Opinion
No. CV-01-266-E-TGN.
October 21, 2003
ORDER
The parties have completed discovery as to Issue I. Pending before the Court are several defendants' renewed motions for summary judgment (Docket Nos. 392 and 397). In addition, Defendants have moved to strike Plaintiff's declarations in support of his opposition to their renewed summary judgment motions (Docket Nos. 401 and 404). Finally, one Defendant has renewed his motion for attorney's fees and costs as well. (Docket No. 404). The briefing on these motions is complete, the Court finds that oral argument will not be helpful, and the Court will therefore decide the motions on the briefs pursuant to Local Rule 7.1(d)(4). The Court will consider the motions in turn.
I. Docket No. 401: Defendants Teton County, Laura Lowery, and Ryan Kaufman's Motion to Strike Portions of the Plaintiff's Declaration
Defendants Teton County, Lowery, and Kaufman move to strike all but the first two paragraphs of Plaintiff's Declaration in Opposition to their motion for summary judgment, Docket No. 396. The court shall GRANT the motion in part and DENY it in part.
This case began in 2001. This Court has agreed to at least eight requests for extensions of time and has repeatedly notified Plaintiff of upcoming deadlines. In April of this year, the Court agreed to the stipulated discovery plan upon which the parties had agreed. Under that plan, the deadline for the completion of discovery as to Issue I was June 14, 2004. Plaintiff filed no objections before that deadline. This Court then filed an order on July 7, 2004, noting that the deadline for discovery objections had passed, that dispositive motions were due September 1, 2004, and that parties had ten days to file any objections they might have to the order. Plaintiff filed no objections.
Now, months after the deadline he himself set with the defendants, and months after the Court's order calling for objections to the dispositive motion deadline, Plaintiff recites a new parade of personal difficulties and attempts to raise discovery issues in Paragraph Three of his declaration. Defendants have moved to strike that paragraph and the Court hereby grants that motion. Any objections to discovery as to Issue I are untimely and have been waived. Although the Court is not unsympathetic to Plaintiff's personal difficulties, the Court will not accept Plaintiff's after-the-fact use of those difficulties to attempt to excuse his failure to meet yet another deadline. The Court has given Plaintiff ample opportunity to file objections, even taking into account his personal circumstances.
In Paragraph Five, Plaintiff seeks to incorporate previous filings into his declaration, once again violating this Court's express instructions. Defendants have moved to strike that paragraph and the Court shall grant that motion. The final paragraph describes Plaintiff's intent to file various motions and is irrelevant. Defendants have moved to strike that paragraph, and the Court grants their motion. Finally, Plaintiff appends various documents to his declaration. The Court shall address each in turn.
First, as Attachment A, Plaintiff appends portions of his August 10, 2001 declaration (Docket No. 44). Defendants suggest that this Court has already struck the declaration. That does not appear to be correct. However, the Court has repeatedly struck declarations that were not based on Plaintiff's personal knowledge and consisted entirely of argument. Because this declaration also does not reflect Plaintiff's personal knowledge and consists entirely of argument, the Court will strike it now. Because the attachments to that declaration, which are also statements by Plaintiff, have the same problems, this Court will strike those as well. Thus, the Court strikes the first set of documents Plaintiff appends.
Second, as Attachment B, Plaintiff appends Defendant Luke's answers to his interrogatories. Although this document is of little help to Plaintiff, it is legitimate discovery from this case. Accordingly, this Court declines to strike it and will consider it.
Third, as Attachment C, Plaintiff appends memos produced by Defendant Luke in answer to Plaintiff's request for production. Again, the documents appear to be of little help to Plaintiff, as discussed below, but they are discovery from this case. The Court will consider them.
Finally, as Attachment D, Plaintiff appends a print-out from an Idaho website. It appears to relate to a dissolved corporation, though its exact meaning is difficult to discern. It lists the registered agent for the corporation as Defendant Lowery. After describing the document, Plaintiff asks the Court to take judicial notice of various civil cases that Plaintiff asserts were filed against Lowery's brother. It is entirely unclear what relevance, if any, these alleged actions have to the current action or to the motion at hand. Accordingly, the Court will strike the final document Plaintiff appends and decline to take judicial notice as Plaintiff requests.
