UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-41229
____________________
GLEN ROBERTSON and CHERYL ROBERTSON,
Individually and as Heirs at Law of
Jonathan P. Robertson,
Plaintiffs-Appellants,
versus
PLANO CITY OF TEXAS, ET AL.,
Defendants-Appellees.
____________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_____________________________________________________
November 15, 1995
Before REYNALDO G. GARZA, BARKSDALE, and EMILIO M. GARZA, Circuit
Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
For this challenge to a Rule 12(b)(6) dismissal, primarily at
issue is whether police officers violated a juvenile's rights under
the Fourth and Fourteenth Amendments when, while investigating a
burglary, they admonished him regarding potential imprisonment,
even though they knew that the described punishment was applicable
only to adults. We AFFIRM.
I.
Pursuant to 42 U.S.C. § 1983, the Robertsons sued the City
(Plano, Texas), its police chief, and several police officers,
asserting, in addition to claims under state law, claims under the
Fourth, Ninth, and Fourteenth Amendments to the United States
Constitution. They alleged that, one late evening in August 1993,
two officers came to the Robertsons' home to talk with their 16-
year-old son, Jonathan, about a burglarized car; that the officers
suspected Jonathan and another juvenile had committed the burglary;
that they notified Jonathan that he was a suspect and took his
driver's license; that, without first giving Miranda warnings, they
obtained his confession and admonished him that the offense was a
third degree felony that carried the possibility of a $10,000 fine
and imprisonment in a state penitentiary; that, although the
officers knew that Jonathan was a minor, they quoted the law as it
applied to adults; that the officers realized that the admonition
was not accurate, but did not so inform Jonathan; and that Jonathan
committed suicide at the Robertsons' home the next morning.
Contending, inter alia, that the Robertsons failed to state a
claim upon which relief could be granted, the defendants moved to
dismiss pursuant to FED. R. CIV. PROC. 12(b)(6). The district court
granted the motion in part; all federal claims were dismissed with
prejudice, and the state law claims were dismissed with and without
prejudice.1
II.
In addition to asserting constitutional claims, the Robertsons
contend that they should have been allowed to amend their
1
The district court dismissed with prejudice the state law
negligence claims against the City, based on its sovereign immunity
under Texas law; the Robertsons have not challenged this on appeal.
The negligence claims against the officers and police chief were
dismissed without prejudice. And, the Robertsons have abandoned
their Ninth Amendment claim.
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complaint. Because so much of their brief is devoted to presenting
their claims based on allegations they contend they will make if
allowed to replead, we address the procedural issue first.
A.
Although leave to amend should be granted liberally, we review
its denial only for abuse of discretion. E.g., Cinel v. Connick,
15 F.3d 1338, 1346 (5th Cir.), cert. denied, ___ U.S. ___, 115 S.
Ct. 189 (1994). But, as an added wrinkle, this issue is premised
on a factual dispute, which is raised for the first time on appeal,
thus, bringing plain error review into play.
In their response to the motion to dismiss, the Robertsons
stated that, "should the court find that Plaintiffs' pleadings are
unclear or deficient ... then Plaintiffs request that they be
allowed to replead to correct any deficiencies". Notwithstanding
this request, the district court stated, in its dismissal order,
that the Robertsons did not wish to replead:
Although plaintiffs requested the opportunity
to replead if the complaint was defective, at
the management conference counsel for
plaintiffs represented to the Court that
plaintiffs were willing to stand on their
response and the live pleadings in the
determination of the motion to dismiss and did
not want to replead.
The Robertsons insist that they did not drop their request to
replead; in support, they offer an affidavit, which is not part of
the record, from one of their attorneys present at the management
conference. But, obviously, if the district court characterized
incorrectly, or misunderstood, the Robertsons' position on amending
the complaint, they should have requested reconsideration, pursuant
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to FED. R. CIV. P. 59(e) or 60(b). This allows the district court
to correct any error that it may have committed. E.g., Edwards v.
Sears, Roebuck & Co., 512 F.2d 276, 286 (5th Cir. 1975). For
equally obvious reasons, this is especially critical for claimed
errors of fact, as in this instance.
The district court found that the Robertsons did not wish to
replead, and the Robertsons failed to object to this finding in
district court. Because their objection is raised for the first
time on appeal, we review only for plain error. See United States
v. Calverly, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (if
appellant shows clear or obvious error that affects his substantial
rights, appellate court has discretion to correct errors that
seriously affect fairness, integrity, or public reputation of
judicial proceedings), cert. denied __ U.S. __, 115 S. Ct. 1266
(1995); see also, Highlands Ins. v. National Union Fire Ins., 27
F.3d 1027 (applying same standard in civil case), cert. denied __
U.S. __, 115 S. Ct. 903 (1995).
