Opinion
No. 02-4136-SAC.
September 22, 2004
MEMORANDUM AND ORDER
This civil rights case comes before the court on the defendant Robert Hecht's motion to dismiss (Dk. 190) the plaintiffs' fourth amended complaint (Dk. 189). Informed that a settlement was forthcoming, the court delayed its ruling on all pending dispositive motions. The court now understands the parties' efforts at settlement have been exhausted and that this motion remains pending. After reviewing the memoranda and researching the relevant law, the court grants the defendant Hecht's motion on the grounds stated hereafter.
PLAINTIFFS' CLAIMS
As the defendant points out in his reply brief, the first four complaints filed in this action alleged that the defendant Hecht was directly involved in a process that unconstitutionally impeded the plaintiffs' right to a timely judicial determination of probable cause following their warrantless arrests. The complaints alleged the district attorney contributed to their unlawful detention by not filing criminal complaints within the deadline imposed by the magistrate, by not coming forward with evidence on which the magistrate could make probable cause determination, and by not informing the jailer when a complaint was not filed and otherwise facilitating the detainee's release. The plaintiffs couched their claims on the law and holdings of Gerstein v. Pugh, 420 U.S. 103 (1975), and County of Riverside v. McLaughlin, 500 U.S. 44 (1991). In short, the plaintiffs alleged in the first four complaints that they were denied their Fourth Amendment right to a timely probable cause determination following a warrantless arrest.
With the filing of their fourth amended complaint, the plaintiffs have abandoned all claims of a constitutional violation from an untimely probable cause determination. In their brief opposing the defendant's motion to dismiss, the plaintiffs plainly admit making this significant change in claims:
This is not a Gerstein and County of Riverside case. The claim in the plaintiff's Fourth Amended Complaint is distinct and separate from a claim premised on a failure to provide a prompt probable cause determination as required by Gerstein and County of Riverside. All Gerstein claims were removed from this suit following Judge Crow's denial of class certification and remand to Judge O'Hara to determine if all plaintiffs were properly joined.
(Dk. 203, p. 15). The plaintiffs now are alleging in their fourth amended complaint that following their warrantless arrests and the magistrate's determination of probable cause and bail they still have a right under the Fourth Amendment not to be detained for an unreasonable length of time without a criminal complaint or charges being filed. More specifically, the plaintiffs claim that by not filing the complaint within the deadline set by the magistrate pursuant to K.S.A. 22-2901(1), which the plaintiffs consider to be magistrate's determination of a constitutionally reasonable period, and that by not informing the jailer of the same, the defendant Hecht violated their purported Fourth Amendment right to either be released or to have the charges promptly filed against them. The plaintiffs deny that their claim relies only on a violation of K.S.A. 22-2901(1): "Although the plaintiffs believe that subsection 22-2901(1) was intended to implement the protections of the Fourth Amendment, the plaintiffs rely squarely on the Fourth Amendment itself." (Dk. 203, p. 15). As will be addressed below, the issue framed by the defendant's motion is whether the plaintiffs have alleged a cognizable violation of a Fourth Amendment right.
STANDARDS GOVERNING MOTION TO DISMISS
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), or unless an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993); see Hospice of Metro Denver, Inc. v. Group Health Ins. of Oklahoma, 944 F.2d 752, 753 (10th Cir. 1991) ("Dismissal of a case pursuant to Fed.R.Civ.P. 12(b)(6) requires the legal determination that the plaintiff can prove no set of facts in support of his claim to entitle him to relief.") (citations omitted). The Tenth Circuit has observed that the federal rules "`erect a powerful presumption against rejecting pleadings for failure to state a claim.'" Maez v. Mountain States Tel. and Tel., Inc., 54 F.3d 1488, 1496 (10th Cir. 1995) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir. 1986)).
SUMMARY OF MOTION
The defendant Hecht moves to dismiss arguing the plaintiffs predicate their claim on a complaint-filing deadline but they have not alleged the legal basis for this asserted deadline let alone their constitutional right implicated when the defendant missed the deadline. The defendant focuses first on this court's order filed June 4, 2003, (Dk. 144), in which the court said it agreed with defendant Hecht's characterization "that the magistrate's order simply gave him the option of filing criminal charges by a particular date and did not direct him expressly to take other action if charges were not filed." (Dk. 144, p. 16). The defendant insists this finding necessarily precludes the plaintiffs from making any claim based on the defendant missing the purported deadline. Assuming the magistrate's order constituted a filing deadline, the defendant next contends the plaintiffs are unable to allege any constitutional violation from the mere fact that the defendant failed to observe the deadline. The violation of the magistrate's deadline or the Kansas statute authorizing a deadline does not state a claim actionable under 42 U.S.C. § 1983. The plaintiffs offer no legal authority recognizing a prosecutorial duty to notify jailers about file-charging intentions. The defendant Hecht further argues that the injunctive relief sought from him would not remedy the harm alleged by the plaintiffs. Finally, the defendant Hecht asserts the state judiciary is an indispensable party to this litigation.
