F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              APR 14 2003
                                  TENTH CIRCUIT
                             __________________________                  PATRICK FISHER
                                                                                  Clerk

 ESPERANZA VILLALPANDO, on behalf of
 deceased Jesus Villalpando, and as the personal
 representative of the estate of Jesus Villalpando,

           Plaintiff-Appellant,                                 No. 01-1450
                                                                    (Colo.)
 v.                                                         (D.Ct. No. 00-B-1737)

 DENVER HEALTH AND HOSPITAL
 AUTHORITY,

           Defendant-Appellee.

 and

 CITY OF DENVER; SIMON SHAKUR, Dr.,
 individually and as agent for the City of Denver
 & Denver Health and Hospital Authority; PAUL
 SURI, Dr., individually and as agent for the City
 of Denver and Denver Health & Hospital
 Authority; KATHY THIGPEN, Dr., individually
 and as agent for the City of Denver and Denver
 Health & Hospital Authority; CARROLL, Dr.,
 individually and as agent for the City of Denver
 and Denver Health & Hospital Authority, and
 unnamed defendants yet to be determined,

           Defendants.
                           ____________________________

                              ORDER AND JUDGMENT *

       *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Peter J. Schaffer of Smith & Schaffer, P.C., Denver, Colorado, for Plaintiff-
Appellant.

Elizabeth C. Moran of Pryor Johnson Montoya Carney & Karr, P.C., Englewood,
Colorado, for Defendant-Appellee.


Before HENRY, Circuit Judge, BRORBY, Senior Circuit Judge, and LUCERO,
Circuit Judge.


      This is an appeal from the district court’s dismissal of Esperanza

Villalpando’s claims against Denver Health and Hospital Authority (“Hospital

Authority”). Esperanza Villalpando, on behalf of her deceased husband, Jesus

Villalpando, and as personal representative of Mr. Villalpando’s estate, brought

two 42 U.S.C. § 1983 claims in United States District Court for the District of

Colorado alleging the Hospital Authority violated Mr. Villalpando’s constitutional

rights. Mrs. Villalpando also brought various state law claims.



      All Mrs. Villalpando’s claims are based on her belief Mr. Villalpando

would not have died of a heart attack if he had received proper treatment from the

Hospital Authority. According to the complaint, Mr. Villalpando visited the

hospital and its doctors on numerous occasions, but the procedures and

medication they prescribed did not improve his heart condition. Mr. Villalpando

complained he felt worse after treatment. In spite of this, Denver Health and

Hospital Authority doctors did not recommend bypass surgery and refused to

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certify he was disabled for Social Security purposes. Ultimately, Mr. Villalpando

suffered a fatal heart attack, which the complaint asserts would not have occurred

if the Hospital Authority and its employees had provided adequate treatment.

Mrs. Villalpando originally brought suit against a number of defendants,

including the City of Denver and various health care workers. This appeal,

however, concerns only the Hospital Authority.



      In response to Mrs. Villalpando’s complaint, the Hospital Authority filed a

motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6). It argued the § 1983 claims should be dismissed because

Mrs. Villalpando’s allegations of negligence and medical malpractice did not

amount to a federal constitutional violation. In addition, the Hospital Authority

asked the court to dismiss the state law claims because Mrs. Villalpando did not

comply with Colorado Revised Statute § 24-10-109(3) requiring her to provide

written notice of Mr. Villalpando’s injuries to the Hospital Authority’s governing

board or attorney within 180 days of the injury.



      The district court purportedly granted summary judgment on Mrs.

Villalpando’s 42 U.S.C. § 1983 claims and her state law claims. The court held

the first § 1983 claim failed because it was improperly based on allegations the


                                         -3-
Hospital Authority was responsible for the actions of its employees under a

respondeat superior theory. The court dismissed the second § 1983 claim after

concluding Mrs. Villalpando’s allegations amounted only to a medical malpractice

tort claim. The district court also dismissed Mrs. Villalpando’s state law claims

because “the [Colorado] statutory notice requirements were not met.”



