                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                                June 24, 2013
                                  PUBLISH
                                                            Elisabeth A. Shumaker
                                                                Clerk of Court
              UNITED STATES COURT OF APPEALS
                       TENTH CIRCUIT



 GEORGE WITTNER, parent and next friend to
 Decedent, Ian Wittner; LIZBETH CARDENAS,
 parent and next friend to Decedent, Ian Wittner,
 and as Personal Representative of the Estate of
 Ian Wittner,

       Plaintiffs-Appellants/
       Cross-Appellees,
                                                      Nos. 11-1171 & 11-1180
 v.

 BANNER HEALTH, an Arizona nonprofit
 organization, d/b/a North Colorado Medical
 Center; ROBERT GEORGE RUEGG, M.D.,
 SUSAN J. PONDER, R.N.,

       Defendants-Appellees/
       Cross-Appellants.


                 Appeal from the United States District Court
                         for the District of Colorado
                      (D.C. No. 1:09-CV-00610-RPM)


Jordan Factor of Allen & Vellone, P.C., Denver, Colorado (Daniel P. Gerash and
Eric L. Steiner of Gerash & Steiner, Denver, Colorado, with him on the briefs),
for Plaintiffs-Appellants/Cross-Appellees.

Traci L. Van Pelt (Matthew C. Miller and Jennifer L. Ward with her on the briefs)
of McConnell Fleischner Houghtaling, LLC, Denver, Colorado, for Defendants-
Appellees/Cross-Appellants.
Before KELLY, SEYMOUR, and TYMKOVICH, Circuit Judges.


SEYMOUR, Circuit Judge.



      Ian Wittner died at the North Colorado Medical Center after being injected

with the drug Haldol during a seventy-two-hour involuntary mental health hold.

His parents, Lizbeth Cardenas and George Wittner, brought this § 1983 claim

against the Medical Center, the doctor, and the nurse involved in their son’s

treatment. They appeal from the district court’s grant of summary judgment to

defendants and its subsequent denial of their F ED . R. C IV . P. 59(e) motion to

retain jurisdiction over their state law tort claims. Defendants cross-appeal the

district court’s denial of their F ED . R. C IV . P. 12(b)(6) motion to dismiss the

§ 1983 claim for lack of state action. Because we conclude that defendants are

not state actors for purposes of § 1983, we vacate the order of summary judgment,

reverse the district court’s denial of defendants’ Rule 12(b)(6) motion, affirm the

court’s denial of plaintiffs’ Rule 59(e) motion, and remand with instructions to

enter judgment for defendants consistent with this opinion.



                                            I.

      On April 4, 2008, police officers in Greeley, Colorado took Ian Wittner to

the North Colorado Medical Center (NCMC) for a mental health evaluation after

                                           -2-
Ian made threats against his former employer. A physician at NCMC concluded

that Ian was likely mentally ill and posed an imminent danger to himself or others

and, pursuant to C OLO . R EV . S TAT . § 27-65-105, ordered that Ian be held at

NCMC’s Behavioral Health facility for a seventy-two hour evaluation and

treatment (an “involuntary hold”).

      During the second day of the involuntary hold, Ian had a violent outburst at

the nurses’ station. Five or six staff members grabbed Ian and carried him into

his room, where they placed him on his bed and began to apply five-point

restraints (straps around his wrists, waist, and both ankles). After hearing a nurse

describe the situation over the phone, the on-duty psychiatrist, defendant Dr.

Robert Ruegg, ordered that Ian be medicated with four milligrams of Ativan (a

sedative) and ten milligrams of Haldol (an antipsychotic). Defendant Nurse

Susan Ponder prepared the syringes and went to Ian’s room. Ian was fully

restrained, but continued to scream and thrash against the restraints. Nurse

Ponder administered the medications. A few minutes later, Ian went into cardiac

arrest. He was transferred to NCMC’s emergency unit and then to the ICU. His

parents agreed a few days later to the removal of life support, and Ian died on

April 9, 2008.

      Ian’s parents filed suit under 42 U.S.C. § 1983 in federal district court,

naming as defendants Banner Health (the owner of NCMC), Dr. Ruegg, and Nurse

Ponder. Plaintiffs claimed that defendants violated Ian’s due process rights under

                                          -3-
the Fourteenth Amendment by injecting him with Haldol before waiting to see

whether the restraints and Ativan would suffice. Plaintiffs also asserted several

Colorado state law tort claims, including wrongful death and medical malpractice.