As mentioned above, the plaintiffs respond clarifying that their suit no longer concerns the need or timeliness of a Gerstein probable cause determination but rather concerns their asserted Fourth Amendment right either to be released or to have the charges filed against them by the deadline imposed by the state magistrate. In proof of this constitutional right, the plaintiffs cite first K.S.A. 22-2901(1), which provides in pertinent part: "If the arrest has been made on probable cause, without a warrant, he shall be taken without unnecessary delay before the nearest available magistrate and a complaint shall be filed forthwith." The plaintiffs compare the state procedure to the federal procedure outlined at Fed.R.Crim.P. 5. The plaintiffs cite United States v. Mills, 964 F.2d 1186 (D.C. Cir.), cert. denied, 506 U.S. 977 (1992), and McGill v. Parsons, 532 F.2d 484 (5th Cir. 1976), as authority for their argument that the Fourth Amendment requires the prompt filing of charges following a probable cause determination. The plaintiffs next contend that the court in its prior order did not intend to make a statement which would preclude the plaintiffs from pursuing a claim based on the defendant's failure to abide by the magistrate's filing deadline. The plaintiffs further argue that a violation of the magistrate's imposed deadline authorized by K.S.A. 22-2901(1) violates the Fourth Amendment, because this Kansas statute "was intended to implement the protections of the Fourth Amendment" which include the requirement that charges be promptly filed if the arrestee is not released. (Dk. 203, p. 15). The plaintiffs construe the magistrate order as involving:
The magistrates decided two things on review of the District Attorney's Gerstein evidence — whether there was probable cause to detain the plaintiffs, see Gerstein v. Pugh, and how long it would be reasonable to detain them without a complaint being filed, cf. Gerstein v. Pugh. These are proper matters for judicial determination. The magistrates made no effort to compel Hecht to prosecute the plaintiffs; they merely imposed a reasonable limitation on the amount of time the plaintiffs would have to stay in jail while Hecht decided what to do.Id. at p. 16. Instead of alleging a prosecutorial duty to notify a jailer, the plaintiffs insist it is enough to allege that a magistrate's deadline for filing charges or releasing an accused was violated and that this violation constitutes a Fourth Amendment violation actionable under 42 U.S.C. § 1983. The plaintiffs argue their requested injunctive relief is not an impossible task as evidenced by the defendant's occasional practice of providing this very notice. As for the effectiveness of this relief, the plaintiffs concede it will depend on injunctive relief also being imposed against the jail director who is the other named defendant. The plaintiffs deny the state courts are indispensable parties to their claims for relief as now alleged.
DISCUSSION AND ANALYSIS
42 U.S.C. § 1983
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). The civil rights statute at 42 U.S.C. § 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quotation omitted). It is well established that a claim cannot be brought under § 1983 for an alleged violation of state law. Whitesel v. Sengenberger, 222 F.3d 861, 873 (10th Cir. 2000); Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994).Constitutional Right — Timely Filing of Charges
As discussed above, the plaintiffs allege in their fourth amended complaint that the defendant Hecht by not filing a complaint by the deadline set in the magistrate's order and by not informing the jailer that no charges would be filed by this deadline violated the plaintiffs' rights guaranteed by the Fourth and Fourteenth Amendment. The plaintiffs seek injunctive relief alleging "District Attorney Hecht will continue to deprive the plaintiffs and other persons similarly situated of their Fourth Amendment rights unless the Court order District Attorney Hecht to notify Director Gillespie not later than the deadline set by the magistrate for the filing of complaint when the District Attorney Hecht chooses not to file or is unable to file a complaint by that deadline." (Dk. 189, ¶ 216). Other than these general allegations, the plaintiffs' complaint does not meaningfully identify what Fourth Amendment rights are directly implicated and protected by the magistrate's filing deadline and were violated by the prosecutor's failure to provide notice when the deadline will not be met.
