Opinion
Case No. 04-4058-RDR.
September 22, 2004
MEMORANDUM AND ORDER
Plaintiffs, Rosemary Denise Price and David Martin Price, have filed this action against the following defendants: Hon. Kay McFarland; Howard J. Schwartz; Hon. Marla J. Luckert; Hon. Gary W. Rulon; Hon. G. Joseph Pierron, Jr.; Hon. Henry W. Green; Hon. Lee A. Johnson; Carol Green; Hon Richard D. Anderson; Hon. Adrian J. Allen; Hon Frank J. Yeoman, Jr.; Hon. William F. Lyle, Jr.; Angela M. Callahan; Nancy J. Escalante; Kay Falley; Austin K. Vincent; Bruce D. Woolpert; Edward L. Bailey; Robert D. Hecht; Karen C. Wittman; John J. Knoll; Steve Smith; Kevin Stafford; Randy Hendershot; Eric Melgren; David D. Plinsky; Phill Kline; Steve Phillips; Ron Patterson; and unknown defendants designated as "John Doe". According to the complaint, all of the defendants are being sued in their official and individual capacities. The complaint also indicates that plaintiffs are bringing this as a qui tam action in relationship with the United States.
Plaintiffs Rosemary Denise Price and David Martin Price are proceedingpro se. Generally, their 110-page complaint asserts that they have spoken out regarding numerous matters of public interest in Topeka, Kansas including law enforcement issues, misappropriation of funds, the bonding out of persons charged with crimes in Shawnee County, and the election of judges. They further assert that defendants have retaliated against them and others associated with them because of their protected speech. This retaliation has allegedly occurred in the prosecution of a traffic charge (Case No. 03-TR-3740) against plaintiff David Price, an adoption case involving a baby fathered by David Price, a petition for the termination of parental rights of David Price, and in other actions involving persons associated with plaintiffs. The complaint also asserts that certain defendants failed to investigate plaintiffs' claims of illegal and unethical conduct.
In the opening paragraph of the complaint, plaintiffs state that they are seeking damages and punitive damages against defendants. In the section of the complaint labeled "Relief," plaintiffs state that they seek an injunction directing defendants not to prosecute and persecute plaintiffs for speaking out on behalf of taxpayers, as well as an injunction prohibiting defendants from attempts to prevent plaintiffs from representing themselves and from violating plaintiffs' first amendment rights to free expression and fourteenth amendment rights to procedural due process, substantive due process, and equal protection of the law. In addition, plaintiffs seek an order directing the return of "their minor son" immediately and permanently. They also seek the dismissal of state court cases 03-TR-3740 and 03-91252 A, which is the appeal of 03-TR-3740. Finally, they ask for the maximum allowed under the "Que Tem for the exposure of the misappropriated Federal monies that the Officials in the State of Kansas have abused continually, and have failed to let anyone monitor for the last `30 years.'"
Plaintiffs list a multitude of federal statutes in their complaint: 42 U.S.C. §§ 1981, 1983, 1985(2), 1985(3), 1986 and 1988; 18 U.S.C. §§ 1512- 1515, 1961-1968; 28 U.S.C. § 1343; 31 U.S.C. § 3730; and the Indian Child Welfare Act. Plaintiffs also list a number of constitutional provisions, Kansas statutory sections, canons of judicial conduct, state court rules and uniform statutes.
Plaintiffs further list 18 U.S.C. § 1515 and 28 U.S.C. § 1512, but the court does not believe these statutory sections exist.
There are numerous pending motions in this case, including motions to dismiss on behalf of each defendant. After careful consideration, the court finds that the motions to dismiss should be granted. The court shall discuss the reasons for dismissing this case later in this order. Before starting that discussion, however, the court shall address some other pending motions.
Motion to stay
Plaintiffs ask that there be a stay of all proceedings until the United States Attorney accepts or denies taking this case or until a grand jury is appointed for this case. The court shall deny this request for several reasons. First, the position of the United States Attorney appears clear from the motion to dismiss that his office has filed on behalf of the federal defendants. Second, as discussed later in this opinion, to the court's understanding plaintiffs have not followed the proper procedures for bringing a qui tam action in which the United States might decide to intervene. Third, plaintiffs are bringing a civil action. The court is unaware of any authority for appointing a grand jury to consider a civil case. Finally, the court believes this case deserves to be dismissed promptly. A stay would unduly prolong this matter.
Motion for recusal
Plaintiffs have filed a pleading titled "Plaintiffs' objection and response to the recusal of the Honorable K. Gary Sebelius, as well as the objection of the appointment of the Honorable James P. O'Hara as the magistrate judge in this case." Within the pleading is a request that all Kansas, Missouri and Tenth Circuit judges, justices and magistrates recuse from this case. The court has reviewed this pleading and finds no good grounds for recusing from this case. Plaintiffs' pleading does not assert a specific grounds for the recusal of the undersigned judge other than plaintiffs' assertion that other judges and court personnel from this district and the Tenth Circuit may be called as witnesses in this case. After due consideration, the court does not believe recusal is necessary or justified in this case. See Flynn v. Dyzwilewski, 644 F.Supp. 769, 772 (N.D.Ill. 1986) (no recusal in lawsuit against federal district judge and assistant United States attorneys of the same district as the presiding judge); see also, Jones v. City of Buffalo, 867 F.Supp. 1155, 1162 (W.D.N.Y. 1994) (naming of presiding judge as a defendant does not require recusal). Therefore, plaintiffs' pleading, treated as a motion to recuse the undersigned judge, shall be denied.
