Opinion
Civil Action No. 01-2179-CM.
March 22, 2002.
Lee R. Barnett, Keith E. Renner, Barnerr Renner, PA, Auburn, KS, Kenneth D. Winford, Tenth Judicial District Public Defender, Olathe, for Plaintiffs.
Allen G. Glendenning, Watkins, Caleara, Rondeau, Friedeman, Bleeker, Glendenning McVay, Chtd., Great Bend, KS, David R. Cooper, Fisher, Patterson, Sayler Smith, Topeka, KS, for Defendants.
MEMORANDUM AND ORDER
This case arises out of the search of plaintiffs' homes and the seizure of their persons in response to concerns that certain plaintiffs planned an armed attack on Labette County High School (LCHS) in Altamont, Kansas. Following the events giving rise to this action, plaintiffs filed suit against defendant Greg Cartwright, principal of LCHS, and defendant Dennis Wilson, Superintendent of Schools, individually and in their official capacities as agents of defendant U.S.D. 506. Plaintiffs also filed suit against defendant U.S.D. 506. Plaintiffs filed their suit under 42 U.S.C. § 1983 alleging that these three defendants, together with other named defendants, violated their rights under the Fourth Amendment to be free from unreasonable search and seizure and their rights under the Fourteenth Amendment to receive both procedural and substantive due process. In addition, plaintiffs have filed several related state law claims against defendants.
Pending before the court is defendants Greg Cartwright, Dennis Wilson and U.S.D. 506's Motion to Dismiss (Doc. 8). As set forth in detail below, defendants' motion is granted in part.
As noted below, the court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), and all reasonable inferences from those facts are viewed in favor of the plaintiff. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984).
On December 17, 1999, certain defendants learned of an attack on LCHS allegedly planned by plaintiffs Daniel Smith, Josh Traxson, Jestin McReynolds, Aaron Spencer, and Brian Vail (hereinafter referred to as the "five student plaintiffs"). On December 17, two fellow students of these five student plaintiffs at LCHS informed a teacher of "false threats of a planned shooting at the high school by Daniel Smith, Jestin McReynolds, Josh Traxson, Aaron Spencer, and Brian Vail." (Pls.' Compl. at ¶ 57).
On December 17, "a meeting occurred in the office of Greg Cartwright regarding [one of the informing student's] false allegations of a planned attack on Labette County High School by [the five student plaintiffs]." ( Id. ¶ 58). At the meeting, one of the informing students told a group "about an armed attack and gave specific details about the attack." ( Id.). The group included defendants Greg Cartwright (LCHS Principal), James Barber (City of Altamont's Chief of Police), William Blundell (Labette County Sheriff), Scott Higgins (Labette County Detective), C.W. Davis (Labette County Undersheriff), and Dennis Wilson (U.S.D. 506 Superintendent); the informing student's parents; and other non-parties. This informing student indicated that the five student plaintiffs "had formulated a plan to make a well coordinated attack at Labette County High School on Monday, December 20, 1999." ( Id.). The informing student also reported that the five student plaintiffs "had drawn up a map of the school and how they would make their attack. [The informing student] indicated that the boys had laid out black clothing, a 9 mm handgun, an SKS rifle, a sawed off shotgun, and several .22 caliber rifles and handguns in the room." ( Id.). The informing student also indicated the five student plaintiffs intended to drive a car into the school.
Based on this information, certain defendants drafted affidavits used to obtain several search warrants. On December 18, at 1:30 a.m. the first search warrant was executed at plaintiff Debra Smith's home. Shortly thereafter "the other searches took place. Arrested and taken in for questioning to the Sheriff's office were: Daniel Smith, Josh Traxson, Jestin McReynolds, Brian Vail . . . and Aaron Spencer. Fifty-four members of the combined forces of the Kansas Bureau of Investigation, Kansas Highway Patrol, Labette County Sheriff's Office, Altamont Police Department and the Kansas State Fire Marshall's Office participated in the after midnight raids in which the five teenage boys, now known as the Altamont Five were arrested." ( Id. ¶ 64).
Subsequently, the following Monday, "five Juvenile Complaint/Informations were executed and filed by defendant [Robert] Forer charging Daniel Smith, Josh Traxson, Jestin McReynolds, Bryan Vail and Aaron Spencer with eight counts of conspiring to commit First Degree Murder." ( Id. ¶ 69). On January 19, 2000, plaintiff Mallory Sanders "was charged in a Juvenile Complaint . . . with a Kansas Severity Level 6 felony charge of Aggravated Intimidation of a witness." ( Id. ¶ 76).
Following much media attention, both local and national, the charges against the five student plaintiffs were dismissed on April 14, 2000. During their incarceration, the five student plaintiffs spent approximately 50 to 60 days confined, first at the Southeast Kansas Juvenile Detention Center in Girard, Kansas and then beginning in February 2000 they were moved to "the basement cell in Oswego." ( Id. ¶ 82). Following their release they remained under house arrest, until the charges were dismissed.
