Hall v. Witteman
| Decision Date | 06 August 2008 |
| Docket Number | No. 07-4128-SAC.,07-4128-SAC. |
| Citation | 569 F.Supp.2d 1208 |
| Parties | George Milam HALL, Plaintiff, v. Douglas P. WITTEMAN, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
George Milam Hall, Greeley, KS, pro se.
David R. Cooper, Fisher, Patterson, Sayler & Smith, Stephen O. Phillips, Topeka, KS, Toby Jon Crouse, Wendell F. Cowan, Jr., Foulston Siefkin LLP, Overland Park, KS, Robert L. Bezek, Jr., Bezek, Lowry & Hendrix, Blaine B. Finch, Green & Finch, Chartered, Ottawa, KS, for Defendants.
Plaintiff invokes the court's federal question jurisdiction, asserting claims under 42 U.S.C. § 1983, 42 U.S.C. § 1985, and 18 U.S.C. § 1962, as well as various state law claims. This case comes before the court on motions to dismiss filed by multiple defendants, as well as on various additional motions.
The court accepts all well-pleaded allegations, taken in the light most favorable to the plaintiff, as true. E.F.W. v. St. Stephen's Indian High Sch., 264 F.3d 1297, 1305 (10th Cir.2001). In October of 2006, plaintiff became aware that state district court Judge Fromme would be up for retention in an election to be held on November 7, 2006. Plaintiff believed Judge Fromme's past treatment of plaintiffs mother was of public concern, so plaintiff drafted an advertisement for placement in various newspapers, captioned "PHILLIP M. FROMME, DISTRICT COURT JUDGE, SHOULD NOT BE RETAINED ON NOVEMBER 7, 2006" ("Plaintiff's Advertisement"). Dk. 21, Exh. A. Plaintiff's attempts to contact Judge Fromme in November about this matter were unsuccessful.
By October 30, 2006, plaintiff had more than eight hours of conversation and written contact with the publisher of The Coffey County Republican (defendant Catherine Faimon). He showed them court records which he believes persuaded them that his advertisement was true. Accordingly, plaintiff contracted with the Republican and paid to publish his advertisement twice, which it agreed to do. On October 31st, The Coffey County Republican ran plaintiffs letter to the editor, which spoke to the same topic as did Plaintiffs Advertisement. Plaintiffs Advertisement was published once in The Coffey County Republican, as well as in The Anderson County Review, The Ottawa Herald and The Osage County Herald. Abbreviated versions of Plaintiffs Advertisement were also published via plaintiffs letters to the editors of The Topeka Capital Journal, The Anderson County Review, and The Ottawa Herald.
Plaintiff expected his advertisement to be published in The Coffey County Republican a second time on November 3rd. On that date, to plaintiffs surprise, The Coffey County Republican did not contain Plaintiffs Advertisement, nor did it subsequently publish it. The Coffey County Republican did not inform plaintiff prior to November 3rd of its decision not to run Plaintiffs Advertisement a second time. Instead, the November 3rd edition of the Coffey County Republican contained an advertisement supporting Judge Fromme (the "Responsive Advertisement") and challenging the plaintiff, captioned: Plaintiff believes the advertisement makes knowingly false accusations about him, was done with malice, and is libelous.
The Responsive Advertisement closed by stating:
6. It is unfortunate that our local paper did not take the time necessary to ascertain all the relevant facts before publishing this attack in The Coffey County Republican.
7. Judge Phillip M. Fromme has the support of the entire membership of the Coffey County Bar Association. We would urge you to vote to retain Judge Phillip M. Fromme on your ballot on November 7, 2006.
PAID FOR BY: Stephen J. Smith, Attorney at Law—James R. Campbell, Attorney at Law—Douglas P. Witteman, Coffey County Attorney—Thomas L. Robrahn, Attorney at Law—Linda S. McMurray, Attorney at Law—Brenda R. Kelley, Attorney at Law—Brad L. Jones, Attorney at Law—Bryan M. Hastert, Attorney at Law.
Dk. 1, p. 12-13. The above-named attorneys, the Coffey County Bar Association, Judge Fromme, and others are among the defendants named in this case.