Motion to strike
Defendant Plinsky has filed a motion to strike certain allegations in the complaint because of their scandalous nature. See FED.R.CIV.P. 12(f). Understanding that motions to strike are disfavored and that the allegations appear to have some relation to the claims plaintiffs have made in their complaint, the court shall deny the motion to strike in spite of the offensive nature of the allegations. See Gateway Bottling, Inc. v. Dad's Rootbeer Co., 53 F.R.D. 585, 588 (W.D.Pa. 1971).
Plaintiffs' motion for leave of court to respond to motion to dismiss defendants Eric Melgren, Randy Hendershot, David Plinsky, Kevin Stafford and Steve Smith
This motion shall be granted. The court has read and considered plaintiffs' response to the motion to dismiss defendant Melgren and the other federal defendants. Doc. No. 102.
Motions to dismiss or for judgment on the pleadings
The standards for examining a complaint upon a motion to dismiss for failure to state a claim under FED.R.CIV.P. 12(b)(6) or a motion for judgment on the pleadings under FED.R.CIV.P. 12(c) are the same. SeeRamirez v. Dept. of Corrections, 222 F.3d 1238, 1240 (10th Cir. 2000);McHenry v. Utah Valley Hospital, 927 F.2d 1125, 1126 (10th Cir.) cert. denied, 502 U.S. 894 (1991). When a court examines a motion for judgment on the pleadings "the well-pleaded allegations of the complaint are accepted as true and construed in the light most favorable to the plaintiff." Aspenwood Investment Co. v. Martinez, 355 F.3d 1256, 1259 (10th Cir. 2004). The complaint cannot be dismissed unless it is demonstrated that plaintiffs can prove no set of facts in support of their claims which would entitle them to relief. Id. "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). However,
[t]he broad reading of the plaintiff's complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based. Not every fact must be described in specific detail . . . and the plaintiff whose factual allegations are close to stating a claim but are missing some important element that may not have occurred to him should be allowed to amend his complaint . . . Nevertheless, conclusory allegations without supporting allegations are insufficient to state a claim.Id. (interior citations omitted). "[A]llegations of conclusions or opinions are not sufficient when no facts are alleged by way of the statement of the claim." Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 (10th Cir. 1977).
As the court has examined the complaint and motions to dismiss or for judgment on the pleadings, it has been somewhat difficult to determine what claims are being made against what defendants. The defendants also incorporate or restate defenses made in the various motions to dismiss. Therefore, before addressing each individual motion, the court shall address some issues as they apply to this complaint and may apply to each defendant. Rooker-Feldman
If any of these issues were not raised by defendants, it is within the court's perogative to raise issues regarding the failure to state a claim. See Whitney v. State of New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997); see also, Rector v. City and County of Denver, 348 F.3d 935, 942 (10th Cir. 2003) (standing may be raised sua sponte).
Under the Rooker-Feldman doctrine, this court is jurisdictionally barred from reviewing the decisions of state courts. See Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 706-07 (10th Cir. 2004) (en banc). Obviously, plaintiffs are asking for that kind of review when they request this court to enjoin and in effect reverse the child custody or adoption decisions of a state court and to dismiss state court cases. In a recent Tenth Circuit decision, Roberts v. Hartz, 2004 WL 1941310 (10th Cir. 9/1/04), the court specifically found that a district court was barred by the Rooker-Feldman doctrine from considering a request for declaratory and injunctive relief pertaining to child custody proceedings in a New Mexico state district court. The court found that only general challenges to the constitutionality of New Mexico's Children's Code were not barred by the Rooker-Feldman doctrine.
This authority leads us to conclude that we must dismiss plaintiffs' claims for injunctive relief relating to state court child custody or adoption decisions or for the dismissal of state court cases.
Qui Tam
Plaintiffs purport to be bringing this complaint on behalf of the United States as a qui tam action. The qui tam provisions of the Federal Civil False Claims Act allow private persons to bring civil false claims actions alleging fraud against the United States government. 31 U.S.C. § 3730(b). The private litigant or "relator" is required to file the suit under seal and to serve the government with the complaint, along with disclosure of all material evidence and information in the possession of the relator in connection with the alleged false claims. 31 U.S.C. § 3730(b)(2). Then, the government has 60 days to investigate the complaint and decide whether it wants to intervene. Id.
This complaint has not been properly brought as a qui tam action. The complaint was not filed under seal and then served upon the government for investigation. Nor does the complaint, despite its length, make anything but the broadest and vaguest allegations of a false claim by any of the defendants. FED.R.CIV.P. 9(b) states "[i]n all averments of fraud or mistake, the circumstances constituting the fraud or mistake shall be stated with particularity." This pleading requirement applies to actions under the False Claims Act. See U.S. ex rel. Russell v. Epic Healthcare Management Group, 193 F.3d 304, 308 (5th Cir. 1999); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783-84 (4th Cir. 1999). "At a minimum, Rule 9(b) requires that a plaintiff set forth the `who, what, when, where and how' of the alleged fraud." U.S. ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir. 1998).
The allegations of the complaint are insufficient to state a cause of action under the False Claims Act. Plaintiffs also have not followed the procedures for a qui tam action. Therefore, the court shall not treat the complaint as a qui tam action.
