75 F.3d 1461 (10th Cir. 1996), 94-2079, Pino v. Higgs

Docket Nº:94-2079.
Citation:75 F.3d 1461
Party Name:Pam PINO, Plaintiff-Appellant, v. E.P. HIGGS, Curt Faust, Marcella Wolf, Jim Naranjo, Harlan Weiss, Pablo Hernandez, Defendants-Appellees.
Case Date:February 05, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1461

75 F.3d 1461 (10th Cir. 1996)

Pam PINO, Plaintiff-Appellant,

v.

E.P. HIGGS, Curt Faust, Marcella Wolf, Jim Naranjo, Harlan

Weiss, Pablo Hernandez, Defendants-Appellees.

No. 94-2079.

United States Court of Appeals, Tenth Circuit

February 5, 1996

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[Copyrighted Material Omitted]

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On Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-92-987 M).

Frank A. Baca, Jr. and Lorenzo A. Chavez, Albuquerque, New Mexico, for Plaintiff-Appellant.

Ronald J. Childress and Elaine R. Dailey, of Klecan, Childress & Huling, Albuquerque, New Mexico, for Defendants-Appellees Higgs and Faust.

Charles W. Weese, of Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, New Mexico, for Defendant-Appellee Wolf.

Ronald W. Henkel, of Henkel, Sloan & Gay, Albuquerque, New Mexico, for Defendant-Appellee Weiss.

Walter G. Lombardi and Maha Khoury, of RMD Legal Bureau, State of New Mexico, Santa Fe, New Mexico, for Defendants-Appellees Naranjo and Hernandez.

Before KELLY and SETH, Circuit Judges, and BROWN, District Judge [*].

SETH, Circuit Judge.

Appellant Pam Pino filed this civil rights action under 42 U.S.C. § 1983 against the six Appellees in their individual capacities. Appellant claimed that Appellees violated her constitutional rights by taking her from her home and transporting and detaining her for emergency mental health evaluations at Socorro General Hospital and Las Vegas Medical Center (LVMC), both in New Mexico.

The district court granted summary judgment motions in favor of Appellees Marcella Wolf and Harlan Weiss, M.D., because they were not state actors, and in favor of Appellees E.P. Higgs and Curt Faust, City of Socorro police officers, and Appellee Jim Naranjo, a Socorro County Deputy Sheriff, on the basis of qualified immunity. Appellant contends that the district court erred in granting these motions. We review grants of summary judgment de novo, applying the same legal standards used by the district court under Fed.R.Civ.P. 56(c). Uhlrig v. Harder, 64 F.3d 567, 571 (10th Cir.).

In her docketing statement, Appellant also challenged the district court's order dismissing her claims against Appellee Pablo Hernandez, M.D., who was the hospital administrator at LVMC. However, because Appellant has failed to argue this issue in her brief, she is deemed to have waived the challenge on appeal. See Bledsoe v. Garcia, 742 F.2d 1237, 1244 (10th Cir.). We therefore affirm the dismissal of Appellant's claims against Dr. Hernandez.

The undisputed facts in this case include the following. Members of Appellant's family, concerned because Appellant had not eaten in several days and appeared despondent, called Marcella Wolf, a social therapist with Valencia Counseling Services, Inc., where Appellant had gone for counseling some time before. Wolf notified the Socorro Police Department, which dispatched Officers Faust and Higgs to Appellant's residence to investigate the situation.

Once there, Officers Faust and Higgs found Appellant locked in her bedroom refusing to come out. Officer Faust called Wolf to verify the information she had received from the family. Wolf recommended to the officer that Appellant be taken to the hospital for psychiatric evaluation. After some time, the officers convinced Appellant to open the bedroom door. Despite her admonitions that

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she was fine, the officers insisted that Appellant go to the hospital, in restraints if necessary. Appellant eventually agreed and rode unrestrained in the back of Officer Faust's patrol car to Socorro General Hospital. Officer Higgs did not accompany them.

At the hospital, Dr. Weiss, the emergency room physician on call that evening, interviewed Officer Faust and examined Appellant. Dr. Weiss learned that Appellant's husband had committed suicide about a year and a half earlier; that she had seen a counselor at Valencia Counseling Services; and that she had taken medication for depression. He also learned that she had not eaten for eight days; that she had not come out of her room in the last day or two; and that her family was concerned about her. Appellant admitted to having had suicidal thoughts some six years previously but denied any suicide attempts.

