Scott v. Hern

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KENNETH TYLER SCOTT,

Plaintiff - Appellant,
v.

WARREN HERN, M.D., acting in his
official and individual capacities; C.
JAN RUNDUS, acting in her official
capacity on behalf of the State of
Colorado; DAVID GRAYBILL, M.D.,
acting individually and in his official
capacity on behalf of the State of
Colorado; MICHAEL NEWELL,
individually and as agent for Warren
Hern, M.D.; GREGORY IDLER, a
police officer acting in his official No. 98-1320
capacity for the City of Boulder and
John and Jane Does 1 through 100,
individually and acting individually
and in an official capacity on behalf of
the State of Colorado and political
subdivisions thereof,

Defendants - Appellees.

______________________

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF
COLORADO, INC.

Amicus Curiae.

ORDER
Filed July 6, 2000
Before HENRY, LUCERO and MURPHY, Circuit Judges.

This matter is before the court on defendant-appellee C. Jan Rundus’s

motion for partial modification of the court’s June 6, 2000 opinion. The motion

is granted. Section III.C. of the court’s slip opinion is replaced in its enirety with

the following :

The district court also dismissed Scott’s false imprisonment claims
against Rundus, and Graybill, although for different reasons. We address
each in turn.

Finding Graybill’s certification for short-term commitment
objectively reasonable and authorized by state law, the district court
granted summary judgment in favor of Graybill. Graybill diagnosed Scott
pursuant to court order, and, viewing the evidence in the light most
favorable to Scott, his diagnosis was objectively reasonable. See supra
Section II.C. Because Graybill’s acts were lawful, the district court
properly dismissed the claim of false imprisonment. See Blackman, 759
P.2d at 58 (Colo. Ct. App. 1988).

The district court’s denial of Scott’s motion to amend his false
imprisonment claim against Rundus was improvident. See Grossman ,
120 F.3d at 1126 . In his first complaint, Scott stated a false
imprisonment claim against Rundus for actions taken in her official
capacity. The district court dismissed the claim as barred by the
Colorado Governmental Immunity Act, Colo. Rev. Stat. § 24-10-106,
because it amounted to an impermissible state common law tort claim
against Boulder County. Scott’s second amended complaint alleged that
Rundus had acted in her individual capacity when committing the acts
constituting false imprisonment. The district court failed to acknowledge
that, unlike tort claims made against a public official acting in her
official capacity, the Colorado Governmental Immunity Act affords only
qualified immunity from liability for claims made against a public official
in her individual capacity. See Colo. Rev. Stat. § 24-10-118(2)(a); City

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of Lakewood v. Brace, 919 P.2d 231, 245-46 (Colo. 1996) (en banc).
Specifically, it does not immunize a public employee’s “willful and
wanton” conduct. Colo. Rev. Stat. § 24-10-118(2)(a). In Brace, the
Colorado Supreme Court held the determination of whether conduct is
“willful or wanton” “is not susceptible to resolution at an early stage in
the litigation process before significant discovery has been undertaken
unless there are no disputed issues of fact,” and therefore “[a] well pled
complaint that an employee acted willfully and wantonly must await
determination at trial on the merits.” 919 P.2d at 246. Brace, however,
did not distinguish the earlier case of Moody v. Ungerer, 885 P.2d 200,
204-05 (Colo. 1994) (en banc), in which the Colorado Supreme Court
found as a matter of law that a complaint failed to adequately allege the
defendant’s actions were willful and wanton.

In the instant case, Scott’s second amended complaint asserted that
Rundus’s improper actions in the prosecution of the civil commitment
proceeding were willful and wanton. Given the tension between Brace
and Moody as to the propriety of determining the adequacy of allegations
of willful and wanton conduct at the motion to dismiss stage, we are
reluctant to determine as a matter of law whether the facts alleged in
Scott’s complaint support his assertion of willful and wanton conduct.
We therefore affirm on an alternative ground. See Griess v. Colorado ,
841 F.2d 1042, 1047 (10th Cir. 1988).

State prosecutors are “absolutely immune for their actions in
initiating a prosecution.” Stepanek v. Delta County, 940 P.2d 364, 368
(Colo. 1997) (en banc) (citations omitted). In Stepanek, the Colorado
Supreme Court held that a county attorney who filed a petition initiating
temporary guardianship proceedings was absolutely immune from an
action for attorney fees alleging those proceedings were frivolous. See
id. at 368-69. As discussed, see supra Section II.B, Rundus’s filing of
the petition for evaluation and her investigation of Scott’s case are
likewise actions “‘intimately associated’ with the adjudicatory process.”
Id. at 368 (quoting Imbler, 424 U.S. at 430). Because Rundus is
absolutely immune from a suit arising out of these actions, Scott’s
amendment of his false imprisonment claim would have been futile. See
Grossman, 120 F.3d at 1126. Thus, although the district court’s reasons
for denying his motion to amend were erroneous, we affirm the judgment.

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A copy of the modified opinion is attached to this order. This court’s mandate of

June 28, 2000 is recalled, and the mandate is reissued forthwith.

Entered for the Court

PATRICK FISHER, Clerk of Court

By:
Keith Nelson
Deputy Clerk

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 F I L E D
United States Court of Appeals
Tenth Circuit

JUL 6 2000
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk

TENTH CIRCUIT

KENNETH TYLER SCOTT,

Plaintiff - Appellant,
v.

WARREN HERN, M.D., acting in his
official and individual capacities; C.
JAN RUNDUS, acting in her official
capacity on behalf of the State of
Colorado; DAVID GRAYBILL, M.D.,
acting individually and in his official
capacity on behalf of the State of
Colorado; MICHAEL NEWELL,
individually and as agent for Warren
Hern, M.D.; GREGORY IDLER, a
police officer acting in his official No. 98-1320
capacity for the City of Boulder and
John and Jane Does 1 through 100,
individually and acting individually
and in an official capacity on behalf of
the State of Colorado and political
subdivisions thereof,

Defendants - Appellees.

______________________

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION OF
COLORADO, INC.

Amicus Curiae.
 Appeal from the United States District Court
for the District of Colorado
(D.C. No. 96-Z-2919)

John Fogerty Winston (Andrew B. Reid with him on the briefs), Denver,
Colorado, for the appellant.

Howard Bittman, Boulder, Colorado, for the appellee Warren Hern.

Andrew Ringel (Pamela Skelton on the brief) of Hall & Evans, L.L.C., Denver,
Colorado, for the appellee David Graybill, M.D.

Jennifer L. Veiga (Dennis A. Hanson with her on the brief), of Wood, Ris &
Hames, P.C., Denver, Colorado, for the appellee Michael Newell.

Theodore S. Halaby and Jon A. Halaby of Halaby, Cross & Schluter, Denver,
Colorado, filed a brief for appellee Gregory Idler.

Marc F. Colin, and R. Stephen Hall of Bruno, Bruno & Colin, P.C., Denver,
Colorado, filed a brief for appellee C. Jan Rundus.

Lori Potter of Kelly, Haglund, Garnsey & Kahn, LLC, Denver, Colorado, filed a
brief for Amicus Curiae ACLU Foundation of Colorado.

Before HENRY, LUCERO and MURPHY, Circuit Judges.

LUCERO, Circuit Judge.

