                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                              MAR 8 2001
                                       TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk


 JAMES NEIBERGER; DANFORD
 ELDRIDGE; PAUL GARDNER;
 TERENCE JACOBS,

            Plaintiffs-Appellees,
 v.                                                        No. 99-1535
                                                       (D.C. No. 99-B-1120)
 ROBERT HAWKINS, Superintendent of                           (D. Colo.)
 the Colorado Mental Health Institute at
 Pueblo; GARRY TOERBER, Associate
 Manager for the Office of Direct Services
 of the Department of Human Services;
 ROBERT L. HAWKINS, individually;
 GARRY TOERBER, individually,

            Defendants-Appellants.

  and

 COLORADO DEPARTMENT OF
 HUMAN SERVICES; COLORADO
 MENTAL HEALTH INSTITUTE AT
 PUEBLO,

            Defendants.




                                    ORDER AND JUDGMENT*


        This order and judgment is not binding precedent, except under the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
Before BRISCOE, HOLLOWAY, and POLITZ,** Circuit Judges.


       Robert Hawkins and Garry Toerber appeal the district court’s denial of their

motion to dismiss, contending that the court erred in denying them qualified immunity as

individuals and in rejecting their contention that plaintiffs failed to comply with the

provisions of the Colorado Governmental Immunity Act (“CGIA”). For the reasons

assigned we affirm.

                                     BACKGROUND

       Plaintiffs are patients committed to the Institute of Forensic Psychiatry at the

Colorado Mental Health Institute at Pueblo (“CMHI-P”). All were committed

indefinitely after criminal proceedings found them “not guilty by reason of insanity.”1

The Colorado Department of Human Services (“CDHS”) controls CMHI-P. Toerber is

the Deputy Manager for the Office of Direct Services of CDHS. Hawkins is the

Superintendent of CMHI-P.

       Plaintiffs’ action challenges their ward assignments, treatment options and

conditions of confinement. They allege a “continuous pattern of substandard care,”




and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         The Honorable Henry A. Politz, United States Court of Appeals for the
Fifth Circuit, sitting by designation.
       1
            See COLO. REV. STAT. § 16-8-105 (1990).
                                             -2-
focusing on the lack of individualized treatment plans, their inability to participate in

treatment, and the threatened administration of psychotropic medications. They also

complain of undue restraints, inappropriate sanitation, poor medical care and a disregard

for personal safety. They invoke Colorado’s Care and Treatment of the Mentally Ill Act,2

42 U.S.C. § 1983, the Americans with Disabilities Act,3 and common law negligence

rules. They urge these claims in a putative class action with other individuals committed

to CMHI-P. The district court dismissed various claims on grounds of sovereign

immunity, but declined to dismiss claims against the defendants as individuals, denying

appellants’ 12(b)(6) motion with respect to qualified immunity under § 1983, and finding

that the CGIA did not preclude the common law negligence claim. This interlocutory

appeal by Toerber and Hawkins questions the district court’s denial of their motion to

dismiss based on qualified immunity and the CGIA.

                                        ANALYSIS

       A.      Qualified Immunity

       The rejection of a defendant’s qualified-immunity defense, “to the extent that it

turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C.

§ 1291 notwithstanding the absence of a final judgment.”4 Specifically, we have held that


       2
           COLO. REV. STAT. §27-10-101 et. seq. (1990).
       3
           42 U.S.C. § 12101 et. seq. (1995).
       4
           Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
                                             -3-
“[i]f the defendant argues that she is entitled to qualified immunity under the plaintiff’s

version of the facts because the plaintiff has not demonstrated a violation of clearly

established law, this Court may properly exercise jurisdiction over an interlocutory

appeal.”5 Appellants herein advance that contention.

