Hawkins v. Dean

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

LISA HAWKINS, Individually;

and LISA HAWKINS, as Guardian for her

Minor Children, AM and MM PLAINTIFF

v. Civil No. 4:18-CV-04003

REYN BROWN, Parole Officer;

OFFICER DEAN, Hempstead County,

Arkansas; and DEBORAH MALEK,

Landlord DEFENDANTS

ORDER

Before the Court are two motions: a Motion to Dismiss filed by Separate Defendant Reyn

Brown (ECF No. 15) and a Motion to Dismiss filed by Separate Defendant Deborah Malek (ECF

No. 20). Plaintiff has responded to both motions. (ECF Nos. 26, 29). Separate Defendant Deborah

Malek filed a reply to Plaintiff’s response to her motion. (ECF No. 33). The Court finds these

matters ripe for consideration.

I. BACKGROUND

Plaintiff filed her Complaint pro se on January 5, 2018, pursuant to 42 U.S.C. § 1983.

(ECF No. 1). The Complaint was filed individually and as guardian for her minor children.

Plaintiff filed an Amended Complaint in response to this Court’s order on February 1, 2018. (ECF

No. 4). Plaintiff’s application to proceed in forma pauperis was granted on February 2, 2018.

(ECF No. 7). Plaintiff asserts her claims, as well as claims on behalf of her minor children, against

Defendants in both their individual and official capacities.

Plaintiff alleges that, while she was on parole from prison, Defendants unlawfully entered

her home and arrested her without probable cause. Specifically, Plaintiff asserts that Separate

Defendant Deborah Malek “gave the keys to [her] house to the parole officer without a warrant or

[her] permission.” Plaintiff claims that her children were kicked out of her home unlawfully

although she was current with her rent. Plaintiff asserts that her Fourth Amendment rights against

“unreasonable search and seizure” were violated and asserts that the arresting officer violated her

rights to due process, equal protection, freedom from excessive bail, and freedom from cruel and

unusual punishment. Plaintiff asserts a Fifth Amendment right to a grand jury, “protection against

self incrimination,” and “prohibition against taking of life, liberty or property without due process

of law.” Finally, Plaintiff asserts that Defendants were “neglectful” because they failed to call the

Arkansas Department of Human Services (“DHS”) for the protection of her minor children when

she was arrested.

Plaintiff seeks $500,000.00 in compensatory damages, $500,000.00 in punitive damages,

and $500,000.00 in damages for mental anguish.

II. LEGAL STANDARD

Rule 8(a) contains the general pleading rules and requires a complaint to present “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). “In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), ‘a

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.’” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678.

Although the Court will liberally construe a pro se plaintiff’s complaint, the plaintiff must allege

sufficient facts to support her claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).

III. DISCUSSION

42 U.S.C. § 1983 provides a federal cause of action for the deprivation, under color of law,

of a citizen’s “rights, privileges, or immunities secured by the Constitution and laws” of the United

States. In order to state a claim under section 1983, a plaintiff must allege that each defendant

acted under color of state law and that he or she violated a right secured by the constitution. West

v. Atkins, 487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999). The

deprivation must be intentional; mere negligence will not suffice to state a claim for deprivation

of a constitutional right under section 1983. Daniels v. Williams, 474 U.S. 327 (1986); Davidson

v. Cannon, 474 U.S. 344 (1986).

A. Claims of Minor Children

Initially the Court notes, as set forth above, that Plaintiff proceeds pro se and on behalf of

her minor children. However, a non-attorney parent may not appear pro se on behalf of a minor

but, instead, must be represented by counsel in bringing an action on behalf of his or her child.

Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (per curium). Accordingly, the Court finds

that Plaintiff’s claims on behalf of her minor children, AM and MM, should be dismissed.