In their brief opposing the defendant Hecht's motion to dismiss, the plaintiffs discuss in the following terms what they consider their constitutional rights to be:
A prompt probable cause determination made under Gerstein and County of Riverside, however, does not allow indefinite seizure under the Fourth Amendment without charges being filed. [p. 9] [no citations].
"Of course the Fourth Amendment requires the prompt filing of charges if the subject is not released." [p. 9] [quotation from United States v. Mills, 964 F.2d 1186, 1189 n. 5 (D.C. Cir. 1992)].
"Upon a finding by the magistrate that there is probable cause for further detention, the magistrate shall determine what is a reasonable time for further detention under the particular circumstances. The arrested person may then be held in custody for that period, but in no instance may the magistrate approve further detention for a period in excess of seventy-two (72) hours. At the expiration of the reasonable time, not to exceed seventy-two (72) hours, the person will be charged or released from cusody." [p. 12] [quotation from McGill v. Parsons, 532 F.2d 484, 486 n. 2 (5th Cir. 1976) (quoting district court's order on summary judgment)].
Although the plaintiffs believe that subsection 22-2901(1) was intended to implement the protections of the Fourth Amendment, the plaintiffs rely squarely on the Fourth Amendment itself. . . . That is precisely what the magistrates ordered in each of the plaintiffs' cases — prompt filing of charges if the subject is not released. [p. 15].
This is not a Gerstein and County of Riverside case. The claim in the plaintiffs' Fourth Amendment Complaint is distinct and separate from a claim premised on a failure to provide a prompt probable cause determination as required by Gerstein and County of Riverside. [p. 15]. The magistrates made no effort to compel Hecht to prosecute the plaintiffs; they merely imposed a reasonable limitation on the amount of time the plaintiffs would have to stay in jail while Hecht decided what to do. [p. 16].
District Attorney Hecht points out that Gerstein and County of Riverside do not create a "duty of notification." Plaintiffs agree. These cases only address the duty to provide a prompt probable cause determination. They do not address how long a person may be imprisoned after a judicial probable cause determination. Again, the allegations in the Fourth Amended complaint are not that prompt probable cause determinations were not made, but that a magistrate's deadline for filing charges or releasing an accused was violated.
The plaintiffs need not point to case law establishing a "duty of notification." Instead, the plaintiffs need only establish that lengthy imprisonment without charges being filed, and in violation of court order, constitutes a Fourth Amendment violation. The plaintiffs also allege causation, that District Attorney Hecht caused plaintiffs to remain imprisoned by failing to notify Director Gillespie that charges would not be filed by the deadline. The plaintiffs state a claim for a Fourth violation under 42 U.S.C. § 1983. [pp. 16-17].
(Dk. 203). These quotations from the plaintiffs' memorandum reveal their efforts to recast allegations of a mere violation of a magistrate's deadline into a claimed violation of an established constitutional right. Of course, the court must decide the motion to dismiss based on what is alleged in the fourth amended complaint. The plaintiffs also concede that a § 1983 claim must be based on the violation of a constitutional right and not just the violation of a magistrate-ordered deadline. Because their fourth amended complaint only alleges a violation of this deadline, the plaintiffs must establish how their constitutional rights were violated as a matter of law when the defendant missed the complaint-filing deadline and did not send notification to Director Gillespie.
The plaintiffs look first at K.S.A. 22-2901(1) which requires a complaint to "be filed forthwith" and opine that this statute "was intended to implement the protections of the Fourth Amendment." (Dk. 203, p. 16). The plaintiffs cite no authority for or against this proposition, but the defendant refers the court to State v. Cruchy, 270 Kan. 763, 768-69, 19 P.2d 152 (2001), in which the Kansas Supreme Court found "no merit to . . . [the] suggestion" that K.S.A. "22-2901 codifies the Fourth Amendment case of County of Riverside" and further declined the opportunity of finding that 22-2901 created a procedural due process right "for a person arrested without a warrant in being taken before a magistrate without unnecessary delay." The plaintiffs cite United States v. Mills, 964 F.2d 1186 (D.C. Cir. 1992), and McGill v. Parson, 532 F.2d 484 (5th Cir. 1976), in an effort to imbue K.S.A. 22-2901's use of "forthwith" with Fourth Amendment significance. As the court will discuss below, neither citation carries persuasive weight. Consequently, even assuming that the deadline appearing in magistrate's orders was a judicial interpretation and application of K.S.A. 22-2901, the court is unable to conclude from the arguments and law presented on this Kansas statute that a plaintiff's constitutional right was necessarily violated when the defendant Hecht missed the magistrate-ordered deadline.
