Welch v. Saunders

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 29, 2017
• Docket: 17-1202
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 29, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court LESLIE WILLIAM WELCH; EVA WELCH, a minor child, by and through her next friend, Leslie William Welch; HAYDEN WELCH, a minor child, by and through her next friend, Leslie William Welch,

Plaintiffs - Appellants,

v. No. 17-1202 (D.C. No. 1:15-CV-02286-WJM-STV) JANE SAUNDERS; JOHN SPAW; (D. Colo.) KATHLEEN MUELLER; TED MINK,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and O’BRIEN, Circuit Judges. _________________________________

Plaintiffs Leslie Welch and his two minor children appeal the district court’s

orders granting the defendants dismissal and summary judgment on their claims

brought under 42 U.S.C. § 1983 and Colorado state law. They alleged that Kathleen

Mueller and Jefferson County, Colorado Sheriff’s personnel (Sheriff Defendants)

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. violated their Fourth, Fifth, and Fourteenth Amendment rights when they enforced a

protection order and required Plaintiffs to move out of their leased residence. They

also alleged that Ms. Mueller and Deputies Saunders and Spaw (the Deputies)

committed civil theft under Colorado law by denying them access to their leasehold

and personal property that was damaged or lost. We exercise jurisdiction under 28

U.S.C. § 1291 and affirm.

I. BACKGROUND

We recite the facts alleged in the First Amended Complaint (the Complaint),

which is the operative complaint. Mr. Welch leased real property at 5035 McIntyre

Street, Golden, Colorado, from the property owner, Kenneth Mueller. The property

consists of two buildings—a main house and a barn (the Barn), which includes a

front and rear garage. Mr. Welch leased the Barn for a family residence and a

storage facility for his business equipment.

Ms. Mueller obtained a county-court protection order against Mr. Mueller, her

former husband, dated August 17, 2013 (the August Protection Order). The order

included a provision that “no tenants and or caretakers employed by [Kenneth

Mueller are] authorized to live on [the] property at 5035 McIntyre St.” Aplt. App. at

102. The August Protection Order was modified on October 4, 2013, to remove that

provision (the October Protection Order).

In October 2013 Ms. Mueller attempted to evict Plaintiffs from the Barn by

filing an unlawful-detainer action, but the court dismissed the case. In November

2013, Ms. Mueller nailed shut a door connecting the Barn to the front garage.

2 Mr. Welch reported this, as well as the disappearance of his personal property, to the

Sheriff’s Department. Deputy Saunders directed Mr. Welch to surrender the

garage- door opener to Ms. Mueller, despite knowing that Mr. Welch was the

leaseholder.

On March 17, 2014, the Deputies directed Plaintiffs to vacate the Barn as

required by the August Protection Order. Deputy Spaw falsified his report to state

that the protection order had been amended on January 16, 2014, when, in fact, it had

not. The official court registry would have revealed this.

Plaintiffs vacated the Barn on March 17, 2014, and did not return until after

the county-court judge entered an order on July 24, 2014, clarifying that they were

not required to vacate the Barn. Upon their return, they found that some of their

property was damaged or missing.

Plaintiffs filed suit, asserting claims against the Sheriff Defendants under

§ 1983 for violation of their Fourth, Fifth, and Fourteenth Amendment rights, and

against Ms. Mueller as a private party who “participated in and fully facilitated the

actions of” the Deputies, id. at 82. They alleged that Sheriff Mink was liable under

§ 1983 for his failure to supervise and train the Deputies and that Ms. Mueller and

the Sheriff Defendants conspired to deprive them of their property. They also

brought claims of civil theft against Ms. Mueller and the Deputies under Colo. Rev.

Stat. §§ 18-4-401 & 18-4-405.

The district court disposed of the case in two orders. First, it granted in part

the motion to dismiss under Fed. R. Civ. P. 12(b)(6), ruling that Plaintiffs had failed

3 to state a § 1983 claim against Sheriff Mink or Ms. Mueller. The court also ruled

that the civil-theft claim against Ms. Mueller and the Deputies failed to state a claim.

Second, the district court granted summary judgment in favor of the Deputies on the

remaining § 1983 claims.