Criminal statutes
Plaintiffs make reference to several criminal statutes in the complaint. Plaintiffs cannot bring a civil action to recover upon the alleged violation of criminal statutes or initiate criminal enforcement actions as a private citizen. Cok v. Cosentino, 876 F.2d 1,2 (1st Cir. 1989); Daugherty v. U.S., 73 Fed.Appx. 326, 2003 WL 21666677 (10th Cir. 2003) ( 18 U.S.C. § 1513); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (18 U.S.C. §§ 241-42); Winslow v. Romer, 759 F.Supp. 670, 673 (D.Colo. 1991); see also, Diamond v. Charles, 476 U.S. 54, 64-65 (1986) (private citizens cannot compel enforcement of criminal laws); Jennings v. City of Stillwater, Case No. 03-6206 (10th Cir. 9/14/04) ("It is the duty of executive officials not the courts to take care that the criminal laws are faithfully executed.").
RICO
While plaintiffs cite the RICO statute with regard to each defendant, the complaint does not describe a cause of action under RICO against the defendants. Section 1962(c) of RICO makes it "unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." RICO defines "pattern of racketeering activity" as requiring "at least two acts of racketeering activity" within a ten-year period. 18 U.S.C. § 1961(5). "The acts must be related and must `amount to or pose a threat of continued criminal activity.'" McCormick v. City of Lawrence, 325 F.Supp.2d 1191, 1208 (D.Kan. 2004) quoting, H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989). "Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct." H.J. Inc., 492 U.S. at 242. "While a `pattern' requires at least two acts, it does not `mean' two acts."McCormick, 325 F.Supp.2d at 1208, citing, Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 497 n. 14 (1985). In other words, two acts are necessary, but they may not be sufficient. Sedima, 473 U.S. at 497 n. 14. Finally, RICO provides a recovery in damages for injuries to business or property, not damages for a violation of first amendment rights.McCormick, 325 F.Supp.2d at 1209; see Oscar v. University Students Co-op Ass'n, 965 F.2d 783, 785 (9th Cir.) cert. denied, 506 U.S. 1020 (1992) (RICO was intended to combat organized crime, not to provide a federal cause of action and treble damages to every tort plaintiff.).
The complaint fails to allege a pattern of racketeering activity. It does not allege an ongoing design of continued criminal conduct. It does not allege injuries to plaintiffs' business or property from racketeering activity. Finally, the mere citation to the RICO statute in combination with the mass of factual allegations in the lengthy complaint is insufficient to state a claim under RICO.
Conspiracy
Plaintiffs assert that a conspiracy existed among the defendants many times throughout the complaint. But, plaintiffs do not allege specific facts which would show an agreement and concerted action or which evince an agreement between state actors and private persons or which describe a conspiracy to obstruct justice or retaliate against persons for actions taken in state or federal court. For these reasons, plaintiffs' claims of conspiracy fail to state a cause of action against private persons under 42 U.S.C. § 1983 or a cause of action against any defendant under § 1985(2) or (3). See Montgomery v. City of Ardmore, 365 F.3d 926, 939-40 (10th Cir. 2004); Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003); Tonkovich v. Kansas Board of Regents, 159 F.3d 504, 533 (10th Cir. 1998); Drake v. City of Fort Collins, 927 F.2d 1156, 1162-63 (10th Cir. 1991); Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989); Clulow v. Oklahoma, 700 F.2d 1291, 1303 (10th Cir. 1983).
42 U.S.C. §§ 1981, 1985(2), 1985(3) and 1986
Although plaintiffs cite § 1981 as legal authority to recover in this case, plaintiffs have not alleged that defendants were motivated by racial prejudice. At one point in the complaint (pp. 48-49), plaintiff David Price asserts that he is of American Indian descent. But, he and his wife do not allege that defendants' alleged misconduct was motivated by racial bias. Therefore, there can be no recovery under § 1981. See Hampton v. Dillard Dept. Stores, Inc., 247 F.3d 1091, 1101-02 (10th Cir. 2001) cert. denied, 534 U.S. 1131 (2002).
Section 1985(2) has two clauses. The first clause concerns obstruction of justice in federal court proceedings. The second clause concerns obstruction of justice in state court proceedings. Section 1985(3) provides a cause of action against persons engaged in a conspiracy to deprive a person of the equal protection of the laws. Race or class-based intentional discrimination must be alleged to state a cause of action under the second clause of § 1985(2) or under § 1985(3). Tilton v. Richardson, 6 F.3d 683,686 (10th Cir. 1993) cert. denied, 510 U.S. 1093 (1994); Harrison v. Springdale Water Sewer Commission, 780 F.2d 1422, 1429 (1986). These allegations are absent. Therefore, plaintiffs cannot state a cause of action under these portions of § 1985.
Without a claim under § 1985, there can be no cause of action under 42 U.S.C. § 1986. Santistevan v. Loveridge, 732 F.2d 116, 118 (10th Cir. 1984).
Constitutional provisions
Plaintiffs have no cause of action directly under the United States Constitution against state and local officials. See Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992) cert. denied, 506 U.S. 1081 (1993).
Official capacity
Plaintiffs assert claims against all of the defendants in their official and individual capacities. Damages actions against state officials sued in their official capacity are barred by the Eleventh Amendment. Meiners v. University of Kansas, 359 F.3d 1222, 1232 (10th Cir. 2004). Plaintiffs may not bring a Bivens action against the federal defendants in their official capacities. Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003). Plaintiffs may not sue the federal defendants in this case in their official capacities because that would, in effect, be a suit against the United States. The United States is immune from suit except where it has waived that immunity.U.S. v. Mitchell, 445 U.S. 535, 538 (1980).
