Ledbetter v. City of Topeka, KS

F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

FEB 6 2003

UNITED STATES COURT OF APPEALS

PATRICK FISHER

Clerk

TENTH CIRCUIT

JOSEPH R. LEDBETTER,

Plaintiff - Appellant,

v.

CITY OF TOPEKA, KANSAS;

MAYOR JOAN WAGNON;

MUNICIPAL JUDGE NEIL ROACH; No. 02-3202

POLICE CHIEF DEAN FORESTER;

JOHN DOE-AN UNNAMED POLICE

OFFICER-TOPEKA POLICE

DEPARTMENT; OFFICER MARK

GRAYSON; LISA PINKLEY; and

CITY ATTORNEY LINDA P.

JEFFREY,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. NO. 00-CV-1153-DES)

Joseph R. Ledbetter, Pro Se, Plaintiff-Appellant.

Gregory A. Lee, of Davis, Unrein, McCalister, Biggs, & Head, LLP, Topeka,

Kansas, for the Defendants-Appellees.

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.

HENRY , Circuit Judge.

The plaintiff, Joseph Ledbetter, filed this pro se civil rights action against

the City of Topeka, Kansas and certain of its officials, alleging that the

defendants violated the Fourth Amendment by arresting him on an invalid warrant

and unlawfully searching his backyard. Mr. Ledbetter also alleged violations of

his First Amendment rights and his right to be free from cruel and unusual

punishment. The district court first dismissed all of Mr. Ledbetter’s claims

against the individual defendants, see Ledbetter v. City of Topeka, Kansas , no.

00-1153, 2001 WL 80060 (D. Kan. Jan. 23, 2001), and then granted summary

judgment in favor of the City of Topeka on his remaining claim alleging a

wrongful arrest in violation of the Fourth Amendment. See Rec. vol. I, doc. 82

(Memorandum Op. and Order, filed Jan. 18, 2002).

However, we conclude that the district court properly dismissed Mr.

Ledbetter’s claims against the individual defendants and that the court’s grant of

summary judgment to the City of Topeka was proper. 1

1

After examining the briefs and appellate record, this panel has

determined that oral argument would not materially assist the disposition of this

appeal. See Fed. R. App. P 34(a)(2)(C); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

-2-

I. BACKGROUND

In 1998, Mr. Ledbetter was served with a complaint alleging that he had

violated a Topeka municipal ordinance by failing to possess proof of registration

of the vaccination of his dog. After Mr. Ledbetter failed to answer the complaint

within the prescribed period, a court clerk issued a warrant and stamped it with

the signature of Municipal Judge Neil Roach. “However, Judge Roach did not

personally review or sign the warrant.” Ledbetter v. City of Topeka , 2001 WL

80060, at *1.

Pursuant to the warrant, a municipal officer arrested Mr. Ledbetter. Mr.

Ledbetter was detained for five hours and then released.

Subsequently, Judge Roach found Mr. Ledbetter guilty of violating the

municipal ordinance as charged in the complaint and ordered him to pay a

$132.00 fine. Mr. Ledbetter appealed the conviction to a Kansas district court,

but he withdrew his appeal after the City agreed to dismiss the charge upon the

purchase of a license for his dog.

Mr. Ledbetter then filed this civil rights action pursuant to 42 U.S.C. §

1983, asserting that: (1) in the course of investigating the municipal code

violation, animal control officer Linda Jeffries searched his backyard without his

consent, in violation of the Fourth Amendment; (2) Judge Roach’s failure to sign

-3-

the arrest warrant rendered the arrest unreasonable and in violation of the Fourth

Amendment; (3) the conditions to which he was subjected during his five hour

detention constituted cruel and unusual punishment; and (4) city officials had

violated his First Amendment rights by retaliating against him over a ten-year

period. Mr. Ledebetter named as defendants the mayor of Topeka, Joan Wagnon;

Municipal Judge Roach; the chief of police, Dean Forrester; a police officer,

Officer Grayson; animal control officer Jeffries; and the City itself. He sought

actual and punitive damages.

The district court dismissed Mr. Ledbetter’s claims against all of the

individual defendants. As to the animal control officer, the police officer, and the

police chief, the court reasoned that Mr. Ledbetter had failed to serve them with

the complaint. See Ledbetter , 2001 WL 80060, at *1. As to Mayor Wagnon and

City Attorney Jeffrey, the court concluded that Mr. Ledbetter offered “no

allegations remotely connecting [either of these defendants] to his alleged

deprivation.” Id. at *3. As to Municipal Judge Roach, the court stated that Mr.

Ledbetter’s allegations did not indicate that the judge acted in the clear absence

of all jurisdiction. See id. Accordingly, the court held that Judge Roach was

entitled to absolute immunity from Mr. Ledbetter’s claims. See id.

