Ketchum v. Cruz

• Decision Date: 13 April 1992
• Docket Number: No. 91-1318,91-1318
• Citation: 961 F.2d 916
• Parties: Robert H. KETCHUM, Plaintiff-Appellant, v. Salvador CRUZ, M.D., Defendant-Appellee, Spanish Peaks Mental Health Center, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 916

961 F.2d 916

Robert H. KETCHUM, Plaintiff-Appellant, v. Salvador CRUZ, M.D., Defendant-Appellee Spanish Peaks Mental Health Center, Defendant.

No. 91-1318.

United States Court of Appeals Tenth Circuit.

April 13, 1992.

Robert H. Ketchum, pro se.

Mark A. Fogg of Cooper & Kelley, P.C., Denver, Colo., for defendant-appellee.

Before LOGAN, Circuit Judge, BARRETT, Senior Circuit Judge, and EBEL, Circuit Judge.

BARRETT, Senior Circuit Judge.

The issues in this case are whether plaintiff Robert H. Ketchum's § 1983 lawsuit was properly dismissed, whether his motion to amend his complaint was properly denied, and whether he was properly restricted from filing further pro se lawsuits in the United States District Court for the District of Colorado (district court) absent permission from the district court to do so. For the reasons set forth below, we affirm. ¹

In early 1990 plaintiff was a resident and patient at Grand House, part of Spanish Peaks Mental Health Center (Spanish Peaks) in Pueblo, Colorado, a halfway house he entered after his release from the Colorado State Hospital (state hospital) in Pueblo. On February 22, 1990, he was admitted to the state hospital under the provisions of Colorado's statutory emergency treatment procedure for individuals experiencing acute mental or emotional problems. See Colo.Rev.Stat. § 27-10-105. His behavior at Spanish Peaks at that time was described as "delusional, angry, agitated, disruptive and ... unmanageable." R.Vol. I tab 7 at 3. The referring physician for this emergency commitment was also his treating psychiatrist at Spanish Peaks, Dr. Salvadore Cruz. After one day of the seventy-two hour emergency treatment period, plaintiff voluntarily committed himself to residence and treatment at the state hospital, where he stayed for six months.

In his pro se complaint, R.Vol. I tab 2, plaintiff alleges that he was improperly committed without twenty-four-hour written notice or court order, that his emergency commitment was the result of a conspiracy to punish him for writing letters of complaint to the director of Spanish Peaks, that he was confined to the state hospital in order that defendants could control his social security benefits, that he was denied postage stamps that he needed for court access, that he did not receive proper treatment for a broken leg suffered during his residence at Spanish Peaks, and that he should have been placed in the least-restrictive treatment setting in Pueblo rather than being returned to the state hospital. Plaintiff named Dr. Cruz and Spanish Peaks as defendants to the complaint and asserted that 42 U.S.C. §§ 1983, 1985(3) were the bases for the action.

In response to plaintiff's complaint, the district court granted plaintiff's motion to proceed without prepayment of fees and costs, R.Vol. I tab 3 at 1-2, and dismissed Spanish Peaks under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. Id. at 2-3. The court dismissed plaintiff's claims under § 1985(3) as vague and conclusory, without any allegations of a conspiracy motivated by racial or other class-based, invidiously discriminatory animus. Id. at 4. The court ordered Dr. Cruz to submit a Martinez report ² to "detail the commitment procedure or procedures utilized to hold Mr. Ketchum in Colorado State Hospital for seventy-two hours, and the reasons for such commitment." Id. at 3. The district court ordered that plaintiff had a week after the Martinez report was filed "to supplement or object to any facts or documents set forth in the Martinez report." Id. In addition, the district court noted that plaintiff had filed seven lawsuits in the district court in a three-week period and eight other actions since October 12, 1989. The court warned plaintiff that the court "may" place reasonable restrictions on plaintiff's access to the court in response to vexatious, groundless litigation. Id. at 5.

Defendant submitted a Martinez report, R.Vol. I tab 7, summarizing the Colorado statute under which plaintiff was committed and the reasons and procedures utilized for plaintiff's emergency commitment under that statute. The Martinez report included five exhibits: (1) copies of plaintiff's weekly reviews by the staff at Spanish Peaks for the four weeks in February 1990; (2) the emergency mental health report and application; (3) the psychiatric assessment by the staff psychiatrist at the state hospital, written the day after plaintiff's emergency commitment; (4) the state hospital's mental and physical diagnosis summary drafted the day after plaintiff's emergency commitment; and (5) portions of the deposition of plaintiff's treating psychiatrist at the state hospital.

