Jones v. Wildgen

Decision Date14 December 2004
Docket NumberNo. CIV.A.03-2369-KHV.,CIV.A.03-2369-KHV.
Citation349 F.Supp.2d 1358
PartiesMary Anton JONES, Aaron Kirby, John Bush, Jerry Carbrey, Al Haverty, Joseph Keating, Mark Lehmann, Robert Moody, Aron Olivera, Philip Hemphill and Sandy Warner, Plaintiffs, v. Michael WILDGEN, David Corliss, Barry Walthall, Victor Torres, David Dunfield, Sue Hack, Marty Kennedy, Mike Rundle, Jim Henry, Erv Hodges, all in their individual and official capacities, City of Lawrence, Kansas, Lee Smith, Shawn Murphy, Brian Jiminez, and John Doe, all in their individual and official capacities, Defendants.
CourtU.S. District Court — District of Kansas

Christopher R. P. Miller, Little & Miller Chtd, Lawrence, KS, for Plaintiff.

Gerald L. Cooley, Randall F. Larkin, Gilliland & Hayes, P.A.-US Bank Tower, Lawrence, KS, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Plaintiffs filed suit against the City of Lawrence, Kansas and various City officials under 42 U.S.C. § 1983, alleging that defendants enacted and enforced a city ordinance which requires that rental properties be licensed in certain residential areas, and that they thereby violated plaintiffs' constitutional rights and their rights under unspecified federal statutes. On June 2, 2004, this Court sustained defendants' motion to dismiss, see Memorandum And Order (Doc. # 28), but granted plaintiffs leave to file an amended complaint as to certain claims.1 This matter comes before the Court on plaintiffs' Motion For Reconsideration And For Leave To File An Amended Petition (Doc. # 30) filed June 14, 2004. For reasons stated below, plaintiffs' motion is sustained in part and overruled in part.

I. Motion To Reconsider

The Court has discretion whether to grant a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir.1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981); Burnett v. W. Res., Inc., 929 F.Supp. 1349, 1360 (D.Kan.1996). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed. See Voelkel v. Gen. Motors Corp., 846 F.Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484, 1994 WL 708220 (10th Cir.1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991).

In six pages of argument in support of their motion for reconsideration, plaintiffs cite no legal authority except the ordinance which they challenge. Local rules require that plaintiffs' brief articulate their arguments in a format which "shall refer to all statutes, rules and authorities relied upon." D. Kan. Rule 7.6(a)(4). Plaintiffs' motion to reconsider does not comply with that rule, and plaintiffs' argument does not demonstrate that reconsideration is justified because of an intervening change in controlling law or the need to correct clear error or prevent manifest injustice.2

II. Motion For Leave To File An Amended Complaint

Alternatively, plaintiffs seek leave to file an amended complaint. Leave to amend is a matter committed to the sound discretion of the district court. See First City Bank. N.A. v. Air Capitol Aircraft Sales, Inc., 820 F.2d 1127 (10th Cir.1987). Rule 15(a) of the Federal Rules of Civil Procedure provides that "a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Absent flagrant abuse, bad faith, futility of amendment, or truly inordinate and unexplained delay, prejudice to the opposing party is the key factor in deciding a motion to amend. See Lange v. Cigna Individual Fin. Servs. Co., 759 F.Supp. 764, 769 (D.Kan.1991). Prejudice under Rule 15 means undue difficulty in defending a lawsuit because of a change of tactics or theories on the part of the other party. See Sithon Maritime Co. v. Holiday Mansion, 177 F.R.D. 504, 508 (D.Kan.1998) (citing LeaseAmerica Corp. v. Eckel, 710 F.2d 1470, 1474 (10th Cir.1983)).

