F I L E D

United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS SEP 24 1998 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk JEANNIE JAMES,

Plaintiff-Appellant, v. No. 97-5157 (N.D. Okla.)

GRAND LAKE MENTAL HEALTH CENTER, (D.Ct. No. 96-CV-631-C) INC.; PAULA VELLA, individually and in her capacity as employee of Grand Lake Mental Health Center, Inc.; SIOUX GRENINGER, individually and in her official capacity as a police officer of the City of Pryor, Oklahoma; RONNIE BATT, individually and in his official capacity as a police officer of the City of Pryor, Oklahoma; TRENT HUMPHREY, individually and in his official capacity as a police officer of the City of Pryor, Oklahoma; CITY OF PRYOR; BAPTIST HEALTHCARE CORPORATION, d/b/a Mayes County Medical Center; CHRISTOPHER DELONG, Dr., sued as Dr. Christopher Delong, D.O., individually and in his capacity as employee of Mayes County Medical Center; K.W.

SOUTHERN, Dr., sued as Dr. K.W. Southern, D.O., individually and in his capacity as employee of Eastern State Hospital, Vinita, Oklahoma; JOE FERMO, Dr., sued as Dr. Joe Fermo, M.D., individually and in his capacity as employee of Eastern States Hospital, Vinita, Oklahoma,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BALDOCK, BRORBY, and LUCERO, Circuit Judges.

Jeannie James appeals the district court’s adverse rulings on her 28 U.S.C. § 1983 claims against nine defendants stemming from her involuntary committal to a state mental hospital. We exercise jurisdiction over her appeal pursuant to 28 U.S.C. § 1291 and affirm.

For background purposes, we will provide a general description of the incident underlying Ms. James’ claims. In addition to the general information discussed below, Ms. James makes many specific allegations regarding acts of maliciousness and bad faith by the defendants. Although we view the facts in the light most favorable to Ms. James, as required, see Yoder v. Honeywell Inc., 104 F.3d 1215, 1224 (10th Cir.) (construing facts in light most favorable to plaintiff when reviewing dismissal pursuant to Fed. R. Civ. P. 12(b)(6)), cert. denied, 118 S. Ct. 55 (1997); Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996) * This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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.

(examining factual record in light most favorable to nonmovant when reviewing grant of summary judgment), discussion of many of these allegations is unnecessary. To the extent any of Ms. James specific allegations are relevant to the disposition of a particular issue, they will be discussed in the section pertaining to that issue.

In 1995, Ms. James was receiving outpatient treatment for depression at Grand Lake Mental Health Center (Grand Lake) in Pryor, Oklahoma. On July 11, 1995, a therapist at Grand Lake, defendant Paula Vella, determined Ms. James needed to be detained and transported to Oklahoma Eastern State Hospital, pursuant to the Oklahoma Emergency Detention and Protective Custody Act, Okla. Stat. tit. 43A, §§ 5-206 to 5-212. That Act provides for the emergency detention of persons who appear to be mentally ill. See Okla. Stat. tit. 43A, § 5- 207. Ms. Vella called the local police department for assistance. An officer of the City of Pryor Police Department, defendant Sioux Greninger, arrived at Grand Lake, picked up Ms. James, and took her to a local hospital, Mayes County Medical Center (the Medical Center). Once at the Medical Center, Officer Greninger escorted Ms. James into the emergency room. Ms. Vella went to the hospital separately and dropped off a completed form entitled “Referral to Eastern State Hospital.” In addition, while at the hospital, Ms. Vella completed portions of a separate statement that was to be filled out by the examining doctor pursuant to the emergency detention act. See Okla. Stat. tit. 43A, § 5-208A.

The doctor on duty in the emergency room, defendant Christopher Delong, completed the remaining portions of the emergency detention act statement and signed it, under the words: “Upon person [sic] examination of Jeannie James, I am of the opinion that this person is a person requiring treatment, and should be held in emergency detention, as provided by law.” A hospital official collected the pertinent paperwork and provided copies to Officer Greninger. Officer Greninger, whose shift was ending, handed the paperwork to another officer, defendant Trent Humphrey, and told him to take Ms. James to Eastern State Hospital. Officer Humphrey took Ms. James to Eastern State in his cruiser. Upon arrival at Eastern State, Ms. James was examined by a psychiatrist, defendant Joe Fermo. Following the examination, Dr. Fermo certified that Ms. James should be admitted to the hospital pursuant to the emergency detention statute, even though the results of his examination were generally favorable. The following day, July 12, 1995, Ms. James was examined by another Eastern State doctor, defendant K.W. Southern. Dr. Southern also certified that Ms. James should be admitted pursuant to the emergency detention statute. Dr. Southern filled out a petition for an emergency detention order and had it filed in state court on July 14, 1995.

Ms. James remained at Eastern State until July 18, 1995, when she was discharged pursuant to a court order, following an examination by a court- appointed commissioner.

