Pleading Policy or Custom in Action Against Hospital

A former patient sued a private hospital alleging that it conspired with a state actor to violate her Fourth Amendment rights. However, the plaintiff did not state any facts in her Complaint that would show the hospital had a policy or custom of rights violations. Her Complaint was therefore dismissed. Crumpley-Patterson v. Trinity Lutheran, No. 03-3499 (8th Cir. Nov. 2, 2004).

Citing Doe v. School District of Norfolk, 340 F.3d at 613, Patterson argues she was not required to show, at this juncture, the existence of such a practice or custom because those facts may have been developed during discovery. The argument misses the mark. The district court dismissed the complaint because Patterson failed to include any allegations suggesting the existence of an unconstitutional practice or custom. On appeal, Patterson has again failed to allege the existence of an unconstitutional practice or custom and at oral argument conceded the absence of any such allegations in the complaint.

The panel, perhaps as a reminder to future 1983 litigants, reminded counsel what should have been alleged:

A corporation acting under color of state law will only be held liable under § 1983 for its own unconstitutional policies. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). The test is whether there exists a policy, custom or action by those who represent official policy which inflicts an injury actionable under § 1983. Id. at 694. In other words, to prove a policy, custom or action, Patterson must show "a continuing, widespread, persistent pattern of unconstitutional misconduct" by Trinity's employees; "[d]eliberate indifference to or tacit authorization of such conduct by [Trinity's] policymaking officials after notice to the officials of that misconduct;" and she "was injured by acts pursuant to [Trinity's] custom, i.e., that the custom was the moving force behind the constitutional violation." S.J. v. Kansas City Mo. Pub. Sch. Dist., 294 F.3d 1025, 1028 (8th Cir. 2002) (internal quotations and citations omitted).