Jones v. Theodoroff

Full title: EDMUND C. JONES, Plaintiff, v. DAVID THEODOROFF, et al., Defendants

Court: United States District Court, D. Kansas

Date published: Feb 3, 2003

No. 01-3314-JWL (D. Kan. Feb. 3, 2003)

Opinion

No. 01-3314-JWL

February 3, 2003

MEMORANDUM AND ORDER

DAVID J. WAXSE, United States Magistrate Judge

Pending before the Court is Plaintiff's Motion to Seek Order Directing Defendants to Seek New Counsel Based on a Conflict of Interest (doc. 49). In support of his request to disqualify the United States Attorney's Office, Plaintiff claims "there is still an ongoing investigation into assaultive conduct by staff at USP Leavenworth," and that because it would be the duty and obligation of the United States Attorney's Office "to bring criminal charges against the same people they currently represent," a conflict of interest exists. Thus, Plaintiff argues, the Court should order Defendants to seek other legal representation.

The Court finds Plaintiff's claim to be without merit. Simply put, Plaintiff has presented no allegations from which the Court might find a conflict of interest. As a preliminary matter, Defendants have submitted evidence to the Court — and Plaintiff does not dispute this evidence — that establishes the Office of Internal Affairs (OIA) issued a memorandum dated October 4, 1999 closing the investigation to which Plaintiff refers because the allegations of assault could not be substantiated.¹ Even if this were not the case, the fact that Plaintiff has made a complaint involving defendants in and of itself does not establish a conflict of interest. There is no authority to allow a litigant to disqualify a government attorney by merely alleging other potential litigation.²

1 Attachment D to Defendants' Memorandum in Support of Motion to Dismiss (doc. 31).

2 United States v. Wencke, 604 F.2d 607, 611 (9th Cir. 1979).

Finally, even if the United States Attorney ultimately were to bring charges against Defendants in this matter regarding the alleged assault at issue, "[a] government attorney's office may prosecute violations by a government officer regardless of that office's representation of the officer in pending litigation."³ In fact, "where it is shown that an Assistant United States Attorney is subject to a conflict of interest, the proper remedy is to remove that individual, not all of the attorneys in the district, from the case."⁴

3 Crocker v. Durkin, 159 F. Supp.2d 1258, 1284 (D.Kan. 2001) (citing United States v. Troutman, 814 F.2d 1428, 1438 (10th Cir. 1987)).

4 Id. at 1284-85 (citing United States v. Vlahos, 33 F.3d 758, 763 n. 5 (7th Cir. 1994)).

Plaintiff's Motion is denied.

IT IS SO ORDERED.