Plaintiffs now assert that defendants' actions violated their rights and caused them to suffer damages. Relevant to the present motion, plaintiffs Debra, Daniel, and Kendra Smith; Billy, Alverda, and Jestin McReynolds; Josh Traxson; William, Denise, and Aaron Spencer; Gail and Bryan Vail; and Mallory Sanders assert under 42 U.S.C. § 1983 that defendants Cartwright, Wilson, and U.S.D. 506 violated their Fourth Amendment right to be free from search and seizure (arrest) without probable cause (Counts 1 and 2). Plaintiffs Daniel Smith, Jestin McReynolds, Josh Traxson, Aaron Spencer, and Bryan Vail assert under § 1983 that these three defendants violated their Fourteenth Amendment right to procedural due process (Count 6). Plaintiffs Daniel Smith, Jestin McReynolds, Josh Traxson, Aaron Spencer, Bryan Vail, and Mallory Sanders also assert under § 1983 that these three defendants violated their Fourteenth Amendment right to substantive due process (Count 7). In addition, several plaintiffs have raised state law claims of false arrest (Count 10), defamation (Count 11), and outrageous conduct (Count 12) against several defendants, including defendants Cartwright, Wilson, and U.S.D. 506.
In the pending motion, defendant U.S.D. 506 asserts that plaintiffs have failed to state a claim against it because there are insufficient allegations of a custom or policy resulting in a constitutional deprivation. Moreover, defendant U.S.D. 506 asserts that the allegations against defendants Cartwright and Wilson, U.S.D. 506 actors, are insufficient to establish liability on behalf of U.S.D. 506.
In addition, with respect to Counts 1 and 2, defendants Cartwright, Wilson, and U.S.D. 506 assert that they are not state actors within the meaning of § 1983, and therefore, plaintiffs may not maintain these § 1983 actions against them. Defendants Cartwright and Wilson further assert that even if they are deemed to be state actors pursuant to § 1983, they are entitled to qualified immunity from plaintiffs' constitutional claims raised in Counts 1, 2, 6, and 7. Defendants Cartwright and Wilson also assert that plaintiffs' allegations in Counts 1, 2, 6, and 7 are insufficient to state a claim for relief against them.
Finally, defendants each argue that where the federal claims raised against them are dismissed, no basis remains for the court to assert supplemental jurisdiction over the state law claims raised against them in Counts 10, 11, and 12. Accordingly, these defendants assert that all counts raised against them should be dismissed and that they should be dismissed as defendants from this action.
Defendants further assert, without supporting argument, that the state law claims raised against them in Counts 10, 11, and 12 should be dismissed because they are either barred by the applicable statute of limitations in Kan. Stat. Ann. § 60-514(a) (b) or plaintiffs have failed to allege that all "condition[s] precedent" set forth in Kan. Stat. Ann. § 12-405b, necessary to bringing suit under Kansas law, have been met. (Defs.' Mem. at 18).
II. Motion to Dismiss Standard
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, 144 F.3d at 1304, 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. Swanson, 750 F.2d at 813. 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).
• Discussion
A. School District Liability (U.S.D. 506)
Defendant U.S.D. 506 argues that plaintiffs have failed to sufficiently allege a cause of action against it. Specifically, defendant contends that "there can be no liability imposed [upon U.S.D. 506] based [upon] respondeat superior." (Defs.' Mem. at 10). Defendants appear to argue that because there are insufficient allegations of a custom or policy, any school district liability depends upon the sufficiency of the allegations against the school district actors — defendants Cartwright and Wilson. Moreover, defendant U.S.D. 506 argues that the allegations against defendants Cartwright and Wilson are insufficient to state a claim of liability against the school district. The court agrees in part, as set forth below.
• School District Liability Under 42 U.S.C. § 1983 School districts, as quasi-municipal agencies, can be sued for monetary, declaratory, or injunctive relief for depriving a plaintiff of constitutional or civil rights. Seamons v. Snow, 206 F.3d 1021, 1029 (10th Cir. 2000) (citing Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978)). As defendant U.S.D. 506 asserts, however, a "municipality cannot . . . be held liable for the actions of its employees under the theory of respondeat superior." Id . (citing Monell, 436 U.S. at 691). Therefore, municipal liability may not be premised upon the employment of a person who has violated a plaintiff's federally protected rights. Id . Instead, a municipal wrong is one resulting from the enforcement of a municipal policy or custom. Id . In essence, to establish municipal liability a plaintiff must show that "the unconstitutional actions of an employee were representative of an official policy or custom of the municipal institution, or were carried out by an official with final policy making authority with respect to the challenged action." Seamons, 206 F.3d at 1029 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480-83 (1986) (plurality opinion) and Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1248-49 (10th Cir. 1999)). Therefore, to establish municipal liability, "a plaintiff must show (1) the existence of a municipal custom or policy and (2) a direct causal link between the custom or policy and the violation alleged." Jenkins v. Wood , 81 F.3d 988, 993-94 (10th Cir. 1996) (citing City of Canton v. Harris , 489 U.S. 378, 385 (1989)). A municipal policy may be established by a single edict or act by a municipal official with final policy making authority. Monell , 436 U.S. at 694. Therefore, municipal liability may be premised upon a single decision by a municipal official with final policy making authority. Praprotnik , 485 U.S. at 123-24; Pembaur , 475 U.S. at 480-81. Whether an official has policy making authority depends upon state law. Praprotnik , 485 U.S. at 124. Here, plaintiffs allege that both defendants Cartwright and Wilson are a "policy setting official for U.S.D. 506 and, as such, their actions constitute the official actions and policies of U.S.D. 506." (Pls.' Compl. at ¶ 133). In addition, construing the plaintiffs' complaint broadly, the court finds plaintiffs have further alleged that their rights were violated by U.S.D. 506 through defendants Cartwright and Wilson's actions in "setting district policy" regarding their involvement in the investigation of the alleged attacks by the five student plaintiffs and either carrying that policy out or directing others to do so. Accordingly, the court finds plaintiffs have made sufficient allegations of a municipal custom or policy and of a direct causal connection between that custom or policy and the alleged violation. Jenkins , 81 F.3d at 993-94. However, despite these allegations, plaintiffs may fail to state a claim against U.S.D. 506 where the allegations of constitutional wrongdoing by defendants Cartwright and Wilson are insufficient to state a claim for relief. Where municipal liability is based upon U.S.D. 506's alleged responsibility for a policy making official's allegedly unconstitutional conduct, and a plaintiff fails to state a claim against the policy making official, dismissal of charges against the municipal entity is appropriate. Los Angeles v. Heller , 475 U.S. 796, 799 (1986); Moss v. Colo. Springs , 871 F.2d 112, 114 (10th Cir. 1989). That is, where there are not sufficient allegations of wrongdoing by defendants Cartwright and Wilson, as U.S.D. 506's policy making officials, no municipal liability can by based upon defendants Cartwright and Wilson's alleged wrongdoings.
