                                                           F I L E D
                                                     United States Court of Appeals
                                                             Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                            NOV 29 2000
                        FOR THE TENTH CIRCUIT
                                                       PATRICK FISHER
                                                                 Clerk

RITA PATINO QUINTERO,
also known as Rita Carillo,
                                              No. 99-3258
           Plaintiff-Appellee,           (D.C. No. 96-CV-1205)
                                                (D. Kan.)
     and

KANSAS ADVOCACY &
PROTECTIVE SERVICES, INC.,

           Plaintiff,

v.

CONRADO B. ENCARNACION,
M.D.; DARA JOHNSON, M.D.;
MICHAEL P. HORNICEK, M.D.;
BENJAMIN H. ARTILES, M.D.;
ZITA CALDERON, M.D.;
PRAKASH P. REDDY, M.D.;
REMEDIOS C. PRIMERO, M.D.;
BASUVIAH SHANKER, M.D.;
AURORA P. TRABAJO, M.D.;
BAL SHARMA, M.S., M.D.; JEAN
DANIEL POLICARD, M.D.; SYBIL
SHAFI, M.D.; LYDIA P. OBLEADA,
M.D.; GEORGE GETZ; MANI LEE,

           Defendants-Appellants,

     and

GLORIA CHAPMAN, LBSW, TTL;
RITA GONZALES, LBSW;
KATHLEEN SHERLOCK, LMSW;
ADELE DUNN, LBSW; LISA VAN
HORN, LMSW; MARY
PATTERSON, LBSW; REGIS
LOPATA, PH.D.; REX
ROSENBERG, RMLP; JOHN
MARKINGS; ROCHELLE
CHRONISTER; LAVERNE FISS,

            Defendants.


                          ORDER AND JUDGMENT            *




Before TACHA , EBEL , and LUCERO , Circuit Judges.



      This lawsuit arose from the involuntary commitment of plaintiff Rita

Quintero to the Larned State Hospital (Larned) from 1983 to 1995, when Kansas

Advocacy and Protective Services, Inc. (KAPS) arranged for Ms. Quintero’s

release and return to her home in Mexico. Plaintiff then sued the Larned

administrators, physicians and others involved in Ms. Quintero’s care and

treatment, claiming they violated various federal laws, including 42 U.S.C.

§ 1983, and Kansas state laws. All defendants moved to dismiss Counts I through




*
      The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.

                                        -2-
VI of plaintiff’s fourth amended complaint under Fed. R. Civ. P. 12(b)(6).      2



Defendants moved to dismiss on qualified immunity grounds, claiming plaintiff

failed to allege sufficient facts to demonstrate that they violated a clearly

established constitutional right. The district court adopted the recommendations

of the magistrate judge, with one modification, and granted the motions to dismiss

filed by the social workers and psychologists, but denied dismissal on qualified

immunity grounds to the administrators and physicians. This appeal was brought

by the administrators, Getz and Lee, and the physicians, Encarnacion, Johnson,

Hornicek, Artiles, Calderon, Reddy, Primero, Shanker, Trabajo, Sharma, Policard,

Shafi, and Obleada. We have jurisdiction over this interlocutory appeal from the

denial of qualified immunity.    See Breidenbach v. Bolish , 126 F.3d 1288, 1290

(10th Cir. 1997). We affirm.


                                   BACKGROUND

      In 1983, plaintiff, Rita Quintero was found on the streets of Johnson,

Kansas. Because she exhibited signs of mental illness, she was taken into

protective custody. At a Kansas state court hearing, Ms. Quintero was determined

to be “in need of treatment,” and she was involuntarily committed to the Larned

State Hospital for evaluation and treatment. She was diagnosed with


2
      Counts VII through XVIII, which raise pendent state law claims, claims of
legal malpractice, and claims for injunctive relief are not before us.

                                           -3-
schizophrenia, and remained at Larned until 1995, when KAPS advocated for her

release.