Plaintiff-appellant Kenneth Scott filed suit against individuals who

participated in his involuntarily commitment to a mental institution, alleging a

dizzying array of violations of 42 U.S.C. § 1983 and related violations of state

law. His appeal from the dismissal of those claims raises three important issues.

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We first reject the proposition that the state action requirement of a § 1983 claim

is satisfied when a licensed physician submits an affidavit to law enforcement

officials in support of involuntary commitment. We also address whether a

county attorney has absolute immunity from a § 1983 claim arising from her role

in civil commitment proceedings, and conclude she does. Finally, we review the

district court’s conclusion that the First Amendment right to petition affords

immunity from liability for claims of abuse of process and false imprisonment

based on the submission of a petition for involuntary commitment. Applying our

recent decision in Cardtoons v. Major League Baseball Players Association, 208

F.3d 885 (10th Cir. 2000) (en banc), we conclude that the First Amendment does

not impose any additional limits on those tort claims because, as construed by the

Colorado courts and as applied to the facts of this case, they do not impose

liability for the petitioning activity at issue. We affirm the remaining aspects of

the district court’s judgment.

I

Scott is an anti-abortion activist who frequently demonstrated in front of an

abortion clinic in Boulder, Colorado, operated by defendant-appellee Dr. Warren

Hern. On December 18, 1995, Hern prepared a sworn affidavit with the

assistance of defendant-appellee C. Jan Rundus, Assistant Boulder County

Attorney, stating that he had “become increasingly concerned with the recent

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behavior of a protestor named Kenneth T. Scott.” (Appellant’s App. at 107.) He

then set forth the following reasons for his concern: Scott had been arrested at

least twenty-one times in the past seven years, often in relation to his anti-

abortion activities and at least once for felony assault; Scott had been imprisoned

for violating a restraining order obtained by the Denver Planned Parenthood

clinic; Scott had made numerous threatening statements directed towards Hern,

including “Warren, how many days do you have left? The Lord showed me you

have less than one year. One year and he’s gonna take your life.” ( id. ); Scott was

a survivalist and expert marksman who, according to his wife, owned numerous

guns; a mental health report dated October 7, 1991, diagnosed Scott with

narcissistic personality disorder and noted that Scott had been hospitalized at least

four times for psychiatric reasons; a second mental health report dated May 4,

1994, diagnosed Scott with bi-polar disorder depressed with psychotic features,

albeit in remission; a “Behavioral Profile and Threat Analysis” dated February 7,

1995, stated that Scott “is exhibiting a general disregard for rules and pro social

behaviors. . . . [I]ndividuals who are perceived as going against his belief system

[are] a likely target.” ( id. ); a report by defendant-appellee Detective Greg Idler of

the Boulder Police Department described an incident in which Scott became

“instantly enraged” and started yelling “in a strange tongue,” ( id. at 109); and

Scott succeeded in locating and placing anti-abortion posters near Hern’s

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mountain cabin in Gilpin County. Hern concluded by stating, “I believe that he is

a danger to others and perhaps gravely disable [sic] as a result of his mentally ill,

religious obsessions with me and the abortion rights issue. I believe that his

condition is serious enough to warrant an evaluation.” ( Id. at 110.) Hern

obtained the two mental health reports and the behavioral profile and threat

analysis from unnamed “law enforcement officials,” identified in Scott’s

complaint as John and Jane Does 1-100. ( Id. at 108.) Hern also employed a

private investigator, defendant-appellee Michael Newell, who furnished Hern with

some of the information contained in the affidavit.

Rundus filed a petition and Hern’s affidavit with the Boulder County

District Court on December 18, 1995. The petition requested the court to order

that Scott be taken into custody for a seventy-two-hour treatment and evaluation

pursuant to Colo. Rev. Stat. § 27-10-105(1)(b). The court issued the requested

order the same day.

On December 20, 1995, Idler, acting pursuant to the court’s order, took

Scott into custody. Following an initial evaluation at the Boulder Mental Health

Facility, Scott was transferred to the Colorado Mental Health Institute (“CMHI”)

at Fort Logan, Colorado. Upon admission, Dr. Qwick diagnosed Scott as

“[b]ipolar, hypomanic-homicidal” and estimated that he would need to remain in

treatment for two to four weeks. (II J. Supp. App. at 518.) The following day,

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Dr. Levy made a tentative diagnosis of bipolar illness and hypomania but noted

that more data was necessary to determine if Scott was dangerous. Based on the

foregoing information as well as a separate interview, on December 22, 1995,

defendant-appellee Dr. David Graybill found that Scott was a danger to himself

and others and gravely disabled and certified Scott for short-term (not to exceed

three months) involuntary treatment pursuant to Colo. Rev. Stat. § 27-10-107.

Seven days later, Scott’s attorney requested that the court review the certification

for short-term treatment. See Colo. Rev. Stat. § 27-10-107(6). On January 30,

1996, forty-one days after his commitment and before the review hearing, Dr.

Graybill determined that Scott no longer met the criteria for continued involuntary

treatment and authorized his release.

On the same day he submitted his affidavit to the Boulder County Attorney,

Hern sought and obtained a temporary restraining order (“TRO”) from the Gilpin

County Court. The TRO prohibited Scott from, inter alia, interfering with Hern

and excluded Scott from Hern’s primary residence, Hern’s mountain cabin, and

Hern’s clinic. A hearing to determine whether the TRO should be made

permanent was set for January 2, 1996. Scott’s attorney entered a written

appearance and filed a motion for continuance, but he did not appear on January

2. At the hearing, the court denied the motion for continuance, heard additional

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evidence, and in conclusion issued a permanent restraining order. Scott’s

subsequent challenges to the permanent restraining order were unsuccessful.

Scott initiated the present action in the United States District Court for the

District of Colorado on December 17, 1996. Scott raised numerous federal and

state law claims, all of which were dismissed under Fed. R. Civ. P. 12(b)(6) or

resolved on summary judgment under Fed. R. Civ. P. 56. On appeal, Scott seeks

to have this court reinstate numerous claims: (1) violations of 42 U.S.C. § 1983

against Hern, Newell, Rundus, Graybill, Idler, and John and Jane Does; (2)

outrageous conduct against Hern, Rundus, and Graybill; (3) false imprisonment

against Hern, Rundus, and Graybill; (4) abuse of process against Hern; and (5)

invasion of privacy against Hern and Newell.

II

We first address Scott’s § 1983 claims against Hern, Newell, Rundus,

Graybill, Idler, and certain unnamed police officers. In his complaint, Scott

alleged that each of these individuals violated his constitutional rights to be free

from unreasonable search and seizures, freedom of speech, liberty, equal

protection of the laws, and/or due process of the law by their participation in the

civil commitment proceedings. He also alleged that Hern, Newell, and Idler

deprived him of due process of law in relation to the restraining order

proceedings.

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 A

Holding that Hern and Newell did not act under color of state law, the

district court dismissed the § 1983 claims against them under Fed. R. Civ. P. 56

and 12(b)(6), respectively. 1
The district court also denied Scott’s motion to

amend those claims because the proffered amended complaint failed to cure the

deficiencies. We review de novo the grant of summary judgment. See Jenkins v.

Wood , 81 F.3d 988, 990 (10th Cir. 1996). Applying the same standard as the

district court, we view the evidence and the inferences that can be drawn

therefrom in the light most favorable to the non-moving party and determine

whether there is a genuine issue as to any material fact and whether the movant is

entitled to judgment as a matter of law. See id. We likewise review de novo a

dismissal for failure to state a claim, “accepting as true all the well-pleaded facts

of the complaint and construing them in the light most favorable to the plaintiff.”