Injunctive relief
Plaintiffs lack standing to bring an action for injunctive relief absent a showing of a real or immediate threat of future harm. City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). Past exposure to illegal conduct does not in itself show a present case and controversy regarding injunctive relief. Id.; see also,Buchwald v. University of New Mexico School of Medicine, 159 F.3d 487, 493 (10th Cir. 1998); Smith v. Colorado Dept. of Corrections, 23 F.3d 339, 341 (10th Cir. 1994). In this case, plaintiffs' allegations do not establish a real and immediate threat of future harm in order to sue for injunctive relief.
Motion for judgment on the pleadings by defendants Robert Hecht and Karen Wittman
Plaintiffs' complaint alleges that defendants Hecht and Wittman:
had knowledge and stepped outside the court to partake at all times of the deprivation of federal and civil . . . rights by Shawnee County and it's employees, causing injury to the Plaintiffs. . . . [and] conspired with the courts and State employees to convict Plaintiff, David Martin Price, to protect the issuance of the $29M grant issued to the State of Kansas Highway Patrol for Homeland Security. As well as, failing to initiate any investigations on City Officials filed by the Plaintiff, and denying Plaintiff discovery during the proceedings of 03 TR 3740.
Complaint, pp. 28-30. Plaintiffs further allege that defendant Wittman misrepresented that she would "take care of" the case with the judge [defendant Hon. Adrian Allen], but then told him that plaintiff David Price had not appeared. Complaint, p. 62.
Defendants Hecht and Wittman assert that they are entitled to judgment on the pleadings because, in light of the doctrine of prosecutorial immunity, plaintiffs allege no facts upon which plaintiffs can prevail. Defendants Hecht and Wittman further assert that they are entitled to qualified immunity from liability if the doctrine of prosecutorial immunity does not apply. As additional support for the motion, defendants have established that plaintiff David Price was convicted in 03-TR-3740, his appeal was dismissed as untimely filed, and a petition for review by the Kansas Supreme Court was denied. The court may take judicial notice of these facts. Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group, Ltd., 181 F.3d 410, 426-27 (3rd Cir. 1999).
In response to the motion for judgment on the pleadings, plaintiffs assert that defendant Hecht acted to initiate the prosecution of the traffic charge in order to secure a financial stake in a homeland security grant. They further assert that defendant Wittman helped implement the prosecution in order to enhance her career and aid defendant Hecht's financial interest. Plaintiffs also allege that the plaintiff David Price should have been exempt from prosecution on the traffic charge under K.S.A. 48-252a, but that defendants proceeded with the prosecution in spite of that knowledge. In addition, they claim that defendant Hecht improperly inhibited their access to discovery and that he failed to take action upon or investigate complaints made by plaintiffs.
The Supreme Court has held that a prosecutor is absolutely immune from liability for actions which are "intimately associated with the judicial phase of a criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976). This immunity extends to initiating a case and presenting a case. Id. at 431. "Absolute immunity does not extend to actions `that are primarily investigative or administrative in nature,' though it `may attach even to such administrative or investigative activities when these functions are necessary so that a prosecutor may fulfill his function as an officer of the court.'" Scott v. Hern, 216 F.3d 897, 908 (10th Cir. 2000) quoting Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th Cir. 1991).
Plaintiffs' allegations regarding the initiation and prosecution of the traffic charge against plaintiff David Price cannot entitle them to relief against defendants Hecht and Wittman because of the doctrine of prosecutorial immunity. These allegations include the claims that plaintiffs' access to discovery was hindered and that defendants ignored a statutory defense. To the extent plaintiffs' claims involve a decision not to prosecute, this is a matter intimately connected with the judicial phase of the criminal process and, therefore, the persons making such decisions are entitled to absolute immunity. Roe v. City and County of San Francisco, 109 F.3d 578, 583 (9th Cir. 1997); Meade v. Grubbs, 841 F.2d 1512, 1532 (10th Cir. 1988).
We acknowledge plaintiffs' citation to Holton v. Boman, 493 F.2d 1176 (7th Cir. 1974) and Madison v. Purdy, 410 F.2d 99 (5th Cir. 1969). These cases are distinguishable on their facts from the case at bar. In addition, these cases predate Imbler and do not offer controlling authority for the application of the doctrine of prosecutorial immunity in recent years by the Tenth Circuit and other circuit courts of appeals.
Plaintiffs' claims regarding the failure of these defendants to investigate plaintiffs' allegations against other persons or governmental entities also fail to state a claim for relief. Absolute immunity applies to a failure to investigate matters related to the prosecution of the traffic charge. See Rankin v. Berkeley County Sheriff's Department, 222 F.Supp.2d 802, 805 (N.D.W.Va. 2002); Van Cleave v. City of Marysville, 185 F.Supp.2d 1212, 1215 (D.Kan. 2002) citing Scott, 216 F.3d at 909. To the extent that plaintiffs asked for an investigation of matters unrelated to the prosecution of the traffic charge, there is still no claim for relief. There is no constitutional or statutory right to have an investigation undertaken by a government official or agency.Wilson v. Meeks, 52 F.3d 1547, 1557 (10th Cir. 1995); Langworthy v. Dean, 37 F.Supp.2d 417, 422-23 (D.Md. 1999). Even if there was such a right, defendants Hecht and Wittman would be entitled to qualified immunity from liability. SeeRankin, 222 F.Supp.2d at 806; Langworthy, 37 F.Supp.2d at 423.
