F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 28 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
ROBIN G. WAKELAND,
Plaintiff-Appellant,
v. No. 99-2175 (D.C. No. CIV-97-793-JC/JHG) BENJAMIN MONTANO, Santa Fe (D. N.M.) County Sheriff, in his individual and official capacities; VINCE CRESPIN; LARRY MARTINEZ; JOHN LUCERO; DENNIS O’BRIEN; RON BUCHHOLZ; LINDA M. ORTIZ; VANESSA LAHARGOUE, Santa Fe County Sheriff Office Officers, in their individual and official capacities; JOHN DOES 1-4; JOHN DOES 6-13, Santa Fe County Sheriff Office Officers, in their individual and official capacities; SANTA FE COUNTY SHERIFF OFFICE DISPATCHERS, John/Jane Does, unnumbered, in their individual and official capacities; JOHN DOE 5, New Mexico Department of Public Safety Law Enforcement Officer, in his individual capacity; JUDITH HERRERA; ELEANOR BLAKEMORE; RONALD WINGER; JAMES GREEN; RUTH N. PENNYCOOK; SAM BALLEN; DAVID BROWN; RICHARD CARPENTER; ROBERT DENNISON; BILL MONTOYA; MARIO PACHECO; JOSEPH RUIZ; LAURA WOLFSWINKEL; LAWRENCE SHANDLER; JAMES F. HALLQUIST; WILLIAM LITZENBERG; IRA JACKSON; ROBERT LIPSCOMB; RAPHAEL SHAPIRO, Board of Directors of St. Vincent Hospital, in their individual and official capacities; EDGAR BILLOWITZ, M.D.; JIM CHILDERS, Chief Financial Officer; ELLEN SUTTON, St. Vincent Hospital Staff, in their individual and official capacities; PABLO SEDILLO, Administrator of Santa Fe County Detention Center Management, Corrections Corporation of America, in his individual and official capacities; JOHN/JANE DOES, unnumbered, Corrections Corporation of America Santa Fe County Detention Center employees in his or her individual and official capacities; MICHAEL BURKHART, Secretary of the New Mexico Department of Health; J. ALEX VALDEZ, Secretary of the New Mexico Department of Health; PABLO HERNANDEZ, M.D., Las Vegas Medical Center Administrator; FELIX ALDERETE, Administrator of the Las Vegas Medical Center and Members of its Governing Board; JACK CALLAGHAN; NORTY KALISHMAN; LARRY A. MARTINEZ; PAUL K. MINOQUE, Las Vegas Medical Center Governing Board Members, in their individual and official capacities; JAMES WALCH, M.D., Las Vegas Medical Center Staff Psychiatrist in his individual and official capacities; J. MICHAEL MASH, Las Vegas
-2- Medical Center Staff Psychologist in his individual and official capacities; R.G. BRASSEUR, M.D.; JESSICA L. BERRY, Ph.D., in their individual and official capacities; ADAM COPPENS; JAMES F. UPSHAW; MATTHEW SANDOVAL, in their individual and official capacities; PAUL D. MANNICK; KATHY MANNICK,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.
Following her arrest, subsequent detention relating to alleged mental
problems, and eventual involuntary commitment for mental health care, plaintiff
Robin Wakeland brought this action raising claims under 42 U.S.C. §§ 1983 and
1985 and New Mexico tort law against defendants, who were in some way
involved in her arrest, detention and/or commitment. 1 In a variety of orders, the
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
-3- district court granted defendants’ motions to dismiss for failure to state a claim
and/or for summary judgment and entered judgments in favor of defendants.
Plaintiff appeals. Reviewing the district court’s decisions to dismiss and to grant
summary judgment to defendants de novo, see Sutton v. Utah State Sch. for the
Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999) (Rule 12(b)(6)); Simms v.
Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d
1321, 1326 (10th Cir.), cert. denied , 120 S. Ct. 53 (1999) (summary judgment),
we reject plaintiff’s contentions of error and affirm.
