Opinion
CIVIL ACTION No. 00-2180-KH
May 31, 2001
MEMORANDUM AND ORDER
Joseph Ledbetter, a former detainee at the Shawnee County Correctional Facility, has filed suit against the Board of County Commissioners of the County of Shawnee ("BOCC"), Theodore D. Ensley, Michael J. Meier, Maurice Kane, Earl Hindman, a female jailer named Angel and an unnamed jailer, alleging that defendants violated his constitutional rights and rights to habeas corpus when guards molested his testicles, forced him to stand in human urine and feces, and refused to tell him why he was being detained or let him call a lawyer. This matter is before the Court on Defendants' Motion To Dismiss (Doc. #15) filed November 28, 2000. For reasons stated below, defendants' motion is sustained in part and overruled in part.
Standards For Motion To Dismiss For Failure To State A Claim
A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Associated Wholesale Grocers., Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). The issue in reviewing the sufficiency of plaintiff's complaint is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. Rehab. Servs., 871 F. Supp. 1331, 1333 (D.Kan. 1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). The Court may not assume the role of advocate for a pro se litigant. Hall, 935 F.2d at 1110.
Factual Background
The following is a summary of the factual allegations of plaintiff's complaint.
For the sole purpose of providing some context for plaintiff's allegations, the Court sets forth some uncontested background facts, such as the date of the alleged incident, contained in defendants' Memorandum In Support Of Defendants' Motion To Dismiss (Doc. #16) filed November 28, 2000. These background facts are immaterial to the Court's analysis.
On April 24, 1998, the Police Department of Topeka, Kansas arrested plaintiff on a city arrest warrant. Police booked plaintiff into the Shawnee County Correctional Facility and released him over three hours later. While plaintiff was in custody, a male guard molested his testicles. Other guards made him stand in human urine and feces. The guards would not tell plaintiff why he was being held and would not let him call a lawyer.
On April 20, 2000, plaintiff filed suit, alleging that defendants violated his constitutional rights and rights to habeas corpus when guards molested his testicles, forced him to stand in human urine and feces, and refused to tell him why he was being detained and let him call a lawyer. Plaintiff asserts that defendants' conduct (1) violated his rights to habeas corpus under Article 1, Section 9 of the United States Constitution, (2) violated his state law rights to be informed of the charges against him and to contact an attorney, and (3) constituted cruel and unusual punishment, as well as civil rights code and due process violations. Defendants ask the Court to dismiss his claims for failure to state a claim.
Analysis I. Conversion Of Motion To Dismiss To One For Summary Judgment
In their motion to dismiss, defendants do not refer to any particular provision of Rule 12 of the Federal Rules of Civil Procedure, but they ask the Court to dismiss plaintiff's complaint for failure to state a claim on which relief can be granted. See Motion To Dismiss (Doc. #15) filed November 28, 2000 at 1-2. Accordingly, the Court construes defendants' motion as one pursuant to Rule 12(b)(6), Fed.R.Civ.P. In their supporting memorandum, defendants assert that because they submitted matters outside of the pleadings, the Court should treat their "Rule 12(c) motion [sic]" as one for summary judgment. See Memorandum In Support Of Defendants' Motion To Dismiss (Doc. #16) filed November 28, 2000 at 2. When a movant presents matters outside the pleadings, the Court has discretion to convert a Rule 12(b)(6) or 12(c) motion into one for summary judgment. See Lybrook v. Members of the Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1341-42 (10th Cir. 2000) (Rule 12(b)(6)); Lowe v. Town of Fairland, Okla., 143 F.3d 1378, 1381 (10th Cir. 1998) (Rule 12(c)). Because defendants filed their motion at an early stage of the proceedings and discovery is not scheduled to close until July 6, 2001, see Scheduling Order (Doc. #24) filed March 8, 2001, the Court declines to consider evidence outside the pleadings. Accordingly, the Court will treat defendants' motion as one pursuant to Rule 12(b)(6).
