Brian Glotfelty v. Tammy Karas , 512 F. App'x 409 ( 2013 )

Case: 12-30532 Document: 00512145045 Page: 1 Date Filed: 02/15/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 15, 2013
No. 12-30532 Lyle W. Cayce
Clerk
BRIAN K. GLOTFELTY,
Plaintiff-Appellant
v.
TAMMY KARAS; RYAN RICHARD; JACK STRAIN, JR., in his official
capacity as Sheriff for the Parish of St. Tammany; CRAIG HART;
UNIDENTIFIED PARTIES,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:11-cv-02849
Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
Plaintiff Brian Glotfelty filed suit against multiple defendants seeking to
recover under both federal and state law for damages he allegedly suffered as a
result of what he claims was an erroneous arrest. After concluding that
Glotfelty’s allegations did not state a claim for relief under federal law, the
district court dismissed all federal claims, and declined to exercise supplemental
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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jurisdiction over the remaining state law claims. Glotfelty now appeals, arguing
that the district court erred in dismissing his federal claims. For the following
reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
The events surrounding Glotfelty’s arrest arose in relation to an
acrimonious divorce proceeding in Louisiana state court involving Ryan Richard
(“Richard”) and Stacey Richard. Richard’s divorce petition alleged that Glotfelty
was engaged in an adulterous relationship with Stacey Richard. Accordingly,
Richard’s counsel requested the issuance of a subpoena and notice of deposition
directing Glotfelty to appear on September 30, 2010, for the purpose of being
deposed in connection with the divorce proceeding.
After the deposition later was continued by the parties’ consent, Richard’s
counsel requested a second subpoena. Glotfelty’s complaint alleges, however,
that the sheriff was unable to serve the second subpoena before the related
deposition date, as it lacked an apartment number. A third subpoena thus
issued, indicating that Glotfelty’s deposition had been rescheduled for November
9, 2010. A special process server filed an affidavit into the record in the Richard
divorce proceeding stating that he personally served Glotfelty the subpoena on
November 2, 2010. Glotfelty denies that he ever received it, however, and there
is no return on the subpoena in the record. Glotfelty also notes that the record
reflects that the subpoena had been defaced, in that the address of Richard’s
original counsel—who by then was no longer representing Richard—was
scratched out and replaced with the address of defendants Craig Hart and
Tammy Karas, who were then serving as Richard’s counsel.
Glotfelty failed to appear at the deposition set for November 9, 2010.
Consequently, Hart and Karas filed in state court a rule for contempt,
requesting that the court issue an attachment for Glotfelty to be brought to court
on December 9, 2010, to show cause as to why he should not be held in contempt.
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After reviewing the rule for contempt, a state court judge ordered that an
attachment for Glotfelty’s arrest be issued in connection therewith. An affidavit
later filed by a process server indicates that the rule for contempt was personally
served to Glotfelty on December 2, 2010, but there is no return in the record
related to the document. Indeed, Glotfelty denies that he ever received the
actual rule for contempt or the related attachment order. Rather, he claims that
he received only an associated order indicating that a show cause hearing had
been set; the upshot thus was that while he knew of the hearing, he allegedly
was unaware that an attachment for his arrest also had issued.
Prior to the date set for the contempt hearing, Hart and Karas issued a
fourth subpoena and notice of deposition scheduled for December 2, 2010.
Glotfelty responded with a motion to quash, which precipitated a telephone
conference on December 2, 2010, with a state court judge. During that
conference, Glotfelty’s deposition was reset for December 16, 2010, but no
mention was made of the outstanding attachment order. For this reason,
Glotfelty claims to have remained ignorant of the attachment—a state that he
asserts was compounded by the fact that neither he nor his lawyer could view
the record in Richard’s divorce proceeding, because that record was alleged to
have been improperly sealed. Glotfelty further avers that neither Hart nor
Karas ever advised his attorney that an attachment for Glotfelty’s arrest had
issued.
On Saturday, December 4, 2010, five days before the scheduled contempt
hearing, Glotfelty was arrested pursuant to the attachment order by an
unidentified officer of the St. Tammany Parish Sheriff’s Office (“STPSO”).
