                                                             F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                              JAN 28 2000
                         FOR THE TENTH CIRCUIT
                                                          PATRICK FISHER
                                                                   Clerk

ROBIN G. WAKELAND,

            Plaintiff-Appellant,

v.                                               No. 99-2175
                                        (D.C. No. CIV-97-793-JC/JHG)
BENJAMIN MONTANO, Santa Fe                        (D. N.M.)
County Sheriff, in his individual and
official capacities; VINCE CRESPIN;
LARRY MARTINEZ; JOHN
LUCERO; DENNIS O’BRIEN; RON
BUCHHOLZ; LINDA M. ORTIZ;
VANESSA LAHARGOUE, Santa Fe
County Sheriff Office Officers, in
their individual and official
capacities; JOHN DOES 1-4; JOHN
DOES 6-13, Santa Fe County Sheriff
Office Officers, in their individual
and official capacities; SANTA FE
COUNTY SHERIFF OFFICE
DISPATCHERS, John/Jane Does,
unnumbered, in their individual and
official capacities; JOHN DOE 5,
New Mexico Department of Public
Safety Law Enforcement Officer, in
his individual capacity; JUDITH
HERRERA; ELEANOR
BLAKEMORE; RONALD WINGER;
JAMES GREEN; RUTH N.
PENNYCOOK; SAM BALLEN;
DAVID BROWN; RICHARD
CARPENTER; ROBERT
DENNISON; BILL MONTOYA;
MARIO PACHECO; JOSEPH RUIZ;
LAURA WOLFSWINKEL;
LAWRENCE SHANDLER;
JAMES F. HALLQUIST; WILLIAM
LITZENBERG; IRA JACKSON;
ROBERT LIPSCOMB; RAPHAEL
SHAPIRO, Board of Directors of
St. Vincent Hospital, in their
individual and official capacities;
EDGAR BILLOWITZ, M.D.; JIM
CHILDERS, Chief Financial Officer;
ELLEN SUTTON, St. Vincent
Hospital Staff, in their individual and
official capacities; PABLO
SEDILLO, Administrator of Santa Fe
County Detention Center
Management, Corrections
Corporation of America, in his
individual and official capacities;
JOHN/JANE DOES, unnumbered,
Corrections Corporation of America
Santa Fe County Detention Center
employees in his or her individual
and official capacities; MICHAEL
BURKHART, Secretary of the New
Mexico Department of Health;
J. ALEX VALDEZ, Secretary of the
New Mexico Department of Health;
PABLO HERNANDEZ, M.D., Las
Vegas Medical Center Administrator;
FELIX ALDERETE, Administrator of
the Las Vegas Medical Center and
Members of its Governing Board;
JACK CALLAGHAN; NORTY
KALISHMAN; LARRY A.
MARTINEZ; PAUL K. MINOQUE,
Las Vegas Medical Center Governing
Board Members, in their individual
and official capacities; JAMES
WALCH, M.D., Las Vegas Medical
Center Staff Psychiatrist in his
individual and official capacities;
J. MICHAEL MASH, Las Vegas

                                          -2-
Medical Center Staff Psychologist in
his individual and official capacities;
R.G. BRASSEUR, M.D.; JESSICA L.
BERRY, Ph.D., in their individual
and official capacities; ADAM
COPPENS; JAMES F. UPSHAW;
MATTHEW SANDOVAL, in their
individual and official capacities;
PAUL D. MANNICK; KATHY
MANNICK,

             Defendants-Appellees.


                            ORDER AND JUDGMENT             *




Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.



      Following her arrest, subsequent detention relating to alleged mental

problems, and eventual involuntary commitment for mental health care, plaintiff

Robin Wakeland brought this action raising claims under 42 U.S.C. §§ 1983 and

1985 and New Mexico tort law against defendants, who were in some way

involved in her arrest, detention and/or commitment.   1
                                                           In a variety of orders, the


*
      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.
1
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

                                           -3-
district court granted defendants’ motions to dismiss for failure to state a claim

and/or for summary judgment and entered judgments in favor of defendants.