Motion to dismiss of defendants Hon. Kay McFarland, Howard J. Schwartz, Hon. Marla J. Luckert, Hon. Gary W. Rulon, Hon. G. Joseph Pierron, Jr., Hon. Henry W. Green, Hon. Lee A. Johnson, Carol Green, Hon. Richard D. Anderson, Hon. Adrian J. Allen, Hon. Frank J. Yeoman, Jr., Hon. William F. Lyle, Jr., Angela M. Callahan, Nancy J. Escalante, Kay Falley, Robert Hecht, Karen Wittman, Phill Kline, Steve Phillips, and Ron Patterson
This motion asks for the dismissal of twenty of the defendants named in this case. Two of the defendants (Hecht and Wittman) are the same defendants mentioned in the motion previously discussed. Therefore, this motion is duplicative as to them. The court shall first discuss some of the arguments made on behalf of the judges named as defendants.
— Judges
Judicial immunity is one of the arguments made for dismissal of the claims against the judges named as defendants. The doctrine of judicial immunity protects a judge from liability for the judge's official adjudicative acts. Lundahl v. Zimmer, 296 F.3d 936, 939 (10th Cir. 2002) cert. denied, 538 U.S. 983 (2003). Immunity applies unless the judge acts "in clear absence of all jurisdiction." Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). The court determines whether a judge performed a "judicial" act or acted "in the clear absence of jurisdiction" by looking to "the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir.) cert. denied, 513 U.S. 832 (1994) (quoting Sparkman, 435 U.S. at 362).
Defendant McFarland is alleged to have violated plaintiff's constitutional rights by acting to replace one judge who recused from a state court adoption action (01-A-48) with another judge.
There appears to be no factual allegation regarding defendant Rulon, other than plaintiffs sent a complaint regarding the adoption case to him. Complaint, p. 64.
Defendants Pierron, Green and Johnson are alleged to have served as an appellate panel in the adoption case and the traffic case against plaintiff David Price. The complaint also alleges that they acted to refer a disciplinary complaint against an attorney for plaintiffs and that they refused to compel access to a case record for appeal.
Defendant Allen presided over the prosecution of the traffic charge (03-TR-3740) against plaintiff David Price.
Defendants Yeoman and Lyle presided over the adoption case (01-A-48) involving plaintiff David Price.
All of these judges and defendants Luckert and Anderson are broadly alleged to have failed to "protect" plaintiffs from illegal actions or to have failed to "correct injustices" against plaintiffs or to have failed to review actions taken in court cases in spite of requests for review or complaints by plaintiffs. In addition, Judges Luckert and Pierron are alleged to have "prevailed upon" Justice McFarland to ban plaintiff David Price from the Clerk's Office and the Office of the Attorney General. Complaint, p. 72.
Finally, Judges Luckert and Anderson are alleged to have directed the back-dating of court records, the falsification of ex parte hearings, and the violation of adoption laws in order to retaliate against plaintiffs. Complaint, p. 108. Neither judge presided over the traffic or adoption cases mentioned in the complaint.
Judicial immunity bars liability under § 1983 and the other statutes recited by plaintiffs for the rulings made by the defendant judges in the adoption cases or the traffic case. Judicial immunity also applies to a decision to recuse from a case or the decision to appoint a new judge to a case where there has been a recusal. These are clearly within the heartland of decisions normally made by judges.
Similarly, the doctrine of judicial immunity bars relief upon the allegation that various judges failed to initiate an investigation or correct a grievance or otherwise take action upon a complaint or request by plaintiffs. Plaintiffs requested that these judges use their judicial authority to pursue an investigation or correct a perceived abuse. The decision of the judges that such action was inappropriate or unauthorized or unnecessary under the law is a judicial decision for which they are immune from liability. Absolute immunity also applies to any order denying plaintiffs access to trial records. See Boone v. Weizel, 917 F.Supp. 518, 519 (N.D.Ohio 1996); Ortiz v. Morgenthau, 772 F.Supp. 1430, 1433 (S.D.N.Y. 1991).
Even if absolute immunity did not apply, the court remains convinced that plaintiffs have failed to state a valid claim with their allegations regarding the failure to conduct an investigation or correct alleged errors and misconduct. See Ginsburg v. Stern, 125 F.Supp. 596, 603 (W.D.Pa. 1954) (one who seeks to discipline members of the court or the bar has no recourse under § 1983 upon an unfavorable consideration of his complaint). As discussed in regard to defendants Hecht and Wittman previously, there is no right to have an investigation performed or, if there was, the defendant judges were entitled to qualified immunity.
Immunity also applies to statements made as part of a disciplinary complaint. See Restatement (Second) of Torts, §§ 585-87 (1977). Furthermore, plaintiffs do not have standing to object to a disciplinary complaint made against their attorney. Plaintiffs appear to concede this point for they state that they are not seeking to recover for others that have suffered by their association with plaintiffs. Doc. No. 64, p. 23.
Plaintiffs allege no facts in their complaint which state a claim that they were denied meaningful access to the courts by reason of any action by the defendant judges. Plaintiffs allege a denial of records, but do not allege how this denied them access to the courts in a substantive way.
