Opinion
Case No. 01-4136-SAC
September 27, 2002
MEMORANDUM AND ORDER
The case comes before the court on the defendants' motion for judgment on the pleadings or, in the alternative, motion for summary judgment. (Dk. 22). The plaintiff brings this civil rights action alleging his constitutional rights were violated by a traffic stop occurring on August 10, 2000, and by the prosecution for that traffic offense. The plaintiff moved for a temporary restraining order seeking some of the injunctive relief alleged in his complaint. (Dk. 5). The district court denied this motion on the basis of Younger abstention. (Dk. 11). The defendants now seek judgment on the plaintiff's pleadings pursuant to Fed.R.Civ.P. 12(c) and, if the court considers those matters submitted outside of the pleadings, the defendants alternatively seek summary judgment.
GOVERNING STANDARDS
In deciding a Rule 12(c) motion for judgment on the pleadings, the district court employs the same standards governing a Rule 12(b)(6) motion to dismiss. Mock v. T.G. Y. Stores Co., 971 F.2d 522, 528-29 (10th Cir. 1992). Dismissal should not be granted "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," GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), or unless an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). A court judges the sufficiency of the complaint accepting as true all well-pleaded facts, Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), and drawing all reasonable inferences from those facts in favor of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.), cert. denied, 525 U.S. 881 (1998). 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 (1983) (footnote omitted).
A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will . . . preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "[T]here are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir. 1988).
The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013 (1992). If this burden is met, the nonmovant must "set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). (citations omitted). "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id. The nonmovant's burden is more than a simple showing of "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586. The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmovant. Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir. 1995) (quoting Bacchus Industries, Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). "In this respect, we must view the evidence in context, not simply in its segmented parts." McCowan v. All Star Maint., Inc., 273 F.3d 917, 921 (10th Cir. 2001) (citation omitted). "All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." Vasquez v. Ybarra, 150 F. Supp.2d 1157, 1160 (D.Kan. 2001) (citing See Gullickson v. Southwest Airlines Pilots' Ass'n, 87 F.3d 1176, 1183 (10th Cir. 1996) (applying local rules of District of Utah)); see also D.Kan. Rule 56.1(b)(1).
A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir. 1995). "It is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment." Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995). It is not the form of the evidence that is dispositive, but rather "the content or substance of the evidence must be admissible." Thomas, 48 F.3d at 485.
More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed 'to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir. 1986), cert. denied, 480 U.S. 947 (1987).
"A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro se litigant, however, is not relieved from following the same rules of procedure as any other litigant. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994), cert. denied, 513 U.S. 1090 (1995). "At the same time, we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant." Hall v. Bellmon, 935 F.2d at 1110; see Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) ("Despite liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues"). Nor is the court to "supply additional factual allegations to round out a plaintiff's complaint." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
PLAINTIFF'S CAUSES OF ACTION
The plaintiff alleges the following claims pursuant to 42 U.S.C. § 1983: Count 1 — that the defendants unlawfully seized him in conducting a traffic stop on August 10, 2000; Count 2 — that the defendants acted on retaliatory or vindictive motives in ticketing him on August 10, 2000, and prosecuting him on the same; Count 3 — that the defendants selectively enforced the traffic laws in ticketing him on August 10, 2000, and in prosecuting him on those charges; Count 4 — that in ticketing him and prosecuting him for the August 10th traffic offense the defendants impeded the plaintiff's ability to pursue pending civil litigation and to defend other criminal litigation; and Counts 5 and 6 — that the plaintiff is entitled to injunctive relief barring the prosecution of these traffic charges and barring the defendant officer from taking additional retaliatory acts against the plaintiff.
STATEMENT OF UNCONTROVERTED FACTS
1. The plaintiff is thirty years of age and a resident of Lawrence, Kansas. During the fourteen years that he has operated a motor vehicle, he has received fifteen different traffic citations for such things as speeding, running red lights, failing to yield, and operating a vehicle with a suspended driver's license.