Gaines-Tabb v. ICI Explosives, USA, Inc. , 160 F.3d 613, 619 (10th Cir. 1998)

(citing Bauchman v. West High School , 132 F.3d 542, 550 (10th Cir. 1997)).

Denial of a motion to amend a complaint is reviewed for abuse of discretion. See

Grossman v. Novell, Inc. , 120 F.3d 1112, 1126 (10th Cir. 1997). If the proffered

amendments fail to cure the deficiencies of the original complaint or if the newly

1
The district court treated Hern’s motion to dismiss for failure to state a
claim as a motion for summary judgment pursuant to Fed. R. Civ. P. 12(c). Scott
does not challenge that treatment of the motion.

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asserted claims would be futile, denial of a motion to amend is appropriate. See

id.

To state a cause of action under 42 U.S.C. § 1983 for an alleged violation

of the Fourteenth Amendment and provisions of the Bill of Rights incorporated

into the Fourteenth Amendment, the challenged conduct must constitute state

action. See Lugar v. Edmondson Oil Co. , 457 U.S. 922, 930-32 (1982); Pino v.

Higgs, 75 F.3d 1461, 1464 (10th Cir. 1996). Where, as here, a § 1983 claim is

based on the conduct of a private individual, that conduct constitutes state action

if it is “‘fairly attributable to the state.’” Pino, 75 F.3d at 1465 (quoting Lugar,

457 U.S. at 937). A private individual’s conduct is “fairly attributable to the

state” if two conditions are met:

“First, the deprivation must be caused by the exercise of some right
or privilege created by the State or by a rule of conduct imposed by
the State or by a person for whom the state is responsible. Second,
the private party must have acted together with or . . . obtained
significant aid from state officials or engaged in conduct otherwise
chargeable to the State.”

Id. (quoting Wyatt v. Cole, 504 U.S. 158, 162 (1992) (internal quotations and

citation omitted)). 2

2
The Supreme Court has applied various tests to determine if the conduct
of a private individual is state action. See Gallagher v. “Neil Young Freedom
Concert”, 49 F.3d 1442, 1447-57 (10th Cir. 1995) (discussing the tests).
Regardless of the test applied, the elements outlined in Pino must be present for
conduct to be considered state action. See id. at 1447-48.

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 A private individual does not engage in state action simply by availing

herself of a state procedure. Pino involved an alleged violation of § 1983 arising

from an involuntary commitment in New Mexico. 75 F.3d at 1463-64. One of

the defendants was a private therapist who called the police and advised them

that the plaintiff should be hospitalized. See id. at 1465. We held that the

private therapist did not exercise “some right or privilege” or act under a “rule of

conduct” created by state law when she made a report “of noncriminal activities

requiring a response from state officials.” Id. at 1465-66; see also Bass v.

Parkwood Hosp., 180 F.3d 234, 242 (5th Cir. 1999) (“A private citizen does not

become a state actor by initiating civil commitment procedures against another

person.”) (citation omitted); cf. Carey v. Continental Airlines, Inc., 823 F.2d

1402, 1404 (10th Cir. 1987) (holding that complaining to a police officer about

an individual’s conduct does not constitute state action simply because the officer

arrests that individual following questioning).

Hern’s submission of the affidavit is no different than the actions of the

therapist in Pino: He did “nothing more than provide information which” Rundus

and the county judge “considered in making their independent judgments.” Id. at

1466. Contrary to Scott’s suggestion, the use of a state procedure does not

become state action simply because the person using the procedure is a licensed

professional such as a physician. See id. (holding that the private physician who

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certified the defendant for transportation pursuant to the civil commitment statute

was not a state actor). Put another way, it is not the case that Hern’s “official

character is such as to lend the weight of the State to his decisions.” Lugar, 457

U.S. at 937. Although Hern is a licensed physician, he was not employed by the

state, and he submitted the affidavit pursuant to a statutory scheme applicable to

any citizen. See Blum v. Yaretsky, 457 U.S. 991, 1012 (1982) (holding that the

decisions of physicians and administrators of a privately owned and operated

nursing home to transfer Medicaid patients was not state action). 3 Most of

Newell’s alleged conduct—surveillance of Scott and preparation and deliverance

to Hern of a report allegedly containing false and misleading information with

the knowledge that Hern would use the report to invoke civil commitment

proceedings against Scott—is even further removed from the civil commitment

procedure than Hern’s conduct and therefore also lacks the requisite state action.

The district court properly denied Scott’s claims arising from these actions.

3
Scott’s attempt to establish that Hern was a state actor under the joint
action theory is equally unavailing. See Lee v. Estes Park, 820 F.2d 1112, 1115
(10th Cir. 1987) (holding that the private individual who placed the plaintiff
under civilian arrest and took him to the police station was not “jointly engaged
with state officials” because the police officer made the independent judgment to
charge the plaintiff with an offense).

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 Scott also sought to establish state action by alleging that Hern conspired

with state officials to deprive him of his constitutional rights. 4 “When a plaintiff

in a § 1983 action attempts to assert the necessary ‘state action’ by implicating

state officials or judges in a conspiracy with private defendants, mere conclusory

allegations with no supporting factual averments are insufficient; the pleadings

must specifically present facts tending to show agreement and concerted action.”

See Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983) (citing

Clulow v. Oklahoma, 700 F.2d 1291, 1303 (10th Cir. 1983)). We have continued

to apply this heightened pleading requirement to § 1983 claims alleging a

conspiracy between private individuals and state officials even after Leatherman

v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166

(1993), in which the Supreme Court declined to apply a heightened pleading

standard to § 1983 claims against municipalities. See Tonkovich v. Kansas Bd. of

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

4
In both his complaint and second amended complaint, Scott alleges
Newell “conspired with police officers to obtain and use information of
confidential medical records of the plaintiff to support his report or reports to
defendant Hern.” (I J. Supp. App. at 25 (Complaint); Appellant’s App. at 88
(Second Amended Complaint)). On appeal, however, Scott wholly fails to raise
the argument that this conspiracy provides the requisite state action for his § 1983
claim against Newell, and therefore any such argument is waived. See Hernandez
v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995).

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 In his amended complaint, Scott alleged that Hern acted in concert with

Rundus and unnamed “state officials.” (Appellant’s App. at 69-71.) Nowhere in

the section of the complaint setting out the § 1983 claim against Hern, however,

does Scott provide factual averments as to the nature of those concerted

activities, other than Rundus’s role in preparing and submitting the affidavit.

Although a subsequent section of the complaint pertaining to the claims against

John and Jane Does contains a more specific allegation—that the aforementioned

unnamed officers “turned over” Scott’s medical records to “defendant Hern

and/or his agent Newell” (Appellant’s App. at 92)—that allegation was not

realleged or incorporated by reference with respect to the § 1983 claim against

Hern. Cf. International Mktg., Ltd. v. Archer-Daniels-Midland Co., Inc., 192

F.3d 724, 732 (7th Cir. 1999) (holding that allegations not incorporated into the

portion of the complaint setting forth the challenged claim could not cure the

insufficient pleading of that claim). As pleaded, the allegations of conspiracy

against Hern are wholly conclusory. Because such allegations could not survive

dismissal, amendment would have been futile and leave to amend was properly

denied. See Sooner Prods. Co., 708 F.2d at 512.