       To accept a claim of qualified immunity, we first must decide whether the

plaintiffs sufficiently alleged that the defendants violated a statutory or constitutional

right, and if so, whether that right was clearly established and a reasonable person in the

defendants’ position would have known that his or her conduct violated that right.6 We

review de novo a lower court’s denial of qualified immunity because an appeal of such

order presents issues of law.7 In the context of a 12(b)(6) motion to dismiss, our review

of the qualified immunity defense is limited to the pleadings.8 In assessing the pleadings,

we construe the allegations in the complaint, and any reasonable inferences to be drawn

therefrom, in favor of the petitioner.9 We do so, noting our recent rejection of the


       5
        DeAnzona v. City and County of Denver, 222 F.3d 1229, 1233-34 (10th
Cir. 2000) (citing Johnson v. Martin, 195 F.3d 1208, 1214 (10th Cir. 1999)).
       6
           Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 516 (10th Cir. 1998).
       7
         Romero v. Fay, 45 F.3d 1472 (10th Cir. 1995); see also Mick v. Brewer,
76 F.3d 1127 (10th Cir. 1996) (discussing principle that a district court’s denial of
qualified immunity is appealable to the extent it presents issues of pure law).
       8
           Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir.1994).
       9
        See Sutton v. Utah State School for the Deaf and Blind, 173 F.3d 1226,
1236 (10th Cir. 1999).
                                              -4-
heightened pleading standard in the context of a qualified immunity defense.10

       1.      Violation of a Constitutional Right

       Initially we consider whether the plaintiffs have asserted the violation of a

constitutional right.11 On its face their pleadings implicate a constitutional right. In

Youngberg, the Supreme Court held that a committed individual “enjoys constitutionally

protected interests in conditions of reasonable care and safety, reasonably nonrestrictive

confinement conditions, and such training as may be required by these interests.”12 There

is no challenge to the plaintiffs’ status as committed individuals. The right discussed in

Youngberg is therefore pertinent herein.13 Our inquiry at this stage turns on whether the

allegations related to the conditions and treatment at CMHI-P, if proven, would constitute

a violation of the right outlined in Youngberg.

       While this presents a close question, we ultimately conclude that plaintiffs’ second

amended complaint sufficiently alleges a violation of a clearly established constitutional



       10
            Currier v. Doran, – F.3d – , 2001 WL 202045 (10th Cir. March 1, 2001).
       11
            Siegert v. Gilley, 500 U.S. 226, 232 (1991).
       12
            Youngberg v. Romeo, 457 U.S. 307, 324 (1982).
       13
         See also Washington v. Harper, 494 U.S. 210, 227 (1990) (finding that
patients have a due process interest implicated by the unconsented administration
of antipsychotic medications absent a finding that they are a danger to themselves
or others); Walters v. Western State Hosp. 864 F.2d 695, 700 (10th Cir. 1988)
(discussing patients’ liberty interest in being forcibly detained without access to
outside family or friends).
                                             -5-
right. As above noted, mere conclusionary allegations without specific facts will not

defeat the defense of qualified immunity. The amended complaint passes muster when

tested against this requirement.

       Neiberger complains of a “continuous pattern of substandard care,” including

denial of his right to “refuse treatment that is inappropriate for his needs,” deprivation of

a “physician-ordered, nutritionally adequate vegetarian diet,” the forced discontinuance of

an educational program, and interference with his “visitation and involvement of his

family in his care.” Eldridge complains of being “penalized and retaliated against for

refusing generic group therapy,” being “repeatedly subjected to restraints and seclusion

when he was neither dangerous to himself or others,” “prevented from conferring with

legal counsel and maintaining possession of his legal files,” and the disregard of a court

order that he be allowed to continue his education.

       Gardner alleges misdiagnosis and threats of involuntary psychotropic drugs, being

subjected to body searches by female staff contrary to hospital policy, and denial of

meaningful or timely response to grievances filed in accordance with hospital rules.