Plaintiff appeals. Reviewing the district court’s decisions to dismiss and to grant

summary judgment to defendants de novo,      see Sutton v. Utah State Sch. for the

Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999) (Rule 12(b)(6));    Simms v.

Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs.       , 165 F.3d

1321, 1326 (10th Cir.),   cert. denied , 120 S. Ct. 53 (1999) (summary judgment),

we reject plaintiff’s contentions of error and affirm.

      Although we view the facts in the light most favorable to her,   see Sutton ,

173 F.3d at 1236, Simms , 165 F.3d at 1326, many of her allegations contained in

her ninety-eight page complaint and other papers are irrelevant to the analysis of

her claims. We therefore present first a general description of the events

underlying her various claims, and then will present any other relevant and more

specific allegations in our analysis of her claims.

      This case ultimately arises from a dispute between plaintiff and her

next-door neighbors, Paul and Kathy Mannick. The Mannicks instituted a state

court action against plaintiff, apparently in 1994. On May 12, 1994, the state

court issued a preliminary injunction enjoining plaintiff from trespassing on the




therefore ordered submitted without oral argument.


                                           -4-
Mannicks’ property and interfering with the construction of the Mannicks’ new

home. On June 15, 1994, Adam Coppens, an employee of the company building

the Mannicks’ home, called the Santa Fe County Sheriff’s Office to report that

plaintiff was interfering with the construction of the home. Officers Larry

Martinez and Vince Crespin were dispatched to handle the complaint. When they

arrived, plaintiff refused to identify herself or answer questions without a lawyer

present and refused to acknowledge the preliminary injunction. Plaintiff was

arrested for restricting, evading, or obstructing an officer and for concealing her

identity. These charges were eventually dropped.

      In October 1994, the Mannicks complained to the Sheriff’s Office that

plaintiff was flashing her car lights into their residence. Officer Martinez

investigated, and plaintiff again refused to answer any questions without a lawyer

present, though she did produce her driver’s license to identify herself. Officer

Martinez did not arrest her.

      On December 18, 1994, the Mannicks again called the Sheriff’s Office

to report what they believed to be bizarre behavior. This time, Corporal John

Lucero and Officer Dennis O’Brien were dispatched to the site. According to

plaintiff, the Mannicks told the officers that she watches them with binoculars,

takes photos of them, shines lights into their home, sets gopher traps on her

property, and entices their children to come onto her property near the traps.


                                         -5-
After talking to the Mannicks, walking around plaintiff’s property, and observing

plaintiff sitting on the ground rocking back and forth and staring at Corporal

Lucero with a blank or distant look when he tried to question her, the two officers

concluded that she was suffering from a mental disorder and could be a danger to

herself or others. They therefore took her into protective custody and transported

her to St. Vincent Hospital for an emergency mental health examination. At the

hospital, Corporal Lucero informed Dr. Edgar Billowitz of their observations and

the Mannicks’ complaints. After examining her, during which time she refused to

answer any questions without a lawyer present, Dr. Billowitz issued a twenty-

four-hour mental health hold on her and ordered her to be held in protective

custody overnight at the Santa Fe County Detention Center, which is operated by

the Corrections Corporation of America. On re-examination at St. Vincent the

next day, Dr. Billowitz issued a seven-day mental health hold certificate and

instructed that plaintiff be taken to the Las Vegas Medical Center, to which she

was transported by Officer Ron Buchholtz.

      On arriving at the Medical Center on December 19, plaintiff was examined

by psychiatrist Dr. James Walch. Following examination by Dr. Walch, and on

his recommendation, counsel for the New Mexico Department of Health filed a

petition for involuntary commitment on December 20, and attorney Matthew

Sandoval was appointed to represent her on the petition. After a hearing at which


                                         -6-
Sandoval represented plaintiff, the state court ordered plaintiff’s commitment for

up to thirty days at the Medical Center. She was released from the Medical

Center on December 29, 1994.

      On January 11, 1995, plaintiff went to the Sheriff’s Office to provide

additional information relating to a criminal trespass complaint she had made

against the Mannicks. She met with Officer Vanessa LaHargoue, who prepared

a report but did not forward the complaint to the district attorney.

      The state court in the Mannicks’ action against plaintiff held a bench trial

and issued its findings of fact and conclusions of law on September 12, 1995.

The court found, inter alia, that plaintiff had caused the Mannicks to reasonably

fear for the safety of their small children, had intentionally invaded the Mannicks’

property by shining spotlights onto their property and into their residence, and had

taken other actions intended to harass and intimidate the Mannicks. It concluded

that plaintiff’s actions constituted a private nuisance, invasion of privacy, assault,

intentional infliction of emotional harm and stalking of the Mannicks’ children.

It awarded compensatory and punitive damages against plaintiff totaling $85,000

and issued a permanent injunction enjoining her, inter alia, from harassing and

intimidating the Mannicks and their children. In October 1996, the Mannicks

asked the Sheriff’s Office to serve a writ of execution of their judgment on




                                          -7-
plaintiff. Officer Linda Ortiz attempted to serve plaintiff on several occasions at

her home, but never encountered her.

      On June 10, 1997, plaintiff filed her complaint against all the above

individuals plus a number of others associated with the entities involved,

asserting federal claims for violation of her constitutional rights and state law tort

claims. She appeals the district court’s denial of her claims against nearly all

defendants   2
                 along with the district court’s imposition of sanctions against her

regarding her claims against the Mannicks. We discuss below the district court’s

actions and plaintiff’s arguments on appeal with respect to each set of defendants.


Claims against the Mannicks

      Plaintiff asserted claims under §§ 1983 and 1985 contending that the

Mannicks acted in cooperation and conspired with the Sheriff’s Office in carrying

out policies of invidious discrimination and unconstitutional detention. The

district court granted the Mannicks’ motion to dismiss, concluding that plaintiff

had failed to show that the Mannicks were state actors and that her allegations of




2
       Although her notice of appeal indicated she was appealing the dismissal of
her claims against all defendants, she did not include any relevant argument
regarding claims against Adam Coppens in her opening brief and therefore has
waived these claims. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984
n.7 (10th Cir. 1994).

                                             -8-
conspiracy were impermissibly bald and conclusory. Plaintiff challenges these

determinations.

       To bring an action under § 1983, a plaintiff must establish that the

defendant acted under color of state law.        See Pino v. Higgs , 75 F.3d 1461, 1464

(10th Cir. 1996). Thus, to hold a private individual or entity liable under § 1983

for a constitutional violation, the plaintiff must show that the individual’s conduct

is fairly attributable to the state.   See id. at 1465; see also Gallagher v. “Neil

Young Freedom Concert ,” 49 F.3d 1442, 1447-57 (10th Cir. 1995) (discussing

four tests for determining state action). Moreover, to the extent that a conspiracy

may form the basis for a § 1983 claim, “a plaintiff must allege specific facts

showing an agreement and concerted action amongst the defendants;” conclusory

allegations of conspiracy are not enough.        Tonkovich v. Kansas Bd. of Regents   ,

159 F.3d 504, 533 (10th Cir. 1998).

       We agree with the district court that plaintiff has only conclusorily and

inadequately alleged that the Mannicks conspired with the Sheriff’s Office to

violate her constitutional rights. Merely making reports to law enforcement

authorities does not constitute state action. In the situations about which plaintiff

complains, the Mannicks’ complaints were followed by independent investigation

by sheriff’s officers prior to their detention of plaintiff.   See Carey v. Continental

Airlines, Inc. , 823 F.2d 1402, 1404 (10th Cir. 1987) (holding defendant’s


                                               -9-
complaint to police regarding plaintiff’s activities followed by police questioning

of plaintiff and subsequent arrest was not state action). Finally, the district court

properly rejected plaintiff’s claim for “invidious discrimination” under the second

part of § 1985(2) because plaintiff failed to allege any racial or class-based

discrimination.   See Davis v. Township of Hillside , 190 F.3d 167, 171 (3d Cir.),

petition for cert. filed , 68 U.S.L.W. 3367 (U.S. Nov. 22, 1999) (No. 99-888);

Santistevan v. Loveridge , 732 F.2d 116, 119 (10th Cir. 1984) (McKay, J.,

concurring).

       Plaintiff also challenges the district court’s order that she pay the

Mannicks’ attorney fees and costs as a sanction against her pursuant to

Fed. R. Civ. P. 11. Following a hearing, the court granted the Mannicks’ motion

for sanctions based on their contentions that she filed her complaint against them

for purposes of harassment and that her claims were frivolous and based on

neither law nor fact. We review the district court’s imposition of sanctions for

abuse of discretion.   See Barrett v. Tallon , 30 F.3d 1296, 1301 (10th Cir. 1994).

Plaintiff contends that her complaint was not frivolous and that the Mannicks

were “unreliable informants” regarding her activities, but by the time plaintiff

filed her complaint in this action, the state court had essentially substantiated the

Mannicks’ complaints to the sheriff’s officers regarding her activities. We see no

abuse of discretion in the imposition of sanctions.


                                          -10-
Claims against James Upshaw

      Upshaw was the supervisor of Adam Coppens at the construction company

building the Mannicks’ new home, and the district court dismissed the claims

against both Upshaw and Coppens sua sponte for the same reasons it dismissed

the claims against the Mannicks. Although challenging Upshaw’s dismissal,

plaintiff neither explains how he allegedly violated her rights, nor presents

argument why the district court erred. We will not make her argument for her.

See American Airlines v. Christensen   , 967 F.2d 410, 415 n.8 (10th Cir. 1992).   3




Claims against St. Vincent Hospital defendants

      The St. Vincent defendants include Dr. Billowitz, the St. Vincent board of

directors, individual members of the board, and several employees. Plaintiff

asserted federal claims against them for lack of professional judgment and

egregious acts, illegal detention, denial of her right to an attorney, conspiracy

with the Sheriff’s Office, and violation of privacy, and state law claims for fraud

and intentional infliction of emotional distress. The district court granted

summary judgment to the St. Vincent defendants on all of plaintiff’s claims.



3
       Throughout her opening brief, plaintiff attempts generally to incorporate
by reference arguments, authorities and facts contained in various documents
filed in the district court. This is not acceptable appellate argument, and we
will not consider these references.   See Gaines-Tabb v. ICI Explosives, USA, Inc.     ,
160 F.3d 613, 623-24 (10th Cir. 1998).

                                         -11-
It held that her § 1983 claims failed because there was no state action, finding her

allegations of state action bald and conclusory, and that any § 1985(3) claim

failed because there were no allegations of race or class-based discrimination.

The court also rejected her state law claims for fraud, because she did not allege

any intent to deceive, and for intentional infliction of emotional distress, because

the acts of which she complained were not sufficiently outrageous or intolerable

to support such a claim.

       On appeal, the only specific argument plaintiff presents is that the

St. Vincent defendants should be considered state actors because they cooperated

with the Sheriff’s Office and because the facility is a community mental health

facility under state law. We agree with the district court that cooperation with

state authorities and certification for involuntary commitment under state law are

insufficient to qualify defendants as state actors.    See Pino , 75 F.3d at 1466-67.

We find plaintiff’s attempts to distinguish     Pino , which also dealt with

certification by a private physician under New Mexico law, unpersuasive. To the

extent she challenges the district court’s rejection of her other claims against

these defendants, we see no error by the district court.




                                              -12-
Claims against Sheriff’s Office personnel

      Plaintiff contends that officers violated the Fourth Amendment by seizing

her without probable cause; that they engaged in invidious discrimination against

her by treating her more harshly than similarly situated individuals; that they

denied her right to a state-appointed attorney and incarcerated her without an

extreme emergency in violation of state law; and that they were liable under

conspiracy and supervisory liability theories. The district court concluded that

plaintiff had not shown that defendants violated clearly established federal law

and granted summary judgment in their favor on qualified immunity grounds.

See id. at 1467.

