Opinion
Case No. 2:01-CV-1000TC
February 24, 2003
ORDER
Plaintiffs Blaine and Lisa Phillips, who are husband and wife, have brought this action under 42 U.S.C. § 1983 against Defendants Utah County, Shawn Adamson, a Deputy Sheriff with Utah County, Salem City, and Brad James, Chief of Police of Salem City. The case arises out of the shooting of Blaine Phillips by Deputy Adamson. Defendants Brad James and Salem City have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) for an order dismissing the claims of Plaintiff Lisa Phillips. For the reasons set forth below, the motion is DENIED IN PART AND GRANTED IN PART.
Defendants Utah County and Shawn Adamson were the first to file a motion to dismiss Mrs. Phillips' claims against them. At oral argument on the motion, Plaintiffs' Counsel explained that Mrs. Phillips was not bringing a claim against Utah County or Shawn Adamson. ( See Order of Nov. 6, 2002.) The court denied Utah County and Shawn Adamson's motion to dismiss as moot.
In evaluating a motion brought under Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded facts as true. See Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). The court must also "view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed." Id.
The pertinent facts taken from the Complaint are as follows: On August 12, 2001, Mrs. Phillips called 911 during an argument she was having with her husband. After making the call, Mrs. Phillips decided that she was not in danger. She informed Emergency Dispatch that there was no danger, but officers from the Salem police department went to the Phillips' home. Mr. Phillips shut himself in his bedroom and told the officers to leave.
Even though Mrs. Phillips protested, the officers took her from her home while they continued to try to make contact with Mr. Phillips. Mr. Phillips remained in his bedroom, watching television. Brad James, the police chief of the Salem City Police Department, called the swat team. A county negotiator called Mr. Phillips on his cell phone and Mr. Phillips "acknowledged that he had guns in the bedroom." (Compl. ¶ 19) The negotiator then called Mr. Phillips on the Phillips' kitchen phone. Deputy Adamson, from outside the home, "shot Blaine Phillips as [Phillips] stood in front of the rear kitchen window." ( Id. ¶ 22) "The bullet entered the plaintiffs right wrist and shoulder, substantially damaging plaintiffs shoulder and lower arm." ( Id.)
The injuries sustained by Blaine Phillips are outlined in the Complaint. They include "wrist and shoulder injuries; neurological, muscular and soft tissue injuries to his arm and shoulder. The Plaintiff has undergone multiple surgeries, including emergency surgery. Plaintiff has incurred extensive medical bills and will incur substantial future medical bills and additional surgical procedures." ( Id. ¶ 24.) In addition, the Complaint alleges that Plaintiffs have suffered damages such as "mental anguish and suffering; loss of enjoyment of life; . . . pain, suffering, emotion [sic] and psychological injury." ( Id. ¶ 25.)
ANALYSIS
The Plaintiffs allege three separate claims based on 42 U.S.C. § 1983. The first claim alleges that "[i]n attempting to arrest or detain plaintiff, defendants used excessive force that was not reasonable under the circumstances." (Compl. ¶ 30.) The Plaintiffs' second and third causes of action challenge the actions and policies of Defendants Utah County and Defendants Salem City and Brad James, respectively.
The Tenth Circuit has instructed that a "motion to dismiss may be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling her to relief under her theory of recovery." Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). Defendants contend that Mrs. Phillips cannot recover under section 1983 because her personal rights were not violated. Defendants are correct that it is a "well settled principle" in the Tenth Circuit "that a section 1983 claim must be based upon the violation of [a] plaintiffs personal rights, and not the rights of someone else." Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir. 1990). The Plaintiffs appear to make two arguments in support of their contention that Mrs. Phillips can properly bring this action against Defendants. First, they argue that Mrs. Phillips' section 1983 claim can be based on a loss of consortium theory. This argument fails. The Tenth Circuit has yet to declare a spouse's consortium to be a constitutionally protected right. Moreover, at least one district court in the Tenth Circuit has specifically held that a spouse's loss of consortium does not constitute a personal constitutional right actionable under section 1983. See Winton v. Bd. of County Comm'rs of Tulsa County, Oklahoma, 88 F. Supp.2d 1247, 1254 (N.D. Okla. 2000). Second, the Plaintiffs appear to argue that due to Salem City and Police Chief James's policies, practices, and failure to train their officers, Salem City and Police Chief James violated Mrs. Phillips's own right to be free from excessive force.