      While Ms. Quintero was at Larned, psychotropic medications were

administered to her, which she alleges was against her will. Eventually, she

developed tardive dyskinesia, a condition that often results from long-term

treatment with psychotropic medication. It is characterized by involuntary

movements of the face, shuffling gate and other symptoms.

      In 1983, the Mexican Consulate in Salt Lake City informed Larned

personnel that Ms. Quintero matched the description of a Tarahumara Indian from

Mexico. The information was placed in Ms. Quintero’s file but no effort was

made to tailor her treatment to her culture or to return her to Mexico.

      In 1986, a Kansas state court held a hearing to review the 1983 commitment

order. Ms. Quintero was represented by a court-appointed attorney, but she did

not appear in person. The state court did not make specific findings, but

continued the commitment order until “those who are in the care and control of

[Ms. Quintero]” determine that she may “be safely returned to society.”

Magistrate judge’s report and recommendation at 11 (quoting state court order).

Larned personnel made periodic reports to the court, but no further judicial

hearings were conducted regarding Ms. Quintero’s commitment.




                                         -4-
       Contributing to Ms. Quintero’s diagnosis of schizophrenia were her unusual

statements, depression, aggression, and behaviors of dressing in layers and

refusing to bathe. Ms. Quintero is a citizen of Mexico and a member of the

Tarahumara Indian tribe. Members of the Tarahumara tribe dress in layers and

rarely bathe. Her primary language is Ramuri. She speaks some Spanish, but no

English. During her commitment at Larned, interpreters were not always

provided for Ms. Quintero, and at no time was a Ramuri interpreter provided.

Plaintiffs contend that much of Ms. Quintero’s behavior that was treated with

psychotropic drugs resulted from cultural differences, language barriers, the

hospital environment, and the side effects of the psychotropic medications, rather

than mental illness. After KAPS intervened, Ms. Quintero was released from

Larned. She returned to Mexico in September 1995, after twelve years at Larned.

Sister Beatriz Zapata was appointed as conservator to represent Ms. Quintero’s

interests in this action.


                                    DISCUSSION

                                 Standard of Review

       “Qualified immunity shields government officials performing discretionary

functions from individual liability under 42 U.S.C. § 1983 unless their conduct

violates ‘clearly established statutory or constitutional rights of which a

reasonable person would have known.’”      Baptiste v. J.C. Penney Co. , 147 F.3d

                                          -5-
1252, 1255 (10th Cir. 1998) (quoting     Harlow v. Fitzgerald , 457 U.S. 800, 818

(1982)). Because defendants’ qualified immunity defense was raised in the

context of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), our review is de

novo. See Breidenbach , 126 F.3d at 1291. We consider only the fourth amended

complaint, construing plaintiff’s allegations and any reasonable inferences drawn

from them in their favor.    See Dill v. City of Edmond , 155 F.3d 1193, 1203 (10th

Cir. 1998). Because qualified immunity is asserted, however, the standard is

somewhat different than in the typical Rule 12(b)(6) case.        See Breidenbach , 126

F.3d at 1291. That is, “we apply a heightened pleading standard, requiring the

[fourth amended] complaint to contain ‘specific, non-conclusory allegations of

fact sufficient to allow the district court to determine that those facts, if proved,

demonstrate that the actions taken were not objectively reasonable in light of

clearly established law.’”   Dill , 155 F.3d at 1204 (quoting    Breidenbach , 126 F.3d

at 1293). In addition, because Getz and Lee were supervisors, to state a claim

against them under § 1983, plaintiff must “establish ‘a deliberate, intentional act

by the supervisor to violate constitutional rights.’ A plaintiff may satisfy this

standard by showing the defendant-supervisor personally directed the violation or

had actual knowledge of the violation and acquiesced in its continuance.”        Jenkins

v. Wood , 81 F.3d 988, 994-95 (10th Cir. 1996) (quoting         Woodward v. City of

Worland , 977 F.2d 1392, 1399 (10th Cir. 1992)).


