration and circulation. Moore was involuntarily admitted to the emergency room at Wyoming Medical Center.

Plaintiff Moore complains that the defendants detained her without adequate or proper investigation, without authority or probable cause, and ignored her repeated pleas to cover her body prior to being transported. Moore further complains that the defendants did not inform her of her rights nor did they *1536 complete the required forms in support of her detention, all pursuant to Wyoming’s Emergency Detention Statute, Section 25-10-101, et seq. Plaintiff brought this suit under section 1983, also alleging various common law torts.

Standard of Review

“By its very terms, [the Rule 56(c) ] standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there is no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original).

The trial court decides which facts are material as a matter of law. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248, 106 S.Ct. at 2510; see also Carey v. United States Postal Service, 812 F.2d 621, 623 (10th Cir.1987). Summary judgment may be entered “against a party who fails to make a sufficient showing to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Carey, 812 F.2d at 623. The relevant inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Carey, 812 F.2d at 623. In considering a party’s motion for summary judgment, the court must examine all evidence in the light most favorable to the nonmoving party. Barber v. General Elec. Co., 648 F.2d 1272, 1276 n. 1 (10th Cir.1981).

Discussion

The Court divides its analysis into four sections: (1) whether Wyoming Statute § 25-10-109 is constitutional; (2) whether the defendant Wyoming Medical Center acted under color of state law; (3) whether the defendants may assert the defenses of qualified immunity or municipal immunity; and, (4) state law claims.

1. Whether Wyoming Statute § 25-10-109 is constitutional.

Wyoming’s Emergency Detention statute, Section 25-10-109, provides that a person may be detained by a law enforcement officer or a medical examiner where that officer or examiner has reasonable cause to believe the person is mentally ill. Wyo. Stat. § 25-10-109(a) (Michie’s 1990). 3 The statute defines a mentally ill person as one who has a physical, emotional, mental or behavioral disorder which causes him or her to be dangerous to him or herself or others, and which requires treatment. Wyo.Stat. § 25-10-101(ix).

The phrase “dangerous to himself or others” is defined as follows:

(ii) “Dangerous to himself or others” means that, as a result of mental illness, a person:

(A) Evidences a substantial probability of physical harm to himself as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm; or

(B) Evidences a substantial probability of physical harm to other individuals as manifested by a recent overt homicidal act, attempt or threat or other violent act, attempt or threat which places others in reasonable fear of serious physical harm to them; or

(C) Evidences behavior manifested by recent acts or omissions that, due to mental illness, he is unable to satisfy basic needs for nourishment, essential medical care, shelter or safety so that a substantial probability exists that death, serious physical injury, serious physical debilitation or serious physical disease will imminently ensue, unless the individual receives prompt and adequate treatment for the mental illness. No person, however, shall be deemed to be unable to satisfy his need for nourishment, essential medical care, *1537 shelter or safety if he is able to satisfy those needs with the supervision and assistance of others who are willing and available.

Wyo.Stat. § 25 — 10—101(ii).

A medical examiner must examine the detainee within twenty-four hours after he or she is detained, otherwise the detainee must be released. Wyo.Stat. § 25 — 10—109(b). The detained person may be held for up to seventy-two hours if the examiner determines that he or she is mentally ill and dangerous as defined under Section 25-10-101(ii). The detainee should be hospitalized at a “suitable” medical facility. Wyo.Stat. § 25-10-109(d). The officer or examiner who initially detained the allegedly mentally ill person must write a statement of the facts surrounding the emergency detention, and the detainee must get a copy of that statement. Wyo.Stat. § 25-10-109(e). The detained person may be treated against his or her will only when such treatment is necessary to prevent immediate and serious physical harm to the detainee or others. Wyo. Stat. § 25—10—109(f). The detainee must be advised regarding the scope of treatment he or she receives, his or her right to contact family and an attorney, and his or her right to remain silent. Wyo.Stat. §§ 25 — 10—109(f) and (g). Finally, a court must conduct a hearing within seventy-two hours of the detainee being detained when “an application for involuntary hospitalization is filed.” Wyo. Stat. § 25-10-109(h), (j) and (k).

Prior to July 1, 1989, the statute defined a mentally ill person as:

[A] person who presents an imminent threat of physical harm to himself or others as a result of a physical, emotional, mental or behavioral disorder which grossly impairs his ability to function socially, vocationally, or interpersonally and who needs treatment and who cannot comprehend the need for or purposes of treatment and with respect to who[m] the potential risk and benefits are such that a reasonable person would consent to treatment[.]

Wyo.Stat. § 25—10—101(viii) (Michie’s 1989) (italics added).

