Appendix — King v. Beavers

‘ Supreme Court, U.S.

FILE D

No.

IN THE

c

Supreme Court of the United States

October Term, 1998

Wayne King,

Petitioner,

v.

Charles Beavers,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

APPENDIX TO PETITION

FOR A WRIT OF CERTIORARI

CHARLES KARR

LAW OFFICES OF CHARLES KARR, P.A.

First National Bank Building

602 Garrison Avenue, Suite 650

Fort Smith, Arkansas 72901-2535

Of Counsel: (501) 782-4082

SHANE ROUGHLEY Attorney for Petitioner

Fort Smith, Arkansas Attorney of Record

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UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT, No. 97-3295WAFS. Wayne

King, Appellee v. Charles Beavers, Appellant. Ap-

peal from the United States District Court for the

Western District of Arkansas.

Judgment

This appeal from the United States District

Court was submitted on the record of the district

court, briefs of the parties and was argued by

counsel.

After consideration, it is hereby ordered and

adjudged that the judgment of the district court in

this case is reversed in accordance with the opin-

ion of this court.

July 9, 1998

Michael E. Gans, Clerk

U. S. Court of Appeals

Eighth Circuit

OPINION OF THE COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT, No. 97-3295. Wayne King,

Plaintiff-Appellee v. Charles Beavers, Defendant-

Appellant. Appeal from the United States. District

‘Court for the Western District of Arkansas. Sub-

mitted February 13, 1998. Filed July 9, 1998.

Before LOKEN and HANSEN, Circuit Judges, and

DAVIS,” District Judge.

LOKEN, Circuit Judge.

Wayne King filed this 42 U.S.C. §1983 ac-

tion against Deputy Sheriff Charles Beavers, al-

leging that Beavers violated King’s Fourteenth

Amendment right to liberty in enforcing a guardi-

anship order. Beavers appeals the district court’s

denial of his motion for summary judgment on

qualified immunity grounds. We reverse.

L.

To review the denial of a pretrial qualified

immunity motion, we accept as true the facts al-

leged by King, the aon-moving party. See, Jackson

v. Everett, 140 F.3d 1149, 1151 (8th Cir. 1998). In

November 1995, Wayne King was seventy-seven

years old. He lived with his invalid wife, Bonnie,

* The HONORABLE MICHAEL J. DAVIS, United States District

Judge for the District of Minnesota, sitting by designation.

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who could not walk or talk and required constant

care. Betty Tudor, an Arkansas Department of

Human Services Consultant, became concerned

by King’s refusal to admit home health care aides.

She visited the Kings’ home and found them living

in what she considered deplorable conditions.’

Before recommending that the State of Arkansas

petition for custody of Mr. and Mrs. King, Tudor

contacted their only daughter, Marilyn Johnson, a

California resident.

Johnson came from California and began

staying with the Kings on November 10. On No-

vember 17, at Tudor’s urging, Johnson sought the

advice of an attorney and petitioned the Johnson

County Probate Court for her appointment as

guardian of the persons and estates of Mr. and

Mrs. King. The petition was supported by a letter

from Clarksville physician Jack T. Patterson stat-

ing that King was “probably significantly de-

pressed and perhaps is a threat to both himself

and to his wife.” Or. November 21, after notice to

King (which he claims he did not receive), the

court held a hearing and issued an order finding

that Wayne ancl Bonnie King were incapacitated,

appointing Marilyn Johnson guardian of their per-

sons and estates, and directing the Clerk of Court

1 Tudor made two trips to the Kings’ home in early November

1995. In a July 1997 affidavit, Tudor averred that the Kings

spent most of the day sleeping, King fed his wife mostly ce-

real, Mrs. King was incontinent and the bedroom reeked of

urine, Mr. King seemed upset by visitors, and Mrs. King

seemed confused and in poor health. The Department of

Health stopped home health services on Novenber 7 because

King would not admit health aides to care for his wife. King

does not dispute these averrals.

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to issue Letters of Guardianship to Marilyn John-

son of Paicines, California. Johnson then filed a

guardian’s bond, and the Clerk issued Letters of

Guardianship reciting that Johnson was

“authorized to have the care and custody of and to

exercise control over the person and take posses-

sion and administer the property of [Wayne and

Bonnie King] as authorized by law.”

On November 29, Johnson County Sheriff

Charles Nicklas received a call from the King resi-

dence advising that Betty Tudor was having prob-

lems because Mr. King would not obey the court

order appointing Marilyn Johnson guardian.

Sheriff Nicklas sent Deputy Beavers to the King

residence to assist Tudor. Beavers arrived and re-

viewed the guardianship order and Letters of

Guardianship. He discussed the matter with Tu-

dor, Johnson, and home health care workers and

then tried to persuade Mr. King to get out of his

bed. When King refused, Beavers contacted John-

son County Attorney Bruce Wilson, who said Bea-

vers should try to persuade King to go with his

daughter to California.2 Beavers returned to King

and tried to persuade him to leave with Johnson.

King refused, repeatedly stating, “I will kill my-

self,” and saying he hoped his wife would die as

well. Beavers again contacted Wilson, who advised

that Beavers should physically remove King from

the home if necessary. After a final unsuccessful

2 Unbeknownst to Beavers, Wilson was also the private at-

torney representing Marilyn Johnson in the guardianship

proceeding. While this apparent conflict of interest is dis-

turbing, it does not affect Beavers’s claim to qualified immu-

nity.

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attempt at persuasion, Beavers picked King up

and carried him to the front door. At that point,

King said: “Put me down. I will walk. What are the

neighbors going to think?” King walked to the pa-

trol car and rode to a nearby medical clinic, where

Johnson arranged for him to receive a shot.

At the clinic, Johnson told Beavers she

needed assistance getting the Kings to the Little

Rock airport and then to California. Beavers called

Sheriff Nicklas, who said Beavers could take King

to Little Rock and could accompany Johnson and

the Kings to California if there was no expense to

Johnson County. Beavers then called County At-

torney Wilson, who said he saw no problem with

these proposed actions. Beavers drove the group

to the Little Rock airport and then accompanied

Johnson and the Kings on their plane ride to

California. The travel took place without incident.

Johnson paid for Beavers’s plane ticket and paid

him $430 for assisting her on the trip ‘o Califor-

nia. Beavers took the next flight back to Arkansas.

In February 1996, Johnson voluntarily ter-

minated Mr. King’s Arkansas guardianship and

California temporary conservatorship after an in-

vestigator concluded that King was able to care for

himself. In March, King returned to Arkansas, and

Mrs. King died shortly thereafter. An embittered

King filed this action in November 1996 against

his daughter and Beavers. The district court de-

nied Beavers’s motion for summary judgment on

qualified immunity grounds, explaining:

Had Beavers merely assisted John-

son, who had a court order and let--

ters of guardianship giving her cus-

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tody and control over both her father

and his possessions, with removing

King from the home, our conclusion

would undoubtedly be different. Ad-

ditionally, our conclusion might be

different had Beavers, in reliance on

the advice of the prosecuting attorney

and the sheriff, merely assisted in

transporting King to the airport at

Johnson’s request. However, here

Beavers went farther—he went out-

side not only the county in which he

had authority or jurisdiction to act

but went outside the state... . We

agree with King that these acts were

not objectively reasonable.

Beavers appeals. We have interlocutory ju-

risdiction to consider issues of law raised by the ©

denial of a pretrial qualified immunity motion. See

Murphy v. State of Ark., 127 F.3d 750, 753 (8 Cir.

1997). We review the denial of qualified immunity

de novo.

II.

Qualified immunity protects government of-

ficials from damage liability unless their discre-

tionary acts violated clearly established statutory

or constitutional rights. See Harlow v. Fitzgerald,

457 U.S. 800, 818 (1992). Qualified immunity

guards against the injustice of subjecting public

officials to damage liability for the good faith per-

formance of discretionary duties they are legally

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obligated to undertake, and the danger that the

threat of such liability will deter officials from

performing with the decisiveness and judgment

the public good requires. See Scheuer v. Rhoades,

416 U.S. 232, 241-42 (1974). Qualified immunity

protects all but the plainly incompetent and those

who willingly violate the law. See Malley v. Briggs,

475 U.S. 335, 341 (1986). We conclude Beavers is

entitled to qualified immunity for two distinct rea-

sons.

No Clearly Established Federal Right. To re-

cover under 42 U.S.C. §1983, King must prove

that Beavers violated King’s constitutional rights

while acting under the color of state law. To avoid

a claim of qualified immunity, the right alleged

must be “clearly established,” that is, “[t]he con-

tours of the right must be sufficiently clear that a

reasonable official would understand that what he

is doing violates that right.” Anderson v. Creighton,

483 U.S. 635, 640 (1987). When qualified immu-

nity is asserted in a §1983 action, we “determine

first whether the plaintiff has alleged a deprivation

of a constitutional right at all,” and if so, “whether

the right allegedly implicated was clearly estab-

lished at the time of the events in question.”

County of Sacramento v. Lewis, 118 S.Ct. 1708,

1714, n. 5 (1998). King’s claim founders on these

issues, which the district court barely discussed

in its otherwise lengthy opinion.

King argues that Beavers “falsely imprisoned

[King], denying him his constitutional right to lib-

erty.” False imprisonment is a state-law tort claim.

It is not coextensive with the Fourteenth Amend-

ment, which “protects only against deprivations of

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liberty accomplished ‘without due process of

law.’” Baker v. McCollan, 443 U.S. 137, 145

(1979). For example, the constitutional right to

liberty is not violated if the State takes custody of

a citizen following a judicial determination that he

is unable to care for himself or is a serious risk to

the safety of himself and others. Compare

O’Connor v. Donaldson, 422 U.S. 563 (1975), with

Jackson v. Indiana, 406 U.S. 715, 738 (1972).

Here, the Johnson County Probate Court’s guardi-

anship order was of a similar nature, except that it

ordered King into the custody of a private guard-

ian, his daughter Marilyn Johnson. King does not,

and in our view could not, argue that enforcement

of the guardianship order violated his substantive

due-process right to liberty.

Instead, King argues that “no objectively

reasonable officer would have believed that the

guardianship order and Letters of Guardianship

gave him authority to remove the ward to Califor-

nia.” In other words, King’s entire claim is based

upon the proposition that the Fourteenth Amend-

3 Nor does King argue the order violated his right to proce-

dural due process; in any event, such a claim would not give

rise to a cause of action against Beavers. King’s complaint

did generally plead violations of the First, Fourth and Fifth

amendments, but he has not argued those claims on appeal.

Cf. Sellers v. Baer, 28 F.3d 895, 898 n.4 (8th Cir. 1994),

cert. denied, 513 U.S. 1084 (1995). Because Beavers physi-

cally seized King in his home, it is likely that “any liability

must turn on an application of the reasonableness standard

governing searches and seizures.” County of Sacramento, 118

S.Ct. at 1715. However, analysis of this case under the

Fourth Amendment would not lead us to a different conclu-

sion.

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ment required a second court order before guard-

ian Johnson, with the assistance of such state

actors as DHS Consultant Tudor, County Attorney

Wilson, Sheriff Nicklas, and Deputy Beavers, could

move the unwilling King from his home to his legal

guardian’s place of residence. Of course, the

proper scope and import of the probate court’s

guardianship order and Letters of Guardianship

are questions of state law. Yet neither King nor the

district court cited Arkansas authority supporting

King’s contention, nor attempted to explain why

any such violation of state law would amount to a

federal constitutional deprivation.

There is apparently no Arkansas case law on

the question whether a facially unlimited guardi-

anship order grants the guardian the power to

change an unwilling ward’s place of residence, and

more particularly, to move the ward out of state.

The few cases we have found from other states

tend to contradict King’s position:

In this country the decisions uni-

formly hold the guardian may change

the residence of the ward, whether

infant or lunatic, to another state, if

this be done in good faith and for the

best interest of his ward, especially

when with the consent or approval of

the court appointing the guardian.

In re Waite, 180 N.W. 159, 161 (Iowa 1920); see

generally 39 C.J.S. Guardian & Ward §60 (1976).

Nor does a review of the. pertinent Arkansas

Statutes lend support to King’s contention. The

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guardian is “entitled to the custody of the ward.”

Ark. Code Ann. 28-65-301(a)(3). If the court de-

cides that the guardian’s powers should be lim-

ited, it “shall set forth the specific powers,

authorities, and duties the guardian shall pos-

sess,” §28-65-214(d); here Johnson’s guardianship

order conferred unlimited custodial powers.

Changing the ward’s residence is not among a

statutory list of guardian decisions that always re-

quire prior court approval. See §28-65-302. But

one of the grounds for terminating an Arkansas

guardianship is “[iJf the ward becomes a nonresi-

dent of this state,” §28-65-401(b)(2)—express leg-

islative recognition that guardians may effect a

change of residence. Finally, in this case, the

guardianship order expressly recited that the

guardian was a resident of California, a clear sig-

nal that the probate court knew a change of King’s

residence was implicit in appointing Johnson

guardian.

In sum, King has no support for his asser-

tion of a Fourteenth Amendment liberty depriva-

tion. In denying Beavers qualified immunity, the

district court relied on Hurlman v. Rice, 927 F.2d

74, 79-80 (2d Cir. 1991). But that was a Fourth

Amendment decision premised upon the court’s

conclusion that an order to show cause directed to

a child’s mother in no way authorized police offi-

cers to seize the child from her grandparents’

home. This case is very different. Based upon our

review of the relevant Arkansas statutes, con-

firmed by what little case law there is elsewhere in

the country, we conclude that the probate court’s

guardianship order implicitly included the power

to change the ward’s residence to that of the

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guardian. Therefore, DHS Consultant Tudor, the

County Attorney, the County Sheriff, and Deputy

Beavers did not violate King’s Fourteenth Amend-

ment rights by helping to escort him, involuntarily

but peacefully, to the guardian’s residence in

California without additional authorization from

the probate court. Beavers is entitled to summary

judgment dismissing this §1983 action because he

did not violate King’s constitutional rights by re-

moving King from his home, escorting King to the

Little Rock airport and accompanying King and

Johnson to California.

