Jorgensen v. Oklahoma Juvenile Affairs Office

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

AAGE JORGENSEN and BRUCE )

JORGENSEN, )

)

Plaintiffs, )

)

-vs- ) Case No. CIV-18-798-F

)

CYNTHIA HAWK, ROBERT )

HENDRYX, and MICHELE )

MOORE, in their individual )

capacities, )

)

Defendants. )

ORDER

Before the court is the Motion to Dismiss Plaintiffs’ First Amended Complaint

for Failure to State a Claim with Brief in Support by Defendant Michele Moore (doc.

no. 46) and the Motion to Dismiss Plaintiffs’ First Amended Complaint for Failure

to State a Claim with Brief in Support by Defendants Robert Hendryx and Cynthia

Hawk (doc. no. 58). Plaintiffs have responded to the motions and defendants have

replied. Upon due consideration of the parties’ submissions, the court makes its

determination.

I.

Background

Plaintiffs, appearing pro se, bring this action seeking declaratory relief,

injunctive relief and damages against defendants under 42 U.S.C. § 1983, 42 U.S.C.

§ 1985 and Oklahoma law. Plaintiffs complain that defendants denied plaintiff,

Aage Jorgensen, a minor at all relevant times, the right to representation by, and

consultation with, retained counsel, Scott K. Thomas, while Aage was housed in the

Sac and Fox Nation Juvenile Detention Center, under the custody of the Oklahoma

Office of Juvenile Affairs, following his arrest by officers with the Oklahoma State

University Police Department. Plaintiffs also complain that Aage was denied access

to, and visitation from, two persons, Dr. Sandra Morgan and Matthew McCollum,

whose access and visitation had been explicitly authorized, verbally and in writing,

by Aage’s father, plaintiff Bruce Jorgensen.12 During Aage’s detention, Mr.

Jorgensen was overseas in Port Vila, Vanuatu. Plaintiffs allege that defendants, who

were employed by the Oklahoma Office of Juvenile Affairs, denied them their

constitutional rights to due process and equal protection and denied Aage his

constitutional right to representation by, and communication with, Mr. Thomas.

They also allege that defendants conspired to deprive Aage (and, derivatively Bruce

Aage) of a constitutional right to representation by, and communication with, Mr.

Thomas and to preclude Aage from meeting and conversing with Dr. Morgan and

Mr. McCollum as authorized by Bruce. Further, plaintiffs allege that defendants

acted negligently, breached their fiduciary duty and intentionally inflicted emotional

distress upon them.

Defendants move to dismiss plaintiffs’ First Amended Complaint, pursuant to

Rule 12(b)(6), Fed. R. Civ. P., asserting that they are entitled to qualified immunity

on the federal claims. They also assert that the state law claims fail as a matter of

law. Further, they assert that plaintiffs lack standing to bring claims on behalf of

anyone other than themselves and that their claims for declaratory and injunctive

relief are moot.

1 According to the First Amended Complaint, Bruce Jorgensen had served as Aage’s sole parent

since 2002.

2 The allegations of the First Amended Complaint reveal that Aage was arrested by police on

October 25, 2016; after appointment of counsel, he consented to extradition to Florida on

October 28, 2016; and was extradited to Florida on November 3, 2016. Plaintiff, Bruce

Jorgensen’s communication regarding Aage, via telephone and fax, began on October 28, 2016,

after Aage consented to extradition. Mr. Jorgensen sent a total of three faxes, one on October 28,

2016, one on October 31, 2016, and one on November 2, 2016 (with a date of October 31, 2016)

II.

Standard of Review

“At the motion-to-dismiss stage, [the court] must accept all the well-pleaded

allegations of the complaint as true and must construe them in the light most

favorable to the [plaintiffs].” Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir.

2014) (quotation omitted). “To survive dismissal, ‘a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.’” Id., (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “‘The

plausibility standard is not akin to a probability requirement, but it asks for more

than a sheer possibility that a defendant has acted unlawfully.’” Id. at 1190-1191.

As stated, plaintiffs are appearing pro se. While the court is generally obliged

to construe pro se pleadings liberally, see, Haines v. Kerner, 404 U.S. 519, 520

(1972), the court need not do so because plaintiff, Bruce Jorgensen, represents that

he is an attorney, “with a practice emphasizing federal civil rights and governmental

improprieties.” Ex. 2 to doc. no. 43, p. 3; see, Mann v. Boatright, 477 F.3d 1140,

1148 n. 4 (10th Cir. 2007).

Individual defendants named in a section 1983 action, such as the defendants

in the case at bar, may raise a defense of qualified immunity. Estate of Booker v.