As set forth below, the court finds plaintiffs have failed to state claim under the Fourth Amendment against defendants Cartwright and Wilson regarding: 1) the application for and execution of a search warrant (Count 1); and 2) their involvement in the prosecution of criminal charges against plaintiffs (Count 7). Accordingly, given the above analysis, the court finds plaintiffs have failed to state the same claims against defendant U.S.D. 506. Therefore, Count 1 and Count 7 are dismissed against defendant U.S.D. 506. However, as set forth below, the court finds plaintiffs have stated a claim against defendants Cartwright and Wilson for violation of the Fourth Amendment for unlawful seizure (Count 2), but has also found these defendants are qualifiedly immune from suit under Count 2. Despite this, Count 2 may proceed against the municipal entity, defendant U.S.D. 506. See Watson, 857 F.2d at 697 ("While it would be improper to allow a suit to proceed against the city if it was determined that the officers' action did not amount to a constitutional violation, there is nothing anomalous about allowing such a suit to proceed when immunity shields the individual defendants.").
As noted in § III. B. 4., infra, the court construes Count 7 of plaintiffs' complaint as alleging a Fourth Amendment claim involving wrongful or malicious prosecution, rather than a Fourteenth Amendment claim.
• Individual Liability (Cartwright and Wilson)
Defendants Cartwright and Wilson assert that, with respect to Counts 1 and 2, they are not state actors within the meaning of § 1983. Moreover, these defendants assert that even if they are deemed state actors, they are qualifiedly immune from the constitutional claims raised against them in Counts 1, 2, 6, and 7. In addition, defendants Cartwright and Wilson argue that plaintiffs have failed to state any constitutional claims against them. As set forth below, the court agrees in part.
• Qualified Immunity
Qualified immunity protects state actors from liability when acting within the scope of their employment. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity provides government officials immunity from suit as well as from liability for their discretionary acts. Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985); Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir. 1988). The doctrine of qualified immunity serves the goals of protecting public officials "who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Butz v. Economou, 438 U.S. 478, 506 (1978).
Where a defendant raises the defense of qualified immunity in the context of a motion to dismiss, the court conducts a two part inquiry. First, the court must determine whether the plaintiff has asserted a violation of a constitutional or federal statutory right. Neiberger v. Hawkins, 6 Fed. App. 683, 685-86 (10th Cir. 2001). Only where the complaint alleges a valid claim must the court proceed to the next inquiry. Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 516 (10th Cir. 1998) (citing County of Sacramento v. Lewis, 523 U.S. 833, 842 n. 5 (1998)). Next, the court examines whether the right allegedly violated is "'sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Id. (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Ordinarily, for a law to be clearly established, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992); see also Anderson, 483 U.S. at 640 (a right is clearly established if the contours of the right are "sufficiently clear [so] that a reasonable official would understand that what he is doing violates that right").
The Supreme Court has established a two-part approach to determine if qualified immunity applies. "[T]he better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question." Tonkovich, 159 F.3d at 516 (citing County of Sacramento, 523 U.S. at 842 n. 5). That is, only where the complaint alleges a valid claim must the court determine whether the constitutional right was clearly established so that reasonable officials would have understood that their conduct violated that right. Albright v. Rodriguez, 51 F.3d 1531, 1534-35 (10th Cir. 1995).
The court no longer applies a heightened pleading standard in the context of a qualified immunity defense. See Currier v. Doran, 242 F.3d 905 (10th Cir.), cert. denied 122 S.Ct. 543 (2001). Our review of the qualified immunity defense raised in a motion to dismiss is limited to the pleadings. Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994). In assessing the pleadings, we construe the allegations in the complaint, and any reasonable inferences to be drawn therefrom, in favor of the petitioner. See Sutton v. Utah State Sch. for Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
The court follows this two-step test to analyze the issue of qualified immunity raised by defendants here. Butler v. City of Prairie Vill., Kan., 172 F.3d 736, 745 (10th Cir. 1999).
