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explaining that, while a motion to amend the Complaint is typically a non-dispositive ruling subject to the clearly erroneous standard of review, a determination of a motion to amend based on futility grounds is similar to a motion to dismiss under Rule 12(b), which is dispositive and subject to de novo review
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Case No. 02-2135-JWL
January 17, 2003
MEMORANDUM ORDER
This matter comes before the court on pro se plaintiff Dale E. McCormick's motion to review Magistrate Judge O'Hara's memorandum and order filed September 6, 2002 (Doc. 128). The order granted in part and denied in part Mr. McCormick's motion to amend his first amended complaint and denied Mr. McCormick's motion to strike all documents filed by defendant M.J. Willoughby. Mr. McCormick objects to the order in three respects: (1) he argues the court erred in denying his motion to amend his first amended complaint to add a conspiracy claim; (2) he argues the court erred in denying his motion to amend his first amended complaint to add an injunction claim against the "D.A. defendants;" and (3) he argues the court erred in denying his motion to strike all documents filed by defendant M.J. Willoughby. For the reasons set forth below, plaintiff's objections to the magistrate judge's September 6, 2002 order (Doc. 128) are overruled.
Mr. McCormick also filed a motion to expedite ruling on plaintiff McCormick's objections to the orders of the magistrate judge (Doc. 150) and a motion for immediate preliminary injunction against District Attorney Kenney (Doc. 151). To obtain a preliminary injunction, the party requesting the injunction must show: "(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm in the absence of the injunction; (3) proof that the threatened harm outweighs any damage the injunction may cause to the party opposing it; and (4) that the injunction, if issued, will not be adverse to the public interest." Sprint Spectrum v. State Corp. Commission, 149 F.3d 1058, 1060 (10th Cir. 1998). Because the court affirms the magistrate judge's ruling that Mr. McCormick's motion to amend to add an injunction claim against the "D.A. defendants" would be futile, the court also denies Mr. McCormick's motion for a preliminary injunction. In short, Mr. McCormick cannot establish that there is a substantial likelihood of overcoming the bar of Younger abstention. Accordingly, his motion for a preliminary injunction is denied. This order makes the motion for an expedited ruling moot.
STANDARD OF REVIEW
With respect to a magistrate judge's order relating to nondispositive pretrial matters, the district court does not conduct a de novo review; rather, the court applies a more deferential standard by which the moving party must show that the magistrate judge's order is "clearly erroneous or contrary to law." First Union Mortgage Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (quoting Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1461-62 (10th Cir. 1988); 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a)). The clearly erroneous standard "requires that the reviewing court affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Ocelot Oil, 847 F.2d at 1464 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). This standard plainly applies to Mr. McCormick's objection to the portion of the magistrate judge's order denying the motion to strike all documents filed by defendant M.J. Willoughby.Whether this standard should also apply to the portion of the order denying in part Mr. McCormick's motion to amend is not as clear. Typically, a magistrate judge's ruling on a motion to amend the complaint is a nondispositive ruling subject to the clearly erroneous standard of review. Pedro v. Armour Swift-Eckrich, 118 F. Supp.2d 1155, 1157 (D.Kan. 2000) (citing Pagano v. Frank, 983 F.2d 343, 346 (1st Cir. 1993); First Savings Bank, F.S.B. v. U.S. Bancorp, 184 F.R.D. 363, 366 (D.Kan. 1998)). This is particularly true where a magistrate judge's order grants leave to amend and, therefore, does not remove any claim or defense from the case. Id. (citing Stetz v. Reeher Enterprises, Inc., 70 F. Supp.2d 119, 120 (N.D.N.Y. 1999)). However, when the magistrate judge's order denies a motion to amend and a claim or defense is not permitted to be asserted in the case, several courts have found such a ruling to be dispositive and concluded that the district court should review it de novo. Id. (citing Allendale Mut. Ins. Co. v. Rutherford, 178 F.R.D. 1, 2 (D.Me. 1998); cf. Ocelot Oil Corp. v. Sparrow Ind., 847 F.2d at 1462-63 ("[M]otions not designated on their face as one of those excepted in [ 28 U.S.C. § 636(b)(1)] subsection (A) are nevertheless to be treated as such a motion when they have an identical effect.")). This reasoning is particularly persuasive when the magistrate judge denies leave to amend on futility grounds. In such a situation the magistrate judge has determined that the proposed claim would not withstand a motion to dismiss under Rule 12(b)(6). In short, then, this court finds that "denial of leave to amend is a dispositive decision at least in situations where the denial is premised on futility." Id. (quoting HCC, Inc. v. RH M Machine Co., 39 F. Supp.2d 317, 321 (S.D.N.Y. 1999)). Accordingly, this court concludes that the magistrate judge's decision denying leave to amend the first amended complaint to add a conspiracy claim and an injunction claim against the "D.A. defendants" on futility grounds was a dispositive ruling subject to de novo review. Id. (citing Fed.R.Civ.P. 72(b)).