       All defendants moved to dismiss under Rule 12(b)(6), contending plaintiffs

could not state a § 1983 claim against them because they were not state actors.

The district court concluded that defendants were state actors, and the case

proceeded to discovery. In their summary judgment motion, defendants did not

reprise their state action argument but asserted instead that the individual

defendants – Dr. Ruegg and Nurse Ponder – merited qualified immunity, that the

Medical Center was not liable because there is no constitutional right to be free

from injection of antipsychotic drugs in a violent emergency, and that the Medical

Center’s policies encourage using the least intrusive means of restraint in any

event. Plaintiffs responded by arguing that the constitutional right not to be

injected with Haldol was so clearly established as to trump qualified immunity,

that no emergency existed once Ian Wittner had been fully restrained, and that

NCMC’s policies encourage using involuntary drug administration as a first, not

last, resort.

       At the hearing, the district court granted defendants’ summary judgment

motion from the bench. While the transcript does not illuminate the exact basis

for the court’s ruling, it apparently rejected plaintiffs’ contention that no

emergency existed at the time of the injection and agreed with defendants’

                                          -4-
characterization of NCMC’s drug injection policies. The court also accepted the

individual defendants’ qualified immunity defense. It dismissed without

prejudice plaintiffs’ state law claims for lack of jurisdiction.

      Plaintiffs filed a Rule 59(e) motion requesting that the district court amend

the judgment to retain supplemental jurisdiction “for the sole purpose of

remanding the state law claims to Weld County District Court . . . [as] Plaintiffs

would be unduly prejudiced if this Court’s decision to decline supplemental

jurisdiction over the state law claims . . . operated to bar the claims from being

heard by a state tribunal.” 1 Aplt. App. at 54-55. The court denied plaintiffs’

motion, holding there was no basis for remand of an action that had not been

removed from state court.

      Plaintiffs appeal the grant of summary judgment and the denial of their

Rule 59(e) motion. Defendants cross-appeal the denial of their Rule 12(b)(6)

motion.



                                          II.

                              Background and Statutes

      A § 1983 claim requires a plaintiff to show both the existence of a

1
       Plaintiff filed the present action in federal court. At some point, they also
filed a medical negligence action in Colorado state court, arising out of the same
facts. In their Rule 59(e) motion, they asked the district court to “remand” the
state law claims they raised in this action to the state court action they had
separately filed.

                                          -5-
federally-protected right and the deprivation of that right by a person acting under

color of state law. 42 U.S.C. § 1983; Lugar v. Edmonson Oil Co., Inc., 457 U.S.

922, 924 (1982). Here, the Rule 12(b)(6) dispute centered on whether the private

hospital and privately employed defendants were “state actors” who could be held

liable for a constitutional violation, assuming there was one, under § 1983.

      The Amended Complaint set out the legal framework governing involuntary

psychiatric holds in Colorado, and plaintiffs sought to persuade the district court

that this statutory scheme makes private mental health facilities and personnel

“state actors” when they agree to hold and treat a patient pursuant to state law.

Colorado law provides as follows:

      When any person appears to have a mental illness and, as a result of such
      mental illness, appears to be an imminent danger to others or to himself or
      herself . . . then a [police officer, doctor, psychologist, and certain other
      professionals with appropriate training] . . . upon probable cause and with
      such assistance as may be required, may take the person into custody, or
      cause the person to be taken into custody, and placed in a facility
      designated or approved by [the Colorado Department of Human Services]
      for a seventy-two-hour treatment and evaluation.

C OLO . R EV . S TAT . § 27-65-105(1)(a)(I) (2012). 2 An average citizen may initiate

the same process by going before a judge. Id. § 27-65-105(1)(b).