2. The defendant Ken Farrar is a resident of Lawrence, Kansas, and works for the City of Lawrence as a police officer. The defendant Jerry Little is a resident of Lawrence, Kansas, and also is presently employed by the City as its Administrative Municipal Prosecutor. Little began his employment with the City on April 23, 2001.
3. On January 22, 2000, the plaintiff was stopped for speeding. Besides citing him for speeding and driving without a valid license, Officer Farrar and another officer arrested the plaintiff and booked him into the Douglas County Jail on charges of battery against a law enforcement officer, obstruction of legal duty, and possession of marijuana. The State of Kansas filed criminal charges, State v. McCormick, Case No. 00-CR-90 in the District Court of Douglas County, Kansas, based on this traffic stop. The State later dismissed this case but refiled it as Case No. 00-CR-604 on May 1, 2000, adding a felony charge of possession of marijuana.
4. On April 28, 2000, in the District Court of Douglas County, Kansas, the plaintiff filed a civil lawsuit, McCormick v. Farrar, et al., No. 00-C-175, alleging civil rights violations during the traffic stop of January 22, 2000, and seeking damages for the same.
5. Around 1:00 a.m. on August 10, 2000, the plaintiff was driving to a local Lawrence bakery, and Officer Farrar was on duty in his patrol car in the vicinity of 9th Street and Kentucky. Officer Farrar observed a vehicle stopped at the traffic light at the intersection of 9th Street and Tennessee. When the light turned from red to green, the car proceeded through the intersection and Officer Farrar then activated his emergency lights. The driver of this car was the plaintiff, and he pulled into the parking lot of a nearby convenience store. Officer Farrar approached the plaintiff's car and asked to see his license, registration and proof of insurance. After some discussion, the plaintiff eventually produced the requested documents. The defendant Farrar issued the plaintiff a traffic citation for failure to yield at a stop signal in violation of section 13 of the Standard Traffic Ordinance for Kansas Cities, as adopted by the City of Lawrence as its traffic ordinance.
6. The traffic citation notified the plaintiff to appear in Municipal Court on August 28, 2000. This citation was assigned Case No. 002022296. The plaintiff failed to appear on that date. On October 9, 2000, the Municipal Court mailed to the plaintiff's last known address a notice stating that if he did not appear or pay the fines, costs and penalties associated with the August 10 citation, then his driver's license would be suspended. The plaintiff did not comply with the terms of that notice. The Municipal Court sent notice to the Division of Motor Vehicles for the Kansas Department of Revenue, and on December 3, 2000, the Division of Motor Vehicles suspended the plaintiff's driver's license.
7. On March 8, 2001, the plaintiff was stopped by City of Lawrence police officer and cited for driving with a suspended driver's license. The citation notified the plaintiff to appear in Municipal Court on March 28, 2001. This citation was assigned the Case No. 012005331. When the plaintiff again failed to appear, the Municipal Court Judge issued a warrant for the plaintiff's arrest on April 30, 2001.
8. On June 1, 2001, Lawrence police officers stopped the defendant and arrested him on the April 30 warrant. The defendant also was cited for driving with a suspended driver's license. This citation was assigned Case No. 012013654. The plaintiff was released on bond.
9. These three cases proceeded to trial on November 9, 2001. Before the conclusion of the trial in Case No. 002022296, the defendant pleaded guilty to violating the traffic ordinance as charged in the citation. The court fined the plaintiff and assessed court costs against him.
10. The trial of Case No. 012005331 ended with the plaintiff being found guilty of speeding and operating a motor vehicle with a suspended driver's license. As a result, the municipal court fined the plaintiff, assessed court costs and sentenced the defendant to a term of confinement but suspended the entire sentence of confinement.
11. The trial of Case No. 012013654 resulted in a finding that the defendant was guilty of operating a motor vehicle with a suspended driver's license. The court fined the plaintiff, assessed court costs, and sentenced the defendant to a term of confinement but suspended all but thirty days of the sentence of confinement.
