F I L E D

United States Court of Appeals

Tenth Circuit

SEP 24 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

JEANNIE JAMES,

Plaintiff-Appellant,

v.

GRAND LAKE MENTAL HEALTH CENTER,

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.

No. 97-5157

(N.D. Okla.)

(D.Ct. No. 96-CV-631-C)
*

 This order and judgment is not binding precedent except under the doctrines of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.

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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)
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(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
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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
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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 courtappointed 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.
1

 Ms. James says Ms. Vella’s decision to commit her was intended as punishment. 

Ms. Vella claims she was concerned because Ms. James appeared to be unable to take

precautions to protect herself from her abusive husband. Resolution of this question is

immaterial to our decision in this case because the motives underlying Ms. Vella’s actions

are irrelevant to whether she was a state actor.

2

 In addition, Ms. James inexplicably alleged a Fifth Amendment violation. The

restrictions found in the Fifth Amendment do not apply to the defendants in this case (i.e.,

they are not federal actors).

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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
3

 The Fourteenth Amendment of the Constitution states, in part:

No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV, § 1. This Amendment embodies three protections:

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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
(1) a procedural due process protection requiring the state to provide

individuals with some type of process before depriving them of their life,

liberty, or property; (2) a substantive due process protection, which protects

individuals from arbitrary acts that deprive them of life, liberty, or property;

and (3) an incorporation of specific protections afforded by the Bill of

Rights against the states.

Miller v. Campbell County, 945 F.2d 348, 352 (10th Cir. 1991), cert. denied, 502 U.S.

1096 (1992). Ms. James’ claims only implicate the first and second protections.

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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).

At the time of the incident in question, Ms. Vella was a private therapist

working for a private mental health facility; in other words, she was a private

individual. “In order to hold a private individual liable under § 1983 for a

constitutional violation requiring state action, a plaintiff must show ... that the

individual’s conduct is ‘fairly attributable to the State.’” Pino 75 F.3d at 1465

(quoting Lugar, 457 U.S. at 937).

In Pino, a private therapist notified the police that the plaintiff in that case

was acting irrationally and might need to be held for an emergency mental health

evaluation. Pino, 75 F.3d at 1463-64. The plaintiff in that case was taken by the

police to a hospital for evaluation and ultimately admitted against her will. Id.
4

 Ms. James also appears to argue this case is distinguishable from Pino because

of the reprehensibility of Ms. Vella’s actions. Specifically, Ms. James alleges Ms. Vella

regularly threatened patients and lied in order to get Ms. James committed. These

allegations have nothing to do with deciding whether Ms. Vella’s behavior constitutes

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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.

On appeal, Ms. James argues Pino is distinguishable. She contends Ms.

Vella did more than simply advise the police officers of the situation. The City of

Pryor Police Department had a policy of transporting patients for emergency

detention without question whenever someone from Grand Lake requested

assistance. As this was the case, Ms. James argues, Ms. Vella essentially directed

the officers to take her to the hospital for evaluation, in contrast to the Pino case,

where the court found the therapist merely assisted the police officers in making

an independent judgment as to whether the plaintiff in that case needed to be

detained for evaluation. Pino, 75 F.3d at 1466. Ms. James contends this decision

by the City to abdicate its independent judgment to Grand Lake elevates Ms.

Vella to the level of a state actor.4

 We disagree.
state action for Fourteenth Amendment and § 1983 purposes.

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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.”).

We do not believe Ms. James can get past the first condition. As noted

above, this Circuit has found that a private therapist in a similar case “did not

exercise ‘some right or privilege’ or act under a ‘rule of conduct’ created by state

law” by calling the police and advising them to detain a woman for an emergency

detention evaluation. Pino, 75 F.3d at 1465. Although the police policy of

declining to exercise independent judgment adds a new element, it does not

change the result. Because the policy was created by the City, not the State, it
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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.

