Opinion
Civil Action No. 00-2184-CM.
February 7, 2001.
MEMORANDUM AND ORDER
This matter is before the court on defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. 6). Plaintiff alleges that defendants violated his constitutional rights under the Fourth, Fifth, and Fourteenth Amendments by executing two search warrants at his place of business. Plaintiff filed suit under 42 U.S.C. § 1983, 1985 and 1988, requesting injunctive relief and monetary damages. As set forth in detail below, defendants' motion to dismiss is granted and plaintiff's complaint is dismissed in its entirety.
I. Facts
Plaintiff J.S. Pawn, Inc. operates a pawn shop in Wyandotte County, Kansas. On April 29, 1998, the District Court of Leavenworth County, Kansas issued a search warrant authorizing the search of plaintiff's business premises in Wyandotte County. Defendants Ewart and Freeman, both Leavenworth County deputies, executed the search warrant by entering plaintiff's pawn shop on April 29, 1998 to recover suspected stolen property. Neither defendant Freeman nor defendant Ewart were authorized to execute a search warrant outside Leavenworth County at the time. The deputies recovered property which was subsequently used in the prosecution of a theft case.
Plaintiff alleges defendants Ewart and Freeman do not meet the requirements of Kan. Stat. Ann. § 22-2401a, the statute limiting deputy jurisdiction in the state of Kansas. Infra, at p. 7. For purposes of the 12(b)(6) motion, the court accepts plaintiff's factual assertion that defendants Ewart and Freeman did not meet the statutory requirements under Kan. Stat. Ann. § 22-2401a to validly authorize them to execute the warrants at issue in Wyandotte County (i.e., defendants Ewart and Freeman were not in fresh pursuit, and no other county requested their assistance). See Fed.R.Civ.P. 12(b)(6); Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir. 1998) (facts are viewed in light most favorable to the plaintiff in a motion to dismiss).
On June 22, 1999, the Leavenworth County District Court issued a second search warrant authorizing the search of plaintiff's pawn shop for additional suspected stolen items. Pursuant to the warrant, defendant Ewart returned to plaintiff's business in Wyandotte County on June 24, 1999, and recovered personal property which was subsequently used in a second criminal prosecution. In conducting this second search, defendant Ewart again conducted a search outside his jurisdiction of Leavenworth County.
See supra, note 1.
Plaintiff filed suit alleging that defendants Ewart and Freeman's execution of the search warrants outside of their jurisdiction violated his Fourth, Fifth, and Fourteenth Amendment rights. Plaintiff seeks relief from deputy defendants Ewart and Freeman, from their supervisor Sheriff Herbert Nye, and from the Board of County Commissioners of Leavenworth County, Kansas.
II. Motion to Dismiss Standards
The court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir. 1998). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
III. Discussion
Plaintiff filed suit under 42 U.S.C. § 1983, claiming his Fourth, Fifth, and Fourteenth Amendment rights were violated when defendants Ewart and Freeman, both Leavenworth County deputies, executed search warrants outside of their jurisdiction. Specifically, plaintiff claims that by violating Kan. Stat. Ann. § 22-2401a, the Kansas statute limiting deputy jurisdiction, defendants violated his constitutional rights. Plaintiff also filed suit under 42 U.S.C. § 1985, claiming defendants conspired to violate his constitutional rights, and 42 U.S.C. § 1988, claiming he is entitled to attorney's fees. Finally, plaintiff requested injunctive relief seeking to prevent defendants from executing future search warrants on plaintiff's property. Defendants seek to dismiss plaintiff's § 1983 claims, arguing both that plaintiff fails to state a claim for relief and that defendants are entitled to qualified immunity.
Before reaching the defendants' assertion of qualified immunity, the court first addresses whether plaintiff's allegations state a claim for violation of any constitutional right. Abeyta v. Chama Valley Indep. Sch. Dist., 77 F.3d 1253, 1255 (10th Cir. 1996) (noting court must first determine whether plaintiff's allegations state a claim for violation of any constitutional rights as a threshold inquiry to qualified immunity). The court will not reached the qualified immunity issues if plaintiff's claims are not actionable. Id.
