Ketchum v. Cruz, Civ. A. No. 91-F-865.

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtMark A. Fogg, Larry S. McClung, Cooper & Kelley, P.C., Denver, Colo., for defendant
Citation775 F. Supp. 1399
Docket NumberCiv. A. No. 91-F-865.
Decision Date30 August 1991
PartiesRobert H. KETCHUM, Plaintiff, v. Dr. Salvador CRUZ, M.D., Defendant.

775 F. Supp. 1399

Robert H. KETCHUM, Plaintiff,
v.
Dr. Salvador CRUZ, M.D., Defendant.

Civ. A. No. 91-F-865.

United States District Court, D. Colorado.

August 30, 1991.


775 F. Supp. 1400

Robert H. Ketchum, pro se.

Mark A. Fogg, Larry S. McClung, Cooper & Kelley, P.C., Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

SHERMAN G. FINESILVER, Chief Judge.

Plaintiff Robert H. Ketchum is a former mental patient at Spanish Peaks Mental Health Center (the "center"), a private nonprofit corporation in Pueblo, Colorado, and at Colorado Mental Health Institute (the "hospital") in Pueblo, formerly Colorado State Hospital. He initiated this action by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that his due process and equal protection rights under the United States Constitution were violated. He seeks money damages, unspecified declaratory and injunctive relief, and a court order prohibiting Salvador Cruz, M.D., a Pueblo physician affiliated with the center, and the center itself from harassing him or sending him to the hospital "for any reasons." Jurisdiction is founded upon 28 U.S.C. §§ 1331, 1343. We have examined and considered the record in this case. Oral argument would not materially assist our decision.

I. BACKGROUND

In the complaint filed May 22, 1991, Mr. Ketchum is suing Dr. Cruz and the center. The center was dismissed as a party to the action in this court's May 22, 1991, order, and Mr. Ketchum's 42 U.S.C. § 1985(3) claim also was dismissed. At that time,

775 F. Supp. 1401
Dr. Cruz was ordered to file a special report, commonly referred to as a Martinez report, pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978) and El'Amin v. Pearce, 750 F.2d 829 (10th Cir.1984), and to send a copy of the report to Mr. Ketchum. On June 17 and 25, 1991, Mr. Ketchum filed responses to the May 22, 1991, order and to the Martinez report. In the June 17, 1991, response, he seeks to amend the complaint by naming as co-defendants Robert W. Marshall, M.D., and Martin Schaefer, M.D., both affiliated with the hospital. In the spirit of Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972), the June 17, 1991, response will be liberally construed, in part, as a motion to amend the complaint pursuant to Fed.R.Civ.P. 15(a). Even reading the motion liberally, however, Mr. Ketchum makes no factual allegations to support a claim against Drs. Marshall and Schaefer, and apparently seeks to add them as defendants merely because they are mentioned in, and provided information for, the Martinez report. The motion is denied. On August 8, 1991, Dr. Cruz filed a motion to dismiss. On August 12 and 14, 1991, Mr. Ketchum filed responses opposing the motion to dismiss

Mr. Ketchum's responses to the Martinez report and motion to dismiss follow the standard of incoherence contained in the complaint. They are convoluted, rambling and conclusory. At the heart of the complaint, however, is Mr. Ketchum's contention that, while he was residing at the center's Grand House, a residential treatment facility, Dr. Cruz and the center committed him to the hospital for seventy-two hours for "improper reasons," i.e., as retaliation against him for complaining about his medical treatment, in violation of his federal constitutional rights. He further contends that they wrongfully conspired to commit him without a court hearing or without twenty-four hours' advance written notice. He disagrees with the decision to refer him to the hospital instead of to other "local facilities." He complains that, while at the hospital, the condition of his broken leg worsened, and he failed to receive Supplemental Security Income ("SSI") benefits through the Social Security Administration. Lastly, he complains that, when he was confined at the hospital, he was not provided with enough stamps for meaningful access to the courts.

II. LEGAL DISCUSSION AND CONCLUSION

The complaint must stand unless it appears beyond a doubt that the plaintiff can prove no set of facts that would entitle him to relief. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988). This is especially true when the complaint is pro se. However inartfully drafted, a pro se complaint is held to a less stringent standard than a formal pleading drafted by a lawyer. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. at 520-21, 92 S.Ct. at 595-96. As we have considered matters that are outside the pleading, the motion to dismiss shall be treated as one for summary judgment pursuant to Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(b).