Glotfelty claims to have been handcuffed, fingerprinted, and “held for an
unreasonable lengthy period of time.” He eventually was released without
charge after posting a $500 cash bond. A state court judge subsequently granted
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Glotfelty’s motion to vacate the attachment order, and the parties conducted, as
scheduled, the deposition set for December 16, 2010.
Based on the events surrounding the attachment order and his arrest,
Glotfelty filed the complaint in the instant action, naming as defendants
attorneys Hart and Karas; “XYZ Insurance Company,” the unidentified
professional liability insurer of Hart and Karas; “John Doe,” the unidentified
officer who arrested Glotfelty; and Sheriff Jack Strain, Jr., in his official capacity
as Sheriff for the Parish of St. Tammany. In essence, Glotfelty maintained that
the attachment for his arrest was obtained, issued, and executed in violation of
his rights under the United States Constitution and Louisiana law. Accordingly,
he sought damages under 42 U.S.C. §§ 1983 and 1988 and, in the alternative,
under Louisiana law for negligence, wrongful arrest, false imprisonment, and
intentional infliction of emotional distress. Hart and Karas subsequently filed
a motion to dismiss pursuant to Rule 12(b)(6). After considering the motion and
Glotfelty’s opposition to the same, the court dismissed with prejudice Glotfelty’s
federal claims against Hart and Karas. Additionally, it sua sponte dismissed
with prejudice Glotfelty’s federal claims against all other defendants. After
declining to invoke its discretionary authority to exercise supplemental
jurisdiction over the remaining state law claims, the district court ordered them
dismissed without prejudice. Glotfelty now appeals, arguing that the court
improperly dismissed his federal claims.
II. STANDARD OF REVIEW
We review de novo a district court’s dismissal under Rule 12(b)(6) for
failure to state a claim. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011).
“When considering a Rule 12(b)(6) motion, we liberally construe the complaint
in favor of the plaintiff and accept all well-pleaded factual allegations as true.”
Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads
facts that are merely consistent with a defendant’s liability, it stops short of the
line between possibility and plausibility of entitlement to relief.” Id. (emphasis
added) (internal quotation marks and citation omitted).
III. ANALYSIS
Glotfelty’s lawsuit rests upon his belief that the events surrounding his
arrest were unlawful and were perpetrated as part of a conspiracy between
Richard, who Glotfelty alleges was an employee or deputy of the STPSO, and the
remaining defendants. To support his theory, Glotfelty claims that in
requesting, obtaining, and seeking enforcement of the allegedly unlawful
attachment order, Hart and Karas acted at the direction of Richard. Further,
Glotfelty notes that Hart was himself appointed a mayor’s court judge in
Louisiana, and that he previously had been employed by the St. Tammany
Parish District Attorney’s Office. Glotfelty submits that Richard and Hart
therefore had a “close connection” to law enforcement and, in particular, the
STPSO. According to the complaint, this connection made it “more than
coincidental that the wrongfully issued ex-parte attachment was executed by the
STSPO through Doe shortly after its issuance.”
In dismissing Glotfelty’s federal claims against Hart and Karas, the
district court concluded that Glotfelty’s complaint did not state a plausible
allegation that the private attorneys acted under color of state law, as required
by § 1983. Similarly, the court held that Glotfelty failed to plausibly allege that
Richard used state authority to deprive Glotfelty of any constitutional right. As
for the defendant denominated “John Doe,” the court concluded that he was not
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a party to the action, as he had not voluntarily appeared, and had not been
properly served with notice of the suit. Finally, in connection with Sheriff
Strain, the court held that § 1983 does not support liability under the theory of
respondeat superior, and to the extent Glotfelty alleged that Sheriff Strain
improperly trained, supervised, disciplined, or controlled officers in the STPSO,
or that he instituted improper policies and procedures, such allegation were too
vague to survive a motion to dismiss. As noted, Glotfelty challenges these
rulings.
A. Applicable Law
“Section 1983 provides a cause of action against any person who deprives
an individual of federally guaranteed rights ‘under color’ of state law.” Filarsky
v. Delia, 132 S. Ct. 1657, 1661 (2012) (quoting 42 U.S.C. § 1983). “The
traditional definition of acting under color of state law requires that the
defendant in a § 1983 action have exercised power ‘possessed by virtue of state
law and made possible only because the wrongdoer is clothed with the authority
of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v.