B. Objectively Reasonable Conduct. Alterna-

tively, we conclude that Beavers’s conduct was

objectively reasonable, that is, it “did not violate

clearly established rights of which a reasonable

person would have known.” Bagby v. Brondhaver,

98 F.3d 1096, 1098 (8th Cir. 1996).4 Beavers went

to the King home at the direction of Sheriff Nicklas

to assist DHS Consultant Tudor. He reviewed a

court order and Letters of Guardianship placing

King in Johnson’s custody and control. He was

advised by Tudor that King should accompany

Johnson to California. When King resisted, threat-

ening to kill himself, Beavers consulted the

County Attorney and later the Sheriff and acted

* There is some support in our prior cases for the proposition

that Beavers is entitled to quasi-judicial absolute immunity

because he was carrying out a facially valid court order. See

Robinson v. Freeze, 15 F.3d 107, 109 (8th Cir. 1994); Patter-

son v. Von Riesen, 999 F.2d 1235, 1239 (8th Cir. 1993); Ty-

miak v. Omodt, 676 F.2d 306, 308 (8th Cir. 1982). However,

qualified immunity is the norm. The absolute immunity is-

sue has not been raised, and we do not consider it.

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consistently with their advice. He used minimal

force in assisting King’s daughter and legal

guardian to move King and his invalid wife to the

daughter’s home. While King’s law-enforcement

expert opined that it was unreasonable for Bea-

vers to travel far outside his jurisdiction in as-

sisting Johnson, that issue has nothing to do with

whether the trip violated King’s clearly established

constitutional rights.

Given the traumatic situation Beavers en-

countered, the instructions from his superiors,

and his wide-ranging responsibilities as an Arkan-

sas law enforcement officer, see Ark. Code Ann.

§14-52-203, Beavers undoubtedly would have

been remiss—and would have faced uncertain li-

ability—had he arrived at the King residence and

failed to take reasonable action to pacify the

feuding family members. Some months later, Mr.

King’s custodial guardianship proved to be unnec-

essary and was terminated. But the guardianship

order was facially valid. Beavers was duty bound

to help enforce that order, and his actions in that

regard were objectively reasonable because they

were consistent with the court’s grant of full

guardianship to Marilyn Johnson. Public officials

facing situations like this must take quick and de-

cisive action to mitigate risks to health and safety.

This is precisely the kind of good faith discretion-

ary Official action that qualified immunity is in-

tended to protect. Compare Miller v. Compton, 122

F.3d 1094, 1099 (8th Cir. 1997)

The order of the district court denying the

motion of defendant Charles Beavers for summary

judgment is reversed.

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IN THE UNITED STATES DISTRICT COURT,

WESTERN DISTRICT OF ARKANSAS, FORT

SMITH DIVISION. Wayne King, Plaintiff v. Marilyn

Johnson and Charles Beavers, Defendants. Civil

No. 96-2219.

Order

On this 29th day of July, 1997, upon con-

sideration of the motion for summary judgment

filed by Charles Beavers, the court finds for the

reasons stated in a memorandum Opinion of even

date that said motion should be and nereby is de-

nied.

The order denying qualified immunity is, of

course, appealable. Defendant Charles Beavers is

advised to inform the court by the close of busi-

ness on August 6, 1997, whether he intends to

immediately appeal this order. If so, the court may

desire to stay the case during the pendency of that

appeal.

IT IS SO ORDERED.

H. FRANKLIN WATERS

United States District Judge

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OPINION OF THE DISTRICT COURT JULY 29, 1997

IN THE UNITED STATES DISTRICT COURT,

WESTERN DISTRICT OF ARKANSAS, FORT

SMITH DIVISION. Wayne King, Plaintiff v. Marilyn

Johnson and Charles Beavers, Defendants. Civil

No. 96-2219.

Memorandum Opinion

This case is currently before the court on

the motion for summary judgment filed by the

separate defendant Charles Beavers. Wayne King

filed this action on November 27, 1996 under the

provisions of 42 U.S.C. §1983 contending that he

was unlawfully deprived of his liberty or falsely

imprisoned. King also asserts a state law claim of

intentional infliction of emotional distress or out-

rage. The summary judgment motion does not ad-

dress this latter claim.

Background.

Marilyn Johnson (Johnson) is the daughter

of Wayne and Bonnie King. On November 17,

1995, Johnson filed a petition pursuant to Ark.

Code Ann. §28-65-218 (Supp. 1995) for appoint-

ment as guardian of the person and estate of both

her parents. At the time, Wayne King (King) was

77 years old (now 79) and Bonnie King was 78

years old. Both were in poor health. Bonnie King

was apparently tota"ly disabled and was unable to

walk or talk.

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In the petition, Johnson alleged that her

parents were incapacitated by reason of age and

unable to care for themselves and that she be-

lieved there was an eminent danger to the health

of her parents. Johnson was represented by an

attorney, Bruce Wilson (Wilson).

On November 20, 1995, notice was issued to

both Wayne and Bonnie King that a hearing on

the petition for guardianship would be held on No-

vember 21, 1995, at 9:00 a.m. Each notice bears a

return which states it was served on the named

person. King denies that the notices were served

on either himself or his wife.

On November 21, 1995, Johnson presented

to the court a letter from Dr. Jack T. Patterson

which stated, among other things, that King was

probably “significantly depressed and perhaps is a

threat to both himself and to his wife.” At the con-

clusion of the hearing, Johnson was appointed

guardian of the person and estate of both her par-

ents. Letters of guardianship were issued. The

letters of guardianship provided that Johnson was

“authorized to have the care and custody of and to

exercise control over the person and take posses-

sion of and administer the property of’ Wayne and

Bonnie King. Neither the order or the letters of

guardianship make any reference to the removal of

the Kings from Arkansas to California. Similarly,

neither contained any prohibition against the

same and they contained no restrictions on John-

son’s authority as guardian. On November 27,

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1995, an inventory of the estate was filed with the

probate court.

Charles Beavers (Beavers) is a deputy with

the Johnson County Sheriff's Department. He has

been so employed for about five years.

On November 29, 1995, Beavers was noti-

fied by Johnson County Sheriff, Charles Nicklas,

that Betty Tudor of Adult Protection was at the

Kings’ residence in Clarksville, Arkansas, and was

having problems with a guardianship case involv-

ing King. King was refusing to go with his daugh-

ter, Johnson, to California.

Beavers was directed to go to the home and

see if he could assist Tudor. When Beavers ar-

rived, Tudor, Johnson, and some home health

care workers were already present. Beavers was

shown the order appointing Johnson guardian of

King. After reviewing the court order, the letters of

guardianship, and discussing the matter with

those present, Beavers went into the bedroom

where King was apparently refusing to get out of

bed.

Beavers tried to talk King into getting out of

bed and getting dressed. According to Beavers,

King kept saying “I will kill myself.” When asked

who would care for his wife then, King allegedly

said he hoped she would die.

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Beavers states he contacted by telephone

Wilson,! the Johnson County Prosecuting Attor-

ney, told him about the incident and informed him

that King was refusing to go with Johnson. Wilson

replied that King had to go with his daughter and

that Beavers should talk him into going. There has

been no evidence presented that indicates Beavers

was aware that Wilson was also acting as John-

son’s attorney.

Beavers returned to the bedroom and dis-

cussed with King the proposed trip to California.

After ten or fifteen minutes, Beavers contends he

called Wilson again and told him that King was

not going to go without being physically removed.

Wilson told Beavers to go ahead and physically

remove King if that was the only way King would

go.

Beavers again tried to talk King into going.

When King refused, Beavers bent over and picked

King up. Beavers placed one arm under King’s legs

and the other behind his back. Beavers carried

King to the front door. According to Beavers, once

at the front door King said: “Put me down. I will

walk. What are the neighbors going to think?”

Beavers put King down and King walked outside

to the patrol car and got inside.

' King by affidavit states that at “no time while he was in my

house did Beavers use my phone.” No further information is

given about the location of the phone, etc. King does not

deny that he was in bed and refused to leave the bedroom,

nor does he make any assertions regarding his ability to see

or hear Beavers at the relevant times.

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Beavers was informed that Johnson had

called a doctor at the Clarksville Medical Group

and had set up an appointment for King to receive

a shot of some type. Beavers took King to the

medical facility, parked, and a nurse came to the

car and administered a shot.

Johnson informed Beavers that she needed

assistance in getting King to the airport in Little

Rock, Arkansas. Beavers contacted Sheriff Nick-

las2 to find out if he was to take King to Little Rock

in his patrol car. Beavers was advised that he

could assist Johnson in taking King to Little Rock

and if he wanted to, he could assist her to Califor-

nia as long as there was no expense to Johnson

County. Beavers also contacted Wilson who indi-

cated he could see no problem in providing John-

son assistance.

Johnson paid for Beavers’ round trip airline

ticket to California. Johnson also paid Beavers for

his services in assisting her to California.* Beavers

contends he was not working as a Johnson

County deputy sheriff during this time.

2 In his affidavit, King states that he “never saw Beavers ra-

dio anyone stating that he was taking me to Little Rock.”

3 Plaintiff offers as an exhibit a typed statement purportedly

signed by Beavers dated December 12, 1996, in which Bea-

vers indicates Wilson’s reply to the inquiry was: “I do not

foresee any problem in assisting Marilyn Johnson to Little

Rock, Arkansas.”

4 Beavers states he was paid approximately $10 an hour.

King states Beavers was paid $430.

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Beavers states that on the way to the airport

he and King talked about King’s past. During the

airline trip Beavers states that King spoke of kill-

ing himself and of killing everyone in his daugh-

ter’s house. Beavers advised Johnson of these

threats.

King also talked about his past, his mother,

and his brother. Although King initially refused or

declined to eat he later did agree to eat something.

In Beavers’ opinion, King did not seem to be able

to deal with what was going on in his life and ap-

peared to be at the end of his rope and unable to

deal with the reality of the care of his wife. Beavers

states he used no force to get King to comply with

reasonable requests and only accompanied John-

son and the Kings in order to assure King’s safety

and to assist Johnson. —

Once in California, Johnson filed a petition

for appointment as conservator for King. Subse-

quently, at a hearing held in California on Janu-

ary 23, 1996, “[b]ased upon the report of the court

investigator, [Johnson] withdrew her petition to

establish the conservatorship” and “stipulated on

the record that she “would be withdrawihg the

similar action as to the proposed conservatee in

the State of Arkansas.” The temporary conserva-

torship was dissolved as to both the estate and the

person of King.

Beavers has now moved for summary judg-

ment. Beavers argues he is entitled to qualified

immunity. He asks the court to consider the fol-

lowing: (1) he was acting pursuant to the court or-

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der and letters of guardianship which specifically

gave Johnson authority to have custody of and ex-

ercise control over King; (2) he obtained permis-

sion from the Sheriff and the Prosecuting Attorney

to assist Johnson by accompanying her to Califor-

nia; and (3) King’s actions in refusing to go with

his guardian, his threats of suicide, etc., gave

Beavers “arguable probable cause” for the escort.

In his affidavit, Beavers asserts that he was not

acting under color of state law during the trans-

portation of the Kings to California.

King denies that Beavers is entitled to

qualified immunity and contends that Beavers did

not act as an objective officer would have in en-

forcing the court order. As a result, King contends

he was deprived of “his constitutional right to be

free from false imprisonment.” He contends it was

obvious that from the time in the house when

Beavers physically picked him up that he could

not refuse to go to Little Rock, get on the plane,

and go to California.

Specifically, King argues that no reasonably

objective law enforcement officer would have

(1) believed he could enforce an order outside of

the county in which he works; or (2) interpreted

an order which only stated Johnson had custody

of King to mean that he could detain King and

take him anywhere directed by Johnson. King also

contends Beavers was acting under color of state

law in taking these actions. He points out that

Beavers came to King’s home to enforce the court

order, transported him to the airport in a patrol

_car, and then escorted him to California. Accord-

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ing to King, at no time during this transport did

Beavers give any indication that he was not acting

as a law enforcement officer.

By affidavit, King states that Beavers picked

him up, injuring his side, and carried him from

his bed to the back door of Beavers’ unmarked

patrol car. Along the way King states his back was

bumped against a door facing causing injury to

his back. King states he was taken from his home

in his pajamas and not even given a chance to put

on socks and shoes until he arrived at the Little

Rock airport.

Discussion.

1. “Color of State Law.”

In order to state a claim under 42 U.S.C.

§1983, plaintiff must allege that the defendants

acted under color of state law and that they vio-

lated a right secured by the Constitution. West v.

Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d

40 (1988). The deprivation must be intentional;

mere negligence will not suffice to state a claim for

deprivation of a constitutional right under §1983.

Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662,

88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474

U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 671 (1986).

Beavers contends that he was not acting

under color of law while assisting in the transport

of the Kings to California.5 He has not developed

5 This assertion that he was acting as a private citizen dur-

ing the relevant time, is inconsistent with Beavers’ assertion

21-A

_

his argument to an extent and the brief does not

address this argument. Presumably he is con-

tending that although he was acting under color of

law when he went to the King home, he at some

point during the continuous process became pri-

vately employed by Johnson and was thus off duty

as far as Johnson County is concerned.

The inquiry is not this simple, even when an

officer of off duty during the entire incident in

question, more than his work status is at issue.