      Under Colorado law, medical facilities are not required to admit persons

believed to be an imminent danger. Id. § 27-65-105(4). Indeed, medical facilities



2
       In 2008, when Ian was taken to NCMC, this provision was codified at
C OLO . R EV . S TAT . § 27-10-105.

                                          -6-
are not allowed to admit such a person until they obtain “an application in

writing” from the person invoking the involuntary commitment procedure (e.g., a

police officer bringing in a potential patient). Id. § 27-65-105(3). “If the

seventy-two-hour treatment and evaluation facility admits the person, it may

detain him or her for evaluation and treatment for a period not to exceed seventy-

two hours . . . .” Id. § 27-65-105(4).

      After reciting these Colorado laws, plaintiffs alleged the following facts

relevant to the state action inquiry:

      •   Defendant Banner Health, doing business as NCMC, is an Arizona
          nonprofit corporation with its principal office address in Greeley,
          Colorado. Aplt. App. at 15.

      •   NCMC is a “designated facility” to which Colorado police may take
          persons thought to be an imminent risk to themselves or others. Id. at
          17.

      •   As a private “designated facility,” NCMC must “consent . . . to the
          enforcement of standards set by the executive director [of the state
          Department of Human Services].” Id. at 17, quoting C OLO . R EV . S TAT .
          § 27-10-105(1)(b) (now codified at § 27-65-105(1)(b)).

      •   The executive director of the state Department of Human Services
          establishes standards for “designated facilities” in consultation with an
          advisory board that “oversees the designated facilities.” Id.

      •   NCMC “is compensated by the state and/or the City of Greeley” for
          serving as a “designated facility.” Id.

      •   NCMC is the only “designated facility” the Greeley police department
          uses for involuntary holds of mentally ill persons. Id. at 17-18.

      •   NCMC has the authority to determine whether or not to detain a person
          brought there by the police. Id. at 18.

                                         -7-
      •   On April 4, 2008, Ian Wittner was put in a police car by Greeley police
          officers and taken to NCMC. Id. at 16.

      •   An NCMC doctor issued “holding orders” authorizing Ian’s detention.
          Id. at 19.

      •   On April 5, 2008, when Ian started acting aggressively at NCMC, he
          was injected with Haldol and Ativan by defendant Nurse Ponder at
          defendant Dr. Ruegg’s instruction after being put in five-point restraints.
          Id.

      •   Defendants Ruegg and Ponder are employees of NCMC. Id.

      •   The State of Colorado exerts some amount of supervisory control over
          NCMC by overseeing the administration of medication, requiring
          NCMC to keep certain records, developing training curricula and
          evaluations for NCMC staff, and retaining the power to “monitor”
          medications given at NCMC to detained persons.

Id. at 18-19.

      Plaintiffs did not contest NCMC’s status as a private hospital nor the

individual defendants’ status as a privately employed doctor and nurse, and there

was no dispute regarding the events that led to Ian Wittner’s involuntary hold at

NCMC. Notably, plaintiffs did not name the police officer, the police

department, or the admitting physician as defendants.

      Plaintiffs’ state action theory, as set out in the complaint, hinges entirely on

the state statutory scheme allowing seventy-two-hour involuntary mental health

holds and NCMC’s role thereunder as a “designated facility.” Plaintiffs contend

the state of Colorado transformed the medical facility and its health care

employees into state actors by assuming the power to authorize the involuntary

                                         -8-
commitment of mentally ill persons and delegating that power to designated

facilities which the state regulates. In so doing, plaintiffs argue, the state

assumed the duty to provide constitutionally adequate medical care for the

involuntarily committed patient, and NCMC and its employees acted under color

of state law when it contracted to perform the state’s obligation of care.

      The district court accepted plaintiffs’ state action argument. Ruling from

the bench at the Rule 12(b)(6) motion hearing, the court reasoned that “[t]he fact

of the matter is [Ian was] hauled there by the police department. The doctor gets

him and treats him apparently because he’s in custody.” Aple. Supp. App. vol. 1

at 73. “He’s exercising authority of the State of Colorado.” Id. at 74. “This

scheme that Colorado has is a matter of taking somebody, putting them in the

hands of a medical provider, all involuntary. That medical provider is exercising

an authority given to him by the State of Colorado, not by the plaintiff or the

decedent.” Id. at 75.