The court also ruled that Mr. Ledbetter’s First Amendment retaliation claim

and his cruel and unusual punishment claim did not set forth specific allegations

-4-

of wrongdoing. Therefore, the court dismissed these claims as to the individual

defendants and the city.

Subsequently, the district court granted summary judgment to the City of

Topeka on Mr. Ledbetter’s remaining claim—for wrongful arrest in violation of

the Fourth Amendment. The court reasoned that even though Mr. Ledbetter’s

arrest warrant had been issued in violation of state law, “the issuance of [the]

invalid warrant by Judge Roach was done pursuant to his position as a judicial

officer of the State of Kansas” and Judge Roach was thus “not acting with final

policymaking authority for the City.” Rec. vol. I, doc. 82, at 12.

II. DISCUSSION

Because Mr. Ledbetter proceeds pro se, we construe his pleadings liberally.

See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). We therefore read his

appellate brief as challenging the district court’s five dispositive rulings: (1) the

dismissal of the claims against defendants Pinkley, Grayson, and Forrester for

lack of service, (2) the dismissal of the claims against defendants Mayor Wagnon

and City Attorney Jeffrey because Mr. Ledbetter had failed to connect them to the

alleged constitutional violations ; (3) the dismissal of Mr. Ledbetter’s First

Amendment retaliation claim and his cruel and unusual punishment claim; (4) the

-5-

dismissal of the claim against Judge Roach on immunity grounds, and (5) the

grant of summary judgment to the City.

We review for abuse of discretion the district court’s dismissal based on a

lack of timely service. Espinoza v. United States , 52 F.3d 838, 841 (10th Cir.

1995). However, we review de novo the district court’s grant of the individual

defendant’s motions to dismiss, applying the same standards as the district court

under Fed. R. Civ. P. 12(b)(6). Wark v. United States , 269 F.3d 1185, 1189 n.3

(10th Cir. 2001). A complaint should not be dismissed “unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.” Conley v. Gibson , 355 U.S. 41, 45-46 (1957). We

also review de novo the district court’s grant of summary judgment, applying Fed.

R. Civ. P. 56. Rogers v. United States , 281 F.3d 1108, 1113 (10th Cir. 2002).

Summary judgment is warranted “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” See Mincin v. Vail Holdings, Inc. , 308

F.3d 1105 (10th Cir. 2002) (quoting Fed. R. Civ. P. 56(c)).

-6-

A. Dismissal of the Claims Against Defendants Pinkley, Grayson, and Forrester

Upon review of the record, we conclude that the district court properly

dismissed the claims against the defendants Pinkley, Grayson, and Forrester. As

to these defendants, there is no indication that Mr. Ledbetter obtained proper

service. 2

B. Dismissal the Claims Against Defendants Mayor Wagnon and

City Attorney Jeffrey

As to Mayor Wagnon and City Attorney Jeffrey, we note that under § 1983,

“a defendant may not be held liable under a theory of respondeat superior.”

Worrell v. Henry , 219 F.3d 1197, 1214 (10th Cir. 2000). Instead, “a plaintiff

must show that an affirmative link exists between the [constitutional] deprivation

and either the [defendant’s] personal participation, his exercise of control or

direction, or his failure to supervise.” Id. (citations and quotations omitted).

Here, Mr. Ledbetter’s complaint fails to allege such conduct by the mayor or the

city attorney.

2

When a plaintiff fails to serve a defendant within the 120-day period, the

district court “shall dismiss the action without prejudice or direct that service be

effected within a specified time.” See Espinosa, 52 F.3d at 841 (quoting

Fed.R.Civ.P. 4(m)). Accordingly, we read the district court’s dismissal of Mr.

Ledbetter’s claims against the defendants Pinkley, Grayson, and Forrester as a

dismissal without prejudice.

-7-

C. Dismissal of First Amendment Retaliation Claim

We also agree with the district court that dismissal of Mr. Ledbetter’s First

Amendment retaliation claim was warranted. As the district court noted, Mr.

Ledbetter’s “allegations of retaliatory conduct and free speech deprivation are

vague and completely lacking in specificity,” see Ledbetter , 2001 WL 80060 at

*2, and the complaint fails to allege how the individual defendants participated in

the alleged violation of his rights. See Northington v. Jackson , 973 F.2d 1518,

1520-21 (10th Cir. 1992) (noting that although the court should liberally construe

a pro se plaintiff’s complaint, “the court should not assume the role of advocate,

and should dismiss claims which are supported only by vague and conclusory

allegations”).

