Taylor v. Nichols

Decision Date11 February 1976
Docket NumberCiv. A. No. 75-40-C2.
Citation409 F. Supp. 927
PartiesBrian TAYLOR, Plaintiff, v. H. Michael NICHOLS et al., Defendants.
CourtU.S. District Court — District of Kansas



Clifford R. Roth, Matney & Roth, Overland Park, Kan., Michael Lerner and Barbara M. Vache, Barnett & Lerner, Kansas City, Kan., for plaintiff.

Roger D. Stanton, Weeks, Thomas, Lysaught, Bingham & Mustain, Overland Park, Kan., George A. Lowe, Lowe, Terry & Roberts, Olathe, Kan., for defendants.


O'CONNOR, District Judge.

This is a civil rights action pursuant to 42 U.S.C. §§ 1983, 1985, 1986, and 1988, in which the plaintiff seeks $500,000 in actual and punitive damages for the alleged violation of various constitutional rights. The case is now before the court for determination of the defendants' motions to dismiss for failure to state a claim upon which relief can be granted. Because certain matters, including exhibits and affidavits, have been presented to the court, we are compelled by Rule 12(b) of the Federal Rules of Civil Procedure to treat these motions as motions for summary judgment in accordance with Rule 56.

In considering a motion for summary judgment, the court must construe the pleadings liberally in favor of the party against whom the motion is made. E. g., Gragg v. Travelers Ins. Co., 459 F.2d 418 (10th Cir. 1972); Bushman Construction Co. v. Conner, 307 F.2d 888 (10th Cir. 1962). For purposes of these motions, we therefore accept as true the following allegations, uncontested by the defendants, as set forth in the complaint. The actors in the factual scenario surrounding this action are the plaintiff, an officer on the Ottawa, Kansas, city police force; the defendant Michael T. Allen, an 18-year-old resident of that city; the defendant James Allen, Michael's father; the defendant R. Michael Latimer, a private attorney for the Allens and a special prosecutor for Franklin County, Kansas — in which Ottawa is located — from February 3 to March 3, 1975; the defendant Robert L. Pinet, county attorney for Franklin County; the defendant H. Michael Nichols, presiding judge of the county court for Franklin County, Kansas; and the defendants Joe Ferns, Jack E. Davis, and Victor E. Warren, individual members of the Board of County Commissioners of Franklin County. The instant dispute developed from an incident on January 7, 1975, when the plaintiff arrested Michael Allen for careless and inattentive driving in violation of the Ottawa city ordinances. Michael was again detained on January 13, 1975, when the plaintiff served upon him a notice to appear for a hearing on the traffic violation charge. Michael was released after signing the summons, but vowed as he departed that he would "get the plaintiff's badge." The next day, Michael's father James contacted the Ottawa Chief of Police and requested an investigation of the plaintiff's encounter with Michael on January 13th. The police chief interviewed Michael but declined to institute disciplinary proceedings against the plaintiff. James Allen, apparently dissatisfied with this disposition of his complaint, thereupon retained Latimer to defend Michael at the trial on his traffic charge. The plaintiff "believes" that James Allen also asked Latimer at that time to "pursue all avenues available to accomplish the filing of charges against plaintiff."

Latimer did agree to represent Michael and on January 21, 1975, on Michael's behalf, he entered a plea of not guilty to the traffic violation. On or about February 3, 1975, Latimer also approached county attorney Pinet and conveyed to him the Allens' desire to have the plaintiff prosecuted. Pinet apparently declined to do so personally, but either he or the Board of County Commissioners appointed Latimer a special prosecutor for Franklin County for a term lasting from February 3 to March 3, 1975. Latimer thereafter, on February 3, filed on behalf of the State of Kansas a criminal complaint charging the plaintiff with the criminal assault and battery of Michael Allen, in violation of K.S.A. §§ 21-3408 and 21-3412. On the basis of that complaint, Judge Nichols issued a warrant for the plaintiff's arrest. It is unclear whether the plaintiff was in fact ever arrested, but it does appear that the Ottawa police department suspended him with pay from the date of the warrant's issuance.

