Olson v. Carmack

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 19, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
RICHARD C. OLSON,
Plaintiff - Appellant,
v.
No. 15-3282
JAMES CARMACK; FRANK DENNY; (D.C. No. 2:15-CV-09156-JAR-GLR)
JOHNSON COUNTY, KANSAS; JAMES (D. Kansas)
REID GRAHAM; MARC LASSALLE;
ALLISON LASSALLE; LINDA
SYBRANDT; CITY OF LENEXA,
KANSAS; JON GUILFORD; KANSAS
CITY MISSOURI POLICE
DEPARTMENT; MARCUS REGAN;
JASON HINKLE,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before GORSUCH, BALDOCK, and McHUGH, Circuit Judges.
_________________________________
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Richard C. Olson, proceeding pro se and in forma pauperis, appeals from the
district court’s dismissal of his complaint as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(ii). Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
I. BACKGROUND
On July 6, 2015, Mr. Olson filed a complaint in the United States District
Court for the District of Kansas against thirteen defendants, including private
individuals, government employees, and governmental entities. The complaint
provided little more than vague claims that the defendants had violated Mr. Olson’s
state and federal constitutional rights. In response, defendants Frank Denning—the
Sheriff of Johnson County, Kansas—and the Board of County Commissioners of
Johnson County (collectively, the Johnson County Defendants), brought a motion to
dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The Johnson County Defendants argued that the complaint failed to set forth facts
that could support a claim for relief, that the defendants were entitled to qualified
immunity from suit, and that Mr. Olson’s claims were barred by the applicable
statutes of limitations. Mr. Olson filed an “Answer and Objection” to the Johnson
County Defendants’ motion to dismiss which provided a rambling narrative of the
actions Mr. Olson alleged constituted a “conspiracy and wrongful[], dishonest
investigation of [Mr. Olson] for all sorts of things,” including murder and food stamp
fraud.
Defendants Marc and Allison Lassalle, who are neighbors of Mr. Olson, also
moved to dismiss the complaint under Rule 12(b)(6). The Lassalles argued that as
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non-state actors they could not be liable for any alleged violations of Mr. Olson’s
civil or constitutional rights. Without otherwise responding to the Lassalles’ motion
to dismiss, Mr. Olson filed a motion to amend his complaint. He also requested the
district court appoint him counsel due to a number of health issues.
Before the district court could rule on Mr. Olson’s motions, additional
defendants filed motions to dismiss the original complaint for failure to state a claim,
including another neighbor, James Graham; the City of Lenexa and Detective Jason
Hinkle (the Lenexa Defendants); the Kansas City, Missouri Policy Department
(KCPD); James Carmack; and Linda Sybrandt. Mr. Olson filed various responses,
whether or not permitted by the rules, which, in turn, prompted motions to strike and
other replies from the defendants. These filings included objections to Mr. Olson’s
motion to amend his complaint, and objections to Mr. Olson’s motion to appoint
counsel.
On September 24, 2015, the magistrate judge issued a Memorandum & Order
addressing some of the motions outstanding after this flurry of activity. Of relevance
here, the magistrate judge granted Mr. Olson’s motion to amend his complaint
because it was filed within the time Mr. Olson could amend as a matter of right under
Federal Rule of Civil Procedure 15(a)(1)(b). But the magistrate judge admonished
Mr. Olson that “Fed. R. Civ. P. 15(a) provides a procedure for amending a
complaint—a procedure [Mr. Olson] must follow despite proceeding pro se.” The
magistrate judge also denied Mr. Olson’s request for the appointment of counsel,
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concluding Mr. Olson had failed to demonstrate a colorable claim for relief on the
merits.
Mr. Olson amended his complaint on September 23, 2015, by refiling the
original complaint with his motion to amend his complaint attached.1 The amended
complaint states2 the defendants have violated the “1st 4th 5th and 14th Amendments
to the U.S. Constitution as well as State Constitution,” and as support, alleges only
that
[f]rom 3-1-2013 to 8-20-2013 all defendants through a wrongful conspiracy
did a CID investigation on me knowing I was a sick man during this time I
was in intensive care at KCMO VA. After discharge all defendan[t]s
through a conspiracy ac[c]used me of a murder investigation causing me to
have a stroke and blood clots on brain causing legal blindness.