DISCUSSION
Mr. McCormick's first two objections relate to the magistrate judge's ruling denying the motion to amend to add a conspiracy claim and an injunction claim against the "D.A. defendants" on futility grounds. "A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." Jefferson County School Dist. No. R-1 v. Moody's Investor's Servs., 175 F.3d 848, 859 (10th Cir. 1999) (citations omitted). Thus, the court must analyze the plaintiff's claims under the standard for a 12(b)(6) motion to dismiss for failure to state a claim. Grossman v. Novell, Inc., 120 F.3d 1112, 1125-26 (10th Cir. 1997).
Under a 12(b)(6) analysis, the court will dismiss a cause of action for failure to state a claim only when "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his [or her] claims which would entitle him [or her] to relief," Poole v. County of Otero, 271 F.3d 955, 957 (10th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The issue in resolving a 12(b)(6) motion is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 122 S.Ct. 992, 997 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Denial of the Motion to Amend to Add a Conspiracy Claim
The magistrate judge's order, denying the motion to amend to add a conspiracy claim on futility grounds, states that Mr. McCormick's claim "makes only conclusory allegations of a conspiracy among the Attorney General defendants." The order adds: "There are no allegations or evidence, circumstantial or otherwise, indicating that there was any agreement among these defendants." Mr. McCormick objects to this ruling because he believes that his proposed second amended complaint does allege "an `agreement' between those defendants to perpetrate the constitutional torts averred in plaintiff's Counts XI-XIII." Specifically, he points to the language in the second amended complaint that states:
[S]aid Willoughby then connived with David Harder and Shelly Welch, both professionally employed as agents of the Kansas Attorney General, to launch a fabricated and baseless inquisition into plaintiff's interactions with said Coburns, the same being designed to intimidate said Coburns and plaintiff, to interfere with the rights of expression of the same, to interfere with the rights of petition of the same, to harass the same, to interfere with the rights of association of the same, to prevent, dissuade or interfere with association by the same. . . .
Mr. McCormick argues that this language sets forth facts sufficient to support a conspiracy claim and withstand a motion to dismiss under Rule 12(b)(6). The court cannot agree.
The magistrate judge's order correctly stated that allegations of conspiracy may form the basis of a § 1983 claim. Tonkovich v. Kan. Bd. Of Regents, 159 F.3d 504, 533 (10th Cir. 1988) (citations omitted). To support such a claim, "a plaintiff must allege specific facts showing an agreement and concerted action amongst the defendants." Id. (citation omitted). "Conclusory allegations of conspiracy are insufficient to state a valid § 1983 claim." Id. Here, the language quoted above from Mr. McCormick's proposed amendment does not include specific facts showing an agreement and concerted action amongst the defendants. Instead, it includes only the conclusory allegation that "Willoughby then connived with David Harder and Shelly Welch, both professionally employed as agents of the Kansas Attorney General, to launch a fabricated and baseless inquisition. . . ."
If such language is compared to the allegations in Tonkovich, it becomes clear that Mr. McCormick's language fails to support a conspiracy claim. In Tonkovich, the University of Kansas terminated the plaintiff's employment. The plaintiff claimed that the reason he was ultimately dismissed was because of his outspoken political conservatism and because he supported an unpopular candidate during a divisive dean search. One of his claims was a conspiracy claim under § 1983. To support the claim, he pointed to the fact that several law school faculty members met with administrators during the investigation and later signed a letter soliciting complaints from students. He believed such allegations were sufficient to show that the faculty members were acting in concert with the administrators to deprive him of his constitutional rights. The district court and the Tenth Circuit disagreed. The Tenth Circuit explained that the plaintiff presented it "with nothing more than conclusory allegations." Id. The court added:
We do not think it is reasonable to infer, for example, that because certain Law School faculty members met with certain administrators during the investigation, they were conspiring with one another and with the Hearing Committee who ultimately found against [the plaintiff]. Furthermore, there is no indication that the Hearing Committee members or the Regents were even aware of the divisive dean search or the candidate whom [the plaintiff] supported. [The plaintiff] has simply failed to carry his burden of alleging the facts necessary to support his claim of conspiracy on qualified immunity.
Id.