Although we view the facts in the light most favorable to her, see Sutton ,
173 F.3d at 1236, Simms , 165 F.3d at 1326, many of her allegations contained in
her ninety-eight page complaint and other papers are irrelevant to the analysis of
her claims. We therefore present first a general description of the events
underlying her various claims, and then will present any other relevant and more
specific allegations in our analysis of her claims.
This case ultimately arises from a dispute between plaintiff and her
next-door neighbors, Paul and Kathy Mannick. The Mannicks instituted a state
court action against plaintiff, apparently in 1994. On May 12, 1994, the state
court issued a preliminary injunction enjoining plaintiff from trespassing on the
therefore ordered submitted without oral argument.
-4- Mannicks’ property and interfering with the construction of the Mannicks’ new
home. On June 15, 1994, Adam Coppens, an employee of the company building
the Mannicks’ home, called the Santa Fe County Sheriff’s Office to report that
plaintiff was interfering with the construction of the home. Officers Larry
Martinez and Vince Crespin were dispatched to handle the complaint. When they
arrived, plaintiff refused to identify herself or answer questions without a lawyer
present and refused to acknowledge the preliminary injunction. Plaintiff was
arrested for restricting, evading, or obstructing an officer and for concealing her
identity. These charges were eventually dropped.
In October 1994, the Mannicks complained to the Sheriff’s Office that
plaintiff was flashing her car lights into their residence. Officer Martinez
investigated, and plaintiff again refused to answer any questions without a lawyer
present, though she did produce her driver’s license to identify herself. Officer
Martinez did not arrest her.
On December 18, 1994, the Mannicks again called the Sheriff’s Office
to report what they believed to be bizarre behavior. This time, Corporal John
Lucero and Officer Dennis O’Brien were dispatched to the site. According to
plaintiff, the Mannicks told the officers that she watches them with binoculars,
takes photos of them, shines lights into their home, sets gopher traps on her
property, and entices their children to come onto her property near the traps.
-5- After talking to the Mannicks, walking around plaintiff’s property, and observing
plaintiff sitting on the ground rocking back and forth and staring at Corporal
Lucero with a blank or distant look when he tried to question her, the two officers
concluded that she was suffering from a mental disorder and could be a danger to
herself or others. They therefore took her into protective custody and transported
her to St. Vincent Hospital for an emergency mental health examination. At the
hospital, Corporal Lucero informed Dr. Edgar Billowitz of their observations and
the Mannicks’ complaints. After examining her, during which time she refused to
answer any questions without a lawyer present, Dr. Billowitz issued a twenty-
four-hour mental health hold on her and ordered her to be held in protective
custody overnight at the Santa Fe County Detention Center, which is operated by
the Corrections Corporation of America. On re-examination at St. Vincent the
next day, Dr. Billowitz issued a seven-day mental health hold certificate and
instructed that plaintiff be taken to the Las Vegas Medical Center, to which she
was transported by Officer Ron Buchholtz.
On arriving at the Medical Center on December 19, plaintiff was examined
by psychiatrist Dr. James Walch. Following examination by Dr. Walch, and on
his recommendation, counsel for the New Mexico Department of Health filed a
petition for involuntary commitment on December 20, and attorney Matthew
Sandoval was appointed to represent her on the petition. After a hearing at which
-6- Sandoval represented plaintiff, the state court ordered plaintiff’s commitment for
up to thirty days at the Medical Center. She was released from the Medical
Center on December 29, 1994.
On January 11, 1995, plaintiff went to the Sheriff’s Office to provide
additional information relating to a criminal trespass complaint she had made
against the Mannicks. She met with Officer Vanessa LaHargoue, who prepared
a report but did not forward the complaint to the district attorney.
The state court in the Mannicks’ action against plaintiff held a bench trial
and issued its findings of fact and conclusions of law on September 12, 1995.