12. The plaintiff appealed all three convictions to the District Court of Douglas County, Kansas.
GENERAL CIVIL RIGHTS LAW
The civil rights statute at 42 U.S.C. § 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quotation omitted). To prevail on a claim under § 42 U.S.C. § 1983, a plaintiff "'must allege both the deprivation of a federal right and that the alleged action was taken under color of state law.'" Southern Disposal, Inc. v. Texas Waste Management, 161 F.3d 1259, 1265 (10th Cir. 1998). "The civil rights law is not a general tool to discipline local law enforcement officers." Quezada v. County of Bernalillo, 944 F.2d 710, 714 (10th Cir. 1991) (citation omitted), abrogated on other grounds, Ealum v. Schirard, 2002 WL 1754323 (10th Cir. Jul. 30, 2002). Thus, this case does not turn on whether Officer Farrar committed any actionable tort against the plaintiff, but rather it turns on whether Officer Farrar violated any of the plaintiff's constitutional rights. Id.
COUNT 1 — UNLAWFUL SEIZURE
A traffic stop is a seizure within the meaning of the Fourth Amendment. United States v. Zubia-Melendez, 263 F.3d 1155, 1160 (10th Cir. 2001). For the stop to be constitutionally reasonable, the officer must have either "'(1) probable cause to believe a traffic violation has occurred, or (2) a reasonable articulable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.'" Id. (quoting United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999)). The constitutional reasonableness of a traffic stop does not depend on the officer's actual motive in conducting the stop. Whren v. United States, 517 U.S. 806, 812-13 (1996).
The officer's lack of probable cause, or reasonable suspicion for a traffic stop, is an essential element to the plaintiff's unlawful seizure claim. See Thompson v. City of Lawrence, Kan., 58 F.3d 1511, 1515 (10th Cir. 1995); Price v. Cochran, 205 F. Supp.2d 1241, 1247 (D.Kan. 2002); Harless v. City of Columbus, 183 F. Supp.2d 1024, 1029-30 (S.D.Ohio 2002). The defendants contend that the plaintiff has failed to allege the lack of probable cause in that the complaint could be construed essentially as the plaintiff confessing he committed the traffic violation. In its ruling denying the plaintiff's motion for a temporary restraining order, the court observed: "Rather than alleging that he properly stopped at the traffic light on August 10, 2000, the plaintiff accuses Officer Farrar of 'falsely and unlawfully' seizing him and then makes apparent excuses for his driving, '[the] obscure cross-walk "line" was not visible to plaintiff at one o'clock in the morning and which obscure "line" plaintiff could not pay attention to due to his distraction at being tailgated by Farrar.'" (Dk. 11, p. 11, Court's Memorandum and Order of October 11, 2001) (quoting Dk. 1, p. 6, Plaintiff's Complaint). Liberally construing the complaint consistent with the plaintiff's pro se status, the court does not read it so much as a confession that the plaintiff committed the traffic violation but as an admission that he was unsure whether the car had stopped before the crosswalk lines and as an allegation that his delay in stopping the car, if any, was caused by Officer Farrar following too closely. The plaintiff's complaint further alleges that Officer Farrar lacked "cause, probable cause or justification" for his actions on August 10, 2000. (Dk. 1, p. 6, Plaintiff's Complaint). Though this allegation reasonably could be construed as only going to Officer Farrar's conduct in "following, pursuing and tail-gating" the plaintiff, a liberal construction requires the court to also read this allegation as going to the traffic stop itself. Id. The court denies the defendants' arguments for judgment as matter of law on the allegations in Count 1.
