Summary
holding that a restriction requiring the plaintiff to communicate with public officials only in writing did not violate the First Amendment
Summary of this case from Fey v. WashingtonOpinion
No. 00-4067-SAC
May 1, 2001
MEMORANDUM AND ORDER
The case comes before the court on the defendants' motion to dismiss, for sanctions and for permanent injunction (Dk. 4); the defendants' motion to strike the plaintiff's reply to the defendants' reply (Dk. 31); the plaintiff's motion to strike the defendants' additional reply (Dk. 35); the plaintiff's motion to strike defendants' additional suggestions (Dk. 37 ); the plaintiff's motion for default judgment (Dk. 38); and the defendants' motion for leave to file supplemental pleading (Dk. 40). After the filing of the defendants' motion to dismiss, the magistrate judge, acting on the defendants' motion, stayed all discovery and the deadlines set out in the initial order. (Dk. 22). Less than a week later, the plaintiff filed an amended complaint. (Dk. 24). The defendants moved to strike the amended complaint but implicitly withdrew their motion and the magistrate judge later formally denied it. (Dk. 33).
MOTION TO DISMISS (Dk. 4).
Defendants are "not . . . required to file a new motion to dismiss simply because an amended pleading was introduced while their motion was pending. If some of the defects raised in the original motion remain in the new pleading, the court simply may consider the motion as being addressed to the amended pleading." 6 Charles A. Wright, Arthur R. Miller Mary K. Kane, Federal Practice and Procedure § 1476 p. 558 (1990); see, e.g. Riebe v. E-Z Serve Convenience Stores, Inc., 2000 WL 1566516, at *2 (S.D.Ala. Sept. 29, 2000); Jordan v. City of Philadelphia, 66 F. Supp.2d 638, 641 n. 1 (E.D.Pa. 1999); Tensor Group, Inc. v. Global Web Systems, Inc., 1999 WL 617818, at *1 (N.D.Ill. Aug. 11, 1999); Keith v. U.S. Airways, Inc., 994 F. Supp. 692, 693-94 n. 1 (M.D.N.C. 1998); Holmes v. National Football League, 939 F. Supp. 517, 522 n. 7 (N.D.Tex. 1996). The court will treat the pending motion to dismiss as addressed to the plaintiff's amended complaint, because it contains the same deficiencies as the original complaint.
RULE 12(b)(6) STANDARDS
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993); see Hospice of Metro Denver, Inc. v. Group Health Ins. of Oklahoma, Inc., 944 F.2d 752, 753 (10th Cir. 1991) ("Dismissal of a case pursuant to Fed.R.Civ.P. 12(b)(6) requires the legal determination that the plaintiff can prove no set of facts in support of his claim to entitle him to relief.") (citations omitted)). All well-pleaded factual allegations in the complaint must be accepted as true, see Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 870 (10th Cir. 1992), and viewed in the light most favorable to the nonmoving party. Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472 (10th Cir. 1990) ("Under Rule 12(b)(6), dismissal is inappropriate unless plaintiff can prove no set of facts in support of his claim to entitle him to relief."). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526 (1983) (footnote omitted). Nor is the court to "accept mere conclusions characterizing pleaded facts or `unwarranted inferences drawn from the facts or footless conclusions of law predicated upon them.'" Jensen v. Reeves, ___ F.3d ___, 2001 WL 113829, at *4 (10th Cir. Feb. 9, 2001) (Table) (quoting Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990) (quotations omitted)).
In analyzing the plaintiff's complaint, the court has taken into consideration the fact that he appears pro se. "A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). "At the same time, we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant." Id.; see Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) ("Despite liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues."). It is also not the court's duty to "supply additional factual allegations to round out a plaintiff's complaint." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
FACTS
In his amended complaint, the plaintiff alleges that the defendants while acting under color of state law "permanently prohibited all Douglas County employees and agents from ever speaking with the plaintiff on any matter, including matters of Douglas County business that said Douglas County employees and agents routinely speak with other Douglas County residents about." (Dk. 24, ¶ 9). He further alleges that the defendants Andrew Ramirez and Stevens Brand, L.L.P. with the knowledge and consent of the defendant Douglas County "permanently prohibited all employees of defendant Stevens Brand from ever accepting telephone calls from the plaintiff on any matter, including matters of Douglas County business." (Dk. 24, ¶ 10). The plaintiff asserts these actions violate his rights to freedom of speech and equal protection of the laws and are in retaliation for exercising his right of equal access to the courts.