Thus, the Court GRANTS Defendants' Motion to Strike (Docket No. 401) in part and DENIES it in part. The Court strikes Paragraphs 3, 5, and 6. As to Paragraph 4, the Court strikes Sections A and D as well as the appended documents those sections describe.
II. Defendant Colin Luke's Motion to Strike Plaintiff's Declaration (Docket No. 404)
Defendant Luke moves to strike a different declaration by the Plaintiff, Docket No. 403. The Court shall grant his motion. The declaration does not comply with this Court's previous orders, consists entirely of argument and allegations, and is not based on Plaintiff's personal knowledge. Accordingly, this Court GRANTS Defendant's Motion to Strike (Docket No. 404).
III. Docket Nos. 392 and 397: Defendants Teton County, Laura Lowery, and Ryan Kaufman's Renewed Motion for Summary Judgment; Defendant Colin Luke's Renewed Motion for Summary Judgment
Defendants renew their motions for summary judgment, arguing that no genuine issues of material fact exist as to Issue I (the who, what, when, where issue). Because the record reveals that no genuine issue of material fact exists regarding the allegations of a conspiracy among the defendants, and all the admissible evidence before the Court shows that no conspiracy existed, the Court shall GRANT the motions for summary judgment and dismiss this case.
A. Plaintiff's Claims
Plaintiff's Second Amended Complaint alleges that Defendants entered into a conspiracy to discriminate against him with the object of depriving him of his constitutional rights. According to Plaintiff, Defendants discriminated against him by ignoring his complaints against the following people: Oleson, Fitzgerald, Lyle, McLean, Harris, Miller, and Woelk. Defendant claims that Kaufman refused to investigate and make reports regarding his complaints about those people, that Lowery refused to prosecute them, and that Luke supervised Kaufman and Lowery and otherwise participated in the conspiracy.
Plaintiff alleges that the defendants also conspired to obstruct his access to the federal court by intimidating witnesses and through "formal litigation discovery." He alleges that Defendant Lowery tried to cover up the conspiracy by denying Plaintiff his right to record a deed for Jack McLean and that she instructed both Kaufman and various county commissioners to lie.
According to Plaintiff, Defendants' religious animus motivated the Defendants. Defendants, Plaintiff asserts, all are L.D.S. and he is not. In addition, Plaintiff asserts that Defendant Lowery has conflicts of interest stemming from her role as prosecutor and private attorney that motivated her participation in the alleged conspiracy as well. Defendants' motivation comprises Issue 2, the issue on which discovery has not yet been conducted. Accordingly, the Court will not consider the issue of motivation at this time.
B. Defendants' Motions
Defendants Kaufman and Lowery assert that the record shows that no genuine issue of material fact exists as to the existence of a conspiracy, and the fact that they have properly investigated and prosecuted Defendant's complaints. See Docket No. 393. Defendant Luke asserts that the record shows that no genuine issue of material fact exists with respect to the existence of a conspiracy, as to his participation in such a conspiracy, or as to his supervision of Kaufman or Lowery. See Docket No. 397.
The affidavits of all the defendants support their assertions regarding the absence of any evidence of a conspiracy. Moreover, the affidavits support their contentions that Plaintiff's complaints were properly investigated, prosecuted, and adjudicated, where appropriate.
In Lowery's affidavit, she asserts that there have "been no discussions, plan, or conspiracy of any nature between [her], Sheriff Ryan Kaufman, and Judge Colin Luke with respect to Plaintiff or any of Plaintiff's complaints of alleged criminal activity." See Docket No. 329. Moreover, she asserts that there is no County policy to "ignore or disregard such complaints." She supports these broad statements with details, noting that she has prosecuted both Fitzgerald and McLean for malicious injury to property and grand theft, respectively, based on Plaintiff's complaints; that the County obtained a special prosecutor and investigator from the Attorney General's Office to investigate Plaintiff's complaints; and that she knows that the Sheriff's office has investigated numerous complaints made by Plaintiff. She notes that Plaintiff has also filed civil actions in connection with some of his complaints. Id.