Moreover, because the nature of the claimed error is a
question of fact, the possibility that such a finding could rise to
the level of obvious error required to meet part of the standard
for plain error is remote. United States v. Vital, __ F.3d __,
1995 WL 613322, *3 (5th Cir. 1995) (quoting United States v. Lopez,
923 F.2d 47, 50 (5th Cir.), cert. denied, 500 U.S. 94 (1991) for
proposition that "questions of fact capable of resolution by the
district court upon proper objection at sentencing can never
constitute plain error"). In sum, we have no basis from which to
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conclude that the finding that the Robertsons did not wish to
replead could have been erroneous; afortiori, it cannot be plain
error.
B.
We review a 12(b)(6) dismissal de novo. E.g., Jackson v. City
of Beaumont Police Dep't, 958 F.2d 616, 618 (5th Cir. 1992). It
will be affirmed only if "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief". McCormack v. National Collegiate
Athletic Ass'n, 845 F.2d 1338, 1343 (5th Cir. 1988) (internal
quotation and citation omitted). We take as true the allegations
in the complaint; however, we cannot assume facts not alleged.
Id., at 1343.
To establish a cause of action under § 1983, a plaintiff must
plead the deprivation of a right, secured by the Constitution or
laws of the United States, by a person acting under color of state
law. E.g., Evans v. City of Marlin, Tex., 986 F.2d 104, 107 (5th
Cir. 1993). The Robertsons claim that their son's rights were
violated under the Fourth and Fourteenth Amendments, when the
officers admonished him regarding possible imprisonment. For
purposes of analyzing the claims, it bears noting that the
complaint does not allege that the officers threatened the
Robertsons' son, only that he was admonished.2
2
Because, as discussed infra, the Robertsons fail to state a
violation of the Constitution, we need not address the issues of
qualified immunity, or whether the officers' conduct was
"deliberately indifferent" or merely "negligent", or whether the
City or its police chief can be held liable.
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1.
"[T]he right of the people to be secure in their persons ...
against unreasonable searches and seizures, shall not be
violated...." U.S. CONST. amend. IV. "A search occurs when the
government infringes `an expectation of privacy that society is
prepared to consider reasonable.' Seizure of a person occurs when
the government meaningfully interferes with his liberty...."
National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175
(5th Cir. 1987) (quoting United States v. Jacobsen, 466 U.S. 109,
113 (1984)), aff'd in part, vacated in part, 489 U.S. 656 (1989).
The Robertsons have failed to identify a right protected by
the Fourth Amendment that was violated by the admonition; it was
not a seizure. The Robertsons' son was not placed under arrest,
nor is there any allegation that the officers restrained his
freedom. United States v. Mendenhall, 446 U.S. 544, 553 (1980)
("a person is `seized' only when, by means of physical force or a
show of authority, his freedom of movement is restrained").
The Robertsons rely on White v. Walker, 950 F.2d 972 (5th Cir.
1991), where we reversed a directed verdict premised on qualified
immunity. White pertained to the suicide of a 14-year-old boy
after a traffic stop and his detention at the police station; thus,
it involved a seizure.
In stark contrast, no seizure occurred in the case at hand.
Some indicia of a seizure adequate to trigger Fourth Amendment
protections are identified in Mendenhall, 446 U.S. at 554-55. The
son's encounter with the officers had none of these. For example,
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the Robertsons do not allege that the officers displayed weapons,
or touched their son, or used language that led him to believe he
would be compelled to continue the encounter had he attempted to
leave. Id. Contrary to the Robertsons' assumption, "not all
personal intercourse between policemen and citizens involves
`seizures' of persons". Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).
2.
No State shall "deprive any person of life, liberty, or
property, without due process of law". U.S. CONST. amend. XIV, § 1.
To state a § 1983 claim for violation of the Due Process Clause of
the Fourteenth Amendment, a plaintiff must show that he has
"asserted a recognized `liberty or property' interest within the
purview of the Fourteenth Amendment, and that [he was]
intentionally or recklessly deprived of that interest, even
temporarily, under color of state law". Griffith v. Johnston, 899
F.2d 1427, 1435 (5th Cir. 1990) (citations omitted), cert. denied,
498 U.S. 1040 (1991). At issue is the substantive component of the
Due Process Clause; it "protects individual liberty against
`certain government[al] actions regardless of the fairness of the
procedures used to implement them'". Collins v. City of Harker
Heights, Tex., 503 U.S. 115, 125 (1992). See Rochin v. California,
342 U.S. 165, 172 (1952) (state conduct may violate substantive due
process if it "shocks the conscience").
It goes without saying that, in determining whether the
constitutional line has been crossed, the claimed wrong must be
viewed in the context in which it occurred. McFadden v. Lucas, 713
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F.2d 143, 146 (5th Cir.), cert. denied, 464 U.S. 998 (1983). We
find neither Fourteenth Amendment case law, nor case law construing
other constitutional requirements, that would support holding that
the Due Process Clause afforded the Robertsons' son (16 years old)
a right to be free from an erroneous admonishment regarding
punishment and prison. Nor do we find such conduct to be of the
type that is violative of substantive due process.