Gomez, 745 F.3d 405, 411 (10th Cir. 2014). “Qualified immunity protects officials

‘from liability for civil damages insofar as their conduct does not violate establish

statutory or constitutional rights of which a reasonable person would have known.’”

Thomas, 765 F.3d at 1194 (quoting Harlow v. Fitzgerald, 457 U.S., 800, 818 (1982)).

“Once the qualified immunity defense is asserted, the [plaintiffs] ‘bear[] a two-part

burden’ to show, first, ‘the defendant’s actions violated a constitutional or statutory

right,’ and, second, that the right was ‘clearly established at the time of the conduct

at issue.’” Id. (quoting Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008)).

With respect to the latter, “[a] right is clearly established in this circuit ‘when

a Supreme Court or Tenth Circuit decision is on point, or if the clearly established

weight of authority from other courts shows that the right must be as the [plaintiffs

maintain].’” Thomas, 765 F.3d at 1194 (quoting PJ ex rel. Jensen v. Wagner, 603

F.3d 1182, 1196-1197 (10th Cir. 2010)). A previous decision need not be ‘materially

factually similar or identical to the present case; instead, the contours of the right

must be sufficiently clear that a reasonable official would understand that what he is

doing violates that right.’” Id. (quoting Wagner, 603 F.3d at 1197). The court looks

to see if “existing precedent . . . placed the statutory or constitutional question

beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “The dispositive

question is whether the violative nature of particular conduct is clearly established.”

Mullenix v. Luna, 136 S.Ct. 305, 308 (2015). Qualified “immunity protects ‘all but

the plainly incompetent or those who knowingly violate the law.’” White v. Pauly,

137 S.Ct. 548, 551 (2017) (quoting Mullenix, 136 S.Ct. at 308).

III.

Section 1983 Claims

Section 1983 of Title 42 of the United States Code provides that a person

acting under color of state law who “subjects, or causes to be subjected, any citizen

of the United States . . . to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C.

§ 1983. From a review of the First Amended Complaint, it appears that plaintiffs

allege section 1983 claims for deprivation of procedural due process and equal

protection under the Fourteenth Amendment and denial of the right to counsel under

the Sixth Amendment.

A. Procedural Due Process

Plaintiffs assert that defendants violated Aage’s procedural due process rights

by refusing to allow him representation by, and consultation with, Mr. Thomas,

during his detention pending removal to Florida and by refusing to allow him

visitation from Ms. Morgan and Mr. McCollum.

A procedural due process claim requires a plaintiff to show: (1) that a

recognized liberty or property interest has been interfered with by the defendants;

and (2) that the procedures attendant to that deprivation were not constitutionally

sufficient. See, Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460

(1989). The court need not determine whether the facts alleged in the First Amended

Complaint show a deprivation of a liberty interest.3 Moreover, the court need not

determine whether the facts alleged show that the procedures attendant to any

deprivation were not constitutionally sufficient. Even if the court were to find

plaintiffs have alleged facts to support a procedural due process claim with respect

to Aage’s right to representation by, and consultation with, Mr. Thomas, plaintiffs

have not cited and the court has not found a case which would put defendants on

notice that Aage was entitled to representation by, and consultation with, retained

counsel, Mr. Thomas, after Aage, through appointed counsel, consented to and was

awaiting removal to Florida. In their briefing, plaintiffs cite the Supreme Court’s

decision in In re Gault, 387 U.S. 1 (1967). Although the Supreme Court in that case

held that a juvenile has the right to counsel in a proceeding “where the issue is

whether the child will be found to be ‘delinquent’ and subjected to the loss of liberty

for years,” id. at 36, the hearing at issue in the case at bar was an extradition hearing.

The First Amended Complaint indicates that Aage was represented by appointed

counsel during the extradition proceeding. The Supreme Court in In re Gault did

not address whether a juvenile, such as Aage, has the right to representation by, and

consultation with, retained counsel, after consenting and awaiting removal to another

state. Plaintiffs have not cited any other precedential authority that would establish

3 The First Amendment Complaint clearly does not allege a deprivation of a property interest.

that Aage’s alleged constitutional right was clearly established.4 The court therefore

concludes that the claim is subject to dismissal based upon qualified immunity.5

As to the visitation claim, the court finds that the claim is also subject to

dismissal based upon qualified immunity. The Supreme Court has held that the due

process clause does not directly grant inmates the right to unfettered visitation. See,

Kentucky Dept. of Corrections, 490 U.S. at 460 (“The denial of prison access to a

particular visitor is well within the terms of confinement ordinarily contemplated by

a prison sentence, . . . and therefore is not independently protected by the Due

Process Clause”); see also, Jenner v. McDaniel, 123 Fed. Appx. 900, 905 (10th Cir.