The Supreme Court has made it clear that the rule of conduct must dictate

the result of the private individual’s decision to elevate the individual to a state

actor. See Blum v. Yaretsky, 457 U.S. 991, 1009 (1982) (“The decisions made by

the [defendant] ... were framed in accordance with professional canons of ethics,

rather than dictated by any rule of conduct imposed by the State.”); Rendell-Baker

v. Kohn, 457 U.S. 830, 844 (1982) (White, J., concurring) (“For me, the critical

factor is the absence of any allegation that the employment decision was itself

based upon some rule of conduct or policy put forth by the State.”). There is no

suggestion here that Ms. Vella’s decision to send Ms. James for an emergency

detention evaluation was dictated by or based on the City’s policy of not

questioning emergency detention requests by Grand Lake authorities. In fact, the

allegation is that the decision was based on a personal vindictiveness. The City’s

policy may have made it easier for Ms. Vella to subject Ms. James to detention,

but it certainly did not direct her decision in any way.
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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.

Our decision in Pino controls this claim. Ms. Vella “did not exercise ‘some

right or privilege’ or act under a ‘rule of conduct’ created by state law.” Pino, 75

F.3d at 1465. We affirm the district court’s dismissal of the claim against Ms.

Vella.

For the same reasons, Grand Lake is not a state actor for § 1983 purposes. 

We affirm the district court’s dismissal of the claim against Grand Lake.
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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.

Public officials are entitled to qualified immunity from § 1983 claims if

their actions did not “violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). We apply special rules in reviewing a grant or denial of

summary judgment when a defense of qualified immunity has been raised. See

Pino, 75 F.3d at 1467. “‘In analyzing qualified immunity claims, we first ask if a

plaintiff has asserted the violation of a constitutional right at all, and then assess

whether that right was clearly established at the time of [the] defendant’s
5

 First, Ms. James argues the Fourth Amendment claim was included in a Pretrial

Order. As this case never went to trial and no pretrial conference was held, the Pretrial

Order was never entered by the district court. See Fed. R. Civ. P. 16(e). Therefore, it

does not control. Second, Ms. James contends the allegations in her Complaint are

sufficient to support a Fourth Amendment violation. This is irrelevant; just because the

facts alleged in a complaint would support a claim does not mean the claim has been

made. Third, Ms. James argues she used the Pino case in her brief to the district court on

this issue. The case did not apply to her due process arguments then and does not apply

now. Fourth, Ms. James contends the defendants “argue[d] the Fourth Amendment in

their Brief to the Trial Court.” This is not true. In their brief, the defendants stated: 

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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.

Citing Pino, Ms. James argues the appropriate standard for determining

whether the officers have qualified immunity in this case is whether they had

probable cause to believe an emergency detention was necessary. Because

Officers Greninger and Humphrey did not have probable cause to detain her, Ms.

James’ argument goes, their conduct constituted “deliberate indifference,”

vitiating their qualified immunity protections. There is a problem with the

probable cause standard advanced by Ms. James: it applies to allegations of

Fourth Amendment violations, see Pino, 75 F.3d at 1467-68, whereas Ms. James

alleged Fourteenth Amendment violations. In her Reply Brief, Ms. James

provides five reason why this court should consider her Fourth Amendment claim. 

All lack merit.5

 The district court made its decision based on Ms. James’
“Unlike the plaintiff in Pino, James has not asserted a Fourth Amendment claim.... Thus,

the ‘probable cause’ analysis from Pino is not applicable to this case.” Despite their

inclusion of an alternative argument, the defendants made it perfectly clear they did not

believe Fourth Amendment analysis applied to this case. And fifth, Ms. James argues this

court should consider her Fourth Amendment claim because it remains city policy to rely

on Grand Lake for a determination of whether an emergency detention is appropriate. 

The court can discern no cogent point in this last argument.

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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.