Rivera v. LaPorte, 896 F.2d 691, 695-696 (2d Cir.

1990), cert. denied, __ U.S. __, 116 S.Ct. 515, 133

L.Ed.2d 423 (1995). In other words, the “color of

law” inquiry, cannot be answered merely by as-

eertaining whether the officer in question was on

or off duty when the challenged incident occurred.

In the case of Martinez v. Colon, 54 F.3d 980

(1st Cir. 1995) the court summarized the applica-

ble analysis as follows:

[T]he construct—“acting under color

of state law’—rarely depends on any

of a qualified immunity defense. See e.g., Rambo v. Daley, 68

F.3d 203, 206 (7th Cir. 1995) (“Because of its narrow policy

considerations, qualified immunity, as articulated in Harlow,

is not available for private defendants who have acted under

color of law. Similarly, qualified immunity cannot protect

public defendants, as in this case, who claim they have

acted as ‘private citizens’ rather than ‘public officials.’ ...

Qualified immunity is simply unavailable to protect actions

of government officials that are taken in their ‘private’ and

not their ‘official’ capacity.’ “), cert. denied, _ U.S. _, 116

S.Ct. 1546, 134 L.Ed.2d 649 (1996).

22-A

single, easily determinable fact, such

as a policeman’s garb, duty status, or

whereabouts. Nor does “acting under

color of state law” depend on whether

an officer stays strictly within the line

of duty or oversteps it. For instance, a

police officer who exercises, but mis-

uses or exceeds, his lawfully pos-

sessed authority is generally thought

to be acting under color of state law.

The point is that segregating private

action from state action calls for a

more sophisticated analysis. In gen-

eral, section 1983 is not implicated

unless a state actor’s conduct occurs

in the course of performing an actual

or apparent duty of his office, or un-

less the conduct is such that the ac-

tor could not have behaved in that

way but for the authority of his office.

Thus, whether a police officer is act-

ing under color of state law turns on

the nature and circumstances of the

officer’s conduct and the relationship

of that conduct to the performance of

his official duties.

We think this focus follows inexorably

fron: West, where the Court wrote

that “[t]he traditional definition of

acting under color of state law re-

quires that the defendant... have

exercised power ‘possessed by virtue

of state law and made possible only .

23-A

because the wrongdoer is clothed with

the authority of state law.’” Hence, a

person acts under color of state law

“when he abuses that position given

to him by the State.” The key deter-

minant is whether the actor, at the

time in question, purposes to act in

an official capacity or to exercise offi-

cial responsibilities pursuant to state

law.

Logically, then, not every action un-

dertaken by a person who happens to

be a police officer is attributable to

the state. Though “under ‘color’ of law

means under ‘pretense’ of law,” even

so, the acts of state officials “in the

ambit of their personal pursuits” are

not state action. Accordingly a po-

liceman’s private conduct, outside the

line of duty and unaided by any indi-

cia of actual or ostensible state

authority, is not conduct occurring

under color of state law. Even though

“acting under color of law” includes

“acting under pretense of law” for

purposes of a state action analysis,

there can be no pretense if the chal-

lenged conduct is not related in some

meaningful way either to the officer’s

governmental status or to the per-

formance of his duties.

Id. at 986-87 (citations omitted).

24-A

In this case Beavers was directed to the

Kings’ home by the Johnson County Sheriff. He

was told to assist Johnson. By virtue of this direc-

tion and after further consultation with the sheriff

and the prosecuting attorney, Beavers drove King

to the Little Rock airport. King rode in the back

seat of an unmarked patrol car behind the parti-

tion. Beavers continued to provide assistance and

an escort to the State of California. Under these

circumstances, we agree with the plaintiff that

Beavers was acting under “color of state law.”

2. Qualified Immunity.

“Government officials performing discretion-

ary functions, generally are shielded from liability

for civil damages insofar as their conduct does not

violate clearly established statutory or constitu-

tional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “The

qualified immunity standard ‘gives ample room for

mistaken judgments’ by protecting ‘ali but the

plainly incompetent or those who knowingly vio-

late the law.’” Hunter v. Bryant, 502 U. S. 224,

112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991),

quoting, Malley v. Briggs, 475 U.S. 335, 343, 341,

106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The in-

quiry is normally one of pure law. J.H.H. v.

O’Hara, 878 F.2d 240 (8th Cir. 1989).

The doctrine of qualified immunity shields

officials acting only in their individual capacities.

Brendon v. Holt, 469 U.S. 464, 472-73, 105 S.Ct.

873, 83 L.Ed.2d 878 (1985). See also W. B. v.

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Matula, 67 F.3d 484, 499 (3d Cir. 1995). Any

claims against the defendants in their official ca-

pacities may not be defended against on the basis

of qualified immunity. Id.

Immunity is appropriate if the plaintiff does

not allege violation of a clearly established con-

stitutional or statutory right. Latimore v. Widseth,

7 F.3d 709, 712 (8th Cir. 1993).

The mere assertion of such a right,

however, will not be adequate: “The

contours of the right must be suffi-

ciently clear that a reasonable official

would understand that what he is

doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640, 107

S.Ct. 3034, 3039, 97 L.Ed.2d 523

(1987). Thus the defense still may be

viable, even in the face of a clearly

established (and violated) constitu-

tional right, if the defendant can

demonstrate “the ‘objective legal rea-

sonableness’ of the action assessed in

light of the legal rules that were

‘clearly established’ at the time it was

taken.” Anderson, 483 US. at 639....

Latimore, 7 F.3d at 712. While a prior case need

not address the precise factual situation facing

the officials, the unlawfulness of their actions

must be apparent in light of pre-existing law.

Anderson v. Creighton, 483 U.S. 635, 639, 107

S.Ct. 3034, 97 L.Ed.2d 423 (1987).

26-A

- To withstand a motion for summary judg-

ment on qualified immunity grounds, a civil

rights plaintiff must (1) assert a violation of a

constitutional right; (2) dernonstrate that the al-

leged right is clearly established; and (3) raise a

genuine issue of fact as to whether the official

would have known that his alleged conduct

would have violated plaintiff's clearly established

right. Habiger v. Fargo, 80 F.3d 289 (8th Cir.

1996), cert. denied, ___ U.S. __, 117 S.Ct. 518, 136

L.Ed.2d 407 (1996).

In this case, King contends he was de-

prived of his liberty when Beavers provided as-

sistance to Johnson in removing King from his

home and transporting him to the State of Cali-

fornia. It is uncontested that Johnson had been

appointed guardian of the person and estate of

King by the Johnson County Probate Court.

In opposition to the claim of qualified im-

munity, plaintiff offers the court, inter alia, the

affidavit of Warren Holcomb (Holcomb), a former

deputy sheriff in Sebastian County, Arkansas

Holcomb asserts that all reasonable law en-

forcement officers know: (1) they are always on-

duty, even when employed by a private individ-

ual; and (2) they are only empowered to enforce

the law in their county. He further asserts that

“(Injo reasonable sheriffs deputy would have

physically removed a ward from his home and

taken him out of the county, much less out of the

state without a specific court order which di-

rected the county sheriff or his deputy to do so.”

Holcomb states “[i]Jt is not even arguably reason-

27-A

able that an objective sheriffs deputy would

think that the .. . guardianship order . . . would

allow him to remove a ward out of the state.

Every objectively reasonable sheriff's deputy

would need to have a specific order to take a

ward out of state before doing so.”

Plaintiff cites the court to the case of

Hurlman v. Rice, 927 F.2d 74 (2d Cir. 1991). In

that case New York State Police Troopers entered

the home of George and Ruth Hurlman without

consent and forcibly seized a minor child, Jillian

Rice. The child was then delivered to the non-

custodial father, Charles Rice, who was a New

York police officer.

The troopers purported to be acting on

authority granted by the family court. However,

the family court’s order merely temporarily en-

joined the child’s mother, Patricia Rice, from re-

siding at her parents’ home, George and Ruth

Hurlman, with the minor child. The order did not

contain any provision about the custody of the

child or for the summary removal of the minor

child from the home.

The noncustodial father allegedly was con-

cerned about his daughter’s welfare because

George Hurlman had been convicted of an of-

fense involving endangering the welfare of a child

and had been given a probationary sentence that

included a prohibition against Hurlman’s having

contact with his two other grandchildren. The

troopers argued they were entitled to qualified

immunity because (1) the family court order gave

28-A

te SETI, PRE

them authority or (2) because Hurlman’s past

offense made that advisable. The court denied

the request for qualified immunity noting that

there [were] issues of fact that prevented the

granting of summary judgment on this basis.

We agree with Beavers that the fact that he

relied on the advice of the prosecuting attorney,

Wilson,® and his superior officer, the sheriff,

should be entitled to at least some weight in the

qualified immunity analysis. It has been noted

that “[w]hile reliance on the advice of counsel

alone will not satisfy an official’s burden of acting

reasonably,” it may nevertheless be used to show

the reasonableness of the action taken. Wentz v.

Klecker, 721 F.2d 244, 247 (8th Cir. 1983). See

also E-Z Mart Siores, Inc. v. Kirksey, 885 F.2d

476, 478 (8th Cir. 1989).

The Tenth Circuit applies a four factor test

in determining whether extraordinary circum-

stances exist in the context of reliance on coun-

sel. In Hollingsworth v. Hill, 110 F.3d 733 (10th

Cir. 1997) the Court noted that despite the exis-

tence of an inference that the defendant has vio-

lated a clearly established constitutional right of

the plaintiff, a defendant may still be entitled to

immunity “if he can demonstrate that “extraordi-

nary circumstances” intervened and “so ‘pre-

vented [him] from knowing that his actions were

unconstitutional that he should not be imputed

® As we noted previously, there is no evidence in the record

which shows Beavers was aware of the fact that Wilson was

acting as Johnson’s attorney in the guardianship matter.

29-A

with knowledge of an admittedly clearly estab-

lished right.’ ” Id. at 740 (citations omitted).

It noted that this exception is frequently

applicable in cases that involve reliance on coun-

sel. Id. at 740-41. In deciding whether the excep-

tion in applicable in this context, the court con-

siders the following factors: (1) “how unequivocal

and specifically tailored to the particular facts

giving rise to the controversy, the advice was;”

(2) “whether complete information had been pro-

vided to the advising attorney(s);” (3) “the promi-

nence and competence of the attorney(s);” and

(4) “how soon after the advice was received the

disputed action was taken.” Id. at 741.

In this case, we must also consider the fact

that the attorney from whom ‘advice was sought

was acting not only as a prosecuting attorney but

as counsel for the party seeking assistance. We

recognize, of course, that the record is devoid of

any evidence regarding Beavers’ knowledge of the

“dual” role being played by Wilson.

The question here is whether Beavers’ ac-

tions in physically removing a ward from his

home at the request of his legal guardian and as-

sisting the guardian in transporting the ward to

her home in another state was objectively rea-

sonable. We hold that it was not. Had Beavers

merely assisted Johnson, who had a court order

and letters of guardianship giving her custody

and control over both her father and his posses-

sions, with removing King from the home, our

conclusion would undoubtedly be different. Ad-

30-A

ditionally, our conclusion might be different had

Beavers, in reliance on the advice of the prose-

cuting attorney and the sheriff, merely assisted

in transporting King to the airport at Jahnson’s

request. However, here Beavers went farther—he

went outside not only the county in which he had

authority or jurisdiction to act but went» outside

the state.

Beavers got on an airplane bound for Cali-

fornia and “assisted” in transporting King to

California. We agree with King that these acts

were not objectively reasonable. Therefore, we

decline to grant him qualified immunity for these

acts.

Conclusion.

For the reasons stated, a separate order in

accordance herewith will be entered denying

separate defendant Charles Beavers’ motion for

summary judgment on the issue of qualified im-

munity.

Dated: July 29, 1997

H. FRANKLIN WATERS

United States District Judge

31-A

IN THE UNITED STATES DISTRICT COURT,

WESTERN DISTRICT OF ARKANSAS, FORT

SMITH DIVISION. Wayne King, Plaintiff v. Mar-

ilyn Johnson and Charles Beavers, Defendants.

Civil No. 96-2219.

Order

On this lst day of May, 1998, upon con-

sideration of the motion for summary judgment

filed by Marilyn Johnson, the court finds for the

reasons stated in a memorandum opinion of even

date that said motion should be and hereby is

granted. Accordingly, this action as against sepa-

rate defendant Marilyn Johnson is hereby dis-

missed.

IT IS SO ORDERED.

H. FRANKLIN WATERS

United States District Judge

32-A

OPINION OF THE DISTRICT COURT MAY 1, 1998

IN THE UNITED STATES DISTRICT COURT,

WESTERN DISTRICT OF ARKANSAS, FORT

SMITH DIVISION. Wayne King, Plaintiff v. Mar-

ilyn Johnson and Charles Beavers, Defendants.

Civil No. 96-2219.

Memorandum Opinion

This case is currently before the court on

the motion for summary judgment filed by sepa-

rate defendant Marilyn Johnson. By memoran-

dum opinion and order entered on August 1,

1998, the court denied the motion for summary

judgment filed by Charles Beavers. The ruling on

the qualified immunity issue was immediately

appealable and that portion of the case is on ap-

peal to the Court of Appeals for the Eighth Cir-

cuit. The remainder of the case was stayed dur-

ing the pendency of the appeal. Since that time

Ms. Johnson has requested that the stay be lifted

solely for purposes of the court deciding her mo-

tion for summary judgment. The court has lifted

the stay for that purpose.

Background.

