United States District Court, W.D. Oklahoma
STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE.
the court is the Motion to Dismiss Plaintiffs' First
Amended Complaint for Failure to State a Claim with Brief in
Support by Defendant Michele Moore (doc. no. 46) and the
Motion to Dismiss Plaintiffs' First Amended Complaint for
Failure to State a Claim with Brief in Support by Defendants
Robert Hendryx and Cynthia Hawk (doc. no. 58). Plaintiffs
have responded to the motions and defendants have replied.
Upon due consideration of the parties' submissions, the
court makes its determination.
appearing pro se, bring this action seeking
declaratory relief, injunctive relief and damages against
defendants under 42 U.S.C. § 1983, 42 U.S.C. § 1985
and Oklahoma law. Plaintiffs complain that defendants denied
plaintiff, Aage Jorgensen, a minor at all relevant times, the
right to representation by, and consultation with, retained
counsel, Scott K. Thomas, while Aage was housed in the Sac
and Fox Nation Juvenile Detention Center, under the custody
of the Oklahoma Office of Juvenile Affairs, following his
arrest by officers with the Oklahoma State University Police
Department. Plaintiffs also complain that Aage was denied
access to, and visitation from, two persons, Dr. Sandra
Morgan and Matthew McCollum, whose access and visitation had
been explicitly authorized, verbally and in writing, by
Aage's father, plaintiff Bruce Jorgensen.,  During Aage's
detention, Mr. Jorgensen was overseas in Port Vila, Vanuatu.
Plaintiffs allege that defendants, who were employed by the
Oklahoma Office of Juvenile Affairs, denied them their
constitutional rights to due process and equal protection and
denied Aage his constitutional right to representation by,
and communication with, Mr. Thomas. They also allege that
defendants conspired to deprive Aage (and, derivatively Bruce
Aage) of a constitutional right to representation by, and
communication with, Mr. Thomas and to preclude Aage from
meeting and conversing with Dr. Morgan and Mr. McCollum as
authorized by Bruce. Further, plaintiffs allege that
defendants acted negligently, breached their fiduciary duty
and intentionally inflicted emotional distress upon them.
move to dismiss plaintiffs' First Amended Complaint,
pursuant to Rule 12(b)(6), Fed. R. Civ. P., asserting that
they are entitled to qualified immunity on the federal
claims. They also assert that the state law claims fail as a
matter of law. Further, they assert that plaintiffs lack
standing to bring claims on behalf of anyone other than
themselves and that their claims for declaratory and
injunctive relief are moot.
the motion-to-dismiss stage, [the court] must accept all the
well-pleaded allegations of the complaint as true and must
construe them in the light most favorable to the
[plaintiffs].” Thomas v. Kaven, 765 F.3d 1183,
1190 (10th Cir. 2014) (quotation omitted).
“To survive dismissal, ‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.'”
Id., (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). “‘The plausibility standard is
not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.'” Id. at 1190-1191.
stated, plaintiffs are appearing pro se. While the
court is generally obliged to construe pro se
pleadings liberally, see, Haines v. Kerner,
404 U.S. 519, 520 (1972), the court need not do so because
plaintiff, Bruce Jorgensen, represents that he is an
attorney, “with a practice emphasizing federal civil
rights and governmental improprieties.” Ex. 2 to doc.
no. 43, p. 3; see, Mann v. Boatright, 477
F.3d 1140, 1148 n. 4 (10th Cir. 2007).
defendants named in a section 1983 action, such as the
defendants in the case at bar, may raise a defense of
qualified immunity. Estate of Booker v. Gomez, 745
F.3d 405, 411 (10th Cir. 2014). “Qualified
immunity protects officials ‘from liability for civil
damages insofar as their conduct does not violate establish
statutory or constitutional rights of which a reasonable
person would have known.'” Thomas, 765
F.3d at 1194 (quoting Harlow v. Fitzgerald, 457
U.S., 800, 818 (1982)). “Once the qualified immunity
defense is asserted, the [plaintiffs] ‘bear a
two-part burden' to show, first, ‘the
defendant's actions violated a constitutional or
statutory right,' and, second, that the right was
‘clearly established at the time of the conduct at
issue.'” Id. (quoting Archuleta v.
Wagner, 523 F.3d 1278, 1283 (10th Cir.
respect to the latter, “[a] right is clearly
established in this circuit ‘when a Supreme Court or
Tenth Circuit decision is on point, or if the clearly
established weight of authority from other courts shows that
the right must be as the [plaintiffs maintain].'”
Thomas, 765 F.3d at 1194 (quoting PJ ex rel.
Jensen v. Wagner, 603 F.3d 1182, 1196-1197
(10th Cir. 2010)). A previous decision need not be
‘materially factually similar or identical to the
present case; instead, the contours of the right must be
sufficiently clear that a reasonable official would
understand that what he is doing violates that
right.'” Id. (quoting Wagner, 603
F.3d at 1197). The court looks to see if “existing
precedent . . . placed the statutory or constitutional
question beyond debate.” Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011). “The dispositive question is
whether the violative nature of particular conduct
is clearly established.” Mullenix v. Luna, 136
S.Ct. 305, 308 (2015). Qualified “immunity protects
‘all but the plainly incompetent or those who knowingly
violate the law.'” White v. Pauly, 137
S.Ct. 548, 551 (2017) (quoting Mullenix, 136 S.Ct.
1983 of Title 42 of the United States Code provides that a
person acting under color of state law who “subjects,
or causes to be subjected, any citizen of the United States .
. . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured.” 42 U.S.C. § 1983.
From a review of the First Amended Complaint, it appears that
plaintiffs allege section 1983 claims for deprivation of
procedural due process and equal protection under the
Fourteenth Amendment and denial of the right to counsel under
the Sixth Amendment.
Procedural Due Process
assert that defendants violated Aage's procedural due
process rights by refusing to allow him representation by,
and consultation with, Mr. Thomas, during his detention
pending removal to Florida and by refusing to allow him
visitation from Ms. Morgan and Mr. McCollum.
procedural due process claim requires a plaintiff to show:
(1) that a recognized liberty or property interest has been
interfered with by the defendants; and (2) that the
procedures attendant to that deprivation were not
constitutionally sufficient. See, Kentucky Dept.
of Corrections v. Thompson, 490 U.S. 454, 460 (1989).
The court need not determine whether the facts alleged in the
First Amended Complaint show a deprivation of a liberty
interest. Moreover, the court need not determine
whether the facts alleged show that the procedures attendant
to any deprivation were not constitutionally sufficient. Even
if the court were to find plaintiffs have alleged facts to
support a procedural due process claim with respect to
Aage's right to representation by, and consultation with,
Mr. Thomas, plaintiffs have not cited and the court has not
found a case which would put defendants on notice that Aage
was entitled to representation by, and consultation with,
retained counsel, Mr. Thomas, after Aage, through appointed
counsel, consented to and was awaiting removal to Florida. In
their briefing, plaintiffs cite the Supreme Court's
decision in In re Gault, 387 U.S. 1 (1967). Although
the Supreme Court in that case held that a juvenile has the
right to counsel in a proceeding “where the issue is
whether the child will be found to be ‘delinquent'
and subjected to the loss of liberty for years, ”
id. at 36, the hearing at issue in the case at bar
was an extradition hearing. The First Amended Complaint
indicates that Aage was represented by appointed counsel
during the extradition proceeding. The Supreme Court in
In re Gault did not ...