II. Liability Of BOCC
Initially, the Court must determine the statutory or constitutional basis for plaintiff's claims. Plaintiff states that his claim arises under habeas corpus; Article 1, Section 9 of the United States Constitution; state statutes regarding the rights of arrestees; cruel and unusual punishment; civil rights code; and due process.
A. Habeas Corpus
Plaintiff cannot maintain a claim for habeas relief because he is not in custody. See 28 U.S.C. § 2241, 2254. Absent a viable habeas claim, plaintiff also cannot maintain a claim under Article 1, Section 9 of the United States Constitution.
Article 1, Section 9 of the U.S. Constitution provides in part that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
B. State Statutes Regarding Rights Of Arrestees
Plaintiff alleges that defendants violated state statutes which require officers to inform detainees of the charges against them and let them call a lawyer. Plaintiff has not cited any Kansas statute, and the Court is not aware of one, which requires jail guards to immediately provide such procedural protections to arrestees or which allows a private cause of action to remedy violations of such alleged requirements. The Court therefore dismisses plaintiff's claim.Even if Kansas law required such procedural protections, plaintiff has failed to state a claim under 42 U.S.C. § 1983 on which relief could be granted. "Section 1983 does not provide a basis for redressing violations of state law, but only for those violations of federal law done under color of state law." Jones v. City County of Denver, 854 F.2d 1206, 1209 (10th Cir. 1988) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)). The Sixth Amendment (made applicable to states by the Fourteenth Amendment) provides an accused the right to be informed of the nature of the charges against him and the right to an attorney with the auxiliary right to call an attorney. See Kladis v. Brezek, 823 F.2d 1014, 1018 (7th Cir. 1987); Bullock v. Dioguardi, 847 F. Supp. 553, (N.D.Ill. 1993). These rights do not attach, however, until "at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information or arraignment." Kirby v. Illinois, 406 U.S. 682, 689 (1972); see United States v. Gouveia, 467 U.S. 180, 188 (1984). Because plaintiff has not alleged any adversary proceeding before or during his detention, he cannot establish a violation of a constitutional right to be informed of the charges against him or to call a lawyer. See Kladis, 823 F.2d at 1018 (no constitutional right to be informed of reason for arrest until government has committed itself to prosecution); Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986) (no Sixth Amendment right to call attorney before formal charges); State Bank of St. Charles v. Camic, 712 F.2d 1140, 1144 (7th Cir.) (no right to telephone call before accusatorial questioning or adversarial proceedings), cert. denied, 464 U.S. 995 (1983); Bradley v. Extradition Corp. of Am., 758 F. Supp. 1153, 1156 (W.D.La. 1991) (arrestee need not be told reason for arrest until state institutes prosecution); Fillmore v. Ordonez, 829 F. Supp. 1544, 1563 (D.Kan. 1993) (no right to call counsel prior to arraignment), aff'd, 17 F.3d 1436 (10th Cir. 1994).
In his opposition brief, plaintiff apparently claims that defendants' failure to inform him of the nature of the charges against him and allow him to call an attorney violated the Fourth Amendment. The Fourth Amendment requires only that officers "have probable cause to believe that an individual has broken the law before arresting him or her." Kladis, 823 F.2d at 1018. Although plaintiff claims that the arrest warrant was invalid, he does not allege that the arresting officer knew that the warrant was invalid. The arrest warrant by itself gave the law enforcement officer authority to arrest. See K.S.A. § 22-2401(a). Moreover, because plaintiff has not sued the arresting officer or the individuals who requested that the warrant be issued, he cannot maintain a Fourth Amendment claim.
C. Cruel And Unusual Punishment
Plaintiff's claim for cruel and unusual punishment is barred because he was a pretrial detainee. The rights of pretrial detainees are controlled by the Fifth and Fourteenth Amendments, which "prohibit punishment prior to an adjudication of guilt in accordance with due process of law." Berry v. City of Muskogee, Okla., 900 F.2d 1489, 1493 (10th Cir. 1990) (quotations and citations omitted). The Court therefore will address plaintiff's allegations of cruel and unusual punishment as due process claims. See infra part E.
