Brown v. Summit County Sheriff Department et al

Filing 18

ORDER TO DISMISS IN PART AND TO DRAW CASE. Defendant Summit County Sheriff Department dismissed as party to this action. Case shall be drawn to a presiding judge and, if appropriate, to a magistrate judge, pursuant to D.C.COLO.LCivR 40.1(a) by Judge Lewis T. Babcock on 2/19/2014. (agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00032-BNB
D. BROWN,
Plaintiff,
v.
SUMMIT COUNTY SHERIFFS DEPARTMENT,
JEFF WILSON, Deputy,
JARED DENNIS, Detective,
CORNELL, Deputy,
JOHN MINOR, Sheriff, and
OTHER DEPUTIES, Unknown names,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE

Plaintiff, D Brown, resides in Hollywood, California. She initiated this action on
January 6, 2014, by filing a Complaint asserting a deprivation of her constitutional rights
pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983. She filed an Amended Complaint
on January 21, 2014. (ECF No. 11).
Ms. Brown has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to dismiss sua sponte
an action at any time if the action is frivolous, malicious, or seeks monetary relief
against a defendant who is immune from such relief. A legally frivolous claim is one in
which the plaintiff asserts the violation of a legal interest that clearly does not exist or
asserts facts that do not support an arguable claim. Neitzke v. Williams, 490 U.S. 319,
324 (1989).

The Court must construe the Amended Complaint liberally because Ms. Brown is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not
act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. The Court has
reviewed the Amended Complaint and has determined that it is deficient. For the
reasons discussed below, the Amended Complaint will be dismissed, in part, and the
remainder drawn to a presiding judge, and, if appropriate, a magistrate judge.
Ms. Brown claims in the Amended Complaint that the Defendants, the Summit
County Sheriff’s Department and its officers, have violated her constitutional rights
pursuant to 42 U.S.C. § 1983. According to Plaintiff, her problems began when her
husband, Neil Brown (N.B.), a police officer in Colorado and a citizen of Australia,
conspired with the Defendants, his “friends and coworkers,” to manipulate the judicial
system and violate a California court-imposed restraining order against N.B. that
prevented him from contacting Plaintiff and her children. (ECF No. 11, at 3). Ms. Brown
alleges that N.B. kidnapped her children from a summer camp in California and that she
has not seen the children since. Plaintiff believes that N.B. is hiding the children in
Australia. She alleges that the Defendants, including the Sheriff, have refused to
enforce both the restraining order against N.B. and the custody order she obtained from
the California courts because N.B. is their “friend and fellow police officer” and he
“should have the children.” (Id. at 4, 7, 8). Plaintiff further alleges that a sheriff’s deputy
wrote a false report stating that N.B.’s children were taken from Summit County, even
though the children had never lived in Summit County. According to Ms. Brown:
[N.B.] is attempting to hide behind the VOID second in time vexatious,
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harassing, parallel, Colorado case conflicting orders from his friend Eagle
County Judge Moorhead, in knowing violation of UCCJEA, PKPA, VAWA
when without jurisdiction to exercise jurisdiction on June 28, 2012 in an
order that even stated they KNOW there is a 1st filed California proceeding
with custody orders but violate the mandatory commands of the UCCJEA,
PKPA and grant jurisdiction and home state to Colorado when that is NOT
proper procedure or due process.
(Id. at 5).
Plaintiff further asserts that Colorado “did NOT make orders in conformity with
the PKPA and therefore is not to be granted full faith and credit . . . . California orders
WERE MADE IN CONFORMITY WITH THE PKPA therefore MUST be granted full faith
and credit of the April 24, 2012 orders granting full custody to Mother.” (Id. at 6). Ms.
Brown also alleges that the Defendants arrested her on false felony stalking charges
that were dismissed by the deputy district attorney approximately five months later. She
further states that the Defendants refused to accept her complaint against N.B. and one
unidentified deputy threatened to kill her if she returned to Summit County.
Plaintiff asserts the following claims: (1) that the Defendants have violated 18
U.S.C. § 3182 (the Extradition Act); 28 U.S.C. § 1738 (the full faith and credit statute);
18 U.S.C. § 2265 (full faith and credit given to protection orders); and, 18 U.S.C.
§ 3771(a)(1) (crime victims’ rights) by not granting full faith and credit to orders issued
by the California courts; (2) that Defendants have violated the Parental Kidnapping
Prevention Act of 1980 (PKPA), 28 U.S.C. § 1738A; and, (3) that Defendants have
violated Plaintiff’s Fourteenth Amendment procedural and substantive due process
rights by refusing to afford full faith and credit to orders and warrants issued by the
California state courts. Plaintiff also asserts state law claims of false arrest, false
imprisonment, and abuse of process. She seeks injunctive relief and damages.
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A. Federal Claims
1. Violation of 18 U.S.C. § 3182 (the Extradition Act)
As an initial matter, Ms. Brown does not state an arguable claim for relief under
§ 1983 based on her allegations that the Defendants have violated the Extradition Act of
1793, codified at 18 U.S.C. § 3182, by failing to enforce orders issued by the California
courts. Although the Circuit Court of Appeals for the Tenth Circuit has recognized that a
government official’s failure to comply with extradition laws is actionable under section
1983, see Ortega v. City of Kansas City, Kan., 875 F.2d 1497, 1500 (10th Cir. 1989)
(collecting cases) and Scull v. New Mexico, 236 F.3d 588, 595 n.1 (10th Cir. 2000)
(collecting cases), the federal cause of action belongs to the alleged fugitive. See id.
The Court is not aware of any case holding that a third person may enforce the
provisions of the Extradition Act under § 1983. As such, Plaintiff may not maintain a §
1983 claim based on the Defendants’ alleged violation of 18 U.S.C.
§ 3182.
2. Violation of the PKPA
Ms. Brown cannot pursue a cause of action under § 1983 based on the
Defendants’ alleged violation of the PKPA, 28 U.S.C. § 1738A. The PKPA “prescribes a
rule by which courts, Federal and State, are to be guided when a question arises in the
progress of a pending suit as to the faith and credit to be given by the court to the
. . . judicial proceedings of [another] State.” Thompson v. Thompson, 484 U.S. 174,
182-83 (1988) (citation omitted). The PKPA mandates that when a state enters an
initial custody determination, a second state must enforce that determination provided