Feb. 17, 2005) (unpublished opinion cited as persuasive pursuant to 10th Cir. R.

32.1(A)) (holding that inmate lacked a protected liberty interest in visitation

privileges). Moreover, while a pretrial detainee, such as Aage, has a right to be free

from punishment, Bell v. Wolfish, 441 U.S. 520, 535 (1979), plaintiffs have not

alleged facts to show any punitive motive on behalf of the individual defendants or

that their challenged conduct was not “reasonably related to legitimate governmental

objectives.” Block v. Rutherford, 468 U.S. 576, 586 (1984); see also, Lewis v.

Clark, 663 Fed. Appx. 697, 700-701 (10th Cir. 2016) (plaintiff has burden to “‘plead

facts from which a plausible inference can be drawn that the [restriction] was not

reasonably related to a legitimate penological interest.’”) (quoting Al-Owhali v.

Holder, 687 F.3d 1236, 1240 (10th Cir. 2012)). Further, plaintiffs have not cited, and

the court has not found, a case which would put defendants on notice that Aage was

4 In their papers, plaintiffs also cite Procunier v. Martinez, 416 U.S. 396 (1974) and Benjamin v.

Fraser, 264 F.3d 175 (2nd Cir. 2001). Neither case supports that Aage’s alleged constitutional right

was clearly established.

5 To the extent that plaintiffs are also alleging a deprivation of Aage’s right to access to courts, the

court finds that the claim is subject to dismissal based upon qualified immunity. Plaintiffs have

offered no proper authority clearly establishing that defendants’ conduct violated Aage’s right to

access to courts.

entitled to visitation from Ms. Morgan and Mr. McCollum, while in the temporary

custody of the Oklahoma Office of Juvenile Affairs, pending extradition. Existing

precedent does not show that defendants’ conduct violated a clearly established due

process right.6

B. Equal Protection

Additionally, plaintiffs claim that defendants’ conduct violated Aage’s right

to equal protection. The Equal Protection Clause prohibits government officials

from treating people differently than those similarly situated without adequate

justification. Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 601-602 (2008). A

traditional equal protection claim requires a showing that a defendant engaged in

discrimination against members of a protected class. An alternative type of equal

protection claim known as the “class-of-one” claim is not based on discrimination

against members of a protected class, but, instead, asserts that a government official

discriminated against an individual out of spite or another improper motive. See,

SECSYS, LLC v. Vigil, 666 F.3d 678, 685-688 (10th Cir. 2012).

Plaintiffs’ amended pleading does not allege that Aage is a member of a

protected class. It thus appears that plaintiffs are alleging a “class-of-one” equal

protection claim. For plaintiffs to state such a claim, plaintiffs must plausibly

demonstrate that (1) defendants treated others similarly situated in every material

respect to Aage differently; and (2) there was no objectively reasonable basis for the

difference in treatment. See, Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,

1216 (10th Cir. 2011).

6 To the extent that plaintiffs are alleging violation of Aage’s substantive due process rights with

respect to right to counsel and right to visitation, the court finds that the claim is subject to

dismissal based upon qualified immunity. In reaching its finding, the court need not decide

whether defendants’ conduct violated Aage’s substantive due process rights. In their papers,

plaintiffs have offered no authority clearly establishing that defendants’ conduct violated Aage’s

The First Amended Complaint fails to identify any similarly situated

individual who was treated differently than Aage. It also fails to allege facts to show

that there was no objectively reasonable basis for a difference in treatment.

In their responses, plaintiffs do not address the challenge to the equal

protection claim. They do not cite any existing precedent to show defendants

violated a clearly established equal protection right. The court, therefore, concludes

that the equal protection claim is subject to dismissal based upon qualified immunity.

C. Sixth Amendment

Plaintiffs assert that defendants violated Aage’s right to counsel under the

Sixth Amendment. The Sixth Amendment right to counsel does not attach until the

“initiation of adversary judicial proceedings against the defendant.” United States

v. Gouveia, 467 U.S. 180, 187, 188 (1984). An “adversarial judicial proceeding” is

one where “the accused is confronted, just as at trial, by the procedural system, or

by his expert adversary, or by both in a situation where the results of the

confrontation might well settle the accused’s fate and reduce the trial itself to a mere

formality.” Gouveia, 467 U.S. at 189 (citation and internal alterations omitted). The

right to counsel attaches in the “critical stages in the criminal justice process” when

the state commits itself to prosecuting its case. Maine v. Moulton, 474 U.S. 159,