• Count 1: 42 U.S.C. § 1983 Fourth Amendment Search Without Probable Cause
Defendants Cartwright and Wilson contend that plaintiffs have failed to state a claim against them because they are not state actors within the meaning of § 1983. Defendants Cartwright and Wilson further contend that plaintiffs have failed to state a claim against them because they "had absolutely no role" in either "securing" any search warrants or in "executing" them. (Defs.' Mem. at 6). Specifically, these defendants appear to assert that plaintiffs' allegations do not sufficiently allege that they personally participated in the alleged violation. Defendants Cartwright and Wilson contend that their actions were "too far removed" from the alleged constitutional violation to state a claim under the Fourth Amendment. ( Id. at 11). Finally, defendants Cartwright and Wilson contend they are entitled to qualified immunity from plaintiffs' Fourth Amendment unreasonable search claim. As set forth below, the court finds that, even if it assumes the moving defendants are state actors within the meaning of § 1983, plaintiffs have failed to state a claim against them in Count 1.
In Count 1, plaintiffs allege that defendants violated their right to be free from unreasonable search. Specifically, with respect to the moving defendants, plaintiffs' complaint alleges that on December 17, 1999, the informing student "went to the principal, Greg Cartwright, and informed him of the alleged plot by [the five student plaintiffs] to make an armed attack on the high school." Plaintiffs next allege that on December 18, defendant "Cartwright called the Kansas Highway Patrol Hotline and reported [the informing student's] allegations." (Pls.' Compl. at ¶ 102). Next, plaintiffs allege defendant Cartwright called several defendants, including Dennis Wilson and "related these allegations to them." ( Id.). These defendants, including defendants Cartwright and Wilson then "gathered in Cartwright's office and interviewed [the informing student]."
Plaintiffs further assert that "[b]ased upon the collective investigation by the defendants, defendants Higgins and Blundell prepared an affidavit in support of a search warrant and obtained a search warrant based upon the affidavit executed by Higgins." ( Id. ¶ 103). Plaintiffs contend that the "search warrants were based solely on information received from [the informing students]." ( Id. ¶ 59). In addition, plaintiffs assert that "[d]uring the early morning hours of December 18, 1999, defendants Higgins, Barber, C.W. Davis, aided by other members of local law enforcement and other agencies outside of their jurisdictions, conducted searches of each of the plaintiff's homes." ( Id. ¶ 103).
a. Fourth Amendment Requirements
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. For a valid warrant to issue, it must appear from the affidavits supporting the application for the warrant that "there is probable cause to believe that an offense has been committed and that the defendant has committed it." Fed.R.Crim.P. 4; Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir. 1991) (citing Wong Sun v. United States, 371 U.S. 471, 481 n. 9 (1963)). "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)). Moreover, "the general touchstone of reasonableness which governs Fourth Amendment analysis, see Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (per curiam), governs the method of execution of the warrant." United States v. Ramirez, 523 U.S. 65, 71 (1998).
• Personal Participation
To prevail under § 1983, a plaintiff must establish that a defendant "acted under color of state law and caused or contributed to the alleged violation." Jenkins, 81 F.3d at 994 (emphasis added). Accordingly, to state a § 1983 claim, a plaintiff "must show the defendant personally participated in the alleged violation." Id. Plaintiffs assert that the court should examine their Fourth Amendment claims against the moving defendants in the context of the Kansas state law tort claims of false arrest and false imprisonment. Under these standards, plaintiffs assert, they have sufficiently alleged personal participation by the moving defendants for purposes of plaintiffs' Fourth Amendment unreasonable search claims. As set forth below, the court disagrees.
• Relevant State Common Law Claims
The Supreme Court has noted that § 1983 "creates a species of tort liability." Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986) (internal quotation marks omitted).
"[O]ver the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under § 1983 as well." Carey v. Piphus, 435 U.S. 247, 257-258, 98 S.Ct. 1042, 1048-1050, 55 L.Ed.2d 252 (1978). Thus, to determine whether there is any bar to the present suit, we look first to the common law of torts.Heck v. Humphrey, 512 U.S. 477, 483 (1994). In addition to examining the common law elements of the most analogous tort, the court must always, when examining a § 1983 constitutional claim, reach "the ultimate question . . . of whether the plaintiff has proven a constitutional violation." Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996).
The court agrees that the common law cause of action for false arrest and imprisonment provides the closest analogy to the plaintiffs' Fourth Amendment claims of unreasonable seizure raised in Count 2. However, the court does not agree that these common law actions are analogous to plaintiffs' unreasonable search claims raised in Count 1.