B. Separate Defendant Reyn Brown’s Motion to Dismiss

In his Motion to Dismiss, Separate Defendant Reyn Brown argues that there was no

unlawful entry into Plaintiff’s home because Plaintiff had signed a warrantless search waiver as

part of her parole. Separate Defendant Brown argues that Plaintiff’s Amended Complaint states

that he contacted DHS concerning Plaintiff’s minor children and that she includes no facts to

support a claim that he negligently failed to inform DHS about her children’s whereabouts.

Finally, Brown argues that with respect to any official capacity claims, he is entitled to sovereign

immunity against Plaintiff’s claims for monetary damages. Likewise, Brown argues he is entitled

to qualified immunity as to Plaintiff’s individual capacity claims.

Plaintiff has responded to Separate Defendant Brown’s motion and asserts that her due

process rights were violated. She states that she was “arrested by Officer Brown” and that a

“parolee is entitled to the freedom granted a parolee until the results of the hearing are known

and the parole board or other authorized state agency acts.” Plaintiff further states that it is not

true that Officer Brown called DHS in her presence.

As set forth above, Plaintiff claims that Separate Defendant Brown unlawfully entered

her home in violation of her Fourth Amendment rights. According to Plaintiff’s Amended

Complaint, she was on parole at the time of the alleged illegal search. However, Arkansas law

requires that a person on parole agree to a waiver that allows any certified law enforcement

officer to conduct a warrantless search of his or her place of residence without suspicion. Ark.

Code Ann. § 16-93-106. Accordingly, the Court, taking judicial notice of the Arkansas statutory

law, finds that Plaintiff’s claim with respect to an illegal search by Separate Defendant Brown

should be dismissed. See McIndoo v. Burnett, 494 F.2d 1311, 1313 (8th Cir. 1974) (stating “the

law of any state of the Union, whether depending upon statutes or upon judicial opinions, is a

matter of which the courts of the United States are bound to take judicial notice, without plea or

proof”).

Plaintiff next claims that her rights were violated when Separate Defendant Brown was

“neglectful” in failing to contact DHS at the time of her arrest, rather than leaving her minor

children with her eighteen-year-old child. The Court notes that it is well settled that negligence

does not rise to the level of a constitutional violation under either the Eighth Amendment’s

prohibition against cruel and unusual punishment or the Fifth Amendment’s Due Process Clause.

See Farmer v. Brennan, 511 U.S. 825, 835 (1994); Tribble v. Ark. Dept. of Human Servs., 77

F.3d 268, 270 (8th Cir. 1996); Daniels, 474 U.S. 327.

Finally, the Court also notes that Brown is entitled to sovereign immunity with respect to

any claims in his official capacity because neither the State of Arkansas nor its agencies are

subject to suit under section 1983. Will v. Mich. Dept. of State Police, 491 U.S. 58 (1989).

Plaintiff’s official capacity claims against Brown, who is employed by a state agency, are the

equivalent of a suit against the State and Eleventh Amendment immunity precludes such claims.

See Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (Section 1983 suit could

not be brought against state commissioners in their official capacities, because such suit was no

different than a suit against the state itself); Morstad v. Dep’t of Corr. & Rehab., 147 F.3d 741,

743-44 (8th Cir. 1998) (Eleventh Amendment immunity bars section 1983 lawsuit against state

agency or state official in official capacity even if state entity is the moving force behind

deprivation of federal rights).

For all of these reasons, Separate Defendant Reyn Brown’s Motion to Dismiss (ECF No.

15) should be granted and Plaintiff’s claims against Separate Defendant Brown should be

dismissed.

C. Separate Defendant Deborah Malek’s Motion to Dismiss

Separate Defendant Deborah Malek argues that Plaintiff’s claims against her should be

dismissed for failure to state a claim in accordance with Rule 12(b)(6) of the Federal Rules of

Civil Procedure. Separate Defendant Malek asserts that she is a private citizen and there are no

allegations that she acted under the color of state law. Separate Defendant Malek also argues

that the constitutional deprivations alleged in the Amended Complaint are not claims for which

relief can be granted.