The Kansas Supreme Court explained that the district court's conclusion that the mandatory 12-hour detention policy for DUI arrests violated due process was contrary to the following rule from its decision in State v. Wakefield, 267 Kan. 116, 125, 977 P.2d 941 (1999): "`Even an unwarranted delay in taking the accused before a magistrate after he or she has been arrested is not in itself a denial of due process unless that delay has in some way prejudiced the right of the accused to a fair trial.'" 270 Kan. at 771.
The terms of K.S.A. 22-2901 do not require or direct a magistrate to set a deadline for the filing of charges or to order the prosecutor to provide notice. The statute simply requires that a complaint "be filed forthwith" and is silent as to what happens when this requirement is not met. There is nothing in the history of this statute or its application as to support the notion that a magistrate order setting a filing deadline for a complaint necessarily gives right to any constitutional right for an arrestee.
The defendant Hecht also cites the following language from this court's prior order in arguing the magistrate's order already has been construed as to preclude any constitutional claims based solely on the violation of the magistrate's order:
The Magistrate's Order states that charges are to file "forthwith" or by a particular date. Magistrate's Order for Plaintiff Corey Robinson (attached hereto as Exhibit A). On June 4, 2003, this Court interpreted this provision as giving Mr. Hecht "the option of filing criminal charges by a particular date," as opposed to a deadline. 6-4-2003 Order Granting, in part, Mr. Hecht's Motion to Dismiss, at p. 16 (emphasis added). It further stated that this Order does " not direct him expressly to take other action if charges were not timely filed." Id. Thus, in a prior 12(b)(6) Ruling, this Court has effectively determined the legal effect of the Magistrate's Order and, in so doing, rejected an argument that is indispensable to Plaintiff's case.
(Dk. 210, p. 5). The plaintiffs dispute the asserted controlling effect of this prior ruling, deny the reasonableness of the defendant's interpretation of that ruling, and ask the court to reconsider the ruling if found applicable to the current arguments. The court's prior ruling is nothing more than a restatement of what appears on the face of the magistrate's order for purposes of showing that the defendant did not openly disregard express terms of a judicial order as to deprive him of absolute immunity. The magistrate's order directs that charges "be filed forthwith or by" a particular date or time. This language plainly includes the option of complying with two possible periods. Nor did the court construe or intend to construe the term "forthwith" as meaning a period shorter or longer than the other specified time or date. Indeed, this ambiguity in the magistrate's order was one of the factors leading the court to conclude that defendant had not expressly disregarded it. Finally, the court did not interpret the order as carrying no implied consequences should the district attorney choose not to comply with either period, but court rightly observed that the order was silent as to what, if anything, the district attorney must do in the event both deadlines were missed. As to the effect of these prior observations upon the plaintiffs' current claims, the court will not bother with this issue, as the plaintiffs are unable to prove the violation of a constitutional right from the mere allegation that the magistrate's order was violated.
The plaintiffs say their claims "rely squarely on the Fourth Amendment itself" and cite as they primary authority the case of United States v. Mills, 964 F.2d 1186 (D.C. Cir. 1992), an en banc decision that interpreted and applied the Speedy Trial Act's requirement of an information or indictment to be filed within thirty days of arrest. In concluding that this requirement was only triggered when the arrest was in connection with federal charges, the appellate court believed other provisions in the Speedy Trial Act were consistent with this conclusion and in a footnote highlighted the operation of Rules 4 and 5 of the Federal Rules of Criminal Procedure and then stated:
Of course the Fourth Amendment requires the prompt filing of charges if the subject is not released. Cf. Gerstein v. Pugh, 420 U.S. 103 (1975) (Fourth Amendment requires prompt judicial determination of probable cause as "prerequisite to extended restrain of liberty following arrest" without warrant); see also County of Riverside v. McLaughlin, 111 S. Ct. 1661, 1670 (1991) (probable cause determination within 48 hours of arrest satisfy Gerstein).964 F.2d at 1189 n. 5. The plaintiffs rely on this single quoted statement as the principal legal authority for their claim. This statement plainly is not the holding in the case and is simply dicta. This statement appears without any legal citations directly supporting it. While the necessity of a probable cause determination and its timing are matters squarely within Fourth Amendment parameters, the court in Mills makes no effort to explain how the timely filing of charges is a requirement of the Fourth Amendment or how Gerstein or McLaughlin speak to this requirement. Such a discussion seemingly would be difficult in light of the Fourth Amendment's express wording which may explain the absence of any direct authority for this proposition and the apparent absence of any subsequent decisions citing Mills for this statement. Finally and most importantly, the Mills decision does not stand for the proposition being asserted by the plaintiffs here that the Fourth Amendment is violated when a magistrate-ordered deadline for filing charges is missed. What the plaintiffs have cited as authoritative case law simply does not support a Fourth Amendment violation based on the facts alleged in their complaint.