Pursuant to Kansas common law, the terms "false arrest" and "false imprisonment" are both used in the courts of Kansas to mean "any unlawful physical restraint by one of another's liberty, whether in prison or elsewhere." Gariety v. Fleming, 121 Kan. 42, 45, 245 P. 1054 (1926). "One seeking to recover for false arrest must prove he was unlawfully caused to be arrested by the defendant and, though it is not necessary that the arrest be directly ordered by the defendant, it must appear that the defendant either instigated it, assisted in it, or by some means directed or encouraged it." Thurman v. Cundiff, 2 Kan. App. 2d 406, 408, 580 P.2d 893, 897 (1978). Whether a defendant has sufficiently directed or instigated an arrest is a fact-specific determination. Id. "'It is not necessary, to impose liability, that the defendant expressly direct the arrest. Nor need he be present when the arrest is actually made. However, he must take some active part in bringing the arrest about that is, there must be some affirmative act on his part which induces the officer to make the arrest. . . .'" Id. (citing 32 Am. Jur. 2d, False Imprisonment, § 35 at 98-99). Clearly, these torts are relevant to plaintiffs' unreasonable seizure claim, not to their unreasonable search claim.
• Personal Participation in Application for and Execution of Search Warrants
Therefore, the court examines the sufficiency of plaintiffs' allegations of personal participation under Count 1 in the general context of Fourth Amendment requirements. Here, plaintiffs have not alleged that defendant Cartwright or Wilson personally participated in the drafting of the search warrant affidavit, in seeking its issuance, or in executing the search warrants issued. Instead, plaintiffs' allegations contend that defendants Cartwright and Wilson violated their Fourth Amendment rights by their actions in receiving information from the informing student, passing it along to law enforcement personnel, and organizing and participating in a meeting on school premises where the informing student provided further information to law enforcement personnel that led to the search warrants and the ultimate arrest of the five student plaintiffs. Without authority indicating that such actions are sufficient to state a Fourth Amendment unreasonable search claim, the court finds plaintiffs have failed to state a Fourth Amendment claim for unreasonable search against defendants Cartwright and Wilson. Therefore, the court finds plaintiffs' complaint fails to make sufficient allegations of personal participation by defendants Cartwright and Wilson regarding the application for and execution of the search warrant.
Because plaintiffs have failed to state a claim against defendants Cartwright and Wilson under the Fourth Amendment regarding either the application for or the execution of the search warrants in this case, defendants' motion is granted on this basis. Count 1 of plaintiffs' complaint is dismissed against defendants Cartwright and Wilson.
• Qualified Immunity
The court finds it unnecessary to reach defendants Cartwright and Wilson's assertion of qualified immunity regarding Count 1. Tonkovich, 159 F.3d at 516 (where defense of qualified immunity raised, court should first determine whether plaintiff alleged deprivation of constitutional right and "it is only then that a court should ask whether the right allegedly implicated was clearly established.").
• Count 2: 42 U.S.C. § 1983 Fourth Amendment Seizure Without Probable Cause
Defendants Cartwright and Wilson contend that their arguments regarding Count 1 apply to Count 2. Specifically, these defendants assert that there is "no allegation in the Complaint, nor could one reasonably be made, that these defendants participated in the arrest of the plaintiffs." (Defs.' Mem. at 11). In addition, these defendants assert that they are not state actors within the meaning of § 1983 and further, that they are qualifiedly immune from suit on Count 2 of plaintiffs' complaint. The court disagrees, as set forth below.
In Count 2 plaintiffs allege that defendants violated their right to be free from unreasonable seizure. Specifically, plaintiffs assert that "based upon the search warrants obtained . . . a search of the homes of the Smith family, the McReynolds family, the Spencer family, and the Vail family were conducted during the early morning hours of December 18, 1999. . . . no evidence supporting the allegations of the armed attack by these plaintiffs made by [the informing student] was discovered during the search of these plaintiffs' homes." (Pls.' Compl. at 38, ¶ 107). Moreover, plaintiffs allege that "[d]espite no discovery of any evidence to support the allegations made by [the informing student] against these plaintiffs, they were arrested and taken into custody." ( Id . ¶ 109). In addition, plaintiffs specifically allege that "[e]ven after conducting searches of each of the boy's homes, the arresting officers lacked reasonably trustworthy information sufficient to lead a prudent person to believe that [the five student plaintiffs] had committed, were committing, or were about to commit an offense." ( Id . ¶ 110). Plaintiffs assert that the five student plaintiffs were "seized (arrested) based solely on the unsubstantiated allegations of [the informing student] . . . [and allege] these allegations did not amount to probable cause." ( Id . ). Fourth Amendment Requirements "Law enforcement personnel may arrest a person without a warrant if there is probable cause to believe that person committed a crime." United States v. Wright, 932 F.2d 868, 877 (10th Cir. 1991). A court will find probable cause to arrest when facts and circumstances from a reasonably trustworthy source are within the officer's knowledge and sufficiently warrant a person of reasonable caution to believe a crime has been or is being committed by the person to be arrested. See United States v. Morgan, 936 F.2d 1561, 1568 (10th Cir. 1991).
