Smith v. Plati

• Decision Date: 30 July 2001
• Docket Number: No. 99-1375,99-1375
• Parties: (10th Cir. 2001) THEODORE M. SMITH, Plaintiff-Appellant, v. DAVID PLATI, individually and in his official capacity as Assistant Athletic Director for Media Relations of the University of Colorado; THE UNIVERSITY OF COLORADO; and THE REGENTS OF THE UNIVERSITY OF COLORADO, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1167

258 F.3d 1167 (10th Cir. 2001)

THEODORE M. SMITH, Plaintiff-Appellant, v. DAVID PLATI, individually and in his official capacity as Assistant Athletic Director for Media Relations of the University of Colorado; THE UNIVERSITY OF COLORADO; and THE REGENTS OF THE UNIVERSITY OF COLORADO, Defendants-Appellees.

No. 99-1375

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 30, 2001

Appeal from the United States District Court for the District of Colorado (D.C. No. 99-K-491) [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] David A. Lane, Miller, Lane, Kilmer & Griesen, Denver, Colorado (Theodore M. Smith, pro se, on the briefs) for Plaintiff-Appellant.

Patrick T. O'Rourke (Kevin J. Kuhn with him on the brief) of Montgomery, Little & McGrew, Englewood, Colorado, for Defendant-Appellee David Plati in his individual capacity.

David P. Temple, Assistant University Counsel (Joanne M. McDevitt, Associate Vice President/Senior Associate University Counsel; and Michael W. Schreiner, Senior Assistant University Counsel, with him on the brief), Office of University Counsel, Denver, Colorado, for Defendants-Appellees the Regents of the University of Colorado and David Plati in his official capacity.

Before EBEL,McKAY and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

Theodore Smith appeals the district court's dismissal of his claims against David Plati, the Assistant Athletic Director for Media Relations of the University of Colorado, the Regents of the University, and the University itself. In addition, Smith alleges that the district court erred when it ordered him to dismiss a parallel state court action raising virtually identical claims to those in his federal lawsuit. We AFFIRM the district court's dismissal, and, thus, hold that Smith's final allegation is moot.¹

BACKGROUND

A. Smith's Allegations

Theodore Smith launched and maintains a non-profit website named Netbuffs.com. It provides information, pictures, chat rooms, and message boards covering men's and women's athletic teams at the University of Colorado at Boulder. Smith is also a practicing Colorado attorney.

David Plati is the University's Assistant Athletic Director for Media Relations. The Athletic Media Relations Office is the liaison between the University's athletic department and members of the media.

Smith contends that "[b]eginning in approximately the month of August, 1998," Plati decided "to censor Netbuffs.com and to do everything possible to interfere with it." Smith alleges that while "Plati's motives . . . are unclear, . . . it appears he has concluded Netbuffs.com is in some way in competition with the website still operated by the University's Office of Media Relations." For purposes of this appeal, the most important examples of this alleged interference are that Plati caused Smith to be detained and ticketed for allegedly trespassing in a University hallway; that Plati "denied to Claimant Smith resources of the Office of Athletic Media Relations routinely given to other media and to other fans of the University"; and that Plati "denied Plaintiff Smith and Netbuffs.com treatment as 'media' or 'press.'" Smith also alleges that Plati prevented Smith from talking to coaches, excluded him from football practices, required him formally to request and pay for materials given freely to the public, and kept him from distributing Netbuffs.com advertisements at a University athletic event.²

B. Procedural History

Smith filed this action in Boulder County District Court in February 1999, asserting both state and federal (42 U.S.C. 1983) claims. He moved the state court for leave to depose Plati before entry of a case management order. The state court granted the motion and the order was to be entered March 12, 1999. Appellees, however, removed the case to federal district court on March 11, 1999, pursuant to 28 U.S.C. 1441. Plati also filed a motion for a stay of litigation to prevent discovery on any issues other than those relating to Plati's claim of qualified immunity. On April 20, 1999, the federal district court limited Smith's discovery accordingly. Two days later, on April 22, 1999, Smith commenced a "virtually identical state court action in the Boulder District Court (No. 99-CV-0677), omitting any federal claims so that the new action could not be removed."