Finally, we reject Scott’s claim that Hern and Newell violated his

constitutional rights by preventing him from participating in the permanent

restraining order hearing. This claim fails because Scott’s inability to participate

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in those proceedings was the result of his commitment, and, as discussed, Hern

and Newell’s roles in his commitment did not constitute state action.

B

In his proffered second amended complaint, Scott’s § 1983 claim against

Rundus alleged the following conduct by her caused the deprivation of his

constitutional rights: (1) assisting Hern in the preparation of his affidavit; (2)

failing to fully investigate Scott’s mental status, in particular failing to

investigate the allegations in Hern’s affidavit in light of the conflict of interest

she knew existed between Hern and Scott; (3) relying on medical records she

knew or should have known were illegally obtained; and (4) moving to suppress

evidence of Scott and Hern’s political conflict. 5 The district court denied Scott’s

motion to amend his § 1983 claim against Rundus on grounds of absolute

immunity. We review determinations of absolute immunity de novo. See Gagan

v, Norton, 35 F.3d 1473, 1475 (10th Cir. 1994).

“[S]tate attorneys and agency officials who perform functions analogous to

those of a prosecutor in initiating and pursuing civil and administrative

enforcement proceedings” are “absolutely immune from suit under section 1983

5
Because Scott did not allege in his second amended complaint, as he now
does in his appellate brief, that Rundus’s witness list contained false information,
we decline to review the merits of that claim. See Sac & Fox Nation v. Hanson,
47 F.3d 1061, 1063 (10th Cir. 1995) (stating that this court will not review an
issue raised for the first time on appeal).

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concerning activities ‘intimately associated with the judicial . . . process.’”

Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th Cir. 1991) (quoting

Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976)). Absolute immunity does not

extend to actions “that are primarily investigative or administrative in nature,”

though it “may attach even to such administrative or investigative activities

‘when these functions are necessary so that a prosecutor may fulfill his function

as an officer of the court.’” Id. (quoting Snell v. Tunnell, 920 F.2d 673, 693

(10th Cir. 1990)). In drawing this distinction, we are guided by the following

principle: “The more distant a function is from the judicial process and the

initiation and presentation of the state’s case, the less likely it is that absolute

immunity will attach.” Id. (citing Snell, 920 F.2d at 687). Investigative acts that

fall outside the scope of absolute immunity are accorded qualified immunity. See

id. at 1490 n.6. 6

The question is whether, applying this functional analysis, the allegedly

improper actions by Rundus were “intimately associated” with the civil

commitment proceedings. Imbler, 424 U.S. at 430. Rundus’s alleged failure to

6
On appeal, Scott argues that Rundus is not entitled to absolute immunity
because she failed to perform her non-discretionary duty under Colo. R. Civ. P.
11 to conduct a reasonable inquiry into the legal and factual basis of the petition
for a seventy-two-hour evaluation. As discussed, however, “in determining
whether the functions of . . . prosecutors are entitled to absolute immunity,” we
focus on a function’s proximity to the judicial process, not whether it is
discretionary. Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993).

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fully investigate Scott’s mental health, reliance on medical records she knew or

should have known had been unlawfully obtained, and efforts to suppress

evidence clearly fit that description. In Pfeiffer, a physician who had been

disciplined by the Colorado State Board of Medical Examiners brought suit

against various participants in the disciplinary proceedings, including attorneys in

the state attorney general’s office who prepared the case against him. We held

“[t]here is no question in this circuit that prosecutors are absolutely immune from

liability for allegedly failing to conduct an adequate, independent investigation of

matters referred to them for prosecution.” Id. at 1490 (citing Martinez v. Winner,

771 F.2d 424, 437 (10th Cir. 1985)). Like the attorneys in Pfeiffer, Rundus was

acting pursuant to her statutory obligation to conduct the commitment

proceedings once the petition for a seventy-two-hour evaluation had been

submitted, see Colo. Rev. Stat. § 27-10-111(5), and she is absolutely immune

from suit concerning her actions and omissions related to the fulfilment of that

obligation. That immunized conduct includes her investigation, or lack thereof,

see Pfeiffer, 929 F.2d at 1490, her reliance on the medical reports, see Buckley v.

Fitzsimmons, 509 U.S. 259, 273 (1993) (holding that a prosecutor acts in his role

as advocate when he “evaluat[es] evidence . . . as he prepares for trial”), and her

motion to suppress, see Imbler, 424 U.S. at 430-31 (applying absolute immunity

to a prosecutor’s alleged unconstitutional suppression of material evidence).

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 Rundus’s role in preparing and submitting the petition for a seventy-two-

hour evaluation also falls under the umbrella of absolute prosecutorial immunity.

After her conversation with Hern, Rundus’s office prepared the affidavit, which

Hern signed under penalty of perjury. Rundus then attached the affidavit to an

unsworn petition for evaluation, which she submitted to the Boulder County

District Court. The Supreme Court has held that similar actions merit absolute

immunity. See Kalina v. Fletcher, 522 U.S. 118 (1997). The county attorney in

Kalina commenced a criminal proceeding by filing three documents: an

information; a motion for an arrest warrant; and a sworn affidavit supporting the

motion for an arrest warrant. See id. at 121. The Court held that the attorney’s

actions in connection with the preparation and filing of the former two

documents were the first steps of the prosecutorial process and therefore

protected by absolute immunity. See id. at 128-29. Absolute immunity did not

bar, however, an action based on the alleged false statements in the sworn

affidavit. See id. at 130-31. While the Kalina attorney’s drafting of the affidavit

and determining that the facts contained therein were sufficient to support

probable cause were integral to the initiation of the prosecution, she stepped

outside the role of prosecutor and into the role of complaining witness when she

attested to the truth of those facts. See id. at 130.

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 By contrast to the attorney in Kalina, Rundus never stepped outside her

prosecutorial role: She drafted an affidavit containing Hern’s allegations without

augmentation or further investigation, prepared a petition matching those

allegations to the relevant statutory language, and submitted the petition to the

court, but she did not attest to the truth of those allegations. Cf. Snell, 920 F.2d

at 694 (holding that an attorney who, at the request of a judge, filed an

application for conditional protective custody that allegedly contained false

information acted in her prosecutorial role because in preparing and presenting

the application the attorney simply “matched the existing allegations with

citations to . . . statutes,” and did not “pursue further investigation” or

“originate[] or augment[] the false information which was contained in the

application”). We therefore conclude that the district court did not err when it

dismissed Scott’s § 1983 claim against Rundus on the basis of absolute

immunity.

C

In his § 1983 claim against Graybill, Scott alleges the psychiatrist based

the certification for short-term involuntary treatment on a knowingly erroneous

diagnosis. Treating Graybill’s motion to dismiss as a motion for summary

judgment, the district court held that Scott stated a cognizable § 1983 claim

based on the alleged wrongful deprivation of his liberty for the forty-one days he

- 18 -
was involuntarily committed, but had failed to overcome the defense of qualified

immunity because Graybill’s actions were objectively reasonable. 7

This Court reviews “the presence or absence of qualified immunity de

novo.” Pino, 75 F.3d at 1467. “When a defendant pleads qualified immunity, the

plaintiff has the heavy burden of establishing: (1) that the defendant’s actions

violated a federal constitutional or statutory right; and (2) that the right violated

was clearly established at the time of the defendant’s actions.” Greene v. Barrett,

174 F.3d 1136, 1142 (10th Cir. 1999) (citing Horstkoetter v. Department of Pub.

Safety, 159 F.3d 1265, 1277-78 (10th Cir. 1998)).