State Actors
To prevail under § 1983, a plaintiff must establish that a defendant "acted under color of state law and caused or contributed to the alleged violation." Jenkins, 81 F.3d at 994 (emphasis added). "The traditional definition of acting under color of state law requires that the defendant in a Section(s) 1983 action exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West v. Atkins, 487 U.S. 42, 48 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
Here, plaintiffs assert that defendants Cartwright and Wilson, by virtue of their positions as employees and/or agents of defendant U.S.D. 506, facilitated the questioning of the informing students. Plaintiffs further assert that it is this information and the moving defendants' participation in gathering it that led to the unlawful seizure of the five student plaintiffs in violation of the Fourth Amendment. Specifically, plaintiffs assert that defendants Cartwright and Wilson were present at the meeting on December 17, 1999, where the informing students were questioned about the attack allegedly planned by the five student plaintiffs, "as officials of the school district to conduct school district business." (Pls.' Resp. at 5). Plaintiffs argue that these defendants "called the meeting and were there to participate in the proceedings as representatives of the school district" and that these defendants "required the presence of [the informing student] at this meeting as school district employees." ( Id.) Moreover, plaintiffs allege that these defendants "would not have had the authority or power to encourage, participate in and facilitate the investigation and eventual arrest of the plaintiffs." Accordingly, plaintiffs assert defendants Cartwright and Wilson are state actors for purposes of this cause of action. The court agrees.
In Monell v. Department of Social Services of New York, 436 U.S. 658, 691-94 (1978), the Supreme Court held that Congress intended § 1983 to apply to local government entities. Moreover, in New Jersey v. T.L.O., 469 U.S. 325, 334 (1985), the Supreme Court noted that "the actions of public school officials are subject to the limits placed on state action by the Fourteenth Amendment." Id. Given the state's establishment of the authority of public school officials over their students, the New Jersey Court determined that public school officials are subject to the Fourth Amendment's strictures when conducting searches of public school students. Id. at 336.
Here, considering the Supreme Court's decisions regarding the state action of public school officials and the concept that § 1983's "under color of state law" requirement is treated as the equivalent to the "state action" requirement under the Fourteenth Amendment, the court finds that under the facts alleged here, defendant Cartwright and Wilson's actions can fairly be construed as action taken "under color of state law." See Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (holding that 1983's "under color of state law" requirement equivalent to Fourteenth Amendment's "state action" requirement).
Moreover, the court finds it is not unreasonable for the state, which authorizes a school district — a quasi-municipal agency — to act, to be responsible for the allegedly unconstitutional conduct of the school district employees when the wrongful conduct occurs when they act in their capacity as employees of the school district. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619 (1991) (noting the under color of state law requirement "avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed"). Defendants' motion is denied on this basis.
Personal Participation
Applying the Jenkins standard discussed above, the court finds plaintiffs have sufficiently alleged that defendants Cartwright and Wilson personally participated in the arrest of plaintiffs in this case. Jenkins, 31 F.3d at 994.
As noted above, the court finds plaintiffs' Fourth Amendment unreasonable seizure claims should be examined within the context of the common law claims of false arrest and false imprisonment. See Heck, 512 U.S. at 483. Therefore, plaintiffs may state a § 1983 Fourth Amendment unreasonable seizure claim where they allege defendants took "some active part in bringing the arrest about" or allege that defendants took "some affirmative act . . . which induces the officer to make the arrest.'" Thurman, 2 Kan. App. 2d at 408, 580 P.2d at 897 (citing 32 Am.Jur. 2d, False Imprisonment, § 35 at 98-99).
In their complaint, plaintiffs alleged that defendants Cartwright and Wilson violated their Fourth Amendment rights. Specifically, plaintiffs allege these two defendants violated their rights by their actions in receiving information from the informing student, passing it along to law enforcement personnel, and organizing and participating in a meeting on school premises where the informing student provided further information to law enforcement personnel that led to the search warrants and the ultimate arrest of the five student plaintiffs.
Therefore, although plaintiffs have not alleged that defendants Cartwright and Wilson were direct participants in the arrest, the court finds plaintiffs have alleged facts that these defendants "instigated [the arrests], assisted in [the arrests], or by some means directed or encouraged [the arrests]." Thurman, 2 Kan. App. 2dat 408, 580 P.2d at 897. Therefore, plaintiffs have satisfied the requirement to plead that "the defendant personally participated in the alleged violation." Jenkins, 81 F.3d at 994. Defendants' motion is denied on this basis.
d. Immunity from Suit
Defendants Cartwright and Wilson also contend that they are qualifiedly immune from plaintiffs' Fourth Amendment arrest claims. Having found plaintiffs stated a Fourth Amendment claim against defendants Cartwright and Wilson regarding the five student plaintiffs' arrests, the court next examines whether the constitutional right alleged was clearly established so that reasonable officials would have understood that their conduct violated that right. Albright, 51 F.3d at 1534-35.
The court finds that it has long been clearly established an arrest must be based on probable cause. Wright, 932 F.2d at 877. Moreover, the court finds it is clearly established that probable cause to arrest may be based on "facts and circumstances within the officer's knowledge and of which the officer had reasonably trustworthy information . . . sufficient to warrant a prudent officer in believing that the defendant had committed or was committing a crime." United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999). However, plaintiffs cite no authority that a school official acting under the circumstances alleged here should have known that their conduct in assisting the police to obtain information ultimately used to arrest the five student plaintiffs was in violation of those plaintiffs' clearly established rights. As noted, in order for a plaintiff to demonstrate that a law is clearly established, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina, 960 F.2d at 1498; see also Anderson, 483 U.S. at 640 (a right is clearly established if the contours of the right are "sufficiently clear [so] that a reasonable official would understand that what he is doing violates that right").