Dr. Weiss determined that Appellant was severely depressed and likely to harm herself. Marcella Wolf also questioned Appellant at the hospital and agreed with Dr. Weiss that Appellant needed further evaluation. Dr. Weiss filled out a form indicating that Appellant appeared to be mentally ill; that she presented a likelihood of danger to herself or to others; and that immediate detention was necessary to prevent such harm. The form included Dr. Weiss' grounds for his opinion.

There was no space available at Socorro General and it was decided that since Appellant needed further evaluation she should be taken to LVMC. Deputy Naranjo was called to take Appellant to LVMC. Appellant again insisted that she was not mentally ill and at first refused to go with him. Having Dr. Weiss' certification that Appellant was mentally ill and represented a likelihood of harm to herself, Deputy Naranjo told Appellant that he would put her in restraints if necessary, but Appellant yielded. Accompanied by a female transport officer and a member of Appellant's family, Deputy Naranjo took Appellant to LVMC, where he released her to the custody of the Center staff. After an evaluation, Appellant was admitted into the facility and Deputy Naranjo returned to Socorro. Appellant remained at LVMC for two days, after which the staff there concluded that she was not mentally ill and released her.

State Action/Under Color of State Law

To bring a claim under § 1983, a plaintiff must initially establish that a 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. Appellant's constitutional claims are that Appellees deprived her of her liberty without due process as guaranteed by the Fourteenth Amendment and unreasonably seized her in violation of the Fourth Amendment, as applied to the states by the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Both of these claims must be grounded in state action. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85; Lugar v. Edmondson Oil Co., 457 U.S. 922, 924, 102 S.Ct. 2744, 2746, 73 L.Ed.2d 482. As the Supreme Court noted in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S.Ct. 1729, 1732-33, 56 L.Ed.2d 185, the "under color of state law" and "state action" elements of a § 1983 claim, although similar and overlapping, "denote two separate areas of inquiry." Although state action necessarily constitutes action under color of state law, the converse is not always true. Lugar, 457 U.S. at 935 & n. 18, 102 S.Ct. at 2752 & n. 18.

There is no dispute that the actions of Officers Higgs and Faust and Deputy Naranjo were state actions taken under the color of state law. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142; Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495. The district court granted summary judgment in favor of Marcella Wolf and Dr. Weiss because neither met the definition of "state actor" and thus could not be subject to liability under § 1983. Since Wolf's involvement in this case differs from Dr. Weiss' involvement in important respects, we review Appellant's claims against each individual separately.

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Basis For The Claim Against Marcella Wolf

The actions on which Appellant bases her claims against the therapist, Marcella Wolf, are (1) that Wolf initiated the police action by calling the dispatcher; (2) that she instructed Officer Faust over the phone to detain and transport Appellant to the hospital for psychiatric evaluation; and (3) that she participated in Dr. Weiss' decision to transport Appellant to Las Vegas. Even assuming that facts in the record support these interpretations of Wolf's conduct, none of her actions amount to state action or action under the color of state law for purposes of a § 1983 claim.

Nothing in the record suggests that Wolf is a state officer or state employee, and thus the district court properly considered her a private individual. Wolf was a therapist with Valencia Counseling Services, Inc., a private corporation in Socorro. In order to hold a private individual liable under § 1983 for a constitutional violation requiring state action, a plaintiff must show under Lugar, 457 U.S. at 937, 102 S.Ct. at 2753, that the individual's conduct is "fairly attributable to the State." As stated in Wyatt v. Cole, 504 U.S. 158, 162, 112 S.Ct. 1827, 1830, 118 L.Ed.2d 504 (quoting Lugar, 457 U.S. at 937, 102 S.Ct. at 2753):

"This requirement is satisfied ... if two conditions are met. 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.' "

In Lee v. Town of Estes Park, 820 F.2d 1112, 1114 (10th Cir.), we stated:

"[I]n order to hold a private individual liable under § 1983, it must be shown that the private person was jointly engaged with state officials in the challenged action, or has obtained significant aid from state officials, or that the private individual's conduct is in some other way chargeable to the State."

Relying on the "close nexus" test developed in Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534, Appellant argues that Wolf acted in such close...

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