In response to the Martinez report, plaintiff submitted two filings, R.Vol. I tabs 6 and 8, each merely repeating the allegations of plaintiff's original complaint. Plaintiff submitted no factual support for his allegations. He also, inter alia, requested permission to amend his complaint by adding as defendants his treating psychiatrist at the state hospital and the physician who approved Spanish Peaks' application for emergency commitment.

Defendant moved to dismiss the action under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. In response, over plaintiff's unsupported objection to dismissal for failure to state a claim, R.Vol. I tab 10, the district court dismissed the action by summary judgment. Ketchum v. Cruz, 775 F.Supp. 1399 (D.Colo.1991) (district court order). The district court found that defendant complied with all the requirements of Colo.Rev.Stat. § 27-10-105 and that plaintiff's various claims were either without factual support or did not rise to the level of constitutional deprivation. The district court denied plaintiff's motion to amend the complaint to add the two defendants.

In addition, the district court enjoined plaintiff from filing any further pro se claims in the United States District Court for the District of Colorado. The court required plaintiff to be represented by an attorney licensed to practice in Colorado and before the district court unless plaintiff first obtains permission to proceed pro se from the district court. District court order at 1403-04. The district court order established procedures for the court clerk to enforce this prohibition and for plaintiff to follow should he desire to request pro se status in a future action. Id. & App.B.

We interpret plaintiff's pro se appeal to raise three issues: whether his lawsuit was properly dismissed, whether his motion to amend his complaint was properly denied, and whether he was properly enjoined from filing further pro se lawsuits in the district court absent permission from the district court to do so. We will treat each issue in turn.

I.

Fed.R.Civ.P. 12(c) provides that:

If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Thus, because the district court considered the Martinez report, a document outside the pleadings, defendant's motion to dismiss was properly converted by the district court to a motion for summary judgment. We review grant of summary judgment de novo, considering all facts in the light most favorable to the non-moving party. Culver v. Town of Torrington, 930 F.2d 1456, 1458 (10th Cir.1991).

After review of the record and the briefs of the parties under this standard, we agree with the district court that there was no rational basis for plaintiff's complaint in law or fact. However, the district court committed plain procedural error because it did not give plaintiff notice that it was converting defendant's motion to dismiss on the pleadings into a summary judgment consideration.

The district court is required by Rule 12(c) ("all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56") and by Tenth Circuit precedent to instruct plaintiff that he had the opportunity to respond to defendant's motion as a motion for summary judgment.

[B]efore a court may grant summary judgment, it must give the opposing party the opportunity to submit any material pertinent to the motion as construed. The court cannot convert a motion to dismiss to a motion for summary judgment without notice, unless the opposing party has responded to the movant's attempt to convert the motion by filing his own affidavits.

United States v. Gutierrez, 839 F.2d 648, 651 (10th Cir.1988) (citing Ohio v. Peterson, Lowry, Rall, Barber & Ross, 585 F.2d 454 (10th Cir.1978), and Nichols v. United States, 796 F.2d 361, 364 (10th Cir.1986)); cf., Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991) (magistrates must "inform a pro se litigant not only of the time period for filing objections [to magistrate's findings and recommendations], but also of the consequences of a failure to object").

However, even in light of this error, we hold that dismissal was the proper disposition for this case. The only allegations from plaintiff's complaint which could be viewed as colorable bases for a cause of action under § 1983 were those describing claimed improper commitment to the state hospital under Colo.Rev.Stat. § 27-10-105. Defendant showed, through the Martinez report and its attachments, that he complied with all the requirements of section 27-10-105. Under these circumstances, the district court was correct to dismiss the complaint.

Rather than dismissing the case under summary judgment analysis, however, the court should have dismissed the complaint under 28 U.S.C. § 1915(d) ("The court may ... dismiss [an in forma pauperis case] ... if satisfied that the action is frivolous or malicious."). "[A]n in forma pauperis complaint is frivolous if the...