Orlando v. Wizel

• Decision Date: 05 January 1978
• Docket Number: No. 77-2091.,77-2091.
• Citation: 443 F. Supp. 744
• Parties: Joseph ORLANDO, Angelo Bennetti, Mark Cuneen and Patricia Gonzalez, Plaintiffs, v. Lydia WIZEL, Peter Bennetti, Mrs. Peter Bennetti, Joseph Orlando, Mrs. Joseph Orlando, William Cuneen, Mrs. William Cuneen, Rick Jackson, Van B. Taylor, Wilson Wallis, Jack Rose, Phillip K. Kinsey, Jan R. Cromwell, John G. Clark and Frederic Crafts, Defendants.
• Court: U.S. District Court — Western District of Arkansas

443 F. Supp. 744

Joseph ORLANDO, Angelo Bennetti, Mark Cuneen and Patricia Gonzalez, Plaintiffs, v. Lydia WIZEL, Peter Bennetti, Mrs. Peter Bennetti, Joseph Orlando, Mrs. Joseph Orlando, William Cuneen, Mrs. William Cuneen, Rick Jackson, Van B. Taylor, Wilson Wallis, Jack Rose, Phillip K. Kinsey, Jan R. Cromwell, John G. Clark and Frederic Crafts, Defendants.

No. 77-2091.

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

January 5, 1978.

COPYRIGHT MATERIAL OMITTED

Sam Sexton, Jr., Fort Smith, Ark., for plaintiffs.

Garner & Cloar, Fort Smith, Ark., for defendants, Wizel, Bennetti, Orlando, Cuneen and Jackson.

J. H. Evans and C. Wayne Harris, Fort Smith, Ark., for defendants Jack Rose, Phillip Kinsey and Jan R. Cromwell.

Hardin, Jesson & Dawson, Fort Smith, Ark., for defendant Van B. Taylor.

B. J. McCoy, Asst. Atty. Gen., Little Rock, Ark., for defendant Wilson Wallace.

MEMORANDUM OPINION

PAUL X WILLIAMS, Chief Judge.

This is a 42 U.S.C. § 1983 action now before the Court on defendants' motions to dismiss. The plaintiffs are adults who live in Alma, Arkansas and are associated with the Alamo Christian Foundation. The Defendants Wizel, Bennetti, Orlando and Cuneen are the parents of the four Plaintiffs. Rick Jackson is a professional "de-programmer," Hon. Van Taylor is the Chancery and Probate Judge of the Fourteenth Chancery District of Arkansas, Wilson Wallis is a lieutenant with the Arkansas State Police. The defendants Rose, Kinsey and Cromwell are the attorneys who represented the parents in guardianship proceedings in Crawford County, Arkansas, Probate Court. The defendants Clark and Crafts are alleged to be psychiatrists in Massachusetts.

The dispute between the parties arose when the parents obtained ex parte orders from Judge Van Taylor, appointing them temporary guardians of their children, the plaintiffs; directing the state police to assist each parent in taking custody of the plaintiffs; and directing the Probate Clerk of Crawford County to temporarily seal the records of each guardianship case.

From the pleadings on file and the evidence introduced at a hearing concerning the issuance of preliminary injunction, the facts most favorable to the plaintiffs can be summarized as follows: Around June 10, 1977, the defendants, parents, Wizel, Bennetti, Orlando and Cuneen came to northwestern Arkansas. They attempted to visit their adult children who were living and working at the Alamo Christian Foundation in Alma, Arkansas, but their attempts were not satisfactory to them. The parents had previously employed or then agreed to employ the defendant, Rick Jackson, who holds himself out as having expertise in convincing members to abandon religious cults, i.e. "a professional de-programmer." The parents contacted Rick Jackson and he agreed to help the parents convince their adult children to leave the Alamo Foundation. The parents also contacted the Fort Smith law firm of Rose, Kinsey and Cromwell for help in obtaining legal custody of their children.

Ms. Jan Cromwell of the law firm approached both Judges serving Crawford County and found that Judge Kizer was leaving for vacation and that Judge Kimbrough declined to hear the matter. Ms. Cromwell then contacted Judge Taylor who agreed to hear the cases in Crawford County. Judge Kimbrough and Kizer agreed to the exchange. Under the Exchange of Circuit Agreement Judge Taylor was empowered as a Chancery and Probate Judge for Sebastian and Crawford Counties, Arkansas.

A copy of the exchange agreement is hereto attached as Exhibit A.

On June 17, 1977, Judge Taylor heard several matters in open court. Near 5:00 o'clock p.m., the deputy clerk normally in attendance was allowed to leave the courtroom. Four petitions for "Appointment of Temporary Guardianship" were presented to Judge Taylor sitting and acting as Probate Judge of the Probate Court of Crawford County. Each petition was accompanied by affidavits of two Massachusetts psychiatrists who had never personally examined the proposed wards.