Marilyn Johnson (Johnson) is the daughter

of Wayne and Bonnie King. Johnson lives in

California. In early November of 1995, Johnson

received a call from Betty Tudor (Tudor), an adult

protective services consultant with the Arkansas

Department of Human Services, informing her

that her father and mother were having problems

33-A

caring for themselves and asking her to come to

Arkansas as soon as possible. Tudor informed

Johnson that Mr. King was not cooperating with

home health care givers, was agitated and irra-

tional, and that he was no longer capable of car-

ing for himself and Mrs. King. Tudor suggested

that Johnson seek guardianship of her parents.

Tudor became involved in the situation

when on September 28, 1995, Adult Protective

Services received a referral on Mrs. King. The re-

ferral indicated Mrs. King had been diagnosed

with Alzheimer’s and that her primary care giver

was her husband, Wayne King. It was reported

that Mr. King would often not let the home health

nurses in to provide personal care services for

Mrs. King. “The referral stated Mrs. King was in-

continent, and would be soaked in urine when

the home health aides would come in. Mr. King

was also said to be in failing health and unable

to care for his wife.” Tudor Affidavit at p. 1.

Several trips were made to the home before

Adult Protective Services and the Area Agency on

Aging nurse could gain access to the house.

Contact was made with the Kings on October 30,

1995. Tudor’s account of the visit is as follows:

After going into the house and calling,

Mr. King did respond from the bed-

room. I told him who we were and

why we were there to check on them.

He said to come on down the hall to

their bedroom. We found Mr. and

Mrs. King lying in bed, the drapes

34-A

were drawn with the room very dark.

There was a strong odor of urine per-

meating the room. At first there was

no response from Mrs. King, and I

feared her physical condition would

be poor. However, she did arouse and

spoke to us. She appeared confused

and unable to answer any of our

questions. Mr. King had gotten up by

that time, and was agitated with our

presence. He said he took care of his

wife and needed no outside assis-

tance. He began getting her out of

bed, telling her she needed to get up

and get her bath. She seemed more

confused as his agitation increased.

There were medications in boxes all

around the room. The nurse with

Area Agency on Aging examined some

of the medications; she stated she

could not tell whether they were for

Mrs. King or Mr. King. Some were

marked and some were not. There

were so many of them, it would be

difficult to keep up with which medi-

cation to dispense and at what time.

Adult Protective Services consultant

talked with Mr. King about relatives

and how to reach them. He gave me

his sister’s name, Mrs. Pauline Buff-

ington, and a phone number where

she could be reached. He also gave

me his daughter’s name, Mrs. Marilyn

Johnson, but could not find her tele-

35-A

phone number. He did give the name

of Mrs. Johnson’s son with a tele-

phone number. I contacted Mrs.

Buffington as soon as possible, and

she agreed to fly to Arkansas on No-

vember 6. I talked with the son of

Marilyn Johnson, and he gave me the

number to reach her. I called and

gave her the information about her

parents. She said she would also

come as soon as arrangements could

be made. In the interim, Adult Pro-

tective Services and Area Agency on

Aging monitored the Kings.

Id. at p. 2.

Or November 7, 1995, home health services

by the Department of Health were dropped be-

cause of non-compliance by Mr. King. Specifically,

the services were dropped because he would not

honor the contract agreement and allow aides into

the home to assist with Mrs. King’s personal care.

Id. On November 8, 1995, Tudor again went to the

King residence and found the Kings in bed, Mrs.

King soaked in urine, and Mr. King not feeling

well. Id. at p. 3. Arrangements were made for a

lady to come in the home and stay with the Kings

for the evening and night of November 9, 1995. Id.

Mr. King declined further services. Id.

Johnson arrived in Arkansas on November

10, 1995. Johnson Affidavit at 4. On November

11th, Tudor spoke with Johnson at length. Tudor

Affidavit at p. 3. Tudor voiced her concerns about

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Mr. King’s possessive behavior and her concern for

Mrs. King’s well-being. Id. Johnson was advised to

seek guardianship of her parents and to take them

back to California with her. Jd. at p. 4. In Tudor’s

assessment:

Should Mrs. Marilyn Johnson not

have petitioned the court for guardi-

anship of her parents, the Depart-

ment of Human Services, Adult Pro-

tective Services, would have peti-

tioned for custody of Mrs. King and

for a commitment order for her father.

There was enough evidence of prob-

able cause for the State of Arkansas

to petition the courts for custody

since Mrs. King fit the criteria of an

endangered adult; not having mental

capacity to know she was in danger.

Mr. King was exhibiting behavior

which could be interpreted as being a

danger to himself and to his wife. In "

addition to the case of Mrs. Bonnie

King, Adult Protective Services con-

sultant felt Mr. King should also be

turned in as a referral and another

case number assigned to Mr. King. A

case number was not assigned to Mr.

King since guardianship was awarded

to his daughter, Marilyn Johnson. His

physical and mental health were be-

ing affected by his need to control the

caregiving of his wife. Therefore, a

psychiatric examination of Mr. King

would have been requested by Adult

37-A

Protective Services consultant. Mrs.

King would have been placed in a su-

pervised, skilled-care facility pending

the outcome cf Mr. King’s psychiatric

examination. Mr. King did not display

the ability to make rational decisions

about his wife or himself.

Id. at p. 4 & 5.

From November 10 to November 29, 1995,

Johnson stayed with her parents at their home in

Clarksville, Johnson County, Arkansas. Johnson

Affidavit at 95. During her stay, Johnson states

she observed “many instances when my father be-

haved irrationally and in a way that showed he

was unable to properly care for himself and my

-mother. My mother was incontinent and my father

was not changing her. On many days he would

not get out of bed and did not want anyone to get

my mother out of bed, consequently, they would

both lie on a mattress and sheets soaked with

urine.” Id. at J6.

After talking with Tudor, who voiced an

opinion that the Kings cold not continue to live in-

dependently and suggested Johnson seek guardi-

anship, Johnson consulted a local attorney, Bruce

Wilson, and discussed with him the problems her

parents were experiencing. Wilson then contacted

Tudor and Mary Kennedy, a registered nurse who

had cared for Wayne King, and requested an

evaluation and report from Dr. Jack Patterson.

Wilson Affidavit at J3. On November 13, 1995, Mr.

King was seen by Dr. Jack T. Patterson. Dr. Pat-

38-A

terson wrote Wilson a letter addressing Mr. King’s

problems. Among other things, Dr. Patterson

states: “I do think that he’s probably significantly

depressed and perhaps is a threat to both himself

and his wife.”

After having completed his investigation,

Wilson advised Johnson that he felt a guardian-

ship was warranted. Wilson Affidavit at J4. With

Wilson’s assistance, on November 17, 1995, John-

son filed a petition pursuant to Ark. Code Ann.

§28-65-218 (Supp. 1997) for appointment as

guardian of the person and estate of both her par-

ents. At the time, Wayne King was 77 years old

and Bonnie King was 78 years old.

In the petition, Johnson alleged that her

parents were incapacitated by reason of age and

unable to care for themselves and that she be-

lieved there was an eminent danger to the health

of her parents. On November 20, 1995, notice was

issued to both Wayre and Bonnie King that a

hearing on the petition for guardianship would be

held on November 21, 1995 at 9:00 a.m. Each no-

tice bears a return which states it was served on

the named person. Mr. King denies that the no-

tices were served on either himself or his wife.

On November 21, 1995, Johnson presented

to the court the letter of Dr. Patterson. At the con-

clusion of the hearing, Johnson was appointed

guardian of the person and estate of both her par-

ents. Letters of guardianship were issued. The

letters of guardianship provided that Johnson was

“authorized to have the care and custody of and to

39-A

exercise control over the person and to take pos-

session and administer the property” of Wayne

and Bonnie King. Neither the order or the letters

of guardianship make any reference to the removal

of the Kings from Arkansas to California. Simi-

larly, neither contained any prohibition against

the same and they contained no restrictions on

Johnson’s authority as guardian. On November

27, 1995, an inventory of the estate was filed with

the probate court.

Charles Beavers (Beavers) is a deputy with

the Johnson County Sheriffs Department. He has

been so employed for about five years. On Novem-

ber 29, 1995, Beavers was notified by Johnson

County Sheriff, Charles Nicklas, that Tudor was at

the Kings’ residence in Clarksville, Arkansas, and

was having problems with a guardianship case in-

volving Mr. King. Mr. King was refusing to go with

his daughter, Johnson, to California.

Beavers was directed to go to the home and

see if he could assist Tudor. When Beavers ar-

rived, Tudor, Johnson and some home health care

workers were already present. Beavers was shown

the order appointing Johnson guardian of Mr.

King. After reviewing the court order, the letters of

guardianship, and discussing the matter with

those present, Beavers went into the bedroom

where Mr. King was apparently refusing to get out

of bed.

Beavers tried to talk Mr. King into getting

out of bed and getting dressed. According to Bea-

vers, Mr. King kept saying “I will kill myself.”

40-A

When asked who would care for his wife then, Mr.

King allegedly said he hoped she would die.

Beavers states he contacted by telephone

Wilson,' the Johnson County Prosecuting Attor-

ney, told him about the incident and informed him

that Mr. King was refusing to go with Johnson.

Wilson replied that Mr. King had to go with his

daughter and that Beavers should talk him into

going. There has been no evidence presented that

indicates Beavers was aware that Wilson was also

acting as Johnson’s attorney.

Beavers returned to the bedroom and dis-

cussed with Mr. King the proposed trip to Califor-

nia. After ten or fifteen minutes, Beevers contends

he called Wilson again and hold him that Mr. King

was not going to go without being physically re-

moved. Wilson told Beavers to go ahead and

physically remove Mr. King if that was the only

way Mr. King would go.

Beavers again tried to talk Mr. King into

going. When Mr. King refused, Beavers bent over

and picked Mr. King up. Beavers placed one arm

under Mr. King’s legs and the other behind his

back. Beavers carried Mr. King to the front door.

According to Beavers, once at the front door, Mr.

King said, “Put me down. I will walk. What are the

1 Mr. King by affidavit states that at “no time while he was in

my house did Beavers use my phone.” No further informa-

tion is given about the location of the phone, etc. Mr. King

does not deny that he was in bed and refused to leave the

bedroom, nor does he make any assertions regarding his

ability to see or hear Beavers at the relevant times.

41-A

neighbors going to think?” Beavers put Mr. King

down and Mr. King walked outside to the patrol

car and got inside.

Beavers was informed that Johnson had

called a doctor at the Clarksville Medical Group

and had set up an appointment for Mr. King to re-

ceive a shot of some type. Beavers took Mr. King to

the medical facility, parked, and a nurse came to

the car and administered a_shot.

Johnson informed Beavers that she needed

assistance in getting Mr. King to the airport in Lit-

tle Rock, Arkansas. Beavers contacted Sheriff

Nicklas? to find out if he was to take Mr. King to .

Little Rock in his patrol car. Beavers was advised .

that he could assist Johnson in taking Mr. King to

Little Rock and if he wanted to, he could assist her

to California as long as there was no expense to

Johnson County. Beavers also contacted Wilson

who indicated he could see no problem in provid-

ing Johnson assistance.%

Johnson paid for Beavers’ round trip airline

ticket to California. Johnson also paid Beavers for

his services in assisting her to California. Both

Johnson and Beavers state he was paid $10 per

2 In his affidavit, Mr. King states that he “never saw Beavers

radio anyone stating that he was taking me to Little Rock.”

3 Plaintiff offers as an exhibit a typed statement purportedly

signed by Beavers dated December 12, 1996, in which Bea-

vers indicates Wilson’s reply to the inquiry was: “I do not

foresee any problem in assisting Marilyn Johnson to Little

Rock, Arkansas.”

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o

hour for accompanying Johnson and the Kings to

California.

Beavers states that on the way to the airport

he and Mr. King talked about Mr. King’s past.

During the airline trip Beavers states that Mr.

King spoke of killing himself and killing everyone

in his daughter’s house. Beavers advised Johnson

of those threats.

Mr. King also talked about his past, his

mother and his brother. Although Mr. King ini-

tially refused or declined to eat, he later did agree

to eat something. In Beavers’ opinion, Mr. King did

not seem to be able to deal with what was going on

in his life and appeared to be at the end of his

rope and unable to deal with the reality of the care

of his wife. Beavers states he used no force to get

Mr. King to comply with reasonable requests and

only accompanied Johnson and the Kings in order

to assure Mr. King’s safety and to assist Johnson.

Once in California, Johnson filed on Decem-

ber 13, 1995, a petition for appointment as con-

servator for Mr. King. She hired various individu-

als to stay with Mr. King. One such individual was

Lisa Morello. By affidavit, Morello states she

worked for Johnson from January of 1996 until

February of 1996. Morello describes Johnson’s

home as being located twenty miles from the near-

est town. Morello Affidavit at $3. Morello states she

was told Mr. King was a suicide threat and that

she should always answer the phone and keep

track of who called Mr. King and who he talked to.

Id. at 4. Because the house was in a remote area

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and Mr. King could not go out and talk to other

people and because she was to track his move-

ments and conversations, Morello felt Mr. King

was a prisoner in the Johnson household. Id. at

75. Morello did not believe Mr. King was a suicide

threat and believed he was perfectly capable of

taking care of himself. Id. at 410. Mr. King would

not speak to Johnson. Id. at 411.

Subsequently, at a hearing held in Califor-

nia on January 23, 1996, “[b]ased upon the report

of the court investigator, [Johnson] withdrew her

petition: to establish the conservatorship” and

stipulated on the record that she “would be with-

drawing the similar action as to the proposed con-

servatee in the State of Arkansas.” The investiga-

tor’s report provides in part as follows:

Wayne King was at all times perfectly

and wonderfully rational and infor-

mative. Mr. Wayne King is clearly a

man with strong opinions and great

ability to think and act in his own

best interests. Mr. Wayne King

maintains that he has cared for his

wife for over forty (40) years and -

should be allowed to continue caring

for her and making decisions regard-

ing her well-being. Mr. Wayne King

exhibited no unusual signs of anger

or depression other than one would

feel after being removed from their

own home and transported to another

location against their will. Mr. King

did not see his situation in Arkansas

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as requiring the drastic measures

that occurred.