The plaintiffs also cite the case of McGill v. Parsons, 532 F.2d 484 (5th Cir. 1976), but quote only the district court's summary judgment order that the district court later vacated as moot. The plaintiffs single out that portion of the summary judgment order which held that following the Gerstein hearing a detainee could be held for a reasonable time not to exceed 72 hours. The court of appeals reversed the district court on its mootness conclusion without ever addressing the merits of the summary judgment order or even commenting on the particular provision now cited by the plaintiffs. In summarizing the claims, the Fifth Circuit mentioned only the appropriate length of detention before the probable cause hearing. This decision carries no precedential or persuasive weight.
The plaintiffs concede in their brief that Gerstein and McLaughlin "address only the time-frame for making a probable cause determination" and "do not address the issue of how long a person may be imprisoned after the probable cause determination and before charges are filed." (Dk. 203, p. 16).
The plaintiffs recognize that to avoid dismissal they must establish as a matter of law that their Fourth Amendment rights were violated when they were imprisoned beyond the deadline set in the magistrate's order for the filing of charges. (Dk. 203, p. 16). None of the arguments advanced or authorities cited by the plaintiffs persuasively establish the legal basis for such a claim on the facts as alleged in the plaintiffs' fourth amended complaint (Dk. 189). The issue of how long a person can be detained following a probable cause determination or following an arrest upon a warrant until the initial appearance is typically a due process consideration. "`[T]he Fourth Amendment governs the period of confinement between arrest without a warrant and the preliminary hearing at which a determination of probable cause is made, while due process regulates the period of confinement after the initial determination of probable cause.'" Gaylor v. Does, 105 F.3d 572, 574-75 (10th Cir. 1997) (emphasis in original) (quoting Villanova v. Abrams, 972 F.2d 792, 797 (7th Cir. 1992)). The Supreme Court similarly has said:
The plaintiffs note in their brief that the initial hearing before the magistrate here entailed not only a determination of probable cause but a decision fixing the amount of bail. The plaintiffs presumably were unable to post bail and, thus, were detained as alleged in the fourth amended complaint. In this context, the plaintiffs' claim more precisely would be how long can a person be detained following a probable cause determination and a bail decision by a judicial officer until formal criminal charges are filed.
Obviously, one in respondent's position could not be detained indefinitely in the face of repeated protests of innocence even though the warrant under which he was arrested and detained met the standards of the Fourth Amendment. For the Constitution likewise guarantees an accused the right to a speedy trial, and invocation of the speedy trial right need not await indictment or other formal charge; arrest pursuant to probable cause is itself sufficient. United States v. Marion, 404 U.S. 307 (1971).
We may even assume, arguendo, that, depending on what procedures the State affords defendants following arrest and prior to actual trial, mere detention pursuant to a valid warrant but in the face of repeated protests of innocence will after the lapse of a certain amount time deprive the accused of "liberty . . . without due process of law." But we are quite certain that a detention of three days over a New Year's weekend does not and could not amount to such a deprivation.Baker v. McCollan, 443 U.S. 137, 144-45 (1979) (footnote omitted); see, e.g., Armstrong v. Squadrito, 152 F.3d 564, 569-572 (7th Cir. 1998). The fourth amended complaint does not allege that the plaintiffs were denied of any liberty interest without due process of law. Nor have the plaintiffs alleged facts to support such a claim.
In short, the plaintiffs have not alleged a prima facie violation of any Fourth Amendment right by claiming that the defendant failed to file charges by the deadline set in the magistrate's order and failed to notify the director Gillespie that charges would not be filed by the deadline.
IT IS THEREFORE ORDERED that the defendant Robert Hecht's motion to dismiss (Dk. 190) the plaintiffs' fourth amended complaint (Dk. 189) is granted.