Harley v. Oliver

• Decision Date: 29 October 1975
• Docket Number: No. FS-72-22-C.,FS-72-22-C.
• Parties: Bulah (Oliver) HARLEY, Individually, and Bobby Allen Oliver, a minor, by Bulah (Oliver) Harley, his guardian, custodial parent and next friend, Plaintiffs, v. Thomas Edward OLIVER et al., Defendants.
• Court: U.S. District Court — Western District of Arkansas

404 F. Supp. 450

Bulah (Oliver) HARLEY, Individually, and Bobby Allen Oliver, a minor, by Bulah (Oliver) Harley, his guardian, custodial parent and next friend, Plaintiffs, v. Thomas Edward OLIVER et al., Defendants.

No. FS-72-22-C.

United States District Court, W. D. Arkansas, Fort Smith Division.

October 29, 1975.

Willard Crane Smith, Jr., Ft. Smith, Ark., Kenneth S. Jacobs, Villa Park, Ill., Billy E. Moore, Columbus, Ga., George H. Hartman, New York City, Thomas B. Taylor, Jr., Conroe, Tex., for plaintiffs.

Robert T. Dawson, J. H. Evans, Ft. Smith, Ark., for defendants.

OPINION

JOHN E. MILLER, Senior District Judge.

Plaintiffs' complaint was filed February 15, 1975, in which they prayed:

"(a) For a temporary Writ of Injunction to restrain the defendants, Thomas Edward Oliver, Van B. Taylor, Judge, and Jeptha A. Evans, and each of them jointly and severally from furtherance of the acts hereinabove complained of and mandating their restoration of Bobby Allen Oliver to the custody and medical care and supervision of his mother, Bulah (Oliver) Harley;

"(b) That upon full and final hearing, said Writ of Injunction be made permanent;

"(c) For actual and compensatory damages in the sum of One Million and No/100ths ($1,000,000.00) dollars;

"(d) For punitive damages in the amount of Five Million and No/100ths ($5,000,000.00) dollars."

Hearing on the motion of plaintiffs was held February 19, 1975. Plaintiffs appeared in person and by attorneys, Willard Crane Smith, Jr., of Fort Smith, Arkansas, Kenneth S. Jacobs, Villa Park, Illinois, Billy E. Moore, Columbus, Georgia, and George H. Hartman, New York, N. Y. Defendants appeared by Robert T. Dawson, Bradley D. Jesson, and J. H. Evans, all of Fort Smith, Arkansas. On February 20, 1975, the court entered an order in which it stated:

"Upon a consideration of all the evidence that was introduced and the pleadings before this court, the court was and is of the opinion that a temporary injunction should not be granted and that the parties should appear before the Probate Court for further consideration by that court as to any provision relative to the selection of a physician to perform a proposed operation upon the ward, Bobby Allen Oliver, before proceeding to a trial upon the merits; that further hearing upon the complaint of plaintiffs should be postponed; and the hearing on the complaint be continued until the further orders of the court.

"IT IS THEREFORE ORDERED AND ADJUDGED that the motion and prayer of plaintiffs for issuance of a temporary injunction is denied, and the case is continued for hearing upon the allegations of the complaint."

Notice of appeal was filed by plaintiffs on the same day the order was entered.

On September 24, 1975, the Court of Appeals for the Eighth Circuit in a per

curiam opinion (not published) dismissed the appeal as moot. In its opinion the court said:

"On February 20, 1975, the federal district court denied the temporary injunction after a hearing, and ordered the parties to reappear before the State Probate Court for further `consideration by that court as to any provision relative to the selection of a physician to perform a proposed operation' on the child. The same day, the State Probate Court entered a consent decree directing the parties to take the child to Carl Nelson, M. D., `to undergo necessary surgery for removal of a cyst....' Thereafter the plaintiff appealed the federal district court's denial of the temporary injunction. Defendants have moved to dismiss this appeal on the ground of mootness.

"It appears from the record that the child was returned to its mother and lawful guardian on February 19, 1975, the date of the hearing in the district court. There no longer exists any medical emergency. It is well settled when a court's order cannot provide any further relief to the parties, the case is moot. There is no showing here that the conduct complained of is likely to be repeated. Furthermore, it would be highly improper for us to assume that similar circumstances would develop again without adequate consideration by the State Probate Court.

"The appeal is ordered dismissed as moot."

The mandate dismissing the appeal was filed October 17, 1975.

The defendants were of the opinion that the appeal would not be perfected and proceeded to file motions to dismiss the complaint.

Because of the filing of the notice of appeal, the court delayed the consideration of the motions of defendants to dismiss.¹

On March 21, 1975, defendant Van B. Taylor filed and duly served his motion to dismiss and brief in support thereof. On April 21, 1975, plaintiffs filed and duly served their brief in opposition to the motion. The movant is a Judge of the 14th Chancery Circuit of Arkansas. He lives at Dardanelle, the County seat of Yell County. The District comprises the Counties of Logan, Perry, Scott and Yell.