Therefore, the court finds plaintiffs have not asserted a violation of a constitutional right that is "'sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Neiberger, 6 Fed. App. at 685-86 (citing Id.). Accordingly, the court finds defendants Cartwright and Wilson are qualifiedly immune from plaintiffs' Fourth Amendment arrest claim as set forth in Count 2. Defendants' motion is granted on this basis.
• Count 6:42 U.S.C. § 1983 Fourteenth Amendment Procedural Due Process
Defendants Cartwright and Barber contend that plaintiffs fail to a state procedural due process claim against them, considering the process plaintiffs did receive. Moreover, these defendants assert they are entitled to qualified immunity from plaintiffs' procedural due process claims. As set forth below, the court disagrees.
• Procedural Due Process
In Count 6, plaintiffs allege the moving defendants violated their rights to procedural due process under the Fourteenth Amendment. Specifically, plaintiffs allege that the moving defendants "denied plaintiffs their Fourteenth Amendment rights to due process of law in the manner in which they suspended [the five student plaintiffs] from school without probable cause to believe they had violated any laws or school regulations and without due process of law." (Pls.' Compl. at ¶ 131). Plaintiffs allege that the defendants "had predetermined the actions they would be taking against the plaintiffs prior to any notice or opportunity for hearing and, thus, [the five student plaintiffs] were not afforded any meaningful notice or meaningful opportunity to be heard in regard to their suspensions. Even after it was discovered that the [student] informant, had fabricated the entire incident [the five student plaintiffs] were not allowed to return to their school in order to complete the requirements for the school year." ( Id )
A student "faced with the possibility of suspension from public school is entitled to due process." West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1364 (10th Cir. 2000). According to the Supreme Court, "students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing." Goss v. Lopez, 419 U.S. 565, 579 (1975). In Goss, the Supreme Court found that where a public school student faces a suspension of ten days or less, "due process requires . . . that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story." Id. at 581-82
• Application
The court finds plaintiffs' allegations are sufficient to state a procedural due process claim against the moving defendants. As noted, plaintiffs allege that the moving defendants "denied plaintiffs their Fourteenth Amendment rights to due process of law in the manner in which they suspended [the five student plaintiffs] from school . . . [and that defendants] . . . had predetermined the actions they would be taking against the plaintiffs prior to any notice or opportunity for hearing and, thus, [the five student plaintiffs] were not afforded any meaningful notice or meaningful opportunity to be heard in regard to their suspensions. Even after it was discovered that the [student] informant, had fabricated the entire incident [the five student plaintiffs] were not allowed to return to their school in order to complete the requirements for the school year." (Pls.' Compl. at ¶ 131).
Although defendants outline the process plaintiffs allegedly did receive with respect to the five student plaintiffs' suspensions, the court must assess the viability of plaintiffs' due process allegations based only upon the complaint. See Maher, 144 F.3d at 1304; Swanson, 750 F.2d at 813. The complaint does not reflect the process defendants assert was provided. Accordingly, considering the liberal pleading requirements provided for in Fed.R.Civ.P. 8(a), the court finds plaintiffs have sufficiently stated a claim for denial of procedural due process against defendants Cartwright and Wilson. Fed.R.Civ.P. 8(a) (requiring only a "short and plain statement of the claim showing that the pleader is entitled to relief").
• Immunity from Suit
Moreover, the court finds defendants Cartwright and Wilson are not qualifiedly immune from plaintiffs' Fourteenth Amendment procedural due process claim. The court finds that pursuant to the Supreme Court's decision in Goss v. Lopez, it has long been clearly established that a public school student is entitled to due process involving, " some kind of notice and afforded some kind of hearing." Goss, 419 U.S. at 579. Accordingly, the court finds the constitutional right alleged was clearly established so that reasonable officials would have understood that their conduct, as alleged in the complaint, violated that right. Albright , 51 F.3d at 1534-35. Accordingly, the court finds defendants Cartwright and Wilson are not qualifiedly immune from plaintiffs' Fourth Amendment arrest claim as set forth in Count 6. Defendants' motion is denied on this basis.
• Count 7: 42 U.S.C. § 1983 Fourteenth Amendment Substantive Due Process
In Count 7, plaintiffs allege that defendants violated their right to receive substantive due process. Specifically, plaintiffs allege that "[d]efendants initiated prosecution against the [five student plaintiffs], and later Mallory Sanders, in such a manner as to violate their substantive due process rights under the Fourteenth Amendment. The defendants named herein exercised their power in an arbitrary and oppressive manner. Their activities shock the conscience and/or interfere with rights implicit in the concept of ordered liberty. Their actions were willful and wanton and were done with a reckless disregard for plaintiff's [sic] rights. Defendants had ample time to consider the actions and conform their behavior to legal requirements prior to taking any action . . . in regard to the plaintiffs. Defendants acted recklessly and were deliberately indifferent to the constitutional rights of plaintiff." (Pls.' Compl. at ¶ 137). Plaintiffs specify that Count 7 "applies to defendants . . . U.S.D. 506, Dennis Wilson, [and] Greg Cartwright." ( Id. ¶ 138).
Defendants assert that the moving defendants were not "involved in the chain of events which served to initiate the prosecution of the plaintiffs." (Defs.' Mem. at 15). Therefore, defendants argue plaintiffs have failed to state a Fourteenth Amendment substantive due process claim against them.
