Muza v. Missouri Dept. of Social Services

• Decision Date: 28 March 1989
• Docket Number: No. WD,WD
• Parties: Edward MUZA, et al., Appellants, v. MISSOURI DEPARTMENT OF SOCIAL SERVICES, et al., Respondents. 40321.
• Court: Missouri Court of Appeals

Page 168

769 S.W.2d 168

Edward MUZA, et al., Appellants, v. MISSOURI DEPARTMENT OF SOCIAL SERVICES, et al., Respondents.

No. WD 40321.

Missouri Court of Appeals Western District.

March 28, 1989.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 2, 1989.

Edward Muza, Seagoville, Tex., appellant pro se.

Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for Missouri Dept. of Social Services, et al.

Brett C. Coonrod, Kansas City, for Robert Sims & Robert Sims Const.

Kenneth Joseph Berra, Kansas City, for Barbara J. Charles.

Joy Wimp Rushing, Independence, for Edward Forrest, Independence Police Dept., et al.

William Frank Ford, Jr., Kansas City, for Medical Center of Independence.

Jeffrey Alan Burns, Kansas City, for King & King Enterprises.

Larry L. McMullen, Kansas City, for Kansas City Eye Bank.

Tracy Smedley, Kansas City, for Mary Barrier.

Russell D. Jacobson, Government Counsel, for John Christensen, Jackson County Juvenile Probation Office, and Jackson County, Missouri.

James Maxwell Yeretsky, Kansas City, for Denise Phillips.

Stephen S. Brown, Kansas City, for David W. Kierst, Com'r.

Before SHANGLER, P.J., and CLARK and FENNER, JJ.

SHANGLER, Presiding Judge.

The plaintiff Muza appeals from a judgment of dismissal entered by the Jackson County Circuit Court on his petition for compensatory and punitive damages against thirty private and public parties under 42 U.S.C. § 1983 (1976) for violation of federally protected rights. The order of dismissal rested on the preclusive effect of an antecedent order of dismissal entered against Muza by the Honorable Scott O. Wright, United States District Court for the Western District of Missouri, on an identical petition for the same relief against the same parties under the same federal enactment. Muza, then a federal prisoner in custody, never appealed the order of dismissal entered by the United States District Court, so that the federal order became a final judgment. Muza litigates this appeal pro se and in forma pauperis, as was the procedure in both the state and federal trial courts. See Rule 77.03, Missouri Rules of Civil Procedure, and 28 U.S.C. § 1915(a) (1976).

The claims for redress the complaint and petition address rest on these allegations of fact: ¹

Jason Jon Muza, six year old son of the plaintiff, was placed in foster care at the direction of the Juvenile Court of Jackson County, Missouri. The plaintiff Muza was then a federal prisoner. The boy was returned to the care of his mother under juvenile court supervision on the recommendation of various officers and employees of the Juvenile Court and the Missouri Department of Social Services. The boy apparently wandered away from the mother one day while she was under the influence of drugs or alcohol and entered a King & King Enterprises store where he was seen removing a tool from a shelf. The owner, the pleadings alleged, threatened Jason and chased him from the store. The boy ran out onto a nearby highway and was struck by a vehicle or vehicles operated by Barbara Charles and Robert Sims. The boy died from his injuries at the Medical Center of Independence. The pleadings alleged that the eyeballs were harvested from the boy by emergency room physicians while he was still alive and was simply allowed to die without treatment. A few months later, the mother of the boy, Barbara Joan Muza, died from a drug overdose or from suicide induced by grief over the loss of the child.

Muza seeks redress against all thirty defendants ^{2 2} for the death of both the son Jason and, by then, former wife Muza ³. The complaint and petition interrelate the liability of the several multiple defendants by this narrative: Jason should not have been returned to the home of the mother by the Juvenile Court authorities since her drug and alcohol abuse and mental instability were known to them, and that both Jason and the mother Barbara would still be alive but for that placement. On that account, the Juvenile Court and its named officers must be held liable for their deaths. Once in the custody of the mother from whence the child wandered into the King & King Enterprises store, the owner of that business should be held liable for the deaths of the boy and mother which resulted when the owner chased Jason out of the store and onto the street where he was struck by the Charles and Sims vehicles. In addition to these principals, the neglect of the City of Independence and the City Council to maintain adequate traffic control which might have saved the life of the boy, and of the Independence Police Department to arrest or charge Charles and Sims for the death of the boy subjects them to liability. The Independence Medical Center, its director and physicians, and the K.C. Eye Bank--the narrative of the petition concludes--also incurred liability for the deception practiced on the mother to obtain the eyeballs of the boy and to allow him to die without treatment, and then for the refusal to return the organs to the father for burial with the body.