Plaintiff Moore contends that the amended statute infringes her liberty interest because the definition of “dangerous to himself or others” — incorporated in the amended definition of “mentally ill” — deletes the “imminent” requirement articulated in the pre-July 1, 1989 statute. In other words, the plaintiff urges that the “dangerousness” standard for suicidal acts, as articulated in Section 25-10-101(ii)(A), is too broad and therefore infringes her liberty interest. By contrast, the defendants contend that the meaning of the amended statutory language is effectively the same as the old statute and, therefore, the amended language cannot infringe on the plaintiffs liberty interest.

Generally, state statutes are presumed constitutional and the party challenging the statute must demonstrate “beyond a reasonable doubt” that the statute is unconstitutional. See Eaton v. Jarvis Prods. Corp., 965 F.2d 922, 929 (10th Cir.1992); Brecheisen v. Mondragon, 833 F.2d 238, 241 (10th Cir.1987). In construing a state statute, the court assumes that the legislature expressed its purpose through the ordinary meaning of the words used. Immigration and Naturalization Serv. v. Elias-Zacarias, — U.S. -, -, 112 S.Ct. 812, 816, 117 L.Ed.2d 38 (1992). The court reads the statute as a whole, endeavoring to best effect legislative intent. In re LaBelle, 728 P.2d 138, 145 (Wash.1986); Kirby Bldg. Sys. v. Mineral Exploration Cos., 704 P.2d 1266, 1280 (Wyo.1985).

The Court’s constitutional analysis must also consider that “[l]iberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Bee v. Greaves, 744 F.2d 1387, 1393 (10th Cir.1984) (citing Youngberg v. Romero, 457 U.S. 307, 316, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28 (1982)). Courts have recognized that involuntary civil commitment severely infringes on a person’s right to be free from governmental restraint because it affects one’s right not to be confined unnecessarily. See, e.g., Parham v. J.R., 442 U.S. 584, 600, 626, 99 S.Ct. 2493, 2503, 2516, 61 L.Ed.2d 101 (1979); Milonas v. Williams, 691 F.2d 931, 943 (10th Cir.1982).

*1538 Despite the acknowledged importance of a plaintiffs liberty interest, it is not clear whether state statutes authorizing emergency detention of the mentally ill receive strict scrutiny or a rational basis analysis. See Foucha v. Louisiana, — U.S. -, -n. 12, - - -, 112 S.Ct. 1780, 1805 n. 12, 1806-07, 118 L.Ed.2d 437 (1992) (Thomas, J., dissenting) (arguing that the Court has never applied strict scrutiny to state laws involving involuntary civil confinement). Some courts have invoked less restrictive alternatives analysis in related contexts which suggests the use of strict scrutiny. See, e.g., Lynch v. Baxley, 744 F.2d 1452, 1458-59, 1459 n. 11 (11th Cir.1984) (in the context of temporary jail detention, government may not pursue a legitimate purpose which broadly stifles fundamental liberties where that purpose may' be more narrowly achieved); People v. Stevens, 761 P.2d 768, 776, 776 n. 14 (Colo.1988) (court lists statutes which require proof that a lesser restrictive alternative is not available prior to involuntary commitment). Other courts have stated that involuntary commitment statutes merit “close scrutiny” or must be “construed strictly” because they authorize severe deprivations of liberty. See, e.g., In re LaBelle, 728 P.2d at 145; Doe v. Gallinot, 486 F.Supp. 983, 992 (C.D.Cal.1979). In any event, a detainee’s liberty interest is not absolute. A court must balance the detainee’s interest against competing state interests to determine whether that interest is outweighed by the “demands of an organized society.” Bee, 744 F.2d at 1394; see also, In re LaBelle, 728 P.2d at 153.

Neither party at bar argues that the state of Wyoming does not have a compelling interest in temporarily detaining and treating a mentally ill person who is dangerous. See, e.g., Lynch v. Baxley, 744 F.2d at 1458, 1458 n. 10. Plaintiff, however, disputes the means employed by the statute regarding attempted or threatened suicides, namely that the statute utilizes a “substantial probability of harm” standard instead of an “imminent threat of physical harm” standard.