As set forth in detail below, the court finds plaintiff fails to state a claim for each of his causes of action. Accordingly, the court does not reach defendant's qualified immunity arguments. Plaintiff's complaint is dismissed in its entirety.
A. Plaintiff's § 1983 Claim
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that he was deprived of a federal right by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). In their motion, defendants do not dispute that at the time the search warrants were executed defendants were acting under color of state law. Instead, defendants assert that plaintiff's § 1983 claims should be dismissed because the constitutional claims alleged are deficient. Defendants further argue they are entitled to immunity from the § 1983 claims.
B. Fourth Amendment Claim
Plaintiff claims that by violating the Kansas statute limiting deputy jurisdiction, defendants violated his Fourth Amendment rights. Defendants assert plaintiff fails to state a Fourth Amendment claim, arguing the searches performed by defendants Ewart and Freeman were conducted pursuant to a valid search warrant, and therefore did not violate the Fourth Amendment. As set forth below, the court finds that the plaintiff has failed to state a claim for violation of the Fourth Amendment.
Plaintiff fails to sufficiently allege a violation of any Fourth Amendment rights. The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches and seizures. U.S. Const. amend. IV; Soldal v. Cook County, Ill., 506 U.S. 56, 62 (1992). To be constitutionally valid under the Fourth Amendment, a search must be reasonable. That is, it must be conducted pursuant to a valid search warrant and executed in accordance with Fourth Amendment principles. "The Fourth Amendment requires only that the warrant contain probable cause supported by an oath or affirmation and a particular description of the place, persons, and things to be searched and seized." United States v. Green, 178 F.3d 1099, 1106 (10th Cir. 1999) (citing United States v. Wicks, 995 F.2d 964, 972 (10th Cir. 1993)). Further, "the general touchstone of reasonableness which governs Fourth Amendment analysis, see Pennsylvania v. Mimms, 434 U.S. 106, 108-109 (1977) (per curiam), governs the method of execution of the warrant." United States v. Ramirez, 523 U.S. 65, 71 (1998).
Plaintiff has made no specific allegation regarding any Fourth Amendment deficiencies either in the issuance or in the execution of the search warrants. Plaintiff does not claim the warrants were unsupported by probable cause or executed in an unreasonable manner. Instead, plaintiff asserts that by violating the Kansas statute regarding execution of state-issued search warrants, Kan. Stat. Ann. § 22-2401a, defendants Ewart and Freeman violated his federal Fourth Amendment rights. Section 22-2401a restricts the jurisdiction of county law enforcement officers to their own county except 1) when the officer is in fresh pursuit of a criminal or 2) when another county has requested assistance. Kan. Stat. Ann. § 22-2401a.
Despite this allegation, the plaintiff has not set forth facts to establish how defendants' execution of the state search warrants implicates his Fourth Amendment rights. Plaintiff asserts that "Leavenworth County Deputies were not in fresh pursuit or were summoned or requested by the Kansas City, Kansas Police Department. As such they acted beyond their authority and the execution of the search warrant and seizure of the pawned merchandise violated Kansas law and was illegal." (Pl. mem. in opposition, at p. 3).
Even where the defendants' conduct, as alleged by plaintiff, violates § 22-2401a, that same conduct does not necessarily implicate the Fourth Amendment. A violation of a state statute does not implicate the Fourth Amendment in all situations. Green, 178 F.3d at 1106; Clanton v. Cooper, 129 F.3d 1147, 1155 n. 4 (10th Cir. 1997) (plaintiff may not maintain a § 1983 action "for a state official's failure to adhere to state law" (citing Baker v. McCollan, 443 U.S. 137, 146 (1979))). Where a search warrant executed in violation of state law otherwise complies with federal law, no Fourth Amendment claim may be sustained. Green, 178 F.3d at 1106 (holding that Sedgwick County officers did not implicate the Fourth Amendment, even though their actions of obtaining and executing a search warrant in Butler County violated Kan. Stat. Ann. § 22-2401a, because the warrant itself was validly issued based on probable cause). The court finds plaintiff has not set forth facts or allegations sufficient to show that defendants' alleged conduct violated the Fourth Amendment. See Pueblo Neighborhood Health Ctrs., 847 F.2d at 646. Plaintiff's allegation that defendants' violation of § 22-2401a implicates his Fourth Amendment rights, without more, is not sufficient to state a Fourth Amendment claim. See Baker v. McCollan, 443 U.S. 137, 146 (1979) (stating § 1983 imposes liability only for violations of rights protected by the United States Constitution); Green, 178 F.3d at 1106.
