McCormick v. City of Lawrence, Kansas

• Decision Date: 31 March 2003
• Docket Number: No. 02-2135-JWL.,02-2135-JWL.
• Citation: 253 F.Supp.2d 1172
• Parties: Dale E. MCCORMICK, Plaintiff, v. CITY OF LAWRENCE, KANSAS, et. al. Defendants.
• Court: U.S. District Court — District of Kansas

253 F.Supp.2d 1172

Dale E. MCCORMICK, Plaintiff, v. CITY OF LAWRENCE, KANSAS, et. al. Defendants.

No. 02-2135-JWL.

United States District Court, D. Kansas.

March 31, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gerald L. Cooley, Randall F. Larkin, Allen & Cooley, Lawrence, KS, for City of Lawrence, Kansas.

M. J. Willoughby, Office of Attorney General, Topeka, KS, for Defendants.

MEMORANDUM & ORDER

LUNGSTRUM, District Judge.

This action involves multiple 42 U.S.C. § 1983 claims Dale E. McCormick has brought against government officials of both the City of Lawrence, Kansas and the State of Kansas in their individual capacities, alleging that they have violated his constitutional rights on a number of occasions. More specifically, Mr. McCormick alleges three broad groups of government officials as well as the City of Lawrence violated his constitutional rights. First, he alleges police officers of the City of Lawrence—Vince Casagrande, Gil Crouse, James White, Leo Souders, Chris Mann, Ken Farrar, Mike Byrn, Susan Hadl, Sam Harvey, and officers referred to as John Doe 1 and John Doe 3—retaliated against him for exercising his First Amendment rights (as well as violated his constitutional rights in other ways) on numerous occasions, usually when he was protesting traffic stops. Second, he alleges Douglas County District Attorney Christine Kenney and Assistant District Attorney Brad Burke conspired with Officer James White to fabricate evidence on which to base a criminal charge in retaliation for Mr. McCormick exercising his constitutional rights. Third, he alleges Assistant Attorney General M.J. Willoughby fabricated evidence on which to base a complaint she filed with the Consumer Protection Division of the Office of the Kansas Attorney General contending Mr. McCormick was practicing law without a license. Also, he alleges two agents in the Consumer Protection Division, David Harder and Shelly Welch, subpoenaed a witness and harassed her regarding her association with Mr. McCormick in retaliation for Mr. McCormick's exercise of his First Amendment rights. Finally, he alleges the City of Lawrence implemented and maintained an unconstitutional policy or custom in its police force of encouraging officers to prohibit or impede First Amendment rights.

The matter is currently before the court on the following defendants' motions to dismiss: Vince Casagrande (Doc. 28), Ken Farrar and Mike Byrn (Doc. 30), the City of Lawrence, Kansas (Doc. 34), James White and Leo Souder (Doc. 36), Sam Harvey and Susan Hadl (Doc. 40), Gerard Little (Doc. 42), Gil Crouse (Doc. 44), Chris Mann (Doc. 46), Christine Kenney and Bradley Burke (Doc. 52), and M.J. Willoughby, David Harder, and Shelly Welch (Doc. 58). The matter is also before the court on Mr. McCormick's motion for summary judgment (Doc. 20).¹ For the reasons set forth in detail below, the motions are granted in part and denied in part. More specifically, Mr. McCormick's motion for summary judgment is denied.² The defendants' motions to dismiss are granted as to Gerard Little, Christine Kenney, Bradley Burke, David Harder, Shelly Welch, and Vince Casagrande. They are granted in part and denied in part as to James White, Leo Souder, and M.J. Willoughby. Finally, they are denied as to Gil Crouse, Chris Mann, Ken Farrar, Mike Byrn, Susan Hadl, Sam Harvey, and the City of Lawrence.

1. 12(b)(6) Motion to Dismiss Standard

The court will dismiss a cause of action for failure to state a claim only when "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his [or her] claims which would entitle him [or her] to relief," Poole v. County of Otero, 271 F.3d 955, 957 (10th Cir.2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Smith v. Plati 258 F.3d 1167, 1174 (10th Cir.2001). The issue in resolving a motion such as this is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 997, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

When, as here, a plaintiff is proceeding pro se, the court construes his or her pleadings liberally and holds the pleadings to a less stringent standard than formal pleadings drafted by lawyers. McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir.2001); accord Shaffer v. Saffle, 148 F.3d 1180, 1181 (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991)). In other words, "[n]to 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." Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.1996) (quoting Hall, 935 F.2d at 1110). The liberal construction of the plaintiffs complaint, however, "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Id. (quoting Hall, 935 F.2d at 1110). "Conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Id. (quoting Hall, 935 F.2d at 1110).