In Kaufman's affidavit, he asserts that he, and to his knowledge, no other member of the Teton County Sheriff's Office, has never engaged in "any discussions, plan, or conspiracy with Judge Colin Luke, Prosecutor Laura Lowery, or any other individual with regard to discriminating against the Plaintiff, or ignoring complaints regarding alleged criminal conduct." See Docket No. 330. He also asserts that Teton County has no policy of disregarding any individual's complaints or discriminating against any individual. He notes that Plaintiff "has been involved in numerous complaints" in the last few years, both as a victim and as a perpetrator. He asserts that "[s]ome of the complaints have resulted in prosecution" for which the "Sheriff's Office has provided assistance to the Prosecutor's Office as needed" while others were deemed "civil disputes between Plaintiff and other individuals for which Plaintiff was advised to seek civil relief." Id.
In Colin Luke's affidavit, the Judge describes the cases in which Plaintiff has appeared before him in his position as a magistrate judge. See Docket No. 325. He asserts that he has not engaged in any conspiracy regarding the investigation or prosecution of Plaintiff's complaints and has "never dismissed or otherwise refused to allow any criminal charges leveled by Mr. Bach to be brought in [his] court." Id. Finally, he asserts that he has never discussed what to do with Plaintiff's complaints or instructed either Kaufman or Lowery regarding those complaints. Id.
The Defendants have satisfied their initial burden on summary judgment of marshaling evidence that shows that no genuine issue of material fact exists as to (a) the allegations of a conspiracy among Defendants, and (b) the allegations that Defendants failed to investigate, prosecute, and/or adjudicate Plaintiff's complaints. See Celotex v. Catrett, 477 U.S. 317, 323 (1986). Accordingly, the Court turns to the Plaintiff's responses, noting that he may not "rest upon the mere allegations or denials of the adverse party's pleadings," and must "set forth specific facts showing that there is a genuine issue for trial." See FED.R.CIV.P. 56(e).
C. Plaintiff's responses
The Plaintiff's responses fall far short of establishing that genuine issues of material fact exist as to the existence of the alleged conspiracy. In support of his claim that a conspiracy existed, Plaintiff points to three memoranda that Colin Luke produced during discovery. See Docket No. 396, Attachment C. An examination of those three documents reveals nothing that supports Plaintiff's claims.
The first document is a memorandum from Colin Luke to Defendant Kaufman. The memo notes that a copy was sent to Defendant Lowery as well. Other than establishing that the three defendants occasionally communicate, the memo establishes nothing that furthers Plaintiff's claims. In the memo, Judge Luke notes that he received uniform citations signed by citizens but not by a law enforcement officer, thereby violating a local rule which requires that an officer investigate and sign such a citation.
To the extent that the memorandum might conceivably relate to citations signed by the Plaintiff, it actually undermines his claim. Defendant Luke, one of the alleged conspirators, is making suggestions to Defendant Kaufman regarding the proper form of such citations, not agreeing with the incorrect form.
The second document lists routine problems involving citizens who mistakenly sought court advice on matters with which the court could not help them, apparently following the recommendations of members of the Sheriff's Office. Judge Luke sought to correct any misapprehension regarding what the court could and could not do, and asked Sheriff Kaufman to inform his deputies.
Finally, the third document consists of a letter from Colin Luke to an attorney and the Teton County Sheriff, Dave Oveson, noting that officers must list subsections when they issue citations for violating the city dog ordinance. The letter also asks whom the clerk should notify if a city ordinance is cited and if a county ordinance is cited.
