James v. Russell, Kansas, City of et al

Filing 18

MEMORANDUM AND ORDER granting 11 Motion to Dismiss. Signed by District Judge Monti L. Belot on 11/6/2013. Mailed to pro se party Eric V. James by regular mail. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ERIC JAMES, et al.,
Plaintiffs,
v.
CITY OF RUSSELL, KANSAS, et al.,
Defendants.

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CIVIL ACTION
No.

13-1244-MLB

MEMORANDUM AND ORDER
This case comes before the court on defendants’ motion to
dismiss.

(Doc. 11).

for decision.1

The motion has been fully briefed and is ripe

(Docs. 12, 16).

Defendants’ motion is granted for the

reasons herein.
I.

Facts
On June 25, 2011, plaintiff Eric James was arrested for domestic

battery and intentional bodily harm.

At the time of his arrest,

plaintiffs A.J., M.J. and I.J, James’ children, were placed in
protective custody.

Defendant Lonnie Whitten, an officer employed by

defendant City of Russell, Kansas, placed the children into the care
of their maternal grandparent.
Plaintiffs’ complaint alleges that defendants Whitten and Danny
Hoffman,

another

Specifically,

officer,

plaintiffs

violated

allege

that

plaintiffs’
their

Fourteenth Amendment rights have been violated.

civil

Fourth,

rights.

Sixth,

and

Defendants move to

dismiss plaintiffs’ complaint on the basis that it fails to state a

1

No reply has been filed and the deadline has now passed.

claim and that Whitten and Hoffman are entitled to qualified immunity.
II.

Motion to Dismiss Standards: FRCP 12(b)(6)
The standards this court must utilize upon a motion to dismiss

are well known. To withstand a motion to dismiss for failure to state
a claim, a complaint must contain enough allegations of fact to state
a claim to relief that is plausible on its face. Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007)).

All well-

pleaded facts and the reasonable inferences derived from those facts
are viewed in the light most favorable to plaintiff.

Archuleta v.

Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations,
however, have no bearing upon this court’s consideration.
City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).

Shero v.
In the

end, the issue is not whether plaintiff will ultimately prevail, but
whether he is entitled to offer evidence to support his claims.
Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005).
III. Analysis
Pursuant to 42 U.S.C. section 1983, any person who “under color
of . . . [law] . . . subjects, or causes to be subjected, . . . any
[person] . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to
the party injured.”

Section 1983 was enacted to provide protections

to those persons wronged by the misuse of power.

While the statute

itself creates no substantive civil rights, it does provide an avenue
through which civil rights can be redeemed.
F.3d 1547, 1552 (10th Cir. 1995).

See Wilson v. Meeks, 52

To state a claim for relief in a

section 1983 action, plaintiffs must establish that they were (1)
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deprived of a right secured by the Constitution or laws of the United
States and (2) that the alleged deprivation was committed under color
of state law. See American Mfr’s. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 49-50 (1999).
A.

Fourth Amendment

1.

Wrongful Arrest

Plaintiffs’
arrested.”

complaint

(Doc. 1 at 2).

alleges

that

James

was

“unlawfully

The complaint does not specify, however,

who arrested James or why the arrest was unlawful. When a warrantless
arrest is the basis for a 1983 claim, a plaintiff must show that the
defendant officer lacked probable cause. Buck v. City of Albuquerque,
549 F.3d 1269, 1281 (10th Cir. 2008).

In addition, a plaintiff must

allege personal involvement by the defendant officer. Fogarty v.
Gallegos, 523 F.3d 1147, 1156 (10th Cir. 2008)(“Individual liability
under § 1983 must be based on personal involvement in the alleged
constitutional violation.”)
Because James’ wrongful arrest claim fails to state a claim for
which relief may be granted, it must be dismissed.
2.

Seizure of the Children

Construing the complaint liberally, plaintiffs have also alleged
a Fourth Amendment violation for the removal of the children from the
home.

Again, plaintiffs’ complaint only alleges that the seizure of

the children was “unlawful.”

State officials may remove a child if

there are emergency circumstances that pose an immediate threat to the
child’s safety. Arredondo v. Locklear, 462 F.3d 1292, 1297 (10th Cir.
2006).

According to the allegations in the complaint, the children’s

father was arrested and taken from the home.
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Leaving a child at home

alone is an emergency circumstance which would pose a threat to the
children’s safety.

Therefore, it was reasonable for the officers to

seek placement of the children with a relative.

See Shouse v. Price,

No. 08-6064, 2008 WL 4401396 (10th Cir. Sept. 30, 2008)(removal of a
child is in its best interest when the parent is taken into custody.)
The complaint further alleges that the placement of the children
was improper.

However, there is no allegation that the grandparents

caused any injury during the placement or that officer Whitten had any
knowledge that the placement was inappropriate.
Therefore,

the

children’s

Fourth

Amendment

claim

must

be

dismissed.
B.

Sixth Amendment

Plaintiffs’

complaint

alleges

a

violation

of

their

Sixth

Amendment rights but pleads no facts to support a violation of those
rights. Therefore, plaintiffs’ claim must be dismissed. Robbins, 519
F.3d at 1247.
C.

Familial Association

Finally, James’ alleges that the seizure of the children deprived
him of the right to see his children.2

The Fourteenth Amendment's Due

Process Clause gives parents “a protected liberty interest in the
care, custody, and control of their children.” Arredondo v. Locklear,
462

F.3d

1292,

1297

(10th

Cir.

2006).

To

state

a

claim

of

interference of this right, James must assert "an allegation of intent

2

Because the children’s removal is a seizure that implicates
their Fourth Amendment rights, they do not have an independent
due-process claim. Silvan w. v. Briggs, No. 07-4272, 2009 WL 159429,
*4 (10th Cir. Jan. 23, 2009)(citing Becker v. Kroll, 494 F.3d 904, 919
(10th Cir. 2007))
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to interfere with a particular relationship protected by the freedom
of intimate association." Trujillo v. Board of County Com'rs of Santa
Fe County, 768 F.2d 1186, 1190 (10th Cir. 1985).

He has not done so.

Moreover, the alleged facts do not establish that his arrest was
unlawful, and therefore, James could not have physical custody of his
children at the time of their placement.
D.

City of Russell

A municipality, such as Russell, can be directly sued under §
1983 when its officers commit constitutional violations in accordance
with the municipality's official policy. Monell v. New York, 436 U.S.
658, 690, 98 S. Ct. 2018, 56 L. Ed.2d 611 (1978).

Liability will not

attach “where there was no underlying constitutional violation by any
of [Russell’s] officers.” Graves v. Thomas, 450 F.3d 1215, 1218 (10th
Cir. 2006).

Therefore, the claims against Russell must also be

dismissed.
IV.

Conclusion
Defendants’ motion to dismiss is granted.

(Doc. 11).

A motion for reconsideration of this order is not encouraged.
Any such motion shall not exceed 3 double-spaced pages and shall
strictly comply with the standards enunciated by this court in Comeau
v. Rupp, 810 F. Supp. 1172, 1174 (1992).

The response to any motion

for reconsideration shall not exceed 3 double-spaced pages.

No reply

shall be filed.
IT IS SO ORDERED.
Dated this

6th

day of November 2013, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE
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