Adam Poole v. County of Otero, 00-2215

• Decision Date: 05 September 2001
• Docket Number: No. 00-2215,00-2215
• Parties: (10th Cir. 2001) ADAM POOLE, Plaintiff-Appellant, v. COUNTY OF OTERO; JOHNNY LEE, Sheriff; TOM SKIPWORTH, Deputy, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 955

271 F.3d 955 (10th Cir. 2001)

ADAM POOLE, Plaintiff-Appellant, v. COUNTY OF OTERO; JOHNNY LEE, Sheriff; TOM SKIPWORTH, Deputy, Defendants-Appellees.

No. 00-2215

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

September 5, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO, (D.C. No. CIV-99-741-LH)

[Copyrighted Material Omitted] Michael W. Lilley and Kyle W. Gesswein, Lilley Law Office, Las Cruces, New Mexico, for Plaintiff-Appellant.

Leonard J. Piazza, Sandenaw, Carrillo & Piazza, P.C., Las Cruces, New Mexico, for Defendants-Appellees.

Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.

McKAY, Circuit Judge.

Adam Poole appeals from the district court's ruling dismissing his civil rights complaint pursuant to Fed. R. App. P. 12(b)(6) for failure to state a claim. We have jurisdiction over this appeal by virtue of 28 U.S.C. 1291, and we review the district court's dismissal de novo.¹ Morse v. Regents of the Univ. of Colo., 154 F.3d 1124, 1126 (10th Cir. 1998). "Dismissal under Rule 12(b)(6) is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice," id. at 1127, and "is inappropriate 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

At the time of the district court's disposition of this case, Mr. Poole had requested leave to amend his complaint. Although the district court apparently based its dismissal on review of the sufficiency of his original complaint, see Aplt. App. at 155, it also concluded that the proposed amended complaint likewise failed to state a claim and that, therefore, allowing amendment would be futile. Id. We agree with Mr. Poole that the relevant inquiry on appeal is whether his proposed amended complaint states a claim for relief. See Appellant's Br. at 8. Accordingly, our review is limited to the allegations in his unfiled amended complaint,² accepting the factual allegations as true and resolving all reasonable inferences in his favor. Morse, 154 F.3d at 1126-27.

On July 4, 1997, individual defendants, other Otero County officers, and Alamogordo police officers pursued Mr. Poole while he was speeding on a motorcycle through Alamogordo, New Mexico into the desert, ultimately resulting in serious injuries to Mr. Poole. The next day, officers and employees of both the Alamogordo Police Department and the Otero County Sheriff's Department investigated the scene where the injuries took place, and Alamogordo police officers took statements from witnesses. That same day, an Alamogordo police officer issued Mr. Poole a traffic ticket for careless driving. Almost three weeks later, Mr. Poole's counsel wrote letters to defendant Otero County, defendant Sheriff Lee, and the district attorney, requesting that they preserve all evidence of the incident. Within one week of that time, the district attorney's office withdrew the careless driving charge and, four days later, filed a complaint charging Mr. Poole with six criminal counts of reckless driving and resisting and evading arrest.

Mr. Poole's complaint, seeking damages under 42 U.S.C. 1983 and attorney's fees under 42 U.S.C. 1988, asserted 1) various claims under the Fourth and Fourteenth Amendments for recklessness and deliberate indifference to his rights, including claims of failure to implement appropriate procedures, failure to train and supervise, excessive force, seizure, and violation of substantive due process; 2) claims under the First Amendment for retaliatory, vindictive, and selective prosecution in violation of his right of access to the courts, and 3) various state-based tort claims grounded in allegations of negligence, recklessness, failure to train and supervise, and respondeat superior. Defendants filed a motion to dismiss pursuant to Rule 12(b)(6). After briefing, the district court held a hearing on the motion during which the court ruled from the bench, rejecting Mr. Poole's constitutional claims and declining to exercise pendent jurisdiction over his remaining state claims. See Aplt. App. at 196-99. On appeal, Mr. Poole has limited his arguments to his First Amendment claims and his pendent state claims. We conclude that he has waived all other issues. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).

Mr. Poole alleged that defendants selectively prosecuted him, noting that James Sullivan, the other motorcyclist who had been speeding through Alamogordo with him, was not charged. See Aplt. App. at 143. The district court ruled that Mr. Poole had failed to allege an adequate factual basis to establish a claim of selective prosecution. See id. at 198. We agree.