Finally, Jacobs asserts misdiagnosis of his condition due to personal conflicts with one

named doctor, that he remains in the maximum security unit despite findings by another

named doctor, that he has no behavior conflicts or evidence of any form of mental illness,

the lack of any formalized grievance system in the forensic unit, placement in seclusion

for challenging inappropriate treatment, unlawful “pat-frisks” by female staff, and


                                             -6-
placement in an unsafe environment with a patient who had previously threatened him.

       Finally, plaintiffs cite “consultant reports commissioned by defendant Colorado

Department of Human Services.” These reports detail the overcrowding and

understaffing at CMHI-P, the lack of training of staff in areas such as suicide prevention

and the treatment of the “severely mentally ill population served by the maximum-

security unit,” and “dangerously unsafe” conditions. Plaintiffs also discuss surveys by the

Health Care Financing Administration finding “serious staffing and other deficiencies at

CMHI-P which substantially limit the hospital’s capacity to provide adequate care.”

       While these allegations do not contain specific dates and times, or intimate details

of each alleged infraction, they do describe adequately the various incidents and conduct

that constitute the deprivation. The allegations do more than merely “identif[y] a clearly

established right and then alleg[e] that the defendant has violated it.”14 In addition to

stating that defendants provided “insufficient care” or “poor treatment”, the allegations

note problems with the care, such as punishment for lodging complaints, inability to visit

with family or friends, and invasive searches by staff of the opposite sex. On balance, we

find sufficient factual allegations as to the constitutional violation issue. Plaintiffs’

remaining Section 1983 claims do not state a violation of a clearly-established




       14
            Sawyer v. County of Creek, 908 F.2d 663, 665 (10th Cir. 1990).
                                              -7-
constitutional right.15

           2.      Clearly Established Right

           Our second inquiry focuses on whether the right allegedly violated is “sufficiently

clear that a reasonable official would understand that what he is doing violates that

right.”16 We find that plaintiffs have met this second requirement. Both Toerber and

Hawkins serve in high ranking positions within the health care administration in the state

of Colorado. A reasonable person in such a position should know that committed

individuals enjoy a constitutionally protected interest in conditions of reasonable care and

safety, and that allowing or implementing policies resulting in the acts alleged in the

complaint would violate that interest. We therefore conclude that plaintiffs’

constitutional rights were clearly established and that reasonable persons in the

defendants’ positions should have and would have known that their conduct violated that

right.17

           Defendants also urge dismissal by reading the plaintiffs’ complaint as based on




         See Second Am. Compl., App. at 32 ¶ ¶ 81-83 (alleging violations of due
           15

process rights to individualized treatment plans, to have family participation in
treatment and care, to confinement in the least restrictive environment, and to be
informed of potential risks and benefits of voluntarily-taken psychotropic
medications).
           16
                Anderson v. Creighton, 483 U.S. 635, 640 (1987).
           17
                See Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 516 (10th Cir.
1998).
                                                -8-
respondeat superior liability rather than actual participation in the violation. We are not

persuaded. The complaint contains sufficient facts for establishment of defendants’

personal liability. There are several allegations relating to defendants’ knowledge of the

improper treatment at CMHI-P, their acquiescence in such treatment, and their

supervisory roles over the implementation and administration of care at CMHI-P.18 These

allegations do not focus on respondeat superior liability but, rather, would place

responsibility for the alleged constitutional violations on the defendants’ directly in light

of their participation in the establishment of plaintiffs’ and other patients’ treatment

programs and overall living conditions at CMHI-P.

       We conclude that the factual allegations in plaintiffs’ complaint are sufficient to

survive defendants’ 12(b)(6) motion to dismiss.