Attached to the plaintiff's original complaint and referenced by date in the plaintiff's amended complaint is a letter addressed to the plaintiff and written by the defendant Andrew Ramirez, as attorney for the County and the law firm of Stevens Brand, that appears to have precipitated this federal lawsuit. The letter states in pertinent part:
The plaintiff attaches the same letter to his response opposing the motion to dismiss.
I received on today's date the First Amended Petition that you filed against the law firm of Stevens Brand and myself. Clearly you and I disagree about the content of our various telephone conversations. Further, you have made certain representations in this legal document which I believe to be false. In light of the foregoing, and given the contentious nature of our previous telephone conversations, I believe it would be in both parties best interests to terminate any further telephone communication. Therefore, if you have anything that you wish to communicate to this office with regard to your pending litigation or any other matters, you should do so in writing. I will likewise correspond in writing to you. While this is a more cumbersome method of communication, it does, I believe, provide a complete and accurate record that no one can subsequently argue about.
In that regard, you have recently alleged that you have some correspondence that you mailed to me regarding telephonic communications. I have reviewed my file and I have never received such a letter from you. Would you kindly provide me with such document if you retained the same.
This letter is being sent regular and certified mail to simply confirm your receipt of the same. Please note that I have directed my staff and other individuals here not to accept any further telephone calls from you.
(Dk. 1, Ex. A). The amended complaint includes an additional paragraph in which the plaintiff alleges that after filing this suit he had conversations with the Douglas County Administrator and the defendant Ramirez during which he complained about this prohibition. The amended complaint also includes the following conclusory allegation: "That the actions of the defendants described herein have excluded plaintiff from the services and protections offered to other residents of Douglas County." (Dk. 24, ¶ 13).
ARGUMENTS AND ANALYSIS UNDER 42 U.S.C. § 1983
Under Color of State Law
The defendants, Andrew Ramirez and Stevens Brand, L.L.P., contend the plaintiff is unable to allege they were acting under color of state law when they limited all of their communications with the plaintiff to written correspondence. The plaintiff responds that the Board of County Commissioners officially appointed the defendant law firm as general counsel for Douglas County, Kansas, and that a "county counselor" or a "county attorney" are state actors. The plaintiff alternatively argues that courts have held private attorneys to be state actors and cites in support Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250 (3rd Cir. 1994).To prevail in federal court under § 1983, plaintiff must show the deprivation of a federally protected right by an individual acting under color of state law. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 935 (1982); see Sutton v. Utah State School for the Deaf and Blind, 173 F.3d 1226, 1237 (10th Cir. 1999). Private conduct, "no matter how discriminatory or wrongful," may not be redressed by a § 1983 claim. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). A private actor cannot be held liable under § 1983 unless it is shown that the private person "jointly engaged with state officials in the challenged action, or has obtained significant aid from state officials, or that the private individual's conduct is in some other way chargeable to the State." Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (quoting Lee v. Town of Estes Park, Colo., 820 F.2d 1112, 1114 (10th Cir. 1987)).
Public defenders, private attorneys, and court-appointed attorneys are not state actors for § 1983 purposes. See generally Polk County v. Dodson, 454 U.S. 312, 319-24 (1981). Moreover, a private attorney, even if appointed and paid for by the state, is not acting under color of state law when performing his functions as defense counsel. Id. "Lawyers do not act under color of state law solely by engaging in private litigation on behalf of their clients." Brown v. Chaffee, 612 F.2d 497, 501 (10th Cir. 1979); Shaffer v. Cook, 634 F.2d 1259, 1260 (10th Cir. 1980), cert. denied, 451 U.S. 984 (1981); see Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir. 1983).
The plaintiff asserts the defendant Ramirez and the defendant law firm hold a county office by reason of the Douglas County Commissioners having appointed them as general counsel for Douglas County, Kansas, on October 19, 1998. The plaintiff cites Attorney General opinion number 86-174 for the proposition that "county counselor should be considered a county office." The defendants reply that the County Commissioners on October 19, 1998, appointed Winton Winter, Jr. as the Douglas County Counselor and designated the defendant law firm as the general counsel. The defendants further note that the same Attorney General opinion cited by the plaintiff observes that the county counselor must be a "natural person" and that "a partnership is ineligible to hold public office." In light of these uncontested facts, the plaintiff is unable to claim or prove that either or both the defendant Andrew Ramirez and the defendant Stevens Brand, L.L.P. hold the public office of county counselor or county attorney. The analysis for "state action" does not end here.
