Robertson v. Plano City of Texas

• Decision Date: 15 November 1995
• Docket Number: No. 94-41229,94-41229
• Citation: 70 F.3d 21
• Parties: Glen ROBERTSON and Cheryl Robertson, Individually and as Heirs at Law of Jonathan P. Robertson, Plaintiffs-Appellants, v. PLANO CITY OF TEXAS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 21

70 F.3d 21

Glen ROBERTSON and Cheryl Robertson, Individually and as Heirs at Law of Jonathan P. Robertson, Plaintiffs-Appellants, v. PLANO CITY OF TEXAS, et al., Defendants-Appellees.

No. 94-41229.

United States Court of Appeals, Fifth Circuit.

Nov. 15, 1995.

James Russell Tucker, Dallas, TX, for appellants.

Ernest E. Figari, Jr., Stephen D. Howen, Figari & Davenport, Dallas, TX, for appellees.

Appeal from the United States District Court for the Eastern District of Texas.

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. Sec. 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 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, 130 L.Ed.2d 122 (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 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. Calverley, 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, 131 L.Ed.2d 145 (1995); see also, Highlands Ins. v. National Union Fire Ins., 27 F.3d 1027 (5th Cir.1994) (applying same standard in civil case), cert. denied --- U.S. ----, 115 S.Ct. 903, 130 L.Ed.2d 786 (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, 68 F.3d 114, 118 (5th Cir.1995) (quoting United States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, 500 U.S. 924, 111 S.Ct. 2032, 114 L.Ed.2d 117 (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 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 Sec. 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

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, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984)), aff'd in part, vacated in part, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (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, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (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, 100 S.Ct. at 1877-78. The son's encounter with the officers had none of these. For example, 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, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968).

2.

No State shall "deprive any person of life, liberty, or property, without due process of law". U.S. CONST. amend. XIV, Sec. 1. To state a Sec. 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, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991). At issue is the substantive component of the Due Process Clause; it "protects individual liberty against ...