The Due Process Clause prohibits a state from involuntarily committing an

individual unless he is a danger to himself or others. See O’Connor v.

Donaldson, 422 U.S. 563, 575 (1975) (“[T]here is . . . no constitutional basis for

confining [mentally ill] persons involuntarily if they are dangerous to no one and

can live safely in freedom.”). Consequently, we have held that a state official is

not entitled to qualified immunity if “there is a genuine issue of material fact

7
We do not review the district court’s related determination that Scott
failed to adequately allege a deprivation of his rights to free speech, exercise of
religion, or equal protection. While Scott has appealed that ruling, his brief is
entirely void of citations to the record or relevant case law to support his
conclusory argument that such constitutional violations occurred. See National
Commodity & Barter Ass’n v. Gibbs, 886 F.2d 1240, 1244 (10th Cir. 1989)
(holding that we are “not required to manufacture a party’s argument on appeal
when it has failed in its burden to draw our attention to the error below”).

- 19 -
concerning whether a reasonable person, exercising professional judgment and

possessing the information before the defendant[], would have believed that [an

individual was a danger to himself or others].” Walters v. Western State Hosp.,

864 F.2d 695, 699 (10th Cir. 1988) (applying this standard in a case alleging

unconstitutional involuntary administration of psychotropic medication) (citing

Anderson v. Creighton, 483 U.S. 635 (1987)); see also Glass v. Mayas, 984 F.2d

55, 57 (2d Cir. 1993).

Viewing the evidence in the light most favorable to Scott, Graybill’s

diagnosis and certifications were objectively reasonable. Graybill possessed the

following information at the time he determined that Scott was gravely disabled

and represented a danger to himself and others : the Hern affidavit describing in

detail Scott’s threatening behavior; an evaluation conducted by mental health

professionals at Boulder Mental Health Center immediately following Scott’s

detainment finding interrupted speech, tangential thinking, loose associations,

and an intimidating stance towards the interviewer; medical records

demonstrating a history of mental illness; Dr. Qwick’s diagnosis of Scott as

“[b]ipolar, hypomanic-homicidal” (II Joint Supp. App. at 518); Dr. Levy’s

tentative diagnosis of bipolar illness and hypomania, which also noted that more

data was necessary to determine if Scott was dangerous; and his personal

observations. We find that a reasonable person exercising professional judgment

- 20 -
in light of this information would have reached the same conclusion as Graybill.

Contrary to Scott’s suggestion, Dr. Levy’s diagnosis, though tentative, is

consistent with Graybill’s. Similarly, evidence that Scott was permitted to retain

sharp objects and receive visitors with limited supervision during his time at

CMHI and that Graybill subsequently found Scott no longer posed a danger to

himself or others has no relevance to the objective reasonableness of his initial

determination and therefore fails to create a genuine issue of material fact.

D

We next address Scott’s appeal from the district court’s denial of his

motion to amend his § 1983 claim against Idler. The proffered amendment

alleged that Idler willfully, wantonly, and maliciously prepared a report falsely

characterizing Scott as prone to abrupt mood swings and provided that report to

Hern knowing it “could bolster” Hern’s efforts to have Scott committed, and that

Idler testified falsely during the permanent restraining order hearing.

(Appellant’s App. at 38-40.) The district court denied the motion to amend

because Scott failed to plead a direct link between Idler’s allegedly false report

and a deprivation of his constitutional rights, and Idler’s testimony at the

permanent restraining order hearing was protected by absolute immunity.

Both of the district court’s conclusions are correct. A plaintiff must allege

factual causation—i.e. “but for” causation—in order to state a claim under

- 21 -
§ 1983. See Northington v. Marin, 102 F.3d 1564, 1568-69 (10th Cir. 1996).

“‘If two forces are actively operating, one because of the actor’s negligence, the

other not because of any misconduct on his part, and each of itself is sufficient to

bring about harm to another, the actor’s negligence may be found to be a

substantial factor in bringing it about.’” Id. (quoting Restatement (Second) of

Torts § 432(2)). While Scott baldly alleged that Idler’s report was the “direct

and proximate cause” of the deprivation of his constitutional rights, the facts

alleged in his complaint demonstrate otherwise. Assuming that Idler included

false statements in his report and then gave that report to Hern knowing it would

be used to seek Scott’s involuntary commitment, it simply is not the case that, but

for Idler’s preparation and provision of the report, Scott would not have been

committed. See Northington, 102 F.3d at 1568. Hern’s affidavit contained

considerable amounts of additional information supporting the conclusion that

Scott was a threat to the safety of others. And even if Idler’s report was

sufficient in itself to support Scott’s commitment, it was not a substantial factor

because it was insignificant in relation to the other facts set forth in the affidavit.

See id. at 1569. Finally, Idler has absolute immunity from any claim arising out

of his testimony at the permanent restraining order hearing. See Briscoe v.

LaHue, 460 U.S. 325, 328, 342-44 (1983) (holding that police officers have

absolute immunity for testimony at trial, even if perjurious). Because amending

- 22 -
the complaint with regard to the § 1983 claims against Idler would be futile, the

district court did not abuse its discretion in denying the motion to amend. See

Grossman, 120 F.3d at 1126.

E

Scott’s final § 1983 claim alleges that John and Jane Does, unnamed police

officers, violated his constitutional rights by giving his confidential medical

records to Hern and/or Newell without his consent. The district court dismissed

without prejudice these claims because Scott had failed to identify or serve these

defendants. While this order is characterized as a dismissal for failure to

prosecute, implicitly invoking Fed. R. Civ. P. 41(b), we construe it as falling

under the more precisely applicable Fed. R. Civ. P. 4(m), which authorizes

dismissal without prejudice for failure to effect service within 120 days after the

filing of the complaint.

We review for abuse of discretion a district court’s dismissal for failure to

effect service. See Espinoza v. United States, 52 F.3d 838, 840 (10th Cir. 1995).

In Espinoza, we delineated the inquiry a district court should make before

dismissing a claim pursuant to Rule 4(m):

The preliminary inquiry to be made under Rule 4(m) is whether the
plaintiff has shown good cause for the failure to timely effect
service. . . . If good cause is shown, the plaintiff is entitled to a
mandatory extension of time. If the plaintiff fails to show good
cause, the district court must still consider whether a permissive
extension of time may be warranted. At that point the district court

- 23 -
 may in its discretion either dismiss the case without prejudice or
extend the time for service.

Id. at 841.

The record before us on this matter is limited to Scott’s complaint, which

was filed on December 17, 1996, and the district court docket sheet. From the

docket sheet, we discern that on March 18, 1997, 120 days after Scott filed his

complaint, the district court issued an order to show cause why his action should

not be dismissed as to Jane and John Does. Scott filed two responses to this

order. The next docket entry concerning the matter is the district court’s June 23,

1998, order to dismiss without prejudice. Based on this limited record, it appears

the district court made a preliminary inquiry into whether Scott had good cause

for the failure to effect service. The record is wholly insufficient, however, to

permit us to review the district court’s implicit finding that Scott failed to show

good cause because we have no way of knowing the grounds for cause asserted by

Scott below. Where the record is insufficient to permit review we must affirm.