The defendants alternatively argue they are entitled to summary judgment on this claim, because the plaintiff pleaded guilty to the traffic charges in municipal court in Case No. 002022296. The defendants cite the Kansas law summarized in Swanson v. Fields, 814 F. Supp. 1007, 1014 (D.Kan. 1993), aff'd, 13 F.3d 407, 1993 WL 537708 (10th Cir. Dec. 20, 1993) (Table), that a conviction in municipal court "conclusively establishes" the officer had probable cause to conduct the traffic stop, "even though the plaintiff is acquitted on appeal, . . . or even though the conviction is vacated on appeal for lack of prosecution, . . . or even though the district enters a judgment of acquittal." 814 F. Supp. at 1014 (citations omitted). The plaintiff responds that he entered his guilty plea only after receiving the municipal court's assurance that he waived no rights by pleading guilty and that he has appealed the conviction to the District Court of Douglas County, Kansas. The plaintiff misreads the Tenth Circuit's opinion in Swanson as somehow carving out an exception for an appeal. Finally, the plaintiff takes critical aim at the above stated rule as "simply ridiculous" and expresses his "disgust" for it. (Dk. 33, p. 7).
The plaintiff quotes the following sentence from the Tenth Circuit's decision: "We note that Mrs. Swanson has not appealed the district court's finding of probable cause for her arrest and that, therefore, the summary judgment in favor of defendants on her claim of unlawful arrest was also proper." (Dk. 33, p. 7). Rather than referring to an appeal from a municipal court conviction, this sentence simply refers to the procedural fact that the second plaintiff, Mrs. Swanson, chose not to appeal the federal district court's summary judgment finding of probable cause on her unlawful arrest claim.
In Martinez v. City of Albuquerque, 184 F.3d 1123 (10th Cir. 1999), the Tenth Circuit addressed whether a plaintiff could bring a § 1983 claim against arresting officers when the defendant had been convicted of resisting arrest and his appeal of the conviction was pending. The district court had held that the plaintiff's civil rights claims challenged the validity of the state court conviction and that these civil rights claims could not accrue until the conviction had been invalidated. 184 F.3d at 1124. The Tenth Circuit looked first at the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994):
In Heck, the Supreme Court addressed the question of whether a state prisoner could challenge the constitutionality of his state court conviction in a § 1983 suit for damages. The Court held that —
in order to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.
512 U.S. at 486-88 (emphasis in original) (internal citation and footnote omitted). . . .
. . . .
. . . Similarly, careful comparison between Heck and the facts of this case demonstrates that to the extent Martinez' federal suit does not challenge the lawfulness of his arrest and conviction (a challenge Heck would prohibit at this point), Heck does not bar him from pursuing his civil rights claims in federal court.
. . . .
On remand, the district court must proceed on the basis that Martinez' state court conviction for resisting arrest is valid unless his conviction is reversed on direct appeal, expunged by an executive order, or declared invalid in federal or state collateral proceedings. See Heck, 512 U.S. at 485-87. If this case proceeds to trial while Martinez' state court conviction remains unimpaired, the court must instruct the jury that Martinez' state arrest was lawful per se. . . .
To that end, the allegations in Martinez' Second Amended Complaint in paragraphs 41b and 47 that (1) the police officers had no probable cause to arrest him and (2) he did not actively resist arrest or attempt to evade arrest, must be stricken because any such finding by the jury in this case would suggest the invalidity of Martinez' state court conviction for resisting arrest.184 F.3d at 1125-27 (underlining added). On the weight of Martinez and Heck, the plaintiff's civil rights claim for unlawful seizure is barred unless he can show that his conviction has been reversed on direct appeal, expunged by an executive order, or declared invalid in federal or state collateral proceedings. Having failed to allege or prove this prerequisite, the court must strike count 1 from the plaintiff's claim as not cognizable under § 1983. See, e.g., McGregor v. City of Olathe, Ks, 158 F. Supp.2d 1225, 1235 (D.Kan. 2001) (convictions "conclusively establish the existence of probable cause for . . . arrest"), aff'd, 30 Fed. Appx. 811, 2002 WL 184116 (10th Cir. Feb. 6, 2002); Palmer v. Unified Government of Wyandotte, 72 F. Supp.2d 1237, 1245 (D.Kan. 1999) ("because plaintiff's obstruction conviction is currently undisturbed, plaintiff is precluded from challenging the lawfulness of his arrest under 42 U.S.C. § 1983.").
