Hall v. Witteman
| Decision Date | 19 October 2009 |
| Docket Number | No. 08-3299.,No. 08-3251.,08-3251.,08-3299. |
| Citation | 584 F.3d 859 |
| Parties | George Milam HALL, Plaintiff-Appellant, v. Douglas P. WITTEMAN, Kansas State Official, in his official capacity as Coffey County Attorney and individually and personally; Phillip M. Fromme, individually and personally; Coffey County Commissioners, individually and personally; Coffey County, Kansas, Anderson County Commissioners, individually and personally; Coffey County Bar Association, individually and personally; James R. Campbell, as Attorney for the Anderson County Commissioners and individually and personally; City of Garnett, Kansas, Terry Solander, individually and personally; Brad Jones, individually and personally; Brian K. Joy, individually and personally; Bryan M. Hastert, individually and personally; Linda McMurray, individually and personally; Thomas Robrahn, individually and personally; Brenda Kelley, individually and personally; Stephen J. Smith, individually and personally; Scott Ryburn, individually and personally; Robert Green, individually and personally; Catherine Faimon; and Coffey County Republican, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and TYMKOVICH, Circuit Judge.
George Milam Hall submitted to a local newspaper, the Coffey County Republican ("The Republican"), an advertisement opposing the election bid of Judge Phillip M. Fromme. He paid to have the ad run on two occasions. The paper ran the ad the first time but not the second, instead running an ad supporting Judge Fromme, which was paid for and signed by a number of attorneys, including Coffey County Attorney Douglas Witteman. Mr. Hall filed suit in the United States District Court for the District of Kansas against The Republican, Judge Fromme, the signatory attorneys, and a few others. His complaint included claims under federal civil-rights laws (42 U.S.C. §§ 1983 and 1985) and the federal Racketeer Influenced and Corrupt Organization (RICO) statute (18 U.S.C. §§ 1961-68), as well as a number of state-law claims. The heart of the allegations in the complaint's 153 paragraphs is that after Mr. Hall placed his advertisement, the defendants unlawfully convinced the paper's publisher to pull the second running of his advertisement in favor of their own, which contained defamatory remarks about him. This action, he contends, violated his right of free speech under the First Amendment, as applied to the states under the Fourteenth Amendment, as well as his Fourteenth Amendment right to equal protection of the law.
The district court dismissed Mr. Hall's federal claims for failure to state a claim upon which relief can be granted, see Fed. R.Civ.P. 12(b)(6), and denied his motion to amend his complaint. It declined to exercise supplemental jurisdiction over his state-law claims. Mr. Hall now appeals. We have jurisdiction under 28 U.S.C. § 12911 and affirm. His civil-rights claims fail because he did not allege state action, and his RICO claims fail because he did not allege a threat of continuing racketeering activity.
Because we are reviewing a dismissal under Rule 12(b)(6), we assume the truth of the properly alleged facts in Mr. Hall's complaint. Cory v. Allstate, 583 F.3d 1240, 1244, No. 08-2168, 2009 WL 2871541, at *4 (10th Cir. Sept.9, 2009). In the fall of 2006, Mr. Hall campaigned against Judge Fromme's retention in the election to be held that November. (His displeasure with Judge Fromme appears to stem from the manner in which Judge Fromme presided over litigation involving Mr. Hall's mother.) As part of this campaign, Mr. Hall placed an advertisement in The Republican. He paid the paper to run the ad on October 31 and November 3, but the paper published the ad only on October 31. On November 3, The Republican, instead of carrying Mr. Hall's ad, ran an advertisement placed by a group of attorneys who belonged to the Coffey County Bar Association (the "Responsive Ad"). The Responsive Ad was critical of Mr. Hall and called into question his motives in opposing Judge Fromme's retention. It was paid for and signed by defendants Stephen Smith, James Campbell, Douglas Witteman, Thomas Robrahn, Linda McMurray, Brenda Kelley, Brad Jones, and Bryan Hastert (the "Bar Association Defendants") each of whom, except Mr. Witteman, signed the Responsive Ad as "Attorney at Law." R., Vol. 1 Doc. 1 at 13. Mr. Witteman signed using his title as "Coffey County Attorney." Id.
Mr. Hall requested Mr. Witteman, in his capacity as Coffey County Attorney, to prosecute the Bar Association Defendants and others for their actions in placing the advertisement. He also appeared before the Coffey County Commissioners to discuss their potential liability for Mr. Witteman's actions. Neither Mr. Witteman nor the Commissioners took any action in response.
On November 2, 2007, Mr. Hall filed his 36-page, 9-count complaint in federal district court. Included as defendants in the complaint were the Bar Association Defendants, Judge Fromme, and The Republican and some of its personnel, as well as various other entities and individuals (including local governments and their officials) whose connection to the alleged conspiracy is not entirely clear from the complaint. In addition to the federal civil-rights and RICO claims, Mr. Hall's complaint asserts state-law causes of action for invasion of privacy, defamation, negligent and intentional infliction of emotional distress, tortious interference with contract, and fraud. "Mr. Hall's theory of the case," as he describes it in his opening brief on appeal, "is that [the defendants] violated his civil rights by intimidating and coercing a local newspaper from running a political advertisement submitted by Mr. Hall, and for which he paid." Aplt. Br. at 3.
The defendants moved to dismiss the complaint under Rule 12(b)(6), arguing primarily that Mr. Hall had failed to state a federal cause of action. The district court agreed. In orders dated August 6 and October 1, 2008, it concluded that the complaint failed to allege the requisite state action to support a § 1983 claim, and for various reasons failed to state claims under § 1985 and RICO. It dismissed those claims with prejudice and declined to exercise supplemental jurisdiction over the state-law claims, dismissing them without prejudice. Mr. Hall now challenges the court's dismissal of his federal claims.
We review de novo the dismissal of a complaint under Rule 12(b)(6). See Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir.2009). Id. (citations, brackets, and internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
Iqbal stressed that it is not enough for the plaintiff to plead facts "merely consistent" with the defendant's liability. Id. (internal quotation marks omitted). Also, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Iqbal suggested a two-step approach. First, the court "identif[ies] the [conclusory] allegations in the complaint that are not entitled to the assumption of truth." Id. at 1951. Then it "consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief." Id.
Mr. Hall's pro se status entitles him to a liberal construction of his pleadings. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir.2007). Nonetheless, "this court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (brackets and internal quotation marks omitted).
"To state a claim under [42 U.S.C.] § 1983 a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Private persons may be said to act "`under color of' state law" if they are "jointly engaged with state officials in the challenged action." Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). But "private conduct that is not fairly attributable to the State is simply not actionable under § 1983, however discriminatory or wrongful the conduct is." Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir.1995) (citations and internal quotation marks omitted). Mr. Hall's § 1983 claim is premised on the alleged denial of his rights to free speech and equal protection under the Fourteenth Amendment. A violation of the Fourteenth Amendment requires action by the state. In the context of § 1983 claims based on violations of the Fourteenth Amendment, as is the situation here, the under-color-of-state-law requirement in § 1983 is equivalent to the Fourteenth Amendment's state-action requirement. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 n. 8, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999).
Although several defendants are local governments or persons holding public office, the sole defendant on whose official position the complaint specifically relies is Mr. Witteman. Mr. Hall appears to concede that his §...
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