                                            -6-
             Count I – Wrongful Confinement – Superintendents Only

      The district court declined to dismiss Count I against the

superintendent-defendants. Count I alleged that they violated Ms. Quintero’s

constitutional liberty interest by failing to release her. The superintendents do not

challenge the holding that “it [is] unconstitutional for a State to continue to

confine a harmless, mentally ill person.” Foucha v. Louisiana, 504 U.S. 71, 77

(1992). Rather, they claim they cannot be held personally responsible because

they were entitled to rely on the recommendations of the treating physicians, none

of whom recommended that Ms. Quintero be released.

      Kan. Stat. Ann. § 59-2924(c) and (d) (repealed 1996) provided that the

“head of the treatment facility,” here Getz and then Lee, was authorized to release

Ms. Quintero when she was (1) “no longer in need of treatment at the facility” or

(2) “not likely to cause harm to self or others.” The superintendents do not claim

that Ms. Quintero was a danger to herself or others. They were free to consult

with Ms. Quintero’s treating physicians regarding her status and condition, but

the statute clearly contemplated that the responsibility would fall on the

superintendents, not their employees. Accordingly, the district court correctly

denied dismissal of this count against the superintendents because the right to be

released was clearly established and the fourth amended complaint alleges that

Ms. Quintero was not a danger to herself or others and that she was entitled to be


                                          -7-
released. See Foucha, 504 U.S. at 77-78 (government may confine mentally ill

person to mental institution until he regains sanity or is not danger to himself or

others).

    Count III – Failure to Provide Adequate Safety, Treatment and Training –

Superintendents and Physicians

      The district court placed plaintiff’s claims in Count III in two categories:

(1) inadequate medical care and (2) inadequate treatment and training. It declined

to dismiss category (1) of Count III against the superintendents and the

physicians, but it limited the claim to the administration of psychotropic

medications. Category (2) was dismissed as to the superintendents, but not as to

the physicians. The district court adopted the magistrate judge’s characterization

of plaintiff’s claims as alleging a violation of substantive due process under the

Fourteenth Amendment, which ensures safe conditions of confinement, including

food, shelter, clothing and medical care, as well as “minimally adequate or

reasonable training to ensure safety and freedom from undue restraint.”

Youngberg v. Romeo, 457 U.S. 307, 315, 319 (1982).

     Category(1): Inadequate Medical Care - Superintendents and Physicians

      Plaintiff asserts that defendants violated Ms. Quintero’s constitutional right

to be free from the unwanted administration of psychotropic medications. They

maintain that she had the right to be informed, in a language she could


                                          -8-
understand, of the nature of the medications and their side effects. Defendants

claim that Ms. Quintero did not allege that she objected to the medications. Even

if Ms. Quintero did not object explicitly to taking the psychotropic medications, it

does not necessarily follow that she took them voluntarily. If she did not know

anything about them, or if the effects of the medications were to blunt her ability

to refuse them, cf. Riggins v. Nevada, 504 U.S. 127, 137 (1992) (side effects of

psychotropic medication may impair ability to follow trial testimony or

communicate with counsel), her acquiescence cannot be characterized as the

voluntary ingestion of psychotropic medications. Moreover, Ms. Quintero’s

argument that she took the medications because she feared she would be denied

canteen tokens if she refused cannot be resolved on a motion to dismiss filed

under Rule 12(b)(6).

      We need not examine the contours of a claimed constitutional right to be

informed about psychotropic medications because a Kansas state statute provided

a liberty interest entitled to the protection of the federal Due Process Clause.

“[A] state may confer more comprehensive due process protections upon its

citizens than does the federal government. . . . ‘Because state-created liberty

interests are entitled to the protection of the federal Due Process Clause, the full

scope of a patient’s due process rights may depend in part on the substantive

liberty interests created by a state as well as federal law.’” Jurasek v. Utah State


                                          -9-
Hosp., 158 F.3d 506, 514-15 (10th Cir. 1998) (quoting Mills v. Rogers, 457 U.S.

291, 300 (1982)).