The Court finds on point the case of People v. Stevens, 761 P.2d 768 (Colo.1988). The detainee in Stevens challenged a portion of Colorado’s Emergency Detention statute which did not define the degree of dangerousness required to detain a mentally ill individual. Id. at 772. The Stevens court acknowledged the substantial liberty interests at stake. Id. at 771. It then reasoned, inter alia, that “[t]here is no requirement ... that due process of law must be the same in all fifty states” since federalism dictates that states may develop a “variety of solutions” to a given societal problem. Procedures may vary by state so long as they “meet the constitutional minimum.” Id. at 773 (citing Addington v. Texas, 441 U.S. 418, 431, 99 S.Ct. 1804, 1812, 60 L.Ed.2d 323 (1979)). The Stevens court noted that different state statutes describe the risk of harm differently, including such standards as “a substantial risk,” “a clear and present threat,” “likely,” “a reasonable expectation” and “an imminent threat.” Id. at 772-73. (footnotes omitted). The Stevens court concluded that “some qualification to the word ‘dangerfous]’ ... is necessary to [make the Colorado statute] comport with due process,” though the court held that the Colorado statutory scheme as a whole was constitutional. Id. at 774, 778.

By comparison, section 25-10-101(ii)(A) in the Wyoming statute defines “dangerous,” in relevant part, as “a substantial probability of physical harm to himself as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm.” As it stands, the Wyoming statute provides more detail with regard to what constitutes “dangerousness” than did the Colorado detention statute in Stevens. Consequently, this Court reasons that the Wyoming statutory scheme is constitutional based on concepts of federalism as outlined in Stevens, and the fact that the statutory scheme in Stevens was held constitutional. 4

Furthermore, this Court is persuaded that the Wyoming Emergency Detention statute passes constitutional muster even under strict scrutiny. The Wyoming statute, as *1539 applied, constitutes a reasonable attempt by the state legislature to balance the interests of the mentally ill individual against the interests of the state. The Court disagrees with the plaintiff that the amended “substantial probability” standard deprives her of any more liberty than did the “imminent threat of physical harm” standard, particularly given the inherent uncertainty of both standards. 5 Even if this Court were convinced a better alternative existed to the Wyoming Emergency Detention statutory scheme, the legislature, not this Court, is in the best position to determine what that alternative is and how it should be implemented. See, generally, Stephen J. Morse, A Preference for Liberty: The Case Against Involuntary Commitment of the Mentally Disordered, 70 Cal.L.Rev. 54, 93-103 (1982) (arguing that the benefits of abolishing involuntary civil commitment of mentally ill far outweigh the costs of keeping it) (hereinafter Morse); Geraldine A. McAfferty & Jeanne Dooley, Involuntary Outpatient Commitment: An Update, 14 Mental & Phys.Disab.L.Rep. 277 (1990) (authors review the pros and cons of involuntary outpatient civil commitment and highlight the legislative trends in this regard).

Despite the holding in this order that the Wyoming Statute is constitutional, the Court remains aware that neither the medical nor the legal profession has accurately defined or predicted “dangerousness.” See, e.g., Perlin § 2.07. Nonetheless, courts must attempt to define and evaluate the contours of “dangerousness,” especially where, as in this case, a genuine issue of fact exists regarding whether the detainee was dangerous at the time the state detained her. 6 The Wyoming Emergency Detention statute specifically provides that the fact-finder may evaluate whether a detainee posed a substantial probability of harm to him or herself based on “evidence of recent threats of or attempts at suicide or serious bodily harm.” Wyo.Stat. § 25-10-101(ii)(A). (emphasis added).

This phrase admits of two reasonable interpretations. First, the adjective “recent” may modify only the phrase “threats of ... suicide or serious bodily harm.” Second, the adjective “recent” may modify the phrase *1540 “attempts at suicide or serious bodily harm” in addition to threats of the same. If the Court follows the first interpretation, the defendants could present evidence at trial of Moore’s attempted suicides, recent or not, plus evidence of recent threats of suicide. Under the second interpretation, the Court would limit the defendants to presenting only evidence of recent threats and recent attempts.

The Court reasons that “recent” modifies both phrases. Common sense dictates that recent attempts at suicide or serious bodily harm, in addition to recent threats of the same, will be more probative of the detainee’s dangerousness than non-recent attempts. See; e.g., United States v. Atwell, 766 F.2d 416, 421 (10th Cir.1985) (more recent evidence had probative value). Additionally, short-term predictions of dangerousness appear to be more accurate than long-term ones. Perlin § 2.15, at 127-28 n. 517 (citing Menzies, et al., The Dimensions of Dangerousness: Evaluating the Accuracy of Psychometric Predictions of Violence Among Forensic Patients, 9 Law & Hum.Behav. 49, 67 (1985) (medical professionals should limit themselves to short-term predictions of dangerousness)). Therefore, this Court concludes that limiting the defendants to evidence of recent threats and recent attempts of suicide is consistent with the statute’s requirement that a potential detainee exhibit a substantial probability that she might harm herself or others.