See Deines v. Vermeer Mfg. Co., 969 F.2d 977, 979-80 (10th Cir. 1992); cf.

Figueroa v. Rivera, 147 F.3d 77, 83 (1st Cir. 1998) (holding, in the alternative,

that dismissal was proper pursuant to Rule 4(m) where the plaintiff failed to

identify and serve an unknown defendant within 17 months of filing the

complaint).

- 24 -
 In the alternative, we reject the grounds for cause asserted on appeal. Scott

alleges that because discovery was stayed pending the resolution of the named

parties’ motions to dismiss, he never had an opportunity to identify the police

officers in question. Even if that argument was properly preserved, it fails to

establish cause. In fact, on June 26, 1997, the district court ordered discovery to

commence on the question of how the medical records were obtained. Therefore,

Scott had nearly an entire year of discovery before the district court dismissed this

claim.

III

In addition to his § 1983 claims, Scott brought state law claims of

outrageous conduct and false imprisonment against Hern, Rundus, and Graybill,

abuse of process against Hern, and invasion of privacy against Hern and Newell.

A

The district court dismissed Scott’s outrageous conduct claim against Hern,

Graybill, and Rundus based on its conclusion that, even if all of the facts alleged

in the complaint were true, as a matter of law the defendants’ conduct failed to

rise to the required level of outrageousness under Colorado law. 8

Specifically, the district court granted Rundus’s motion to dismiss for
8

failure to state a claim upon which relief can be granted, converted Hern’s motion
to dismiss to a motion for summary judgment, which it then granted, and then
denied Scott’s motion to amend his complaint with respect to Hern, Rundus, and
(continued...)

- 25 -
 “Liability for outrageous conduct exists where the conduct has been so

outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

civilized society.” Bauer v. Southwest Denver Mental Health, 701 P.2d 114, 118

(Colo. Ct. App. 1985) (citing Rugg v. McCarty, 476 P.2d 753 (Colo. 1970)). We

take the district court’s view that the alleged misconduct of Rundus, Hern, and

Graybill, falls far short of being atrocious and utterly intolerable. Accepting as

true the well-pleaded facts in Scott’s second amended complaint, Rundus and

Graybill’s failures to conduct more thorough investigations were at most

unreasonable. With respect to Hern’s purportedly nefarious affidavit, Scott

alleges it “contains several false statements” about him. (Appellant’s App. at 60.)

The only facts Scott denies outright, however, are that he is a marksman,

8
(...continued)
Graybill. Contrary to the district court’s assertion in its order denying the motion
to amend, it never dismissed the outrageous conduct claim against Graybill at the
earlier time. Rather, that claim was withdrawn voluntarily. Such an error is
harmless, however, when the record contains an apparent reason justifying the
denial of the motion to amend. See Long v. United States , 972 F.2d 1174, 1183
(10th Cir. 1992). Because we conclude that Scott’s allegation of outrageous
conduct against Graybill failed to state a claim for which relief can be granted,
such a justification exists here. See Ketchum v. Cruz , 961 F.2d 916, 920 (10th
Cir. 1992) (futility of amendment is adequate justification to refuse to grant leave
to amend); Griess v. Colorado , 841 F.2d 1042, 1047 (10th Cir. 1988) (“[W]e are
‘free to affirm a district court decision on any grounds for which there is a record
sufficient to permit conclusions of law, even grounds not relied upon by the
district court.’”) (quoting Alfaro Motors, Inc. v. Ward , 814 F.2d 883, 887 (2d Cir.
1987)) (further citations omitted).

- 26 -
survivalist, and member of an organization that published a “hit list” containing

Hern’s name. Even if Hern knew these statements were false when he included

them in his affidavit, that conduct cannot be regarded as utterly intolerable given

that the remaining facts contained therein would be more than sufficient to justify

a reasonable person both in concluding that Scott is a danger to others as a result

of his mental illness and in filing an affidavit seeking temporary evaluation and

treatment. See Colo. Rev. Stat. § 27-10-105(1)(b). Scott fails to cite a single case

in the relevant section of his brief, let alone a case militating against the

conclusion that conduct of the sort alleged in his complaint is not outrageous as a

matter of law. Therefore, the district court properly dismissed the outrageous

conduct claims.

B

Asserting that the First Amendment right to petition protects anyone who

invokes the aid of the government through an established judicial process such as

civil commitment proceedings, the district court granted Hern summary judgment

on Scott’s claims of abuse of process and false imprisonment. In reaching that

conclusion, the court relied on the Noerr-Pennington doctrine, which provides

immunity from antitrust liability for petitions to the courts, provided those

petitions are objectively reasonable. See Professional Real Estate Investors, Inc.

v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61 (1993).

- 27 -
 After the district court entered its judgment and during our review on

appeal, this Court handed down its decision in Cardtoons v. Major League

Baseball Players Association, 208 F.3d 885, 888-891 (10th Cir. 2000) (en banc),

which discussed the application of the Noerr-Pennington doctrine outside the

antitrust context. The question before the en banc court was whether the Petition

Clause immunized the defendant from state tort liability based on statements made

in a cease-and-desist letter sent to a private party. See id. at 886-87. The en banc

court ultimately concluded such letters are not shielded by the First Amendment

because they are not petitions to the government, see id. at 893. In reaching that

conclusion, we cautioned that, because the Noerr-Pennington doctrine was based

on both statutory interpretation and constitutional principles, care must be taken

when drawing right to petition principles from Noerr-Pennington antitrust cases.

See id at 889-91. “‘[T]he purpose of Noerr-Pennington as applied in areas outside

the antitrust field is the protection of the right to petition.’” Id. at 889 (quoting

WE, Inc. v. City of Philadelphia, 174 F.3d 322, 326-27 (3d Cir. 1999)).

Seen through the lens of Cardtoons, the issue before us is whether tort

liability for abuse of process or false imprisonment would infringe or chill Hern’s

First Amendment right to petition the courts for redress of grievances. As the

District of Columbia Circuit has stated, “it is hard to see any reason why, as an

abstract matter, . . . common law torts . . . might not in some of their applications

- 28 -
be found to violate the First Amendment.” Whelan v. Abell, 48 F.3d 1247, 1254

(D.C. Cir. 1995). Indeed, the Supreme Court has held the Petition Clause imposes

limitations on liability for libel based on statements contained in a petition to the

President, consistent with the limitations imposed by other First Amendment

rights. See McDonald v. Smith, 472 U.S. 479, 484-85 (1985) (citing New York

Times Co. v. Sullivan, 376 U.S. 254 (1964)). Numerous other courts have

likewise held that the Petition Clause places limits on liability for the commission

of a range of common law torts. See Cheminor Drugs, Ltd. v. Ethyl, Corp., 168

F.3d 119, 128 (3d Cir.) (malicious prosecution, tortious interference with contract,

tortious interference with prospective economic advantage, and unfair

competition), cert. denied, 120 S. Ct. 173 (1999); South Dakota v. Kansas City S.

Indus., Inc., 880 F.2d 40, 50 & n.24, 53-55 (8th Cir. 1989) (tortious interference

with contract); Video Int’l Prod., Inc. v. Warner-Amex Cable Communications ,

858 F.2d 1075, 1084 (5th Cir. 1988) (tortious interference with contractual

relations); Havoco of Am., Ltd. v. Hollobow , 702 F.2d 643, 649-50 (7th Cir. 1983)

(tortious interference with business relationships) ; Suburban Restoration Co. v.