      In reviewing the Hospital Authority’s motion to dismiss, the district court

noted both the Hospital Authority and Mrs. Villalpando appended documents to

their legal memoranda. The parties appended the documents to show whether

Mrs. Villalpando had met Colorado’s notice requirements. Consequently, the

district court converted the Hospital Authority’s motion to dismiss to a motion for

summary judgment.



      After the district court summarily dismissed her motion to reconsider, Mrs.

Villalpando filed this appeal. She requests we reverse the district courts ruling

based on three perceived errors. First, she asserts “the District Court erred in

determining that [she] did not allege a constitutional violation in support of her

42 U.S.C. § 1983 Claim for Relief.” Second, Mrs. Villalpando argues “the

District Court erred in determining Mrs. Villalpando did not strictly comply with

[Colorado’s statutory] notice requirements.” Third, she believes “the District


                                         -4-
Court erred in converting [the Hospital Authority’s] motion to dismiss into a

motion for summary judgment without giving [Mrs. Villalpando] notice of its

intention to do so.”



                                  DISCUSSION

      We exercise jurisdiction under 28 U.S.C. § 1291 and affirm in part and

reverse in part. We will first address Mrs. Villalpando’s 42 U.S.C. § 1983 claims

and then address her state law claims.



I.    42 U.S.C. § 1983 Claims

      Mrs. Villalpando argues “the District Court erred in determining [she]

failed to allege a constitutional violation in support of her 42 U.S.C. § 1983 claim

against [the Hospital Authority].” Mrs. Villalpando’s complaint contains two

§ 1983 claims for relief. The district court dismissed both claims. While Mrs.

Villalpando repeatedly refers only to her “§ 1983 claim” or “cause of action,” she

apparently disagrees with the district court’s ruling on both of the § 1983 claims.



      Before we can consider the substance of the §1983 claims, we must first

consider an argument Mrs. Villalpando raises concerning the appropriate standard

of review. She asserts “it is unclear from the District Court’s Order what


                                         -5-
standard the court applied to [these claims].” She believes we should apply “the

standard for determining the merits of a 12(b)(6) motion” because the district

court relied solely on the pleadings in ruling on the § 1983 claims. The Hospital

Authority agrees the district court did not consider any material outside the

complaint in ruling on the § 1983 motions.



      After reviewing the district court order, we conclude the standard of review

for a motion to dismiss under Federal Rule of Civil Procedure 12(b)6 applies. In

ruling on each of the §1983 claims, the court specifically stated it was granting

“summary judgment.” “However, an opinion’s plain language does not always

mirror its plain logic.” Maldonado v. Dominguez, 

, 6 (1st Cir. 1998).

If we “look[] past the terminology employed by the court” in this case, we

discover “an opinion illustrating the legal insufficiency of the pleadings for each”

§ 1983 claim. 

therefore, consider whether the complaint has

allegations sufficient to support the § 1983 claims.



      The legal sufficiency of a complaint is a question of law we review de

novo. Wark v. United States, 

, 1190 (10th Cir. 2001) (citation

omitted). Our “‘function on a Rule 12(b)(6) motion is not to weigh potential

evidence that the parties might present at trial, but to assess whether the plaintiff's


                                          -6-
complaint alone is legally sufficient to state a claim for which relief may be

granted.’” Sutton v. Utah State Sch. for the Deaf & Blind, 

, 1236

(10th Cir. 1999) (quoting Miller v. Glanz, 

, 1565 (10th Cir. 1991)).

Under this standard, we conclude the district court properly dismissed both 42

U.S.C. § 1983 claims.