II. DISCUSSION

A. Standards of Review

“We review a Rule 12(b)(6) dismissal de novo.” Nixon v. City & Cty. of

Denver, 784 F.3d 1364, 1368 (10th Cir. 2015) (internal quotation marks omitted). In

doing so, “[w]e accept all the well-pleaded allegations of the complaint as true and

construe them in the light most favorable to [Plaintiffs]. To survive a motion to

dismiss, a complaint must contain sufficient factual matter to state a claim to relief

that is plausible on its face.” Id. (citation, ellipses, and internal quotation marks

omitted).

We also review de novo a district court’s order granting summary judgment,

“applying the same standards that the district court should have applied.”

Schanzenbach v. Town of Opal, 706 F.3d 1269, 1272 (10th Cir. 2013) (internal

quotation marks omitted). “Summary judgment is appropriate if the pleadings and

the record establish that there is no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law.” Id. Plaintiffs do not assert that any

of the Sheriff Defendants are liable in their official capacities so we consider only

whether they are liable in their individual capacities.

4 B. Dismissal of Claims Against Sheriff Mink

Plaintiffs contend that Sheriff Mink is personally liable for damages incurred

from their removal from the Barn on March 17, 2014. But the Complaint fails to

identify any action by him (as opposed to a subordinate) that contributed to

Plaintiffs’ alleged injuries. “Government officials may not be held liable for the

unconstitutional conduct of their subordinates under a theory of respondeat

superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). As we have explained,

“[Section] 1983 imposes liability for a defendant’s own actions—personal

participation in the specific constitutional violation complained of is essential.”

Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011). It is not enough to say that

Sheriff Mink failed to protect Plaintiffs, when the Complaint provides no particulars

on what relevant information he had or what specific action he should have taken.

We affirm the order dismissing the claims against Sheriff Mink.

C. Dismissal of § 1983 Claims Against Ms. Mueller

Plaintiffs alleged that Ms. Mueller was liable under § 1983 because she

requested the Deputies to enforce the August Protection Order knowing it had been

modified to remove the provision that “no tenants and or caretakers employed by

[Kenneth Mueller are] authorized to live on [the] property at 5035 McIntyre St.,”

Aplt. App. at 102. The district court dismissed the § 1983 claims against

Ms. Mueller, holding that the amended complaint failed to allege the requisite joint

action between Ms. Mueller and the Sheriff Defendants. We affirm.

5 To state a claim under § 1983, Plaintiffs must allege “that they were deprived

of a right secured by the Constitution or laws of the United States, and that [this]

deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 49-50 (1999). “[T]he under-color-of-state-law element of

§ 1983 excludes from its reach merely private conduct, no matter how discriminatory

or wrongful.” Id. at 50 (internal quotation marks omitted).

Private conduct constitutes state action if it is “fairly attributable to the State.”

Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). In general, however,

“private misuse of a state statute does not describe conduct that can be attributed to

the State.” Id. at 941. And merely reporting an offense to state officials does not

satisfy the color-of-state-law requirement. See Benavidez v. Gunnell, 722 F.2d 615,

618 (10th Cir. 1983). In particular, when a private person invokes the aid of state

personnel and institutions to seize property from someone, the private person does

not act under color of state law unless the state law being applied is unconstitutional

or the private person has participated in a conspiracy with the state personnel.

See Yanaki v. Iomed, Inc., 415 F.3d 1204, 1209-10 (10th Cir. 2005).

The Complaint contains no allegation that any statute is unconstitutional. It

relies solely on Ms. Mueller’s interaction with the Deputies. But, as noted by the

district court, the Complaint does not come close to asserting facts showing that she

conspired with them. Indeed, Plaintiffs do not argue to the contrary on appeal.

Dismissal of the § 1983 claim against her was therefore proper.

6 Plaintiffs’ reliance on Wyatt v. Cole, 504 U.S. 158 (1992), is misplaced. That

case involved a challenge to the constitutionality of a state replevin statute, and the

issue before the Court was the availability of qualified immunity to private persons.

Its holding is irrelevant here.