2. Whether defendant Wyoming Medical Center acted under color of state law.

Under the “public function” test for state action, a court may examine “the structure of the entity and its relationship to a governmental unit” to determine whether a private entity is a state actor under 42 U.S.C. § 1983. Milo v. Cushing Mun. Hosp., 861 F.2d 1194, 1196 (10th Cir.1988) (citing Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)). See also, Yeager v. City of McGregor, 980 F.2d 337, 342-43 (5th Cir.1993) (government-funded hospital not a state actor under § 1983); Carnes v. Parker, 922 F.2d 1506, 1509 (10th Cir.1991) (government-funded hospital was a state actor under § 1983); Albright v. Longview Police Dept., 884 F.2d 835, 840-41 (5th Cir.1989) (government-funded hospital not a state actor); Jatoi v. Hurst-Euless-Bedford Hosp. Auth., 807 F.2d 1214, 1221-22 (5th Cir.1987), mod. on other grounds and reh’g en banc denied, 819 F.2d 545 (5th Cir.1987), cert. denied sub nom., Harris Methodist H-E-B Board of Trustees v. Jatoi 484 U.S. 1010, 108 S.Ct. 709, 98 L.Ed.2d 660 (1988) (government-funded hospital was state actor).

A careful reading of both the Fifth and Tenth • Circuit case law regarding the “public function” test leads this Court to consider the following three factors in deciding whether Wyoming Medical Center is a state actor:

(1) whether the County receives a “direct financial benefit” from the private lessee, Wyoming Medical Center;

(2) whether the County “benefitted” from the actual complained of violation(s);

(3) whether the County retained “control [of] and responsibility” for the hospital;

Albright, 884 F.2d at 839-41; Milo, 861 F.2d at 1196-97.

In the instant case, “it cannot be disputed that some kind of relationship exists between [Natrona County, Wyoming] and [Wyoming Medical Center].” 861 F.2d at 1196. Natrona County owns the physical facilities used by the medical center. Wyoming Medical Center receives funds from county mill levies and from sales tax revenue. The Board of Commissioners of Natrona County, Wyoming, in conjunction with the medical center’s Board of Trustees, issued revenue bonds in 1990 in the principal amount Of $16.5 million. Wyoming Medical Center services this debt from “net pledged revenues.” The county mill levies, the sales tax revenues, and the bond indebtedness, together, comprised the majority of Wyoming Medical Center’s net assets in 1989 and 1990.

Furthermore, section 4.2 of the operating lease between Natrona County and the medical center states that:

[A]s long as the amount of indigent care furnished by [Wyoming Medical Center] *1541 together with premiums paid by [Wyoming Medical Center] for property insurance ... do not exceed, on an annual basis, five percent (5%) of the gross hospital operating revenues of [Wyoming Medical Center], ... then the payment of insurance premiums and the providing of indigent care by [Wyoming Medical Center] shall fulfill the rental obligation hereunder.

Section 5.1 of the lease provides that the property is exempt from county taxes. Section 9.1 of the lease provides that Natrona County may terminate the lease if Wyoming Medical Center fails to “discharge its public service mission and that the public interest is no longer being served by the continuation of this lease.”

The Court finds that the relationship between Natrona County and Wyoming Medical Center amounts to state action for three reasons. First, Natrona County benefits from Wyoming Medical Center because the two entities are “financially interdependent.” 884 F.2d at 850. The lease states that Wyoming Medical Center will provide indigent care to the county. The medical center’s bond indebtedness, in which the county is a principal lender, must be serviced by the medical center’s revenues. The medical center receives substantial benefits from the county in the form of reduced taxes and rent.

Second, Natrona County “benefitted” from the complained of activities because Wyoming Medical Center has a duty to service indigent patients according to the terms of its lease with Natrona County. Plaintiff Moore, who is indigent, complains that the defendants unlawfully detained her. This detention occurred as a result of services performed by Wyoming Medical Center’s paramedics and emergency medical technicians. Moreover, non-indigent patients pay for these services so that indigent patients may receive care and treatment. The medical center uses revenues derived from these medical activities to service its bond indebtedness and to keep the hospital running, both of which directly benefit the county. Thus, Natrona County benefits from the services rendered by the defendants pursuant to the lease agreement. Compare Burton v. Wilmington Parking Auth., 365 U.S. 715, 723-25, 81 S.Ct. 856, 860-62, 6 L.Ed.2d 45 (1961) (governmental entity economically benefitted from private entity’s discriminatory policies).