Plaintiff claims that on November 1, 2006, defendants Smith, Fromme, Ryburn, Campbell, the Coffey County Bar Association, and the Franklin County Bar Association threatened to sue the publisher of The Coffey County Republican if she printed Plaintiffs Advertisement again, and coerced her into publishing the Responsive Advertisement instead of publishing Plaintiffs Advertisement a second time. Plaintiff claims the Responsive Advertisement caused the public to not do business with him, damaged his reputation, his property and his business, and caused him great mental anguish and emotional distress.
Judge Fromme was retained by vote on November 7th in what plaintiff characterizes as a "narrow margin." Dk. 1, p. 13. Thereafter, plaintiff appeared before the Coffey County Commission and addressed what plaintiff believes was "liability imputed to them by Witteman," Dk. 1, p. 14, but they never took action on the matter or responded to plaintiff about it. Plaintiff additionally filed a criminal referral/complaint with defendant Witteman in his capacity as Coffey County Attorney, urging him to prosecute the defendants under Kansas criminal statutes, but to date Witteman has not responded to plaintiff and no such action has been commenced. Id.
The above facts constitute the gravamen of plaintiffs complaint. Other matters included in plaintiffs complaint will be addressed below as necessary to the resolution of the motions.
Plaintiff has moved the court for leave to file excess pages (Dk.116) in his responses to defendants' motions to dismiss, and to amend his responses. This motion is granted to the extent that the court will consider all plaintiffs pleadings, motions, and briefs currently filed. The court appreciates plaintiffs efforts to consolidate his responses to the multiple motions to dismiss and to avoid any unnecessary redundancy.
Plaintiff has filed various motions relating to Judge Fromme's motion to dismiss. See Dk. 72 ();. Dk. 43 (). The court fully understands plaintiffs contention that he sued defendant Fromme as a private citizen for acts taken outside the scope of his employment as a district judge, and that defendant Fromme answered only in his official capacity as a district judge. The court fully considered and squarely rejected plaintiffs claims in its prior decision on plaintiffs motion for default and entry of default, Dk. 62, as well as in its reconsideration of that order, Dk. 102, specifically finding that "defendant's Fromme's timely motion to dismiss (Dk. 9) constitutes a sufficient responsive pleading by him in the capacity in which he was sued and precludes a default judgment against him." Dk. 102. The current motions address identical issues. As no reason to alter the court's previous ruling has been shown, these motions shall be denied.
Plaintiff has additionally filed a motion for appointment of counsel, Dk. 118. In civil actions, the court may appoint counsel in its discretion, "in such circumstances as the court may deem just." Castner v. Colorado Springs Cablevision, 979 F.2d 1417 (10th Cir.1992). In determining whether justice requires appointment of counsel, the court considers the plaintiffs financial ability to retain counsel, the merits of plaintiff's claim, and plaintiffs capacity to prepare and present the case without the aid of counsel. Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir.2004)(citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)). Plaintiff has shown the court that he has diligently but unsuccessfully sought counsel. Nonetheless, given plaintiffs capacity to prepare and present his case without the aid of counsel, coupled with the findings below regarding the merits of the case, the court denies the motion for counsel.
Improper service of process
The City of Garnett, Kansas, and its City Attorney, Terry Solander, claim that service as to them was 19 days late, and move to dismiss, apparently pursuant to Fed.R.Civ.P. 12(b)(2) (), and (b)(5)(insufficiency of service of process).
It is undisputed that these two defendants were not timely served. "The preliminary inquiry to be made under Rule 4(m) is whether the plaintiff has shown good cause for the failure to timely effect service." Espinoza v. United States, 52 F.3d 838, 841 (10th Cir.1995). Id.
Plaintiff correctly responds that he was relieved of the duty to serve defendants by virtue of a court order. When the Magistrate Judge granted plaintiffs Motion for Leave to Proceed in forma pauperis, he added: "The clerks office shall proceed with service of process, except' to those defendants plaintiff has directed not to be served until 120 days have past (sic) since the filing of the Complaint." Dk. 4. The clerk's office thus had to examine the Complaint to determine which defendants to serve immediately. The Complaint states that plaintiff intends to add the defendants named in paragraph five "timely after 120 days, or sooner." Dk. 1, para. 5. The court finds the Complaint's directions about when to serve the defendants listed in paragraph five, which include The City of Garnett, Kansas and Terry Solander, to be...
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