The emergency civil commitment procedure required by Colo.Rev.Stat. § 27-10-105 (1989) provides, in pertinent part, as follows:

(1)(a) When any person appears to be mentally ill and, as a result of such mental illness, appears to be an imminent danger to others or to himself or appears to be gravely disabled, ... a professional person, ... upon probable cause and with such assistance as may be required, may take the person into custody, or cause him to be taken into custody, and place him in a facility designated or approved by the executive director of the department of institutions for a seventy-two-hour treatment and evaluation.
(2) Such mental health treatment facility shall require an application in writing, stating the circumstances under which the person's condition was called to the attention of the ... professional person ... and further stating sufficient
775 F. Supp. 1402
facts, obtained from his personal observations or obtained from others which he reasonably believes to be reliable, to establish that the person is mentally ill and, as a result of mental illness, an imminent danger to others or to himself or gravely disabled. The application shall indicate when the person was taken into custody and who brought the person's condition to the attention of the ... professional person.... The application shall be kept on file by the seventy-two-hour treatment and evaluation facility for at least five years, and a copy shall be furnished to the person being evaluated.
(3) If the seventy-two-hour treatment and evaluation facility admits the person, it may detain him for evaluation and treatment for a period not to exceed seventy-two hours, excluding Saturdays, Sundays, and holidays if evaluation and treatment services are not available on those days. For the purposes of this subsection (3), evaluation and treatment services are not deemed to be available merely because a professional person is on call during weekends or holidays.
(4) Each person admitted to a seventy-two-hour treatment and evaluation facility under the provisions of this article shall receive an evaluation as soon after he is admitted as possible and shall receive such treatment and care as his condition requires for the full period that he is held. Such person shall be released before seventy-two hours have elapsed if, in the opinion of the professional person in charge of the evaluation, the person no longer requires evaluation or treatment. Persons who have been detained for seventy-two-hour evaluation and treatment shall be released, referred for further care and treatment on a voluntary basis, or certified for treatment pursuant to section 27-10-107.

Mr. Ketchum's claim that the temporary commitment to the hospital violated his due process and equal protection rights must fail. The Martinez report clearly documents that Dr. Cruz complied with the emergency procedures required by Colo. Rev.Stat. § 27-10-105. The report indicates (1) that Dr. Cruz had probable cause to commit Mr. Ketchum; (2) that prior to the commitment Dr. Cruz submitted an emergency mental illness report and application to the hospital; (3) that Mr. Ketchum was detained for evaluation for one day under the seventy-two hour commitment, diagnosed as suffering from "schizophrenic disorder, chronic paranoid type" by Dr. Marshall, a hospital staff psychiatrist, and recommended for in-patient hospital care; and (4) that Dr. Marshall admitted Mr. Ketchum to the hospital, where he remained on a voluntary basis for approximately six months after the initial involuntary commitment of which he complains.

Despite Mr. Ketchum's assertion to the contrary, no court hearing or twenty-four hours' advance written notice is required by Colo.Rev.Stat. § 27-10-105. Although Mr. Ketchum alleges he would have preferred emergency commitment to a facility other than the hospital, the statute does not specify that the treatment facility to which the mentally ill person is committed must be designated or approved by that person. Mr. Ketchum's disagreement with Dr. Cruz' decision to commit him to the hospital does not rise to the level of a constitutional claim. Mr. Ketchum does not question the constitutionality of the state statute itself.

Mr. Ketchum generally complains about "side effects" of the hospital commitment. He contends that the condition of his broken leg worsened during the commitment. The worsening of the injured leg, however, apparently occurred because he failed to comply with the recommended orthopedic treatment by bearing weight on a non-weight-bearing cast. See Martinez report, Exhibit 3, "Chief Complaint and Present Illness," ¶ 6. He complains that, while at the hospital, he failed to receive SSI benefits. The failure to receive benefits apparently occurred because his application was turned down. See Martinez report, Exhibit 3, "Chief Complaint and Present Illness," ¶ 1. Lastly, Mr. Ketchum complains the hospital failed to provide him with enough stamps for access to the

775 F. Supp. 1403
courts. The restriction of his stamp allotment apparently occurred because of his past tendency during hospital commitment to demonstrate "marked...

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