The investigator represented to the court

that Mr. King was “competent and able to care for

himself and make decisions regarding his health

and well-being.” She also recommended that he be

involved in decision making about his wife but

concluded he was unable to provide twenty-four

(24) hour a day physical care for his wife. The in-

vestizator recommended that either Adult Protec-

tive Services, or a person who Mr. King approves

of, be the conservator for Mrs. King. With respect

to Mrs. King, the investigator stated it was clear

that she needed full-time care and that for twenty-

four hour care to be available, there had to be

more than one person involved.

The temporary conservatorship was dis-

solved as to both the estate and the person of Mr.

King. Mr. King left Johnson’s home on January

23, 1996, and Johnson has not exercised control

over him since that date. Johnson states that she

relied on her attorneys in Arkansas and California

to handle the guardianship proceedings and fol-

lowed their instructions with regard to her actions

as guardian and with respect to guardianship

funds. Johnson Affidavit at 412.

Mr. King has provided the court with the af-

fidavit of his brother, Claud King. Claud King as-

serts that: (1) he visited is brother about once a

month in the summer and fall of 1995 and the

house was always in fine condition and Mrs. King

was taken care of; (2) he did occasionally find his

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brother in bed but this was because he had been

up all night caring for Mrs. King; (3) his brother

and Johnson “often seemed at odds;” (4) Johnson

did not tell him or anyone else in the family that

she was seeking guardianship of the Kings;

(5) Wayne King called his mother, Lela King (94),

on November 29, 1995, and told her the police

were at his home and he and Mrs. King were being

taken to California; (6) after this call, Claud went

to Clarksville but was unable to locate his brother

and was told the police and sheriff's office had no

information about the Kings.

Plaintiff has also provided the court with the

affidavit of Pauline Buffington, Wayne and Claud

King’s sister. Buffington states that she stayed at

the Kings’ home from July 17, 1995, to July 31,

1995, and the home and Mrs. King were being

taken care of. Buffington states that when she was

contacted by Tudor she agreed to go to Arkansas

but before she could pick up her ticket Johnson’s

husband told her she did not need to go and that

they “did not want war.”

On June 4, 1996, Mr. King filed a petition

for accounting in the Probate Court of Johnson

County, Arkansas. In the petition, Mr. King alleges

that the guardianship was accomplished as a re-

sult of misrepresentation and fraud, the legal re-

quirements for obtaining it were not complied

with, the guardianship was not conducted ac-

cording to law, he was forcibly removed from his

home against his will, and Johnson took in excess

of $7,000 to which she was not entitled. On July

19, 1996, Johnson filed an accounting. Johnson

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alleges the Probate Court has taken no action

since the filing of the accounting.

On November 27, 1996, Mr. King filed this

action against his daughter and Charles Beavers

under §198c. 42 U.S.C. §1983. In addition to his

civil rights claim, Mr. King asserts claims of out-

rage and false imprisonment under Arkansas law.

Johnson has now moved for summary judgment

on all claims. She contends that: (1) as a private

individual she did not act under color of law and

is not a state actor for purposes of §1983; (2) if

she is found to have acted under color of law, she

is entitled to qualified immunity or, in the alter-

native has a valid good faith defense; (3) the un-

disputed facts are insufficient to support-a cause

of action for outrage under Arkansas law; (4) the

undisputed facts are insufficient so support a

cause of action for false imprisonment under Ar-

kansas law; and (5) Mr. King is collaterally es-

topped from bringing an action on the validity of

the guardianship order since the issue has already

been litigated in a state court proceeding. If the

court grants the summary judgment motion on

the §1983 claims but not on the state law claims,

we are asked to decline to exercise supplemental

jurisdiction over the state law claims.

Discussion. .

1. §1983—Color of Law & State Action.

Johnson contends she is not subject to li-

ability under §1983 because she is not a govern-

mental employee and there was no state involve-

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ment during the period of time in which the

guardianship order was in effect. She contends

that plaintiff's allegations refer only to the period

of time in which the order was in effect. She con-

tends that plaintiff's allegations refer only to the

period of time in which the order was in effect and

there are no allegations of any state action or ac-

tion under color of state authority in connection

with the procurement of the guardianship, or in

connection with any of her activities which oc-

curred after the guardianship was terminated.

Further, she argues that any actions taken while

the guardianship order were in place could not

have deprived Mr. King of his constitutional rights

since-she was authorized ‘by law to have the care

and custody of and exercise control over him. She

relies on cases such as Orlando v. Witzel, 443

F.Supp. 744 (W.D. Ark. 1978), Colombrito v. Kelly,

764 F:2d 122 (2d Cir. 1985), and Taylor v. Gilmar-

tin, 686 F.2d 1346 (10th-Cir. 1983) for the propo-

sition that the appointment of a guardian and the

assistance of Beavers does not constitute color of

law or state action for purposes of §1983.

In opposition, Mr. King contends that a

guardian is a state actor if the guardianship is a

right or privilege created by the state and if the

guardian receives significant aid from the state.

Here, Mr. King argues those conditions are met,

ie., the guardianship is a right or privileged cre-

ated by the state and Johnson received significant

aid from Beavers, Tudor and Wilson, who as dep-

uty prosecutor, is also a state employee. He alleges

that Johnson conspired with Tudor, Beavers, and

Wilson to obtain the guardianship and that John-

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son was, in a sense, doing the state’s job by seek-

ing the guardianship. He submits that there was

more than a meeting of the minds, there was an

exchange of cash between Johnson and Beavers.

Mr. King relies heavily on Thomas S. v. Morrow,

781 F.2d 367 (4th Cir. 1986).

Mr. King also suggests that public policy re-

quires Johnson to be held liable under §1983. Mr.

King submits that once in California, Johnson be-

gan the process of spending down Mrs. King’s es-

tate so that she would qualify for Medicaid to pay

for her nursing home care. He states that there is

a need to prevent abuses or potential abuses in

this regard. Mr. King asks the court to consider

the procedures utilized in petitioning the Probate

Court. He takes the position that Johnson was not

properly appointed as guardian. He contends

Johnson utilized the procedures for obtaining a

temporary guardianship, which wouldn’t exceed

90 days, but that the testimony necessary to es-

tablish there was an imminent danger to the life or

health of the incapacitated person, or of loss,

damage, or waste to the property of the incapaci-

tated person was not presented and the order en-

tered did not reflect that the guardianship was

temporary. He argues Johnson had the judge sign

a permanent guardianship order within the time

limits for a temporary guardianship.

Under §1983, a plaintiff must prove that the

conduct complained of was committed by a person

acting under color of state law and that the con-

duct deprived the plaintiff of rights, privileges or

immunities secured by the Constitution or laws of

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the United States. West v. Atkins, 487 U.S. 42,

108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). “Section

- 1983 erects no shield against merely private con-

duct, however discriminatory or wrongful.” Holley

v. Deal, 948 F.Supp. 711, 714 (M.D. Tenn. 1996).

Nevertheless under appropriate circumstances, a

private individual may be said to be acting under

color of state law. In analyzing a claim against a

private actor the focus of the court’s inquiry is

whether the alleged deprivation of constitutional

rights was committed under color of state law.

“Action taken by private individuals may be ‘under

color of state law’ where there is ‘significant’ state

involvement in the action.” Howerton, 708 F.2d at

382. “Although section 1983’s under-color-of-law

requirement is technically separate from the

Fourteenth Amendment’s_ state-action require-

ment, the two inquiries are closely related.” John-

son v. Knowles, 113 F.3d 1114, 1118 (9th Cir.

1997), cert. denied, __ U.S. __, 118 S.Ct. 559, 139

L.[E]d.2d 401 (1997). “Because the plaintiffs are

required to establish state action for purposes of

their constitutional claims, we treat the under-

color-of-state-law requirement and the state action

requirement as equivalent.” Id.

In Lugar v. Edmondson Oil Co., 457 U.S.

922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the

Supreme Court set forth a two part test for déter-

mining when a party’s actions are attributable to

the state for purposes of section 1983. The Court

stated the two part test as follows:

First, the deprivation must be caused

by the exercise of some right or privi-

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lege created by the state, or by a rule

of conduct imposed by the state, or by

a person for whom the state is re-

sponsible.... Second, the party

charged with the deprivation must be

a person who may fairly be said to be

a state actor because he is a state of-

ficial, or because he has acted to-

gether with or has obtained signifi-

cant aid from state officials, or be-

cause his conduct is otherwise

chargeable to the state.

Id. at 937.

The Lugar fair attribution test requires the

existence of a state policy and a state actor.

Roudybush v. Zobel, 813 F.2d 173, 176 (8th Cir.

1987). “The issue thus hinges on whether the de-

fendant’s ‘conduct allegedly causing the depriva-

tion of a federal right [is] fairly attributable to the

State.’” Id. at 176 (quoting Lugar, 457 U.S. at

937). The Lugar court also indicated that it did not

intend to abolish the Monroe v. Pape abuse of

authority doctrine. Monroe v. Pape, 365 U.S. 167,

184-187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). “In

fact, the Court cited Monroe v. Pape as an example

of when the two prongs of Lugar (state causation

and state actor) collapse into one. Thus, even if a

private party misuses a state statute, the depriva-

tion can still be under color of state law if the

authority of state officials puts the weight of the

State behind the private decision.” Greco v. Guss,

775 F.2d 161, 167 (7th Cir. 1985).

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As the Supreme Court has noted, the prin-

ciple of state action is “easily stated” while “the

question of whether particular discriminatory

conduct is private, on the one hand, or amounts

to ‘state action,’ on the other, frequently admits of

no easy answer.” Moose Lodge No. 107 v. Irvis, 407

U.S. 163 172, 92 S.Ct. 1965, 22 L.Ed.2d 627

(1972). In Lugar, the plaintiff alleged that private

party debt claimants in a state court action, in

violation of due process, had maliciously used

state prejudgment attachment procedures which

resulted in wrongful seizure of his property under

a levy later set aside. The Lugar court rules that,

in a due process challenge to state attachment

procedures, “invoking the aid of state officials to

take advantage of state created attachment proce-

dures : .. is sufficient whén the state has created

a systém whereby state officials will attach prop-

erty on the ex parte applitation of one party toa

private dispute.” Lugar, 457 U.S. at 942.

In Roudybush v. Zabel, 813 F.2d 173 (8th-

Cir. 1987), the Eighth Circuit in discussing Lugar

noted that “the Lugar Court made clear that a pri-

vate party’s unlawful use of a constitutional state

procedural statute does not, by itself, satisfy the

state policy component.” Jd. at 177. In summariz-

ing its ruling the court noted:

Accordingly, this court has held, as

we do here, that Lugar’s state policy

component is not met when the pri-

vate party charged with an unconsti-

tutional deprivation has allegedly

acted unlawfully with respect to a

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constitutional state statute. Likewise,

we have consistently found that

Lugar’s state policy component is met

when the party charged with an un-

constitutional deprivation has acted

in conformity with an allegedly un-

constitutional state statute or well-

settled custom.

Id. (citations omitted).

A private actor may also be liable under

section 1983 if a plaintiff can establish a conspir-

acy or joint participation between the private actor

and a state official to deprive the plaintiff of con-

Stitutional rights. Id. See also Lugar, 457 U.S. at

931; Myers v. Morris, 810 F.2d 1437, 1454 (8th

Cir. 1987). “Private persons jointly engaged with

State officials in a deprivation of civil rights are

acting under color of law for purposes of section

1983. Section 1983 liability continues to require,

at minimum, some overt and Significant participa-

tion, by the party acting in concert with state ac-

tion, in the challenged action.” Offut v. Kaplan,

884 F.Supp. 1179, 1193 (N.D. Ill. 1995) (citations

omitted). See also Jordan v. Fox, Rothschild,

O’Brien & Frankel, 20 F.3d 1250, 1266 (3d Cir.

1994) (“Before private persons can be considered

State actors for purposes of section 1983, the state

must significantly contribute to the constitutional

deprivation, e.g., authorizing its own officers to in-

voke the force of law in aid of the private persons’

request.”).

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In the context of guardianships, the courts

have looked at the extent of the powers granted

under state law, the purpose of the guardianship,

and the authority exercised by the guardian, etc.,

in determining whether the guardian can be

deemed to have acted under color of law for pur-

poses of §1983. See, e.g., Meeker v. Kercher, 782

F.2d 153 (10th Cir. 1986) (guardian ad litem not

acting under color of law); Holley v. Deal, 948

F.Supp. 711, 713 (M.D. Tenn. 1996) (inmate’s

limited guardian did not act under color of state

law in consenting to administration of medication);

Forbes v. Rhode Island Brotherhood of Correctional

Officers, 923 F.Supp. 315 (D.R.I. 1996) (guardian

ad litem, as a fiduciary legally obligated to act ina

minor’s best interests, cannot be considered a

state actor); Oltremari v. Kansas Social & Rehabili-

tative Service, 871 F.Supp., 1331, 1345 (D. Kan.

1994) (As to any claim under §1983, guardian ad

litem was not acting under color of law).

It appears the only instances in which a

guardian has been held to be acting under color of

law involve situations in which the guardian takes

on substantial authority, by virtue of state law, for

long term involvement in the minor’s or incompe-

tent’s well-being and care. Snyder v. Talbot, 836

F.Supp. 19, 24 n.7 (D.Me. 1993). For instance, in

Thomas S. v. Morrow, 781 F.2d 367 (4th Cir.

