LEE et al v. AMBROSE et al

Filing 34

ENTRY DISCUSSING MOTIONS TO DISMISS - The defendants' unopposed motions to dismiss 15 21 are granted. Any amendment of the complaint as to either claim would be futile, and therefore the dismissal is with prejudice. Judgment consistent with this Entry and with the Entry issued on 1/25/2012, dismissing claims purportedly brought on behalf of minor children, shall now issue. Signed by Judge Sarah Evans Barker on 3/18/2013. (JLM) Copies mailed to pltfs. Modified on 3/18/2013 (JLM).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
JOSHUA SCOTT LEE,
SAMANTHA SUE LEE,
RANDALL TODD LEE,

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)
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Plaintiffs,
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vs.
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SHANNON FAYE AMBROSE, Caseworker, )
et al.,
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Defendants.
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4:12-cv-003-SEB-WGH

Entry Discussing Motions to Dismiss
Plaintiffs Samantha, Randall, and Joshua Lee bring this action pursuant to
42 U.S.C. § 1983 and federal criminal statutes alleging, among other things, that
the defendants unlawfully entered their home. Defendants Shannon Faye Ambrose,
Dale L. Stroud, and Paul J. (Jim) Miller (the “State Defendants”) and defendant
Ray E. Saylor have filed motions to dismiss. The defendants argue that the
complaint fails to state a claim upon which relief can be granted. The plaintiffs have
not opposed either motion to dismiss.
Legal Standard
When reviewing a motion to dismiss, a court considers as true all well
pleaded allegations as well as any inferences reasonably drawn therefrom. Tamayo
v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). The purpose of a motion to
dismiss is not to determine whether a plaintiff will ultimately succeed, but whether
the complaint sufficiently asserts facts, which when accepted as true, state a valid
and plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
complaint must at least “plausibly suggest that the plaintiff has a right to relief,
raising that possibility above a speculative level.” E.E.O.C. v. Concentra Health
Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007) (internal quotation omitted). If a
plaintiff pleads facts demonstrating that he has no claim, a court may dismiss the
complaint. McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006); Tamayo, 526
F.3d at 1086. Pro se complaints such as that filed by the plaintiffs are construed
liberally and held to a less stringent standard than formal pleadings drafted by
lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Obriecht v. Raemisch, 517 F.3d
489, 491 n.2 (7th Cir. 2008).

Discussion
Fourth Amendment Claims
Town Marshall Ray Saylor
While 42 U.S.C. § 1983 does not itself give rise to a private right of action, it
“provides a federal cause of action against any person who, acting under color of
state law, deprives another of his federal rights.” Conn v. Gabbert, 526 U.S. 286,
290 (1999). The plaintiffs allege that their Fourth Amendment rights were violated
when Milltown Town Marshall Saylor entered their house on January 6, 2010,
without a warrant.
It is true that the complaint alleges that when Marshall Saylor first came to
the house, he had no warrant and Samantha Lee denied him entry. The complaint
further alleges, however, that Samantha Lee informed Marshall Saylor that he
could come back to the house two hours later to allow her family time to finish
cleaning their basement. When Marshall Saylor returned, the Lee family allowed
him to enter the house. “The Fourth Amendment’s probable cause and warrant
requirements do not apply where an authorized party voluntarily consents to a
search.” United States v. Johnson, 427 F.3d 1053, 1056 (7th Cir. 2005). The
complaint fails to allege a Fourth Amendment violation by Marshall Saylor.
The State Defendants
The complaint alleges that on January 13, 2010, Department of Child
Services caseworker Shannon Ambrose (“Ambrose”) called Samantha Lee and told
her that Ambrose was coming to the house because she needed to speak with Lee.
When Ambrose arrived with her supervisor (presumably Dale Stroud), Randall Lee
opened the door and let them in. To the extent there is any Fourth Amendment
allegation, such a claim is not supported by the facts alleged. Again, consent was
given to Ambrose and Stroud to enter the home. Johnson, 427 F.3d at 1056. The
complaint does not allege any unlawful entry on the part of defendant Paul Miller,
Director of the Department of Child Services. For these reasons, the complaint fails
to state a claim pursuant to the Fourth Amendment against the State Defendants.
Criminal Statutory Claims
The plaintiffs also allege that the defendants violated several federal criminal
statutes: 18 U.S.C. §§ 241, 242, 1001, and 1203. The complaint fails to state a claim
upon which relief can be granted because criminal statutes do not provide a private
cause of action for civil liability. See Andrews v. Heaton, 483 F.3d 1070, 1076 (7th
Cir. 2007) (violations of criminal statutes 18 U.S.C. §§ 241, 371, 1001, 1341, and
1503 are not enforceable through a civil action); Federal Sav. & Loan Ins. Corp. v.

Reeves, 816 F.2d 130, 137-38 (4th Cir. 1987) (no private action for violations of 18
U.S.C. §§ 657, 1001, 1006, 1008, 1014); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th
Cir. 1980) (18 U.S.C. §§ 241 and 242 provide no private right of action and cannot
form the basis of a civil suit).
Conclusion
“[A] plaintiff can plead himself out of court by alleging facts that show there
is no viable claim.” Pugh v. Tribune Co., 521 F.3d 686, 699 (7th. Cir. 2008). That is
what has occurred in this case.
The defendants’ unopposed motions to dismiss [15, 21] are granted. Any
amendment of the complaint as to either claim would be futile, and therefore the
dismissal is with prejudice. See Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir.
2013). Judgment consistent with this Entry and with the Entry issued on January
25, 2012, dismissing claims purportedly brought on behalf of minor children, shall
now issue.
IT IS SO ORDERED.

03/18/2013
Date: _________________
Distribution:
Samantha Sue Lee
5725 Milltown Frenchtown Road
Depauw, IN 47115
Randall Todd Lee
5725 Milltown Frenchtown Road
Depauw, IN 47115
Joshua Scott Lee
5725 Milltown Frenchtown Road
Depauw, IN 47115
All Electronically Registered Counsel

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana