Opinion
Case No. 02-2135-JWL
October 9, 2002
MEMORANDUM ORDER
This matter comes before the court on pro se plaintiff Dale McCormick's motion to reconsider the court's September 9, 2002, ruling denying plaintiff's motion for preliminary injunction (Doc. 129). For the reasons set forth below, plaintiff's motion to reconsider is denied.
Plaintiff's motion is labeled: "Motion to Alter 9/9/02 Order or Otherwise Grant Relief From Same, or in the Alternative to Reconsider Same in Light of Additional Authority." As counsel for defendant City of Lawrence points out, the motion is properly characterized as a motion to reconsider, governed by Rule 7.3 of the Rules of Practice and Procedure for the United States District Court for the District of Kansas.
The court made its ruling during a telephone conference with the parties on September 9, 2002. The court memorialized the ruling with a brief, written order dated September 10, 2002.
• Facts
Plaintiff filed this 42 U.S.C. § 1983 lawsuit against the following defendants: the City of Lawrence and a number of its police officers ("city defendants"), the Douglas County District Attorney and Assistant District Attorney, and three agents of the Attorney General of the State of Kansas ("state defendants"). In his first amended complaint, plaintiff alleges that the actions of the police officers of the City of Lawrence violated his First Amendment rights on several occasions. In his complaint, he seeks money damages from the police officers for these alleged violations. Notably, plaintiff does not ask for injunctive relief against the City of Lawrence or its police officers nor does he set forth any facts relating to future constitutionally protected activities he may engage in. Instead, his allegations are limited to past events when police actions allegedly violated his First Amendment rights.
Plaintiff's first amended complaint also includes other claims not relevant here.
On July 16, 2002, plaintiff filed a motion for a preliminary injunction. The motion asks for the following equitable relief:
A preliminary injunction against defendant municipality and its agents requiring the same to (1) at all times stay 10 or more feet away from plaintiff and any person who is with plaintiff at any time plaintiff is protesting police activity within the confines of the defendant municipality; (2) to not make any attempt whatever to interfere with, obstruct, hinder or otherwise impede plaintiff or any person with plaintiff when plaintiff is protesting police activity within the confines of defendant municipality; or (3) to not verbally or physically threatening plaintiff with arrest or violence, nor perpetrate the same, in any way at any time plaintiff is protesting police activity, unless (a) plaintiff utters actual "fighting words" to some private individual, (b) plaintiff physically interferes with the policy activity he is protesting, or (c) plaintiff utters speech which incites immediate, actual and not hypothetical, objective as opposed to subjective, lawlessness; and that defendant municipality and its agents adhere to such order under direct penalty of contempt until this Court reaches the merits of plaintiff's First Amendment claims herein.
Plaintiff's motion also asks the court for a preliminary injunction in two other respects. First, require the City of Lawrence to immediately return to plaintiff a Sony digital camcorder, an Olympus micro-cassette recorder, and a Sony personal recording device, each of which were taken from plaintiff by the police on July 14, 2002, and not returned. Second, enjoin the Douglas County District Attorney from prosecuting any legal claim against plaintiff relating to confrontations with the police on January 1, 2002, and July 14, 2002. The court does not address these portions of the preliminary injunction as the court's September 9, 2002, ruling did not address these other two requests. Neither, however, are the proper subject of a preliminary injunction request for the same reasons as apply to plaintiff's other request.
In his memorandum in support of his motion for preliminary injunction, plaintiff sets forth a number of additional facts crucial to his motion. Specifically, he states that in the future he intends to engage in a number of police protests similar to his previous protests and that unless the court issues a preliminary injunction, his First Amendment rights will be compromised.
On July 17, 2002, the court held a telephone conference regarding plaintiff's motion for a preliminary injunction. At that time, the court raised several concerns regarding plaintiff's motion for preliminary injunction, including whether plaintiff has standing to bring the motion. Additionally, counsel for the state defendants pointed out that plaintiff failed to ask for injunctive relief in his complaint. In response, plaintiff stated that he was in the process of filing a second amended complaint that would address some of the concerns. At the end of the telephone conference, the court instructed the defendants to respond to the preliminary injunction motion so that the issues could be briefed and the court could move forward in attempting to resolve the matter.
After reviewing the parties' papers, the court became satisfied that plaintiff did have standing to bring his motion and assumed that the other potential problems with the motion would be corrected in plaintiff's newly-filed second amended complaint. Thus, the court anticipated going forward with a hearing on the motion, scheduling argument on September 11, 2002. To clarify the procedures for the hearing, the court held a telephone conference on September 6, 2002. Shortly after the telephone conference, however, Magistrate Judge O'Hara issued a ruling on plaintiff's motion to amend the first amended complaint. In his order, Magistrate Judge O'Hara noted that plaintiff had not asked to amend his complaint to include a claim for permanent injunctive relief against the City of Lawrence or its police officers.
