Van Deelen v. City of Eudora, Kan.

• Decision Date: 29 June 1999
• Docket Number: No. 96-4040-SAC.,96-4040-SAC.
• Citation: 53 F.Supp.2d 1223
• Parties: Michael D. VAN DEELEN, Plaintiff, v. CITY OF EUDORA, KANSAS; Bill Long; Greg Dahlem; Ken Massey; Doug Hunsinger; Frank Diehl; and Nine John and/or Jane Does; Defendants.
• Court: U.S. District Court — District of Kansas

53 F.Supp.2d 1223

Michael D. VAN DEELEN, Plaintiff, v. CITY OF EUDORA, KANSAS; Bill Long; Greg Dahlem; Ken Massey; Doug Hunsinger; Frank Diehl; and Nine John and/or Jane Does; Defendants.

No. 96-4040-SAC.

United States District Court, D. Kansas.

June 29, 1999.

COPYRIGHT MATERIAL OMITTED

Michael D. VanDeelen, Eudora, KS, for Plaintiff.

Christopher F. Burger, Office of Atty. gen., Topeka, KS, Donald Patterson, Fisher, Patterson, Sayler & Smith, Topeka, KS, for Defendants.

John M. Cooley, Tamko Roofing Products, Inc., Joplin, MO, Jeffrey A. Kennard, Blackwell Sanders Peper Martin LLP, Overland Park, KS, Theresa M. Nuckolls, Riling, Burkhead & Nitcher, Chtd., Lawrence, KS, Glenn R. Trapp, Office of Dist. Atty., Lawrence, KS, Roger W. Warren, Sanders Conkright & Warren LLP, Kansas City, MO, for Movant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

This 42 U.S.C. § 1983 civil rights case comes before the court on the defendant Frank Diehl's motion to dismiss complaint (Dk.180). Though this motion has been fully briefed for some time, the court's docket has kept it from rendering a timely decision. The court apologizes for this unavoidable delay.

The plaintiff appearing pro se has sued Frank Diehl in his individual capacity¹ for actions taken while he was a prosecuting attorney in the District Attorney's office in Douglas County, Kansas. In his second amended complaint, the plaintiff includes Diehl with other defendants in general allegations of "pattern of behavior" and differential treatment of the "Van Deelen family class." (Dk.161, ¶¶ 12-14). Specifically, the plaintiff in count five alleges a conspiracy and names Diehl as a co-conspirator who did the following in furtherance of the conspiracy:

[D]efendant Diehl, while acting under color of state law in his capacity as an investigator for the Douglas County, Kansas, District Attorney's Office, intentionally failed to do an adequate investigation into case number 94-12898 in which plaintiff was mentioned as the assailant of Jimmy Costello on October 21, 1994. Defendant Diehl knowingly made a false determination that probable cause for plaintiff's arrest existed when he (Diehl) knew that probable cause did not in fact exist. Defendant Diehl then knowingly filed a false complaint in Douglas County District Court alleging that plaintiff was guilty of a crime. The filing of said complaint caused a warrant to be issued for plaintiff's arrest. Plaintiff was arrested and charged with misdemeanor battery. During plaintiff's trial held on February 21, 1995, plaintiff was found not guilty.

49. That in furtherance of the conspiracy, defendant Diehl denied plaintiff certain of his rights guaranteed by the U.S. Constitution, including his rights of due process and equal protection of the laws.

(Dk. 161, ¶¶ 48 and 49). The plaintiff repeats the same allegations of conduct by Diehl in support of a separate § 1983 claim (count 8) brought only against Diehl. (Dk. 161, ¶¶ 60 and 62). For purposes of this motion only, Diehl adopts these allegations and does not challenge them factually.

In his motion, Diehl argues first that the plaintiff's allegations against him exclusively concern his performance of prosecutorial duties for which he enjoys absolute immunity. Specifically, the plaintiff accuses Diehl of (1) inadequately investigating the criminal case, (2) falsely determining probable cause, and (3) filing a false criminal complaint. Diehl cites Tenth Circuit precedent in support of his position that each of these activities is "intimately associated" with his functions in initiating a prosecution and advocating the state's position. The plaintiff opposes the motion arguing that these alleged activities are in the nature of investigatory functions for which Diehl only has qualified immunity.

STANDARDS GOVERNING MOTION TO DISMISS

A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993); see Hospice of Metro Denver v. Group Health Ins., 944 F.2d 752, 753 (10th Cir. 1991) ("Dismissal of a case pursuant to Fed.R.Civ.P. 12(b)(6) requires the legal determination that the plaintiff can prove no set of facts in support of his claim to entitle him to relief.") (citations omitted); Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472 (10th Cir.1990) ("Under Rule 12(b)(6), dismissal is inappropriate unless plaintiff can prove no set of facts in support of his claim to entitle him to relief."). The Tenth Circuit has observed that the federal rules "`erect a powerful presumption against rejecting pleadings for failure to state a claim.'" Maez v. Mountain States Tel. and Tel., Inc., 54 F.3d 1488, 1496 (10th Cir.1995) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986)).

A court judges the sufficiency of the complaint accepting as true the well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiff. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987). It is not the court's function "to weigh potential evidence that the parties might present at trial." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (footnote omitted). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th Cir. 1989).

No less than the Supreme Court has said that a pro se plaintiff's complaint must be construed liberally and judged against a less stringent standard than that used for pleadings drafted by counsel. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The Tenth Circuit has explained this rule, as follows:

We believe that this rule means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.

Hall v. Bellmon, 935 F.2d at 1110 (footnote omitted). In addition, courts must afford pro se litigants a "reasonable opportunity to remedy the defects in their pleadings." Hall v. Bellmon, 935 F.2d at 1110 n. 3. It remains true that a court must not "assume the role of advocate for the pro se litigant." Id. at 1110 Consequently, the court is not to "construct arguments or theories for the plaintiff in the absence of any discussion of those issues." Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991).

ABSOLUTE IMMUNITY

In Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Supreme Court recognized a rule of absolute immunity when a prosecutor's activities are "intimately associated with the judicial phase of a criminal process." In concluding in Imbler that a prosecutor in "initiating a prosecution and in presenting the State's case" was absolutely immune, the Supreme Court "did not attempt to describe the line between a prosecutor's acts in preparing for those functions, some of which would be absolutely immune, and his acts of investigation or `administration,' which would not." Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993) (citation omitted).

The Supreme Court in later decisions reaffirmed the absolute immunity protection afforded a prosecutor serving in the advocacy role. In Burns v. Reed, 500 U.S. 478, 492, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), the Supreme Court recognized such immunity for a prosecutor's role in applying for a search warrant and presenting evidence in support of it. In Buckley, the Court reiterated:

We have not retreated, however, from the principle that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity. Those acts must include the professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made.

509 U.S. at 273, 113 S.Ct. 2606. Most recently in Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 508, 139 L.Ed.2d 471 (1997), the Supreme Court held that the prosecutor's activities in preparing and filing an information and motion for an arrest warrant were protected by absolute immunity.

In the above cited cases, the Supreme Court also held that the defense of absolute immunity is unavailable to a prosecutor for actions taken in other than an advocacy role. When giving legal advice² to police, a prosecutor is not performing a function closely associated with the judicial process and is protected only by qualified immunity. Burns, 500 U.S. at...