Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.robert H. Ketchum, Plaintiff-appellant, v. Dr. Marshal, Defendant-appellee, 930 F.2d 34 (10th Cir. 1991)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

The district court, in accordance with Fed. R. Civ. P. 12(b) (6), dismissed Mr. Ketchum's 42 U.S.C. § 1983 action upon a finding that the complaint failed to state a claim. We have examined the record and conclude the court erred in summarily dismissing one of plaintiff's claims.

The complaint asserted that while Mr. Ketchum was a patient at the Colorado State Hospital, defendant Dr. Marshal forced him to take an antipsychotic drug. Even though Mr. Ketchum had voluntarily committed himself at the time, the Supreme Court has stated psychiatric patients have a "significant liberty interest in avoiding the unwarranted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment." Washington v. Harper, 110 S. Ct. 1028, 1036 (1990). See also Bee v. Greaves, 744 F.2d 1387, 1392-93 (10th Cir. 1984), cert. denied, 469 U.S. 1214 (1985); People v. Medina, 705 P.2d 961, 967 (Colo.1985).

While these cases deal with involuntarily committed patients, the broad sweep of Washington suggests Mr. Ketchum's complaint does state a claim on its face. We offer no opinion, at this time, whether a voluntarily committed mental patient is entitled to the same due process considerations as an involuntary patient. We do conclude, however, the complaint cannot be dismissed without consideration of the issue in the district court.

We have examined the remaining issues and conclude the trial court correctly determined they raise no justiciable claim. The court properly concluded Mr. Ketchum pled no facts to support his claim that the defendant violated plaintiff's First Amendment rights or participated in an unlawful denial of plaintiff's Social Security benefits.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED FOR FURTHER PROCEEDINGS. The mandate shall issue forthwith.