The court found, inter alia, that plaintiff had caused the Mannicks to reasonably
fear for the safety of their small children, had intentionally invaded the Mannicks’
property by shining spotlights onto their property and into their residence, and had
taken other actions intended to harass and intimidate the Mannicks. It concluded
that plaintiff’s actions constituted a private nuisance, invasion of privacy, assault,
intentional infliction of emotional harm and stalking of the Mannicks’ children.
It awarded compensatory and punitive damages against plaintiff totaling $85,000
and issued a permanent injunction enjoining her, inter alia, from harassing and
intimidating the Mannicks and their children. In October 1996, the Mannicks
asked the Sheriff’s Office to serve a writ of execution of their judgment on
-7- plaintiff. Officer Linda Ortiz attempted to serve plaintiff on several occasions at
her home, but never encountered her.
On June 10, 1997, plaintiff filed her complaint against all the above
individuals plus a number of others associated with the entities involved,
asserting federal claims for violation of her constitutional rights and state law tort
claims. She appeals the district court’s denial of her claims against nearly all
defendants 2 along with the district court’s imposition of sanctions against her
regarding her claims against the Mannicks. We discuss below the district court’s
actions and plaintiff’s arguments on appeal with respect to each set of defendants.
Claims against the Mannicks
Plaintiff asserted claims under §§ 1983 and 1985 contending that the
Mannicks acted in cooperation and conspired with the Sheriff’s Office in carrying
out policies of invidious discrimination and unconstitutional detention. The
district court granted the Mannicks’ motion to dismiss, concluding that plaintiff
had failed to show that the Mannicks were state actors and that her allegations of
2 Although her notice of appeal indicated she was appealing the dismissal of her claims against all defendants, she did not include any relevant argument regarding claims against Adam Coppens in her opening brief and therefore has waived these claims. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994).
-8- conspiracy were impermissibly bald and conclusory. Plaintiff challenges these
determinations.
To bring an action under § 1983, a plaintiff must establish that the
defendant acted under color of state law. See Pino v. Higgs , 75 F.3d 1461, 1464
(10th Cir. 1996). Thus, to hold a private individual or entity liable under § 1983
for a constitutional violation, the plaintiff must show that the individual’s conduct
is fairly attributable to the state. See id. at 1465; see also Gallagher v. “Neil
Young Freedom Concert ,” 49 F.3d 1442, 1447-57 (10th Cir. 1995) (discussing
four tests for determining state action). Moreover, to the extent that a conspiracy
may form the basis for a § 1983 claim, “a plaintiff must allege specific facts
showing an agreement and concerted action amongst the defendants;” conclusory
allegations of conspiracy are not enough. Tonkovich v. Kansas Bd. of Regents ,
159 F.3d 504, 533 (10th Cir. 1998).
We agree with the district court that plaintiff has only conclusorily and
inadequately alleged that the Mannicks conspired with the Sheriff’s Office to
violate her constitutional rights. Merely making reports to law enforcement
authorities does not constitute state action. In the situations about which plaintiff
complains, the Mannicks’ complaints were followed by independent investigation
by sheriff’s officers prior to their detention of plaintiff. See Carey v. Continental
Airlines, Inc. , 823 F.2d 1402, 1404 (10th Cir. 1987) (holding defendant’s
-9- complaint to police regarding plaintiff’s activities followed by police questioning
of plaintiff and subsequent arrest was not state action). Finally, the district court
properly rejected plaintiff’s claim for “invidious discrimination” under the second
part of § 1985(2) because plaintiff failed to allege any racial or class-based
discrimination. See Davis v. Township of Hillside , 190 F.3d 167, 171 (3d Cir.),
petition for cert. filed , 68 U.S.L.W. 3367 (U.S. Nov. 22, 1999) (No. 99-888);
Santistevan v. Loveridge , 732 F.2d 116, 119 (10th Cir. 1984) (McKay, J.,
concurring).
Plaintiff also challenges the district court’s order that she pay the
Mannicks’ attorney fees and costs as a sanction against her pursuant to
Fed. R. Civ. P. 11. Following a hearing, the court granted the Mannicks’ motion
for sanctions based on their contentions that she filed her complaint against them
for purposes of harassment and that her claims were frivolous and based on
neither law nor fact. We review the district court’s imposition of sanctions for
abuse of discretion. See Barrett v. Tallon , 30 F.3d 1296, 1301 (10th Cir. 1994).
Plaintiff contends that her complaint was not frivolous and that the Mannicks
were “unreliable informants” regarding her activities, but by the time plaintiff
filed her complaint in this action, the state court had essentially substantiated the
Mannicks’ complaints to the sheriff’s officers regarding her activities. We see no
abuse of discretion in the imposition of sanctions.
-10- Claims against James Upshaw
Upshaw was the supervisor of Adam Coppens at the construction company
building the Mannicks’ new home, and the district court dismissed the claims
against both Upshaw and Coppens sua sponte for the same reasons it dismissed
the claims against the Mannicks. Although challenging Upshaw’s dismissal,
plaintiff neither explains how he allegedly violated her rights, nor presents
argument why the district court erred. We will not make her argument for her.
See American Airlines v. Christensen , 967 F.2d 410, 415 n.8 (10th Cir. 1992). 3
Claims against St. Vincent Hospital defendants
The St. Vincent defendants include Dr. Billowitz, the St. Vincent board of
directors, individual members of the board, and several employees. Plaintiff
asserted federal claims against them for lack of professional judgment and
egregious acts, illegal detention, denial of her right to an attorney, conspiracy
with the Sheriff’s Office, and violation of privacy, and state law claims for fraud
and intentional infliction of emotional distress. The district court granted
summary judgment to the St. Vincent defendants on all of plaintiff’s claims.
3 Throughout her opening brief, plaintiff attempts generally to incorporate by reference arguments, authorities and facts contained in various documents filed in the district court. This is not acceptable appellate argument, and we will not consider these references. See Gaines-Tabb v. ICI Explosives, USA, Inc. , 160 F.3d 613, 623-24 (10th Cir. 1998).
-11- It held that her § 1983 claims failed because there was no state action, finding her
allegations of state action bald and conclusory, and that any § 1985(3) claim
failed because there were no allegations of race or class-based discrimination.
The court also rejected her state law claims for fraud, because she did not allege
any intent to deceive, and for intentional infliction of emotional distress, because
the acts of which she complained were not sufficiently outrageous or intolerable
to support such a claim.
On appeal, the only specific argument plaintiff presents is that the
St. Vincent defendants should be considered state actors because they cooperated
with the Sheriff’s Office and because the facility is a community mental health
facility under state law. We agree with the district court that cooperation with
state authorities and certification for involuntary commitment under state law are
insufficient to qualify defendants as state actors. See Pino , 75 F.3d at 1466-67.
We find plaintiff’s attempts to distinguish Pino , which also dealt with
certification by a private physician under New Mexico law, unpersuasive. To the
extent she challenges the district court’s rejection of her other claims against
these defendants, we see no error by the district court.
-12- Claims against Sheriff’s Office personnel
Plaintiff contends that officers violated the Fourth Amendment by seizing
her without probable cause; that they engaged in invidious discrimination against
her by treating her more harshly than similarly situated individuals; that they
denied her right to a state-appointed attorney and incarcerated her without an
extreme emergency in violation of state law; and that they were liable under
conspiracy and supervisory liability theories. The district court concluded that
plaintiff had not shown that defendants violated clearly established federal law
and granted summary judgment in their favor on qualified immunity grounds.
See id. at 1467.