Accordingly, the court finds the plaintiff has failed to state a Fourth Amendment claim against any individual defendant. Based upon this finding, plaintiff may not maintain a Fourth Amendment claim against the Board of County Commissioners. Butler, 172 F.3d at 747 (liability cannot be imposed upon a municipality where individual defendants whose actions gave rise to the claim did not violate plaintiff's constitutional rights (citing Wilson v. Meeks, 98 F.3d 1247, 1255 (10th Cir. 1996))); Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993)("A municipality may not be held liable where there was no underlying constitutional violation by any of its officers.").
Plaintiff's § 1983 claim based upon the Fourth Amendment is dismissed in its entirety.
C. Fifth and Fourteenth Amendment Claims
Plaintiff next alleges that defendants Ewart and Freeman's execution of search warrants outside their state authorized jurisdiction violated his Fifth and Fourteenth Amendment rights. The basis for these claims is unclear, however, as plaintiff does not specifically state how the defendants violated these constitutional rights. The court assumes, in the interest of fully examining plaintiff's claims, that plaintiff asserts both substantive and procedural due process claims.
Defendants argue that plaintiff's Fifth and Fourteenth Amendment claims should be dismissed because plaintiff failed to allege facts to support them. Specifically, defendants argue these claims should be dismissed because claims for an unreasonable search and seizure must be brought under the Fourth Amendment, the specific provision protecting an individual's right to be free from unreasonable searches and seizures.
1. Fifth Amendment Claim
The Fifth Amendment applies only to federal government action. U.S. Const. amend. V. There must be "`federal action' before there may be any deprivation of due process in violation of the Fifth Amendment." Junior Chamber of Commerce v. Missouri State Junior Chamber of Commerce, 508 F.2d 1031, 1033 (8th Cir. 1975) (citing Junior Chamber of Commerce v. United States Jaycees, 495 F.2d 883, 887 (10th Cir. 1974)). Plaintiff has not alleged any federal action. Plaintiff names as defendants county law enforcement officials and a county board of commissioners. Plaintiff makes no allegation that the actions of these defendants constitute federal action. Instead, he alleges that defendants acted "under color of State Law." (Pl. complaint, ¶¶ 21, 37). Accordingly, the court finds plaintiff has failed to state a claim under the Fifth Amendment. Plaintiff's Fifth Amendment claim is dismissed.
2. Fourteenth Amendment Claim
The court considers plaintiff's substantive and procedural due process claims as raised under the Fourteenth Amendment only.
~ Substantive Due Process Claim
Plaintiff fails to sufficiently allege a violation of any Fourteenth Amendment substantive due process rights. To determine if a plaintiff has been denied substantive due process rights under the Fourteenth Amendment, the court must first examine whether a specific constitutional provision protects the plaintiff's rights. Graham v. Connor, 490 U.S. 386, 395 (1989). If the plaintiff's rights are protected by a specific provision, the substantive due process claim will fail. Id. A plaintiff must bring a claim under a specific constitutional provision, if available, not under a general due process standard.
