Schepp v. Fremont County, Wyo.

• Decision Date: 30 March 1990
• Docket Number: No. 88-1376,88-1376
• Citation: 900 F.2d 1448
• Parties: Edward G. SCHEPP, Plaintiff-Appellant, v. FREMONT COUNTY, WYOMING, a Political Subdivision of the State of Wyoming; Tim McKinney, Sheriff of Fremont County, Wyoming, in his official and individual capacity; William Eichelberger, County and Prosecuting Attorney for Fremont County, Wyoming, in his official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1448

900 F.2d 1448

Edward G. SCHEPP, Plaintiff-Appellant, v. FREMONT COUNTY, WYOMING, a Political Subdivision of the State of Wyoming; Tim McKinney, Sheriff of Fremont County Wyoming, in his official and individual capacity; William Eichelberger, County and Prosecuting Attorney for Fremont County, Wyoming, in his official capacity, Defendants-Appellees.

No. 88-1376.

United States Court of Appeals, Tenth Circuit.

March 30, 1990.

Stephen L. Pevar, American Civil Liberties Union, Denver, Colo. (Donald N. Rogers,

Cheyenne, Wyo., with him on the briefs), for plaintiff-appellant

Jeffrey A. Donnell, Davis, Donnell, Worrall & Bancroft, P.C., Worland, Wyo., for defendants-appellees.

Before HOLLOWAY, Chief Judge, ANDERSON, Circuit Judge, and THOMPSON, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

Edward G. Schepp appeals from an adverse summary judgment and denial of a motion to amend his complaint. Schepp brought this action against the Fremont County Attorney, Fremont County Sheriff, and Fremont County pursuant to 42 U.S.C. Sec. 1983 for alleged constitutional violations incident to probation revocation proceedings initiated against Schepp in Fremont County, Wyoming. Subsequently, Schepp sought to add as an additional defendant the state trial court judge who presided at the probation revocation hearing. The district court denied the motion to add the state trial judge and granted summary judgment for all defendants. ¹ Schepp v. Fremont County, Wyo., 685 F.Supp. 1200 (D.Wyo.1988). For the reasons discussed below, we affirm the district court's order.

BACKGROUND

In March 1981, Schepp pled guilty in Wyoming state court to issuing fraudulent checks. Schepp appeared before Judge Robert B. Ranck, a Wyoming District Court Judge, who sentenced him to one year incarceration, and a one thousand dollar fine. Judge Ranck suspended the sentence and placed Schepp on one year probation with the sole condition that he make restitution on the checks within thirty days. The sentencing order was filed on July 17, 1981. Schepp did not repay the checks as required under the terms of his probation.

Accordingly, on July 9, 1982, the Fremont County Attorney prepared and signed a petition for revocation of Schepp's probation. The petition was filed by an assistant county attorney in the state district court on July 19, 1982, two days after Schepp's one-year probation ended. When the petition was filed, Judge Ranck ordered revocation proceedings to take place in Lander, Wyoming on July 29, 1982. Schepp could not be served at his last address, however, and Judge Ranck eventually ordered that a bench warrant issue for Schepp's arrest. At the time he issued the warrant, Judge Ranck indicated that Schepp was to be held without bail.

In October 1984, Schepp was arrested in Arizona and extradition proceedings were commenced to return him to Wyoming for the probation revocation. Schepp was released on bail in Arizona, however, and later "could not be located." Affidavit of Tim McKinney, R.Supp. Vol. I, at Tab 31, p. 2. Finally, in May 1986 Schepp was again arrested in Arizona on unrelated charges involving fictitious license plates. Extradition was ordered and Schepp was booked into the Fremont County Jail on Monday, June 2, 1986. He was served with a copy of the bench warrant and the county attorney was advised that Schepp was in jail awaiting probation revocation proceedings.

The Fremont County Attorney, William V. Eichelberger, filed a motion with Judge Ranck on Thursday, June 5, 1986 for a hearing on the petition for revocation and another motion for appointment of counsel on Schepp's behalf. Judge Ranck, who lives in Jackson, Wyoming, about 165 miles from Lander, did not act on the motion for appointed counsel, and set the revocation hearing for June 23, 1986, during his regularly scheduled monthly trip to Lander. ²

Judge Ranck refused to admit Schepp to bail pending the hearing.

At the June 23 revocation hearing, Schepp admitted that he had not complied with the restitution ordered by Judge Ranck as a condition of probation. Judge Ranck then revoked Schepp's probation, but ordered that upon receipt of the unpaid amount, Schepp's sentence would be suspended to the time he had served in the Lander County jail awaiting the revocation hearing. Schepp made full restitution of the outstanding checks at this time and he was released unconditionally. Appellant's Opening Brief at vii.

