Whitesel v. Sengenberger

Decision Date23 August 2000
Docket NumberNo. 98-1472,98-1472
Parties(10th Cir. 2000) KEVIN WHITESEL, Plaintiff-Appellant, v. KELLY SENGENBERGER F/K/A KELLY CRONAN, JULIE STRANSKI, JUNE H. CANDELARIO, THE BOARD OF COUNTY COMMISSIONERS FOR JEFFERSON COUNTY, COLORADO, NELSON NADEAU, BRENDA BOUCHARD, and ELIZABETH BARR, Defendants-Appellees
CourtU.S. Court of Appeals — Tenth Circuit

[Copyrighted Material Omitted] Vincent C. Todd, Lakewood, Colorado, for the Plaintiff-Appellant.

William A. Tuthill III, Assistant County Attorney for Jefferson County, Golden, Colorado, (Frank J. Hutfless, County Attorney, with him on the brief), for the Defendants-Appellees.

Before HENRY, LUCERO, and MURPHY, Circuit Judges.

HENRY, Circuit Judge.

The appellant, Kevin Whitesel, brought an action for damages pursuant to 42 U.S.C. § 1983 against several pretrial services officers in the First Judicial District of Colorado, alleging that they violated his constitutional rights by issuing a temporary restraining order prior to a hearing before a judge. Mr. Whitesel further alleged that the Board of County Commissioners ("the Board") established the policy authorizing the officers to issue the order. In a separate § 1983 claim, Mr. Whitesel alleged that the Director and two employees of the Jefferson County Department of Human Services (collectively "Human Services employees") violated his due process rights in obtaining a default judgment against him for child support and in initiating a wage assignment.

The district court found that the pretrial services officers were entitled to quasi-judicial absolute immunity and granted judgment as a matter of law in their favor. The court also granted judgment in favor of the Board. As to the Human Services employees, the court determined that none of their actions, as alleged by Mr. Whitesel, established a violation of clearly established federal rights. Thus, the court granted summary judgment in their favor as well. For the reasons set forth below, we affirm the district court's judgment in part, and vacate it in part, and remand for proceedings consistent with this opinion.

I. BACKGROUND
A. Pretrial Service Officers

On September 10, 1997, Mr. Whitesel was arrested and charged with Third Degree Assault, in violation of Colo. Rev. Stat. § 18-3-204, and Child Abuse, in violation of Colo. Rev. Stat. § 18-6-401. In connection with his arrest and charges, appellee June H. Candelario, a pretrial services employee, acting as a bond commissioner, filled out a document entitled "Temporary Restraining Order Pursuant to Section 18-1-1001, C.R.S" ("TRO"). Aplt's App. at 40. This document bore the stamped signature of Judge Charles T. Hoppin. It ordered Mr. Whitesel not to "harass, molest, intimidate, retaliate against, or tamper with any witness to or victim" of the crimes for which he was charged. Id. This provision is mandatory, pursuant to Colo. Rev. Stat. § 18-1-1001(1), for persons arrested for domestic violence offenses.

The TRO contained additional provisions requiring that Mr. Whitesel: "[(1)] vacate the home of the victim and stay away from any other location the victim is likely to be found. . . . [(2)] refrain from contacting or . . . communicating with the victim. . . . [(3)] not possess or control a firearm or other weapon. . . . [(4)] not possess or consume alcoholic beverages or controlled substances." Id. These provisions are discretionary under Colo. Rev. Stat. § 18-1-1001(3).1 Ms. Candelario signed her name on the TRO, certifying that it was "a true and complete copy of the original order." Id.

When Mr. Whitesel returned to the family residence, several hours later, his wife called the police, who re-arrested him for violating the discretionary provisions of the TRO. At a subsequent hearing, a state court judge ruled that the plain language of § 18-1-1001(3) implied that the court must afford the defendant a hearing prior to issuance of a TRO containing one or more of the discretionary provisions. Because Mr. Whitesel had not been afforded a hearing prior to issuance of the discretionary provisions, the court held these provisions were not valid at the time of the alleged violation. Following the court's ruling, the government dismissed the charges against Mr. Whitesel for violating the TRO.