The Fourteenth Amendment provides both procedural due process and

substantive due process protections. See County of Sacramento v. Lewis, ___

U.S. ___, 118 S. Ct. 1708, 1713 (1998). The procedural due process protection

requires “the state to provide individuals with some type of process before

depriving them of their life, liberty, or property.” Miller v. Campbell County, 945

F.2d 348, 352 (10th Cir. 1991), cert. denied, 502 U.S. 1096 (1992). The

substantive due process protection prohibits arbitrary acts by the state that deprive

individuals of their life, liberty, or property. Id. The liberty interest is clearly the

one implicated by this case. It is unclear, however, whether Ms. James intended

her claims to be based on the procedural or substantive protection, so we will

address each in turn.
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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.

The Supreme Court has ruled that “mere lack of due care by a state official

may [not] ‘deprive’ an individual of life, liberty, or property under the Fourteenth

Amendment.” Daniels v. Williams, 474 U.S. 327, 330-31 (1986). Section 1983

was not intended to replace state tort law actions. See Webber v. Mefford, 43

F.3d 1340, 1343 (10th Cir. 1994). For this reason, more than mere negligence is

required for liability. Reckless or deliberate intent on the part of the government

official is required to give rise to a Fourteenth Amendment violation actionable

under § 1983. Id. “[R]eckless intent is established if the actor was aware of a

known or obvious risk that was so great that it was highly probable that serious

harm would follow and he or she proceeded in conscious and unreasonable

disregard of the consequences.” Medina v. City & County of Denver, 960 F.2d

1493, 1496 (10th Cir. 1992). “Deliberate indifference requires ‘a higher degree

of fault than negligence, or even gross negligence.’” Hovater v. Robinson, 1 F.3d

1063, 1066 (10th Cir. 1993) (quoting Berry v. City of Muskogee, 900 F.2d 1489,

1495 (10th Cir. 1990)).
-17-

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.

Ms. James’ claim that the officers violated her substantive due process
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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.

For these reasons, we affirm the district court’s resolution of the claims

against Officers Greninger and Humphrey.

For the reasons above, the district court also correctly granted summary

judgment in favor of the City of Pryor.
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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.

Dr. Delong is a private physician working at a private hospital. As we

mentioned above, a plaintiff must demonstrate the defendant’s conduct is fairly

attributable to the State to establish liability under § 1983 for a constitutional

violation requiring state action. Pino 75 F.3d at 1465. The district court’s

conclusion was premised on this court’s decision in Pino. In Pino, we held: “A

private physician who certifies a person for purposes of [the state involuntary

commitment statute] is not subject to § 1983 liability simply because a state

police officer responds by transporting or detaining that person.” Id. at 1466.

Ms. James argues the Pino rule does not protect Dr. Delong from liability

because of his particularly “egregious” actions (e.g., never examining Ms. James

and signing a document partially filled out by another person). Counsel for Ms.

James does not make it clear why the egregiousness of his actions should have

any effect on Dr. Delong’s status or non-status as a state actor. Ms. James also
6

 In this section, counsel for Ms. James argues the Medical Center had a duty to

train Dr. Delong and that it was obligated to comply with the provisions of the emergency

detention statute because Dr. Delong and the hospital regularly conducted emergency

detention evaluations. Counsel supports this position with a claim that Dr. Delong had

performed 50-100 of these evaluations. Reference to the portion of Dr. Delong’s

deposition, to which counsel cites in support of this statement, demonstrates this to be a

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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.

On February 27, 1997, the district court granted a motion to dismiss filed

by the Medical Center based on its finding that the facts, as stated in the

complaint, failed to establish a basis for relief. We review de novo a dismissal

for failure to state a claim upon which relief can be granted. See Chemical

Weapons Working Group, Inc. v. United States Dep’t of the Army, 111 F.3d 1485,

1490 (10th Cir. 1997).

Ms. James argues that the Medical Center can be held liable for the acts of

Dr. Delong based on its failure to supervise or train him. The Medical Center is a

private entity. For the reasons we gave in upholding the dismissal of the claim

against Dr. Delong, we affirm the district court’s disposition of the claim against

the Medical Center.6
gross misstatement:

Q. Since 1987, give me a ballpark idea of the number of emergency

detention orders that you’ve had dealings with.

A. I couldn’t – I couldn’t put a number on it.

Q. 50, 100?

A. I couldn’t say.

In other words, counsel is supporting his argument with reference to a number he made

up.

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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.

As discussed above, a public official is entitled to qualified immunity if his

actions did not “violate clearly established statutory or constitutional rights of
-22-

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.

It is unclear whether Ms. James intended her claims against the doctors to

be based on the procedural or substantive guarantees of the Fourteenth

Amendment, so we will look at each in turn.

As mentioned in the section dealing with the claims against the officers,

when considering whether a violation of an individual’s procedural due process

rights occurred, the court must first determine if the plaintiff has been deprived of

an interest in life, liberty, or property, and then determine how much process is

due in light of that deprivation. As with our analysis concerning the officers, we

need not get beyond the first step.
-23-

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.

Ms. James argues there was nothing in Dr. Fermo’s evaluation notes to

justify his certification to a reasonable certainty that without treatment she would

be unable to protect herself from injury. The evaluation notes reveal Dr. Fermo

knew Ms. James had a lengthy history of depression, she was abused by her

husband (by putting a knife to her neck, putting a gun to her head, and kicking

her) and was fearful of further abuse, and she got panicky to the point where she

was unable to cope with being alone. In addition, Dr. Fermo had the Licensed

Mental Health Professional’s Statement signed by Dr. Delong and the Grand Lake

Referral to Eastern State Hospital filled out by Ms. Vella. We are not qualified to

determine whether Dr. Fermo’s certification was supportable professionally given

the results of his evaluation, but in light of the items mentioned above, we are

confident his actions did not rise to the level of “reckless intent” or “deliberate

indifference.”

On appeal, Ms. James argues that because Dr. Southern certified Ms. James
-24-

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.

Any claim against the doctors based on a violation of the Fourteenth

Amendment substantive due process protection fails because Ms. James’

allegations do 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.
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For the reasons above, the district court’s dispositions of the claims against

Dr. Fermo and Dr. Southern are affirmed.

Before concluding, we must discuss one unfortunate matter. We are

concerned about two particularly egregious mischaracterizations of the record by

Ms. James’ counsel. One is counsel’s repeated statement that Dr. Delong had

performed 50-100 emergency detention evaluations. The record shows this

number to be counsel’s own unconfirmed estimate. The other is counsel’s

statement, in support of his argument that a Fourth Amendment claim exists, that

the City and the officers “argue[d] the Fourth Amendment in their Brief to the

Trial Court, contending that under Pino ... the actions of the police officers were

reasonable.” That brief makes perfectly clear that the City and the officers did

not believe the Fourth Amendment applied and that the section of the brief quoted

by counsel was made in the alternative.

Neither of these characterizations were even close to being arguably true

and both were material to counsel’s arguments. We find this troubling, to say the

least. Therefore, pursuant to Federal Rule of Appellate Procedure 46(c),

appellant’s counsel shall show cause why this court should not impose appropriate

disciplinary action for these apparent attempts to mislead. Counsel’s response
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shall not exceed ten pages and shall be filed with the Clerk of this court within

fourteen days of the issuance of this order.

Section 1983 was never intended to create a federal tort scheme to right all

wrongs. If the facts alleged by Ms. James are true, this is a truly disturbing case. 

However, this decision concerns only whether these defendants are liable pursuant

to § 1983, which is a wholly separate question from whether there are any state

law remedies available or whether the defendants deserve to be liable. If these

allegations are true, we can only hope the wrongs against Ms. James will be

redressed in an appropriate forum. The decisions of the district court are

AFFIRMED.

Entered by the Court:

WADE BRORBY

United States Circuit Judge