Ms. James filed a complaint in district court pursuant, in part, to 42 U.S.C. § 1983 (alleging underlying violations of her Fifth and Fourteenth Amendment rights). In the complaint, she stated claims against the nine defendants involved in this appeal: Ms. Vella, Grand Lake Mental Health Center, Officer Greninger, Officer Humphrey, the City of Pryor, Dr. Delong, Mayes County Medical Center, Dr. Fermo, and Dr. Southern. In six separate orders, the district court disposed of the claims against all of the defendants. Ms. James appeals those adverse dispositions.

The claims against Ms. Vella and Grand Lake

In her complaint, Ms. James alleged Ms. Vella and Grand Lake wrongfully caused her to be confined pursuant to Oklahoma’s emergency detention statute “in order to satisfy [Ms. Vella’s] own sadistic desires and to make an example to others.” 1 This, claimed Ms. James, constituted a deprivation of her right to due process as guaranteed by the Fourteenth Amendment, in violation of § 1983. 2

On July 3, 1997, the district court dismissed the claims against Ms. Vella and Grand Lake based on its finding that Ms. Vella and Grand Lake were not “state actors.” In making its decision, the district court relied on Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996), in which this court held a private therapist was not a “state actor” in circumstances similar to this case. The district court acted in response to a Motion to Dismiss for Lack of Subject Matter Jurisdiction, or in the Alternative, Motion for Summary Judgment. It is not clear from the order whether the district court based its decision on the motion to dismiss or the motion for summary judgment. Because the district court discussed facts not in the complaint, we will assume it was a grant of summary judgment.

We review the grant of summary judgment de novo, applying the same well-recognized legal standard used by the district court pursuant to Federal Rule of Civil Procedure 56(c). See Kaul, 83 F.3d at 1212. We examine the record in the light most favorable to the nonmoving party. See Thomas v. IBM, 48 F.3d 478, 484 (10th Cir. 1995).

In order to bring a § 1983 claim, a plaintiff must demonstrate that the defendant acted “under color of any statute, ordinance, regulation, custom, or usage, of any State” to deprive the plaintiff of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. As mentioned above, Ms. James’ claim against Ms. Vella was premised on a deprivation of rights guaranteed by the Fourteenth Amendment. ^[3] “Because the [Fourteenth] Amendment is directed at the States, it can be violated only by conduct that may be fairly characterized as ‘state action.’” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982).

After her release, the plaintiff filed a § 1983 claim against the therapist, among others, for violating her Fourth and Fourteenth Amendment rights. Id. at 1464- 65. Finding the therapist’s conduct did not rise to the level of state action and the therapist “did not exercise ‘some right or privilege’ or act under a ‘rule of conduct’ created by state law,” this court ruled the therapist was not liable under § 1983. Id. at 1465.

In determining whether a private individual can violate the Fourteenth Amendment, courts look at two conditions.

First, the “deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.” ... Second, the private party must have “acted together with or ... obtained significant aid from state officials” or engaged in conduct “otherwise chargeable to the State.”

Wyatt v. Cole, 504 U.S. 158, 162 (1992) (quoting Lugar, 457 U.S. at 937). Both conditions must be met for a private individual to be liable, and the general presumption is against extending liability. See Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992) (“Only in rare circumstances can a private party be viewed as a ‘state actor’ for [§] 1983 purposes.”).

only implicates the aspect of the first condition involving a rule of conduct imposed by a person for whom the State is responsible. Therefore, the question we must resolve is whether the City’s policy created a rule of conduct, distinguishing this case from our decision in Pino.

Furthermore, another section of Pino than that discussed by Ms. James dictates that we find Ms. Vella not to be a state actor. In Pino, this court found a private physician working in a private hospital, who certified an individual for involuntary commitment pursuant to a state statute, and whose actions directly lead the police to detain the individual, was not a state actor for § 1983 purposes. Pino, 75 F.3d at 1466-67. If a doctor’s certification of a patient for transport to a hospital for involuntary commitment (certainly more than mere advice) does not constitute state action, we do not see how a therapist’s request for transportation of a patient to a hospital for an examination to determine if involuntary commitment is warranted rises to that level, regardless of police policy.

The claims against Officers Greninger and Humphrey and the City of Pryor

On July 10, 1997, the district court granted a motion for summary judgment filed by Officers Greninger and Humphrey and the City of Pryor. The court determined the officers were “entitled to summary judgment on their qualified immunity defense because [Ms. James] has failed to allege facts sufficient to show that the police officers violated any of plaintiff’s constitutional rights.” The court found that while the officers’ actions may have constituted technical violations of state law, they did not deny Ms. James due process of law. In addition, the district court determined Ms. James failed to show the officers acted with the necessary reckless intent or deliberate indifference to her liberty interests.

actions.’” Id. (quoting Gehl Group v. Koby, 63 F.3d 1528, 1533 (10th Cir. 1995)). On review of grants of summary judgment, we apply the de novo standard mentioned earlier.

allegation of a Fourteenth Amendment due process violation – not a Fourth Amendment unlawful seizure violation. We will not read a Fourth Amendment claim into the complaint at this stage.