D. Civil Rights Code
The Court assumes that plaintiff's reference to "the civil rights code" is an attempt to bring a claim under 42 U.S.C. § 1983. Plaintiff has not alleged facts sufficient to state a claim under the other provisions of Title 42, United States Code, Chapter 21, Civil Rights. See, e.g., 42 U.S.C. § 1981 (racial discrimination); § 1981a (damages for intentional employment discrimination); § 1982 (racial discrimination); § 1985 (preventing officer from performing duties, obstructing justice, intimidating party, witness, or juror; conspiracy to deprive a person or class of persons equal protection or privileges); § 1986 (neglect to prevent violations of section 1985); and Title VII, 42 U.S.C. § 2000e et seq. (equal employment opportunities). With regard to plaintiff's claim under 42 U.S.C. § 1983, the only alleged constitutional violation is based on plaintiff's due process claim.
E. Due Process
Because plaintiff has not sued federal officials, he cannot maintain a due process claim under the Fifth Amendment. See United States v. Lanza, 260 U.S. 377, 382 (1922). Accordingly, plaintiff's only potentially viable claim is one under 42 U.S.C. § 1983 for violation of his right to substantive due process under the Fourteenth Amendment. Plaintiff bases his substantive due process claim on two alleged incidents: (1) a corrections officer molested his testicles during a pat down search and (2) correctional officers forced him to stand in human urine and feces.
Plaintiff may have a viable claim against the individual corrections officers, see infra part III, but he has not stated a claim against the County. The County cannot be liable under Section 1983 on a theory of vicarious liability or respondeat superior. See Monell v. Dep't of Social Servs., 436 U.S. 658, 692 (1978); Sauers v. Salt Lake County, 1 F.3d 1122, 1129 (10th Cir. 1993). The County can be liable under Section 1983 only if an official custom or policy of the County caused the alleged violation of plaintiff's constitutional rights. See Benhardt v. Bd. of County Comm'rs, 9 F. Supp.2d 1252, 1265 (D.Kan. 1998); Dees v. Vendel, 856 F. Supp. 1531, 1534 (D.Kan. 1994) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). Plaintiff's complaint makes no mention of any county custom or policy, much less one that is linked to the alleged violation of his constitutional rights. Nor does he allege that any individual with final policymaking authority caused his injuries. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84 (1986) (holding that single decision by official responsible for establishing final policy may give rise to municipal liability); Jantz v. Muci, 976 F.2d 623, 630 (10th Cir. 1992) (same), cert. denied, 508 U.S. 952 (1993). Indeed, in his opposition brief, plaintiff argues that the guards did not follow BOCC policy. See Answer [sic] Defendant's Memorandum To Dismiss (Doc. #18) filed December 11, 2000 at 2.
Defendants raise only a cursory challenge to the BOCC's liability under Section 1983. Because plaintiff proceeds in forma pauperis, however, the Court may review plaintiff's complaint sua sponte to ensure that it states a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (sua sponte dismissal under Rule 12(b)(6) or Section 1915(e)(2)(B)(ii) of meritless claim without opportunity to amend does not violate due process or unduly burden plaintiff's right of access to the courts).
Plaintiff's complaint does not allege any failure to train by the County, nor does it support any such allegation with even the barest of factual assertions. In his opposition to defendants' motion to dismiss, however, plaintiff argues that the BOCC did not supervise or train its employees not to violate the constitutional rights of detainees. See id. at 1. A county may be held liable only when its failure to train reflects a "deliberate or conscious choice" to ignore serious risks to a person's health and safety. City of Canton v. Harris, 489 U.S. 378, 388-89 (1989); see Myers v. Okla. County Bd. of County Commr's, 151 F.3d 1313, 1318 (10th Cir. 1998). Absent such a choice, a failure to train is insufficient to establish liability. Nowhere in plaintiff's complaint or opposition brief does he claim that the BOCC made a deliberate or conscious choice not to train or supervise its guards regarding the constitutional rights of inmates.