170 (1985) (internal quotation omitted). No right to counsel attaches at an arrest or

at an extradition hearing. See, Gouveia, 467 U.S. at 190; Anderson v. Alameida,

397 F.3d 1175, 1180-1181 (9th Cir. 2005); DeSilva v. DiLeonardi, 181 F.3d 865,

868-869 (7th Cir. 1999); U.S. v. Doherty, 126 F.3d 769, 782 (6th Cir. 1997), partially

abrogated on other grounds, Texas v. Cobb, 532 U.S. 162, 168 n. 1 (2001);

Chewning v. Rogerson, 29 F.3d 418, 421 (8th Cir. 1994). Further, the existence of

an attorney-client relationship does not trigger the protections of the Sixth

Amendment. Moran v. Burbine, 475 U.S. 412, 430 (1986).

The allegations of the First Amended Complaint do not establish that Aage

had a Sixth Amendment right to counsel, while detained, pending his removal to

Florida. Thus, the First Amended Complaint fails to plausibly state a violation of

Aage’s Sixth Amendment rights.

Even if the court were to find that the First Amended Complaint alleged a

violation of Aage’s Sixth Amendment rights, plaintiffs have failed to cite any

Supreme Court or Tenth Circuit case on point, or clearly established weight of

authority from other courts, that would show that the alleged Sixth Amendment

violation was clearly established. The cases plaintiffs cite in their papers are not

sufficiently analogous. Thus, the court finds that the Sixth Amendment claim is

subject to dismissal based upon qualified immunity.

D. Bruce Jorgensen Claims

Plaintiff, Bruce Jorgensen, is a named plaintiff but the First Amended

Complaint does not specifically identify what constitutional rights of his, if any,

were violated. Plaintiff lacks standing to assert the constitutional rights of Aage,

who is now of the age of majority. See, Cotner v. Hopkins, 795 F.2d 900, 902 (10th

Cir. 1986).

The court recognizes that the substantive component of the Due Process

Clause protects “the fundamental right of parents to make decisions concerning the

care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66

(2000). To the extent that Mr. Jorgensen asserts a due process claim, he has failed

to identify a Supreme Court or Tenth Circuit decision on point, or clearly established

weight of authority from other courts, to show that defendants’ conduct violated a

clearly established substantive due process right.

As to any equal protection claim, the First Amended Complaint fails to

identify any similarly situated individual who was treated differently than Mr.

Jorgensen. It also fails to allege facts to show that there was no objectively

reasonable basis for a difference in treatment. Further, Mr. Jorgensen has not cited

existing precedent which shows that defendants’ conduct violated a clearly

established equal protection right.

IV.

Section 1985 Claims

Section 1985 of Title 42 of the United States Code provides a remedy for a

conspiracy to interfere with a person’s civil rights. Plaintiffs allege that defendants

conspired to violate the right of Aage to be represented by, and consult with, retained

counsel, Mr. Thomas, and to violate the right of Aage to meet, confer, and visit with

Dr. Morgan and Mr. McCollum.

Plaintiffs do not indicate which subsection of section 1985 they rely upon for

purposes of their claim. It appears to the court that plaintiffs rely upon subsection

3.7 The elements of a section 1985(3) conspiracy claim are: (1) a civil conspiracy;

(2) to deprive the plaintiff of equal protection or equal privileges and immunities;

(3) an act in furtherance of the conspiracy; and (4) a resulting injury or deprivation.

Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993).

The court concludes that defendants are entitled to qualified immunity on

plaintiffs’ § 1985(3) claim. The allegations of the First Amended Complaint indicate

that defendants are all employed by the same governmental agency, the Oklahoma

Office of Juvenile Affairs. The Supreme Court, in Zigler v. Abbasi, 137 S.Ct. 1843,

1868 (2017), ruled that it was not clearly established that officials of the same entity

can conspire with each other for purposes of a § 1985(3) conspiracy. Id. at 1868.

Plaintiffs have proffered no precedential authority to show otherwise. Furthermore,

plaintiffs have failed to allege facts to show an agreement and concerted action

among the defendants. See, Langley v. Adams County, Colo., 987 F.2d 1473, 1482

(10th Cir. 1993). Plaintiffs have also failed to allege facts to show an intent to deprive

Aage and Bruce of equal protection or equal privileges and immunities. Plaintiffs

have failed to allege any facts to demonstrate that “some racial, or perhaps otherwise

7 That subsection imposes liability on two or more persons who “conspire . . . for the purpose of

depriving . . . any person or class of persons of the equal protection of the laws, or of equal

class-based, invidiously discriminatory animus [lay] behind the [defendants’]

action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). The court therefore

concludes that the section 1985(c)(3) claim is subject to dismissal based upon

qualified immunity.