Procedural due process requires a two-step analysis. First, the court must determine if the plaintiff has been deprived of an interest in life, liberty, or property. Second, the court must determine how much process is due in light of that deprivation. We do not get beyond the first step.

Ms. James contends the officers acted with deliberate indifference to her constitutional rights by transporting her without making an independent evaluation of her condition and without the proper paperwork. We disagree. The district court was correct in finding the officers did not act with the requisite intent. “[A]n official or municipality acts with deliberate indifference if its conduct (or adopted policy) disregards a known or obvious risk that is very likely to result in the violation of [the plaintiff’s] constitutional rights.” Berry, 900 F.2d at 1496. Even assuming the actions of the officers were not in strict compliance with all the requirements of the emergency detention statute, their actions did not rise to the level of disregarding a known or obvious risk likely to result in a violation of Ms. James’ constitutional rights. Both a mental health professional and a doctor told the officers, directly or indirectly, Ms. James needed to be held and transported pursuant to the emergency detention act. We will not require officers to suspect the motives of health care professionals to challenge professional medical determinations. The officers simply were not disregarding a known or obvious risk by deferring to the judgment of the health professionals. Therefore, their actions did not constitute a deprivation of Ms. James’ Fourteenth Amendment right to due process.

rights cannot stand. Because the Supreme Court is reluctant to expand the range of substantive due process, “[w]here a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Sacramento, ___ U.S. at ___, 118 S. Ct. at 1714 (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994)) (alteration in original). Accordingly, this Circuit has ruled claims that an individual has been unreasonably detained and transported in the involuntary commitment context must be brought under the Fourth Amendment. Pino, 75 F.3d at 1469. Even if Ms. James had stated her claims properly, her allegations would not rise to the “shocks the conscience” standard articulated by the Supreme Court for substantive due process claims. See Sacramento, ___ U.S. at ___, 118

S. Ct. at 1716.

The claims against Dr. Delong and the Medical Center

On May 15, 1997, the district court granted a motion for summary judgment in favor of Dr. Delong based on its finding that the doctor was not a state actor for § 1983 and Fourteenth Amendment purposes. On review, we apply the de novo standard discussed earlier.

argues Dr. Delong is a state actor because he was acting jointly with Ms. Vella. As Ms. Vella was not a state actor, this makes no difference. Because we see no reason why our decision in Pino should not control in this case, we affirm the district court’s summary judgment in favor of Dr. Delong.

The claims against Drs. Fermo and Southern

The district court awarded summary judgment in favor of Dr. Fermo. The district court determined Dr. Fermo was entitled to qualified immunity because Ms. James’ allegations did not rise to the level of constitutional deprivation, because the doctor’s actions did not demonstrate reckless intent, and because the violation claimed by Ms. James was not contrary to “clearly established law.” In a separate order, the district court dismissed Ms. James’ claim against Dr. Southern, finding he was entitled to qualified immunity. The district court determined Dr. Southern’s actions may have been negligent, but they did not rise to the level of constitutional deprivation. In addition, the district court held Dr. Southern’s actions were not a violation of clearly established law.

which a reasonable person would have known.” Harlow, 457 U.S. at 818. These two doctors were working for the state and were acting in their official capacity during their interactions with Ms. James, so there is no dispute that they are public officials who are entitled to raise a qualified immunity defense. When reviewing a grant of summary judgment based on a defense of qualified immunity, we first look to see if the plaintiff has asserted the violation of a constitutional right, and then determine if that right was clearly established at the time of the defendant’s actions. Pino, 75 F.3d at 1467. We apply the summary judgment de novo standard mentioned earlier.

Reckless or deliberate intent on the part of the government official is required to give rise to a deprivation of a protected interest. See Webber, 43 F.3d at 1343. We agree with the district court that the actions of the doctors do not rise to this level.

for emergency detention despite the favorable results of his evaluation, filed a Petition for Protective Custody and Treatment containing false statements, and intentionally delayed before filing the Petition, he is not entitled to qualified immunity. We agree with the district court that such allegations do not rise to the level of a constitutional deprivation. The delay in filing the Petition was approved by a judicial officer. The alleged false statements stem from a form statement signed by Dr. Southern. Counsel does not identify these false statement in his brief, but a review of the complaint shows they stem from Ms. James’ contention that she did not meet the requirements for detention. Dr. Southern’s certification that Ms. James met the standard for emergency detention, even if not properly supported by documentation, does not rise to the level of reckless or outrageous conduct. A disagreement over the basis of a medical evaluation does not suffice to support an allegation of reckless or outrageous conduct.

For the reasons above, the district court’s dispositions of the claims against Dr. Fermo and Dr. Southern are affirmed.

shall not exceed ten pages and shall be filed with the Clerk of this court within fourteen days of the issuance of this order.