Judge Taylor noted on all petitions "Filed 6-17-77 Van B. Taylor" and executed orders appointing a parent the temporary guardian of his adult child, directing the Arkansas State police to assist the temporary guardian to gain custody of his or her ward and then directing the Clerk to temporarily seal the record.

A copy of the sealing order in the Bennetti case is hereto attached as Appendix "B". It is typical of the sealing order in each case.

After the orders were executed, the order directed to the state police was delivered to the state police. The state police drove to the Alamo Restaurant in Alma, Arkansas, took custody of the four plaintiffs and transported them to the state police headquarters in Fort Smith. The parents and Rick Jackson were waiting there to take the plaintiffs back to their parents' homes outside the State of Arkansas.

The parents' plans were never consummated. Tony and Susan Alamo and their attorney were at the police headquarters when the plaintiffs arrived. In the ensuing hub-bub the plaintiffs managed to "escape", apparently with other members of the Foundation.

This suit was initiated on Monday, June 20, 1977. Plaintiffs' petition for the issuance of a preliminary injunction was heard on June 21, 1977. The Court found the plaintiffs to technically be in the custody of Lieutenant Wilson Wallis, ordered that the plaintiffs execute a bond on which Tony and Susan Alamo appear as sureties and released the plaintiffs from Lieutenant Wallis's custody. These orders and measures assured that the plaintiffs would remain subject to the jurisdiction of the Crawford County Probate Court and also prevent the parents from taking physical control of the plaintiffs until a more complete hearing concerning each plaintiffs' capacity could be held.

The plaintiffs immediately appealed the order of Judge Taylor to the Arkansas Supreme Court and the Arkansas Supreme Court stayed Judge Taylor's orders but took the questions presented under advisement and has not yet rendered a decision.

A copy of the stay order is hereto attached as Appendix "C" and made a part hereof.

With the exception of the two psychiatrists, all defendants have moved to dismiss the action; we will discuss each motion separately.

PARENTS AND RICK JACKSON

Lydia Wizel, Peter Bennetti, Mrs. Peter Bennetti, Joseph Orlando, Mrs. Joseph Orlando, William Cuneen, Mrs. William Cuneen (parents) and Rick Jackson ("professional de-programmer") have moved to dismiss the action for lack of subject matter jurisdiction. Plaintiffs, by amendment, pleaded 28 U.S.C. § 1343 as a basis for subject matter jurisdiction.

It is well established that 42 U.S.C. 1983 does not contain an independent grant of jurisdiction but that 28 U.S.C. § 1343(3) grants jurisdiction over all § 1983 claims. Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1975).

28 U.S.C. § 1343 provides in part as follows:

The district court shall have original jurisdiction of any civil action authorized by law to be commenced by any person: (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege of immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.

The parents and Rick Jackson contend that this court lacks subject matter jurisdiction because their activities do not constitute actions "under color of State law."

There is no contention that the parents and Rick Jackson "conspired" with the State Police or Judge Taylor; it is only alleged that the parents presented their case to Judge Taylor in his judicial capacity and that the police merely carried out his court order. The state merely provided a forum for the parents to present their case and a means of enforcing court orders.

A state, merely by providing a forum and a means of enforcing regularly issued court orders, does not "color" the action of the private litigants with state action. Gras v. Stevens, 415 F.Supp. 1148 (S.D. N.Y.1976); Stevens v. Frick, 372 F.2d 378 (2nd Cir. 1967); Harley v. Oliver, 404 F.Supp. 450 (W.D. Ark.1975), aff'd 539 F.2d 1143 (1976); Mullarkey v. Borglum, 323 F.Supp. 1218 (S.D. N.Y.1970); Hohensee v. Dailey, 383 F.Supp. 6 (M.D. Pa.1974).

The complaint against the parents and Rick Jackson must be dismissed for lack of state action sufficient to support jurisdiction under 28 U.S.C. § 1343(3).

CHANCELLOR AND PROBATE JUDGE

Judge Van B. Taylor moves for a dismissal of the complaint against him on the ground that he is immune from suit for money damages and that this Court should decline to issue injunctive relief against him.

It is well established that a judge acting within his jurisdiction, is immune from suit for money damages. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Harley v. Oliver, 539 F.2d 1143 (8th Cir. 1976).

The question of immunity does not turn upon fine questions of jurisdiction. Duba v. McIntyre, 501 F.2d 590 (8th Cir. 1974); Wiggins v. Hess, 531 F.2d 920 (8th Cir. 1976).

Plaintiffs contend that Judge Taylor was acting outside his jurisdiction in issuing the three orders because he was not a Probate Judge elected to serve Crawford County and because the petitions on which he acted had not been filed with the Clerk of the Court at the time the orders were entered.

The Court both took and now takes judicial notice that Judge Taylor is the duly elected Chancellor and Probate Judge of the Fourteenth Chancery District of Arkansas. Plaintiffs objected to the Court's taking such notice.

Fed.R.Ev. Rule 201 provides in part as follows:

(b) Kinds of facts.—A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate

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