                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 JUL 31 1997
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 FREDERICK J. AMIRAULT,

           Plaintiff-Appellant,

 v.                                                           No. 96-2181
                                                       (D.C. No. CIV-95-422-MV)
 CITY OF ROSWELL, a municipal                                (New Mexico)
 corporation of the State of New Mexico,

           Defendant-Appellee.


                                  ORDER AND JUDGMENT*


Before PORFILIO, Circuit Judge, LUCERO, Circuit Judge, and McWILLIAMS,
Senior Circuit Judge.


       Despondent because of a failed romance, Frederick J. Amirault (“Amirault”), then

age 40, attempted suicide by pouring gasoline on his jacket and igniting himself. His

suicidal efforts failed, but, at the same time, he did suffer some physical and emotional

injury. Thereafter, Amirault filed the present action in the United States District Court for

the District of New Mexico against the City of Roswell (“City”). The action was based

on the alleged misconduct of certain police officers of the City.


       *
         This order and judgment is not binding precedent, except under the doctrines of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
       Although the complaint is not a part of the record on appeal, it would appear that

in his original complaint Amirault asserted three claims for relief against the City, and the

City only: a claim based on the Americans with Disabilities Act (“ADA”), 42 U.S.C. §

12101; a civil rights claim based on 42 U.S.C. § 1983; and a third claim based on New

Mexico tort law. By an amended complaint, Amirault added a fourth claim based on

spoliation of evidence by the City.

       The City apparently filed an answer to the complaint, though such is not in the

record before us. It is agreed that the City also filed a Rule 12(b)6 motion to dismiss the

complaint and a motion for summary judgment under Rule 56, although, again, neither is

in the record before us. Various depositions, or parts thereof, together with affidavits and

the like, were submitted to the district court in support of, and in opposition to, the City’s

motions. The district court treated the City’s motions as a motion for summary judgment,

granting the motion and entering summary judgment in favor of the City. In so doing the

district court dismissed “each and every count . . . of Plaintiff’s cause . . . in its entirety

with prejudice.” The district court’s detailed memorandum and order is not published in

Federal Supplement, but does appear in Westlaw as Amirault v. City of Roswell, No. 95-

CV-422, 1996 WL 391986 (D.N.M. July 11, 1996). Amirault appeals. We affirm.

       The background facts out of which the present controversy arises are not in

dispute. The record before us discloses that on June 9, 1993, the police department of the

City was informed by Amirault’s estranged girlfriend that Amirault might have suicidal


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intentions. Police officers employed by the City immediately contacted Amirault’s

mother, with whom Amirault resided, in an effort to locate him. When the officers went

to Amirault’s home, they learned from his mother that Amirault was not at home. When

asked, Amirault’s mother stated that she did not believe her son was suicidal. This

contact resulted in an all points bulletin placing Amirault on a “welfare” alert as

“threatening suicide.” It would appear that sometime after midnight on June 10, 1993, the

police again contacted Amirault’s place of residence and found that Amirault had not

returned to his home. Again, his mother informed the police that she did not believe that

her son was suicidal, and that he often stayed away all night.

       On June 10, 1993, at about 6:45 a.m., Officer Tracey Laney found Amirault sitting

in his car at a city baseball field. Amirault had a gasoline can in the rear seat of his

vehicle. Officer Laney observed Amirault writing on a legal pad. Meanwhile backup

officers arrived. At that time Amirault told the officers that he had thought of committing

suicide but had changed his mind. The officers called headquarters and were advised of

the fact that Amirault’s estranged girlfriend had called the previous evening and reported

him as suicidal and were further advised of the contacts by the police with Amirault’s

mother on the previous evening.

       After further conversation between the officers and Amirault, the officers,

believing Amirault was not going to attempt suicide, said he was free to go and Amirault




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left. About an hour later Amirault, after driving to his estranged girlfriend’s backyard,

poured gasoline on his jacket and struck a match, lighting himself on fire.