Classic, 313 U.S. 299, 326 (1941)). Where a plaintiff brings a § 1983 action
against a state official, the requirement to show that the defendant acted “under
color of state law” is satisfied by demonstrating “state action” under the
Fourteenth Amendment. Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982).
Similarly, for a private actor to be held liable under § 1983, the challenged
conduct must be “fairly attributable to the State.” Bass v. Parkwood Hosp., 180
F.3d 234, 241 (5th Cir. 1999) (quoting Lugar, 457 U.S. at 937). This means “the
plaintiff must show: (1) that the deprivation was caused by the exercise of some
right or privilege created by the state or by a rule of conduct imposed by the
state, or by a person for whom the state is responsible, and (2) that the party
charged with the deprivation may fairly be said to be a state actor.” Priester v.
Lowndes Cnty., 354 F.3d 414, 423 (5th Cir.), cert. denied 543 U.S. 829 (2004). A
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plaintiff can make such a showing by demonstrating that “the private citizen
was a ‘willful participant in joint activity with the State or its agents.’” Id. at
420 (quoting Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994)).
B. Claims Against Hart and Karas
We begin our inquiry into whether the conduct of Hart and Karas may be
“fairly attributable to the State . . . . by identifying ‘the specific conduct of which
the plaintiff complains.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-51
(1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). On this score,
Glotfelty advances two arguments. First, he claims that Hart and Karas acted
under color of state law by invoking Louisiana law and relying on governmental
authority to request, obtain, and pursue enforcement of the allegedly unlawful
attachment order. Second, Glotfelty argues that Hart and Karas were willful
participants acting in concert with Richard, Doe, and the STPSO to effect an
unconstitutional arrest of Glotfelty.
We may expeditiously dispose of Glotfelty’s first claim. A private party
does not act under color of law simply by invoking state authority. See Dennis
v. Sparks, 449 U.S. 24, 28 (1980) (explaining that “merely resorting to the courts
and being on the winning side of a lawsuit does not make a party a co-
conspirator or a joint actor with” governmental officials); Sims v. Jefferson
Downs Racing Ass’n, 778 F.2d 1068, 1078-79 (5th Cir. 1985) (“The execution by
a private party of a sworn complaint, which forms the basis for an arrest, is,
without more, not sufficient to make that party’s acts state action.”). Indeed, in
the specific scenario presented here of an attorney advocating for a client, we
previously have held that even “[i]f a judge reaches a decision based on
misinformation that counsel provides, the issuance of the decision does not imply
that counsel acted under color of state law.” Richard v. Hoechst Celanese Chem.
Grp., Inc., 355 F.3d 345, 353 (5th Cir. 2003). Simply put, Hart and Karas did not
transform themselves into state actors merely by relying on Louisiana’s legal
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system to pursue their representation of Richard. As the district court noted, to
hold otherwise would lead to the absurd conclusion that every person who seeks
redress through the legal system acts under color of state law. See Lugar, 457
U.S. at 937 (explaining that without the “state action” limitation in § 1983 cases,
“private parties could face constitutional litigation whenever they seek to rely
on some state rule governing their interactions with the community surrounding
them”).
We therefore turn our attention to Glotfelty’s claim that Hart and Karas
collaborated with Richard, Doe, and the STPSO to perpetrate an unlawful arrest
of Glotfelty. As alluded to above, a private citizen may be held liable under §
1983 where the plaintiff alleges “that the citizen conspired with or acted in
concert with state actors.” Mylett v. Jeane, 879 F.2d 1272, 1275 (5th Cir. 1989).
For a claimant to successfully press such a suit, he “must allege: (1) an
agreement between the private and public defendants to commit an illegal act
and (2) a deprivation of constitutional rights.” Priester, 354 F.3d at 420.
“Allegations that are merely conclusory, without reference to specific facts, will
not suffice.” Id. More particularly, where the plaintiff claims that a private
party acted under color of law as part of a conspiracy to effect an unlawful
arrest, we consistently have held that he must demonstrate the existence of a
“preconceived plan” for the authorities to arrest the person without
investigation, “merely because he was designated for arrest by the private
party.” Sims, 778 F.2d at 1079; see also Hernandez v. Schwegmann Bros. Giant
Supermarkets, Inc., 673 F.2d 771, 772 (5th Cir. 1982) (a plaintiff must prove a
“‘customary’ or ‘pre-existing’ arrangement between” the private party and the
police to detain suspected shoplifters); Smith v. Brookshire Bros., 519 F.2d 93,
94 (5th Cir. 1975) (a plaintiff must show that the private party had a “customary
plan” by which the police would effect detentions like the one then at issue), cert.
denied, 424 U.S. 915 (1976).