As far as the plaintiff's allegations of Officer Farrar's motivation, they are irrelevant to the reasonableness of traffic stop for Fourth Amendment purposes. Nor has the plaintiff alleged any constitutional violation in accusing Officer Farrar of following him or even tailgating him. See, e.g., United States v. Hbaiu, 202 F. Supp.2d 1177, 1182 (D.Kan. 2002) ("that the trooper 'followed' the vehicle down the road to the lake does not constitute a Fourth Amendment seizure"); Van Deelen v. City of Eudora, 1996 WL 707016, *6 (D.Kan. 1996) ("The mere act of a police officer following the plaintiff's car as alleged in the complaint and the plaintiff's affidavit does not appear to violate any constitutional right."). Finally, the court agrees with the defendants that the plaintiff is unable to assert any additional § 1983 claim on the allegations in count one merely by referencing the Fourteenth Amendment.
COUNTS 2, 3 and 4 — RETALIATORY/VINDICTIVE/SELECTIVE ENFORCEMENT CLAIM
In count two, the plaintiff alleges that on August 10, 2000, Officer Farrar "on a mission of harassment and vexation" began "tail-gating" the plaintiff's vehicle and then stopped him and issued him a traffic ticket. The plaintiff further alleges that Officer Farrar's actions were intended to "harass and intimidate plaintiff and to retaliate against plaintiff's filing" of the state civil lawsuit stemming from the traffic stop on January 22, 2000, and for causing an Internal Affairs investigation about the same. The plaintiff claims Officer Farrar's retaliatory actions violated his rights to petition and expression protected by the First and Fourteenth Amendment. In his response to the defendant's motion for summary judgment, the plaintiff clarifies that his allegations of retaliatory conduct in count two are limited to those taken by Officer Farrar.
"Count II of plaintiff's Complaint clearly alleges no retaliatory action of (sic) the part of City Prosecutor Little, but instead alleges a sequence of actions taken by Farrar. . . ." (Dk. 33, Plaintiff's Response to Summary Judgment Motion).
In count three, the plaintiff alleges selective enforcement and prosecution. Specifically, he alleges that in issuing the traffic ticket on August 10, 2000, Officer Farrar selectively enforced a municipal ordinance and commenced a selective prosecution in order to intimidate and retaliate against the plaintiff for filing the civil lawsuit stemming from the traffic stop on January 22, 2000, and for causing an Internal Affairs investigation about the same. Count three further alleges that Officer Farrar's retaliatory actions violated plaintiff's rights to petition and expression protected by the First and Fourteenth Amendment.
In count four, the plaintiff asserts he was denied his right of access to courts. Specifically, he alleges that Officer Farrar issued the citation alleged in counts two and three "in order to retaliate against" plaintiff for filing the civil complaints and to intimidate and deter the plaintiff from pursuing the same. Also asserted there is that the municipal prosecution interfered with his efforts to prosecute the civil lawsuit so as to deny him access to the courts.
The court fails to appreciate any legally meaningful difference in these counts. Because counts two and three are limited to Officer Farrar's actions, the court should retain "the common sense distinction between law enforcement officers and prosecutors" and characterize the plaintiff's claims as selective and/or vindictive enforcement. See Cooper v. Sedgwick County, Kansas, 206 F. Supp.2d 1126, 1144 (D.Kan. 2002). All three counts are based on Officer Farrar's alleged unlawful conduct in stopping and ticketing the plaintiff in retaliation for filing a civil lawsuit and for expressing himself. In short, the plaintiff alleges in each count the same illegal conduct, the same illegal motive, the same injuries, and apparently the same legal theories. Selective enforcement/prosecution claims and vindictive or retaliatory enforcement/prosecution claims are related and may be best understood as the latter being a subset of the former. The plaintiff does not allege in count three that the laws were selectively or discriminatorily enforced because he is a member of any protected group. Rather, he repeats the allegation from count three that Officer Farrar selectively enforced the law for the purpose of retaliating against or interfering with the plaintiff's exercise of constitutional rights. In count four, the plaintiff simply highlights one of his injuries already pleaded in the other two counts. For ease of reference and discussion, the court will collapse counts two through four into a single claim of relief: retaliatory enforcement of traffic law.