ACMAT Corp., 700 F.2d 98, 101-02 (2d Cir. 1983) (tortious interference with a

business expectancy); Computer Assocs. Int’l, Inc. v. American Fundware, Inc.,

831 F.Supp. 1516, 1523 (D. Colo. 1993) (unfair competition); Pennwalt Corp. v.

Zenith Lab., Inc. , 472 F. Supp. 413, 424 (E.D. Mich. 1979) (tortious interference

- 29 -
with business relationships and abuse of process), appeal dismissed , 615 F.2d 1362

(6th Cir. 1980); Sierra Club v. Butz , 349 F. Supp. 934, 937-39 (N.D. Cal. 1972)

(tortious interference with advantageous relationship); Pacific Gas & Elec. Co. v.

Bear Stearns & Co. , 791 P.2d 587, 595-98 (Cal. 1990) (intentional interference

with contract and intentional interference with prospective economic advantage) .9

We need not delineate the precise limits the Petition Clause places on tort

liability, however, because in the instant case, as in Whelan, “there does not

appear to be even a potential for collision between the common law tort[s at issue]

and the First Amendment.” Whelan, 48 F.3d at 1254. In Protect Our Mountain

Environment, Inc. v. District Court , 677 P.2d 1361, 1364-70 (Colo. 1984) (en

banc), the Colorado Supreme Court squarely addressed the question of whether

9
The proposition that the Petition Clause can place limits on tort liability
is not foreclosed by the statement in Cardtoons, 208 F.3d at 889 n.4 (emphasis
added), that “[o]utside of [the antitrust] context, the Petition Clause protects
objectively reasonable lawsuits from being enjoined, but requires a court to look
at the underlying statute to determine whether the initiator of the suit can be held
liable.” This statement highlights the distinction between the degree of
petitioning immunity afforded litigants in Professional Real Estate Investors, 508
U.S. at 60, an antitrust case, and Bill Johnson’s Restaurants, Inc. v. NLRB, 461
U.S. 731, 748-49 (1983), a National Labor Relations Act dispute. It does not
address whether the Petition Clause can limit tort liability. Indeed, the en banc
court expressly states “we do not question the application of the right to petition
outside of antitrust,” rather, the court merely stresses “it is a bit of a misnomer to
refer to [such an application] as the Noerr-Pennington doctrine.” Cardtoons, 208
F.3d at 889. Moreover, to the extent this statement can be read to hold that the
Petition Clause cannot limit tort liability, it is dicta. The holding in Cardtoons
rested exclusively on the conclusion that a cease-and-desist letter to a private
party does not constitute petitioning activity. 208 F.3d at 886-87, 893.

- 30 -
and to what extent the First Amendment limits liability for the tort of abuse of

process. After carefully considering the Noerr -Pennington line of cases, the

Colorado Supreme Court articulated an objectively-reasonable-litigation standard

to strike the proper balance between the chilling effect lawsuits based on prior

judicial proceedings have on the exercise of the right to petition and the damage to

society that results from baseless litigation. See id. at 1368-69. Therefore,

when, as here, a plaintiff sues another for alleged misuse or abuse of
the administrative or judicial processes of government, and the
defendant files a motion to dismiss by reason of the constitutional
right to petition, the plaintiff must make a sufficient showing to
permit the court to reasonably conclude that the defendant’s
petitioning activities were not immunized from liability under the
First Amendment because: (1) the defendant’s administrative or
judicial claims were devoid of reasonable factual support, or, if so
supportable, lacked any cognizable basis in law for their assertion;
and (2) the primary purpose of the defendant’s petitioning activity
was to harass the plaintiff or to effectuate some other improper
objective; and (3) the defendant’s petitioning activity had the capacity
to adversely affect a legal interest of the plaintiff.

Id. at 1369.

Scott has failed to make a sufficient showing that Hern’s affidavit in support

of the petition for seventy-two-hour treatment and evaluation was devoid of

factual support or lacked any cognizable basis in law. As discussed, see supra

Section III.A, even if all of the information Scott alleges Hern knew or should

have known was false was redacted from the affidavit, the affidavit nonetheless

would provide a reasonable factual basis for seeking Scott’s involuntary

- 31 -
commitment pursuant to Colo. Rev. Stat. § 27-10-105(1)(b). Because Scott has

failed to satisfy the standard set forth in Protect Our Mountain Environment, 677

P.2d at 1369, we affirm the district court’s grant of summary judgment on the

abuse of process claim. It necessarily follows that, regardless of whether the

standard articulated in Protect Our Mountain Environment provides more or less

protection for the right to petition than required by the Constitution, it provides

adequate protection in this case.

With respect to the second tort claim at issue, “[f]alse imprisonment is an

unlawful restraint upon a person’s freedom of locomotion, or the right to come and

go when or where one may choose.” Blackman v. Rifkin , 759 P.2d 54, 58 (Colo.

Ct. App. 1988) (citing McDonald v. Lakewood Country Club , 461 P.2d 437 (Colo.

1969)). The Colorado courts have not addressed the question of whether and to

what extent the tort of false imprisonment conflicts with the First Amendment

right to petition when applied to situations in which the restraint on freedom is the

proximate result of petitioning activity. However, the requirement that the

restraint be unlawful precludes liability for false imprisonment when the restraint

is the result of a judicial order for temporary treatment and evaluation based on an

objectively reasonable petition and affidavit and issued in accordance with due

process.

- 32 -
 This requirement effectively prevents any infringement on or chilling of

Hern’s First Amendment rights by the instant action. Viewing the evidence in the

light most favorable to Scott, we conclude that there is no genuine issue of

material fact as to whether the involuntary commitment of Scott was “an unlawful

restraint upon [his] freedom of locomotion.” Blackman, 759 P.2d at 58.

Colorado statute authorizes a judge to order an individual to be taken into custody

for a seventy-two-hour treatment and evaluation “[u]pon an affidavit which relates

sufficient facts to establish that [the individual] appears to be mentally ill and, as

a result of such mental illness, appears to be an imminent danger to others or to

himself or appears to be gravely disabled.” Colo. Rev. Stat. § 27-10-105(1)(b).

As noted, see supra Section III.A, the facts related by Hern’s affidavit were

largely undisputed. Because those undisputed facts are more than sufficient to

support the judge’s initial finding that Scott posed a danger to himself and others

as a result of his mental illness, Scott’s involuntary commitment was lawful, and

the district court properly dismissed the false imprisonment claim against Hern.

Cf. Blackman, 759 P.2d at 58 (holding that emergency room personnel acted with

lawful privilege when restraining an individual suffering from severe intoxication

and head trauma, and therefore could not be held liable for false imprisonment).

- 33 -
 C

The district court also dismissed Scott’s false imprisonment claims against

Rundus, and Graybill, although for different reasons. We address each in turn.

Finding Graybill’s certification for short-term commitment objectively

reasonable and authorized by state law, the district court granted summary

judgment in favor of Graybill. Graybill diagnosed Scott pursuant to court order,

and, viewing the evidence in the light most favorable to Scott, his diagnosis was

objectively reasonable. See supra Section II.C. Because Graybill’s acts were

lawful, the district court properly dismissed the claim of false imprisonment. See

Blackman, 759 P.2d at 58 (Colo. Ct. App. 1988).