The above-described documents appear to the Court to be routine communications regarding day to day operational matters among a state magistrate judge, the Sheriff's office, and an attorney. They clear up small misunderstandings and suggest possible solutions that will make everyone's work easier. They in no way indicate judicial "intermeddling and intrusiveness" in the work of law enforcement, as Plaintiff claims. See Docket No. 395. And they in no way support Plaintiff's claims or show that a genuine issue of material fact exists with regard to those claims. Indeed, the documents appear to have nothing to do with Plaintiff.
Finally, Plaintiff relies on documents that the Court struck above. Namely, he cites the print-out from the Idaho state website. See Docket No. 396, Attachment D. The Court notes that, because the document has been struck, the Court will not consider it. However, even if the court had not struck the document, the Court notes that it would in no way substantiate Plaintiff's claim. The mere fact that Defendant Lowery is listed as a corporate officer of an Idaho corporation establishes nothing.
Accordingly, the Court concludes that summary judgment is warranted as to Plaintiff's claim that the Defendants conspired to ignore his complaints, failed to investigate or to prosecute them, and that Defendant Lowery urged County employees to perjure themselves. The Defendants have established that no genuine issue of material fact exists regarding Plaintiff's claim that they conspired to ignore his complaints, to fail to investigate and to prosecute those complaints, and to interfere with his access to this Court.
IV. Conclusions
The conspiracy claim underlies Plaintiff's entire complaint. Thus, the Court's grant of summary judgment as to that claim necessarily resolves the entire case. The Court therefore need not address the motivational issues reserved as Issue 2 and will DISMISS this case in a separate order.
The Court has made every attempt to give Plaintiff, a pro se litigant, a fair opportunity to make any genuine claims he might have had, to state them in language that would allow both the Court and Defendants to comprehend his complaints and address them appropriately, and to give him all the leeway that the Federal Rules allow. The Court notes that despite repeated opportunities to restate and clarify his claims, most of the defendants Plaintiff originally named were dismissed because Plaintiff was unable to state any claim against them. Many of the defendants were public officials, including one law clerk, whose only "offense" was to have performed their official duties. Moreover, despite the opportunity to engage in discovery with respect to the limited number of defendants against whom he arguably stated possible claims, Plaintiff ultimately came up with nothing. His claims appear to have been frivolous all along.
The Court takes judicial notice of the fact that Plaintiff has filed at least two other lawsuits in federal court in the last several years. One of those cases involved many of the same defendants; the other also involved officials whose "offense" was merely to have performed their official duties. The Court notes that, if Plaintiff persists in filing unfounded claims against public officials, the Court will not hesitate to issue a vexatious litigant order pursuant to its power under the All Writs Act, 28 U.S.C. § 1651(a), and the procedures outlined by the Ninth Circuit in De Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir. 1990).
Defendant Luke has renewed his motion for attorney's fees and costs. See Docket No. 397. The Court is inclined to grant reasonable fees and costs to the Defendant pursuant to 42 U.S.C. § 1988(b). However, the Court requires information regarding the fees and costs that Defendant has reasonably incurred. Accordingly, the Court shall defer ruling on Defendant's motion until he files documentation supporting his claim.
The Court previously denied many other Defendants' motions for fees and costs without prejudice to their renewal. At this time, parties wishing to renew their motions or to file initial motions for fees and costs should do so. They, too, should file documentation supporting their claims.
Accordingly, the Court GRANTS Defendants' summary judgment motions in full and shall DISMISS this case.
NOW, THEREFORE, IT IS HEREBY ORDERED:
Defendants' Motion to Strike Plaintiff's Declaration (Docket No. 401) is GRANTED in part and DENIED in part;
Defendant Luke's Motion to Strike Plaintiff's Declaration (Docket No. 404) is GRANTED;
a ruling on Defendant Luke's Renewed Motion for Attorney's Fees and Costs (Docket No. 397) is DEFERRED, pending submission of supporting documentation showing reasonable fees and costs, and
Defendants' Renewed Motions for Summary Judgment (Docket Nos. 392 and 397) are GRANTED.
The Court shall therefore DISMISS this case in a separate judgment.