                                 Standard of Review

      We review the district court’s disposition of a Rule 12(b)(6) motion de

novo. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). When

deciding whether a complaint states a claim that can survive a Rule 12(b)(6)

motion, “we accept as true all well-pleaded factual allegations in a complaint and

view these allegations in the light most favorable to the plaintiff.” Id. But the

complaint must contain “sufficient factual matter, accepted as true, to state a

                                          -9-
claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotation marks omitted), and we are not “bound to accept as true

a legal conclusion couched as a factual allegation.” Id. (citing Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007)). Like the district court, we consider only

the facts alleged in plaintiffs’ Amended Complaint in reviewing the motion.

Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

                                       Analysis

      Where a litigant seeks to hold a private actor accountable as a state actor

for constitutional deprivations, we have applied various analyses and referred to

them as the “nexus test,” the “public function test,” the “joint action test,” and the

“symbiotic relationship test.” Johnson v. Rodrigues, 293 F.3d 1196, 1202-03

(10th Cir. 2002) (citing Gallagher v. “Neil Young Freedom Concert,” 49 F.3d

1442 (10th Cir.1995)). The facts alleged here do not establish state action under

any of these tests.

1. Nexus Test

      One way private actors can become state actors for § 1983 purposes is if

the state exercises sufficient “coercive power” over the challenged action.

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296

(2001) (citing Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)) (internal quotation

marks omitted). We called this type of state action analysis the “nexus” test in

Gallagher, 49 F.3d at 1448, while other circuits have called it the “compulsion”

                                         -10-
test. See, e.g., Lansing v. City of Memphis, 202 F.3d 821, 829 (6th Cir. 2000).

The test is derived from Blum, 457 U.S. at 1007-08, in which the Supreme Court

held that privately run nursing homes were not state actors when medical staff

decided to move Medicaid patients to lower levels of care. Id. The Court held

that notwithstanding substantial entanglement with state rules and state funding,

the challenged action was not state action because the ultimate clinical decision

was made by “the physician, and not the forms [required by the state].” Id. at

1006. Accordingly, cases that follow Blum ask whether the challenged activity

“results from the State’s exercise of coercive power.” Brentwood, 531 U.S. at

296 (internal quotation marks omitted).

      We applied this analysis in Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996),

where we held that a privately employed doctor who authorizes a short-term

involuntary psychiatric hold at a private hospital pursuant to a state involuntary

commitment scheme was not a state actor because the requisite level of coercive

power was not present. Id. at 1465-66. The plaintiff in Pino was taken by police

to a private hospital, where a privately employed doctor was legally able to

certify her for a short-term mental health hold only because of the New Mexico

authorizing statute. Id. at 1466. We had no trouble concluding that the actions of

the police officers in detaining the plaintiff and taking her to the hospital were

“taken under color of state law.” Id. at 1464. But the private hospital and staff

members were not transformed into state actors simply because they had acted in

                                          -11-
ways the law allowed them to. We explained that while the New Mexico

statutory scheme enabled the examining doctor to order the plaintiff detained

involuntarily, the doctor’s decision was not “fairly attributable to the state”

because the state did not pressure or coerce the doctor into making his decision to

certify that the plaintiff be involuntarily held. Id. at 1466.

      The New Mexico statute at issue in Pino provided that the admitting

physician or psychologist “shall evaluate whether reasonable grounds exist to

detain the proposed client . . . and if such reasonable grounds are found, the

proposed client shall be detained.” Id. at 1466 (quoting N.M. S TAT A NN . §

43-1-10(E)). Notwithstanding the mandatory “shall be detained” language, we

concluded that

      the state has no authority and cannot require the admitting doctor to
      examine such a “proposed client” anymore than it could require the
      examination of any other person who appeared at the emergency room.
      Thus, Dr. Weiss’ actions in admitting Appellant to Socorro General were
      those of a private physician not “state action.”

Id. at 1466.

      The Colorado statute here lacks the mandatory language of the New Mexico

law; it merely says “[i]f the seventy-two-hour treatment and evaluation facility

admits the person, it may detain him or her for evaluation and treatment for a

period not to exceed seventy-two hours . . . . .” C OLO . R EV . S TAT . § 27-65-105(4)

(emphasis added). The Colorado law on its face thus provides less support for a

“compulsion” argument than the New Mexico law in Pino did. And like New

                                          -12-
Mexico, Colorado has no ability to force, compel, or even encourage a private

facility to admit anyone. Nor does Colorado law influence the type of medication

given to involuntarily committed patients. When the state regulates a private

medical facility but does not mandate its employees to make particular decisions

regarding patient care, “[w]e cannot say that the State . . . is responsible for the

physician’s decision.” Pino, 75 F.3d at 1466 (citing Blum, 457 U.S. at 1006-07).