The district court’s denial of Scott’s motion to amend his false

imprisonment claim against Rundus was improvident. See Grossman , 120 F.3d at

1126 . In his first complaint, Scott stated a false imprisonment claim against

Rundus for actions taken in her official capacity. The district court dismissed the

claim as barred by the Colorado Governmental Immunity Act, Colo. Rev. Stat.

§ 24-10-106, because it amounted to an impermissible state common law tort

claim against Boulder County. Scott’s second amended complaint alleged that

Rundus had acted in her individual capacity when committing the acts constituting

false imprisonment. The district court failed to acknowledge that, unlike tort

claims made against a public official acting in her official capacity, the Colorado

- 34 -
Governmental Immunity Act affords only qualified immunity from liability for

claims made against a public official in her individual capacity. See Colo. Rev.

Stat. § 24-10-118(2)(a); City of Lakewood v. Brace, 919 P.2d 231, 245-46 (Colo.

1996) (en banc). Specifically, it does not immunize a public employee’s “willful

and wanton” conduct. Colo. Rev. Stat. § 24-10-118(2)(a). In Brace, the Colorado

Supreme Court held the determination of whether conduct is “willful or wanton”

“is not susceptible to resolution at an early stage in the litigation process before

significant discovery has been undertaken unless there are no disputed issues of

fact,” and therefore “[a] well pled complaint that an employee acted willfully and

wantonly must await determination at trial on the merits.” 919 P.2d at 246.

Brace, however, did not distinguish the earlier case of Moody v. Ungerer, 885

P.2d 200, 204-05 (Colo. 1994) (en banc), in which the Colorado Supreme Court

found as a matter of law that a complaint failed to adequately allege the

defendant’s actions were willful and wanton.

In the instant case, Scott’s second amended complaint asserted that

Rundus’s improper actions in the prosecution of the civil commitment proceeding

were willful and wanton. Given the tension between Brace and Moody as to the

propriety of determining the adequacy of allegations of willful and wanton

conduct at the motion to dismiss stage, we are reluctant to determine as a matter

of law whether the facts alleged in Scott’s complaint support his assertion of

- 35 -
willful and wanton conduct. We therefore affirm on an alternative ground. See

Griess v. Colorado , 841 F.2d 1042, 1047 (10th Cir. 1988).

State prosecutors are “absolutely immune for their actions in initiating a

prosecution.” Stepanek v. Delta County, 940 P.2d 364, 368 (Colo. 1997) (en

banc) (citations omitted). In Stepanek, the Colorado Supreme Court held that a

county attorney who filed a petition initiating temporary guardianship proceedings

was absolutely immune from an action for attorney fees alleging those

proceedings were frivolous. See id. at 368-69. As discussed, see supra Section

II.B, Rundus’s filing of the petition for evaluation and her investigation of Scott’s

case are likewise actions “‘intimately associated’ with the adjudicatory process.”

Id. at 368 (quoting Imbler, 424 U.S. at 430). Because Rundus is absolutely

immune from a suit arising out of these actions, Scott’s amendment of his false

imprisonment claim would have been futile. See Grossman, 120 F.3d at 1126.

Thus, although the district court’s reasons for denying his motion to amend were

erroneous, we affirm the judgment.

D

Scott’s final state law claim alleged that Newell and Hern “conspired to

unreasonably intrude upon [his] private affairs . . . by unlawfully procuring and

using his confidential medical records without his consent in a manner which

would be highly offensive to a reasonable person.” (Appellant’s App. at 95.) The

- 36 -
district court dismissed without prejudice this claim for failure to allege

publication, which the court stated was a necessary element of the tort of invasion

of privacy in Colorado.

The Colorado Supreme Court has recognized, generally, a tort claim for

invasion of privacy, see Rugg, 476 P.2d at 755, and has specifically recognized a

“tort claim for invasion of privacy in the nature of unreasonable publicity given to

one’s private life,” Ozer v. Borquez, 940 P.2d 371, 377 (Colo. 1997) (en banc).

As the district court properly noted, one element of such a claim is publication.

See id. Rather than arguing that he properly alleged publication, Scott argues that

he is proceeding under an alternative form of invasion of privacy—intrusion upon

the seclusion of another. This form of invasion of privacy “does not depend upon

any publicity given to the person whose interest is invaded or to his affairs.”

Restatement (Second) of Torts § 652(B) cmt. a.

Even assuming the Colorado Supreme Court would recognize a claim for

invasion of privacy in the nature of unreasonable intrusion upon the seclusion of

another, see Borquez, 940 P.2d at 377 (acknowledging that while other states have

adopted that tort, Colorado had not yet done so); see also Doe v. High- Tech Inst.,

Inc., 972 P.2d 1060, 1065 (Colo. Ct. App. 1998) (recognizing that tort as

formulated in Restatement (Second) of Torts § 652B), we nonetheless find the

allegations in Scott’s complaint insufficient to survive a Rule 12(b)(6) motion to

- 37 -
dismiss. That is because Scott does not allege simply that Hern and Newell

intruded upon his seclusion; he alleges they conspired to do so. “To establish a

civil conspiracy in Colorado, a plaintiff must show: (1) two or more persons; (2)

an object to be accomplished; (3) a meeting of the minds on the object or course

of action; (4) an unlawful overt act; and (5) damages as to the proximate result.”

Nelson v. Elway, 908 P.2d 102, 106 (Colo. 1995) (en banc) (citing Jet Courier

Serv., Inc. v. Mulei, 771 P.2d 486, 502 (Colo. 1989)).

Once again exercising our authority to “affirm a district court decision on

any grounds for which there is a record sufficient to permit conclusions of law,

even grounds not relied upon by the district court ,” Griess, 841 F.2d at 1047

(internal quotations and citation omitted), we conclude that Scott’s complaint fails

to allege any facts tending to show a meeting of the minds between Hern and

Newell for the purpose of obtaining Scott’s confidential medical records without

his consent. Although Scott need not allege an express agreement, he must at the

very least allege “a course of conduct and other circumstantial evidence . . .

[providing] some indicia of agreement in an unlawful means or end.” Schneider

v. Midtown Motor Co., 854 P.2d 1322, 1326 (Colo. 1992) (internal quotations and

citation omitted). Scott does allege that unnamed police officers gave Scott’s

medical records to “Hern and/or his agent defendant Newell.” (Appellant’s App.

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at 92.) 10 This allegation might support an inference that there was a meeting of

the minds between the police officers and Hern or Newell. It does not, however,

support the inference that there was a meeting of the minds between Hern and

Newell. Nor can an agreement be inferred from the mere fact that Hern hired

Newell to investigate Scott. Finally, even if Scott’s complaint could be read to

allege that Newell, acting independently, obtained the medical records without

Scott’s consent and gave them to Hern, who then attached them to his affidavit

knowing their unlawful provenance, “silent knowledge of an unlawful act is

insufficient to establish the requisite agreement.” More v. Johnson, 568 P.2d 437,

440 (Colo. 1977) (en banc). We therefore affirm on alternative grounds the

judgment of the district court dismissing without prejudice the state law invasion

of privacy claim against Hern and Newell. We further note that, because the

dismissal was without prejudice, Scott is free to pursue those claims in state court.

IV

Appellant’s motion to strike appellee’s response briefs is DENIED. The

judgment of the district court is AFFIRMED.

10
This allegation is incorporated by reference into the section of Scott’s
complaint setting forth the invasion of privacy claim .

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