Plaintiff has alleged that the execution of two state search warrants violated his Fourteenth Amendment substantive due process rights. Because the Fourth Amendment specifically protects the plaintiff from unreasonable searches and seizures, the court finds he has failed to state a Fourteenth Amendment substantive due process claim. See U.S. Const. amend. XIV. Where the "Fourth Amendment provides an explicit source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims." Graham, 490 U.S. at 395 (referring to plaintiff's claim for excessive force). "Challenges to the reasonableness of a search by government agents clearly fall under the Fourth Amendment, and not the Fourteenth." Conn v. Gabbert, 526 U.S. 286, 293 (1999).
Accordingly, the court finds plaintiff has failed to state a Fourteenth Amendment substantive due process claim against any individual defendant. Based upon this finding, plaintiff may not maintain a substantive due process claim against the Board of County Commissioners. See Butler, 172 F.3d at 747. Plaintiff's Fourteenth Amendment substantive due process claim is dismissed in its entirety.
Procedural Due Process Claim
Plaintiff fails to sufficiently allege a violation of any Fourteenth Amendment procedural due process right. To determine if a plaintiff has been denied procedural due process under the Fourteenth Amendment, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and, if so, then (2) was the individual afforded an appropriate level of process. Palmer v. Unified Gov't of Wyandotte County, 72 F. Supp.2d 1237, 1252 (D.Kan. 1999) (quoting Hatfield v. Bd. of County Comm'rs, 52 F.3d 858, 862 (10th Cir. 1995)).
Plaintiff is able to meet the first part of the procedural due process test because he has alleged a protected property interest as determined by state law. See Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 577 (10th Cir. 1996) (whether protected property interest exists is determined by reference to state law). Under Kansas law, a pawnbroker has a possessory interest in goods at his pawn shop, which entitles the pawnbroker to due process. In re Two (2) Bose Speakers, 17 Kan. App.2d 179, 182, 835 P.2d 1385, 1388 (1992) (citing Wolfenbarger v. Williams, 774 F.2d 358 (10th Cir. 1985)).
As plaintiff has a protected interest in the goods in his pawn shop, he is entitled to due process both before any deprivation of his property and before the final disposition of his property. Id.; Winters v. Bd. of County Comm'rs, 4 F.3d 848, 853 (10th Cir. 1993) (stating pawn shop owner entitled to due process consisting of notice before police dispose of stolen property recovered at the pawn shop). Plaintiff's complaint does not reference the final disposition of the property removed from his business premises during the searches at issue. Therefore, the court assumes plaintiff's complaint alleges only pre-deprivation due process violations.
Where, as here, plaintiff has failed to sufficiently allege that defendants unreasonably searched his business premises in violation of the Fourth Amendment, his Fourteenth Amendment due process claim fails. The procedural due process right affords plaintiff no more protection than his right to be free from unreasonable seizure, since the Fourth Amendment's probable cause requirement was "`tailored explicitly for the criminal justice system, and its balance between individual and public interests always has been thought to define the "process that is due" for seizures of persons or property in criminal causes.'" Pino v. E.P. Higgs, 75 F.3d 1461, 1469 (10th Cir. 1996) (holding where appellant failed to establish appellees unreasonably seized her in violation of the Fourth Amendment, her Fourteenth Amendment due process claims also necessarily fail (quoting Gerstein v. Pugh, 420 U.S. 103, 125 n. 27 (1975))).
Because plaintiff has not adequately alleged that defendants acted unreasonably in violation of the Fourth Amendment in obtaining or executing the search warrants at issue, it therefore follows that he has not sufficiently alleged that defendants violated his procedural due process rights. Plaintiff does not allege that probable cause did not exist, that the warrants were vague, that the district judge did not have jurisdiction to grant the warrant, or any other deficiencies with the process before the warrant was granted. Further, plaintiff does not allege that defendants' execution of the warrant was unreasonable, only that such execution failed to comply with Kansas state law.
Accordingly, the court finds plaintiff has failed to state a Fourteenth Amendment procedural due process claim against any individual defendant. Based upon this finding, plaintiff may not maintain a procedural due process claim against the Board of County Commissioners. See Butler, 172 F.3d at 747. Plaintiff's Fourteenth Amendment procedural due process claim is dismissed in its entirety.
