Sause v. Bauer

• Decision Date: 20 June 2017
• Docket Number: No. 16-3231,16-3231
• Citation: 859 F.3d 1270
• Parties: Mary Anne SAUSE, Plaintiff–Appellant, v. Timothy J. BAUER, Chief of Police; Jason Lindsey, Police Officer of Louisburg, Kansas; Brent Ball, Police Officer of Louisburg, Kansas; Ron Anderson, Former Chief of Police of Louisburg, Kansas; Lee Stevens, Former Louisburg, Kansas Police Officer; Marty Southard, Mayor of City of Louisburg, Kansas; Travis Thompson, Former Mayor of City of Louisburg, Kansas, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

859 F.3d 1270

Mary Anne SAUSE, Plaintiff–Appellant,

v.Timothy J. BAUER, Chief of Police; Jason Lindsey, Police Officer of Louisburg, Kansas; Brent Ball, Police Officer of Louisburg, Kansas; Ron Anderson, Former Chief of Police of Louisburg, Kansas; Lee Stevens, Former Louisburg, Kansas Police Officer; Marty Southard, Mayor of City of Louisburg, Kansas; Travis Thompson, Former Mayor of City of Louisburg, Kansas, Defendants–Appellees.

No. 16-3231

United States Court of Appeals, Tenth Circuit.

FILED June 20, 2017

Bradley G. Hubbard, Gibson, Dunn & Crutcher LLP, Dallas, Texas (James C. Ho, Gibson Dunn & Crutcher LLP, Dallas, Texas, Hiram S. Sasser III, Justin E. Butterfield and Stephanie N. Phillips, First Liberty Institute, Plano, Texas, and Jason Neal, Gibson, Dunn & Crutcher LLP, Washington, D.C., with him on the briefs), for Plaintiff-Appellant.

Christopher B. Nelson, Fisher, Patterson, Sayler & Smith, LLP, Overland Park, Kansas (Michael K. Seck and Amy J. Luck, Fisher, Patterson, Sayler & Smith, LLP, Overland Park, Kansas, on the brief), for Defendants-Appellees.

Before TYMKOVICH, Chief Judge, LUCERO and MORITZ, Circuit Judges.

MORITZ, Circuit Judge.

Mary Anne Sause brought this action under 42 U.S.C. § 1983, alleging that Officers Lee Stevens and Jason Lindsey (the defendants) violated her rights under the First Amendment. The district court dismissed Sause's complaint with prejudice for failure to state a claim, see Fed. R. Civ. P. 12(b)(6), and Sause appeals.

Because Sause fails to demonstrate that the contours of the right at issue are clearly established, we agree with the district court that the defendants are entitled to qualified immunity. And we likewise agree that allowing Sause leave to amend her complaint would be futile. Accordingly, we affirm the district court's order to the extent that it dismisses with prejudice Sause's claims for money damages. But because we conclude that Sause lacks standing to assert her claims for injunctive relief, we reverse in part and remand with instructions to dismiss those claims without prejudice.

I

We derive the following facts from Sause's pro se complaint, construing her allegations liberally and in the light most favorable to her. See Hall v. Bellmon , 935 F.2d 1106, 1109 (10th Cir. 1991) ("A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff."); id. at 1110 ("A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.").

On November 22, 2013, the defendants contacted Sause at her home while investigating a noise complaint. At first, Sause denied the defendants entry "[f]or [her] protection" because she couldn't see through her peephole to determine who was at her door. App. 14. But when the defendants later returned, Sause let them in.

"[A]ppearing angry," the defendants asked Sause why she didn't answer her door the first time. Id. at 12. Sause responded by showing them a copy of the Constitution and Bill of Rights that she keeps "on display" by her front door. Id. at 13. Lindsey "laugh[ed]" and "mock[ed]" Sause, saying, "[T]hat's nothing, it's just a piece of paper" that "[d]oesn't work here." Id. Lindsey also turned on his body camera and told Sause that she was "going to be on" the television show "COPS." Id.

At some point, Stevens left Lindsey alone with Sause and her friend Sharon Johnson, who was also present. Lindsey then informed Sause that she "was going to jail," although he "d[idn't] know [why] yet." Id. Understandably frightened, Sause asked Lindsey if she could pray. Lindsey replied, "Yes," and Sause "knelt down on ... [her] prayer rug." Id.

While Sause was still praying, Stevens returned and asked what she was doing. Lindsey laughed and told Stevens "in a mocking tone" that Sause was praying. Id. Stevens then ordered Sause to "[g]et up" and "[t]o [s]top praying." Id. at 13-14.

Sause's complaint doesn't explicitly state that she complied with Stevens' orders, but it appears she at least stopped praying; when Lindsey told her that she "need[ed] to move back" to Missouri, Sause responded, "Why?" Id. at 14. Lindsey then explained to Sause that Sause's apartment manager told him that "no one likes" Sause. Id.

