United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, Chief District Judge.
This matter is before the court on defendants Officer C.C. Morales, Officer D.E. Sachen, Sergeant K.A. Hill ("Sergeant Hill"), and the Unified Government of Wyandotte County's ("Unified Government") Motion for Summary Judgment (Dkt. 53). This case arises out of the protective removal of plaintiff's children from his home without a warrant. Plaintiff, acting pro se, filed a twelve-count complaint against defendants. (Dkt. 1). Defendants were granted partial judgment on August 6, 2014. (Dkt. 39). The only remaining claims are plaintiff's Counts I and III against Sergeant Hill, Morales, and Sachen in their individual capacities and against the Unified Government. Defendants seek summary judgment on all remaining claims.
I. Undisputed Facts
Defendants Morales, Sachen, and Sergeant Hill are officers for the Kansas City, Kansas Police Department ("KCKPD"). Plaintiff has four minor children with his ex-wife, Maureen Gilyeat: daughters ACG and VRG, and sons DLRG and NAG. On November 18, 2012, plaintiff had residential custody of the four children, who lived with him and his current wife. On the evening of Friday, November 16, 2012, KCKPD officer Patrick O'Neill was dispatched to Shawnee Mission Medical Center in Overland Park, Kansas, on a report of child abuse concerning a thirteen-year old female, VRG. At the hospital, O'Neill observed several red marks on VRG's inner thigh. He spoke with Maureen, who alleged that, on November 12, 2012, plaintiff told VRG to pull down her pants, then beat her on her backside thirteen times with a belt. Maureen also told O'Neill that VRG has autism, epilepsy, and the mental capacity of a six-year-old. O'Neill spoke with VRG's sister, ACG, who told him that on November 12, 2012, she saw plaintiff pull VRG into a bedroom by her hair and yell at her, then heard plaintiff strike VRG twelve times.
After O'Neill's visit to the hospital, he reported his findings to Sergeant Hill. Based on O'Neill's report, Sergeant Hill determined that there was probable cause to believe that plaintiff had abused VRG. Sergeant Hill then spoke with Captain Dustin Dungan, a night detective, about O'Neill's report. They discussed placing VRG and ACG in protective custody, but decided that the children were not in immediate danger because they had returned home with Maureen.
On the evening of November 18, 2012, plaintiff and Maureen met at the McDonald's at 75th and State Avenue in Kansas City, Kansas, to discuss the children. Maureen would not allow the children to return home with plaintiff. Officers were dispatched to the scene, and Maureen told them she had recently made a child abuse report against plaintiff. The officers were unable to locate the abuse report and allowed the girls to return home with plaintiff.
Later that evening, Maureen called dispatch and requested that officers go to plaintiff's house to check on the girls' welfare. Shortly after Maureen's call, Sergeant Hill learned that officers had allowed the girls to return home with plaintiff because they could not find Maureen's abuse report. Morales and Sachen were dispatched to plaintiff's house to perform the welfare check. While Sachen was en route to plaintiff's house, Sergeant Hill told him to take VRG and ACG into protective custody if he contacted them in plaintiff's home. On arrival at the house, Morales also spoke with Sergeant Hill, who advised him that she and Captain Dugan were both aware of the abuse report filed against plaintiff.
Morales and Sachen approached the house, and plaintiff answered the door. Morales and Sachen told plaintiff that they were there to check on ACG and VRG. Plaintiff let the officers in the house. Morales and Sachen encountered ACG and VRG, and both said they were fine. Morales notified Sergeant Hill by phone that ACG and VRG had been encountered; she told him to take them into protective custody. The officers informed plaintiff that ACG and VRG would be placed in protective custody in the Juvenile Intake and Assessment Center ("JIAC"). Plaintiff objected, and asked why only two of the four children were being taken. Morales called Sergeant Hill and asked her about the other two children. Sergeant Hill was unaware that Maureen and plaintiff had other children. She told Morales to place all four children in protective custody. Morales and Sachen then escorted the four children from the residence to place them in JIAC until a hearing could be scheduled the following Monday. The children were returned to plaintiff's custody on November 20, 2012.
II. Summary Judgment Legal Standard
"A party may move for summary judgment, identifying each claim or defense- or the part of each claim or defense-on which summary judgment is sought." FED. R. CIV. P. 56(a). Summary judgment is proper if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The court must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party. LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004). "The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law." Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). "[A] movant that will not bear the burden of persuasion at trial" need only "point out a lack of evidence for the nonmovant on an essential element of the nonmovant's claim" to succeed on summary judgment. Id. at 851.
The party resisting summary judgment may not rely upon mere allegations or denials contained in its pleadings or briefs. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Id. Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Id. at 249-50. Once the moving party has carried its burden under Rule 56, the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. '" Id. at 587 (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita ).
A. Plaintiff's Claims on Behalf of His Children
Plaintiff alleges Fourth Amendment violations on behalf his minor children for unreasonable search and seizure. "Fourth Amendment rights are personal rights which... may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). "Undoubtedly, parent may assert their children's Fourth Amendment rights on behalf of their children." Hollingsworth v. Hill, 110 F.3d 733, 738 (10th Cir. 1997). To do so however, the children must be named as plaintiffs. Id. (parent failed to demonstrate violation of children's Fourth Amendment rights because they were not named in the complaint). Here, plaintiff's children are not named plaintiffs; he therefore cannot prove a violation of their Fourth Amendment rights.
In any event, a pro se parent cannot represent his children in federal court for constitutional claims. Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986). "In this circuit, we have held that under Fed.R.Civ.P. 17(c) and 28 U.S.C. § 1654, a minor child cannot bring suit through a parent acting as next friend if the parent is not represented by an attorney.'" Adams ex re. D.J.W. v. Astrue, 659 F.3d 1297, 1300 (10th Cir. 2011) (quoting Meeker, 782 F.2d at 154). The purpose of this rule is to "protect the interests of the minor party; in addition, it jealously guards the judiciary's authority to govern those who practice in courtrooms." Id. (quoting Elustra v. ...