A. Claims For Which The Court Specifically Invited Plaintiffs To File Leave To Amend
1. Qualified Immunity: Claims Against Individual Defendants In Individual Capacities

Defendants moved to dismiss plaintiffs' claims against the individual defendants under the doctrine of qualified immunity. In sustaining that motion, the Court set out the familiar two-part test:

To determine whether plaintiffs can overcome the qualified immunity defense, the Court first determines whether plaintiffs have asserted a violation of a constitutional or statutory right. Roska, 328 F.3d at 1239. The Court then decides whether that right was clearly established such that a reasonable person would have known that the conduct violated that right. Id. (citing Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir.1996)). Order is important; the Court must decide first whether plaintiffs have alleged a constitutional violation, and only then proceed to determine whether the law was clearly established. Roska, 328 F.3d at 1239 (citing Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

Memorandum And Order (Doc. # 28) at 12. The Court then found as follows:

Plaintiffs do not allege specific conduct by which non-legislator defendants (Wildgen, Corliss, Walthall, Torres, Smith, Murphy, Jiminez and John Doe) violated plaintiffs' constitutional rights. Plaintiffs must allege facts sufficient to establish that each individual defendant personally participated in the alleged violations. See Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir.1996); Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1976). Plaintiffs' allegations do not do so and on this complaint, these individual defendants are entitled to qualified immunity. If plaintiffs wish to amend their complaint to overcome the defense of qualified immunity, the Court will consider an appropriate motion filed no later than June 18, 2004.

Id. (bold text in original)(footnote omitted).

Plaintiff's proposed amended complaint alleges that "the individual defendants have all participated directly in efforts to enforce the provisions of the ordinance scheme, in direct violation of the Plaintiffs' federal rights." Proposed Second Amended Complaint ¶ 33. The proposed amended complaint further alleges as follows:

[defendants Michael Wildgen, David Corliss, Barry Walthall and Victor Torres] directed other Defendants and employees of the City of Lawrence to issue Orders and Notices, to the Plaintiffs, claiming violations of the ordinances; enter property without the consent of the owner or occupant, and without probable cause to believe any law has been violated; prosecute the Plaintiffs for alleged violations of the challenged ordinances without first providing the Plaintiffs with the opportunity to have a hearing, as provided by the ordinances, to contest the Orders and Notices, determine, at the individual employee's discretion, which potential code violations should be permitted, as well as which should be immediately remedied; as well as personally participate in a coordinated effort to force the Plaintiffs to abandon lawful use of real property, in certain areas of the City of Lawrence.

Id. ¶¶ 34-37. The proposed amended complaint also includes the following allegations as to the remaining individual, non-legislator defendants:

The Defendants Lee Smith, Shawn Murphy, and Brian Jiminez have personally participated in issuing Orders and Notices, to the Plaintiffs, claiming violations of the ordinances; enter property without the consent of the owner or occupant, and without probable cause to believe any law has been violated; prosecuting the Plaintiffs for alleged violations of the ordinances without first providing the Plaintiffs with the opportunity to have a hearing, as provided by the ordinances, to contest the Orders and Notices; determine, at the individual employees' discretion, which potential code violations should be permitted, as well as which should be immediately remedied; as well as personally participating in a coordinated effort to force the Plaintiffs to abandon the lawful use of real property, in certain areas of the City of Lawrence.

Id. ¶ 38.

Simply stating that officials participated in illegal conduct "insufficiently describes the conduct and fails to articulate the affected rights." Schroeder v. Kochanowski, 311 F.Supp.2d 1241, 1252 (D.Kan.2004) (defendant entitled to qualified immunity where complaint merely stated that defendant participated in illegal tow, improper procurement of evidence and abusive questioning; plaintiff did not sufficiently describe conduct and did not articulate affected rights). Although the Tenth Circuit previously employed a heightened pleading standard in qualified immunity cases, it has now abolished that requirement. See Currier v. Doran, 242 F.3d 905, 916-17 (10th Cir.2001). To defeat qualified immunity, plaintiff must allege a clearly established right and allege that defendant violated it. The allegations, however, need not contain specific dates and times of each alleged infraction. See Neiberger v. Hawkins, 6 Fed.Appx. 683, 2001 WL 227405 (10th Cir.2001) (allegations that defendants provided insufficient care, poor treatment and invasive searches to mental health patients sufficient to allege violation of constitutional right to reasonable care and safety in state custody); see also Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir.1997) (individual liability under § 1983 must be based on personal involvement in alleged constitutional violation); cf. Strepka v. Miller, 28 Fed.Appx. 823, 2001 WL 1475058...

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