Plaintiff has responded to Separate Defendant Malek’s motion. Plaintiff contends that

Separate Defendant Malek violated her constitutional rights when she gave Separate Defendant

Brown “the key to her home without just cause.” Plaintiff also contends that Separate Defendant

Malek was “neglectful” in not notifying DHS about her children. Finally, Plaintiff asserts that

her Complaint should be construed liberally and that claims in tort could be present.

To determine the presence of state action, a court must examine the “record to determine

whether ‘the conduct allegedly causing the deprivation of a federal right [is] fairly attributable to

the State.’” Montano v. Hedgepeth, 120 F.3d 844, 848 (8th Cir. 1997) (quoting Lugar v.

Edmondson Oil Co., 457 U.S. 922, 937 (1982)). There can be no “fair attribution” unless the

alleged constitutional violation was “caused by the exercise of some right or privilege created by

the State or by a rule of conduct imposed by the State or by a person for whom the State is

responsible.” Lugar, 457 U.S. at 937. In addition, “the party charged with the deprivation must

be a person who may fairly be said to be a state actor. This may be because he is a state official,

because he has acted together with or has obtained significant aid from state officials, or because

his conduct is otherwise chargeable to the State.” Id.; see also Roudybush v. Zabel, 813 F.2d

173, 176-77 (8th Cir. 1987).

The facts set forth in Plaintiff’s Amended Complaint do not support any plausible cause

of action for relief under 42 U.S.C. § 1983 against Separate Defendant Malek. Plaintiff has not

alleged any facts showing that Separate Defendant Malek was acting under color of state law

during any of the events on which this lawsuit is based. Accordingly, the Court finds that

Separate Defendant Malek is not a state actor and that Plaintiff has failed to plead an actionable

section 1983 claim against Separate Defendant Malek.

The Court notes that Plaintiff’s Response to Separate Defendant Malek’s Motion states

that her “complaint should be liberally construed, and could be . . . a tort claim against Miss

Malek if not subject to claims for relief under 42 U.S.C. § 1983.” As set forth above, although

the Court will liberally construe a pro se plaintiff’s complaint, the plaintiff must allege sufficient

facts to support her claims. See Stone, 364 F.3d at 914. “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. Viewing the facts in

the light most favorable to Plaintiff, the Amended Complaint fails to set forth an actionable tort

claim. There are no facts to indicate that Separate Defendant Malek was a mandated reporter

with a duty to report to DHS under Arkansas Code Annotated § 12-18-402. See Mans v. Peoples

Bank of Imboden, 10 S.W.3d 885 (Ark. 2000). Further, there are no allegations that Separate

Defendant Malek failed to follow proper eviction procedure and no allegations that support a

claim for any property left in the rental premises after termination of the rental agreement. See

Ark. Code Ann. § 18-16-108 (“[U]pon the voluntary or involuntary termination of any lease

agreement, all property left in and about the premises by the lessee shall be considered abandoned

. . . .”).

For these reasons, Separate Defendant Deborah Malek’s Motion to Dismiss (ECF No. 20)

should be granted and Plaintiff’s claims against Separate Defendant Malek should be dismissed.

IV. CONCLUSION

For the reasons set forth above, the claims of Plaintiff’s minor children, AM and MM,

should be, and hereby are, DISMISSED. Further, Separate Defendant Reyn Brown’s Motion to

Dismiss (ECF No. 15) should be and hereby is GRANTED and Plaintiff’s claims against Separate

Defendant Brown are DISMISSED WITHOUT PREJUDICE. Finally, Separate Defendant

Deborah Malek’s Motion to Dismiss (ECF No. 20) should be and hereby is GRANTED and

Plaintiff’s claims against Separate Defendant Malek are DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED, this 11th day of July, 2018.

/s/ Susan O. Hickey

Susan O. Hickey

United States District Judge