Without more, therefore, a statutory grant of authority for a short-term

involuntary hold in a private hospital does not pass the nexus/compulsion test for

turning private action of the hospital or the certifying doctor into state action.

      Plaintiffs have offered no relevant facts to distinguish this case from Pino.

Although they alleged that state agencies set standards for NCMC, require NCMC

to keep certain records, can give training to NCMC staff, and can order re-

training, Aplt. App. at 18-19 (citing C OLO . R EV . S TAT . §§ 25-1.5-302 and 25-1.5-

303), they did not allege that these rules have any kind of coercive effect on the

decisions of individual hospital personnel. The laws cited are merely generic

regulations that do not transform the private actor into the state. Jackson v.

Metro. Edison Co., 419 U.S. 345, 350 (1974). Nor does the allegation that

NCMC receives state funding create state action when there was no allegation that

the state uses its funding to coerce NCMC into giving particular medications to

particular patients. Without a showing of coercion, even “substantial [state]

funding of the activities of a private entity is no more persuasive than the fact of

                                          -13-
regulation of such an entity in demonstrating that the State is responsible for

decisions made by the entity in the course of its business.” Blum, 457 U.S. at

1011.

        Decisions that “ultimately turn on medical judgments made by private

parties according to professional standards that are not established by the State”

are not decisions we can fairly attribute to the state. Blum, 457 U.S. at 1008.

Here, the requisite level of state “coercive power” over the decision to give

Haldol to Ian Wittner is absent.

2. Public Function Test

        But compulsion is not the only route to state action. The “public function”

test asks whether the challenged action is a traditional and exclusive function of

the state. Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 157-58 (1978). “This test is

difficult to satisfy. While many functions have been traditionally performed by

governments, very few have been exclusively reserved to the State.” Gallagher,

49 F.3d at 1456 (citations and internal quotation marks omitted). In Spencer v.

Lee, 864 F.2d 1376, 1377 (7th Cir. 1989), and Harvey v. Harvey, 949 F.2d 1127,

1130-31 (11th Cir. 1992), both of which we relied on in Pino, the Seventh and

Eleventh Circuits applied the public function test in deciding that involuntary

commitment in a private hospital was not state action. The court in Spencer

reviewed the history of involuntary commitment of the mentally ill and concluded

that committing mentally ill persons had never been an exclusive public function

                                         -14-
in Anglo-American law or under the law of Illinois. Instead, care of the mentally

ill was traditionally provided in “private custody” by “friends and relations.”

Spencer, 864 F.2d at 1380-81 (citing Blackstone).

      Plaintiffs cite to some out-of-circuit district court decisions finding

involuntary commitment of the mentally ill to be a public function and thus state

action. But this view has been rejected in our circuit. Pino, 75 F.3d at 1467

(rejecting state action “for reasons similar to the reasons discussed in [Spencer

and Harvey] . . . .”). Plaintiffs offer no facts regarding the history of mental-

health commitment in Colorado to compel a different conclusion here.

3. Joint Action Test

      Lacking compulsion or a public function, a private actor can still be

transformed into a state actor under the “joint action” test, in which we ask

“whether state officials and private parties have acted in concert in effecting a

particular deprivation of constitutional rights.” Gallagher, 49 F.3d at 1453. In

Gallagher, a state university leased university facilities to a private company to

hold a concert on campus. The plaintiffs challenged certain actions taken by

concert security guards employed by the company, contending the guards were

safeguarding public property. The university had general requirements that

security must be provided, but was silent regarding the specific type of security to

be provided by lessees. We held that “[t]his silence establishes no more than the

University’s acquiescence in the practices of the parties that leased the [facilities]

                                         -15-
and is insufficient to establish state action under the joint action test.” Id. at

1455.

