Civil Rights Lawsuit Filed in Denver Federal Court
A lawsuit has been filed in U.S. District Court in Denver alleging that a woman languishing in legal limbo at the Colorado Mental Health Institute at Pueblo (CMHIP) was kidnapped by CMHIP staff and forcibly transported to a Denver area hospital to undergo a surgical procedure against her will.
Gabriele Gundlach, 57, of Boulder, was found incompetent to proceed by Boulder County Court in October 2011 in cases involving minor traffic-related offenses and was sent to CMHIP.
While there, physical conditions requiring that she receive medical treatment were detected, including possible breast cancer. Gundlach, who has never been found incompetent to make decisions concerning her own body, researched treatment options and medical facilities. She arranged to receive treatment at Rose Medical Center and lined up funding to cover the cost.
However, Gundlach was told by CMHIP staff that University Hospital was the only facility to which CMHIP patients can be taken for medical treatment, and that patients are treated there at state expense. These are “bare-faced lies,” according to the complaint filed in the district court by Gundlach’s lawyer, Boulder civil rights attorney Alison Ruttenberg.
Gundlach told CMHIP staff she would not consent to undergo treatment at University Hospital, explaining that for continuity of care reasons, Rose Medical Center would refuse to treat her if she received any part of the treatment for her condition at any other facility. It also would not meet federal guidelines for funding her long-term care. She also explained she had chosen a less invasive treatment option available only from a doctor at Rose.
In direct opposition to Gundlach’s wishes, CMHIP staff allegedly scheduled a surgical procedure for her at University Hospital without her consent or knowledge. When Gundlach was finally informed, she cancelled the appointment. Ruttenberg called CMHIP Assistant Superintendent Beverly Fulton, who allegedly assured the attorney that CMHIP would never transport Gundlach to a medical procedure she did not want.
But that is exactly what happened on the morning of January 3, 2013. According to the lawsuit, CMHIP charge nurse Pamela Jones forced Gundlach to get out of bed and prepare to be transported. Gundlach was driven under guard and against her will to University Hospital for a surgical procedure that had been cancelled and that, if administered, would have destroyed her chance to receive her preferred treatment from her chosen doctor at Rose Medical Center and to receive federal funding for her long-term care.
Because the CMHIP staff had no court order or other authority to transport her against her will, the civil rights complaint asks the U.S. District Court for damages from those responsible for kidnapping her and unlawfully seizing her body (under the color of law) for the purpose of having a surgical procedure performed that she did not want or consent to. Color of law refers to an act done under the appearance of legal authority, when in fact no such right exists. It further asks the court to declare it a violation of her Fourteenth Amendment right to be free from unlawful seizures of her body without due process of law.
Gundlach alleges she suffered enormous emotional distress. She also says she was informed at University Hospital that she would have had to pay for the procedure herself if it had been done there.
According to Ruttenberg’s civil rights complaint, “Ms. Gundlach has a Constitutional right to refuse any medical procedure she does not want, and the bullies at CMHIP have no right to force her to undergo invasive surgical procedures that she refuses, for their financial convenience or otherwise.”
The complaint continues: “She has the capacity and ability to make an informed decision regarding what is going to happen to her body and who is or is not going to have the privilege of cutting into it. Her decisions regarding the course of care for the suspected breast cancer are reasonable, rational and hers alone to make.”
When Gundlach arrived back at CMHIP, her psychiatrist, Myra Kamran, M.D., allegedly threatened Gundlach with having a guardian appointed who would agree to Gundlach being forced to have the medical procedure either at University Hospital or on-site at CMHIP.
(Myra Kamran is not currently listed on the Colorado Department of Regulatory Agencies website as a licensed physician or listed under any other licensed profession. The Citizens Commission on Human Rights of Colorado has asked the Colorado Medical Board to investigate the matter.)
Again in violation of Gundlach’s rights, the medical procedure was scheduled to be performed on-site at CMHIP. According to the lawsuit pending in Boulder County Court, on the morning of Monday, January 7, 2013, the charge nurse allegedly told Gundlach to get ready to be taken to the CMHIP clinic for the procedure. Gundlach was left with the clear impression that she would be put in restraints to receive the procedure if she refused to cooperate.
It was only cancelled by last-minute intervention by a member of the Colorado chapter of the Citizens Commission on Human Rights, who called the Superintendent’s office to draw their attention to the civil rights lawsuit that had been faxed to the Superintendent the previous Friday evening.