In order to prevail on a claim of selective prosecution, a defendant must show that he has been singled out for prosecution while others similarly situated generally have not been proceeded against for the type of conduct forming the basis of the charge against him. In addition, the defendant must prove that the government's selection of him for prosecution was invidious or in bad faith and was based on impermissible considerations such as . . . the desire to prevent the exercise of constitutional rights.

United States v. Furman, 31 F.3d 1034, 1037 (10th Cir. 1994) (quotations omitted) (alteration in original).³ Although Mr. Poole alleged that both he and Sullivan had been speeding through Alamogordo before he left the city limits and went into the desert, it is clear from the complaint that his conduct in town did not form the sole, or even primary, basis for his prosecution. Mr. Poole alleged that he and Sullivan split up and he continued into the desert, where he was pursued at length by defendants Lee and Skipworth and other Otero County officers. See Aplt. App. at 137-38. Although Mr. Poole alleges Sullivan admitted to a police officer that he had raced through Alamogordo, see id. at 141, there is no allegation that Sullivan continued out into the desert or attempted to evade law enforcement officers. Therefore, Mr. Poole's allegations, even when taken as true for Rule 12(b)(6) purposes, do not demonstrate that he and Sullivan were similarly situated.⁴ We affirm the district court's dismissal of Mr. Poole's selective prosecution claim.

We understand Mr. Poole's remaining claim to be one for retaliatory and vindictive prosecution in violation of his First Amendment right of access to the courts.⁵ He has alleged that defendants Lee and Skipworth caused criminal charges to be brought against him in retaliation for the anticipated exercise of his First Amendment right to bring a civil rights lawsuit against them. During the hearing on defendants' motion to dismiss, the district judge questioned Mr. Poole's counsel on two points, whether 1) the letters from counsel to defendants Lee and Otero County requesting that they preserve evidence were sufficient to trigger Mr. Poole's First Amendment right of access to the courts, and 2) Mr. Poole could show that the decision to prosecute him on the six criminal charges actually hindered his access to the courts. See Aplt. App. at 176-83. In his oral ruling, the judge concluded that Mr. Poole had failed to state a First Amendment claim in this context because he had not alleged facts that, if proven, would demonstrate actual injury. See id. at 197.

Mr. Poole asserts that facing criminal charges was injury caused by the alleged retaliatory prosecution and also contends that defending himself against the charges "undoubtedly ma[d]e it more difficult for [him] to pursue and prevail on his civil claim." Appellant's Br. at 14. He argues that "in cases where retaliation is alleged, as here, the actual injury results from the retaliation." Id. at 15.⁶ We agree with Mr. Poole that, in the retaliatory context, he has alleged injury sufficient to withstand a motion to dismiss.

"Retaliation, though it is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) (quotations omitted). We recognize that a trivial or de minimis injury will not support a retaliatory prosecution claim. See id. at 493; Bloch v. Ribar, 156 F.3d 673, 679 (6th Cir. 1998). This court has suggested that the alleged injury should be one that "would chill a person of ordinary firmness from continuing to engage in that activity." Worrell v. Henry, 219 F.3d 1197, 1213 (10th Cir. 2000) (quotation omitted). Therefore, the injury need not actually have deterred Mr. Poole from filing this lawsuit. Cf. Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) ("[A] retaliation claim may assert an injury no more tangible than a chilling effect of First Amendment rights."); Bloch, 156 F.3d at 679 (noting that injuries such as emotional distress are compensable under 1983). Taking the factual allegations in Mr. Poole's complaint as true, we conclude that facing criminal charges that were brought in order to hinder or prevent him from filing a civil lawsuit against defendants is injury sufficient to chill a person of ordinary firmness. Therefore, we remand this case to the district court for further proceedings on this claim.

The district court relied on Penrod v. Zavaras, 94 F.3d 1399 (10th Cir. 1996) (per curiam), and Miracle ex rel. Miracle v. Spooner, 978 F. Supp. 1161 (N.D. Ga. 1997), to conclude that Mr. Poole must allege an actual injury resulting from the alleged retaliation. These cases do not compel the dismissal of Mr. Poole's First Amendment claim. In Penrod, this court stated that the "actual injury" the prisoner plaintiff had to show was that the challenged official action--restrictions of his library privileges-- hindered his efforts to pursue a...