Rowell v. KingRowell v. King
Case Information
*1 Before LUC ERO , Circuit Judge, BROR BY , Senior Circuit Judge, and M cCO NNELL , Circuit Judge.
*2
Plaintiffs appeal the district court’s order dismissing their complaint for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). They filed suit under 42 U.S.C. § 1983 and Kansas state law alleging that defendants violated their constitutional rights and committed various torts when defendant M ark R. King, while serving a writ of execution, entered their home and took their personal property. This appeal concerns only defendants Deborah Klaus and her daughter Kristi Klaus (the Klaus defendants). W e exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I. Background
Defendant-appellant Deborah Klaus оbtained a judgment against plaintiffs in a Kansas state court. The state court issued a writ of execution and Deborah Klaus hired defendant King, a private process server w ho was also her daughter’s employer, to serve the writ. King and defendant Don Evans, a police offiсer, went to plaintiffs’ home, where King ordered plaintiffs to turn over to him cash and items of personal property, including a truck, ostensibly to satisfy Deborah Klaus’ judgment. Officer Evans inquired if plaintiffs owned any firearms, and left the home shortly after ascertaining that no weapons werе present. After he left, King telephoned defendant Kristi Klaus, his employee and daughter of Deborah Klaus, who arrived at the scene and took photographs of the interior of plaintiffs’ residence. King loaded plaintiffs’ truck with many of their belongings and directed Kristi K laus to drive it аway, which she did.
Plaintiffs sued K ing, Officer Evans, Deborah Klaus, and Kristi Klaus, alleging that the intrusion into their home violated their rights under the Fourth and Fourteenth Amendments, giving rise to a cause of action under § 1983, as well as the state-law torts of intentional infliction of emotional distress, invasion of privacy upon seclusion, and aiding and abetting (against Kristi Klaus only). [1] The parties stipulated to dismissing the claims against Officer Evans and King. [2] The district court granted the Klaus defendants’ motion to dismiss plaintiffs’ claims against them for failure to state a claim under Rule 12(b)(6). The court denied plaintiffs’ subsequent motion to reconsider the dismissal order. Plaintiffs appeal, arguing that the district court applied the wrong standards under Rule 12(b)(6) and the court erred in dismissing their claims against the Klaus defendants.
II. Standard of Review
This court review s a Rule 12(b)(6) dismissal de novo , accepting all well-pleaded facts as true and in the light most favorable to the nonmoving pаrty. A 12(b)(6) motion should not be granted unless it *4 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
Yanaki v. Iomed, Inc.
,
III. Section 1983 Claims
Plaintiffs’ § 1983 claims are based on King’s and Officer Evans’ unauthorized entry into their home. This appeal concerns only plaintiffs’ claims against the Klaus defendants, however. M uch of plaintiffs’ appellate argument is directed to the actions of defendants King and Evans, matters we do not address except as they relate to the Klaus defendants.
“Title 42 U.S.C. § 1983 provides a remedy for deprivations оf rights
secured by the Constitution and laws of the United States when that deprivation
takes place ‘under color of any statute, ordinance, regulation, custom, or usage, of
any State or Territory.’”
Lugar v. Edmondson Oil Co.
,
a plaintiff must demonstrate that the alleged deprivation of constitutional rights was caused by the exercise of some right or privilege created by the Stаte or by a rule of conduct imposed by the State or by a person for whom the State is responsible. In addition, *5 the party charged with the deprivation must be a person who may fairly be said to be a state actor.
Id.
at 1447 (quotation and citation omitted). An actor neеd not be an officer of
the State to act under color of state law for § 1983 purposes.
Dennis v. Sparks
,
The Klaus defendants do not challenge plaintiffs’ characterizаtion of Officer Evans as a state actor. Plaintiffs assert that Officer Evans’ presence provided the requisite state action because if he had not been at their residence, they would not have permitted King to enter their home. As for King, plaintiffs contend that he was also a state actor because he was authorized by a state statute “to serve, levy and execute process.” Kan. Stat. Ann. § 61-3003a(d)(3). Plaintiffs maintain that even though the Klaus defendants were private persons, they must be considered state actors because they сonspired with, and acted in concert with, state actors King and Evans to violate their constitutional rights, thus making their conduct fairly attributable to the State. As discussed below, we need not determine whether King can be considered a state actor because even *6 assuming he was, we conclude that plaintiffs’ amended complaint fails to state a claim under § 1983.
(A) Conspiracy or Joint Action with O fficer Evans
W e first consider whether plaintiffs stated a claim that either of the Klaus
defendants conspired with Officer Evans or acted in concert with him to viоlate
their constitutional rights. There is no allegation that Deborah Klaus had any
contact or communication whatsoever with him. It is undisputed that Kristi Klaus
did not appear at plaintiffs’ residence until after Officer Evans had left. Plaintiffs
have not alleged “specific facts showing аn agreement and concerted action
amongst the defendants.”
Tonkovich v. Kan. Bd. of Regents
,
(B) Conspiracy or Joint Action with King
Turning to plaintiffs’ claims against the K laus defendants based on King’s
conduct, the bulk of those claims is that King exceeded his authority under the
state statutes pertaining to service of process, executions, and attachments.
See
*7
Kan. Stat. Ann. § 61-3003a(d)(3) (authorizing private persons “to serve, levy and
execute process”);
see also id.