Finally, the assertions that defendant Luckert and defendant Anderson directed that actions be taken in retaliation against plaintiffs fail to state a claim. A judge does not have authority to take action in a case unless he or she is the presiding judge. The court may take judicial notice of the fact that defendant Luckert and defendant Anderson did not preside over the cases mentioned in plaintiffs' complaint. Therefore, their alleged directions could not have caused an injury to plaintiffs. Whatever actions were taken in those cases were taken by the presiding judges. Whatever harm was allegedly done to plaintiffs was done by those judges. But, they have judicial immunity for their actions.
— Clerks
Defendants Carol G. Green, Angela M. Callahan, Nancy J. Escalante and Kay Falley are employed as clerks in state court offices. Defendant Howard J. Schwartz is the judicial administrator for the Kansas Supreme Court.
Defendant Schwartz is alleged to be liable to plaintiffs for participating in or failing to report or correct the alleged misdeeds of Kansas Supreme Court Chief Justice McFarland. These actions concern the assignment of judges in connection with the adoption cases.
Defendant Carol Green is alleged to have refused to initiate ethics investigations, to have denied access to records, and to have dismissed a petition for review by the Kansas Supreme Court. She is also alleged to have written a memo directing that David Price be prevented from entering the Kansas Supreme Court Building (p. 72 of the complaint) or prevented from entering without an escorting officer (p. 73).
Defendants Callahan, Escalante and Falley are alleged to have denied plaintiffs access to records relevant to the adoption case (01 A 48). Callahan is also alleged to have conspired with the Kansas Court of Appeals to hinder and delay David Price's efforts to "defend himself."
As stated previously, plaintiffs do not allege facts which support the conclusion that any denial of records or denial of any direct access to the Kansas State Supreme Court building was equal to a denial of meaningful access to the courts. Moreover, to the extent that the denial of records was done at the direction of a state court judge, the defendant clerks are entitled to judicial immunity. See Valdez v. City of Denver, 878 F.2d 1285, 1289 (10th Cir. 1989); Collins v. McClain, 207 F.Supp.2d 1260, 1262 (D.Kan. 2002). In addition, if absolute immunity does not apply, the clerks are entitled to qualified immunity. There is no clearly established right to the adoption case records. In fact, K.S.A. 59-2122 dictates that the records not be open to inspection even by genetic parents after a decree of adoption is entered. There is also a well-recognized power by the courts to control and restrict access to court environs. See In re Prewitt, 280 F.Supp.2d 548, 564 (N.D.Miss. 2003). Finally, the allegation that a memo was issued to stop access to a court building is not an allegation that meaningful access to the courts was actually denied.
The court must also reiterate that there is no constitutional right, in the court's opinion, and certainly not a clearly established right, to have perceived misconduct reported or investigated. Nor do plaintiffs cite authority for such a proposition.
For these reasons, the claims against the defendant clerks must be dismissed.
— Prosecuting attorneys
Defendants Phill Kline, Steve Phillips, Robert Hecht and Karen Wittman are sued for their actions or refusals to act as attorneys involved in state law enforcement. The allegations in the complaint against defendants Hecht and Wittman have already been discussed in this order. The complaint asserts that defendants Kline and Phillips conspired with Topeka city officials to refuse to investigate crimes reported to them by plaintiff. The complaint further asserts that defendant Phillips violated Kansas open meetings and open records statutes.
For the reasons already discussed, these defendants are entitled to absolute and/or qualified immunity from liability for the alleged failure or refusal to investigate crimes. Additionally, any alleged violation of state open meetings or open records laws does not state a claim for the violation of federal law. Therefore, the motion to dismiss should be granted as to these defendants.
— Ron Patterson
Defendant Patterson, a Kansas State Highway Trooper, is alleged in the complaint to have violated state and federal law by citing plaintiff David Price for a traffic violation when Price was driving a bus carrying soldiers to an airport near Topeka where the soldiers were to fly to Iraq.
Defendant Patterson contends that these allegations do not state a claim for malicious prosecution under § 1983 because the traffic charge did not end favorably for plaintiff. Under Tenth Circuit law, the elements of a malicious prosecution action under state law are used to examine a malicious prosecution claim under § 1983. Taylor v. Meacham, 82 F.3d 1556, 1561-62 (10th Cir.) cert. denied, 519 U.S. 871 (1996). One of the elements for a malicious prosecution claim under Kansas law is that the proceedings terminated favorably to the plaintiff. Lindenman v. Umscheid, 875 P.2d 964, 974 (Kan. 1994). Plaintiff David Price does not allege that the traffic charge ended favorably. The court takes judicial notice of the fact that plaintiff David Price was convicted of the traffic charge and that conviction has not been overturned. Therefore, this claim must be dismissed.
Motion to Dismiss of defendant Edward L. Bailey
Plaintiffs allege that defendant Bailey, an attorney, conspired with city public officials during his representation of city police officers in federal litigation filed by plaintiffs in this district. Case No. 00-2193-GTV. Plaintiffs specifically fault Bailey for arguing against the court's consideration of allegedly self-authenticating documents in connection with a summary judgment motion upon which Bailey's clients prevailed.
Defendant Bailey's motion should be granted for the following reasons. First, there is no plausible allegation that defendant Bailey was acting under color of state law during his representation of the police officers. Therefore, there could be no cause of action under § 1983. SeePolk County v. Dodson, 454 U.S. 312, 318 (1981); Catz v. Chalker, 142 F.3d 279, 289 (6th Cir. 1998); Filal v. Kaplan, 904 F.2d 14, 15 (8th Cir. 1990); Lindley v. Amoco Production Co., 639 F.2d 671, 673 (10th Cir. 1981); Dunn v. Hackworth, 628 F.2d 1111, 1112-13 (8th Cir. 1980). Second, plaintiffs have no right to protection against successful or unsuccessful arguments in litigation. Plaintiffs' sole recourse against an argument in litigation is to appeal the ruling upon that argument. Third, plaintiffs fail to properly allege facts demonstrating that defendant Bailey conspired with others to violate plaintiffs' rights. Plaintiffs only allege that defendant Bailey joined with others to defend litigation brought by plaintiffs. This does not allege a conspiracy in violation of federal law.