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that the state made the determination in compliance with the PKPA. Id.; 28 U.S.C.
§ 1738A(a). Conversely, if a state court's custody determination fails to conform to the
PKPA's requirements, then the custody determination is not entitled to full faith and
credit enforcement in another state. See id. at 176-77; see also § 1738A (conditioning
interstate enforcement of a custody determination on the determination having been
“made consistently with the provisions of [the PKPA] by a court of another State.”).
Colorado statutes and case law incorporate the requirements of the PKPA. See, e.g., 28
U.S.C. § 1738A(c)-(d), (h) (rules for initial jurisdiction, continuing jurisdiction, and
jurisdiction to modify); COLO. REV. STAT. (C.R.S.) §§ 14-13-201 to -203, C.R.S. (2010)
(same); People ex rel. A.J.C., 88 P.3d 599, 611 (Colo. 2004) (recognizing that the
PKPA controls whether Colorado must enforce another state's child custody
determination).
The PKPA does not create an implied cause of action in federal court to
determine which of two conflicting state custody decrees is valid. See Thompson, 484
U.S. at 187; see also Roman-Nose v. New Mexico Dep’t of Human Services, 967 F.2d
435, 437 (10th Cir. 1992). Instead, such conflicts are resolved in the state courts
pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 9
U.L.A. §§ 1-28 (1979), which prescribes uniform standards for deciding which State
could make a custody determination and obligated enacting States to enforce the
determination made by the State with proper jurisdiction. Id. at 181. The Colorado
General Assembly has adopted the provisions of and comments to the UCCJEA. See
§ 14-13-101, C.R.S.; see also In re L.S., 257 P.3d 201 (Colo. 2011) (applying UCCJEA
and holding that Colorado state courts were not required to recognize or enforce a
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Nebraska child custody order awarding custody of child to father).
Accordingly, Plaintiff does not have a remedy in this Court to enforce the
California child custody order, under federal or state law. The “[f]ederal courts have
long disclaimed responsibility for domestic relations cases, leaving the power to issue
and enforce ‘divorce, alimony, and child custody decrees’ to the states.” Wyttenbach v.
Parrish, No. 12-4074, 496 F. App’x 796, 797 (10th Cir. Sept. 7, 2012) (unpublished)
(quoting Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992)). See also Moore v. Sims,
442 U.S. 415, 435 (1979) ( “Family relations are a traditional area of state concern.”).
Ms. Brown makes a vague allegation that the Eagle County District Court refused to
honor her California custody order in a 2012 proceeding. If Plaintiff is dissatisfied with
the state district court’s order, her remedy, if any, is in the Colorado appellate courts,
and, ultimately, in the United States Supreme Court. See Thompson, 484 U.S. at 18587.
3.