The legal complaint alleges that the psychiatrist for Gundlach’s ward at CMHIP, Thomas Ingraham, M.D., admits Gundlach is not gravely ill, is not a danger to herself or others, and that he is not treating her for any illness or condition.
It further alleges Gundlach’s continuing, unlawful confinement at CMHIP is not only a violation of the due process and equal protection clauses of the Fifth and Fourteenth Amendments, but is also life-threatening, and asks the court to order the woman’s immediate release.
Troubles Began with Minor Traffic-related Offenses
Gundlach’s troubles began when she was arrested in Boulder in 2010 and charged with minor traffic-related offenses after allegedly being involved in an auto accident.
After telling Boulder County Court she did not want to be represented by the public defender with two large black eyes and a large lump on her forehead who visited her in jail, she was not provided with another public defender and subsequently represented herself pro se in court proceedings. The lawsuit alleges that she never was properly advised of the charges against her or her right to a new attorney.
In September 2011, the Court ordered a competency evaluation. Based on a CMHIP psychiatrist’s report, the Court found Gundlach incompetent to proceed in her court cases and sent her to CMHIP in October 2011.
Six months later, during which time Gundlach refused psychiatric drugging, another evaluation at CMHIP found that Gundlach was competent to proceed and had a good understanding of her legal situation.
Inexplicably, however, her Boulder County public defender asked for yet another competency evaluation to be done. Gundlach refused this and all subsequent attempts to re-evaluate her because she already had received a finding of competency.
Nevertheless, two subsequent competency reports, one by a psychiatrist and the other by a licensed psychologist at CMHIP, were sent to Boulder County Court, each concluding Gundlach was not competent to proceed. According to the lawsuit, neither doctor ever interviewed or even met with Gundlach, who continued to refuse to be re-evaluated.
In October 2012, a third Boulder County public defender moved to terminate all criminal proceedings against Gundlach. The motion was denied in December in Boulder County Court when the Boulder District Attorney wrongly represented to the Court that Gundlach was no longer refusing treatment, including medications, at CMHIP.
Not only was Gundlach continuing to refuse to be medicated at the time, but CMHIP in November 2012 sought a court order to forcibly drug Gundlach against her will. The lawsuit alleges that the list of drugs Gundlach’s psychiatrist wanted to give her were variously at a dangerously high dosage, meant for mental or physical conditions for which Gundlach had never been diagnosed, or prescribed solely for the purpose of patient control, which is a violation of ethical standards for physicians. The motion for a hearing in Pueblo County Court on the issue of involuntary drugging was eventually withdrawn.
During this time, Gundlach contacted the Colorado chapter of the Citizens Commission on Human Rights, which started an investigation of her complaint, following which three legal pleadings were filed in separate actions by Ruttenberg.
A petition filed in the Colorado Supreme Court for Gundlach’s immediate release was denied, apparently on jurisdictional grounds.
A renewed motion to dismiss charges against Gundlach is currently pending in Boulder County Court. This motion additionally challenges the constitutionality of the state law [C.R.S. 16-8.5-116(1)] that permits a defendant to be incarcerated at the state hospital up to the maximum amount of time the person could be sentenced if convicted, when in actual practice a maximum sentence would not be imposed on each of multiple charges and would not be imposed consecutively. Therefore because Gundlach is being held as mentally ill, CMHIP is interpreting the law to allow them to involuntarily incarcerate her for 33 months, which is from 21 to 30 months longer than for someone who is not held at CMHIP.
Gundlach’s plight has been made worse by the fact that neither she nor her attorney have been given access to legal records relating to her court cases. The civil rights complaint pending in U.S. District Court in Denver cites Debra Cross, Clerk of the Boulder County Combined Courts, for her unconstitutional policies of denying Ruttenberg, as Gundlach’s counsel of record, access to any portion of Gundlach’s prior court file, and asks the court for relief. It further asks the court to declare that Crosser’s refusal to ensure that Gundlach’s legal mail is sent to her at CMHIP instead of her prior home address, then throwing it into the court file when it is returned as undeliverable, violates Gundlach’s constitutional rights to due process and access to the courts.
The complaint pleads that Gundlach’s “continued incarceration at the CMHIP without due process, without a hearing, given the fact that she is competent, is not only unconstitutional, it is life-threatening.”
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