1986), relied on by Mr. King, Allen Childress, a re-

gional adult mental health specialist with the

North Carolina department of human resources,

was appointed guardian over Thomas S. in Febru-

ary of 1982. Thomas had been placed for adoption

by his mother at his birth in 1963. Until his eight-

04-A

eenth birthday, he was in the custody of Gaston

County, North Carolina, Department of Social

Services. During this period of time, he lived in

more than 40 foster homes and institutions.

During his youth, Thomas had various be-

havioral problems eventually retreating into his

own world and attempting suicide on several occa-

sions. When he turned 18, Gaston County began

proceedings to have him declared incompetent.

After Childress was named guardian, he had

Thomas removed from his current placement in

Gerald’s Lazy Acres Rest Home for the elderly and

placed in the mental retardation unit at Brough-

ton Hospital. The transfer was accomplished “in

part to enable the guardian to assess Thomas’s

needs and to enable Gaston County to identify re-

sources to meet those needs.” Jd. at 370-71. Tho-

mas was evaluated but the recommendations of

the evaluator’s and staff were not carried out. Af-

ter a number of interim placements, Thomas by

his next friend brought suit against, inter alia,

Childress in his capacity as guardian. The com-

plaint alleges Thomas had been denied substan-

tive due process, had not been provided minimally

adequate treatment, and the hospitalization had

imposed a degree of restraint on his liberty incon-

sistent with professional judgment concerning his

appropriate treatment. Jd. at 373.

Childress argued that the court lacked ju-

risdiction over him because he had not acted un-

der color of state law and because his actions

could not be attributed to the state. Id. at 377.

The court, applying the two-part Lugar test, first

55-A

found that the “guardian’s authority over Thomas

is a Tight or privilege created by the State.’” Id. at

377. Second, it held that “the guardian is properly

characterized as a state actor because ‘he has

acted together with or has obtained significant aid

from state officials. ...’” Id. ai 377 (citation omit-

ted). It found that the “actions of the guardian in

joining with state officials to have Thomas moved

from place to place irrespective of Thomas’s will

are legally indistinguishable from the seizure

challenged in Lugar.” Id. at 378 (citation omitted).

Moreover, the court concluded the guardian was

properly joined under Rule 19 since in his absence

complete relief could not be afforded. Id.

Although plaintiff stresses allegea irregu-

larities in the obtaining of the order and the

wording of the order, ie., it did not specify the

guardianship was temporary and did not state it

was limited to the ninety day period, he has ad-

vanced nothing to show that any conspiracy or

joint activity involved the court or judge. He has

made no showing that there was any under-

standing reached between Wilson, tne court, and

Johnson to deprive him of, or violate, his individ-

ual rights.

The mere use of the court as a forum is in-

sufficient to constitute state action. See e.g., Tay-

lor v. Gilmartin, 686 F.2d 1346, 1355 (10th Cir.

1982). This is true even if the court is used as part

of a scheme, if there is no showing the court was

part of the conspiracy but was instead used “in an

effort to obtain some official appearance.” Id. “The

mere existence of a state guardianship order,

56-A

though erroneously issued, will not transform a

defendant’s conduct into state action.” Colombrito

v. Kelly, 764 F.2d 122, 132 (2d Cir. 1985).

It has been said that the “test of whether a

joint participation or conspiracy exists is whether

the facts alleged demonstrate that the private in-

dividual and the public official acted with a com-

mon understanding or ‘meeting of the minds’ to

deprive plaintiff of his constitutionally protected

rights.” Baer v. Baer, 450 F.Supp. 481, 487 (N.D.

Cal. 1978). Baer was a case brought by Lawrence

Baer against his parents and the Freedom of

Thought Foundation which acted as a depro-

grammer. Mr. and Mrs. Baer at the direction of the

Foundation filed a petition requesting appoint-

ment of a conservator for their adult son. The

court issued the order and agents of the Founda-

tion abducted the son and took him into custody

with the assistance of the local police.

The defendants, the parents and the Foun-

dation, argued the §1983 claim failed because

they were not acting under the color of law. The

court held the state court’s granting of the conser-

vatorship order amounted only to a “disinterested

and indirect involvement by the state” which was

“too insignificant to bring the discrimination

within the pale of constitutional prohibitions.” Jd.

at 486. It noted that the courts are open to all

persons of the state and that the statute utilized

to obtain the conservatorship was available to all

citizens. Id. it concluded that a private misuse of

the state law “presents neither a denial of consti-

tutional rights under the Fourteenth Amendment

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nor a claim upon which relief could be granted

under the Civil Rights Act.” Id. at 486.

The plaintiff also relied on the joint partici-

pation or conspiracy method of establishing de-

fendants acted under color of law. He relied on the

fact that uniformed members of the police de-

partment helped the Foundation forcibly take

custody and pointed to portions of the complaint

which he contended implicated the judge as well.

The court held there were insufficient facts to

show that the “private defendant and public offi-

cial acted with a common understanding or

‘meeting of the minds’ to deprive plaintiff of his

constitutional rights.” Id. at 487. It pointed out

that the police only “assisted in the effectuation of

a court order, which is insufficient to establish

that defendants and the police came to a ‘meeting

of the minds.’” Id. at 488. With respect to the

state court judge, it noted there was no allegation

that “the judge was conspiring with the defen-

dants, or, short of conspiring with them, shared

their intention to deprive Lawrence Baer of his

constitutional rights.” Id. See also Orlando uv.

Wizel, 443 F.Supp. 744, 747 (W.D. Ark. 1978) (“A

state, merely by providing a forum and a means of

enforcing regularly issued court orders, does not

‘color’ the action of the private litigants with state

action.”)

After careful consideration of the parties’ ar-

guments, the relevant case law, and the facts,

most, if not all, of which are undisputed, we con-

clude under Lugar and other relevant authority,

cited supra, that Johnson acted under color of law

58-A

for purposes of §1983. In this case, the state sig-

nificantly contributed to the alleged constitutional

deprivation. It was at the request of Tudor that

Johnson came to Arkansas and at Tudor’s sug-

gestion that Johnson sought guardianship. After

the guardianship order was entered, giving John-

son custody over the person and property of

plaintiff, Tudor’s involvement continued. In fact, it

appears it was Tudor that requested assistance

from the sheriff's office. Beavers then came to the

Kings’ home and assisted Johnson not only in

taking custody of Mr. King but also in transport-

ing him from Arkansas to California. Johnson was

further aided in this endeavor by Wilson who

acted as both her private attorney and as prose-

cuting attorney for the county in giving advice to

Beavers regarding the propriety of Johnson’s ac-

tions.

It is perhaps important to note that we are

not ruling that guardians in all instances and un-

der all circumstances act under color of law for

purposes of §1983; rather, our holding is limited

to the facts of this case. Additionally, we are

making no ruling or comment on the merits of the

§1983 claim itself. Instead, we merely hold that

Johnson, a private individual, acted under color of

law for purposes of §1983.

2. §1983—Qualified Immunity or Good Faith

Defense.

Johnson argues qualified immunity is avail-

able for private defendants faced with a threat of

liability under §1983 actions other than an action

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arising out of replevin, garnishment, or attach-

ment. She concedes that the Supreme Court in

Wyatt v. Cole, 504 U.S. 158, 112 S.Ct. 1827, 118

L.Ed.2d 504 (1992) held that qualified immunity

was not available to private entities faced with

§1983 liability for invoking a state replevin, gar-

nishment or attachment statute.

In Wyatt certiorari had been granted on the

question of “whether private persons, who con-

spire with state officials to violate constitutional

rights, have available the good faith immunity ap-

plicable to public officials.” Id., 112 S.Ct. at 1834.

The Supreme Court stated the “precise issue en-

compassed in this question, and the only issue

decided by the lower courts, is whether qualified

immunity, as enunciated in Harlow, is available

for private defendants faced with §1983 liability

for invoking a state replevin, garnishment or at-

tachment statute.” Id. The Supreme Court an-

swered this question negatively. Id.

It noted the reasons for recognizing such an

immunity with respect to public officials was

based “on the special policy concerns involved in

suing government officials.” Id., 112 S.Ct. at 1833

(citations omitted). It concluded these “rationales

mandating qualified immunity for public officials

are not applicable to private parties.” Id. Among

the rationales identified was the necessity of pre-

serving the public officials ability to “serve the

public good or to ensure that talented candidates

were not deterred by the threat of damages suits

from entering public service.” Id. (citations omit-

ted). It said that “[qjualified immunity strikes a

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balance between compensating those who have

been injured by official conduct and protecting

government’s ability to perform its traditional

functions.” Id. (citations omitted). “In short, the

qualified immunity recognized in Harlow acts to

safeguard government, and thereby protect the

public at large, not to benefit its agents.” Id.

With respect to private parties, the Supreme

Court noted:

These rationales are not transferable

to private parties. Although principles

of equality and fairness may suggest,

as respondents argue, that private

citizens who rely unsuspectingly on

state laws they did not create and

may have no reason to believe are in-

valid should have some protection

from liability, as do their government

counterparts, such interests are not

sufficiently similar to the traditional

purposes of qualified immunity to

justify such an expansion. Unlike

school board members, or Presiden-

tial aides, private parties hold no of-

fice requiring them to exercise discre-

tion; nor are they principally con-

cerned with enhancing the public

good. Accordingly, extending Harlow

qualified immunity to private parties

would have no bearing on whether

public officials are able to act force-

fully and decisively in their jobs or on

whether qualified applicants enter

public service. Moreover, unlike with

government officials performing dis-

cretionary functions, the public inter-

est will not be unduly impaired if pri-

vate individuals are required to pro-

ceed to trial to resolve their legal dis-

putes. In short, the nexus between

private parties and the historic pur-

poses of qualified immunity it simply

too attenuated to justify such an ex-

tension of our doctrine of immunity.

Id., 112 S.Ct. at 1833-34 (citations omitted). The

Court, however, did “not foreclose the possibility

that private defendants faced with §1983 liability

under Li:gar v. Edmondson Oil Co., 457 U.S. 922,

102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), could be

entitled to an affirmative defense based on good

faith and/or probable cause or that §1983 suits

against private, rather than governmental, parties

could require plaintiffs to carry additional bur-

dens.” Id., 112 S.Ct. at 1834.

Since Wyatt, the courts have struggled with

the question of when, if ever, qualified immunity

should extend to private individuals. In McKnight

v. Rees, 88 F.3d 417 (6th Cir. 1996), the Sixth

Circuit was faced with the question of whether

qualified immunity should be extended to correc-

tional officers employed by a private corporation

under contract with the State of Tennessee. The

court first examined whether the tradition of itn-

munity was firmly rooted in the common law. Id.

at 420. It noted this factor informed its analysis

but the “presence of absence of immunity found

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there is not necessarily dispositive.” Jd. Next, it ex-

amined whether “strong public policy reasons

supported the recognition of qualified immunity in

particular cases.” Id. In this connection, it exam-

ined the nature of the functions with which the

particular individual had been entrusted. Id.

“Finally, when determining whether public policy

supports the grant or denial of immunity, {w]e do

not have a license to establish immunities from

[section] 1983 actions in the interests of what we

judge to be sound public policy.” Id.

It noted several circuits had read Wyatt nar-

rowly as “applying only to cases in which a private

party invokes state law to pursue a private inter-

est.” Id. (citing Eagon v. Elk City, 72 F.3d 1480,

1489 (10th Cir. 1996). Following this reasoning,

several circuits have held that qualified immunity

protects private defendants fulfilling government

contracts, or following court orders, or who per-

form duties at the request of a state actor.

McKnight, 88 F.3d at 421-22. See e.g. Warner v.

Grand County, 57 F.3d 962 (10th Cir. 1995)

(qualified immunity extended to private crisis

center director conducting strip search at the re-

quest of search officers); Williams v. O’Leary, 55

F.3d 320 (7th Cir.), cert. denied, 516 U.S. 993, 116

S.Ct. 527, 133 L.Ed.2d 434 (1995); Sherman v.

Four County Counseling Center, 987 F.2d 397 (7th

Cir. 1993) (qualified immunity for private psychi-

atric center for involuntary detention of allegedly

mentally ill patient at the request of arresting offi-

cer); Frazier v. Bailey, 957 F.2d 920 (1st Cir. 1992)

(qualified immunity for social workers under con-

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tract with the state to provide investigation of

child abuse claims).

In McKnight, the Sixth Circuit indicated its

belief that too much emphasis had been placed by

some circuits on the functions performed by the

private party. While it did

not disagree that we must examine

the function or nature of the conduct

at issue as an initial matter, [it did]

not believe the analysis begins and

ends with asking the question

whether the private party is perform-

ing a government function. We must

also examine whether the “special

policy concerns involved in suing gov-

ernment officials,” Wyatt, 504 U.S. at

167, 112 S.Ct. at 1833, also support

the grant of qualified immunity to pri-

vate actors performing what are tra-

ditionally governmental functions, as

is the case here. Therefore, we next

discuss whether the public policy un-

derpinnings of qualified immunity

support extending its protections to

the private defendants here... .

McKnight, 88 F.3d at 423.

On the facts before it, the court concluded

that privately employed correctional officers were

serving the public interest by maintaining a cor-

rectional facility but noted that they were not pri-

marily motivated by a desire to further public in-

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terest3. Id. at 424. Rather, it noted that a private

corporation’s aim was to maximize profits. Id.

“[T]his increased threat of injury by violation of

constitutional guarantees counsels against grant-

ing qualified immunity to correctional officers em-

ployed by a private corporation to run a state’s

prison facilities.” Id. The court also noted that de-

nial of qualified immunity in that situation would

not “deter talented candidates from entering pub-

lic service.” Id. The court therefore declined to

grant qualified immunity to the correctional offi-

cers. Id. at 425. See also McDuffie v. Hopper, 982

F.Supp. 817 (M.D. Ala. 1997) (Private party doc-

tors and mental health care providers not eligible

for qualified immunity from suit based on suicide

of prisoner despite their status as government

contractors since they were performing at their

own behest and motivated by the desire to make a

profit).