Under the law of Arkansas the Chancellor is also the Probate Judge in each county in his circuit, and operates independently. Lewis v. Smith, 198 Ark. 244, 129 S.W.2d 229; Davie v. Smoot, 202 Ark. 294, 150 S.W.2d 50; Constitutional Amendment 24.

Ark.Stat.Ann., § 57-604 (1971 Repl.), provides:

"The jurisdiction of the Probate Court over all matters of guardianship, other than guardianships ad litem in other courts, shall be exclusive, subject to the right of appeal."

On March 24, 1975, defendants Thomas Edward Oliver and Jeptha A. Evans filed and duly served their motion to dismiss and brief in support thereof. On April 25, 1975, Patrick J. Leston, one of the attorneys for plaintiffs, served brief in opposition to the motion.

Thomas Edward Oliver is a citizen and resident of Arkansas and resides in the City of Booneville, Logan County, Arkansas. He is the former husband of the plaintiff Bulah (Oliver) Harley and the father of Bobby Allen Oliver.

Jeptha A. Evans is a citizen and resident of Arkansas and resides in the City of Booneville where he is engaged in the practice of law.

On May 15, 1975, while the appeal was pending, the plaintiffs filed their motion for change of venue and for the disqualification of the present judge. On May 20, 1975, the court filed its opinion overruling and denying the motion, 400 F. Supp. 105.

JURISDICTION

The Court of Appeals in its consideration of the plaintiffs' appeal said:

"We need not pass on whether the district court had jurisdiction of the subject matter in view of our holding that the case is moot."

In paragraph 1 of the complaint the plaintiffs alleged that this is a suit "for a temporary writ of injunction, a permanent writ of injunction, and damages authorized by U.S.C. Title 42, Sec. 1983, to restrain and prevent and to provide redress for the deprivation under color of state law of the rights secured to the plaintiffs by the First, Fifth and Fourteenth Amendments to the Constitution of the United States."

In Section 3 of the complaint it is alleged that jurisdiction is conferred upon this court by 28 U.S.C.A., § 1343(3, 4) and 42 U.S.C.A, § 1988.

In Williams v. Yellow Cab Co. of Pittsburg, Pa. (3 Cir. 1952), 200 F.2d 302 at page 307, the court said:

"The second basis upon which jurisdiction is claimed is Section 1343 of Title 28, United States Code, commonly known as the Civil Rights Act, the relevant portion of which is set out in a note. The Civil Rights Act was originally enacted to enforce the Fourteenth Amendment. It has long been settled that the Fourteenth Amendment is directed only to state action and that the invasion by individuals of the rights of other individuals is not within its purview. It necessarily follows that the jurisdiction conferred upon the federal district courts by Section 1343 is similarly limited and that redress for the invasion by an individual of the civil rights of another must be sought in the state courts, unless, of course, diversity of citizenship is present."

See, also, Love v. Chandler (8 Cir. 1942), 124 F.2d 785; United States v. Williams (1951), 341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758.

As to the contention that 42 U.S.C.A. § 1988 conferred jurisdiction, the court in Moor v. County of Alameda (1972), 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596, said:

"Section 1988, as is clear from its legislative history, does not independently create a federal cause of action for the violation of federal civil rights."

The Civil Rights Acts do not in themselves confer complete and full jurisdiction upon the district courts. In order to maintain a suit in the district courts under the Civil Rights Acts there must be alleged and proven an invasion by an individual of the civil rights of another as defined and provided by the various statutes claimed to have been violated.

All of the parties, plaintiffs and defendants, are now and were at time suit was commenced citizens of the United States and reside in the State of Arkansas.

The court is of the opinion that it is without jurisdiction of the allegations contained in the complaint. In view of this conclusion it appears unnecessary to further consider the case or to act upon the motions of defendants to dismiss heretofore mentioned, and an order dismissing the case for lack of jurisdiction would ordinarily be entered. However, if it should be held on another appeal that the judgment of the Court of Appeals of September 24, 1975, did not dispose of the claims of plaintiffs for damages, it would be necessary to consider the motions of defendants to dismiss, along with other reasons for dismissal, and the court now proceeds to determine such matters.

MOTIONS TO DISMISS

In paragraph 25 of the complaint the plaintiffs allege that the defendants "maliciously conspired to remove the minor from the custody and supervision of Bulah (Oliver) Harley and from the medical treatment to be scheduled for performance by Dr. Carl L. Nelson, Little Rock, Arkansas, for the purpose of treating the minor child by means of surgery with attendant blood transfusions which the conspiring parties knew violated...