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Here, to convert Hart and Karas into the equivalent of state actors based
on their role in his arrest, Glotfelty thus needed to allege facts demonstrating
that there was a “preconceived plan” for Richard, Doe, and the STPSO to arrest
Glotfelty simply because Hart and Karas designated him for arrest. On this
front, Glotfelty’s complaint stated principally as follows:
On information and belief, due to the close connection of HART
and/or RICHARD to law enforcement, specifically, the [STPSO], and
despite the fact that in excess of 46,492 warrants were waiting to
be served which included 28,733 arrest warrants for failure to
appear and contempt of court were unserved in St. Tammany
Parish, it seems more than coincidental that the wrongfully issued
ex-parte attachment was executed by the STPSO through DOE
shortly after its issuance and GLOTFELTY, who had no prior record
nor any arrests, was arrested from his home on a Saturday morning
and brought to jail despite the fact that the attachment stated that
he was to be brought to Court on December 9, 2010.
Therefore, the facts alleged were that: (1) Hart and Richard were closely
connected to law enforcement;1 (2) thousands of warrants were awaiting
execution in St. Tammany Parish when Glotfelty was arrested; (3) Glotfelty’s
attachment order was executed shortly after its issuance, even though he had
no prior record or arrests; (4) the arrest took place on a Saturday morning; and
(5) the arrest occurred earlier than it should have, and resulted in Glotfelty’s
transfer to the police station rather than the courthouse.
Even when liberally construed in Glotfelty’s favor, these facts do not allow
us reasonably to draw an inference that Hart and Karas willfully acted in
concert with Richard, Doe, and the STPSO to effect an unconstitutional arrest
of Glotfelty. First, as the district court correctly explained, there is no
allegation—as required under Sims—of a preconceived plan between the
1
As noted earlier, Glotfelty’s complaint elsewhere alleged that Richard was an
employee or deputy of the STPSO, and that Hart was a mayor’s court judge who previously
had been employed by the St. Tammany Parish District Attorney’s Office.
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defendants to have Glotfelty unlawfully arrested merely because Hart and Karas
designated him for arrest. Indeed, Glotfelty’s complaint acknowledges that a
state court judge issued the attachment order, which is inconsistent with such
a theory. More generally, Glotfelty’s factual allegations are insufficient to raise
a right to relief above the speculative level. See Twombly, 550 U.S. at 555 (“The
pleading must contain something more than a statement of facts that merely
creates a suspicion of a legally cognizable right of action.” (alterations and
citation omitted)). Glotfelty implies in his complaint that, because the
circumstances surrounding his arrest “seem[] more than coincidental,” a
conspiracy must have existed. But this claim is no more than “a conclusory
allegation of agreement,” which the Supreme Court dismissed as insufficient in
Twombly. Id. at 556-57; see also Priester, 354 F.3d at 420. Although, to be sure,
Glotfelty’s factual allegations would support a finding of an agreement between
the defendants to arrest him, as already noted, it is not enough to plead facts
that merely are consistent with the defendants’ liability. Iqbal, 556 U.S. at 678.
Simply put, Glotfelty’s complaint does not allege specific facts that would
support a finding that Hart and Karas were willful participants in joint activity
with the state or its agents.
Furthermore, we note that the authority on which Glotfelty relies, Ballard
v. Wall, 413 F.3d 510 (5th Cir. 2005), is not to the contrary. As here, we
considered in Ballard the propriety of a district court’s dismissal under Rule
12(b)(6) of a plaintiff’s § 1983 suit. 413 F.3d at 512. There, the plaintiff alleged
that his constitutional rights were violated when private attorneys conspired
with a state court judge to keep the plaintiff in jail until he paid certain debts.
Id. The district court dismissed the claims against the attorneys after
concluding that the plaintiff did not establish that they were engaged in “state
action.” Id. at 518. We reversed, holding that the allegations pleaded in the
plaintiff’s complaint sufficiently stated facts supporting the finding that the
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attorneys conspired with the judge to violate the plaintiff’s due process rights.