For these reasons, the court shall grant defendant Bailey's motion to dismiss. Motion to dismiss defendant Bruce Woolpert
Defendant Woolpert was appointed by the Shawnee County District Court to represent plaintiff David Price in the termination of parental rights case. Case No. 01-A-48. The complaint alleges that: "Defendant, Bruce D. Woolpert co-conspired with Defendant, Austin K. Vincent, to orchestrate the removal of Baby C. from the State of Kansas, denying the thwarted biological father, Plaintiff David Martin Price, access to the child at every turn." Complaint, p. 28.
As with plaintiff's claims against defendant Bailey, there is no plausible allegation of state action in Woolpert's conduct while representing plaintiff Price to support a cause of action under 42 U.S.C. § 1983. Nor do the allegations support a cause of action under the other statutes alleged by plaintiffs. Therefore, the motion to dismiss shall be granted.
Motion to dismiss of Austin K. Vincent
Defendant Vincent is sued because of his actions while representing the adoptive parents and (according to plaintiffs) the baby, the Pregnancy Outreach Crisis Center, and the birth mother in Case No. 01-A-48.
As with plaintiffs' claims against defendants Bailey and Woolpert, there is no plausible allegation of state action in Vincent's conduct while representing private parties in litigation involving plaintiffs to support a cause of action under 42 U.S.C. § 1983. Nor do the allegations support a cause of action under the other statutes alleged by plaintiffs. Therefore, the motion to dismiss shall be granted.
Motion to dismiss defendants Eric Melgren, Randy Hendershot, David Plinsky, Kevin Stafford and Steve Smith
Defendants Melgren, Hendershot and Plinsky are attorneys in the United States Attorney's Office for the District of Kansas. Melgren is the U.S. Attorney. Hendershot and Plinsky are Assistant U.S. Attorneys. Defendants Stafford and Smith are FBI agents. Defendant Plinsky is being defended in this motion with regard to his actions as an Assistant U.S. Attorney. He is represented in another motion to dismiss with regard to his actions in his former job as an attorney for the City of Topeka.
Defendants Melgren, Hendershot, Stafford and Smith are alleged in plaintiffs' complaint to have failed to take action after plaintiffs made them aware of wrongdoings. Defendant Plinsky is alleged to have discredited and attacked plaintiffs during his employment as a federal attorney.
The motion to dismiss must be granted for the following reasons. As discussed with regard to defendant Wittman and defendant Hecht, there is no constitutional right to have government officials investigate claims or reports of wrongdoing and, even if there were such a right, defendants would be entitled to qualified immunity. Moreover, there are no allegations regarding defendant Plinsky's actions as a federal attorney which state a claim of relief. Assertions that plaintiffs were "attacked" or "discredited" are too vague to state a claim of relief. Additionally, federal officers cannot be considered "state actors" who are potentially liable under § 1983. Belhomme v. Widnall, 127 F.3d 1214, 1217 (10th Cir. 1997) cert. denied, 523 U.S. 1100 (1998).
Motion to dismiss defendants John Knoll and David Plinsky
This motion asks for the dismissal of the claims made against John Knoll and against David Plinsky for his actions as an attorney for the City of Topeka. The complaint alleges that defendant John Knoll "willfully and maliciously sought prosecution, as well as, harassment of Plaintiff, David Martin Price, to defend the City of Topeka, Kansas' elected officials from prosecution for their actions in misappropriation of Federal monies allocated to them through C.B.D.G. funds by the Federal Government." Complaint, p. 31. Knoll is also alleged to have falsely prosecuted plaintiff David Price elsewhere in the complaint. Complaint, p. 102. The complaint further states that Knoll had an agreement with the mayor of Topeka and police officers to "target" plaintiff David Price for the purpose of discrediting him (p. 42), and that he once told another attorney and that the City would not dismiss a case against Price in which the statute of limitations had expired because "Mr. Price . . . was one of the City's Favorites." Complaint, p. 59.
The complaint alleges that defendant David Plinsky:
"conspired with the City of Topeka public Officials against the Plaintiffs, David Martin Price and Rosemary Denise Price, in their Civil Action against City of Topeka Police Officers. 00 2193 GTV To go as far as, authoring affidavits for the Police Officer/Defendants of that case and admitting to it in court, as well as admitting to the courts that he directed the Officers not to contact the courts about the proceedings, then conspired with Defendant, Edward L. Bailey, to use an unauthenticated plea, on document which he submitted to the Plaintiffs during discovery."
Complaint, p. 38. Elsewhere in the complaint, it is alleged that defendant Plinsky "fraudulently disputed" the authenticity of documents in Case No. 00-2193-GTV. Complaint, p. 99-100. It is further alleged that he "instructed and assisted" Topeka police officers in falsely denying that they had been served with process in the same case. Complaint, p. 103. The complaint also states that Plinsky attended a hearing "causing a chain of events" leading to retaliation against plaintiff Rosemary Denise Price and a man named Melvin Johnson. Complaint, p. 100. Finally, it is further asserted that Plinsky caused process servers to be harassed and stalked in Case No. 00-2193-GTV. Complaint, p. 104.