Violation of other federal statutes

Plaintiff claims that Defendants have refused to enforce and give full faith and
credit to the restraining order and accompanying orders issued by the California state
court, as required by 28 U.S.C. § 1738 (full faith and credit statute), 18 U.S.C. § 2265
(full faith and credit given to protection orders) and 18 U.S.C. § 3771(a)(1) (crime
victims’ rights).
Ms. Brown cannot pursue a § 1983 claim against Defendants based on their
alleged violation of 18 U.S.C. § 3771(a)(1). The statute applies only to victims of federal
crimes, see 18 U.S.C. § 3771(e), and Plaintiff does not allege that N.B. was convicted of
a federal crime. In addition, § 3771 provides that “[n]othing in this chapter shall be
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construed to authorize a cause of action for damages . . . .” 18 U.S.C.
§ 3771(d)(6); see also Walsh v. Krantz, No. 07-CV-0616, 2008 WL 2329130, at *8 n. 32
(M.D.Pa. 2008) (“This subsection [§ 3771(d)(6)] demonstrates that this statute does not
create “‘an individually enforceable right’”) (citing City of Rancho Palos Verdes, Cal. v.
Abrams, 544 U.S. 113, 120 (2005)).
Plaintiff’s claims under 28 U.S.C. § 17381 and 18 U.S.C. § 22652 against the
individual Defendants merit further review and are not subject to summary dismissal.
Although the Supreme Court in Thompson determined that the PKPA does not create a
private right of action enforceable in the federal district courts, the Tenth Circuit in
Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), held that an Oklahoma statute
that categorically rejected a class of out-of-state adoption decrees violated the Full Faith
and Credit Clause of the United States Constitution, U.S. Const. Art. 4, § 1. Id. at 1140,
1156. The Tenth Circuit agreed with the appellants’ argument that “[respondents] are

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The full faith and credit statute, 28 U.S.C. § 1738, provides:

Such Acts, records and judicial proceedings or copies thereof [of any State, Territory, or
Possession of the United States], so authenticated, shall have the same full faith and
credit in every court within the United States and its Territories and Possessions as they
have by law or usage in the courts of such State, Territory or Possession from which they
are taken.
28 U.S.C. § 1738.
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18 U.S.C. § 2265 (full faith and credit for protection orders), provides:

(a) Full faith and credit.--Any protection order issued that is consistent with subsection (b)
of this section by the court of one State, Indian tribe, or territory (the issuing State, Indian
tribe, or territory) shall be accorded full faith and credit by the court of another State,
Indian tribe, or territory (the enforcing State, Indian tribe, or territory) and enforced by the
court and law enforcement personnel of the other State, Indian tribal government or
Territory as if it were the order of the enforcing State or tribe.
18 U.S.C. § 2265(a).