Based on this new information, the court conducted another telephone conference with the parties on September 9, 2002. The court explained that it was cancelling the upcoming hearing and denying plaintiff's preliminary injunction because plaintiff had not amended his complaint to include facts which would give rise to a claim for permanent injunctive relief against the police conduct of which plaintiff complains in the first numbered portion of his motion for preliminary injunction. The court set forth the following explanation for its ruling on the record:
The purpose of a preliminary injunction is to preserve the status quo pending a full trial on the merits so that the relief ultimately obtained will be meaningful. Here, however, the plaintiff only seeks damages for the alleged transgressions by the police and there is no request for an order from this court to prohibit such alleged misconduct in the future. Thus, there is no need to protect the status quo pending the ultimate determination on damages and plaintiff is not entitled to a preliminary injunction based upon the amendments sought and granted by the magistrate judge and plaintiff's first amended complaint. Ms. Willoughby raised this issue at the telephone hearing in July, noting that injunctive relief had not been pled for in the first amended complaint. It was the court's expectation when Mr. McCormick said he was seeking to amend again that he would address the alleged police misconduct issues by way of a request for injunctive relief; he didn't. So, we have no basis to proceed.
The following day, the court issued a short order stating that for the reasons set forth on the record, the court denies the preliminary injunction motion. In response, plaintiff filed a motion to reconsider the court's ruling.
• Standard for Motion to Reconsider
Rule 7.3 of the Rules of Practice and Procedure for the United States District Court for the District of Kansas allows for a motion to reconsider if it is filed within ten (10) days of the entry of the order concerning which reconsideration is sought. The standard governing a motion to reconsider is well-established. Judge Belot succinctly stated it in Comeau:
A motion to reconsider is appropriate where the court has obviously misapprehended a party's position or the facts or applicable law, or where the party produces new evidence that could not have been obtained through the exercise of due diligence. [R]evisiting the issues already addressed is not the purpose of a motion to reconsider, and advanc[ing] new arguments or supporting facts which were otherwise available for presentation when the original . . . motion was briefed is likewise inappropriate.
Comeau v. Rupp, 810 F. Supp. 1172, 1174-75 (D.Kan. 1992) (citations and internal quotations omitted).
• Analysis
In his motion to reconsider, plaintiff contends that the court's ruling denying his motion for preliminary injunction for failing to request a permanent injunction was an error of law. Specifically, plaintiff first argues that a claim for permanent injunctive relief is unnecessary because any monetary judgment entered against the city defendants would dissipate the threat of future injury. Next, plaintiff points out that American Jurisprudence 2d ("Am. Jur.2d") specifically states "that a court may grant injunctive relief in the absence of an express prayer therefor." Third, plaintiff contends that the court erred by relying on the reasoning that it did because the city defendants waived any argument relied on by the court by not raising the issue. Finally, plaintiff argues that the open-ended prayer for any other or further relief the court may deem just, equitable or appropriate contained in his first and second amended complaints should suffice to meet the court's requirement of a prayer for permanent injunctive relief.
Plaintiff's arguments, in large part, are a reiteration of issues he raised in the September 9, 2002, telephone conference with the court. At that time, the court rejected plaintiff's position on these issues. The court did not delve into great detail in explaining its reasoning or provide legal support for its explanation; however, the court will now elaborate on its ruling and explain why plaintiff's arguments and authority do not alter the outcome here.
As the court explained in its September 9, 2002, ruling, the purpose of a preliminary injunction is to preserve the status quo and prevent irreparable harm until the court has an opportunity to rule on the merits of the lawsuit. Resolution Tr. Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992); Buca, Inc. v. Gambucci's, Inc., 18 F. Supp.2d 1193, 1200 (D.Kan. 1998). Therefore, "a party moving for a preliminary injunction must necessarily establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint." Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (citing Penn v. San Juan Hosp. Inc., 528 F.2d 1181, 1185 (10th Cir. 1975)). Put another way, as the Tenth Circuit explained in Penn, a plaintiff must provide "clear proof that he [or she] will probably prevail when the merits are tried, so to this extent there is a relationship between temporary and permanent relief." 528 F.2d at 1185. In Devose, the Eighth Circuit affirmed the district court's denial of a preliminary injunction motion, explaining that "[i]t is self-evident that [plaintiff's] motion for temporary relief has nothing to do with preserving the district court's decision-making power over the merits of [plaintiff's] 42 U.S.C. § 1983 lawsuit."
Similarly, here plaintiff has failed to show that issuing a preliminary injunction would protect his rights and prevent irreparable harm until the court has an opportunity to rule on his First Amendment claims. The First Amendment claims contained in plaintiff's amended complaint rest on his allegations of police misconduct in the past. As relief for those claims, plaintiff seeks only money damages. On the other hand, the temporary relief plaintiff seeks is supported only by the allegations in his preliminary injunction motion. There he states that he intends to continue to protest policy activity in the future and that without the court's protection his First Amendment rights are in jeopardy. Therefore, much like Devose, plaintiff's motion for temporary relief has nothing to do with preserving the court's decision-making power over the merits of his First Amendment claims.