These allegations of complaint were assessed in turn, found frivolous as to all the claims so that no defendant remained, and were dismissed by order in the federal court action. ⁴ The order found that no defendant was amenable to suit for violation of the Civil Rights Act, 42 U.S.C. § 1983 (1976). Judge Wright determined first that the Eleventh Amendment renders a state immune from suits brought in federal courts by its own citizens, and hence the Department of Social Services and Department of Revenue, state agencies, were absolutely immune from that suit. Judge Wright determined next that for a court to have jurisdiction to grant relief under 42 U.S.C. § 1983, the action of the defendant must be under color of state law. The actions of defendants Mary Barrier; Metropolitan Bar Association of Kansas City; King & King Enterprises and its owner; Barbara Charles; Robert Sims; Robert Sims Construction Company; Medical Center of Independence and its director and physicians; Kansas City Eye Bank and its director and the recipient of the two eyeballs from the eye bank--from the very allegations of the complaint--were not under color of state law. The court found that as to them, jurisdiction lacked, declined to proceed, and dismissed them from the cause of action. Judge Wright then determined that as to the defendants who remained--Director of Division of Family Services; Commissioner Kierst; Deputy Juvenile Officers Cunningham, Christenson and Phillips; Social Worker Sinco; Police Officer Forrest; Independence Police Department; Independence City Council; City of Independence; Director of Legal Aid at the Jackson County Juvenile Courthouse; Jackson County Juvenile Probation Office; and Jackson County, Missouri,--the allegations were of negligence at most and, therefore, not actionable under Section 1983. He determined also that, in addition, Commissioner Kierst and the Independence City Council enjoy absolute judicial and legislative immunity, respectively. These defendants were also dissevered and dismissed from the cause of action of the complaint. ⁵ The order entered by Judge Wright for effect on November 19, 1986, concluded:

Because no defendants remain against whom plaintiff may state a claim, the above-captioned civil rights complaint must be deemed legally frivolous within the meaning of 28 U.S.C. § 1915(d), and it will be dismissed.

The order of dismissal went unchallenged by Muza and lapsed into a final judgment. Nine days after dismissal Muza attempted "a voluntary withdrawal of complaint." There is no record before us, however, that such a motion was ever before the federal judge or was entered on the docket. We assume that is because under the federal rule voluntary dismissal can only be accomplished as to a pending "action", and not as to one already adjudicated by an order of involuntary dismissal. F.R.Civ.P. 41(a)(1). The order became final on the date of entry, and the time for appeal lapsed after thirty days. F.R.App.P. 4. Thus, the federal court order on the Muza complaint became a final and binding adjudication.

Muza, nevertheless, brought an identical suit in the Circuit Court of Jackson County, Missouri, again under the auspices of 42 U.S.C. § 1983, joined the same defendants, asserted identical grounds of liability, and sought identical redress as in the federal court complaint. The several defendants moved to dismiss on grounds, variously, that the petition did not state a claim for relief and that the order of dismissal of the in forma pauperis complaint as frivolous by the federal court constituted a judgment on the merits of the complaint, and hence res judicata to the petition in the circuit court. The circuit court sustained the motions to dismiss as to all the defendants on the ground that the "Order of Dismissal by the Federal Court is res judicata of this action." The circuit court directed that the dismissal of the petition be with prejudice.

Muza perfected a timely appeal to this court from that judgment. The errors and arguments the pro se appellant addresses to the circuit court judgment, however, are not easily identified. Muza seems to argue that the federal court was without jurisdiction to render the order of dismissal, hence the judgment was without res judicata effect. And, indeed, a federal judgment rendered without jurisdiction to adjudicate the subject matter is open to collateral attack in a subsequent state court proceeding to give effect to that judgment. Hayes v. Hatfield, 758 S.W.2d 470, 472 (Mo.App.1988). More specifically Muza argues that the voluntary withdrawal of the complaint in the federal court deprived that judge of subject matter jurisdiction to render a judgment on the civil rights claim, so that the claim was not barred as the basis for the subsequent suit in the state court. That argument, of course, assumes the efficacy of the "voluntary withdrawal" of the complaint nine days after...