D. Dismissal of Cruel and Unusual Punishment Claim

Similarly, Mr. Ledbetter’s cruel and unusual punishment allegations lack

the necessary specificity. Mr. Ledbetter’s complaint states that he was falsely

imprisoned in “[h]einous conditions,” but provides no further detail. Rec. vol. I,

doc. 1, at 4 (Complaint filed April 20, 2000).

We note that in an affidavit submitted in response to the City’s motion for

summary judgment, Mr. Ledbetter states that he was kept “in a filthy cell with no

toilet in [his] bare feet.” Rec. vol. I, doc. 70, Ex. A (affidavit of Joseph

-8-

Ledbetter, dated Sept. 14, 2001). Even if Mr. Ledbetter had alleged these facts in

his complaint, they are insufficient to establish that he was subjected to cruel and

unusual punishment in violation of the Constitution.

Under the Due Process Clause of the Fourteenth Amendment, the City was

required to provide to a pretrial detainee such as Mr. Ledbetter “humane

conditions of confinement by ensuring . . . the basic necessities of adequate food,

clothing, shelter, and medical care and by taking reasonable measures to

guarantee [his] safety.” Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir.

1998); see also Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.1998) (“Although

the Due Process Clause governs a pretrial detainee’s claim of unconstitutional

conditions of confinement, the Eighth Amendment standard provides the

benchmark for such claims.”) (citation omitted). In order to establish city

officials’ liability for violating his right to humane conditions of confinement,

Mr. Ledbetter was required to establish that: (1) the officials “kn[ew] of and

disregard[ed] an excessive risk to [his] health and safety,” Farmer v. Brennan,

511 U.S. 825, 837 (1994) and (2) the alleged deprivation was “sufficiently

serious.” See Wilson v. Seiter, 501 U.S. 294, 298, (1991). As to the second

component, jail conditions may be “restrictive and even harsh” without violating

constitutional rights. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “[O]nly

those deprivations denying the minimal civilized measure of life’s necessities . . .

-9-

are sufficiently grave to form the basis of an Eighth Amendment violation.”

Wilson, 501 U.S. at 298. (internal quotation marks omitted).

Here, Mr. Ledbetter’s contention that he was placed in his bare feet in a

cell without a toilet for five hours does not allege a sufficiently serious

deprivation to constitute a constitutional violation. See Barney, 143 F.3d at 1311

(noting that “[a]n important factor in determining whether the conditions of

confinement meet constitutional standards is the length of the incarceration”).

E. Claim against Judge Roach

The dismissal of Mr. Ledbetter’s claim against Judge Roach on immunity

grounds was also proper. We acknowledge that the district court concluded that

“by allowing the clerk to sign [Mr. Ledbetter’s arrest warrant] for the court, Judge

Roach issued [the] warrant in violation of Kansas law.” Ledbetter , 2001 WL

80060 at *2. 3

However, a judicial officer is entitled to absolute immunity from a

claim for damages under § 1983 unless he has acted “in the clear absence of all

jurisdiction.” Stump v. Sparkman , 435 U.S. 349, 356 (1978) (quotations and

citations omitted); see also Rosenthal v. Justices of the Supreme Court of Cal. ,

910 F.2d 561, 565-66 (9th Cir. 1991) (“A judge is immune from suit under 42

3

Kansas law requires that all warrants issued by the municipal court “shall

be signed by a judge of the municipal court.” Kan. Stat. Ann. § 12-4208 (2000).

-10-

U.S.C. § 1983 for acts in excess of his jurisdiction, so long as the acts themselves

were judicial.”).

Here, even assuming that his acts violated Kansas law, Judge Roach did not

act “in the clear absence of all jurisdiction.” Stump , 435 U.S. at 356.

Accordingly, he is entitled to absolute immunity from Mr. Ledbetter’s claim for

damages against him.

F. Claim Against the City

The district court granted summary judgment to the City on Mr. Ledbetter’s

remaining claim—that he was arrested on an invalid warrant. The court reasoned

that in allowing the use of his signature, Judge Roach was not acting as a

municipal policymaker.

Under § 1983, a municipality may not be held liable on a theory of

respondeat superior. Seamons v. Snow , 206 F.3d 1021, 1029 (10th Cir. 2000)

(citing Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 691, 98 (1978)). Instead,

the 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.” Camfield v. City of Oklahoma City , 248 F.3d 1214, 1229

(10th Cir. 2001) (internal quotation marks omitted). When the plaintiff proceeds

-11-

on a theory that the alleged constitutional violation was caused by an official with

policymaking authority:

The touchstone for determining “official policy” is

“distinguish[ing] acts of the municipality from acts of

employees of the municipality, and thereby mak[ing] clear

that municipal liability is limited to action for which the

municipality is actually responsible. . . . [M]unicipal

liability under § 1983 attaches where--and only where--a

deliberate choice to follow a course of action is made from

among various alternatives by the official or officials

responsible for establishing final policy with respect to the

subject matter in question.”