        Plaintiffs have not alleged that any state officials conspired with or acted

jointly in making the decision to medicate Ian Wittner with Haldol. Instead,

plaintiffs’ theory of state action seems to be one of acquiescence – that by

allowing NCMC to hold Ian, the state should be held responsible for an NCMC

doctor’s decision to medicate him. But “[a]ction taken by private entities with

the mere approval or acquiescence of the State is not state action.” American

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999). Accordingly, the “joint

action” test is not satisfied on the facts alleged here.

4. Symbiotic Relationship/Entwinement

        In Gallagher, applying the “symbiotic relationship” test, we said that when

“the state ‘has so far insinuated itself into a position of interdependence’ with a

private party ‘it must be recognized as a joint participant in the challenged

activity.’” 49 F.3d at 1451 (quoting Burton v. Wilmington Parking Auth., 365

U.S. 715, 725 (1961)). 3 Rather than “symbiotic relationship,” the Supreme Court

referred in Brentwood to “entwinement” between a private sports association and

state agencies as a relevant factor in the state action analysis. See 531 U.S. at

296, 298. Instead of reading Brentwood as creating a new, fifth test for state


3
     The analysis in Burton was christened the “symbiotic relationship” test in
Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175 (1972).

                                          -16-
action, we explained in Johnson that the Court’s use of “entwinement” is

“comparable to what [we] ha[ve] previously described as a ‘symbiotic

relationship.’” 293 F.3d at 1205.

      Whether it is called “symbiotic relationship” or “entwinement,” the

analysis starts by asking whether and to what extent the state’s relationship with

the private actor goes beyond the “mere private [purchase] of contract services.”

Brentwood, 531 U.S. at 299. “Payments under government contracts and the

receipt of government grants and tax benefits are insufficient to establish a

symbiotic relationship between the government and a private entity.” Gallagher,

49 F.3d at 1453. But a public-private relationship can transcend that of mere

client and contractor if the private and public actors have sufficiently commingled

their responsibilities.

      In Brentwood, the Court held that the Tennessee Secondary Schools

Athletic Association (TSSAA) was not a mere private contractor because, inter

alia, the state Board of Education supervised the TSSAA, resulting in state

involvement with the private actor from the “top down,” and the state public

schools constituted the majority membership of the TSSAA, resulting in state

involvement with the private actor from the “bottom up.” 531 U.S. at 299-300.

The Court also noted that the TSSAA acted more like a representative body for

the public schools than an independent service provider.

      Unlike mere public buyers of contract services . . . the schools here obtain

                                        -17-
       membership in the service organization and give up sources of their own
       income to their collective association. The Association thus exercises the
       authority of the predominantly public schools to charge for admission to
       their games; the Association does not receive this money from the schools,
       but enjoys the schools’ moneymaking capacity as its own.

Id. at 299.

       Plaintiffs urge us to analogize their case to another case with symbiotic

relationship features, Milonas v. Williams, 691 F.2d 931, 940 (10th Cir. 1982), in

which we held a private school for behaviorally challenged boys to be a state

actor under Burton when it collaborated with state school districts, jails, and

courts to admit students and accepted a large amount of state funding. Id. But

the interdependence between the school and the state in that case went far beyond,

both qualitatively and quantitatively, the interdependence between the state and

NCMC alleged here. In Milonas,

       members of the class were placed at the school involuntarily by juvenile
       courts and other state agencies. . . . Detailed contracts were drawn up by
       the school administrators and agreed to by the many local school districts
       that placed boys at the school. There was significant state funding of
       tuition and, in fact, the school itself promoted the availability of public
       school funding. . . . There was extensive state regulation of the educational
       program. . . .

Id. Students could be placed in the school by order of state courts, id., and the

school was not just a school but also a “correctional and detention facility.” Id. at

935.

       Here, as we have discussed, the state lacks the authority to unilaterally

place patients like Ian Wittner at NCMC; it merely authorizes NCMC to accept

                                         -18-
such patients if NCMC so chooses. Plaintiffs do not contend the state

“extensively” participates in patient care, draws up “detailed contracts” for the

care of patients, or dictates the medical “program.” Id. at 940. The kind of

heavily interdependent relationship present in Milonas and Brentwood has simply

not been alleged here and is not supported by the Colorado statutes authorizing

involuntary commitments limited to seventy-two hours. At best, “[a]ll of

petitioner[s’] arguments taken together show no more than that [NCMC] was a

heavily regulated, privately owned” facility, which elected to engage in the

challenged action in a manner “permissible under state law. . . . [T]his is not

sufficient to connect the State . . . with respondent’s action so as to make the

latter’s conduct attributable to the State . . . .” Jackson 419 U.S. at 358. The

symbiotic relationship test is not satisfied.