Schepp filed suit against the defendants in federal district court on August 19, 1987, more than a year and one month after he had been unconditionally released by the Wyoming courts. In his complaint he alleged the defendants, acting under color of state law, had deprived him of his constitutional rights under the Sixth, Eighth, and Fourteenth Amendments in violation of 42 U.S.C. Sec. 1983. Specifically, Schepp claimed that the petition to revoke his probation was filed late under Wyoming law, that he was denied a prompt preliminary hearing to determine probable cause for the revocation, that he was denied bail pending the revocation hearing, and that he was not appointed counsel to represent him at that hearing.

On December 4, 1987, Schepp sought to add Judge Ranck as an additional defendant to this lawsuit and assign liability to him for at least some of the constitutional deprivations Schepp claims to have suffered. The district court issued its orders denying the motion to amend and granting summary judgment for the named defendants on February 9, 1988.

DISCUSSION

I. The Motion to Add Judge Ranck

Permission to amend a pleading "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The decision whether to grant a motion to amend the pleadings to add an additional party is generally left to the sound discretion of the district court. Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1274 (10th Cir.1989). The district court was clearly justified in denying the motion to amend if the proposed amendment could not have withstood a motion to dismiss or otherwise failed to state a claim. E.g., Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (futility of amendment adequate justification to refuse to grant leave to amend); Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir.1989); Glick v. Koenig, 766 F.2d 265, 269 (7th Cir.1985); DeLoach v. Woodley, 405 F.2d 496, 497 (5th Cir.1968); see also 6 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1487, at 432-33 (1971).

The district court concluded that the proposed amendment naming the state trial court judge as a defendant would be futile because "Mr. Schepp could not prevail against Judge Ranck." R.Vol. I, Tab 79 at 2. As we explain below, Schepp could not recover either monetary damages or declaratory relief against Judge Ranck; therefore, the district court properly denied the motion to amend the complaint.

As a state court judge, Judge Ranck is entitled to absolute immunity for his judicial acts. Stump v. Sparkman, 435 U.S. 349, 355-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978). He is entitled to immunity even if he acted maliciously or in excess of his authority. Id.; Glick v. Koenig, 766 F.2d at 265. Schepp does not allege, nor does it appear from the record, that Judge Ranck lacked apparent jurisdiction over the probation revocation proceedings; this case was not clearly beyond his jurisdiction. See Stump v. Sparkman, 435 U.S. at 356-57, 98 S.Ct. at 1105 ("A judge ... will be subject to liability only when he has acted in the 'clear absence of all jurisdiction.' ") (citation omitted). Indeed, Schepp concedes that Judge Ranck is immune from any claim for monetary damages arising from this incident. Appellant's Brief at 26.

Schepp argues, however, that his claim for declaratory judgment against Judge Ranck would not be barred by the judge's absolute immunity, and that his motion to add him as a defendant should therefore be granted. Although Judge Ranck is not shielded by absolute immunity from declaratory or injunctive relief, Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S.Ct. 1970, 1980-81, 80 L.Ed.2d 565 (1984), we disagree with Schepp's conclusion that declaratory relief would be available in this case.

The remedy of declaratory judgment is only available "[i]n a case of actual controversy...." 28 U.S.C. Sec. 2201. In determining whether Schepp is entitled to declaratory relief, we look beyond the initial "controversy" which may have existed at one time; rather, we must decide "whether the facts alleged, under all the circumstances, show that there is a substantial controversy ... of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941) (emphasis added); see Weinstein v. Bradford, 423 U.S. 147, 148, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (Former inmate was not entitled to declaratory relief on his claim that he was entitled to due process in connection with parole eligibility proceedings; his subsequent parole and eventual release from supervision mooted the controversy so that "[f]rom [the] date [of his complete release] it [was] plain that respondent can have no interest whatever in the procedures followed by [the state] in granting parole."); Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969) (The test is not whether a case or controversy may have existed at one time; "[t]he proper inquiry [is] whether a 'controversy' requisite to relief under the Declaratory Judgment Act exist[s] at the time of the hearing [on the claim for declaratory judgment]."); Rex v. Owens ex rel. Oklahoma, 585 F.2d 432, 435 (10th Cir.1978).

On July 7, 1986, shortly after his probation had been revoked, Schepp's sentence was suspended to the time he had spent incarcerated in the Fremont County Jail awaiting the revocation hearing and he was released unconditionally....