This case differs from the cases cited above and those cited in the defendants' memoranda. The material differences are that the defendant attorney and law firm here represent a state actor, perform a role expressly given to and typically carried out by a public official but here delegated to them, and have a relationship with the state actor that extends beyond representing it in the one state case. The Supreme "Court has taken a flexible approach to the state action doctrine, applying a variety of tests to the facts of each case." Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995). The defendants do not address these different tests or make any effort to apply the tests to the facts here. Courts have held that an attorney who gives legal advice to a state actor can be sued under § 1983 under the joint action test. Bray By Bray v. Hobart City School Corp., 818 F. Supp. 1226, 1237 (N.D.Ind. 1993) (citing see Donovan v. Reinbold, 433 F.2d 738, 743-44 (9th Cir. 1970); Smith v. Montgomery County, 573 F. Supp. 604, 609 (D.Md. 1983); Gilbert v. School District, 485 F. Supp. 505, 509 (D.Colo. 1980)); see Cordova v. Vaughn Mun. School Dist. Bd. of Educ., 3 F. Supp.2d 1216, 1221 (D.N.M. 1998) ("[H]is actions as retained counsel are actions that can fairly be attributed to the school board, and therefore constitute state action."); Berridge v. Heiser, 993 F. Supp. 1136, 1143 (S.D.Ohio 1997) (Actions taken by "Special Counsel for the Attorney General" are under color of state law); cf. West v. Atkins, 487 U.S. 42, 52 (1988) (A physician acts under color of state law in treating an inmate when the physician is under contract with the State to provide medical services to inmates, and "[d]efendants are not removed from the purview of § 1983 simply because they are professionals acting in accordance with professional discretion and judgment."). Considering these authorities and the plaintiff's allegations, the court is not persuaded beyond doubt that the plaintiff can prove no set of facts in support of his allegation that the defendants Ramirez and Stevens Brand L.L.P. acted under color of state law.
Deprivation of a Constitutional Right
The plaintiff asserts the defendants' restriction to written communications violated his constitutional rights to freedom of speech, equal protection, and equal access to the courts. The defendants argue the plaintiff has not been denied any constitutional right. No one has curtailed his right to speech, as his right does not require others to speak to him. As far as equal protection, the plaintiff "has been treated no differently from any other person who files frivolous law suits against the county and their attorneys." (Dk. 5, p. 9). The defendants further contend:
Michael Van Deelen is not just some member of the public seeking access to the County. He is a professional litigant, suing the county and the attorneys representing them to try to cow them into submission. He gives up his so called "rights" to communicate like a normal person when he brings these frivolous law suits. (Dk. 5, p. 10). Finally, the defendants argue the plaintiff is unable to allege any facts that the County actually imposed any restriction on the plaintiff's communication with its staff. The plaintiff's allegations refer only to Ramirez's letter and to the plaintiff's interaction with Ramirez's law firm and fail to specify that the County or its employees actually denied the plaintiff any services or procedures.
The plaintiff responds that he has a constitutional right of equal access to courts and to be free from retaliation for exercising that right. The plaintiff asserts he "has essentially been cut off from all Douglas County services and procedures available to all other residents of Douglas County." (Dk. 13, ¶ 4). The plaintiff argues the defendants have deprived him of equal access to courts by not allowing him to speak with the attorneys representing the County. Finally, the plaintiff argues the loss of free speech rights because he "has been prohibited from speaking to any and all Douglas County employees on any issue at any time." (Dk. 13, ¶ 5).
First Amendment Retaliation
To establish a retaliation claim for the exercise of First Amendment rights, a plaintiff must prove (1) that he was engaged in a constitutionally protected activity; (2) that the defendants took adverse action that caused the plaintiff "an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the adverse action was motivated at least in part as a response to" the plaintiff's protected activity. See Block v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998).
"Access to the courts of the United States is a constitutional right" that "cannot be infringed upon or burdened." Silver v. Cormier, 529 F.2d 161, 163 (10th Cir. 1976) (a public official's threat "to withhold monies due and owing," though not actually effective, "burdens or chills" a citizen's constitutional right of access to the courts); see, e.g., McKay v. Hammock, 730 F.2d 1367, 1375 (10th Cir. 1984) (law enforcement officers threatened to have plaintiff's probation revoked if he filed a civil rights action); Shaw v. Neece, 727 F.2d 947 (10th Cir.) (city employees' failure to sign statements prepared by the plaintiff's investigator did not impede the plaintiff in bringing his product liability action), cert. denied, 466 U.S. 976 (1984). "[A] plaintiff need not successfully be prevented from filing his suit to state a claim," for such a rule would protect "`only those individuals who remain out of court.'" McKay, 730 F.2d at 1375 (citations omitted). Nonetheless, a plaintiff must allege he suffered some prejudice. Sterling v. Wood, 68 F.3d 1124, 1126 (8th Cir. 1995). For that matter, there is "no constitutional or other right of access to the courts to prosecute an action that is frivolous, malicious, or which seeks to harass." Phillips v. Carey, 638 F.2d 207, 209 (10th Cir.), cert. denied, 450 U.S. 985 (1981); see Sterling v. Wood, 68 F.3d at 1126.
