Opinion
Case No. 11-2327-JTM
05-11-2016
MAX SEIFERT, Plaintiff, v. UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY, KANSAS, et al., Defendants.
MEMORANDUM AND ORDER
On May 9, 2016, the court conducted a hearing and addressed various matters relating to the present action. The court will set trial and other specific dates by separate order.
The court notes the defendants' intention to obtain the services of a medical expert, and encourages the conclusion of such arrangement by the time of the next status conference in the action, which shall take place on September 21, 2016, at 3:30 p.m. by telephone.
Finally, the court finds defendants are correct in observing that the Tenth Circuit affirmed the denial of qualified immunity as to plaintiff's § 1983 First Amendment claim, but did not address the defense with respect to plaintiff's § 1985 conspiracy claim. However, this court has addressed the defense, and the issue is not open.
Defendants' qualified immunity argument appeared in Section 4 of their Memorandum in support of summary judgment, and the only ground asserted for such immunity, as to the § 1985 claim, was the absence of a property interest in the reserve deputy commission. See Dkt. 180, Section 4, at 19 (qualified immunity should exist because plaintiff "does not claim that he was physically injured, and he had no property interest in his position as an unpaid volunteer reserve deputy").
Defendants repeated the same argument in their Reply brief, but did so as a part of their Section 3 argument that the § 1985 claim was defective on the merits. See Dkt 198, at 25 (arguing plaintiff's § 1985 claim fails because "he must have a protected property interest in his reserve commission"). Section 4 of the Reply brief argued that defendants Ash and Roland were entitled to immunity with respect to the § 1983 First Amendment retaliation claim, and made no argument for immunity as to the § 1985 claim. See id. at 26 ("[t]his issue hinges on Garcetti").
The substance of this argument, denominated under whatever heading, was explicitly rejected by this court in its summary judgment ruling. See 2013 WL 2631632, at *12 (citing Haddle v. Garrison, 525 U.S. 121, 125-26 (1998), and concluding that "a conspiracy claim under § 1985(2) does not require the infringement of a property right").
The Tenth Circuit's decision does not affect this conclusion. That court first quoted with emphasis the explicit language of § 1985, thus observing that the statute is violated by a conspiracy "to deter ... any ... witness ... or to injure such ... witness..." 779 F.3d at *1160. The court then concluded "there was sufficient evidence that Ash and Roland took action (removal from investigations and revocation of his commission) to deter Plaintiff from testifying and to punish him for doing so," and that, by necessary inference, "they acted in concert in doing so." 779 F.3d at 1160.
The court finds that the issues in the case are ready for trial, and, pursuant to the doctrine of the law of the case and as a matter of judicial economy, it will not entertain additional dispositive motions.
IT IS SO ORDERED this 11th day of May, 2016.
s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE