                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                      July 31, 2017
                        FOR THE TENTH CIRCUIT
                      _________________________________           Elisabeth A. Shumaker
                                                                      Clerk of Court
ROBERT W. WINKEL,

      Plaintiff - Appellant,

v.                                                   No. 16-3290
                                            (D.C. No. 5:13-CV-03103-SAC)
GEOFFERY HAMMOND, M.D.,                                (D. Kan.)
Larned State Hospital; DILIP
PATEL, M.D., Larned State Hospital;
JOHN DOE, a/k/a (FNU) Oleachea;
JOHN DOES,

      Defendants - Appellees.
                    _________________________________

                         ORDER AND JUDGMENT*
                      _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                 _________________________________

      Proceeding pro se,1 El Dorado Correctional Facility prisoner Robert

Winkel appeals the district court’s dismissal of his civil action. In his

complaint brought under 42 U.S.C. § 1983, Winkel alleges that while he

      *  After examining the brief and appellate record, this panel
unanimously determines that oral argument wouldn’t materially assist in
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). This case is therefore submitted without oral argument. This
order and judgment isn’t binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. But it may be cited
for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1 We liberally construe Winkel’s pro se filings, but it’s not our role to

act as his advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
was under evaluation for competency to stand trial, certain employees at

the Larned State Security Hospital (LSSH) violated his constitutional due

process rights by forcibly administering antipsychotic medication.

      The district court granted Winkel leave to proceed in forma pauperis

(IFP), directed service of process on the defendants, and requested that

officials at LSSH review Winkel’s allegations and prepare a report

pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).2

      Three days after LSSH filed its Martinez report, the district court

sua sponte entered an order dismissing Winkel’s claim under 28 U.S.C.

§ 1915A(b)(1) for “failure to state a claim for relief.” R. vol. 1, 161. Citing

facts from the Martinez report and its accompanying exhibits, the district

court concluded as follows:

      Having considered the entire record, the [c]ourt concludes
      plaintiff was afforded adequate due process in the two episodes
      of forcible injections of medication. Staff repeatedly addressed
      plaintiff, and there was consensus among medical staff that
      the prescribed medication was both appropriate and necessary
      to allow plaintiff to adequately care for himself and to avoid
      any harm to others. The materials show the injections were
      the result of an administrative determination that considered
      the relevant aspects of plaintiff’s medical condition and the
      need for the prescribed medication.


      2 District courts order Martinez reports to aid in identifying and
clarifying the issues pro se plaintiffs raise in their complaints, to assist in the
court’s broad reading of pro se litigants’ pleadings, and to supplement
plaintiffs’ descriptions of the practices they contend are unconstitutional.
Hall v. Bellmon, 935 F.2d 1106, 1112–13 (10th Cir. 1991).
                                         2
R. vol. 1, 161. Based on this conclusion, the district court entered

judgment dismissing the case.

      Winkel argues that the district court (1) improperly considered the

Martinez report in determining whether his complaint was sufficient to

state a claim, and, in doing so, (2) effectively issued a sua sponte summary

judgment ruling without providing him an opportunity to respond to the

facts contained in the Martinez report. We review de novo the district

court’s dismissal pursuant to § 1915A for failure to state a claim upon

which relief can be granted. McBride v. Deer, 240 F.3d 1287, 1289 (10th

Cir. 2001).

      In determining whether a pro se complaint fails to state a claim,

courts apply the same standard applied under Fed. R. Civ. P. 12(b)(6). See

Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) (addressing standard

of review for dismissal of pro se complaint under 28 U.S.C.

§ 1915(e)(2)(B)(ii)). Thus, “we ‘look to the specific allegations in the

complaint to determine whether they plausibly support a legal claim for

relief.’” Id. at 1218 (quoting Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210,

1215 n.2 (10th Cir. 2007)). In doing so, “we must accept the allegations of

the complaint as true and construe those allegations, and any reasonable

inferences that might be drawn from them, in the light most favorable to

the plaintiff.” Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002).

                                       3
      Generally, “the sufficiency of a complaint must rest on its contents

alone.” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). While there

are limited exceptions, Martinez reports don’t fall within those exceptions

“unless ‘the plaintiff challenges a prison’s policies or established

procedures and the Martinez report’s description of the policies or

procedures remains undisputed after plaintiff has an opportunity to

respond.’” Id. (quoting Hall, 935 F.2d at 1112).

      Here, Winkel’s complaint doesn’t challenge LSSH’s policies or

established procedures. And even if it did, the district court didn’t give

Winkel an opportunity to respond to the Martinez report. Moreover, the

district court impermissibly used the Martinez report to resolve factual

disputes. See Swoboda v. Dubach, 992 F.2d 286, 290 (10th Cir. 1993) (“In

determining whether a plaintiff has stated a claim, the district court may not

look to the Martinez report, or any other pleading outside the complaint

itself, to refute facts specifically pled by a plaintiff, or to resolve factual

disputes.”). Therefore, we conclude the district court erred in using the

Martinez report to dismiss Winkel’s complaint for failure to state a claim.

      Next, we examine the complaint without reference to the Martinez

report to determine whether Winkel plausibly alleged a due process violation.

See Gee, 627 F.3d at 1187 (noting that district court’s reliance on outside

materials in granting motion to dismiss for failure to state a claim isn’t

                                          4
reversible error if dismissal can be justified without considering outside

materials).

      Accepting Winkel’s alleged facts as true, we conclude that he states a

plausible Fourteenth Amendment violation. “The Due Process Clause permits

the state to treat a prison inmate who has a serious mental illness with

antipsychotic drugs against his will, if the inmate is dangerous to himself or

others and the treatment is in the inmate’s medical interest.” Washington v.

Harper, 494 U.S. 210, 227 (1990). Further, under certain circumstances, the

state may involuntarily medicate non-dangerous pretrial detainees with

antipsychotics in order to restore competency before trial. See United States

v. Bradley, 417 F.3d 1107, 1116 (10th Cir. 2005). To ensure due process under

these circumstances, however, the trial court ordering competency

restoration is required to determine whether “involuntary administration of

antipsychotic drugs ‘is necessary significantly to further important

governmental trial-related interests.’” Id. at 1113 (quoting Sell v. United

States, 539 U.S. 166, 179 (2003)). Thus, the trial court is required to consider

whether the state, “in light of the efficacy, the side effects, the possible

alternatives, and the medical appropriateness of a particular course of

antipsychotic drug treatment, [has] shown a need for that treatment

sufficiently important to overcome the individual’s protected interest in

refusing it[.]” Sell, 539 U.S. at 183.

                                         5
      Winkel’s complaint alleges that LSSH employees violated his due

process rights by forcibly medicating him with antipsychotics because (1) he

wasn’t dangerous and (2) the trial court failed to hold a hearing to determine

whether forcibly medicating Winkel—a non-dangerous pretrial detainee—

was necessary and appropriate.3 Winkel alleges that this forced

administration “was to make Winkel ‘more receptive’ and discourage his

refusal[]” to take prescribed medication. Reviewing Winkel’s complaint

without referencing the Martinez report, Winkel states a plausible claim

for violation of his due process rights. Accordingly, the district court erred

in dismissing his complaint. Thus, we reverse and remand for further

proceedings.4

      The district court granted Winkel’s motion to proceed IFP on appeal,

and we remind Winkel that he must continue making partial payments




      3 Winkel’s complaint attaches the trial court’s order committing him
to LSSH for pre-trial competency evaluation and treatment. The order and
an expert’s letter, which the order references, are silent regarding
involuntary administration of antipsychotics or consideration of the Sell
factors.
      4 Winkel appeals from a number of other district court orders, and

seeks miscellaneous relief associated with those orders. Because we find
dismissal for failure to state a claim wasn’t appropriate here, we don’t
reach these arguments.
                                       6
until he has paid the full amount of his fees and costs.


                                      Entered for the Court


                                      Nancy L. Moritz
                                      Circuit Judge




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