       In dismissing Amirault’s ADA claim, the district court spoke as follows:



                     Title II of the ADA generally prohibits a public entity
              from excluding a qualified individual with a disability from
              services, programs, or activities of the public entity. There is
              no question that the City of Roswell and its police force
              constitute a public entity under the ADA. To establish a
              violation of Title II of the ADA, Plaintiff must prove the
              following:
                     (1) that he is a qualified individual with a
                     disability;
                     (2) that he was either excluded from participation in or
              denied the benefits of some public entity’s services,
              programs, or activities, or was otherwise discriminated
              against by the public entity; and
                     (3) that such exclusion, denial of benefits, or
                     discrimination was by reason of the plaintiff’s
                     disability. (footnotes omitted)

Amirault, 1996 WL 391986, at *4.

       The district court then went on to hold that, assuming Amirault did suffer a mental

disability within the meaning of the ADA, he had nonetheless not met the requirements

set forth in (2) and (3) of the above quotation. Specifically, the district court stated that

Amirault had not made a sufficient showing that any municipal service or benefit was

denied him solely because of any disability. We are in accord with the district court’s

reasoning on Amirault’s ADA claim. The record simply does not suggest that the police

somehow had a duty to take Amirault into custody and transport him to the City’s health

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clinic for evaluation and that by failing to do so Amirault was denied access to any

“service, benefit, or program” of the City. In this regard, the district court then went on to

hold that most certainly there was no showing that any possible denial of benefits or

services was because of Amirault’s disability. We agree.

       The district court dismissed Amirault’s civil rights claim, 42 U.S.C. § 1983, and,

on appeal, Amirault does not challenge that dismissal order.

       At oral argument, counsel for Amirault indicated that he was primarily concerned

with that part of the district court’s order dismissing Amirault’s claim based on state tort

law, which he said was the “gravamen” of Amirault’s complaint, and not the dismissal of

his ADA claim. In any event, the district court held that the City, under New Mexico law,

was immune from suit.

       The starting point on Amirault’s state tort claim is that the state is immune from

suit unless the state clearly waives its immunity. N.M. Stat. Ann. § 41-4-4 (1996). N.M.

Stat. Ann. § 41-4-12 (1977), relied on by Amirault, provides as follows:

              The immunity granted pursuant to Subsection A of Section
              41-4-4 NMSA 1978 does not apply to liability for personal
              injury, bodily injury, wrongful death or property damage
              resulting from assault, battery, false imprisonment, false
              arrest, malicious prosecution, abuse of process, libel, slander,
              defamation of character, violation of property rights or
              deprivation of any rights, privileges or immunities secured by
              the constitution and the laws of the United States or New
              Mexico when caused by law enforcement officers while
              acting within the scope of their duties.



                                             -5-
       In this regard, the district court held that N.M. Stat. § 41-4-12 was inapplicable

because the City “cannot be deemed to have waived immunity . . . for an alleged failure to

arrest and/or involuntarily commit Plaintiff.” Amirault, 1996 WL 391986, at *13. In this

connection, the district court stated that “it is clear that immunity is not waived under

New Mexico’s Tort Claims Act for self-inflicted injury, which is the linchpin of this

case.” Id. We agree. It is hard to see how Amirault’s self-inflicted injuries were

“caused” by the City. Also, the district court, citing New Mexico cases, rejected the

further suggestion by Amirault that the police officers were “health care providers” and,

as such, liable under N.M. Stat. Ann. § 41-4-10 (1978). We agree with the district court’s

reasoning and we are not inclined to disturb its understanding of local New Mexico law.

       Since the City is immune from suit for the self-inflicted injuries sustained by

Amirault, it follows that it is also immune from suit for spoliation of evidence.1

       Judgment affirmed.

                                           ENTERED FOR THE COURT

                                           Robert H. McWilliams
                                           Senior Circuit Judge




       1
        This claim was based on the fact that the City was unable to produce tapes of
certain communications between its police officers and headquarters regarding the case.

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