Similarly, here Mr. McCormick has not set forth specific facts establishing that the Attorney General defendants were conspiring with one another. Each of the three individuals Mr. McCormick alleges were involved in the conspiracy were employed by the Kansas Attorney General. Thus, it is not reasonable to infer that they were conspiring against Mr. McCormick simply because they launched an investigation against him. Moreover, Mr. McCormick does not set forth specific facts to support his conclusory allegation that the purpose of the investigation was to intimidate him, to interfere with his right of expression, and to harass him. In sum, much like the allegations in Tonkovich, the language in Mr. McCormick's proposed second amended complaint fails to support his claim of conspiracy. Accordingly, Mr. McCormick's objection to the magistrate judge's ruling is overruled.
The state defendants' papers also argue that the conspiracy claim would be futile because such a claim against government officials employed by a single governmental entity is barred by the so-called "intracorporate conspiracy doctrine." That doctrine provides that as members of the same office, a single legal entity, the Attorney General Defendants as a matter of law cannot conspire with one another as a matter of law. See, e.g., Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994). Because the court has found that the claim is deficient on other grounds, the court does not address this argument.
Denial of the Motion to Amend to Add an Injunction Claim Against the D.A. Defendants
The magistrate judge also denied Mr. McCormick's proposed amendment to add an injunction claim against the "D.A. defendants as to the new criminal case" on futility grounds. Specifically, the magistrate judge found that under Younger v. Harris, 401 U.S. 37 (1971) and its progeny, the court lacked jurisdiction to grant an injunction against pending state court criminal proceedings. Mr. McCormick objects to this ruling, arguing that his claim falls within the narrow "bad faith" exception set out in Phelps v. Hamilton, 59 F.3d 1058 (10th Cir. 1995). According to Mr. McCormick, the language in his proposed amendment alleges a bad faith prosecution because he states that the Douglas County District Attorney "is seeking to criminalize protected expressions made by plaintiff on 7/13/02." The court cannot agree that such language places his prosecution within the "bad faith" exception.
Case No. 02-CR-1284 pending in the District Court of Douglas County, Kansas.
The court notes that the magistrate judge's order does not address the "bad faith" exception to Younger. The state defendants point out that Mr. McCormick's original motion to amend the first amended complaint did not raise the "bad faith" exception argument; the issue was not raised until his reply brief. Because the issue was not raised in the original motion to amend, it is questionable whether that issue is properly appealable. Nonetheless, because the court is reviewing the motion to amend de novo and the court finds the "bad faith" exception argument unpersuasive, the court will address the argument on the merits.
The magistrate judge's order does explain why Younger abstention applies to the facts here and this court agrees with the magistrate judge's reasoning. Mr. McCormick apparently concedes that the magistrate judge's order properly found that Younger abstention applies because his objection is limited to explaining how the "bad faith" exception also applies. Accordingly, the court will proceed on the assumption that Younger abstention applies to prevent the court from enjoining the state court prosecution unless the "bad faith" exception is applicable to the facts here.
Younger permits federal courts to enjoin a pending state criminal prosecution if it was: (1) brought in bad faith or to harass; (2) based on a flagrantly and patently unconstitutional statute; or (3) linked to any other such "extraordinary circumstance creating a threat of `irreparable injury' both great and immediate." Phelps v. Hamilton, 59 F.3d 1058, 1063-64 (10th Cir. 1995) (citing Younger, 401 U.S. at 53-54; Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975)).
In contemplating whether a federal plaintiff meets one of the exceptions to Younger abstention, district courts need to balance the necessity of safeguarding an individual's exercise of his or her constitutional rights with a prosecutor's discretion in choosing certain actions for criminal prosecution. Id. at 1065. Additionally, federalism concerns generally guard against federal court intervention into state prosecutions. Id. "These twin rationales of respecting prosecutorial discretion and federalism explain why the exceptions to Younger only provide a `very narrow gate for federal intervention.'" Id. (quoting Arkebauer v. Kiley, 985 F.2d 1351, 1358 (7th Cir. 1993)).
In this action, Mr. McCormick alleges that his case fits within the first exception to Younger abstention regarding a pending state court prosecution brought in bad faith or to harass. The three factors the Tenth Circuit has indicated courts should consider in determining whether a prosecution is commenced in bad faith or to harass are: "(1) whether it was frivolous or undertaken with no reasonably objective hope of success, (2) whether it was motivated by the defendant's suspect class or in retaliation for the defendant's exercise of constitutional rights, and (3) whether it was conducted in such a way as to constitute harassment and an abuse of prosecutorial discretion, typically through the unjustified and oppressive use of multiple prosecutions." Id. at 1065 (internal quotations and citations omitted).
