Ketchum v. Cruz, No. 91-1318

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore LOGAN, Circuit Judge, BARRETT, Senior Circuit Judge, and EBEL; BARRETT
Citation961 F.2d 916
PartiesRobert H. KETCHUM, Plaintiff-Appellant, v. Salvador CRUZ, M.D., Defendant-Appellee, Spanish Peaks Mental Health Center, Defendant.
Docket NumberNo. 91-1318
Decision Date13 April 1992

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.

Page 917

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.

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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

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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...

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402 practice notes
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...proceed pro se. Accord, Schramek v. Jones, 161 F.R.D. 119 (D.C. Fla. 1995); and Ketchum v. Cruz, 775 F. Supp. 1399 (D. Colo. 1991), aff'd, 961 F.2d 916 Paragraph (b) of Sec. 11.20 would provide for imposition of conditions with discipline as a condition of probation, to protect the public. ......
  • Part II
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...proceed pro se. Accord, Schramek v. Jones, 161 F.R.D. 119 (D.C. Fla. 1995); and Ketchum v. Cruz, 775 F. Supp. 1399 (D. Colo. 1991), aff'd, 961 F.2d 916 Paragraph (b) of Sec. 11.20 would provide for imposition of conditions with discipline as a condition of probation, to protect the public. ......
  • Nowell v. Medtronic Inc., No. CIV 17-1010 JB\SMV
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 29, 2019
    ...information, furnished by prison administration personnel, in pro se cases brought by prisoners against prison officials.Ketchum v. Cruz, 961 F.2d 916, 920 n.3 (10th Cir. 1992).10 Although the Honorable William J. Brennan, Jr., former Associate Justice of the Supreme Court of the United Sta......
  • Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB\SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 13, 2020
    ...information, furnished by prison administration personnel, in pro se cases brought by prisoners against prison officials.Ketchum v. Cruz, 961 F.2d 916, 920 n.3 (10th Cir. 1992).44 In taking judicial notice of the Public Health Orders which Secretary Kunkel has issued since the Complaint's f......
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400 cases
  • Nowell v. Medtronic Inc., No. CIV 17-1010 JB\SMV
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 29, 2019
    ...information, furnished by prison administration personnel, in pro se cases brought by prisoners against prison officials.Ketchum v. Cruz, 961 F.2d 916, 920 n.3 (10th Cir. 1992).10 Although the Honorable William J. Brennan, Jr., former Associate Justice of the Supreme Court of the United Sta......
  • Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB\SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 13, 2020
    ...information, furnished by prison administration personnel, in pro se cases brought by prisoners against prison officials.Ketchum v. Cruz, 961 F.2d 916, 920 n.3 (10th Cir. 1992).44 In taking judicial notice of the Public Health Orders which Secretary Kunkel has issued since the Complaint's f......
  • Navajo Nation Human Rights Comm'n v. San Juan Cnty., Case No. 2:16–cv–00154–JNP–BCW
    • United States
    • U.S. District Court — District of Utah
    • September 7, 2017
    ...to amend if the proposed amendment could not have withstood a motion to dismiss or otherwise failed to state a claim." Ketchum v. Cruz , 961 F.2d 916, 920 (10th Cir. 1992). Here, the court concludes that neither tier of Plaintiffs' new Equal Protection claim could survive a motion to dismis......
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    • United States District Courts. 10th Circuit. District of New Mexico
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    ...several cases supporting its position. See Motion at 9 (citing Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir.1989) ; Ketchum v. Cruz, 961 F.2d 916, 921 (10th Cir.1992) ; and Moore v. Jahani, No. CIV.A. 10–CV00425BNB, 2010 WL 1610130, at *2 (D.Colo. Apr. 20, 2010) (Brimmer, J.)).Finally, Fa......
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