Remaining Claims
Plaintiff has also asserted claims for relief under 42 U.S.C. § 1985 and 1988 and a separate claim for injunctive relief. Defendant has not specifically moved the court for dismissal of these causes of action. Given that each of the remaining causes of action is dependent upon the substantive claims herein dismissed by the court, the court examines the remaining claims sua sponte.
Section 1985First, plaintiff asserts in the introduction to his complaint that he seeks injunctive relief and damages under the provisions of 42 U.S.C. § 1985. He does not separately plead a cause of action for § 1985, or provide any specific basis for this claim. Section 1985 provides an avenue for prosecution of conspiracies to violate civil rights. See 42 U.S.C. § 1985. Section 1985(1) protects federal officers, § 1985(2) protects participants in the judicial process, such as parties and witnesses, and § 1985(3) prohibits conspiracies to violate civil rights. Id. Based upon the allegations in plaintiff's complaint, § 1985(3) is relevant here.
Section 1985(3) provides a remedy where a plaintiff can show "(1) the existence of a conspiracy (2) intended to deny [him] equal protection under the laws or equal privileges and immunities of the laws (3) resulting in an injury or deprivation of federally-protected rights, and (4) an overt act in furtherance of the object of the conspiracy." Steinert v. Winn Group, Inc., 83 F. Supp.2d 1234, 1238 (D.Kan. 2000) (citations omitted).
Section 1985(3) is not itself a source of substantive rights. Rather, "[t]he rights, privileges, and immunities that § 1985(3) vindicates must be found elsewhere." United Bhd. of Carpenters Joiners v. Scott, 463 U.S. 825, 833 (1983). Therefore, where the underlying claims upon which a § 1985(3) claim is based fail, the § 1985(3) claim must also fail. Here, the court has dismissed plaintiff's underlying civil actions. No other substantive, independent claims remain pending. Accordingly, there are no claims remaining upon which plaintiff may base a § 1985(3) civil conspiracy claim. Plaintiff's § 1985 claim is dismissed in its entirety.
Section 1988Second, plaintiff seeks to state a cause of action under 42 U.S.C. § 1988 seeking attorneys fees as a "prevailing party" for his § 1983 and § 1985 causes of action. Section 1988 provides that "[i]n any action or proceeding to enforce a provision of sections 1983, 1985 . . ., the court, in its discretion, may allow the prevailing party, . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988(b). Because the court has dismissed plaintiff's § 1983 and § 1985 causes of action, he may not be a "prevailing party" for purposes of establishing eligibility for attorney's fees under § 1988. Farrar v. Hobby, 506 U.S. 103, 109 (1992) (qualifying as "prevailing party" under attorney fee provision requires plaintiff to obtain at least some relief on merits of claim). Plaintiff's § 1988 claim is dismissed in its entirety. 3. Injunctive Relief
Third, plaintiff seeks injunctive relief related to the constitutional claims raised under § 1983 and the conspiracy claims raised under § 1985. The court finds such relief is unavailable as plaintiff has failed to establish that he could prevail on the merits of his § 1983 and § 1985 claims. See Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980) (finding that a plaintiff seeking injunctive relief must establish as part of a four-part test that he has a substantial likelihood of eventually prevailing on the merits of his underlying claim). Accordingly, plaintiff's claim for injunctive relief is dismissed in its entirety.
Order
IT IS THEREFORE ORDERED that defendants' motion to dismiss for failure to state a claim (Doc. 6) is granted. Plaintiff's § 1983 claim for alleged violations of the Fourth, Fifth, and Fourteenth Amendments is dismissed in its entirety. Plaintiff's § 1985 claim based upon a conspiracy to violate his constitutional rights is also dismissed in its entirety. Further, plaintiff's 42 U.S.C. § 1988 claim seeking attorney's fees related to plaintiff's § 1983 and § 1985 causes of action is also dismissed. Finally, plaintiff's claim for injunctive relief related to plaintiff's § 1983 and § 1985 causes of action is also dismissed. Because no claims remain pending, plaintiff's complaint is dismissed in its entirety.