The attached motion alleges that: (1) Linda Sybrandt ordered an investigation
of Mr. Olson, and his family; (2) Mr. Carmack represented himself at various times
as a deputy with the Johnson County Sheriff’s Department, a fraud investigator for
the food stamp program, an agent with the Kansas Bureau of Investigation, an agent
with Homeland Security, and a member of the “Metro Squad”; (3) Mr. Carmack
reviewed Mr. Olson’s medical records at the Kansas City, Missouri Veterans
Administration (VA) hospital and interfered with his medical treatment; (4) Mr.
Carmack and the Metro Squad came to Mr. Olson’s home on the day Mr. Olson was
1
Mr. Olson also attached a document correcting the last name and address of
one of the individual plaintiffs.
2
Mr. Olson’s filings, including the attachments to the Amended Complaint,
are handwritten and use capitalization indiscriminately. We quote the allegations as
written, with the exception that we have not repeated the random capitalization of
words in the original.
4
released from intensive case and banged on his door “as if to break it,” left a sign on
the door from the Metro Squad, and then called Mr. Olson at least five times, stating
that Mr. Olson was under investigation for murder; (5) during the course of
interviewing Mr. Olson’s neighbors, Mr. Carmack stated that Mr. Olson was under
investigation for murder, fraud, and numerous other crimes; (6) the neighbors’
interview statements were filled with untruths and lies; (7) the Lenexa defendants
asked Mr. Olson to come to the police station because he was being investigated for
murder; (8) all of the defendants acted with malice to ruin Mr. Olson’s reputation;
and (9) Mr. Olson suffered a stroke and became legally blind as a result of these
actions by the defendants.
The defendants filed motions to dismiss the amended complaint for many of
the same reasons they challenged the original complaint. Mr. Olson filed a series of
responses with the district court reiterating the allegations and factually unsupported
claims in his amended complaint. Mr. Olson also moved for a restraining order
against Mr. and Mrs. Lassalle and Mr. Graham, enjoining them from “their
wrongful[] continued surveillance, threats both verbally and physically and total
action toward [Mr. Olson].” The Lassalles filed a response in opposition. While the
new motions were pending, Mr. Olson sought leave to further amend his complaint in
order to add a claim that all of the defendants had “conspired to deny [Mr. Olson] his
Americans with Disabilities Act Rights by causing or cause to make happen a stroke
and subsequent blindness from blood clots to the brain from all these defendants
wrongful[] actions with intent, malice and planning to do harm.”
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On October 22, 2015, the district court entered a Memorandum Decision and
Order denying Mr. Olson’s motion for a temporary restraining order against the
Lassalles and Mr. Graham. That ruling was followed on November 9, 2015, by a
Memorandum and Order from the district court dismissing Mr. Olson’s amended
complaint with prejudice, denying the motion to file a second amended complaint as
futile, and dismissing the Defendants’ outstanding motions to dismiss, strike, and
grant summary judgment as moot.
Mr. Olson filed this timely appeal, challenging the district court’s order
dismissing the amended complaint with prejudice. Because Mr. Olson has failed to
state a claim against any of the defendants upon which relief can be granted, we
affirm.
II. DISCUSSION
As in the district court, Mr. Olson represents himself on appeal. We
accordingly construe his arguments liberally and hold his pleadings to less stringent
standards than those applicable to formal pleadings drafted by lawyers. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But we will not undertake the role of
Mr. Olson’s advocate. United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009)
(stating that the obligation to liberally construe a pro se litigant’s arguments stops “at
the point at which we begin to serve as his advocate”). And our relaxed scrutiny of
Mr. Olson’s pleadings “does not relieve [him] of the burden of alleging sufficient
facts on which a recognized legal claim could be based.” Hall, 935 F.2d at 1110.
Conclusory statements unsupported by factual allegations are insufficient to state a
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claim, even for a pro se plaintiff. “This is so because a pro se plaintiff requires no
special legal training to recount the facts surrounding his alleged injury . . . .” Id.