      On appeal, plaintiff contends that the defendant officers illegally seized her

without probable cause, because they relied on private citizens’ reports that were

unreliable, and that they cannot legally respond to reports of a violation of a civil

injunction. We agree with the district court that the officers’ actions were

reasonable in light of the circumstances and that they had probable cause for

detaining plaintiff. While they did rely on reports by the Mannicks and Coppens,

they also observed plaintiff and her property (on which the gopher traps were set),

were aware of the preliminary injunction against her, talked or tried to talk to

plaintiff, and detained and transported her in accordance with Dr. Billowitz’

directions. Plaintiff has failed to identify the individuals who were allegedly


                                         -13-
similarly situated to her, but treated less harshly than she was, to support her

discrimination or equal protection claim. We agree with the district court that

under N.M. Stat. Ann. § 43-1-4, she was entitled to an attorney during judicial

commitment proceedings, but not at all times during her detention.     Cf. Project

Release v. Prevost , 722 F.2d 960, 976 (2d Cir. 1983) (reaching similar conclusion

under comparable New York law). Again, her allegations of conspiracy are

impermissibly conclusory, and she has not shown how the Sheriff’s Office could

be liable under the state mental health code for her detention.


Claims against Pablo Sedillo and Corrections Corporation of America employees

      As with Upshaw, plaintiff neither explains how these defendants allegedly

violated her rights, nor presents argument explaining how the district court erred.

We therefore will not disturb the district court’s dismissal of these defendants.


Claims against Las Vegas Medical Center and the New Mexico Department of
Health defendants

      Plaintiff contends that these defendants are liable for violation of her Fifth

Amendment right to due process, egregiousness, detention for interrogation,

sexual harassment, lack of professional judgment, denial of her right to an

attorney, supervisory liability, and conspiracy. The district court denied

plaintiff’s claims against these defendants in their official capacities on Eleventh

Amendment grounds and concluded that she failed to state any claims against

                                          -14-
them in their individual capacities. On appeal, plaintiff argues only that immunity

is defeated by established privacy and associational rights, lack of professional

judgment and egregiousness, and that, for a variety of reasons,     Pino does not

apply. Pino does not apply, and the district court did not rely on it, because it is

a qualified immunity rather than Eleventh Amendment immunity case. Her

remaining contentions do not overcome an Eleventh Amendment defense.


Claims against Matthew Sandoval

       Plaintiff asserted a claim against Sandoval for legal malpractice in his

representation of her relating to her involuntary commitment. The district court

held that he was immune from this state law claim under the New Mexico

Indigent Defense Act, N.M. Stat. Ann. § 31-16-10. Plaintiff challenges the

constitutionality of the statute on equal protection grounds, arguing that it

deprives her of a remedy against Sandoval based on her indigent status, and that

strict scrutiny analysis should be applied in reviewing the constitutionality of the

statute. We agree with the district court’s rejection of this argument based on the

New Mexico Court of Appeal’s analysis of the same issue in        Coyazo v. State , 897

P.2d 234, 238-41 (N.M. Ct. App. 1995) (applying heightened rational basis test on

basis that indigent status does not merit strict scrutiny and concluding statute

passes that test).



                                           -15-
Claims against John and Jane Doe defendants

       Plaintiff contends that the district court should not have dismissed the

Doe defendants because they were never served and the court did not have subject

matter jurisdiction over them. We find this argument unpersuasive.


Challenge to constitutionality of statutes

       Plaintiff also challenges the constitutionality of New Mexico statutes

that allowed (1) the disclosure of her medical information and (2) her involuntary

commitment for five days without a judicial hearing to determine probable cause

for her commitment. Because she seeks declaratory or injunctive relief and has

not demonstrated a likelihood of being similarly injured in the future, she lacks

standing to assert these claims.   See Barney v. Pulsipher , 143 F.3d 1299, 1306 n.3

(10th Cir. 1998).

       Plaintiff’s motion to supplement her opening brief is GRANTED. The

judgment of the district court is AFFIRMED.

                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




                                          -16-
