Wise v. Bravo

Decision Date13 January 1982
Docket NumberNo. 80-1494,80-1494
PartiesRobert A. WISE, Plaintiff-Appellant, v. Richard Anthony BRAVO, The City of Pueblo, and Pueblo Police Department, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Maurice R. Franks, Pueblo, Colo., for plaintiff-appellant.

Marlin W. Burke, Denver, Colo., for defendants-appellees.

Before SETH, Chief Judge, and BARRETT and SEYMOUR, Circuit Judges.

BARRETT, Circuit Judge.

Robert Wise (Wise) appeals from a district court order granting Captain Richard Bravo's (Bravo) motion for summary judgment dismissing an assault and trespass claim filed against Bravo pursuant to 42 U.S.C.A. § 1983. Wise also appeals from a prior court order granting the City of Pueblo (City) and the Pueblo Police Department (Department) motions to dismiss pursuant to claims filed under 42 U.S.C.A. §§ 1983 and 1985 and Bravo's motion to dismiss a claim for interference with visitation rights pursuant to 42 U.S.C.A. § 1983.

The undisputed operative facts gleaned from depositions, some ten in all, giving rise to this cause of action spring from a dispute between Wise and his ex-wife, Gayle, over visitation rights to their daughter. In the divorce decree, Gayle was given custody rights to the daughter. Even though no formal visitation rights were ordered by the decree, the court acquiesced in the arrangements for visitation made between Wise and Gayle.

On March 17, 1978, Wise took his daughter for an extended visit following an oral agreement with Gayle. On March 24, 1978, Gayle phoned Wise advising him that she wanted their daughter back that night. Wise refused, claiming that he didn't have to return the child at that time. Thereafter, Gayle drove to Wise's apartment and attempted to obtain her daughter. She was unsuccessful and departed. Following the incident, both Wise and Gayle called the Police Department. In addition, Gayle called Captain Bravo at his home. Later that evening, Captain Bravo and five other police officers arrived at Wise's apartment to retrieve the girl. The officers knocked on the door, identified themselves as police officers, and asked to come in. Upon seeing Bravo, Wise stated that he was "not welcome" in the apartment. Officer Avery stated that Bravo was an officer and had as much right as the rest to enter. The police then entered the apartment without further objection from Wise. Avery told Wise that they were there for the purpose of returning the little girl to her mother. Wise consented and released his daughter to the police officers.

Wise claims that one of the officers carried "a little black decanter sort of thing", which he assumed to be Mace, and that he felt threatened by the object's presence.

In an order dated May 5, 1978, the trial court limited the claims brought against Bravo which might be compensable under § 1983 to those of trespass and assault. Other claims against Bravo, the City and the Department were dismissed.

On appeal, Wise alleges that the trial court erred by: (1) granting Bravo's motion to dismiss claims relating to interference with his visitation rights pursuant to 42 U.S.C.A. § 1983; (2) granting Bravo's motion for summary judgment; (3) granting the City's motion for dismissal; and (4) striking certain paragraphs from his amended complaint.

I.

Wise contends that the trial court erred by dismissing his claim for damages filed pursuant to 42 U.S.C.A. § 1983 1 for interference with his visitation rights.

To state a claim for relief under § 1983, a plaintiff must demonstrate that he was deprived of a right secured by the Constitution or laws of the United States, and that any such deprivation was achieved under color of law. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1975); Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

§ 1983 does not, standing alone, create any equal or civil rights of citizens; rather, it provides a remedy for rights guaranteed by the Constitution or laws of the United States. See Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979).

Wise cites Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) and Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979) to illustrate that he has a constitutional right to a protected parent-child relationship. Next, Wise cites Fenslage v. Dawkins, 629 F.2d 1107 (5th Cir. 1980) and Hinton v. Hinton, 436 F.2d 211 (D.C.Cir.1970) to demonstrate judicial recognition for his claimed right to visitation.

