Cole v. Sharp

• Decision Date: 11 August 1995
• Docket Number: No. 93-4094-RDR.,93-4094-RDR.
• Citation: 898 F. Supp. 799
• Parties: Clay Ray COLE and Debbie L. Cole, Plaintiffs, v. Charles E. SHARP and Gene Barrett, Defendants.
• Court: U.S. District Court — District of Kansas

898 F. Supp. 799

Clay Ray COLE and Debbie L. Cole, Plaintiffs, v. Charles E. SHARP and Gene Barrett, Defendants.

No. 93-4094-RDR.

United States District Court, D. Kansas.

August 11, 1995.

Christopher Y. Meek, Lynch & Meek, Baxter Springs, KS, Ronald P. Pope, Eugene B. Ralston & Assoc., P.A., Topeka, KS, for plaintiffs.

James S. Pigg, Fisher, Patterson, Sayler & Smith, Topeka, KS, David P. Madden, Kurt A. Level, Fisher, Patterson, Sayler & Smith, Overland Park, KS, for defendants.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This case arises from the seizure of the plaintiffs' property by the defendants. Plaintiffs assert federal due process claims under 42 U.S.C. §§ 1983 and 1985 and state law claims of negligence and fraud. The defendants are Charles E. Sharp, the former Sheriff of Cherokee County, Kansas; and Gene Barrett, the former County Attorney of Cherokee County, Kansas. This matter is presently before the court upon the defendants' motion for summary judgment.

Plaintiffs allege that following their arrest on April 19, 1991 on drug charges, their real and personal property was seized by the defendants without notice and a hearing. They further allege that the defendants maintained possession of this property until July 1, 1991 when a court ordered that the property be returned to plaintiffs. Plaintiffs contend that the actions of the defendants violated their due process rights under 42 U.S.C. § 1985 and 42 U.S.C. § 1983. They further contend that the defendants acted negligently in maintaining their property and committed fraud in inducing a plea agreement.

In the instant motion, the defendants argue that they are entitled to summary judgment on all of the claims raised by the plaintiff. They initially contend that the plaintiffs have failed to prove a claim under 42 U.S.C. § 1985. They also assert that they are entitled to immunity on plaintiffs' claims arising under 42 U.S.C. § 1983. Finally, they argue that the undisputed facts in the record demonstrate that they are entitled to judgment on plaintiffs' claims of negligence and fraud.

The facts relevant to the court's decision on the instant motion are undisputed. The court notes initially that the plaintiffs have failed to properly respond to the facts set forth in the defendants' motion. Plaintiffs did not specifically controvert the facts set forth by the defendants as required by D.Kan.Rule 206. Accordingly, the court finds that the facts set forth in the defendants' motion are deemed admitted pursuant to Rule 206(c). The court, however, notes that even if the plaintiffs had properly responded to the facts set forth by the defendants, the record demonstrates the following facts are uncontroverted.

On April 19, 1991, plaintiffs were arrested at their home in Cherokee County based upon drug charges. The arrests of plaintiffs were based upon information from an informant. Sheriff Sharp informed the County Attorney Barrett that sales of drugs had taken place at the Coles' residence. On the day of the plaintiffs' arrest, Barrett filed a petition for pretrial seizure of plaintiffs' property pursuant to K.S.A. 65-4135 and 65-4171. In an ex parte proceeding, the court ordered the property to be held by the sheriff pending trial of the forfeiture action. Following the issuance of the court order, the Sheriff's Department secured the plaintiffs' personal property and real estate. Plaintiffs returned to their real estate and took possession of their personal property on July 1, 1991, after the court ordered all the property returned pending trial in the criminal and civil forfeiture actions. Plaintiff Clay Cole ultimately entered into plea agreement on the drug charges against him. The charges against plaintiff Debbie Cole were dismissed as a result of the plea agreement. This case was filed on April 16, 1993.

Plaintiffs raise four claims in this case. First, they contend that the defendants conspired to deprive them of their civil and constitutional rights in violation of 42 U.S.C. § 1985. Second, they assert that the defendants deprived them of their property without due process in violation of 42 U.S.C. § 1983. Third, they allege that the defendants were negligent in securing and caring for their seized property. Fourth, they contend that the defendants committed fraud in inducing them to enter the plea agreement.

The defendants seek summary judgment on all of the claims asserted by the plaintiffs. The court shall initially consider whether the defendants are entitled to summary judgment on the claims arising under federal law and then consider, if necessary, the claims arising under state law.

I.