Mr. Olson sought and was granted permission to proceed in the district court
in forma pauperis, as permitted by 28 U.S.C. § 1915. But with that privilege comes a
corresponding obligation to bring only meritorious litigation. Section 1915(e)(2)(B)
provides that “the court shall dismiss the case at any time if the court determines that
. . . the action or appeal—(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from suit.” 28 U.S.C. § 1915(e)(2)(B). Here, the district court performed its
duty under Section 1915(e)(B) and dismissed the amended complaint for failure to
state a claim.3
We review de novo the district court’s dismissal of Mr. Olson’s amended
complaint for failure to state a claim under Section 1915(e)(2)(B)(ii). See Kay v.
Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). To withstand a motion to dismiss, a
complaint must contain sufficient factual detail “to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In
turn, a claim is facially plausible when it provides sufficient factual allegations that,
taken as true, allow the court to reasonably infer the defendant is liable for the
alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And the burden falls
3
Although the district court dismissed Mr. Olson’s amended complaint for
failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), it could also have
dismissed it as frivolous, id. at § 1915(e)(2)(B)(ii), or because many of the
defendants are immune from suit, id. § 1915(e)(2)(B)(iii).
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squarely on the plaintiff to meet that threshold. Twombly, 550 U.S. at 556. This
plausibility requirement ensures the complaint informs the defendant of the basis of
the claims asserted against him and also serves to eliminate claims that, in the
absence of further factual allegations, lack a reasonable prospect of success. Robbins
v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008). The need for factual detail is
particularly important in claims brought against multiple defendants under § 1983.
See id. at 1249–50. Mr. Olson’s amended complaint fails to meet this threshold.
Here, the amended complaint alleges that thirteen defendants conspired to
violate Mr. Olson’s rights under the “1st 4th 5th and 14th Amendments to the U.S.
Constitution as well as State Constitution.” The defendants include private
individuals, individuals acting in a public capacity, and government entities. But the
amended complaint wholly lacks the factual detail necessary to make out a plausible
claim against any of the defendants.
We begin our review with the claims asserted against the private defendants,
who are each neighbors of Mr. Olson: James Reid Graham, Marc Lassalle, Allison
Lassalle, and Regina Young (collectively Neighbors). We agree with the district
court that if generously construed, Mr. Olson’s amended complaint attempts to bring
claims against them under 42 U.S.C. § 1983. But to state a claim under Section 1983,
the plaintiff must demonstrate that the defendant deprived him of a federal
constitutional or statutory right and that the defendant was acting “under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia.” 42 U.S.C. § 1983; see also Am. Mfrs. Mut. Ins. Co. v. Sullivan,
8
526 U.S. 40, 49–50 (1999) (“To state a claim for relief in an action brought under
§ 1983, respondents must establish that they were deprived of a right secured by the
Constitution or laws of the United States, and that the alleged deprivation was
committed under color of state law.”). “[M]erely private conduct, no matter how
discriminatory or wrongful,” is not actionable under § 1983. Id. at 50.
Here, the amended complaint contains no allegations that any of the Neighbors
was acting directly under color of law. And although this color-of-state-law
requirement can be established by allegations that a private actor conspired with a
state actor, see Dennis v. Sparks, 449 U.S. 24, 29 (1980), the amended complaint is
devoid of any factual allegations, as opposed to unsupported conclusions, that the
Neighbors reached an agreement with a state actor to violate Mr. Olson’s
constitutional rights. See Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994)
(“Conclusory allegations of conspiracy are insufficient to state a valid § 1983 claim.”
(quoting Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989))). Thus, even if we
accept as true the allegations that the Neighbors’ interview statements were filled
with untruths and lies, the amended complaint fails to state a federal claim against the
Neighbors for violation of Mr. Olson’s civil or constitutional rights.
Turning now to the allegations against the public employees and their
employers, we conclude they also fail to allege the deprivation of Mr. Olson’s
statutory or constitutional rights. See Am. Mfrs. Mut. Ins. Co., 526 U.S. at 50. The
amended complaint avers that certain defendants ordered or conducted a murder
investigation of Mr. Olson and a disability investigation of Mr. Olson’s son, during
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which they interviewed Mr. Olson’s neighbors and viewed his medical records. But
the amended complaint wholly fails to connect the allegations to any specific
statutory or constitutional right.