V.

Declaratory and Injunctive Relief

In addition to monetary damages for the federal claims, plaintiffs also request

declaratory and injunctive relief. The court finds that the request is subject to

dismissal. The First Amended Complaint reveals that Aage is no longer in the

custody of the Oklahoma Office of Juvenile Affairs and that the charges against him

were dismissed. Any declaratory judgment or injunctive relief “would have no

effect on the defendants’ behavior toward [plaintiffs].” Green v. Branson, 108 F.3d

1296, 1300 (10th Cir. 1997). Consequently, the request for declaratory judgment and

injunctive relief is moot. See, Jordan v. Sosa, 654 F.3d 1012, 1028 n. 17 (10th Cir.

2011) (“where a prisoner is no longer housed at the penal institution having the

conditions of confinement that form the basis of his suit, declaratory relief—as well

as injunctive relief—is ordinarily not available.”); see also, Wirsching v. Colorado,

360 F.3d 1191, 1196 (10th Cir. 2004) (following release from prison, “[plaintiff’s]

claims for declaratory relief are now moot.”); McAlpine v. Thompson, 187 F.3d

1213, 1218 (10th Cir. 1999) (“release to parole moots a claim regarding prison

conditions and regulations”); Green, 108 F.3d at 1300 (plaintiff’s “claims for

declaratory and injunctive relief are moot” because “he is no longer a prisoner within

the control of the [defendants]”).

Plaintiffs’ request for injunctive relief also includes a request for relief for

other minor detainees. However, plaintiffs can only seek relief for violations of their

own constitutional rights. See, Cotner, 795 F.2d at 902. Thus, plaintiffs’ request for

injunctive relief on behalf of other minor detainees is subject to dismissal.

VI.

Leave to Amend

In the “Ancillary Considerations” of their responses as to defendants’

motions, plaintiffs request that the court grant them leave to amend if it deems all or

any portion of the First Amended Complaint subject to dismissal. Under Rule 15,

courts “should freely give leave [to amend] when justice so requires.” Rule 15(a)(2),

Fed. R. Civ. P. However, Rule 7, Fed. R. Civ. P., also requires a request for relief

to be made by a motion that (1) is “in writing,” (2) “state[s] with particularity the

grounds for seeking the order,” and (3) specifies “the relief sought.” Rule 7(b)(1),

Fed. R. Civ. P.

The court concludes that plaintiffs’ bare request to amend in their response

briefs “is insufficient to place the court and opposing parties on notice of the

plaintiff[s’] request to amend and the particular grounds upon which such a request

would be based.” Albers v. Board of County Com’rs of Jefferson County, Colo.,

771 F.3d 697, 706 (10th Cir. 2014). Plaintiffs fail to specify the new factual

allegations that would allow them to allege a violation of a clearly established

constitutional right by defendants. The court therefore concludes that plaintiffs’

request for leave to amend their federal law claims should be denied.

VII.

State Law Claims

In addition to the federal law claims,8 plaintiffs have also alleged state law

claims against defendants. Specifically, plaintiffs have alleged claims of negligence,

breach of fiduciary duty and intentional infliction of emotional distress. With the

dismissal of the federal claims, the court declines to exercise supplemental

jurisdiction over the state law claims. See, Brooks v. Gaenzle, 614 F.3d 1213, 1229-

8 Plaintiffs, in the First Amended Complaint, allege jurisdiction over the federal claims based upon

28 U.S.C. § 1331. There are no allegations in the amended pleading to support the court’s exercise

1230 (10" Cir. 2010). The court therefore shall dismiss the state law claims without

prejudice pursuant to 28 U.S.C. § 1367(c)(3).

VII.

Conclusion

Based upon the foregoing, the Motion to Dismiss Plaintiffs’ First Amended

Complaint for Failure to State a Claim with Brief in Support by Defendant Michele

Moore (doc. no. 46) and the Motion to Dismiss Plaintiffs’ First Amended Complaint

for Failure to State a Claim with Brief in Support by Defendants Robert Hendryx

and Cynthia Hawk (doc. no. 58) are GRANTED. Plaintiffs’ 42 U.S.C. § 1983 and

42 U.S.C. § 1985 claims against defendants are DISMISSED WITH PREJUDICE

pursuant to Rule 12(b)(6), Fed. R. Civ. P. Plaintiffs’ state law claims against

defendants are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.

§ 1367(c)(3).

IT IS SO ORDERED this 26" day of August, 2019.

STEPHENP.FRIOT” = OS™

UNITED STATES DISTRICT JUDGE

18-0798p015 rev_.docx

13