The Tenth Circuit has instructed that there is a heavy presumption against federal intervention, and to overcome that presumption the plaintiff cannot rest on "mere allegations; rather, the federal plaintiff must prove bad faith or harassment before intervention is warranted." Id. at 1066 (emphasis in original). As the Supreme Court stated in Perez v. Ledesma, a companion case to Younger, federal courts should limit federal intervention to "cases of proven harassment or prosecutions undertaken by state officials without hope of obtaining a valid conviction." 401 U.S. 82, 85 (1971); see also Phelps, 59 F.3d at 1066 (quoting Perez). With these general principles in mind, the court turns to Mr. McCormick's argument that the prosecution pending against him is in bad faith because it is motivated by a desire to retaliate against him for exercising his constitutional rights.
Specifically, Mr. McCormick alleges in his proposed second amended complaint that the prosecutor "is seeking to criminalize protected expressions made by plaintiff." In his current motion, he argues that the "prosecution was initiated and is being continued in retaliation for plaintiff's making of protected expressions, and, at least impliedly, that such prosecution has no hope of success." The proposed second amended complaint provides a detailed explanation of the events surrounding Mr. McCormick's arrest on July 13, 2002. In short, Mr. McCormick was arrested for obstructing legal process or official duty in violation of K.S.A. § 21-3808 while he protested and videotaped a police stop.
K.S.A. § 21-3808. Obstructing legal process or official duty.
(a) Obstructing legal process or official duty is knowingly and intentionally obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty.
To determine whether the prosecution is frivolous or undertaken with no reasonably objective hope of success, it is necessary to define the crime of obstructing legal process or official duty. In State v. Parker, 236 Kan. 353, 690 P.2d 1353 (1984), the Kansas Supreme Court discussed the "essential nature" of that offense. Id. at 360, 690 P.2d at 1359. The court explained that the "use of actual force is not always necessary to constitute an offense," but there must be "some actual overt act of obstruction." Id. "To obstruct means to interpose obstacles or impediments, to hinder, impede, or in any manner intrude or prevent." Id. In State v. Latimer, 9 Kan. App. 2d 728, 687 P.2d 648 (1984), the Kansas Court of Appeals explicitly stated that section 21-3808 applies to oral statements of a defendant because "the apparent intent of the statute is to make criminal the willful obstruction by any means of an officer acting in the discharge of his official duty." Id. The court, quoting a Georgia case, stated that the statute is intentionally broad to cover actions which might not otherwise be unlawful, but which obstruct or hinder law enforcement officers in carrying out their duties. Id. The court qualified this statement by adding that not every action which incidentally hinders an officer is a crime; the accused must have willfully and knowingly hindered or obstructed the officer. Id. In short, then, obstruction of legal process or official duty requires conduct that "must have substantially hindered or increased the burden of the officer in carrying out his official duty." Parker, 236 Kan. at 364, 690 P.2d at 1362. Beyond that requirement, it appears that whether an obstruction has occurred depends on the particular facts of each case.
Mr. McCormick implies in his proposed second amended complaint that he was not interfering with the traffic stop. The second amendment complaint states, however, that Mr. McCormick was "verbally criticizing and heckling" a police officer who arrived at the scene of the police stop. In response, the officer arrested Mr. McCormick. Because Mr. McCormick concedes that he was intentionally taking affirmative steps to thwart the officer's police stop, the court cannot say that Mr. McCormick's prosecution is frivolous or undertaken with no reasonably objective hope of success. It appears that there is at least a colorable argument that Mr. McCormick's actions constituted obstruction of legal process or official duty. While he contends he was merely protesting the police stop, his allegations provide a basis for concluding that his antagonizing actions may have substantially hindered or increased the burden of the officer in carrying out the traffic stop. Thus, the court cannot conclude that the prosecution is frivolous.
To determine whether Mr. McCormick's prosecution was in retaliation for his exercise of constitutional rights, the court looks to the prosecutor's motive. Mr. McCormick "must prove that `retaliation was a major motivating factor and played a dominant role in the decision to prosecute.'" Phelps v. Hamilton, 59 F.3d at 1066 (quoting Smith v. Hightower, 693 F.2d 359, 367 (5th Cir. 1982). Mr. McCormick fails to meet this burden. His conclusory allegations are clearly insufficient to sustain any finding that the arrest was part of an effort to harass him or that the arrest was otherwise undertaken in bad faith. More significantly, Mr. McCormick alleges nothing to support a finding of bad faith in the prosecutor's independent decision to prosecute him for obstruction of official duty under K.S.A. § 21-3808. In other words, the prosecutor's discretion in selecting certain actions for criminal prosecution will prevent federal intervention absent specific evidence that the prosecutor has brought the case in bad faith or to harass the plaintiff.
Finally, to the extent that Mr. McCormick is arguing that he needs only establish that he is raising a legitimate constitutional issue, he made that argument in a previous case in this district and it was rejected. McCormick v. State of Kansas, No. 00-4209-RDR, 2001 WL 83279, at * 2 (D.Kan. Jan. 5, 2001). This court concurs with the reasoning in that opinion. Mr. McCormick will be permitted to argue in his state criminal case that the state statute under which he is being prosecuted is unconstitutional. As such, the state judicial system provides Mr. McCormick with an avenue for vindicating his constitutional rights. In sum, a plaintiff may not merely allege that he or she is being prosecuted for engaging in action that he or she believes to be constitutionally protected; instead, the plaintiff must allege underlying facts that prove that the prosecution was undertaken in bad faith or to harass the plaintiff. Mr. McCormick has failed to meet that burden. Accordingly, Mr. McCormick's objection to the magistrate judge's order is overruled.
Denial of the Motion to Strike All Documents Filed by M.J. Willoughby
Finally, Mr. McCormick objects to the magistrate judge's ruling denying Mr. McCormick's motion to strike all documents filed by defendant M.J. Willoughby. Mr. McCormick argued in his motion to strike that because Ms. Willoughby is individually named as a defendant and has been sued for money damages, yet has entered an appearance on behalf of defendants other than herself, she is in violation of Rule 1.7 of the Kansas Rules of Professional Conduct. The magistrate judge denied Mr. McCormick's motion for the following five reasons: (1) the motion and supporting memorandum fail to comply with the requirements of D. Kan. Rule 7.6 as to form; (2) plaintiff fails to cite any authority which supports the relief requested or supports his position that Ms. Willoughby has violated the above-cited ethical rule; (3) there is no factual basis for plaintiff's assertion that Ms. Willoughby has a financial interest in the matter because under the Kansas Tort Claims Act, K.S.A. § 75-6101, et seq., any judgment obtained against Ms. Willoughby will be paid by the State of Kansas; (4) there is no conflict of interest between Ms. Willoughby and any other of the State defendants because the defendants share a common interest, a common employer, and compatible positions in this litigation; and (5) this motion is used merely as a litigation tactic. Mr. McCormick now objects to that ruling, questioning what will happen during discovery or at trial if Ms. Willoughby is required to testify. More specifically, he argues that if Ms. Willoughby testifies in the instant case while she is representing other parties it will be in violation of Kansas Model Rule of Professional Conduct 3.7.
Mr. McCormick's objection does not directly challenge the magistrate judge's ruling. Instead, it raises the additional issue of how the case will proceed if Ms. Willoughby is required to testify as a witness. Because Mr. McCormick's objection does not address any of the five reasons the magistrate judge provided for denying Mr. McCormick's motion to strike, and because the court finds that the magistrate judge's reasons are not clearly erroneous or contrary to law, the court overrules Mr. McCormick's objection.
The state defendants point out that Mr. McCormick raised the issue of whether Rule 3.7 would be violated for the first time in his reply brief. Generally, a party is prohibited from raising new arguments and issues in a reply brief, Boilermaker-Blacksmith Nat. Pension Fund v. Gendron, 67 F. Supp.2d 1250, 1257 n. 4 (D.Kan. 1999), and a court should not consider issues first raised in a reply brief, Plotner v. AT T Corp., 224 F.3d 1161, 1175 (10th Cir. 2000). Accordingly, the magistrate judge correctly declined to address the argument regarding Rule 3.7 because it was first advanced in Mr. McCormick's reply brief. United States ex rel. Hafter D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 n. 5 (10th Cir. 1999).
Finally, although Mr. McCormick has not properly raised the issue of whether Ms. Willoughby would violate Rule 3.7 if she testified at a deposition or trial, the court notes that it would nonetheless reject the argument at this time because it is premature. At this early stage in the litigation, Rule 3.7 would not prevent Ms. Willoughby's involvement. Moreover, Mr. McCormick has not established that Ms. Willoughby would be required to testify, and he has not identified which party would call her as a witness. Accordingly, the court overrules Mr. McCormick's objection to the magistrate judge's order.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff Dale McCormick's objections to the magistrate judge's order (Doc. 128) are overruled, plaintiff Dale McCormick's motion for a preliminary injunction against District Attorney Kenney (Doc. 151) is denied, and plaintiff Dale McCormick's motion for an expedited ruling (Doc. 150) is moot. Mr. McCormick shall file and serve a revised second amended complaint, consistent with the magistrate judge's September 6, 2002 order, by January 31, 2002.
IT IS SO ORDERED