Next, the defendants started "looking through [their] booklet" for something to charge Sause with. Id. "Lindsey would point" at something in the book, and Stevens "would shake [his] head." Id. Eventually, the defendants cited Sause for disorderly conduct and interfering with law enforcement, based at least in part on Sause's failure to answer the door the first time the defendants "came out." Id. The defendants then asked to see Sause's tattoos and scars. Sause explained several times that she had previously "had a double mastectomy

" and eventually "raised [her] shirt up" and showed the defendants her scars "because they kept asking." Id. "That appeared to disgust" the defendants. Id. And it "humiliat[ed]" Sause. Id.

Two years later, Sause filed suit under § 1983, alleging that the defendants violated her First Amendment rights.¹ The defendants moved to dismiss with prejudice, arguing that Sause's complaint fails to state a claim upon which relief can be granted and that they're entitled to qualified immunity. In response, Sause moved to amend her complaint. Citing a local rule, the district court denied Sause's motion because Sause failed to attach to it a proposed amended complaint. The court explained that it wasn't foreclosing "any future motion to amend that attaches a proposed amended complaint and complies with all applicable [rules]." Id. at 62-63.

But when Sause failed to file another motion to amend, the district court granted the defendants' motion to dismiss with prejudice. In doing so, the court reasoned that while Stevens "may have offended" Sause by ordering her to stop praying, he didn't "burden ... her ability to exercise her religion." Id. at 71. Accordingly, the district court concluded that Sause's complaint fails to allege "a plausible First Amendment claim against" Stevens; ruled that Stevens is entitled to qualified immunity; and dismissed Sause's First Amendment claim against him.² Id. And because the court concluded that granting Sause leave to amend would be futile, it dismissed Sause's complaint with prejudice. Sause appeals.

II

Sause advances three general arguments on appeal. First, she argues that the defendants aren't entitled to qualified immunity because they violated her clearly established rights under the First Amendment. Second, she argues that even assuming the defendants are entitled to qualified immunity because the contours of that right aren't clearly established, the doctrine of qualified immunity doesn't shield them from her claims for injunctive relief. Third, Sause argues that even if dismissal under Rule 12(b)(6) was appropriate, the district court should have dismissed her complaint without prejudice and given her leave to amend.

A

We review de novo the district court's decision to dismiss Sause's claims on the basis of qualified immunity. Columbian Fin. Corp. v. Stork , 811 F.3d 390, 396 (10th Cir. 2016). To defeat the defendants' assertion of qualified immunity at the motion-to-dismiss stage, Sause "must allege sufficient facts that show—when taken as true—the defendant[s] plausibly violated h[er] constitutional rights, which were clearly established at the time of violation." Schwartz v. Booker , 702 F.3d 573, 579 (10th Cir. 2012).

We assume that Sause can satisfy the first prong of this inquiry. See Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (explaining that we have discretion to address second prong first "in light of the circumstances in the particular case at hand"). That is, we assume that the defendants violated Sause's rights under the First Amendment when, according to Sause, they repeatedly mocked her, ordered her to stop praying so they could harass her, threatened her with arrest and public humiliation, insisted that she show them the scars from her double mastectomy

, and then "appeared ... disgust[ed]" when she complied—"all over" a mere noise complaint. App. 14, 17.

But this assumption doesn't entitle Sause to relief. Instead, Sause must demonstrate that any reasonable officer would have known this behavior violated the First Amendment. See Ashcroft v. al–Kidd , 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (explaining that right isn't clearly established unless every reasonable officer would know that conduct at issue violates that right). Sause argues she can make this showing because it was clearly established that she had a "right to pray in the privacy of [her] home free from governmental interference," at least in the absence of "any legitimate law enforcement interest." Aplt. Br. 15, 47. Alternatively, she asserts, "[t]he right to be free from official retaliation for exercising one's First Amendment rights [was] also clearly established." Id. at 48.

We don't disagree with Sause's articulation of these general rights. But the Supreme Court has repeatedly and consistently warned us "not to define clearly established law at [this] high level of generality." Mullenix v. Luna , ––– U.S. ––––, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting al–Kidd , 563 U.S. at 742, 131 S.Ct. 2074 ). Instead, "[t]he dispositive question is ‘whether the violative nature of [the defendants'] particular conduct is clearly established.’ " Id. (quoting al–Kidd , 563 U.S. at 742, 131 S.Ct. 2074 ). In other words, "the clearly established law must be ‘particularized’ to the facts of the case." White v. Pauly , ––– U.S. ––––, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (quoting Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ); see id. (suggesting that law isn't clearly established unless court can "identify a case where an officer acting under...