D. Dismissal of Civil-Theft Claims against Ms. Mueller and Deputies

Plaintiffs brought civil-theft claims against Ms. Mueller and the Deputies,

under Colo. Rev. Stat. §§ 18-4-401 & 18-4-405. To prevail on such a claim, the

plaintiff must “establish that (1) defendant knowingly obtained control over his

property without authorization and (2) defendant did so with the specific intent to

permanently deprive him of the benefit of the property.” Huffman v. Westmoreland

Coal Co., 205 P.3d 501, 509 (Colo. App. 2009). The district court properly

dismissed these claims. The Complaint does not adequately allege that any of the

defendants obtained control over Plaintiffs’ property, and the Complaint alleges no

facts that would support the conclusion that any defendant intended to permanently

deprive Plaintiffs of their property.

E. Summary Judgment Granted to Deputies

The district court granted the Deputies’ summary-judgment motion,

concluding that they were entitled to absolute quasi-judicial immunity. Under the

doctrine of quasi-judicial immunity, “officials charged with the duty of executing a

facially valid court order enjoy absolute immunity from liability for damages in a suit

challenging conduct prescribed by that order.” Moss v. Kopp, 559 F.3d 1155, 1163

(10th Cir. 2009) (brackets and internal quotation marks omitted). We have held that

7 for a state official to be entitled to quasi-judicial immunity, not only must the court

order be facially valid, but “[1] the judge issuing the disputed order must be immune

from liability in his or her own right, [2] the officials executing the order must act

within the scope of their own jurisdiction, and [3] the officers must only act as

prescribed by the order in question.” Id.

Plaintiffs’ challenge to the district court’s grant of quasi-judicial immunity to

the Deputies appears to focus only on whether the August Protection Order was

facially valid when they used it to direct Plaintiffs to vacate the Barn. They make

three arguments. First, they claim that the Deputies should have known that such

orders can be modified and therefore they should have checked the court registry and

discovered that the language requiring removal from the Barn had been deleted.

Second, they claim that the Deputies had specific information that the Order had been

amended and therefore should have discovered the deletion of the operative language.

Third, they claim that the Deputies should have known that the order could not have

required Plaintiffs to do anything because Plaintiffs were not parties to the order.

To assess this challenge, it is helpful to set forth the policies that support

requiring only that the order be facially valid. “State officials must not be required to

act as pseudo-appellate courts scrutinizing the orders of judges.” Turney v. O’Toole,

898 F.2d 1470, 1473 (10th Cir. 1990) (internal quotation marks omitted). To hold

them liable “for executing an order because the order did not measure up to statutory

standards would have just that effect.” Id. “The public interest demands strict

adherence to judicial decrees.” Valdez v. City & Cty. of Denver, 878 F.2d 1285, 1289

8 (10th Cir. 1989). Granting officers quasi-judicial absolute immunity when they

execute court orders “they are powerless to control” serves the interests of “[s]imple

fairness” and “the court’s authority and ability to function.” Moss, 559 F.3d at 1165.

“‘Facially valid’ does not mean ‘lawful.’ An erroneous order can be valid.” Turney,

898 F.2d at 1473.

Thus, for an order to be “facially valid” means simply that it is valid on its

face. The availability of immunity to officials executing an order does not depend on

the officials’ researching the law, checking court records, or doing anything beyond

looking at the face of the order. If nothing else, imposing such duties would slow the

essential work of executing orders, impairing “the court’s authority and ability to

function.” Moss, 559 F.3d at 1165. We conclude that the order here was facially

valid.

If the Deputies knew that the August Protection Order had been superseded,

we would have a more challenging issue to resolve. But the record would not support

a finding of such knowledge. Plaintiffs point to a statement in Deputy Spaw’s

incident report of March 17, 2014, stating that the “order was amended on

January 16, 2014, by Honorable Thomas E. Vance.” Aplt. App. at 233. Deputy

Spaw later submitted an affidavit, however, explaining that at the time he “believed

that the protection order [Ms. Mueller] provided was an amended protection order

issued on January 16, 2014, because the court clerk had signed, stamped, and dated

this certified copy of the protection order on January 16, 2014.” Id. at 238. Nothing

in the record casts doubt on that assertion. The explanation makes sense; there in

9 fact was no amended order issued on January 16, 2014; and, most importantly, the

incident report goes on to state that the “amended” order contained the very “no

tenants” language of the August Protection Order that was later deleted. See id. at

233. The district court properly granted quasi-judicial immunity to the Deputies.

III. CONCLUSION

The district court’s judgment is affirmed.

Entered for the Court

Harris L Hartz Circuit Judge