The court agrees with the defendants that although plaintiffs do not specify which provision of § 1985 serves as the basis for plaintiffs' claim, the court should construe plaintiffs' claim as proceeding pursuant to § 1985(3). This construction is necessary because neither § 1985(1) nor § 1985(2) have any application to the factual allegations contained in plaintiff's complaint. An action under § 1985(1) applies only to conspiracies to interfere with officers of the United States or those about to take office. See 42 U.S.C. § 1985(1); Biase v. Kaplan, 852 F.Supp. 268, 290 (D.N.J.1994). An action under § 1985(2) applies only to conspiracies to intimidate witnesses or otherwise obstruct justice. See 42 U.S.C. § 1985(2); Biase, 852 F.Supp. at 290. Plaintiffs' allegations do not appear to support an action under either § 1985(1) or § 1985(2), and they do not argue that they have stated a claim under either of these subsections.

"In order to prove a claim under § 1985(3), a plaintiff must show (1) a conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and immunities; (3) an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting therefrom." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). "The conspiracy not only must have as its purpose the deprivation of `equal protection of the laws,' but also must be motivated by `some racial, or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.'" United Brotherhood of Carpenters & Joiners of America v. Scott, 463 U.S. 825, 829-30, 103 S.Ct. 3352, 3356-57, 77 L.Ed.2d 1049 (1983) (quoting Griffin, 403 U.S. at 102, 91 S.Ct. at 1798). The Tenth Circuit has noted that the "class-based animus" requirement has been narrowly construed. Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 925, 127 L.Ed.2d 218 (1994). The Supreme Court has even questioned whether § 1985(3) was intended to "reach any class-based animus other than animus against Negroes and those who championed their cause." Scott, 463 U.S. at 836, 103 S.Ct. at 3360.

Recently, the Supreme Court considered a § 1985(3) claim in the context of an alleged conspiracy to prevent access to abortion clinics. Bray v. Alexandria Women's Health Clinic, ___ U.S. ___, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993). While declining to define precisely the contours of the definition of "class-based animus" for purposes of § 1985(3), the Court stated:

To begin with, we reject the apparent conclusion of the District Court (which respondents make no effort to defend) that opposition to abortion constitutes discrimination against the "class" of "women seeking abortion." Whatever may be the precise meaning of a `class' for purposes of Griffin's speculative extension of § 1985(3) beyond race, the term unquestionably connotes something more than a group of individuals who share a desire to engage in conduct that the § 1985(3) defendant disfavors. Otherwise, innumerable tort plaintiffs would be able to assert causes of action under § 1985(3) by simply defining the aggrieved class as those seeking to engage in the activity the defendant has interfered with. This definitional ploy would convert the statute into the "general federal tort law" it was the very purpose of the animus requirement to avoid.... As Justice Blackmun has cogently put it, the class "cannot be defined simply as the group of victims of the tortious action." Carpenters, supra, 463 U.S. at 850, 77 L.Ed.2d 1049, 103 S.Ct. 3352 (Blackmun, J., dissenting).

Id. at 759.

Plaintiffs have suggested that the defendants engaged in a conspiracy against them motivated by their animus against those "citizens accused of drug related offenses." Plaintiffs explain their position by arguing that "civil forfeiture laws and `zero tolerance' laws have put these citizens in a protected class who have been prosecuted and had unconstitutional efforts made to seize property from them."

The court is thoroughly convinced that anti-drug dealer bias or anti-suspected drug dealer bias does not constitute the kind of class-based invidiously discriminatory animus envisioned and prohibited by § 1985(3). To the extent that § 1985(3) reaches any class-based animus other than race, it is clear that it applies only to animus based on "characteristics —i.e., race, national origin or gender —which are traditionally part and parcel of discrete and insular minorities." Hicks v. Resolution Trust Corp., 970 F.2d 378, 382 (7th Cir.1992). "The kind of class-based animus contemplated by section 1985(3) does not include discrimination against classes defined by economic status or activity." Hoai v. Vo, 935 F.2d 308, 314 (D.C.Cir.1991), cert. denied, 503 U.S. 967, 112 S.Ct. 1578, 118 L.Ed.2d 220 (1992). The type of class-based animus suggested by the plaintiff does not fall within the limits of § 1985(3). Accordingly, the defendants are entitled to summary judgment on plaintiffs' claim under § 1985.

II.

The defendants next argue that they are immune from plaintiffs' § 1983 claim. Defendant Barrett argues that he is entitled to absolute immunity based upon prosecutorial immunity. Both defendants contend that they are entitled to qualified immunity.

A.

Prosecutors may be entitled to...