For example, in the Eighth Amendment context, our circuit has
recognized as a general rule that "mere threatening language and
gestures of a custodial office[r] do not, even if true, amount to
constitutional violations". McFadden, 713 F.2d at 146 (quoting
Coyle v. Hughs, 436 F. Supp. 591, 593 (W.D. Okla. 1977)); accord
Johnson v. Glick, 481 F.2d 1028, 1033 n.7 (2d Cir.) (the use of
words, no matter how violent, does not comprise a § 1983
violation), cert. denied, 414 U.S. 1033 (1973); Collins v. Cundy,
603 F.2d 825, 827 (10th Cir. 1979) (verbal harassment consisting of
sheriff's threat to "hang" prisoner does not state constitutional
deprivation actionable under § 1983).
Other circuits have determined that language more egregious
than the admonishment in issue failed to comprise a constitutional
violation. In Emmons v. McLaughlin, 874 F.2d 351 (6th Cir. 1989),
Emmons alleged that police officers harassed and intimidated him
because of their unfounded belief that he was a drug dealer,
eventually compelling him to leave town. Specifically, Emmons
alleged that an officer approached him in a parking lot and stated,
inter alia, "I am going to get you...." Id. at 353. Rejecting
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Emmons' contention that this threat caused him to fear for his life
in violation of his constitutional rights, the Sixth Circuit
declared that these words were "not an actual infringement of a
constitutional right, and thus, ... not actionable under section
1983". Id.
Similarly, in Hopson v. Fredericksen, 961 F.2d 1374 (8th Cir.
1992), Hopson was placed in the back seat of a police car while
being questioned by two officers. Hopson alleged that one of the
officers turned to the other, uttered a racial slur, and, then,
threatened to "`knock [Hopson's] remaining teeth out of his mouth'
if he remained silent". Id. at 1378 (alteration in original). The
Eighth Circuit noted that the officer never threatened to kill
Hopson, never brandished a lethal weapon, and never physically
assaulted him. The court reasoned that "[a]lthough such conduct is
not to be condoned", it did not rise to the level of a "brutal" and
"wanton act of cruelty". Id. at 1379.3
Nor does Jonathan's status (16-year-old juvenile) create an
exception to the general rule. In Pittsley v. Warish, 927 F.2d 3
(1st Cir.), cert. denied, 502 U.S. 879 (1991), two police officers
arrived at Pittsley's home and inquired of her two children whether
their father was at home. When the four-year-old and ten-year-old
children responded negatively, the officers allegedly told them:
3
By contrast, see Burton v. Livingston, 791 F.2d 97, 99-100
(8th Cir. 1986) (actionable claim stated when prison guard pointed
pistol at prisoner, cocked trigger, and stated "nigger run so I can
blow your Goddamn brains out, I want you to run so I'll be
justified"; "prisoner retains ... the right to be free from the
terror of instant and unexpected death at the whim of his allegedly
bigoted custodians").
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"if we see your father ... on the streets again, you'll never see
him again". Id. at 5. Pittsley alleged that, when the father was
arrested later at her home, based on a valid arrest warrant, the
arresting officer treated her children "very badly" (although "he
did not put his hands on them") and used "vulgar language" in
refusing to allow the children to hug or kiss their father goodbye.
Id. Contending that, in light of the vulnerability of young
children, the arresting officer's actions and language was "so
brutal, offensive and intimidating as to `shock the conscience'",
Pittsley and her children claimed a due process violation. Id. at
7. The court disagreed: "The children's alleged fear or trauma
which resulted from these spoken words and actions in this instance
... [was] not sufficient to rise to the level of a constitutional
violation under the standard enunciated in Rochin". Id.4
4
The Robertsons rely on Wilkinson v. Ellis, 484 F. Supp. 1072
(E.D. Pa. 1980). There, the police threatened a potential witness
with loss of the custody of her infant son if she refused to sign
a statement implicating her husband in a crime. She alleged that
the police forced her "to choose between her husband and her son".
Id. at 1090. Based upon the "unique circumstances of [the] case",
the district court rejected a motion to dismiss, concluding that
the threat "constitute[d] an intrusion into Mrs. Wilkinson's right
of family integrity sufficient to state a cause of action under 42
U.S.C. § 1983". Id. at 1089. The court described the incident as
"a colossal intimidation delivered in the midst of a high drama".
Id. at 1090.
The factual distinctions between this case and Wilkinson are
substantial. Jonathan was the focus of a criminal investigation,
unlike the mother in Wilkinson. In short, the factual differences
are too great for Wilkinson to assist us.
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III.
For the foregoing reasons, the judgment is
AFFIRMED.
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