Then in Richardson v. McKnight, _ U.S. _,

117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) the Su-

preme Court affirmed the Sixth Circuit and held

that prison guards who are employees of a private

prison management firm were not entitled to

qualified immunity. It found the following four as-

pects of Wyatt relevant: (1) that §1983 basically

seeks to deter state actors from using the badge of

their authority to deprive individuals of federally

guaranteed rights although it can sometimes im-

pose liability on private individuals; (2) a distinc-

tion exits between an immunity from suit and

other kinds of defenses; (3) §1983 immunities are

rooted in the common law and supported by

strong policy reasons; and (4) Wyatt was limited to

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the facts before it and did not answer the qualified

immunity question with respect to all private indi-

viduals irrespective of the nature of their relation

to the government, position, or the kind of liability

at issue. Richardson, 117 S.Ct. at 2103-04.

On the question before it, the Court noted

that history did not reveal a firmly rooted tradition

of immunity applicable to privately employed

prison guards. Id. at 2104. In examining the his-

tory and purposes of the immunity doctrine, the

Supreme Court stated:

Our examination of history and pur-

pose thus reveals nothing special

enough about the job or about its or-

ganizational structure that would

warrant providing these private

prison guards with a governmental

immunity. The job is one that private

industry might, or might not, per-

form; and which history shows pri-

vate firms did sometimes perforrn

without relevant immunities. The or-

ganizational structure is one subject

to the ordinary competitive pressures

that normally help private firms ad-

just their behavior in respons< to the

incentives that tort suits provide—

pressures not necessarily present in

government departments. Since there

are no special reasons significantly

favoring an extension of governmental

immunity, and since Wyatt makes

clear that private actors are not auto-

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matically immune (ie., §1983 immu-

nity does not automatically follow

§1983 liability), we must conclude

that private prison guards, unlike

those who work directly for the gov-

ernment, do not enjoy immunity from

suit in a §1983 case.

Id., 117 S.Ct . at 2108.

The Supreme Court closed with three cave-

ats. First, it noted that it addressed only the

question of §1983 immunity and not whether the

defendants were acting under color of law and

thus subject to liability under §1983. Jd. Second,

it noted that it had answered the immunity ques-

tion narrowly in the context in which it arose. Jd.

Third, it said that its ruling did not foreclose the

possibility that a “special ‘good faith’ defense”

might exist. /d.

Prior to the Richardson decision, some cir-

cuits had read Wyatt broadly and indicated that it

foreclosed the possibility of qualified immunity

being granted to private individuals. See e. g. Victor

Research, Inc. v. Howard & Howard Attorneys, P.C.,

76 F.3d 692 (6th Cir. 1996) (Private individuals

not granted qualified immunity on Bidens claim);

Jordan v. Fox, Rothschild, O’Brien. & Frankel, 20

F.3d. 1250, 1276 (3d Cir. 1994) (“[The availability

of qualified immunity to private person whe act

under color of law is no longer an open question.

It is settled. Private persons cannot assert it.”).

-

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Prior to Wyatt, the Eighth Circuit had held

that qualified immunity extended to private defen-

dants. See e.g., Waterdown Equip. Co. v. Norwest

Bank Waterdown, N.A., 830 F.2d 1487, 1489-90

(8th Cir. 1987). It appears that the Eighth Circuit

has not addressed this issue since the Supreme

Court’s decisions in Wyatt and Richardson.

Under the circumstances involved in this

case, we conclude qualified immunity is not avail-

able to Marilyn Johnson. There is no firmly rooted

tradition of immunity to private guardians.

Granting immunity in this situation would not

protect the government’s ability to perform its

functions or serve the public good; nor would

qualified immunity in this situation ensure that

qualified candidates would not be deterred from

entering public service.

Those circuits declining to extend qualified

immunity have generally recognized a good faith

defense. Vector Research, 76 F.3d at 699; Jordan,

20 F.3d at 1776-77; Wyatt v. Cole, 994 F.2d 1113,

1120 (Sth Cir. 1993). This defense has been rec-

ognized under “principles of equality and fairness”

which suggest “that private defendants ‘should

have some protection from liability.’” Wyatt, 994

F.2d at 1118 (citation omitted). The Fifth Circuit

on remand in Wyatt held “that private defendants

sued on the basis of Lugar may be held liable for

damages under §1983 only if they failed to act in

good faith in invoking the unconstitutional state

procedures, that is, if they either knew or should

have known that the statute upon which they re-

lied was unconstitutional.” Id.

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ne eee ven NEN) nn MammeO ser ne rae

The test is a subjective one. Jordan, 20 F.3d

at 1276 (Malice in this context means a creditor’s

subjective appreciation that the act deprives the

debtor of his constitutional right to due process).

“A good faith defense ... is likely to be based in

large part on the facts of the case, with the suit

only being dismissed after trial, or on summary

judgment if the defendant can show that there is

no material dispute as to the facts.” Duncan v.

Peck, 884 F.2d 1261, 1266 (6th Cir. 1988).

This good faith defense has most frequently

been applied when the statute under which the

private individual acted was somehow constitu-

tionally infirm. For instance, the Fifth Circuit said

“private defendants should not be held liable un-

der §1983 absent a showing or malice and evi-

dence that they either knew or should have known

of the statute’s constitutional infirmity.” Wyatt v.

Cole, 994 F.2d 1113, 1120 (5th Cir. 1993). See

also Jordan, 20 F.3d at 1276 (“ (Malice in this

context means a creditor’s subjective appreciation

that its act deprives the debtor of his constitu-

tional right to due process.”).

Johnson contends there is no genuine issue

of material fact regarding her good faith in con-

nection with her actions. She suggests that there

is simply no evidence she acted with malice or

with the intention of violating her father’s consti-

tutional rights. She asks the court to consider the

following: (1) she came to Arkansas only after she

was called by Tudor; (2) Tudor suggested Johnson

seek guardianship and take her parents to Cali-

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fornia; (3) she observed her parents’ situation and

her father was seen by a physician prior to the

guardianship being sought; (4) she sought an at-

torney’s advice; (5) after his own investigation, the

attorney represented that the grounds existed on

which to seek the guardianship; (6) a guardian-

ship order was obtained from the appropriate

court; and (7) the order gave her lawful authority

over her parents.

Mr. King has not alleged that the Arkansas

statutory provisions are themselves unconstitu-

tional. Rather, he merely challenges the way they

were utilized in this case. Specifically, he points to

the following deficiencies: (1) Johnson sought a

permanent guardianship on a temporary guardi-

anship time scale; (2) despite the return of service

showing service on him, Mr. King denies he was

personally served with the petition; (3) service, if it

did occur, did not occur until the Monday follow-

ing the filing of the petition despite Johnson’s

knowledge of the whereabouts of her parents; (4) a

full hearing on the merits occurred three working

days after the filing of the petition; (5) the order

was not limited to 90 days and in fact did not

state on its face how long it was to remain in ef-

fect; (6) Johnson did not prove her case by clear

and convincing evidence nor did she support her

case by oral testimony or a sworn statement from

a professional; and (7) the letter from Dr. Patter-

son is unsworn and should never have been sub-

mitted to the court. In short, Mr. King contends

that most of the rules were broken or bent by

Johnson and Wilson to clear the way for Johnson

to take Wayne to California against his will. Mr.

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King’s arguments fail simply because there has

been no showing that any of these errors are at-

tributable to her or that she ever knew of the pro-

cedural irregularities.

We see no evidence that indicates Johnson

was aware or knew that her actions in applying for

guardianship of her parents under the Arkansas

statutory procedure might violate their rights. Al-

though plaintiff alleges that Johnson utilized the

otherwise constitutional procedures, in an uncon-

stitutional way, he has presented no evidence,

other than his assertions, from which an inference

can be drawn that Johnson acted in bad faith or

with malice. See e.g., Duncan v. Peck, 844 F.2d

1261, 1268 (6th Cir. 1988) (summary judgment

appropriate in §1983 action where no material

question of fact as to defendant’s good faith reli-

ance on attorney’s advice); Nemo v. City of Port-

land, 910 F.Supp. 491, 499 (D. Or. 1995)

(summary judgment appropriate in §1983 action

when park employee relied in good faith on his

employer’s policy, which was not patently uncon-

Sstitutional, and plaintiffs presented no evidence

from which it could be inferred employee was act-

ing in bad faith).

Mr. King further argues that to be entitled to

a good faith defense Johnson must show she at

least met the minimum of her fiduciary duties

which requires compliance with the guardianship

Statutes. Further, he argues good faith in this

context ought to take into account the Arkansas

policy that the least restrictive alternatives ought

to be sought in a guardianship proceeding. He

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contends these considerations are particularly im-

portant given the extent of the power given a

guardian. As evidence of malice, he points to the

procedural irregularities, the fact that Johnson did

not contact her other relatives, the fact that her

husband told Wayne’s sister not to come, and the

friction between Johnson and Mr. King.

It appears Johnson merely followed the ad-

vice of her attorney and Tudor and sought guardi-

anship of her parents. Plaintiff has pointed to no

evidence from which a reasonable trier of fact

could drawn inference of malice. Under the cir-

cumstances presented herein, we conclude John-

son is, as a matter of law, entitled to a good faith

defense.

3. Outrage.

To prove that a party has intentionally in-

flicted emotional distress the following elements

must be satisfied: (1) the actor intended to inflict

emotional distress or knew or should have known

that emotional distress was the likely result of his

conduct, (2) the conduct was extreme and outra-

geous, was beyond all possible bounds of decency,

and was utterly intolerable in a civilized commu-

nity, (3) the actions of the defendant were the

cause of the plaintiffs distress, and (4) the emo-

tional distress sustained by the plaintiff was so

severe that no reasonable person could be ex-

pected to endure it. The Limited Stores, Inc. v. Wil-

son, 317 Ark. 80, 876 S.W.2d 248 (1994); Angle v.

Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997).

“The test for outrage is an extremely narrow test

72-A

veal NEE

that is committed by the most heinous conduct.”

Forrest City Machine Works, Inc. v. Mosbacher, 312

Ark. 578, 585, 851 S.W.2d 443 (1993).

The Arkansas Supreme Court has consis-

tently given a narrow view to the tort of outrage,

and requires clear-cut proof to establish the ele-

ments in outrage cases. Croom v. Younts, 323 Ark.

95, 913 S.W.2d 283 (1996). Clear-cut proof, how-

ever, does not mean proof greater than a prepon-

derance of the evidence. Croom, 323 Ark. at 102

(citations omitted). The court has cautioned that

merely describing the conduct as outrageous does

not make it so. Renfro v. Adkins, 323 Ark. 288,

914 S.W.2d 306 (1996).

We must first decide whether appellant’s ac-

cusations, taken as true, state a claim for the tort

of outrage. If a party cannot state a claim for out-

rage, then any unresolved factual issues are sim-

ply irrelevant. Holloman v. Keadle, 32 Ark. 168,

931 S.W.2d 413 (1996).

Johnson argues the conduct at issue clearly

falls short of constituting extreme, outrageous

conduct under Arkansas law. She contends she

merely acted as a concerned daughter and heeded

the advice of Tudor, Wilson and Dr. Patterson, and

sought guardianship of her parents so that she

could take them to live with her in California.

Once there, she says she voluntarily withdrew her

petition for conservatorship of her father in Cali-

fornia and also voluntarily terminated the guardi-

anship over her father in Arkansas. Thus, she

concludes no reasonable juror would consider her

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acts atrocious and utterly intolerable in a civilized

society.

We agree. While the entire situation is un-

fortunate, we believe plaintiff has failed to show

the existence of any genuine issue of material fact

on this claim. As we noted above, the Arkansas

courts have consistently taken a strict view of

what constitutes conduct egregious enough to

constitute the tort of outrage. Clearly, the conduct

at issue falls short of that required under Arkan-

sas law.

4. False Imprisonment.

False imprisonment has been defined as the

unlawful violation of the personal liberty of an-

other, consisting of detention without sufficient

legal authority. Headrick v. Wal-Mart Stores, Inc.,

293 Ark. 433, 738 S.W.2d 418 (1987). Any express

or implied threat of force whereby one is deprived

of his liberty or compelled to go where one does

not wish to go is an imprisonment. Pettyohn v.

Smith et al., 255 Ark. 780, 502 S.W.2d 618 (1973).

It is well established that the restraint constituting

a false imprisonment may be threats of force

which intimidate the plaintiff into compliance with

orders. Restatement (Second) of Torts §40 (1965).

Although the plaintiff is not required to incur the

risk of personal violence by resisting until force is

actually used, it is essential that the restraint be

against the plaintiff's will. Submission to the mere

: verbal direction of another, unaccompanied by

force or threats of any character, does not consti-

tute false imprisonment. If one agrees of one’s own

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— x —————————————

free choice to surrender freedom of motion, as by

accompanying another voluntarily to clear oneself

of suspicion, rather than yielding to the constraint

of a threat, then there is no imprisonment.

Johnson argues she had the legal authority,

as evidenced by the order of guardianship, to take

her father and mother to California to live in her

home. Thus, she contends no cause of action for

false imprisonment may lie against her.

Mr. King argues Johnson did not have the

lawful authority to take him anywhere because the

procedures for appointment of a guardian were

not followed property. Thus, he argues, anything

she did was illegal because she was not properly

appointed guardian.