      The first § 1983 claim alleged Mr. Villalpando’s “wrongful death occurred

under the care and supervision of” several doctors acting “as agents for ... the

Hospital Authority.” The complaint states the doctors “fail[ed] to provide

adequate medical attention to [Mr.] Villalpando” and consequently deprived him

of his “right to life,” “right to freedom for physical abuse and death,” and “right

to continuation of the family relationship.” The district court rejected this claim

concluding the Hospital Authority could not be liable for its employees’ acts

under a respondeat superior theory. See Monell v. Dep’t of Soc. Servs., 

, 694 (1978) (holding “a local government may not be sued under § 1983 for

an injury inflicted solely by its employees or agents”). We wholeheartedly agree

with the district court’s analysis on this point.



      On appeal, Mrs. Villalpando argues the district court “misread” the

complaint. She now claims she did not raise a respondeat superior theory.


                                           -7-
Instead, she asserts the Hospital Authority “may be held liable for actions of its

employees conducted in furtherance of [the Hospital Authority’s] customs,

policies or uses” pursuant to Monell. Rather than relying on allegations contained

in her first § 1983 claim, she directs us to allegations in her second § 1983 claim

to show she believes the doctors’ actions were the “consequence of the execution

of the official policies, customs, or usage of [the Hospital Authority].” Mrs.

Villalpando’s belated attempt to salvage her first § 1983 claim by using her

appellate brief to direct us to another claim in her complaint fails. The first claim

in her complaint did not incorporate the portion of her complaint discussing the

existence of an official policy or custom. Thus, Mrs. Villalpando is not entitled

to relief on her first claim. Even were we to allow Mrs. Villalpando’s attempt on

appeal to rewrite her complaint, we would still dismiss this claim for the same

reasons we dismiss her second § 1983 claim.



      Mrs. Villalpando’s second § 1983 claim alleges the Hospital Authority’s

“customs, policies, and procedures regarding the administration of proper medical

attention” caused the death of Mr. Villalpando and “represent a deliberate

indifference to the constitutional rights and liberties of persons utilizing the

facilities of [the hospital].” Specifically, Mrs. Villalpando argues the Hospital

Authority had “a policy of providing inadequate medical attention to all of its”


                                          -8-
patients and condoning or encouraging discrimination in treatment based on

economic status.Again, Mrs. Villalpando asserts these actions deprived Mr.

Villalpando of his “right to life,” “right to freedom from physical abuse and

death,” and “right to continuation of the family relationship.”



      The district court dismissed this claim holding “Mrs. Villalpando’s claim is

negligence, and mere negligence is not a tort of constitutional dimension.” The

court noted, while ordinary negligence is generally not actionable under § 1983,

deliberate indifference to a prisoner’s medical needs is a Constitutional violation

redressable under § 1983. Assuming this same deliberate indifference standard

applied to ordinary citizens, the district court held Mrs. Villalpando’s complaint

did not allege deliberate indifference because Mrs. Villalpando acknowledged her

husband had received some treatment. Therefore, the district court concluded

Mrs. Villalpando’s claim was for inadequate medical treatment rather than for a

constitutional violation actionable under § 1983.



      To state a claim under 42 U.S.C. § 1983, Mrs. Villalpando must allege the

Hospital Authority, acting under color of law, deprived Mr. Villalpando of

“rights, privileges, or immunities secured by the Constitution” or other federal

law. 42 U.S.C. § 1983. An entity like the Hospital Authority may be responsible


                                         -9-
for the unconstitutional act of an employee if “the unconstitutional actions of an

employee were representative of an official policy or custom of the municipal

institution.” Camfield v. City of Okla. City, 

, 1229 (10th Cir. 2001)

(quotation marks and citation omitted). The Hospital Authority may not be held

liable for its policies or customs under § 1983 unless there is an underlying

constitutional violation by its employees or agents. See Thompson v. City of

Lawrence, 

, 1517 (10th Cir. 1995).



      Here, Mrs. Villalpando asserts the Hospital Authority violated Mr.

Villalpando’s constitutional rights, including his right to life, by “failing to

provide adequate medical attention.” She argues there is “a substantive due

process right to adequate medical care, and a complementary cause of action

under 42 U.S.C. § 1983 for those deprived of this right.” She believes the

Hospital Authority deprived Mr. Villalpando of his right to adequate medical care

by its “total disregard of [his] serious medical condition.” Our own research,

however, convinces us there is no categorical constitutional right to adequate

medical care.