For reasons stated above, the Court finds that plaintiff has failed to state a claim on which relief may be granted against the BOCC. Because plaintiff may be able to allege a set of facts which would establish the County's failure to train or supervise, however, the Court will allow him leave to amend his complaint. See Conley, 355 U.S. at 45-46. On or before June 15, 2001, plaintiff may amend his claim against the County.
III. Qualified Immunity
Defendants argue that they are entitled to qualified immunity. Qualified immunity shields a defendant from pecuniary liability unless he or she violated clearly established constitutional or statutory norms. Anderson v. Creighton, 483 U.S. 635, 639-640 (1987). Defendants are entitled to this defense if their conduct was objectively reasonable in light of clearly established law and the information they possessed at the time. See Martin v. Bd. of County Comm'rs, 909 F.2d 402, 405 (10th Cir. 1990). In the context of a Rule 12(b)(6) motion to dismiss, the Court's review of the qualified immunity defense is limited to the pleadings. See Dill v. City of Edmond, 155 F.3d 1193, 1203 (10th Cir. 1998). In reviewing the pleadings, the Court construes in plaintiff's favor the allegations of the complaint and any reasonable inferences to be drawn therefrom. See id. Moreover, in the context of a qualified immunity defense, plaintiff no longer must satisfy a heightened pleading standard. See Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001).
Plaintiff has sufficiently alleged that the defendants violated a constitutional right. Pretrial detainees have a substantive due process right to not be molested or forced to stand in human waste. See Bell v. Wolfish, 441 U.S. 520, 537 n. 16 (1979) ("Due process requires that a pretrial detainee not be punished. . . . [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law."). Moreover, that right was clearly established at the time of the alleged conduct and a reasonable person in the defendants' position would have known that his or her conduct violated that right. See id. The Court therefore overrules defendants' motion to dismiss with regard to the defense of qualified immunity.
IV. Personal Participation Of Defendants
Although defendants do not raise the issue, the Court finds that plaintiff has failed to allege sufficient personal participation by defendants Theodore D. Ensley, Michael J. Meier, Maurice Kane, Earl Hindman, a female guard named Angel and an unnamed male guard. Personal participation is an essential allegation in a Section 1983 action. Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Defendants may not be sued in a Section 1983 action on a theory of respondeat superior. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986); Gagan v. Norton, 35 F.3d 1473, 1476 n. 4 (10th Cir. 1994). A defendant also may not be held liable in a civil rights action merely because of his or her supervisory position. Id.; McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983). "Instead, to establish supervisory liability, a plaintiff must show that `an affirmative link exists between the [constitutional] deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise.'" Worrell v. Henry, 219 F.3d 1197, 1214 (10th Cir. 2000) (quoting Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988)) (alternation in original); see Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996). Except for a few general references to "guards" and "jailers," plaintiff has not specified the individuals who allegedly violated his civil rights. Absent allegations of personal participation by individual defendants, the Court must dismiss plaintiff's complaint for failure to state a claim on which relief may be granted. At least with regard to the jailers and guards, it appears that plaintiff can correct this error and amend his complaint to allege a set of facts that would entitle him to relief. See Conley, 355 U.S. at 45-46. The Court therefore grants plaintiff leave to amend his complaint to add allegations of the personal participation of each defendant. On or before June 15, 2001, plaintiff may file an amended complaint.
Because plaintiff proceeds in forma pauperis, the Court may independently review plaintiff's complaint to ensure that it states a claim on which relief may be granted. See note 6 (citing 28 U.S.C. § 1915(e)(2)(B)(ii)).
IT IS THEREFORE ORDERED that Defendants' Motion To Dismiss (Doc. #15) filed November 28, 2000 be and hereby is SUSTAINED in part and OVERRULED in part. Defendants' motion is SUSTAINED with regard to the Board of County Commissioners of the County of Shawnee, Kansas; and is otherwise OVERRULED.
IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), plaintiff's claims against defendants Theodore D. Ensley, Michael J. Meier, Maurice Kane, Earl Hindman, a female jailer named Angel and an unnamed jailer are DISMISSED for failure to state a claim on which relief may be granted.
IT IS FURTHER ORDERED that on or before June 15, 2001, plaintiff may file an amended complaint.