Put another way, it would make little sense to provide plaintiff with temporary relief that would dissipate at the point the court decides the merits of the lawsuit. Even if plaintiff prevails on his First Amendment claims, he will be awarded only money damages. After the trial, the preliminary injunction would dissolve and plaintiff would no longer be provided the protection he contends in his preliminary injunction motion that he needs to carry out his on-going protest of police stops. In order to protect his First Amendment rights, plaintiff must plead facts in his complaint that would support a claim for permanent injunctive relief. Absent such allegations, the court is without power to issue temporary relief. In sum, the court concludes that unless plaintiff amends his complaint to include facts that would support a prayer for a permanent injunction, a request for preliminary injunction is not needed to preserve plaintiff's rights until the merits of his First Amendment claim can be decided.
Having further explained its reasoning, the court turns to plaintiff's arguments. Plaintiff first contends that a permanent injunction is not necessary in this case because any monetary judgment entered against the city defendants would eliminate the threat of future injury. Plaintiff's conclusion rests on his assumption that once a judgment for monetary damages is entered against the city defendants declaring their previous actions unconstitutional, it is highly unlikely the city or its police officers would again undertake such activities. Therein lies the flaw in plaintiff's reasoning; any judgment plaintiff obtains against the city defendants would be limited to the facts of the case.
Plaintiff is claiming that police officers violated his First Amendment rights on a number of occasions by arresting him, as well as threatening to arrest him, for protesting police stops. In defense of these claims, the city defendants argue that plaintiff's actions violate city ordinances. As this case evolves, the court anticipates the offering of testimony and/or evidence regarding the parties' actions during each of these protests and ensuing arrests or threatened arrests. The outcome of each of the claims, therefore, hinges on the specific facts that occurred at each of the protests. In other words, the determination that the action taken by the police officers during any one of plaintiff's protests violated plaintiff's constitutional rights is limited only to that set of facts. It is unlikely that at some time in the future, if and when plaintiff again attempts to protest, that the exact facts alleged in these claims would again play out. Instead, the circumstances would likely change and the specific conduct of the plaintiff and the police officers would again have to be evaluated to determine whether plaintiff was deprived of his constitutional rights. Thus, short of plaintiff asking for a permanent injunction constraining police activity in some specific, bright-line manner, any judgment that plaintiff obtains for violation of his constitutional rights would be limited to the facts of that situation.
Plaintiff's point that Am. Jur.2d states "that a court may grant injunctive relief in the absence of an express prayer therefor" also does not alter the court's analysis. The passage from Am Jur.2d goes on to reiterate that "the failure to pray for an injunction is not fatal to the court's power to grant it when the complainant states facts showing the right to the relief and prays for restitution or any other relief the court may deem just and proper." 42 Am. Jur.2d Injunctions § 255 (2000). The court does not dispute the proposition stated in Am. Jur.2d. The passage, however, does not further plaintiff's argument. Plaintiff did not plead facts in his complaint that would show the right to a permanent injunction. Plaintiff's first amended complaint does not contain the facts set out in his preliminary injunction explaining that plaintiff intends to continue protesting police stops for some time and that absent the court's protection, his First Amendment rights may be compromised.
The court also disagrees with plaintiff's contention that defendants waived their right to rely on the reasoning provided by the court because they did not raise it in their papers. First, counsel for the state defendants was the first person to raise the point that a prayer for permanent injunction was not included in plaintiff's amended complaint. Thus, it was counsel for the defendant who raised the point. Moreover, the court's basis for denying the motion for preliminary injunction is the lack of subject matter jurisdiction over the motion. See Adair v. England, 193 F. Supp.2d 196, 200 (D.D.C. 2002) ("Even when a motion for a preliminary injunction is predicated on a complaint, if the motion raises issues different from those presented in the complaint, the court has no jurisdiction over the motion.") (citing Devose, 42 F.3d at 471); Leboeuf, Lamb, Green Macrae, LLP v. Abraham, 180 F. Supp.2d 65, 69 (D.D.C. 2001) (same). Of course, it is well-established that defects in subject matter jurisdiction may be raised sua sponte by the court at anytime. McAlester v. United Airlines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988).
Finally, the court rejects, for the reasons previously explained regarding plaintiff's citation to Am. Jur.2d, plaintiff's argument that his open-ended prayer for other relief the court may deem equitable could in some way be sufficient to support his claim for a permanent injunction. As plaintiff's own citation to Am. Jur.2d points out, plaintiff must plead facts to support the claim for such relief.
In sum, the court denies plaintiff's motion to reconsider because he has failed to show that the court made an error of law. As the court explained in the September 9, 2002, ruling, absent plaintiff pleading facts in his complaint that would support a claim for permanent injunctive relief, the court does not have the power to grant a preliminary injunction. This is not, for example, a situation where plaintiff is alleging that a one time event will occur and that unless the court issues a preliminary injunction his or her right to meaningful relief will be lost. Instead, plaintiff's complaint sets forth facts relating to events that have already occurred. Thus, based solely on those facts, plaintiff's First Amendment rights cannot be in jeopardy in the future. Unless plaintiff amends his complaint to include allegations that he plans to continue to engage in police protests and that without the court's protection his First Amendment rights are likely to be violated during those protests, the court cannot issue the temporary relief plaintiff requests.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion to reconsider the court's September 9, 2002, ruling (Doc. 129) is denied.
IT IS SO ORDERED this 9th day of October, 2002.