B. Human Services Employees

In a separate matter, on February 25, 1997, the Jefferson County Department of Human Services served Mr. Whitesel with administrative process, pursuant to the Colorado Administrative Procedure Act for the Establishment and Enforcement of Child Support, Colo. Rev. Stat. §§ 26-13.5-101 through 13.5-112, in an effort to obtain an ongoing child support obligation for his two children. The administrative process notified Mr. Whitesel of his financial liability and advised him of a scheduled negotiation conference on March 5, 1997 at which he was entitled to contest liability. The notice further informed Mr. Whitesel that failure to appear at or reschedule the negotiation conference would result in issuance of an order of default, which would then be filed with the Jefferson County District Court. The Human Services Department rescheduled the negotiation conference for March 14, 1997 in order to comply with the ten-day notice provision set forth in Colo. Rev. Stat. § 26-13.5-104.

Instead of appearing at the hearing, Mr. Whitesel served upon the Jefferson County Department of Human Services a "Motion to Quash Administrative Process and Notice of Financial Responsibility for Failure to Comply with § 26-13.5-104(1), Colorado Revised Statutes" ("Motion to Quash"). He also filed this pleading with the Jefferson County District Court. Because the process was still at the administrative level, the Jefferson County Department of Human Services had not yet filed the matter in the Jefferson County District Court. Thus, the court had no case within which to file Mr. Whitesel's Motion to Quash and, therefore, placed it in a dependency and neglect file.

When Mr. Whitesel failed to appear at the negotiation conference, Department of Human Services employees Brenda Bouchard and Elizabeth Barr filed an application for default in the Jefferson County District Court. In their application, Ms. Bouchard and Ms. Barr did not inform the district court of Mr. Whitesel's Motion to Quash.

On March 27, 1997, the Jefferson County District Court issued a default order for child support with an effective date of April 25, 1997. On April 2, 1997, Ms. Bouchard sent a Notice of Wage Assignment to Mr. Whitesel's employer, advising that certain wages should be withheld from Mr. Whitesel's pay "no later than the first pay period that begins at least 14 days from" April 2, 1997. Aplt's App. at 106. Not later than April 28, 1997, Mr. Whitesel successfully obtained an order staying the support order and garnishment proceeding. At this time, Mr. Whitesel also received a hearing on the matters raised in his Motion to Quash. The state court denied the Motion to Quash. However, on its own motion, the court set aside the default judgment and allowed Mr. Whitesel to contest the child support enforcement action on the merits.

II. DISCUSSION
A. Pretrial Service Officers
1. Conversion of Motion to Dismiss to Motion for Summary Judgment

In response to Mr. Whitesel's Complaint, the defendants filed a Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), and attached supporting affidavits and exhibits. Mr. Whitesel in turn filed a "Motion for Leave to Treat Portions of Defendants' Motion to Dismiss as a Motion [for Summary Judgment] Under Rule 56 and for Leave to Respond." Aplt's App. at 84. He informed the court that he was awaiting the transcript of a ruling by Judge Hoppin that would support the allegations in his complaint.

The district court issued an order dismissing pretrial services defendants Ms. Sengenberger, Ms. Stransky, and Ms. Candelario, (collectively "pretrial service officers"), finding they were entitled to absolute quasi-judicial immunity from civil suit. In the same order, the court granted Mr. Whitesel's motion to treat the motion to dismiss as one for summary judgment to the extent either party submitted materials outside the pleadings as to issues involving the remaining defendants. The court granted Mr. Whitesel leave to file a response brief.

Mr. Whitesel now argues that the district court was limited to, but went beyond, the four corners of the complaint in dismissing the pretrial service officers pursuant to Fed. R. Civ. P. 12(b)(6). He further implies the court erred in dismissing these individuals without first permitting him to respond.

Mr. Whitesel's procedural argument is unavailing. First, Mr. Whitesel overlooks the fact that, although the court's initial order dismissed the pretrial service officers pursuant to Rule 12(b)(6), at Mr. Whitesel's subsequent request, it reconsidered their dismissal under summary judgment standards, eventually entering judgment as a matter of law in their favor. See Aplt's App. at 147, 152, 155. Thus, the court was not limited to the facts alleged in the complaint and was entitled to consider any evidentiary materials submitted by either party.

Second, conversion of the motion to dismiss, with respect to the pretrial service officers, was proper. "A court may convert a Rule 12(b)(6) motion to dismiss into a motion for summary judgment in order to consider matters outside of the plaintiff's complaint." Brown v. Zavaras, 63 F.3d 967, 969 (10th Cir. 1995). Prior to conversion, however, the trial court must "give the parties notice of the changed status of the motion and thereby provide the parties to the proceeding the opportunity to present to the court all material made pertinent to such motion by Rule 56." Id. (quotations omitted).

These requirements were satisfied here. First, Mr. Whitesel himself initially requested the court to treat the motion to...

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