Third, the County retains responsibility for the hospital. The lease provides that Natro-na County ultimately determines whether the medical center properly discharges its public mission, although the County does not appear to control Wyoming Medical Center’s day-to-day activities. The Tenth Circuit has held that a county may not insulate itself from liability by delegating its responsibility to operate a public hospital to a private entity. Carnes, 922 F.2d at 1509; Milo, 861 F.2d at 1197. Thus, Natrona County remains responsible for Wyoming Medical Center’s actions even though Natrona County may not directly control the medical center’s day-to-day operations.

This Court rejects the defendants’ argument that the Fifth Circuit’s reasoning regarding “responsibility and control” in Al-bright should trump the Tenth Circuit reasoning in Carnes and Milo. In Albright, the Fifth Circuit distinguished its earlier decision in Jatoi. The Albright court reasoned that, in Jatoi, the especially created governmental entity, whose purpose it was to oversee the hospital’s operations, caused the county to be “informed of decisions, including the decision to terminate Dr. Jatoi’s privileges.” 884 F.2d at 840. The Albright court found dis-positive that, in Jatoi the especially-created governmental entity retained “the ability to prevent or control the complained of conduct.” Id. at 841. (citation omitted) (emphasis added).

However, unlike the Fifth Circuit, the Tenth Circuit does not find the “responsibility and control” factor dispositive of the state action issue. Instead, the Tenth Circuit takes a more expansive view of the “responsibility and control” factor, appearing to emphasize the “responsibility” aspect more than the “control” aspect. The Carnes and Milo decisions implicitly left room for the possibility that a private hospital may become a state actor pursuant to section 1983 even though the county was not “informed of [the private party’s] decisions” as in Jatoi. See specifically, Yeager, 980 F.2d at 342, 342 n. 9; *1542 compare Carnes, 922 F.2d at 1509; Milo, 861 F.2d at 1197.

The plaintiffs alternate theory regarding state action — that the defendants acted “in concert” with city police and firefighters — is moot insofar as this Court finds that the defendants served a public function. However, the Court notes that it would also find state action under the “in concert” test for at least two reasons. First, the Wyoming-Emergency Detention Statute itself states that a mentally ill person may be detained when a police officer or medical examiner has reasonable cause to believe the mentally ill person is dangerous. Wyo.Stat. § 25-10-109. Second, substantial evidence exists in the record to support the proposition that Wyoming Medical Center acted in concert with the Casper Police and Fire Departments to detain Moore. Deposition of Robert Dean at 84-6; Deposition of Art Washut at 21:8-11, 22:7-13, 23:13-23; Deposition of Michael Hendershot at 13:11, 26:3-16.

3. Whether the defendants may assert the defenses of qualified immunity, or municipal immunity under the Monell doctrine.

a. qualified immunity.

Defendants Weaver and Hendershot assert the defense of qualified immunity. 7 However, the recent Supreme Court case of Wyatt v. Cole casts a significant shadow over Weaver and Hendershot’s assertion. In Wyatt, the Supreme Court held that qualified immunity was unavailable to private defendants faced with Section 1983 liability for invoking a state replevin, garnishment or attachment statute. — U.S. -, -, 112 S.Ct. 1827, 1832, 118 L.Ed.2d 504 (1992).

The Wyatt Court reasoned as follows: First, the Supreme Court explained that qualified immunity defense finds its support in common law traditions and other “strong policy reasons.” Id. at - - -, 112 S.Ct. at 1830-31. However, the Court opined that “irrespective of the common law support, we will not recognize an immunity available at common law if § 1983’s history or purpose counsel against applying it in § 1983 actions.” Id.

Next, the Supreme Court found that common law did not protect private persons who instituted attachment actions from malicious prosecution or abuse of process actions. The Supreme Court further explained that the policy reasons announced in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) for keeping insubstantial claims against public officials from going to trial did not apply in the attachment context. Id. at -, 112 S.Ct. at 1833. Qualified immunity protected government officials only “where it was necessary to preserve their ability to serve the public good or to ensure that talented candidates were not deterred by the threat of damage suits from entering public service.” Id.

The Supreme Court refused to extend qualified immunity to private parties in the case before it for two main reasons. First, private parties do not hold an office requiring them to exercise discretion in which they principally strive to enhance the public good. Second, the public interest is not “unduly impaired” if private parties go to trial because private parties are not government officials performing discretionary functions. The Supreme Court summarized its thinking by stating that “[i]n short, the nexus between private parties and the historic purpose of qualified immunity is simply too attenuated to justify such an extension of our doctrine of qualified immunity.” Id. at - - -, 112 S.Ct. at 1833-34. Wyatt left open the issue of whether “private defendants faced with § 1983 liability under Lugar v. Edmondson Oil Co., 457 U.S. 922,