The plaintiff has not alleged an actionable claim of retaliation. Other than the letter written by the attorney Ramirez, the plaintiff does not allege any "specific facts showing retaliation because of" his exercise of constitutional rights. See Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). The complaint is devoid of any facts to support the conclusory allegations that all Douglas County employees were "permanently prohibited" from speaking with him on even routine matters of County business and that he has been excluded "from the services and protections offered to other residents of Douglas County." There is no specific allegation that a particular person associated with or employed by Douglas County has refused to speak with the plaintiff about routine County business or that he has been denied any particular service or protection otherwise afforded County residents as a result of this exercise of his First Amendment rights.
The letter written by the defendant Ramirez does not threaten a permanent prohibition on speaking about routine matters with County employees. Nor does it threaten any effort to exclude the plaintiff from the services and protections offered by the County. The letter is plainly written in regards to specific litigation, to contentious telephone conversations conducted as part of that litigation, and to the plaintiff's recent lawsuits against the attorney and law firm that he filed as a result of those very conversations and the correspondence written about them. "In light of" these prior contentious communications, the letter proposes only the termination of "telephone communications" between the "parties" in those pending cases. The letter directs the plaintiff to put in writing any further communications with the law firm's "office" as to "pending litigation or any other matters." The letter further explains that the attorney also will correspond and that "[w]hile this is a more cumbersome method of communication, it does, I believe, provide a complete and accurate record that no one can subsequently argue about." Simply put, the letter plainly focuses on the contentious communications that have occurred between counsel and the plaintiff and on establishing a means of communication that would reduce the chances for future contentiousness and lawsuits. No matter how expansively or creatively the plaintiff chooses to read this letter, a person of ordinary firmness would not be chilled from filing or pursuing litigation as a result of this letter. For that matter, "a constitutional tort — like any tort — requires injury, and allowing constitutional redress for every minor harassment may serve to trivialize the First Amendment." Mattox v. City of Forest Park, 183 F.3d 515, 521 (6th Cir. 1999) (citation omitted).
Equal Protection
"The Equal Protection Clause is essentially a direction that all persons similarly situated should be treated alike. . . . In order to assert a viable equal protection claim, plaintiffs must first make a threshold showing that they were treated differently from others who were similarly situated to them." Campbell v. Buckley, 203 F.3d 738, 747 (10th Cir.) (footnotes, quotations, and ellipses omitted), cert. denied, 121 S.Ct. 68 (2000). "[P]urposeful discrimination is an essential element of an equal protection violation." Lewis v. City of Fort Collins, 903 F.2d 752, 755 n. 1 (10th Cir. 1990). "`Discriminatory purpose'" implies that a decisionmaker "selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979).
The plaintiff has not alleged an actionable equal protection claim. The plaintiff compares himself to any other resident of Douglas County, and he makes no effort to otherwise identify that group of citizens similarly situated to him. The plaintiff does not assert that he has been treated differently from others similarly situated, i.e., those who file subsequent lawsuits against the attorneys representing the County in pending litigation as a result of communications made during the pending litigation. "The allegation that a plaintiff was treated differently from those similarly situated is an essential element of an equal protection action; there, Plaintiff's equal protection claim . . . [is] properly dismissed." Hennigh v. City of Shawnee, 155 F.3d 1249, 1257 (10th Cir. 1998) (citations omitted). The plaintiff's "allegations are merely conclusory in that they do not allege the factual basis for an equal protection claim, and even pro se litigants must do more than make mere conclusory statements regarding constitutional claims." Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1995).
Freedom of Speech
The plaintiff's complaint fails to allege how his speech or expressive conduct has been restricted. That the defendant attorney and the defendant law firm choose to communicate with the plaintiff about pending litigation only in writing causes him no loss of First Amendment speech rights. In effect, the defendants have chosen not to listen to the plaintiff when he chooses to talk about pending litigation. The First Amendment rights to speak, associate and petition do "not impose any affirmative obligation on the government to listen." Smith v. Arkansas State Highway Emp., Local 1315, 441 U.S. 463, 465 (1979); see Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271, 285 (1984). The plaintiff's complaint does not state a First Amendment claim.