In Stanley v. Illinois, supra, the Supreme Court, on grant of application for writ of certiorari, rejected, on Fourteenth Amendment Equal Protection and Due Process grounds, the ruling of the Illinois Supreme Court that an unwed father is presumed unfit to raise his children. In Caban v. Mohammed, supra, the Supreme Court, on grant of application for writ of certiorari from the New York Court of Appeals, held that the Equal Protection Clause of the Fourteenth Amendment was offended by the sex-based distinction in the New York statute which authorized an unwed mother to block the adoption of her child but which did not recognize the authority of the unwed father to do so. In Fenslage v. Dawkins, supra, a diversity of citizenship case, the court recognized that state law is applicable in determining whether a father is entitled to recover the value of his minor son's services from the person who entices the child to leave the father's custody.

The cases cited by Wise comport with a long line of federal court decisions involving challenges to state law governing a wide range of subject matter involving family relationships, including child custody, anchored to claimed deprivations of Due Process or Equal Protection guaranteed by the Fourteenth Amendment, which provides that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. These decisions have, in the Fourteenth Amendment context, recognized that the relationship between parent and child is constitutionally protected. Lassiter v. Department of Social Services, --- U.S. ---- 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), reh. denied, 435 U.S. 918, 98 S.Ct. 1477, 55 L.Ed.2d 511 (1978); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Stanley v. Illinois, supra; Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Prince v. Massachusetts, 321 U.S. 158 (1944); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977).

These federal decisions, to be sure, recognize the important, fundamental interest involved, deserving of close Due Process and/or Equal Protection scrutiny. However, there is no substantive federal constitutional, statutory or common law governing family relationships, including matters of custody and visitation rights between parents and children. The substantive aspect of the subject of family law and domestic relations is one uniquely within the province of the respective states. The state's power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial and visitation rights, is subject to scrutiny by the federal judiciary within the reach of the Due Process and/or Equal Protection Clauses of the Fourteenth Amendment. In re Burrus, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500 (1890); Schleiffer v. Meyers, 644 F.2d 656 (7th Cir. 1981), U.S. app. pndg.; Crouch v. Crouch, 566 F.2d 486 (5th Cir. 1978); Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir. 1978); Solomon v. Solomon, 516 F.2d 1018 (3d Cir. 1975); Leonhard v. Mitchell, 473 F.2d 709 (2d Cir. 1973), cert. denied, 412 U.S. 949, 93 S.Ct. 3011, 37 L.Ed.2d 1002 (1973). The Fourteenth Amendment applies to the States those specific rights contained in the first eight amendments of the Constitution which declare fundamental personal rights. In addition, the Fourteenth Amendment encompasses and applies to the States those pre-existing fundamental rights recognized by the Ninth Amendment, which provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." See Quilloin v. Walcott, supra, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). See also: Developments in the Law-The Constitution and the Family, 93 Harv.L.Rev. 1156 (1980), wherein it is stated that "(r)estricting state power within constitutional bounds is an appropriate task for the federal judiciary.." Id. at p. 1159.

Colorado law provides a remedy for interference with visitation rights between divorced parents. The Uniform Dissolution of Marriage Act, § 14-10-129, C.R.S. 1973, provides that a noncustodial parent is entitled to reasonable visitation rights. Any interference with this right may be redressed by seeking enforcement of the child custody order in a contempt proceeding. § 14-10-121, C.R.S. 1973; County of Clearwater, Minn. v. Petrash, 598 P.2d 138 (Colo.1979); Brown v. Brown, 183 Colo. 356, 516 P.2d 1129 (Colo.1973).

Additionally, Colorado law provides citizens a remedy for torts committed by police officers. Frick v. Abell, 602 P.2d 852 (Colo.1979); Cooper v. Hollis, 600 P.2d 109 (Colo.App.1979); § 29-5-111, C.R.S. 1973.

In granting Bravo's motion to dismiss, the trial court stated:

To the extent plaintiff is attempting to assert claims relating to interference with his visitation rights or other matters related to his prior marriage, no federal or constitutional...

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