Jorgensen v. Hawk

          ORDER

          STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE.

         Before 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.

         I.

         Background

         Plaintiffs, 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.^[1], ^[2] 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.

         Defendants 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.

         II.

         Standard of Review

         “At 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 (10^th 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.

         As 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 (10^th Cir. 2007).

         Individual 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 (10^th 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 (10^th Cir. 2008)).

         With 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 (10^th 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. at 308).

         III.

         Section 1983 Claims

         Section 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.

         A. Procedural Due Process

         Plaintiffs 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.

         A 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.^[3] 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 ...