      “The Due Process Clause does protect an interest in life. It does not

follow, however, that the state necessarily has a constitutional duty to take


                                          -10-
affirmative steps to preserve life.” Johnson ex. rel. Johnson v. Thompson, 

, 1495 (10th Cir. 1992) (citations omitted). See also DeShaney v.

Winnebago County Dep’t of Soc. Servs., 

, 195 (1989) (holding the

Due Process “Clause is phrased as a limitation on the State’s power to act, not as

a guarantee of certain minimum levels of safety and security.... [I]ts language

cannot fairly be extended to impose an affirmative obligation on the State to

ensure that [constitutional] interests do not come to harm through other means.”).

The Tenth Circuit recognizes a constitutional right to adequate medical treatment

only in “narrow circumstances” – “when the State takes a person into its custody

and holds him there against his will.” 

. We have

specifically refused to expand this right to the circumstance when an unconfined

plaintiff voluntarily availed himself of medical services. 

born

with spina bifida do not have a substantive due process right to adequate medical

treatment). In cases where the unconfined plaintiff voluntarily seeks medical

treatment, “‘negligent or even wilfully indifferent or reckless [conduct does not]

take on the added character of violations of the federal Constitution.’” 

v. Dorchester Counseling Ctr., Inc., 

, 993 (1st

Cir. 1992)). 1


       1
         Mrs. Villalpando also directs our attention to an unpublished Sixth Circuit
opinion, Drew v. University of Tennessee Regional Medical Center Hospital, No. 99-
5070, 

(6th Cir. May 1, 2000). In Drew, the Sixth Circuit suggests a

                                          -11-
       Mrs. Villalpando’s complaint indicates her husband voluntarily sought

medical care from the doctors at the Hospital Authority. Mr. Villalpando was, at

all times, free to discontinue his treatment at the Hospital Authority and seek

treatment elsewhere. Therefore, the state had no constitutional duty to take

affirmative steps to protect his life. See 

. Mr.

Villalpando had no constitutional right to adequate medical care. It does not

matter whether the Hospital Authority acted with negligence, gross negligence, or

deliberate indifference, the Hospital Authority and its doctors did not violate Mr.

Villalpando’s constitutional rights. See 

Because there was no

violation of constitutional rights, the § 1983 claims fail. See 

. We accordingly affirm the district court’s dismissal of these claims.



II.    State Law Claims 2

       Since Mrs. Villalpando’s § 1983 claims were properly dismissed, her state



medical malpractice claim brought by an ordinary hospital patient might amount to a
constitutional due process violation if the conduct is so egregious it shocks the
conscience. 

2. The opinion contains little analysis on the issue and would be of
little precedential value even in the Sixth Circuit. See 6th Cir. R. 28(g). Furthermore, we
are bound to follow our contrary holding in 

-096. See In re
Smith, 

, 724 (10th Cir. 1993).
       2
         Mrs. Villalpando’s complaint contains five state law claims: (1) wrongful death;
(2) negligence; (3) negligent hiring, training and retention; (4) negligent infliction of
emotional distress; and (5) breach of contract/detrimental reliance.


                                           -12-
law claims are no longer supplemental to any federal question claim. We

conclude the district court should have declined to exercise supplemental

jurisdiction over the state law claims.



      We review a district court’s decision to exercise supplemental jurisdiction

over state law claims for abuse of discretion. See Gold v. Local 7 United Food &

Commercial Workers Union, 

, 1310 (10th Cir. 1998). By statute,

federal district courts have supplemental jurisdiction over state law claims that

are part of the “same case or controversy” as federal claims. 28 U.S.C. § 1367(a).