SANCTIONS AND INJUNCTION
Though the plaintiff's amended complaint fails to state a claim upon which relief can be granted, it is not patently frivolous and deserving of sanctions. The court denies the defendants' request for these sanctions without prejudice to the renewal of this request in the event that additional pleadings are filed in this action.
DEFENDANTS' MOTION TO STRIKE THE PLAINTIFF'S REPLY TO THE DEFENDANTS' REPLY (Dk. 31); THE PLAINTIFF'S MOTION TO STRIKE THE DEFENDANTS' ADDITIONAL REPLY (Dk. 35); AND PLAINTIFF'S MOTION TO STRIKE DEFENDANTS' ADDITIONAL SUGGESTIONS (Dk. 37).
The court denies these motions. The first motion seeks to strike a document that was never filed. The latter two motions seek to strike documents that properly address subsequent developments in related litigation and subsequent conduct by the plaintiff, both of which are relevant to the defendants' request for sanctions.
PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (Dk. 38).
The plaintiff asks for default judgment based on the defendants' failure to respond to his first amended complaint. The record reflects that the defendants did not file a new motion to dismiss or otherwise respond to the plaintiff's amended complaint. Rather, as the defendants have explained, they relied on their pending motion to dismiss and on the magistrate judge's order staying the case. Because the plaintiff's first amended complaint added only factual allegations and no claims, the defendants believed that their pending motion to dismiss addressed all of the claims and that the plaintiff's new factual allegations changed nothing. In reliance on the stay order, the defendants did not make any response to the first amended complaint.
The plaintiff's motion for default judgment does not comply with the procedure outlined in Fed.R.Civ.P. 55. If the plaintiff had first obtained a clerk's entry of default, the court would be addressing whether the defendants have shown good cause for setting aside the entry of default. The good cause required by Rule 55(c) poses a lesser standard for the defaulting party than the excusable neglect which must be shown for relief from judgment under Rule 60(b). See Dennis Garberg Associates, Inc. v. Pack-Tech Intern. Corp., 115 F.3d 767, 775 n. 6 (10th Cir. 1997). "The principal factors in determining whether a defendant has met the good cause standard are (1) whether the default resulted from culpable conduct by defendant, (2) whether plaintiff would be prejudiced if the default should be set aside, and (3) whether defendant has presented a meritorious defense. Fink v. Swisshelm, 185 F.R.D. 353, 355 (D.Kan. 1999) (citing Hunt v. Ford Motor Co., 65 F.3d 178, 1995 WL 523646, at *3 (10th Cir. 1995) (Table); Matter of Dierschke, 975 F.2d 181, 183 (5th Cir. 1992). These three factors do not have a "talismanic" quality that requires individual consideration of each or that precludes consideration of other factors. Id. A court weighs these factors in light of the policy that prefers disposition of any case upon its merits and not by default judgment. Urban v. Beamers Garage Restaurant and Lounge Co., Inc., No. 95-2030-JWL, 1995 WL 522899, at *1 (D.Kan. Aug. 4, 1995).
A good faith mistaken belief regarding procedural questions generally is not culpable conduct. See Fink v. Swisshelm, 185 F.R.D. at 357. The defendants' erroneous reliance on their pending motion to dismiss and the magistrate judge's order staying the case is not culpable conduct. There is no prejudice to the plaintiff from the defendants' delay in responding to his amended complaint. The plaintiff waited well over six months before making any formal attempt to obtain default judgment. Both sides appear to have assumed that the case had been fully submitted to the court on the defendants' motion to dismiss and that all further activity had been stayed pending the court's ruling on this motion. That the court intends to grant the defendants' motion to dismiss shows a meritorious defense. The court finds "good cause" to exist here for setting aside any default that could have been entered upon a proper motion from the plaintiff. The court denies the plaintiff's motion for default judgment.
DEFENDANTS' MOTION FOR LEAVE TO FILE SUPPLEMENTAL PLEADING (Dk. 40).
The court grants this motion.
IT IS THEREFORE ORDERED that defendants' motion to dismiss (Dk. 4) is granted, but the request for sanctions and for permanent injunction is denied;
IT IS FURTHER ORDERED that the defendant's motion to strike the plaintiff's reply to the defendant's reply (Dk. 31); the plaintiff's motion to strike the defendant's additional reply (Dk. 35); and the plaintiff's motion to strike defendant's additional suggestions (Dk. 37) are denied.
IT IS FURTHER ORDERED that the plaintiff's motion for default judgment (Dk. 38) is denied;
IT IS FURTHER ORDERED that the defendant's motion for leave to file supplemental pleading (Dk. 40) is granted.