With respect to the disability investigation, the amended complaint asserts
only that the defendants investigated their belief that Mr. Olson’s son “was able to
work when he was not.” Even if this allegation is taken as true and even if we assume
Mr. Olson has standing to challenge an investigation of his son, there is nothing that
prevents police officers from investigating the possible fraudulent receipt of federal
benefits. Bowen v. Roy, 476 U.S. 693, 709 (1986) (“No one can doubt that preventing
fraud in these benefits programs is an important goal.”).
The amended complaint further alleges that certain state actors came to
Mr. Olson’s home, banged on his door, and then called him at least five times by
telephone to tell him he was the subject of a murder investigation. As part of the
investigation, Mr. Carmack allegedly represented that he was affiliated with a series
of different governmental entities, and the Lenexa Defendants asked Mr. Olson “to
come to police station because [he] was being investigated for murder.” Even
assuming all of these allegations are true and that Mr. Olson intended to claim a
violation of his Fourth Amendment right to be free from unreasonable search and
seizure or his Fifth Amendment right against self-incrimination, the conduct alleged
does not state a claim. First, a request that a suspect engage in a consensual encounter
with police, whether by voluntarily participating in an interview at the police station
or otherwise, does not violate a federal constitutional right. See Oregon v. Mathiason,
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429 U.S. 492, 495 (1977) (holding that defendant’s Fifth Amendment right against
self-incrimination was not implicated where defendant went voluntarily to the police
station at the invitation of investigating officer); Florida v. Bostick, 501 U.S. 429,
434 (1991) (holding that a voluntary encounter between a citizen and police “will not
trigger Fourth Amendment scrutiny unless it loses its consensual nature”). Second, an
unsuccessful attempt to gain access to a citizen’s home does not implicate the Fourth
Amendment. See Kentucky v. King, 563 U.S. 452, 469 (2011) (“When law
enforcement officers who are not armed with a warrant knock on a door, they do no
more than any private citizen might do.”). Third, Mr. Carmack’s use of false
credentials in conducting the investigation fails to state a federal statutory or
constitutional claim. See Lewis v. United States, 385 U.S. 206, 208–09 & n.5 (1966)
(“Artifice and stratagem may be employed to catch those engaged in criminal
enterprises.”); Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125,
1146 (10th Cir. 2014) (“The general rule is that government agents may use
deception to gain access to homes, offices, or other places wherein illegal acts are
being perpetrated.”).
Next, the amended complaint asserts that during the course of the
investigation, the defendants told Mr. Olson’s neighbors he was under investigation
for murder, fraud, and other crimes. Even if Mr. Olson could assert a state tort action
for defamation or slander, he has not identified the deprivation of a federal statutory
or constitutional right. See Paul v. Davis, 424 U.S. 693, 711–12 (1976) (holding that
claims of slander and defamation by state actors did not result in a deprivation of a
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federal statutory or constitutional right). And to the extent the amended complaint
alleges the defendants invaded Mr. Olson’s privacy by reviewing his medical records
at the VA Hospital, it does not set forth sufficient facts to support a federal statutory
or constitutional claim. See Whalen v. Roe, 429 U.S. 589, 600–02 (1977) (holding
that access of the government to private records in the absence of public disclosure
“does not automatically amount to an impermissible invasion of privacy”); Paul, 424
U.S. at 712–13 (identifying the limited privacy interests protected by the
Constitution); Kerns v. Bader, 663 F.3d 1173, 1184–85 (10th Cir. 2011) (holding that
the law was not clearly established on whether a warrant was required to review
suspect’s medical records obtained voluntarily from third party).
Even if taken as true, the allegations in the amended complaint do not state a
claim for the violation of Mr. Olson’s statutory or constitutional rights. Thus, we
AFFIRM the district court’s order dismissing the amended complaint under 28
U.S.C. § 1915(e)(2)(B)(ii).
ENTERED FOR THE COURT
Carolyn B. McHugh
Circuit Judge
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