In this case, Johnson sought and obtained a

guardianship order. Despite Mr. King’s assertions

to the contrary there has been no evidence pre-

sented which shows Johnson had any idea the

procedures used to obtain the order were appar-

ently irregular. Additionally, she acted only after

being advised that her parents’ situation was des-

perate and then acted upon advice of counsel and

in an apparent good faith belief that she was act-

ing in the best interests of her parents. We hold

that no claim of false imprisonment will lie under

the circumstances.

5. Collateral Estoppel.

Having granted summary judgment on each

claim, we need not address her argument that

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plaintiff is collaterally estopped by the guardian-

ship order from now bringing the §1983 action, or

the false imprisonment, or outrage claims.

Conclusion.

For the reasons stated, a separate order will

be entered granting Johnson’s summary judgment

motion.

Dated this 1st day of May, 1998.

H. FRANKLIN WATERS

United States District Judge

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U. S. Const. Amend. IV

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be vio-

lated, and no Warrant shall issue, but upon prob-

able cause, supported by Oath or Affirmation, and

particularly describing the place to be searched,

and the persons and things to be seized.

U. S. Const. Amend. XIV, Section 1

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or en-

force any law which shall abridge the privileges or

immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

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Ark. Code Ann. §28-65-212

28-65-212. Evaluations.

(a) A professional evaluation shall be per-

formed prior to the court hearing on any petition

for guardianship except when appointment is be-

ing made because of minority, disappearance, de-

tention, or confinement by a foreign power, or

pursuant to §28-65-218. The evaluation shall be

performed by a professional or professionals with

expertise appropriate for the respondent’s alleged

incapacity.

(b) The evaluation shall include the follow-

ing:

(1) The respondent’s medical and physical

condition;

(2) His adaptive behavior;

(3) His intellectual functioning;

(4) Recommendation as to the specific areas

for which assistance is needed and the least re-

strictive alternatives available.

(c) (1) If no professional evaluations per-

formed within the last six (6) months are available,

the court will order an independent evaluation.

(2) if the petition is granted, the cost of the

independent evaluation will be borne by the estate

of the incapacitated person. In the event the peti-

tion is denied, the costs will be borne by the peti-

tioner.

(d) (1) The court may request the assistance

of a Department of Human Services resource per-

son to gather records, investigate the respondent’s

condition, and help arrange for appropriate pro-

fessional evaluations.

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(2) The Department of Human Services shall

issue regulations to implement this provision.

(e) Any existing evaluations made by the

Department of Human Services of which the court

has notice must be considered by the court.

Ark. Code Ann. §28-65-213

28-65-213. Hearing—Effect of Determinations.

(a) At the hearing, the respondent shall have

the right to:

(1) Be represented by counsel];

(2) Present evidence on his own behalf;

(3) Cross-examine adverse witnesses;

(4) Remain silent;

(S) Be present;

(6) Require the attendance by subpoena of

one (1) or more of the professionals who prepared

the evaluation.

(b) The burden of proof by clear and con-

vincing evidence is upon the petitioner, and a de-

termination of incapacity shall be made before

consideration of a proper disposition.

(c)(1) If the respondent is found to be inca-

pacitated, the court shall determine the extent of

the incapacity and the feasibility of less restrictive

alternatives to guardianship to meet the needs of

the respondent.

(2) If it is found that alternatives to guardi-

anship are feasible and adequate to meet the

needs of the respondent, the court may dismiss

the action.

(3) If it is found that the respondent is sub-

stantially without capacity to care for himself or

79-A

his estate, a guardian for the person, estate or

both shall be appointed.

IN THE UNITED STATES DISTRICT COURT,

WESTERN DISTRICT OF ARKANSAS, FORT

SMITH DIVISION. Wayne King, Plaintiff v. Marilyn

Johnson and Charles Beavers, Defendants. Case

No. 96-2219.

Affidavit of Wayne King

I, Wayne King, being first duly sworn, state

upon oath:

1. My name is Wayne King. I reside in John-

son County, Arkansas. My date of birth is Febru-

ary 17, 1918. My mother is 96 years old.

2. On November 29, 1995 my daughter, the

defendant Marilyn Johnson, and others were pres-

ent at my home. They were attempting to take me

and my wife to California where my daughter lives.

I had no knowledge before November 29, 1995 of

the plan to take me and my wife to California.

3. My daughter called the sheriff's office and

Deputy Charles Beavers arrived at my home. I did

not ask Beavers to come into my home. At no time

while he was in my house did Beavers use my

phone.

4. Beavers tried to persuade me to go with

my daughter to California. I refused. Beavers

physically picked me up out of my bed and took

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me to the front door. On the way out of the house

he bumped me into a door facing which injured

my back. He also injured my side picking me up.

To this day my back still hurts me.

5S. I was still in my pajamas when I was

taken out of my bed. I did not ask him to pick me

up and did not want him to pick me up. I did not

give him permission to pick me up.

6. I was carried from my bed, our the front

door and placed in the back seat, behind the peti-

tion in an unmarked police car.

7. From my house I was taken to the back

door of a doctor’s office and given some kind of

shot. I was then taken to the Little Rock airport by

Beavers in his patrol car. I never saw Beavers ra-

dio anyone stating he was taking me to Little

Rock. I sat in the back seat behind the petition on

the way to Little Rock.

8. I was taken to the Little Rock airport

where I was able to put on socks and shoes. My

wife and I were kept separated by Beavers and

Johnson. I was escorted by Beavers through the

airport, into the plane and on the plane to Califor-

nia.

9. During the flight, I did not carry on a

conversation with Beavers. During the flight, how-

ever, Beavers made the statement: “I won’t do this

again.”

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10. When we arrived in California, Beavers

was asked how he would like to be paid. He asked

for cash and received $430.00 in cash.

11. I did not know of the guardianship or of

the guardianship hearing on November 21, 1995. I

was not served with any papers which stated that

a hearing was taking place on November 21, 1995.

WAYNE KING

Acknowledgment and seal of Vickie Francis, No-

tary Public.

Affidavit

Before the undersigned qualified official,

personally appears the affiant, Claud King, who

states the following under oath:

1. Wayne King (Wayne) is my brother. Bon-

nie King (Bonnie) was my sister-in-law. I am a

resident of Fort Smith, Arkansas.

2. I visited Wayne approximately once a

month in the summer and fall of 1995. I also kept

in contact with the Risinger family who lived next

door to Wayne and Bonnie. :

3. Whenever I visited Wayne and Bonnie,

the house was in fine condition. There would be

some paperwork on tables, but the house was

clean and well taken care of.

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4. Wayne did take care of Bonnie and did

take care of her incontinence. I know of two occa-

sions where Wayne signed a check for me to go

and buy the appropriate undergarments for Bon-

nie. My sister Pauline Buffington stayed with Bon-

nie and Wayne from July 1 to July 31, 1995 and

reported that Wayne was taking good care of Bon-

nie.

S. I saw Bonnie eat a variety of foods. Wayne

had arranged for meals-on-wheels to provide some

food. Wayne would often add to the food that they

provided.

6. Wayne had to take care of Bonnie day

and night. Sometimes when I did visit him he was

in bed, but he had been up during the night with

Bonnie. Wayne may have been exhausted, but |

did not see anything mentally wrong with him. He

was not incapacitated in any way.

7. Wayne had taken care of Bonnie for

nearly fifty years. In 1947 Bonnie had her para-

thyroid glands removed. From that time forward,

Wayne took care of Bonnie and made sure she had

all her medication.

8. In my opinion Marilyn and Wayne often

seemed at odds, even before she took Wayne and

Bonnie to California. On one occasion Wayne and

Bonnie were staying with Marilyn in Paicines,

California. Marilyn locked them out of the house.

9. I can remember only three visits by Mar-

ilyn to Arkansas to visit Wayne and Bonnie. She

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visited them once when Bonnie was in the hospital

in Fayetteville. Marilyn and her husband Steve

visited Wayne and Bonnie once in Clarksville. The

other time I remember Marilyn visiting was when

she obtained the guardianship and took Wayne

and Bonnie back to California.

10. Marilyn had two seizures in recent his-

tory, and she has hurt her back. Because of the

seizures, she had to quit her job and is not li-

censed to drive a Car.

11. When Marilyn went to Clarksville in No-

vember 1995, she did not tell me or anyone else in

the family that she would seek a guardianship for

Wayne and Bonnie. She did not tell anyone in the

family that she had obtained the guardianship.

12. On November 29, 1995 my mother Lela

King, with whom I live, received a call from Wayne

at approximately 10:45 a.m. Wayne told her that

the police were at his home and that he and Bon-

nie were being taken to California by Marilyn. My

mother then called me at my place of employment,

Fairview Elementary School. At the time my

mother was 94 years old.

13. I left work and arrived in Clarksville

about 12:15 p.m. I called Wayne’s house and re-

ceived no answer. I went to the Clarksville Police,

and they told me that there was no report on

Wayne and Bonnie. The clerk at the police station

called the sheriff's office and was told that they

had no information on Wayne and Bonnie. I then

went to the Johnson County Senior Center. They

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had no information about Wayne and Bonnie

leaving. The records they did have were out of

place. It took them quite some time to find their

records.

14. I went to the house which was locked.

Wayne was in the process of selling his house, and

I called his realtor, Betty Killane of Century 21.

The secretary at Century 21 told me that Wayne

had called her on the phone and was angry. Ms.

Killane came to the house with a young man and

unlocked it. We entered the house and found the

bed unmade. Ms. Killane and I made the bed.

15. We discovered that Marilyn, Wayne and

Bonnie left for California without locking the ga-

rage, the rear area of Wayne’s pick-up, or the

storage building behind Wayne’s house.

16. At no time while Marilyn was in Arkan-

sas in November 1995 did she state to me or any-

one else in my family that she intended to take

Wayne back to California.

17. | am of majority age, of sound mind, and

am fully competent to make this affidavit. I have

read the above and foregoing statements, and they

are correct to the best of my knowledge and belief.

Signed and executed this 6 day of August,

1997.

Further Affiant saith not.

CLAUD KING

Acknowledgment and seal of Vickie Francis, No-

tary Public.

Affidavit

Before the undersigned qualified official,

personally appears the affiant, Pauline L. Buff-

ington, who states the following under oath:

1. My name is Pauline L. Buffington. lama

resident of Fairfield, California. 1 am visiting my

brothers Wayne and Claud King and my mother,

Lela King.

2.1 stayed with my brother Wayne King and

his wife Bonnie in their home from July 17, 1995

to July 31, 1995. Wayne took good care of their

home and made sure that her incontinent gar-

ments were changed when needed. When Wayne

was tired, I would assist in taking care of Bonnie.

3. Bonnie ate a variety of foods and had

enough to eat while I was there. Bonnie fed her-

self. In addition when meals were prepared, Bon-

nie would do small things, like folding napkins, to

stay busy.

4. I went with Wayne and Bonnie to see the

doctor in Fort Smith. Wayne drove and was a good

driver. Bonnie wanted to go with Wayne. I also

went with Bonnie and Wayne to Bonnie’s beauty

shop. She wanted to keep her hair neat.

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5. | was contacted by Betty Tudor of the Ar-

kansas Department of Human Services, Adult

Protective Services. She told me that she had seen

Bonnie’s condition, but thought that Bonnie

should stay at home. She wanted to know when |

could come to Arkansas and help Wayne. It had

been my understanding that Marilyn could not go

to Arkansas because of her own medical condition.

Before I could pick up my ticket I was contacted

by Steve, Marilyn Johnson’s husband, and told

that I did not need to go. He also told me that they

“did not want war.”

6. I am of majority age, of sound mind, and

am fully competent to make this affidavit. I have

read the above and foregoing statements and they

are correct to the best of my knowledge and belief.

Signed and executed this 6 day of August,

1997.

Further Affiant saith not.

PAULINE L. BUFFINGTON

Acknowledgment and seal of Vickie Francis, No-

tary Public.

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IN THE UNITED STATES DISTRICT COURT,

WESTERN DISTRICT OF ARKANSAS, FORT

SMITH DIVISION. Wayne King, Plaintiff v. Marilyn

Johnson and Charles Beavers, Defendants. Case

No. 96-2219.

Affidavit of Warren Holcomb

Warren Holcomb, being first duly sworn,

states upon oath:

1. My name is Warren Holcomb, and I am a

resident of the Greenwood District of Sebastian

County, Arkansas.

2. I was a Deputy Sheriff in Sebastian

County, Arkansas from 1974 to 1990. From 1991

to 1997 I was a bailiff in Sebastian County, Ar-

kansas.

3. I completed the basic course at the Ar-

kansas Law Enforcement Training Academy in

Camden, Arkansas in 1974. I have also attended

several other in-service training exercises.

4. In my work as a Deputy Sheriff in Se-

bastian County, I had experience in enforcing

court orders and in particular guardianship or-

ders. Also, in my work as a bailiff I have attended

several guardianship hearings.

S. I am familiar with the facts of this case

involving the Plaintiff, Wayne King, and the De-

fendant, Charles Beavers.

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6. All reasonable officers or sheriff’s depu-

ties know that they are always on-duty, even when

they are in the private employ of someone else. All

reasonable sheriffs deputies know that they are

only empowered to enforce the law in their county.

7. No reasonable sheriff's deputy would have

physically removed a ward from his home and

taken him out of the county, much less out of the

state, without a specific court order which directed

the county sheriff or his deputy to do so.

8. It is not even arguably reasonable that an

objective sheriff's deputy would think that the at-

tached guardianship order, exhibit “A,” would al-

low him to remove a ward out of the state. Every

objectively reasonable sheriff's deputy would need

to have a specific order to take a ward out of state

before doing so.

WARREN HOLCOMB

Further, Affiant saith not.

Acknowledgment and seal of Vickie Francis, No-

tary Public.

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