Upon discovering the parallel state action, the federal district court ordered Smith to dismiss it. Smith complied, but contends on appeal that the district court's order was erroneous.

In March 1999, the University and Plati filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction) and 12(b)(6) (failure to state a claim). See Smith v. Plati, 56 F. Supp. 2d 1195, 1199 (D. Colo. 1999). Smith deposed Plati on the issue of qualified immunity on May 13, 1999. See id. The court heard oral argument regarding the motion to dismiss, and granted the motion. See id.

C. Issues on Appeal

As interpreted by the district court, Smith's second amended complaint makes five claims. First, Smith alleges that Plati and the University violated the Colorado Open Records Act, see Colo. Rev. Stat. 24-72-204, by not producing and permitting Smith to inspect various University documents. Smith failed to raise this issue on appeal and thus we deem it waived. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (stating that failure to raise an issue on appeal in the opening brief waives the issue).³ Smith's second, third, and fourth claims allege that Plati violated 42 U.S.C. 1983 by causing Smith to be falsely arrested, retaliating against him for exercising his First Amendment rights, and denying him his First Amendment right to "gather news" from the University. Smith's fifth claim seeks an order of mandamus under Colorado Rule of Civil Procedure 106(a)(2)⁴ requiring Plati and the University to treat him in the same way that they treat other members of the press. Smith alleges that the First Amendment guarantees him this right of equal access.⁵

Finally, on appeal Smith asserts that the district court erred when it ordered him to dismiss the parallel state action.

JURISDICTION AND STANDARDS OF REVIEW

A. Jurisdiction

Smith filed this action in state court asserting one federal (42 U.S.C. 1983) and two state claims. Appellees removed it to federal court pursuant to 28 U.S.C. 1441. The district court had federal question jurisdiction under 28 U.S.C. 1331 and supplemental jurisdiction over the state law claims under 28 U.S.C 1367(a). We exercise jurisdiction pursuant to 28 U.S.C. 1291.

B. Standard of Review

We review de novo a district court's dismissal under Rule 12(b)(1) and 12(b)(6). See U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999) (Rule 12(b)(1)); Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (Rule 12(b)(6)). A motion to dismiss under Rule 12(b) "admits all well-pleaded facts in the complaint as distinguished from conclusory allegations." Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976). "We are free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court." United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994).

Smith is a lawyer proceeding pro se. While we are generally obliged to construe pro se pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we decline to do so here because Smith is a licensed attorney, see Olivares v. Martin, 555 F.2d 1192, 1194 n.1 (5th Cir. 1977) ("Mr. Olivares proceeds pro se in his appeal. We cannot accord him the advantage of the liberal construction of his complaint normally given pro se litigants because he is a licensed attorney.") (citation omitted).⁶

DISCUSSION

A. False Arrest Claim

To state a claim under 42 U.S.C. 1983 for false arrest, Smith must allege two elements:

First, the plaintiff must prove that the defendant has deprived him of a right secured by the "Constitution and laws" of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." This second element requires that the plaintiff show that the defendant acted "under color of law."

Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). In circumstances similar to this case, this court has noted that the first element of 1983 may require a greater showing to establish a substantive due process claim for false arrest than what would be required to allege a state law claim of false arrest:

The cases recognize that evaluations of rights and duties under 1983 . . . arising as they do under the Fourteenth Amendment to the Constitution of the United States, are often different from counterpart common law actions which arise under state substantive law. This is not to say that at times the same set of facts will not give rise to remedies under both 1983 and the state law of torts. The differences are . . . in terms of not only the requisite elements under 1983, but also in the gravity of the right which has been invaded. For example, under state common law . . . the slightest interference with personal liberty is a false imprisonment. It does not follow that all such invasions however trivial or frivolous serve to activate remedies under the due process clause of the Fourteenth Amendment . . . .

Wells v. Ward, 470 F.2d 1185, 1187 (10th Cir. 1972). In Wells,

[w]e refused to find a cause of action under 1983 . . . where a student being ticketed for a traffic violation attempted to drive his car away and refused to sign a ticket. He was taken into custody, handcuffed, transported ten miles to a Justice of the Peace, not allowed to make bond on an American Automobile Association bond card, and kept in a cell...