• Substantive Due Process
First, the court notes that it construes Count 7 of plaintiff's complaint as alleging a Fourth, rather than Fourteenth Amendment claim. As noted, plaintiffs allege in Count 7 that the prosecution against the five student plaintiffs and plaintiff Mallory Sanders was initiated in a willful and wanton manner and with a reckless disregard for plaintiffs' rights. Plaintiffs allege defendants' conduct in conjunction with their prosecution violated their Fourteenth Amendment substantive due process rights. Accordingly, the court construes Count 7 of plaintiffs' complaint as asserting a malicious prosecution-like claim.
In Albright v. Oliver, 510 U.S. 266 (1994), a plurality of the Supreme Court held that the Fourth Amendment governed "pretrial deprivations of liberty." Id. at 274-75. Therefore, the constitutional right implicated when a malicious-prosecution like claim is raised under § 1983 is a Fourth, rather than Fourteenth, Amendment right. Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996). As noted by the Tenth Circuit in Taylor v. Meacham, Fourteenth Amendment substantive due process standards have no applicability in a § 1983 malicious prosecution Fourth Amendment action. Id. (reconciling prior Tenth Circuit precedent and concluding that noting "our circuit takes the common law elements of malicious prosecution as the 'starting point' for the analysis of a § 1983 malicious prosecution claim, but always reaches the ultimate question, which it must, of whether the plaintiff has proven a constitutional violation . . . [and noting that] [f]ollowing Albright, in the § 1983 malicious prosecution context, that constitutional right is the Fourth Amendment right to be free from unreasonable seizures"). The court, therefore, addresses plaintiffs' claims in Count 7 in a Fourth Amendment context.
• Personal Participation
Applying the Jenkins standard discussed above, the court examines whether the allegations of defendants Cartwright and Wilson's involvement in the allegedly wrongful conduct satisfy § 1983's personal participation requirement. See Jenkins , 81 F.3d at 994.
Plaintiffs, in essence, assert that defendants Cartwright and Wilson's actions led to the wrongful prosecution of plaintiffs. However, plaintiffs have not alleged that defendants Cartwright and Wilson initiated any prosecution, signed any pleadings in the plaintiffs' cases or prepared any affidavits in support of the cases, or that they were involved in any other manner either in the decision to bring criminal charges against the student plaintiffs or in commencing or advancing the prosecution against the students.
Considering that plaintiffs' Fourth Amendment claim (pled as a Fourteenth Amendment substantive due process claim) is based on the prosecution of the charges against the five student plaintiffs and plaintiff Mallory Sanders, and considering the lack of allegations regarding defendants Cartwright and Wilson's involvement in the prosecution of these charges, the court finds plaintiffs have failed to sufficiently allege the necessary personal participation by defendants Cartwright and Barber. Accordingly, the court finds plaintiffs have failed to state a Fourth Amendment claim for wrongful or malicious prosecution against defendants Cartwright or Barber in Count 7. Defendants' motion is granted on this basis. Accordingly, the court finds it unnecessary to reach defendants Cartwright and Wilson's assertion of qualified immunity regarding Count 7. See Tonkovich , 159 F.3d at 516 (where defense of qualified immunity raised court should first determine whether plaintiff alleged deprivation of constitutional right and "it is only then that a court should ask whether the right allegedly implicated was clearly established"). The court dismisses Count 7 as alleged against defendants Cartwright and Wilson.
• State Law Claims (Defendants City and Barber) — Supplemental Jurisdiction
Finally, defendants argue plaintiffs' state law claims against defendants Cartwright, Wilson, and U.S.D. 506 should be dismissed where no federal claims remain against these defendants. Because the court has declined to dismiss all federal claims against the moving defendants, the court finds no merit in defendants' arguments for dismissal of plaintiffs' supplemental state law claims. See 28 U.S.C. § 1367(a) (court may exercise supplemental jurisdiction over state law claims if they are sufficiently related to a pending claim over which the court has original jurisdiction) and id. § 1367(c) (court need not exercise supplemental jurisdiction and may decline to do so under § 1367(c) if the court "has dismissed all claims over which it has original jurisdiction").
Moreover, the court notes that the moving defendants also assert that the state law claims raised against them in Counts 10, 11, and 12 should be dismissed because they are either barred by the applicable statute of limitations in Kan. Stat. Ann. § 60-514(a) (b) or because plaintiffs have failed to allege that all "condition[s] precedent" set forth in Kan. Stat. Ann. § 12-405b, necessary to bringing suit under Kansas law, have been met. (Defs.' Mem. at 18). However, because defendants have provided no support for their assertions, the court declines to reach them. Defendants' motion is denied on this basis.
• Conclusion IT IS THEREFORE ORDERED that defendants' Motion to Dismiss (Doc. 8) is granted in part. Count 1 of plaintiffs' complaint is dismissed against defendants Cartwright, Wilson, and U.S.D. 506. Count 2 is dismissed against defendants Cartwright and Wilson in their individual capacities, but remains against defendant U.S.D. 506. In addition, Count 7 of plaintiffs' complaint is dismissed against defendants Cartwright, Wilson, and U.S.D. 506.
IT IS SO ORDERED. Dated this day of March 2002, at Kansas City, Kansas.