      Plaintiffs rely on Brentwood in urging us to reject these discrete “tests” in

favor of a more fact specific inquiry. The Supreme Court emphasized in

Brentwood that “no one fact can function as a necessary condition across the

board for finding state action; nor is any set of circumstances absolutely

sufficient . . . .” 531 U.S. at 295. But we have long adhered to that very

principle. In Gallagher, we recognized the need to take a “flexible approach to

the state action doctrine . . . [which considers] the facts of each case.” 49 F.3d at

1447. And while Brentwood supports finding or rejecting state action when it

would be pragmatic or normative to do so, which might sometimes require

                                          -19-
abandoning a rigid test, 531 U.S. at 304, Brentwood did not radically revise state

action doctrine or call into question any of the “tests” we discussed in Gallagher.

In fact, Brentwood reviewed those tests approvingly, simply replacing the word

“test” with terms like “criteria,” “set[s] of circumstances,” and “kinds of facts.”

See id. at 303 (“‘Coercion’ and ‘encouragement’ are like ‘entwinement’ in

referring to kinds of facts that can justify characterizing an ostensibly private

action as public instead.”). Because Brentwood did not disturb any of the “tests”

(or “criteria”) we identified in Gallagher, we see no reason to abandon them. Nor

does a more fact specific inquiry help plaintiffs, given the striking similarities

between this case and Pino, 75 F.3d 1461.

      Plaintiffs proffer their own three tests, which are all inaccurate or

inapplicable statements of law. They first claim that “when a state assumes the

power to deprive its citizens of fundamental constitutional rights, the state may

not, merely by delegating the exercise of such power to a nominally private

entity, divest its citizens of the means to vindicate those rights.” Aplt. Third Br.

at 39. Plaintiffs rely for this position on West v. Atkins, 487 U.S. 42 (1988),

which held that private physicians who contracted to work in state prisons could

be subjected to § 1983 liability for Eighth Amendment violations. Plaintiffs make

much of the fact that West did not mention the “public function,” “compulsion,”

“joint action,” or “symbiotic relationship” tests by name, but that is immaterial.

See Brentwood, 531 U.S. at 303. West is at its core a public function case. See

                                         -20-
id. at 295 (citing West as a case involving “a public function . . . .”).

       Using public function reasoning, some courts have applied West to private

prisons. See Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 461 (5th Cir.

2003) (quoting Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991)). But

we and other circuits following Spencer, 864 F.2d 1376, have declined to import

this “public function” label onto short-term involuntary mental health holds in

private hospitals. See Harvey, 949 F.2d at 1131; Rockwell v. Cape Cod Hosp., 26

F.3d 254 (1st Cir. 1994). West anticipated Brentwood’s focus on all relevant

quantitative and qualitative facts by supplementing its public function reasoning

with joint action and symbiotic relationship analyses, finding it relevant that

contracted doctors were not given unfettered discretion but were required to

cooperate with state prison personnel. West, 487 U.S. at 56. But that does not

help plaintiffs because the facts alleged here do not create a close question under

any of the four tests.

       Plaintiffs also argue that “[w]hen a state by statute assumes certain

affirmative obligations and then delegates the fulfillment of those responsibilities

to a private entity, the entity acts under color of state law.” Aplt. Third Br. at 44.

Neither premise embedded in this argument is supported here. First, we are not

convinced that Colorado assumed the statutory “affirmative obligation” plaintiffs

suggest: the duty to provide mental health care to everyone in the state. Id. The

statute plaintiffs rely on to locate this putative obligation is C OLO . R EV . S TAT .§

                                            -21-
27-65-101. That is a general “Legislative Declaration” section, which provides

that “subject to available appropriations, the purposes of this article are . . . [t]o

secure for each person who may have a mental illness such care and treatment as

will be suited to the needs of the person . . . .” C OLO . R EV . S TAT . § 27-65-101(1).