§§ 60-706 & 60-2401 (governing writs of
execution and attachment orders). A claim that a defendant misused or abused a
state statute does not state a claim under § 1983.
Lugar
,
(i) Conspiracy
W e next consider plaintiffs’ claim that the Klaus defendants conspired with King to violate their constitutional rights. Deborah Klaus merely hired K ing as a process server, w hich plaintiffs aver “put in motion the events” that injured them. Aplt. Br. аt 29. This is insufficient to state a claim of conspiracy.
*8
As for Kristi Klaus, plaintiffs alleged that she came to their residence at
King’s behest, took pictures, and drove their truck away at K ing’s direction.
“W hen a plaintiff in a § 1983 action attempts to assert the necessary ‘state action’
by implicating state officials . . . in a conspiracy with private defendants, mere
conclusory allegations with no supporting factual averments are insufficient; the
pleadings must specifically present facts tending to show agreement and
concerted action.”
Scott v. Hern
,
[any] concerted activities.” Id. at 908. Consequently, plaintiffs have not stated a claim that Kristi Klaus conspired with K ing to violate their constitutional rights.
(ii) Joint Action
Plaintiffs also contend that the Klaus defendants engaged in joint action
with King that violated their constitutional rights. Even assuming King could be
considered a state actor, the amended complaint does not allege facts showing
that either of the Klaus defendants and King “share[d] a specific goal to violate
[their] constitutional rights by engaging in a partiсular course of action,”
Gallagher
,
IV. State Comm on-law Claims
Plaintiffs also appeal the district court’s dismissal of their state
common-law claims against both Klaus defendants for invasion of privacy upon
seclusion and intentional infliction of emotional distress. For their
*9
invasion-of-privacy claim, plаintiffs rely on the standard announced in
Froelich v.
Adair
,
As with the constitutional claims discussed above, plaintiffs’ allegations lumped together all defendants. Again, we are not concerned with King’s conduct. Plaintiffs based their claim for intentional infliction of emotional distress оn the following: “Defendants [sic] conduct in serving and executing the writ, the unlawful search and seizure of Larry Rowell, plaintiffs’ home and truck, and threats to arrest plaintiffs and subject them to public ridicule and embarrassment.” Aplt. App. at 33. Plaintiffs’ claim of invasion of privacy upon seclusion was based on “Defendants’ conduct in executing the illegal search and seizure of plaintiffs’ home and vehicle.” Id. at 34. Considering these allegations in the context of the Klaus defendants’ actions, we conclude that plaintiffs failed *10 to assert conduct on the pаrt of either of the Klaus defendants that rises to the level required to state a claim for outrage or invasion of privacy. Consequently, we conclude that the district court correctly dismissed these claims.
Finally, we address plaintiff’s claim of aiding and abetting against K risti Klaus only. In оrder to find her liable for aiding and abetting King to violate their rights under the Constitution and Kansas state law , the following elements must be established:
(1) The party whom the defendant aids must perform a wrongful act causing injury; (2) at the time the defendant provides assistance, he or she must be generally aware of his or her role in part of an overall tortious or illegal activity; and (3) the defendant must knowingly and substantially assist in the principal violation.
York v. InTrust Bank, N.A.
,
Although the amended complaint alleges sufficiently that King performed a wrongful act, thus satisfying the first factor, we agree with the distriсt court that plaintiffs’ allegations are insufficient to state a claim that Kristi Klaus met the remaining two factors. The amended complaint does not assert that she was aware of any tortious or illegal activity by King.
W e also agree with the district court’s conclusion that Kristi Klaus did not
provide substantial assistance to King. The Kansas Supreme Court has adopted
six factors “to determine if the aid is sufficient to establish liability under an
aiding and abetting theory.”
State ex rel. M ays v. Ridenhour
,
According to the amended complaint, Kristi Klaus arrived at the scene well after King had entered plaintiffs’ home, intimidated and upset them, taken various items of personal property, and loaded their belongings on the truck. She took pictures and drove the truck away. Although King’s actions may have been tortious, an issue we do not decide, Kristi Klaus did not participate in the bulk of King’s actions, let alone assist him in them. She w as there for a relatively short time and provided minimal assistance to King. Consequently, we affirm the district court’s dismissal of the aiding and abetting claim against K risti K laus.
V. Conclusion
The judgment of the district court is AFFIRMED.
Entered for the Court M ichael W . M cConnell Circuit Judge
Notes
[*] After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered 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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
[1] Plaintiffs have abandoned on appeal their remaining сlaims.
[2] The claims against King were dismissed without prejudice, a non-final order that did not transfer jurisdiction to this court. See Heimann v. Snead , 133 F.3d 767, 768-69 (10th Cir. 1998). In response to this court’s jurisdictional show cause order, the district court entered an order certifying the case for appeal under Fed. R. Civ. P. 54(b). See Stockman’s Water Co. v. Vaca Partners, L.P. , 425 F.3d 1263, 1265 (10th Cir. 2005). Plaintiffs’ notice of appeal then ripened, thus conferring appellate jurisdiction. See Lewis v. B.F. Goodrich Co. ,850 F.2d 641 , 645 (10th Cir. 1988).
[3] Plaintiffs attempt to distinguish
Scott
as applicable only to conspiracy
claims against private defendants. Aplt. Br. at 10 n.4. But here, as in
Scott
,
plaintiffs allege that private defendants are liable under § 1983 because they
conspired with state actors.
See Scott
,