The Plaintiffs accurately point out that the Fourteenth Amendment of the Constitution protects certain aspects of family associations. ( See Pls.' Opp'n Mem. at 3); see Niehus v. Liberio, 973 F.2d 526, 532-33 (7th Cir. 1992) (discussing particular family associations that have "been held to be aspects of liberty protected by the Fourteenth Amendment"). The Tenth Circuit, for example, has found that the mother and sister of an inmate who died in jail "had constitutionally protected interests in their relationship with their son and brother." Trujillo v. Bd. of County Comm'rs of the County of Santa Fe, 768 F.2d 1186, 1189 (10th Cir. 1985) The Tenth Circuit has also recognized a "substantial interest in the right to associate with. [one's] family" where government officials removed a child from her home during a child abuse investigation. See J.B. v. Washington County, 127 F.3d 919, 927 (10th Cir. 1997) No Tenth Circuit decision, however, appears to have gone so far as to recognize a constitutionally protected right of consortium. But see Robinson v. Johnson, 975 F. Supp. 950, 954-55 (S.D. Tex. 1996) (holding that a child could bring a derivative loss of consortium claim under section 1983 if that claim were valid under state law); Pahle v. Colebrookdale Township, 227 F. Supp.2d 361, available at 2002 WL 475131, at **20-21 (E.D. Pa. 2002) (recognizing a Constitutional right to spousal consortium but holding that the plaintiff "inadequately pled her individual, constitutional claims under § 1983").
The Plaintiffs rely heavily on J.B. v. Washington County, 127 F.3d 919, 927-28 (10th Cir. 1997). ( See Pls.' Opp'n Mem. at 6.) J.B. did not involve any family member's loss of consortium. See J.B., 127 F.3d at 927-28. Instead, the plaintiff parents in J.B. alleged a violation their rights of familial association based on the physical removal of their child from their home. Id. at 927.
In decisions recognizing a constitutional right to consortium under section 1983, the courts have simply adopted state law concerning loss of consortium and survival claims See e.g., Robinson v. Johnson, 975 F. Supp. 950, 955 (S.D. Tex. 1996). The Tenth Circuit has rejected this "wholesale" application of state survival and wrongful death remedies to section 1983 actions. See Winton, 88 F. Supp.2d at 1255; Berry v. City of Muskogee, Oklahoma, 900 F.2d 1489, 1506-07 (10th Cir. 1990).
In Niehus, Judge Posner for the Seventh Circuit held that for purposes of section 1983, consortium is not a constitutionally protected liberty. Niehus, 973 F.2d at 534. In that case, the plaintiffs, who had been husband and wife, alleged that police officers used excessive force against the husband during an arrest. Id. at 527. The wife "claim[ed] that loss of consortium [was] a deprivation of liberty within the meaning of the due process clause." Id.
The Seventh Circuit in Niehus recognized that "[t]here would be no novelty in interpreting `liberty' to embrace the right of sexual companionship in marriage." Id. at 532. The court stated, however, that "consortium is not a synonym for marriage." Id. at 533. Instead, the court explained that consortium constituted the many "services . . . that spouses render to each other." Id. at 533-34. Infringements on the "lesser services comprehended in the portmanteau term `consortium' are not deprivations of liberty within the restricted meaning that term bears in the Constitution." Id. at 534. The plaintiff in Niehus asked the court to "nile that consortium is liberty, period." Id. The Seventh Circuit "decline[d] the invitation." Id.
At least one district court in the Tenth Circuit has followed suit. See Winton, 88 F. Supp.2d at 1254. In Winton, a former county jail inmate and his wife, Mr. and Mrs. Winton, sued the sheriff and county under section 1983 after Mr. Winton was attacked and severely injured by fellow inmates in his cell. Id. at 1252. Among other claims, Mrs. Winton sought damages for loss of consortium "as a derivative claim under [section 1983] based upon the violation of her husband's constitutional rights." Id. at 1254. The court first held that Mrs. Winton's derivative claim did not constitute a "constitutional right possessed by her individually." Id. The court then stated that "[e]ven if Mrs. Winton were attempting to predicate her loss of consortium claim on a violation of her own constitutional rights, the Court would not [have found] such an argument persuasive." Id. Relying on the Seventh Circuit's decision in Niehus, the court found that no constitutional right of spousal consortium existed. See id. at 1254-55; Niehus, 973 F.2d at 533-34.
Although the issue is not without doubt, the court concludes that loss of consortium cannot be the basis of a claim under section 1983. And it is clear that Mrs. Phillips's section 1983 claim may not succeed to the extent that it is merely derivative of the violation of Mr. Phillips's constitutional rights. See Archuleta, 897 F.2d at 497.
However, viewing all reasonable inferences in favor of the Plaintiffs and liberally construing their Complaint, the Plaintiffs arguably allege that the Defendants violated Mrs. Phillips's own right to be free from excessive force, which could have been caused by Salem City and Police Chief James's policies, practices, and failure to train their officers.
ORDER
Based on the above, it is hereby ORDERED that:
To the extent that Plaintiff Lisa Phillips is alleging a violation of 42 U.S.C. § 1983 based on a violation of her own constitutional rights, the Defendants' motion is DENIED. To the extent that her claim is based on a claim of lack of consortium or any theory that derives from an alleged violation of her husband's constitutional rights, the Defendants' motion is GRANTED.