Melton v. City of Oklahoma City , 879 F.2d 706, 723 (10th Cir. 1989) (quoting

Pembauer v. City of Cincinnati , 475 U.S. at 478-79, 483-84 (1986)), overruled on

other grounds , 928 F.2d 920 (10th Cir. 1991) (en banc). Additionally, in

identifying final municipal policymakers, the courts must examine state laws and

local ordinances or regulations to determine where the statutory law places the

responsibility for making law or setting policy in a particular area. Melton , 879

F.2d at 724.

Here, as the district court observed, the authority of the municipal official

whom Mr. Ledbetter named as a defendant and sought to hold responsible for the

issuance of the arrest warrant—Judge Roach—is established by state law. See

Rec., vol I, doc. 82 at 10 (noting that “the judicial authority wielded by Kansas

municipal judges is governed by the Kansas Code of Procedure for Municipal

Courts,” and that “[a] municipal judge’s duty to sign all municipal arrest warrants

-12-

is directly mandated by statute” (citing Kan. Stat. Ann. § 12-41-1 et. seq and §

12-4208)). 4

Thus, “Judge Roach’s authority to issue arrest warrants was

circumscribed by his judicial duty to follow state law,” and “[a]ny procedural

‘trailblazing’ on his part,” [i.e. allowing a signature stamp to be used without

personally reviewing the warrant] “was not done under the auspices of the City

and could not be interpreted as promulgating municipal policy.” Id.

Mr. Ledbetter has failed to present any evidence indicating that Judge

Roach or the clerk who affixed his signature stamp acted as municipal

policymakers. Moreover, although our circuit does not appear to have specifically

addressed the question of the policymaking authority of a municipal judge, we

note that several other circuits have concluded that municipal judges did not act

as policymakers and thus could not render a city liable for a constitutional

violation under § 1983. See Eggar v. City of Livingston , 40 F.3d 312, 314-15

(9th Cir. 1994) (holding that a municipal judge “was performing a state judicial

function and not acting as a final decision maker for the City when deciding how

or whether to advise the plaintiffs of their rights, and whether to appoint counsel”

and stating that “[t]he [j]udge’s failure to follow state law or federal

constitutional law does not transform his [conduct] into municipal

4

Because Mr. Ledbetter did not name as a defendant the clerk who

stamped Judge Roach’s signature on the warrant, we do not consider the actions

of that official here.

-13-

policymaking”); Woods v. City of Michigan City , 940 F.2d 275, 279 (7th Cir.

1991) (holding that the city and county were not liable for a municipal judge’s

bond directive because the judge was acting as an officer of the state judicial

system); Carbalan v. Vaughn , 760 F.2d 662, 665 (5th Cir. 1985) (noting that a

municipality had no policy regarding the municipal judge’s duties, and that, if the

judge erred “the city is not liable simply because the judge held the office of

municipal judge”); cf. Williams v. Butler , 863 F.2d 1398, 1402 (8th Cir. 1988)

(holding that a municipal judge constituted a policymaker because, “[r]egarding

employment matters in his court, [the municipal judge] had been delegated carte

blanche authority . . . and was exercising that authority when he hired and when

he fired [the plaintiff]”). We are persuaded by the reasoning of these cases.

We therefore conclude that the district court properly granted summary

judgment to the City on Mr. Ledbetter’s wrongful arrest claim.

III. CONCLUSION

For the reasons set forth above, we AFFIRM the district court’s dismissal

of Mr. Ledbetter’s claims against the defendants Pinkley, Grayson, and Forrester

for failure of service and we AFFIRM the district court’s dismissal of the claims

against the remaining individual defendants (Mayor Wagnon, City Attorney

-14-

Jeffrey, and Municipal Judge Roach) for failure to state a claim. 5

We also

AFFIRM the district court’s grant of summary judgment to the City of Topeka on

Mr. Ledbetter’s wrongful arrest claim. 6

5

As noted above, we view the district court’s dismissal of the claims

against the defendants Pinkley, Grayson, and Forrester as one without prejudice.

6

We note that even though Mr. Ledbetter cites cases involving the

Kansas Tort Claims Act, Kan. Stat. Ann. § 75-6101 et seq., see Aplt’s Br. at 3

(citing, inter alia, Watson v. City of Kansas City, Kan. , 80 F.Supp.2d 1175 (D.

Kan. 1999)) , the parties and the district court read his complaint as alleging only

federal law claims. We interpret his claims similarly and thus do not address any

potential state law claims arising out of these facts.

-15-