The plaintiff's trial commenced one week later, on February 10, 1975, before Judge Nichols. At and before trial the plaintiff registered various objections to alleged technical irregularities in the complaint and also challenged Latimer's legal capacity to prosecute him. These objections were overruled, together with the plaintiff's motion for dismissal of the charges at the close of the state's evidence. At the end of the first day of trial the case was continued until February 18, 1975. On February 14, 1975, however, the plaintiff instituted proceedings to remove the pending criminal action to this court and to obtain a permanent injunction against its further prosecution. In conjunction with his petition for removal, the plaintiff appended a claim for "appropriate relief" under 42 U.S.C. § 1983. On February 18, after oral argument by the parties, this court denied the plaintiff's motion for a temporary restraining order. In the meantime, the plaintiff's trial was apparently continued until February 27, 1975. At that time the plaintiff presented his defense and Judge Nichols found him not guilty of both charges. The plaintiff's prayer for permanent injunctive relief in this court was thereby rendered moot and on April 28, 1975, after a hearing and oral argument by the parties, this court granted the plaintiff leave to file the amended complaint which is the target of the instant motions to dismiss.

The plaintiff contends that the above facts establish that the defendants acted in concert under color of state law and conspired "to violate his federally protected rights, guaranteed to him under the Fifth and Fourteenth Amendments to the United States Constitution," in that "it was the sole purpose and effect of the defendants' actions in initiating such prosecution to harass plaintiff, to conspire to imprison and prosecute him so as to injure the plaintiff in his person and his property because of his lawful discharge of the duties of his office as a policeman." The plaintiff has declined numerous opportunities to further identify the precise constitutional rights allegedly in issue here; when invited by the defendants to do so, he has merely invoked the above-quoted language, which rings like a refrain through his numerous pleadings and briefs. Accordingly, the court's inquiry in determining whether the complaint states a cause of action in light of the facts alleged must of necessity focus rather closely on this particular language.

As a preliminary matter, it appears that in resisting the defendants' motions to dismiss, the plaintiff has placed significant emphasis on the holdings of Jones v. Hopper, 410 F.2d 1323 (10th Cir. 1969), and Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), to the effect that a civil rights complaint should not be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." The plaintiff's apparent misinterpretation of the precise import of this general rule in the context of the instant case, however, warrants some comment. It is axiomatic that some claim regarding the "rights, privileges, or immunities" of federal citizenship is necessary — and to a large degree is also sufficient — to sustain a cause of action under the provisions of the Civil Rights Act that are invoked here. A dispute regarding the alleged deprivation of such a constitutional right is necessary because it is an express prerequisite of federal jurisdiction under 28 U.S.C. § 1343. Further, if the deprivation of such a constitutional right is alleged, the complaint will generally be sufficient under Conley, Jones, and other cases, to withstand a motion to dismiss under Rule 12 or a motion for summary judgment under Rule 56. E. g., Keenan v. Looney, 227 F.2d 878 (10th Cir. 1955); Dewell v. Lawson, 489 F.2d 877 (10th Cir. 1974). It should be clear, however, that the standard for dismissal set forth in Conley et al., does not become operative unless a privilege or right secured by the Constitution is identified and put into issue by the allegations of the complaint; that is, if the denial of a specific constitutional right is alleged, the action should not be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." This rule is not unique to civil rights complaints; it is in many ways merely a corollary of the fact that while Rule 8(a)(2) of the Federal Rules of Civil Procedure requires the plaintiff to set forth "a short and plain statement of the claim showing that the pleader is entitled to relief," a claimant is not required to set out in the complaint a detailed accounting of all facts on which that claim may be based. Conley, 355 U.S. at 47, 78 S.Ct. at 102, 2 L.Ed.2d at 85.

Contrary to the plaintiff's apparent belief, however, Conley et al., do not stand for the converse proposition that, if a complaint alleges myriad facts but does not identify the specific constitutional right allegedly implicated in those facts, dismissal is inappropriate unless it appears beyond doubt that the plaintiff can conjure up no constitutional claim on the basis of the facts alleged or on the basis of any other set of facts which might conceivably be proved. Application of such a standard would accord civil rights complaints a favored status clearly unwarranted by the rules of civil procedure and the relevant case law, e. g., Jones v. Hopper, supra, at 1327, for it would confer upon them a virtual immunity to...

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