On appeal, plaintiff contends that the defendant officers illegally seized her
without probable cause, because they relied on private citizens’ reports that were
unreliable, and that they cannot legally respond to reports of a violation of a civil
injunction. We agree with the district court that the officers’ actions were
reasonable in light of the circumstances and that they had probable cause for
detaining plaintiff. While they did rely on reports by the Mannicks and Coppens,
they also observed plaintiff and her property (on which the gopher traps were set),
were aware of the preliminary injunction against her, talked or tried to talk to
plaintiff, and detained and transported her in accordance with Dr. Billowitz’
directions. Plaintiff has failed to identify the individuals who were allegedly
-13- similarly situated to her, but treated less harshly than she was, to support her
discrimination or equal protection claim. We agree with the district court that
under N.M. Stat. Ann. § 43-1-4, she was entitled to an attorney during judicial
commitment proceedings, but not at all times during her detention. Cf. Project
Release v. Prevost , 722 F.2d 960, 976 (2d Cir. 1983) (reaching similar conclusion
under comparable New York law). Again, her allegations of conspiracy are
impermissibly conclusory, and she has not shown how the Sheriff’s Office could
be liable under the state mental health code for her detention.
Claims against Pablo Sedillo and Corrections Corporation of America employees
As with Upshaw, plaintiff neither explains how these defendants allegedly
violated her rights, nor presents argument explaining how the district court erred.
We therefore will not disturb the district court’s dismissal of these defendants.
Claims against Las Vegas Medical Center and the New Mexico Department of Health defendants
Plaintiff contends that these defendants are liable for violation of her Fifth
Amendment right to due process, egregiousness, detention for interrogation,
sexual harassment, lack of professional judgment, denial of her right to an
attorney, supervisory liability, and conspiracy. The district court denied
plaintiff’s claims against these defendants in their official capacities on Eleventh
Amendment grounds and concluded that she failed to state any claims against
-14- them in their individual capacities. On appeal, plaintiff argues only that immunity
is defeated by established privacy and associational rights, lack of professional
judgment and egregiousness, and that, for a variety of reasons, Pino does not
apply. Pino does not apply, and the district court did not rely on it, because it is
a qualified immunity rather than Eleventh Amendment immunity case. Her
remaining contentions do not overcome an Eleventh Amendment defense.
Claims against Matthew Sandoval
Plaintiff asserted a claim against Sandoval for legal malpractice in his
representation of her relating to her involuntary commitment. The district court
held that he was immune from this state law claim under the New Mexico
Indigent Defense Act, N.M. Stat. Ann. § 31-16-10. Plaintiff challenges the
constitutionality of the statute on equal protection grounds, arguing that it
deprives her of a remedy against Sandoval based on her indigent status, and that
strict scrutiny analysis should be applied in reviewing the constitutionality of the
statute. We agree with the district court’s rejection of this argument based on the
New Mexico Court of Appeal’s analysis of the same issue in Coyazo v. State , 897
P.2d 234, 238-41 (N.M. Ct. App. 1995) (applying heightened rational basis test on
basis that indigent status does not merit strict scrutiny and concluding statute
passes that test).
-15- Claims against John and Jane Doe defendants
Plaintiff contends that the district court should not have dismissed the
Doe defendants because they were never served and the court did not have subject
matter jurisdiction over them. We find this argument unpersuasive.
Challenge to constitutionality of statutes
Plaintiff also challenges the constitutionality of New Mexico statutes
that allowed (1) the disclosure of her medical information and (2) her involuntary
commitment for five days without a judicial hearing to determine probable cause
for her commitment. Because she seeks declaratory or injunctive relief and has
not demonstrated a likelihood of being similarly injured in the future, she lacks
standing to assert these claims. See Barney v. Pulsipher , 143 F.3d 1299, 1306 n.3
(10th Cir. 1998).
Plaintiff’s motion to supplement her opening brief is GRANTED. The
judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero Circuit Judge
-16-