# Texas v. New Mexico (494 U.S. 111)

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## Dissenting Opinion

    O'Connor
United States Supreme Court
494 U.S. 111
State of Texas v. State of New Mexico
No. 87-1965. Argued: October 11, 1989. --- Decided: February 27, 1990.
[112]
No. 65, Original Supreme Court of the United States February 26, 1990 ON BILL OF COMPLAINT
Based upon the recommendation of the Special Master, the Joint Motion for Entry of Stipulated Judgment (Joint Motion) is granted, and the Court hereby enters judgment as follows:
STIPULATED JUDGMENT 1 On or before March 1, 1990, New Mexico shall pay Texas $14 million, to be disbursed by Texas in accordance with Exhibit B to the Joint Motion which is herein reproduced, by either delivering a check or draft in that amount made payable to the State of Texas or transferring that amount to the State of Texas by electronic wire transfer 2 Texas releases New Mexico from all claims for equitable or legal relief, other than the relief embodied in the March 28, 1988, Amended Decree and actions thereunder, arising out of New Mexico's breaches of the Pecos River Compact for the years 1952 through 1986, plus all claims for attorney's fees and other costs incurred prior to August 10, 1989 3 Nothing herein affects the Court's March 28, 1988, Amended Decree and actions thereunder EXHIBIT B Texas shall deposit $138 million in the Texas Water Assistance Fund 480 of the Texas Water Development Board (Board), created pursuant to Chapter 15 of the Texas Water Code, to be used for agricultural and irrigation projects (including associated water quality improvement projects) and any necessary associated studies in the Texas counties of Loving, Ward, Reeves, and Pecos In funding such projects and studies, the Board shall give preference to projects and studies affecting surface water irrigators in the Red Bluff Water Power Control District in the four designated Texas counties, if appropriate. The remaining $200,000 may be treated by the Attorney General of the State of Texas as attorney's fees or investigative costs; provided, however, Texas and New Mexico agree that any use of the settlement funds in this manner does not constitute, and shall not be construed as, an admission, express or implicit, that New Mexico has any liability for Texas' attorney's fees and costs incurred in this litigation. Zinermon v. Burch [110 S.Ct. 975, 494 U.S. 113, 108 L.Ed.2d 100] 110 S.Ct. 975 494 U.S. 113 108 L.Ed.2d 100 Marlus C. ZINERMON, et al., Petitioners v. Darrell E. BURCH.
Syllabus
Respondent Burch, while allegedly medicated and disoriented, signed forms requesting admission to, and treatment at, a Florida state mental hospital, in apparent compliance with state statutory requirements for "voluntary" admission to such facilities. After his release, he brought suit under 42 U.S.C. § 1983 in the District Court against, inter alios, petitioners-physicians, administrators, and staff members at the hospital-on the ground that they had deprived him of his liberty without due process of law. The complaint alleged that they violated state law by admitting him as a voluntary patient when they knew or should have known that he was incompetent to give informed consent to his admission, and that their failure to initiate Florida's involuntary placement procedure denied him constitutionally guaranteed procedural safeguards. The court granted petitioners' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), relying on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420, and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393, which held that a deprivation of a constitutionally protected property interest caused by a state employee's random, unauthorized conduct does not give rise to a § 1983 procedural due process claim unless the State fails to provide a postdeprivation remedy. The court pointed out that Burch did not contend that the State's statutory procedure for placement was inadequate to ensure due process, but only that petitioners had failed to follow the procedure. Since the State could not have anticipated or prevented the unauthorized deprivation of Burch's liberty, the court reasoned, there was no feasible predeprivation remedy, and the State's postdeprivation tort remedies provided Burch with all the process that was due him. The Court of Appeals reversed and remanded.
Held: Burch's complaint was sufficient to state a claim under § 1983 for violation of his procedural due process rights. While Parratt and Hudson apply to deprivations of liberty, they do not preclude Burch's claim, because predeprivation procedural safeguards might have been of value in preventing the alleged deprivation of Burch's liberty without either valid consent or an involuntary placement hearing. Such a deprivation is not unpredictable. It is foreseeable that persons requesting treatment might be incapable of informed consent, and that state officials with the power to admit patients might take their apparent willingness to be admitted at face value. And the deprivation will occur, if at all, at a predictable point in the admissions process when a patient is given admission forms to sign. Nor was predeprivation process impossible here. Florida has a procedure for involuntary placement, but only the hospital staff is in a position to take notice of any misuse of the voluntary admission process and to ensure that the proper procedures are afforded both to those patients who are unwilling and to those who are unable to give consent. In addition, petitioners' conduct was not "unauthorized" within the meaning of Parratt and Hudson, since the State had delegated to them the power and authority to deprive mental patients of their liberty and the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful confinement. Pp. 124-139.
840 F.2d 797 (CA11 1988), affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA and KENNEDY, JJ., joined, post, p. 139.
Louis F. Hubener, III, Daytona Beach, Fla., for petitioners.
Richard M. Powers, Tallahassee, Fla., for respondent.
Justice BLACKMUN delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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