II. Allegations in the First Amended Complaint

The following allegations are set out in Mr. McCormick's pro se first amended complaint.³ Of course, on a motion to dismiss pursuant to Rule 12(b)(6), the only facts considered by the court are those contained in the plaintiffs complaint or documents attached as exhibits to the complaint. Oxendine v. Kaplan, 241 F.3d 1272, 1274 (10th Cir.2001) (stating that in deciding a Rule 12(b)(6) motion, "a court may look both to the complaint itself and to any documents attached as exhibits to the complaint"). His allegations set forth his version of the events that occurred in Lawrence, Kansas at the end of 2001 and beginning of 2002 giving rise to this litigation. The court divided the allegations into eight different incidents, and, in keeping with the applicable standard under Rule 12(b)(6), assumes as true any well pleaded facts in those allegations for the purposes of deciding these motions.

Confrontation at Mr. McCormick's House

On December 27, 2001, Mr. McCormick drove home to find a "police-cruiser," with no emergency or other lights on, parked on the street blocking his entire driveway. Mr. McCormick put his turn signal on and waited for the "cruiser" to move. After the cruiser did not move, Mr. McCormick began honking his horn in an attempt to prod the cruiser to move. After a short while the cruiser moved in reverse, out of the path of Mr. McCormick's driveway, and Mr. McCormick pulled into his driveway. Mr. McCormick then took his briefcase and other items inside his house and went back outside to find out why the cruiser was parked in front of his driveway. Mr. McCormick asked Officer Gil Crouse why he was illegally parked in front of Mr. McCormick's driveway. Officer Crouse responded: "I know the law better than you, and I was not illegally parked." Mr. McCormick responded by calling Officer Crouse a "cognitively impotent pig," and "instructed [Officer] Crouse that it most certainly was not lawful for [him] to park blocking [Mr. McCormick's] driveway, absent some emergency, of which there was obviously none at hand." Officer Crouse responded by saying words to the effect of: "You better watch it or this pig is going to take you to jail."

Mr. McCormick then told Officer Crouse to wait one minute, and he went inside his house to get his video camera. Several moments later, he made "peaceful (albeit perhaps crude) verbal expressions"—calling Officer Crouse a pig. In response, Officer Crouse, talking directly into Mr. McCormick's video camera, threatened to take Mr. McCormick to jail. Mr. McCormick alleges the threats of arrest and incarceration caused Mr. McCormick "immediate fear and apprehension of losing his very Liberty for making simple expressions from the curtilage of his home, and provoked [Mr. McCormick] to wrath, as [his] video shows."

Shortly thereafter, Mr. McCormick went to his neighbor's house and asked the neighbor to videotape the incident if Mr. McCormick's camera was taken. Soon, two more "police-cruisers" arrived in front of Mr. McCormick's house. The officers conferred with Officer Crouse for several minutes, then went back to their vehicles and left the scene. Mr. Crouse remained parked in front of Mr. McCormick's house for approximately the next half hour, then left briefly, then returned for approximately 15 minutes, then left and did not return. Confrontation on the University of Kansas Cam.pus

On January 1, 2002, at or around 10:30 a.m., Mr. McCormick approached a "police-cruiser," parked in the middle of the street with no emergency lights or blinker on. He was in the South-bound lane heading South in his vehicle, around the 900 block, on Mississippi Street in Lawrence. As he slowed down and went around the cruiser via the North-bound lane, he honked at the cruiser. Officer Vince Casagrande, who was in the cruiser, "cast an angry looking scowl at [Mr. McCormick,] apparently in response to [Mr. McCormick] honking [his] vehicle's horn." Seeing the scowl, Mr. McCormick "flipped the bird" to Officer Casagrande (mostly to "test" his First Amendment rights), and continued doing so until he was a block or more away. Mr. McCormick then proceeded South on Mississippi Street for approximately half a mile to the University of Kansas main campus where he parked his vehicle at the curb on the far west...