“[W]hen a district court dismisses the federal claims, leaving only supplemented

state claims, the most common response has been to dismiss the state claim or

claims without prejudice.” United States v. Botefuhr, 

, 1273 (10th

Cir. 2002) (quotation marks, alterations, and citation omitted). See also 28

U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental

jurisdiction over a claim ... if ... the district court has dismissed all claims over

which it has original jurisdiction.”). When “the parties have already expended a

great deal of time and energy on the state law claims,” it is appropriate for the

“district court to retain supplemented state claims after dismissing all federal

questions.” 

. If, however, the parties have not shown

they have spent a great deal of time on the state law claims, the “district court


                                           -13-
should normally dismiss supplemental state law claims after all federal claims are

dismissed ... before trial.” 

be cautious when exercising

supplemental jurisdiction over state law claims because “‘[n]otions of comity and

federalism demand that a state court try its own lawsuits, absent compelling

reasons to the contrary.’” Ball v. Renner, 

, 669 (10th Cir. 1995)

(quoting Thatcher Enters. v. Cache County Corp., 

, 1478 (10th Cir.

1990)).



      In this case, there was no compelling reason for the district court to retain

jurisdiction over the state law claims after dismissing the § 1983 claims. At the

time the district court dismissed the state law claims, neither the parties nor the

district court had expended a great deal of time or energy. The district court

dismissed the state law claims on summary judgment after considering a motion

originally styled as one to dismiss for failure to state a claim; there was little, if

any, discovery.



      Furthermore, there is a compelling reason to let the Colorado state courts

resolve these claims. The district court’s ruling was based on its determination

Mrs. Villalpando had not given the Hospital Authority’s board or attorney notice

of her claims as required under Colorado statute. See Colo. Rev. Stat. § 24-10-


                                           -14-
109(3). The parties disagree as to who bears the burden of proof on this issue.

Colorado courts originally required the plaintiff to prove this notice requirement

was satisfied under the theory that it was jurisdictional in nature. See, e.g.,

Bauman v. Colo. Dep’t of Health, 

, 501 (Colo. Ct. App. 1993); Aetna

Cas. & Sur. Co. v. Denver Sch. Dist. No. 1, 

, 207 (Colo. Ct. App.

1989). Although the Colorado Supreme Court has since held the notice

requirement is not jurisdictional, see Brock v. Nyland, 

, 1044 (Colo.

1998) (en banc); Regional Transp. Dist. v. Lopez, 

, 1193-94 (Colo.

1996), that court has not directly addressed which party has the burden to prove

compliance or noncompliance with this notice requirement, see 

n.1, 1044. “Where a state law ... is thus in a process of current evolution, it

is particularly appropriate for the federal courts to leave the continuing

development of ... that [law] to the state courts.” 

.



      Accordingly, we conclude the district court abused its discretion in

retaining supplemental jurisdiction over the state law claims. We express no

opinion on whether Mrs. Villalpando met the statutory notice requirements for her

state law claims. We simply reverse the summary judgment entered by the district

court on the state law claims, and we remand the claims with instructions to

dismiss them without prejudice. Mrs. Villalpando will remain free to pursue her


                                         -15-
state law claims in Colorado state courts. 3



                                    CONCLUSION

       We AFFIRM the district court’s dismissal of Mrs. Villalpando’s 42 U.S.C.

§ 1983 claims. We REVERSE the grant of summary judgment on her state law

claims, and we REMAND the state law claims to the district court with

instructions to dismiss them without prejudice. Appellant’s motion for leave to

file a supplemental brief is granted.



                                          Entered by the Court:

                                          WADE BRORBY
                                          United States Circuit Judge




       3
          In addition to the arguments already addressed, Mrs. Villalpando also argues
“the district court erred by converting [the Hospital Authority’s] motion to dismiss into a
motion for summary judgment with out notifying Mrs. Villalpando of its intention to do
so.” Mrs. Villalpando claims if the district court had given proper notice she would have
conducted limited discovery on her state law claims. Because we reverse the district
court’s grant of summary judgment on other grounds, we need not address this argument.


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