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obligated under Oklahoma law to issue a supplemental birth certificate and that they
have failed to fulfill the constitutionally-imposed duty on states to recognize another
state's judgment. Id. at 1155. The Tenth Circuit thus affirmed the district court’s order
directing the respondents, executive officials for the State of Oklahoma and the
Oklahoma State Department of Health, to issue a new birth certificate to the adopted
child of two of the plaintiffs. Id. at 1142, 1156. Although Finstuen is distinguishable from
the present action in that the respondents in Finstuen were state officials, the Court is
reluctant to dismiss summarily Ms. Brown’s claims alleging that Defendants failed to
comply with 28 U.S.C. § 1738 and 18 U.S.C. § 2265 (which contains similar full faith
and credit language directed at the state courts and “law enforcement personnel”).
However, Plaintiff cannot maintain a federal cause of action against the Summit
County Sheriff’s Office. The Sheriff’s Office is not an entity separate Summit County,
and, therefore is not a person subject to suit under § 1983. See Stump v. Gates, 777 F.
Supp. 808, 814-16 (D. Colo. 1991), aff'd, 986 F.2d 1429 (10th Cir. 1993).
4. Due process claim
Ms. Brown’s allegation that the Defendants refused to enforce a restraining order
issued by a California state court against N.B. in the state of Colorado does not state an
arguable due process claim. The Supreme Court has made clear in DeShaney v.
Winnebago County Dept. of Soc. Servs., 489 U.S. 189 (1989), and Town of Castle
Rock, Colo. v. Gonzales, 545 U.S. 748 (2005), that there is no right under the Due
Process Clause, either procedural or substantive, to have the police enforce a
restraining order or to arrest some third party. Gonzales, 545 U.S. at 749. In Gonzales,

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the Supreme Court reiterated its “continuing reluctance to treat the Fourteenth
Amendment as ‘a font of tort law,’” Id. at 768 (quoting Parratt v. Taylor, 451 U.S. 527,
544 (1981) (internal quotation marks omitted), and recognized that it is up to the States
to provide victims with personally enforceable remedies. Id. at 768-69. Accordingly, the
Fourteenth Amendment due process claim will be dismissed.
B. State Law Claims
Ms. Brown asserts state law claims against Defendants of false arrest and
imprisonment and abuse of process.
A plaintiff properly invokes § 1332 jurisdiction when she presents a claim
between parties of diverse citizenship that exceeds the required jurisdictional amount,
currently $75,000. See 28 U.S.C. § 1332(a); see also Arbaugh v. Y&H Corp., 546 U.S.
500, 513 (2006). To demonstrate federal jurisdiction pursuant to § 1332, allegations of
diversity must be pleaded affirmatively. See Penteco Corp. Ltd. Partnership-1985A v.
Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir.1991) (citations omitted).
Ms. Brown alleges that she is a citizen of California and that the Defendants are
citizens of Colorado. (ECF No. 11, at 2). These allegations are sufficient to invoke the
Court’s diversity jurisdiction. Further, upon review pursuant to D.C.COLO.LCivR 8.1(a),
the Court finds that the state law claims are not appropriate for summary dismissal.
However, Ms. Brown cannot maintain state law tort claims against the Summit
County Sheriff’s Office because under Colorado law, municipalities and counties, not
their various subsidiaries and departments, are empowered with the ability to sue and
be sued. § 31-15-101, C.R.S.
After review pursuant to D.C.COLO.LCivR 8.1(a), the Court has determined that
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Ms. Brown’s federal claims asserting a violation of 28 U.S.C. § 1738 and 18 U.S.C.
§ 2265(a) (full faith and credit given to protection orders), and her state law claims
arising under 28 U.S.C. § 1332, do not appear to be appropriate for summary dismissal
and that the case should be drawn to a presiding judge, and, if appropriate, to a
magistrate judge. See D.C.COLO.LCivR 8.1(c). Accordingly, it is
ORDERED that Plaintiff’s federal claims asserting a violation of 18 U.S.C. § 3182
(the Extradition Act), 18 U.S.C. § 3771(a)(1) (crime victims’ rights), the PKPA, 28 U.S.C.
§ 1738A; and, a deprivation of her Fourteenth Amendment due process rights under 42
U.S.C. § 1983 are DISMISSED. It is
FURTHER ORDERED that the Summit County Sheriff’s Office is DISMISSED. It
is
FURTHER ORDERED that this case shall be drawn to a presiding judge and, if
appropriate, to a magistrate judge, pursuant to D.C.COLO.LCivR 40.1(a).
DATED at Denver, Colorado, this

19th

day of

February

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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