Id. at 519. Significantly, however, we reached this conclusion only after
explaining that the complaint alleged that the judge had not ordered the plaintiff
jailed until after she initiated a telephone conversation with one of the defendant
attorneys. Id. Here, as we already have noted, Glotfelty pleaded no similar facts
that would support finding an agreement between the defendants to violate his
constitutional rights.
Accordingly, we affirm the district court’s conclusion that Glotfelty did not
advance a plausible claim that Hart and Karas acted under color of law and, by
extension, that he did not sufficiently plead a claim against them arising under
§ 1983.2
C. Claims Against Richard
The reasoning that leads us to affirm dismissal of Glotfelty’s claims
against Hart and Karas also supports the district court’s dismissal of the claims
against Richard. More particularly, although Glotfelty alleged that Richard was
an employee or deputy of the STPSO, he did not set forth any specific facts
indicating that Richard’s position facilitated the asserted constitutional
deprivations, or that they were made possible only by virtue of Richard’s alleged
employment. See West, 487 U.S. at 49; Miss. Women’s Med. Clinic v. McMillan,
866 F.2d 788, 792 (5th Cir. 1989) (“In deciding whether there has been the state
action necessary to support a claim under § 1983, we have required that the
state official affirmatively act in support of the violation.”). To the contrary,
because a state court judge issued an attachment order against Glotfelty, law
enforcement easily could have executed the order without Richard’s
participation. Further, just as with Hart and Karas, Richard’s reliance on
Louisiana law to seek the attachment order in the first place does not make him
2
As a result, we likewise affirm dismissal of claims against “XYZ Insurance Company,”
the unidentified professional liability insurer of Hart and Karas.
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a state actor subject to liability under § 1983. See Dennis, 449 U.S. at 28.
Finally, to the extent Glotfelty implies that Richard’s liability derives from his
joint participation in a conspiracy with state actors, we conclude that no specific
facts pertaining to such an allegation exist in Glotfelty’s complaint. Priester, 354
F.3d at 420.
D. Claims Against Sheriff Strain
As to the claims against Sheriff Strain, Glotfelty alleged that his arrest
“by Doe was improper, lacked probable cause, or any legal basis, and was in
violation” of federal and state law.3 The complaint averred that Sheriff Strain
is liable under a theory of respondeat superior for any acts and omissions
committed by STPSO employees in the course and scope of their employment,
including those undertaken in connection with Glotfelty’s attachment. Glotfelty
further alleged that Sheriff Strain is liable under § 1983 “as a result of
inadequate training of deputies and as a result of policies and procedures [he]
put into place . . . which clearly allowed for the unlawful arrest and
imprisonment of [Glotfelty] when the attachment required him to be brought to
Court.” We agree with the district court that these allegations cannot survive
a motion to dismiss.
To the extent Glotfelty alleged that Sheriff Strain, in his official capacity,
is liable under § 1983 based on the theory of respondeat superior, the Supreme
Court has rejected similar claims, holding “that a local government may not be
sued under § 1983 for an injury inflicted solely by its employees or agents.”
Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978); see also
3
With respect to any claims against Doe, we note that “the mere naming of a person
through use of a fictitious name does not make that person a party absent voluntary
appearance or proper service of process.” Nagle v. Lee, 807 F.2d 435, 440 (5th Cir. 1987).
Relying on this authority, the district court concluded that Doe was not a party to this action.
Because Glotfelty has not briefed any error regarding this ruling, he has abandoned any such
claim. See Campillo v. U.S. Penitentiary Beaumont, Tex., 203 F. App’x 555, 556 (5th Cir. 2006)
(citing Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987)).
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Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in
all respects other than name, to be treated as a suit against the entity.”).
Moreover, insofar as Glotfelty asserted that Sheriff Strain inadequately trained
and supervised his deputies, or that he instituted improper policies and
procedures, we agree with the district court that Glotfety’s allegations on this
front are too vague and conclusory to survive a motion to dismiss. See
Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)
(“[C]onclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.”). Accordingly, we
affirm the dismissal of Glotfelty’s federal claims against Sheriff Strain.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment in all
respects.
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