      Kan. Stat. Ann. § 59-2929(a)(7) (repealed 1996), stated that a patient in a

treatment facility “shall” have the right “to have explained, the nature of all

medications prescribed, the reason for the prescription and the most common side

effects and, if requested, the nature of any other treatments ordered.” We reject

any claim that these requirements could be fulfilled by conducting the explanation

in a language the patient could not understand.

      Section 59-2929(a)(7) used “explicitly mandatory language in connection

with requiring specific substantive predicates.” Hewitt v. Helms, 459 U.S. 460,

472 (1983). Therefore, violation of the rights granted can be redressed in federal

court. See id. (State’s use of “explicitly mandatory language . . . created a

protected liberty interest”). Moreover, this law was clearly established, and

defendants reasonably would have known that this law governed their conduct.

Cf. Chapman v. Nichols, 989 F.2d 393, 397 (10th Cir. 1993) (“[a] reasonably

competent public official should know the law governing his conduct”) (quotation

omitted).

      The fourth amended complaint alleges that the physicians failed to explain

to Ms. Quintero the nature and effects of the psychotropic medications that were

administered to her, and failed to exercise professional judgment in their


                                         -10-
decisions to administer those medications. It further alleges that the

superintendents failed to implement policies, procedures, and staff training to

ensure that Ms. Quintero’s rights were protected by having her medications

explained to her and by ensuring that independent medical judgment was

exercised. Accordingly, we hold that plaintiffs have alleged sufficient facts to

withstand dismissal of this claim.

        Category (2): Inadequate Treatment and Training – Physicians Only

      On appeal, plaintiff argues only that defendants violated her constitutional

right to adequate medical care, as discussed above. Accordingly, she has

expressly conceded the issue of a right to habilitation in this context. Count III,

as it relates to a habilitation claim is, therefore, dismissed.

        Count IV – Improper Administration of Psychotropic Medication –

Superintendents and Physicians

      In Count IV, plaintiff alleged that the superintendents and physicians

violated Ms. Quintero’s liberty interests to be free from the unwanted

administration of psychotropic drugs. “It is well established that an individual

has a liberty interest in ‘avoiding the unwanted administration of antipsychotic

drugs under the Due Process Clause of the Fourteenth Amendment.’” Jurasek,

158 F.3d at 510 (quoting Washington v. Harper, 494 U.S. 210, 221-22 (1990));

accord Bee v. Greaves, 910 F.2d 686, 688 & n.3 (10th Cir. 1990) (Bee II); Bee v.


                                          -11-
Greaves, 744 F.2d 1387, 1393 (10th Cir. 1984) (Bee I). The physicians and

superintendents do not dispute plaintiff’s claim that Ms. Quintero had a right to

avoid the unwanted administration of psychotropic medications or that the right

was clearly established at the time she was admitted to Larned. They argue,

however, that plaintiff has failed to allege facts to establish that they violated Ms.

Quintero’s rights.

      The fourth amended complaint alleged that Ms. Quintero (1) had never

been adjudicated unable to participate in decisions regarding her medications,

(2) she had never been adjudicated or perceived by defendants as a danger to

herself or others, (3) the nature and effects of the psychotropic medications were

never explained to her, (4) psychotropic medications were administered against

her will, and (5) defendants failed to exercise professional judgment in the

decisions to administer psychotropic medications. These allegations state a claim.

We recognize that the inquiry does not end with the allegation that Ms. Quintero’s

liberty interest was abridged because that interest must be “balanced against

competing state interests to determine whether it is outweighed by ‘the demands

of an organized society.’” Bee I, 744 F.2d at 1394 (quoting Romeo, 457 U.S. at

320 (further quotation omitted)). But the balancing is not before us in this review

of the district court’s ruling on defendants’ motion to dismiss. Thus, we leave it

to the district court to proceed to the next step.


                                          -12-
                               CONCLUSION

     The right-to-habilitation claims in Count III are DISMISSED as to the

physician-defendants. The judgment is otherwise AFFIRMED.



                                                 Entered for the Court



                                                 Carlos F. Lucero
                                                 Circuit Judge




                                     -13-