— John Knoll
Plaintiffs allege that defendant Knoll falsely or maliciously prosecuted David Price to retaliate against plaintiffs in a manner which violates their constitutional rights. Defendant Knoll asserts that he is immune from any liability under the doctrine of prosecutorial immunity. On the basis of the reasoning and authority cited with regard to defendants Hecht and Wittman, the court believes defendant Knoll should be dismissed on the grounds of prosecutorial immunity. None of the allegations made in the complaint against defendant Knoll appear to involve investigative or administrative actions for which Knoll might not be immune. Additionally, many allegations simply do not state a cause of action. Being "targeted" or making a statement regarding a case against one of the plaintiffs does not state a cause of action. Cf., Newsome v. Erwin, 137 F.Supp.2d 934, 940 n. 5 (S.D.Ohio 2000) ("[A] mere `threat to do an act prohibited by the Constitution' is not `equivalent to doing the act itself.'") (quoting Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987).
— David Plinsky
Plaintiffs claim that defendant Plinsky fraudulently disputed the authenticity of documents in Case No. 00-2193-GTV. This issue was decided contrary to plaintiffs by the district court in Case No. 00-2193-GTV, and the decision was affirmed by the Tenth Circuit. Price v. Cochran, 66 Fed.Appx. 781, 2003 WL 21054706 (10th Cir. 2003) affirming, 205 F.Supp.2d 1241 (D.Kan. 2002). The district court was careful in the decision to state that the result, summary judgment in favor of the defendants, would have been the same regardless of the ruling that certain documents submitted by plaintiffs were unauthenticated. Price, 205 F.Supp.2d at 1250 1253. Therefore, plaintiffs cannot prove that their constitutional rights were violated by Plinsky because his conduct was not illegal and did not damage any interest protected by the due process clause.
Plaintiffs also claim that Plinsky instructed and assisted Topeka police officers in falsely denying that they had been served with process in Case No. 00-2193-GTV. This issue was raised in that litigation and decided contrary to plaintiffs' position. See Price, 66 Fed.Appx. at 786. This allegation does not state a claim under § 1983. "The core of due process is the right to notice and a meaningful opportunity to be heard."Lachance v. Erickson, 522 U.S. 262, 266 (1998) citing, Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985). Irrespective of the alleged false statements which led to the vacating of a default finding in plaintiffs' favor, plaintiffs' claims in Case No. 00-2193-GTV were given a hearing and were decided under well-established principles of due process. Therefore, plaintiffs did not suffer a violation of their rights to due process because of the alleged perjury.
As stated earlier, the allegation that defendant Plinsky attended a hearing and caused a chain of events leading to retaliation against plaintiff Rosemary Denise Price is much too vague to state a claim. Plaintiffs have asserted no constitutional right to prevent attendance at a hearing. Finally, plaintiffs have no standing to assert a claim that process servers were harassed by reason of defendant Plinsky's conduct. Plaintiffs state in their briefs in response to the motions to dismiss that they are not attempting to recover for the violation of other persons' rights. Doc. No. 81, p. 12. Therefore, there is no cause of action stated or claimed for harassment or retaliation of persons other than the plaintiffs.
For these reasons, the court shall grant the motion to dismiss the claims against defendant Knoll and the claims against defendant Plinsky for his conduct when he was an attorney for the City of Topeka.
State law claims
The court has stated the reasons to dismiss the federal law claims in the complaint. As mentioned, plaintiffs cite state statutes in the complaint as well. Assuming that plaintiffs intend to assert state law claims in the complaint, we must determine whether to maintain supplemental jurisdiction over the state law claims if the federal claims are dismissed. Under these circumstances the court generally declines to exercise supplemental jurisdiction over state law claims. See 28 U.S.C. § 1367(c); Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998) ("When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims."); Cole v. Sharp, 898 F.Supp. 799, 804 (D.Kan. 1995) (declining to exercise supplemental jurisdiction where claims under 42 U.S.C. § 1983 were dismissed). The court sees no good reason to modify our usual course here.
Rule 11 and § 1988
Defendants Hecht and Wittman, as part of their initial motion to dismiss, asked the court to assess sanctions under FED.R.CIV.P. 11. The state defendants have asked for an award of attorney's fees under 42 U.S.C. § 1988. The Rule 11 request does not follow the procedural requirements of the rule regarding advance notice to plaintiffs. Considering this as well as plaintiffs' pro se status, the court shall deny the request for sanctions. The request for fees under § 1988 does not follow the requirements of FED.R.CIV.P. 54 and Local Rule 54.2. Therefore, that request shall be denied without prejudice. The court would also note that the Tenth Circuit has remanded a fee award under § 1988 for consideration of whether such an award may be made in cases where the district court lacks subject-matter jurisdiction. Olsen v. Aebersold, 71 Fed.Appx. 7, 2003 WL 21580577 (10th Cir. 2003). This issue would have to be addressed and decided before a fee award could be made under § 1988.
Conclusion
In conclusion, plaintiffs' motion for stay is denied. Plaintiffs' motion for recusal is denied. Defendant Plinsky's motion to strike is denied. Plaintiffs' motion for leave to respond is granted. Defendants' motions to dismiss or for judgment on the pleadings are granted. The requests for Rule 11 sanctions and fees under § 1988 are denied.
IT IS SO ORDERED.