Without having cited any Colorado case law to support their theory, plaintiffs

have not persuaded us that by means of such vague, hortatory language the state

of Colorado imposed on itself an enforceable obligation to provide universal

mental health care, especially given the “subject to available appropriations”

proviso. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 761 (2005)

(explaining that even a statute instructing state employees to use “every

reasonable means” in pursuit of a certain goal is not strong enough to create a

“true mandate” subject to § 1983 liability for lack of enforcement). Second, even

if Colorado had created a universal right to mental health care but then

“delegated” its implementation to the private sector, such a “delegation” would

not automatically make private actors state actors. Delegation does not create

state action without at least one of the additional features described above:

compulsion, a public function, joint action, or a symbiotic relationship. Johnson,

293 F.3d at 1202-03.

       Finally, plaintiffs are incorrect that in the absence of a § 1983 claim they

will have been “divest[ed] . . . of the means to vindicate [their] rights.” Aplt.

Third Br. at 39. They can still rely on state tort law, which has no qualified

                                           -22-
immunity bar to surmount and may therefore be more favorable to plaintiffs than

a § 1983 claim. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72-73 (2001)

(explaining, in Bivens context, that state tort theories may be more plaintiff-

friendly than constitutional torts).

      Ultimately, none of plaintiffs’ alternative state action theories convinces us

to deviate from the path marked by Pino. We conclude plaintiffs failed to state a

claim that defendants were state actors. Because we hold that the district court

erred in failing to grant defendants’ Rule 12(b)(6) motion to dismiss the § 1983

claim, we need not decide whether a Constitutional right to be free from the

injection of Haldol in an emergency context existed or was clearly established.



                                         III.

      Plaintiffs also contend the district court abused its discretion when it denied

their Rule 59(e) motion to amend the judgment to preserve jurisdiction over their

state law tort claims and to remand them to state court. Ysais v. Richardson, 603

F.3d 1175, 1180 (10th Cir. 2010) (stating standard of review). We are not

persuaded.

      This case was originally filed in federal court seeking federal question

jurisdiction over the § 1983 claim, and supplemental jurisdiction over the state

claims pursuant to 28 U.S.C. § 1367. Although it is within a district court’s

discretion to dismiss supplemental state law claims once it has dismissed the

                                         -23-
federal question claim, we have said the court should consider retaining state

claims when, “given the nature and extent of pretrial proceedings, judicial

economy, convenience, and fairness would be served by retaining jurisdiction.”

Anglemyer v. Hamilton County Hosp., 58 F.3d 533, 541 (10th Cir. 1995) (citing

Thatcher Enter. v. Cache County Corp., 902 F.2d 1472, 1478 (10th Cir. 1990)).

      Plaintiffs make a fairness argument here, fearing their state law claims have

expired under state limitations statutes. Their concern, however, is obviated by

28 U.S.C. § 1367(d), which provides: “[t]he [state] period of limitations for any

claim asserted under [supplemental jurisdiction] . . . shall be tolled while the

claim is pending [in federal court] and for a period of 30 days after it is dismissed

. . . .” 28 U.S.C. § 1367(d). If plaintiffs filed their state court action within thirty

days after the district court’s dismissal, they should not face a statute of

limitations bar in state court. Moreover, because this action was never filed in

state court and removed to federal court, it cannot be “remanded” – only cases

that have been removed from a given court can be remanded to that court. See 28

U.S.C. § 1447; Allied Signal Recovery Trust v. Allied Signal, Inc., 298 F.3d 263,

270 (3d Cir. 2002) (citing Bloom v. Barry, 755 F.2d 356, 358 (3d Cir. 1985)

(“Remand means ‘send back.’ It does not mean ‘send elsewhere.’”)). It was not

an abuse of discretion for the district court to decline to retain supplemental

jurisdiction over the state claims.




                                          -24-
                                      IV.

      Accordingly, we VACATE the district court’s summary judgment order of

March 22, 2011, REVERSE the court’s order of September 29, 2009 denying

defendants’ Rule 12(b)6) motion, AFFIRM the court’s denial of plaintiff’s Rule

59(e) motion, and REMAND to the district court with instructions to enter

judgment for defendant in accordance with this opinion.




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