       B.     Negligence


       18
         As noted by the district court, plaintiffs’ second amended complaint
includes allegations that Hawkins “has been and continues to be personally aware
of the conditions at CMHI-P and the lack of adequate medical and psychiatric care
and treatment provided to the patients at CMHI-P” (par. 33), that Toerber is
“personally aware of the conditions at CMHI-P and the inadequate medical and
psychiatric care and treatment provided to the patients held at CMHI-P” (par. 35),
that defendants have operated the CMHI-P in a manner that consciously and
systematically deprives plaintiffs of appropriate care (par. 59), and finally that
both defendants had “actual notice from planning documents developed and
published by CMHI-P that the level of staffing in the forensic unit was not
adequate . . . to provide the minimally adequate treatment guaranteed by the
United States Constitution. Despite this knowledge, Defendants, including
Defendants Toerber and Hawkins, failed to take reasonable actions to maintain
sufficient levels of trained professional staff . . ..” (par. 63).
                                             -9-
       Defendants also appeal the district court’s ruling denying their motion to dismiss

the claim for common law negligence. Under Colorado law, because defendants are

employees of a state entity, tort actions must comply with the Colorado Governmental

Immunity Act.19 The district court held that governmental immunity was waived under

the act because the complaint alleged negligence in the operation of a public hospital.20

Defendants assert various grounds for challenging the district court’s decision, none of

which persuades us that the district court’s order was in error.

       At the outset, we note our agreement with the district court that plaintiffs’

complaint contains sufficient allegations of individual negligence. Respondeat superior

liability is not implicated. Despite defendants’ urgent argument, we find no requirement

that a plaintiff show willful and wanton conduct on behalf of a defendant when the

alleged negligence involves the operation of a hospital. The statute at issue provides this

exemption.21

       Finally, we conclude that the plaintiffs sufficiently complied with the CGIA notice

requirements. They filed a certificate of review22 which adequately complies with the


        See COLO. REV. STAT. § 24-10-102 (1990) (containing “all the
       19

circumstances under which the state, any of its political subdivisions, or the public
employees of such public entities may be liable in actions which lie in tort”).
       20
            See COLO. REV. STAT. § 24-10-106(b) (1990).
       21
            COLO. REV. STAT. § 24-10-118(2)(a) (1990).

        The district court discussed the certificate in light of the requirements in
       22

§ 24-10-10. This section requires that plaintiffs obtain notices containing (1) the
                                            -10-
requirements of C.R.S. § 13-20-602(3)(a).23 Colorado law does not require plaintiffs to

reference the Not Guilty By Reason of Insanity statute24 in their certificate, as the duties

they refer to in their complaint stem from the Treatment Act. Further, as noted by the

district court, the Colorado Supreme Court has held that a plaintiff need only substantially

comply with the CGIA’s notice provisions.25 This comports with a recent opinion by that

court which concludes that the CGIA’s waiver provisions receive deferential construction

in favor of injured victims and its “immunity provisions are subject to strict

construction.”26 We find the district court’s reasoning sound and affirm its denial of

defendants’ motion to dismiss.

       In conclusion, we find that plaintiffs have alleged sufficient facts to rebut


name and address of complainant and his attorney, (2) a concise statement of facts
underlying the claim, including the date, time, place, and circumstances of the act,
omission, or event complained of, (3) the name and address of any public
employee involved, (4) a concise statement of the nature and extent of the injury,
and (5) a statement of the monetary damages requested. Plaintiffs’ certificate met
these requirements.
       23
          This section requires that attorney’s declare that they have consulted with
a person who has expertise in the area at issue and that such expert has reviewed
the case and concluded that the filing of the claim does not lack substantial
justification. See COLO. REV. STAT. § 13-20-602(3)(a)(I) & (II) (1990). The
statute does not require the naming of any particular licensed professional because
the instant complaint charges the defendants with negligence.
       24
            See COLO. REV. STAT. § 16-8-101 et. seq. (1990).
       25
            Woodsmall v. Regional Transport. Dist., 800 P.2d 63, 69 (Colo. 1990).
       26
            Walton v. State, 968 P.2d 636, 643 (Colo. 1998).
                                             -11-
defendants’ assertion of qualified immunity and that their notice complied with the

requirements of the CGIA. The judgment appealed is AFFIRMED.

                                                       Entered for the Court

                                                       Henry A. Politz
                                                       Circuit Judge




                                           -12-