"[T]he enforcement of an otherwise valid law can be a means of violating constitutional rights by invidious discrimination." Futernick v. Sumpter Tp., 78 F.3d 1051, 1056 (6th Cir.), cert. denied, 519 U.S. 928 (1996). "It seems clear to us that intentional selective enforcement because of race, nationality, religion, or gender is grounds for § 1983 relief." Id. at 1057; see Whren v. United States, 517 U.S. 806, 813 (1996) ("[T]he Constitution prohibits selective enforcement of the laws based on considerations such as race. . . . [T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause."). "It is also clear that selective enforcement intended to discourage or punish the exercise of a constitutional right, . . ., is sufficient basis for § 1983 relief. The availability of § 1983 relief for what we have called 'vindictive enforcement.'" Id. at 1057. (citation omitted). Thus, "'[v]indictive enforcement' is selective enforcement intended to discourage or punish the exercise of a constitutional right." Heaton v. City of Princeton, 47 F. Supp.2d 841, 844 (W.D.Ky. 1997) (citation omitted), aff'd, 178 F.3d 1294 (6th Cir. 1999) (Table); see Harless v. City of Columbus, 183 F. Supp.2d 1024, 1031 (S.D.Ohio 2002) (Officers' retaliatory acts, including arrests, for the exercise of First Amendment rights "is referred to as vindictive enforcement, which is a type of selective enforcement.").
"'Retaliation, though it is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights.'" Poole v. County of Otero, 271 F.3d 955, 960 (10th Cir. 2001) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001)). "[F]acing criminal charges" brought in an effort to impede or prevent the pursuit of a civil lawsuit is "injury sufficient to chill a person of ordinary firmness." Poole, 271 F.3d at 960. That the plaintiff's conduct may have warranted the criminal charges does not matter, because "'[a]n act taken in retaliation for the exercise of a constitutionally protected right is actionable under § 1983 even if the act, when taken for a different reason, would have been proper.'" Poole, 271 F.3d at 961 (quoting DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990), cert. denied, 502 U.S. 814 (1991).
The defendants seek summary judgment arguing the plaintiff is unable to present sufficient proof of state of mind to overcome their qualified immunity defense. Because the plaintiff's claim turns on Officer Farrar's intent or subjective motive for stopping and ticketing the plaintiff, the court's qualified immunity analysis on summary judgment is refined to the following steps:
First, Defendants must make "a prima facie showing of the objective reasonableness of the challenged conduct." Seeds v. Lucero, 177 F. Supp.2d 1261, 1270 (D.N.M. 2001) (quoting Gehl Group v. Koby, 63 F.3d 1528, 1535 (10th Cir. 1995), overruled on different issues, Patel v. Wooten, No. 00-1187, 2001 WL 788639 (10th Cir. July 12, 2001)). If Defendants meet their burden of showing objective reasonableness, we next consider whether the McCooks [plaintiffs] satisfied the "burden of presenting evidence Defendants 'acted on the basis of a culpable subjective state of mind.'" Id. at 1270 (quoting Gehl Group, 63 F.3d at 1535).
McCook v. Springer School District, 2002 WL 1788529, at *7 (10th Cir. Aug. 5, 2002). The Court pointed out in a footnote to this passage that it had overruled Gehl Group's heightened pleading requirement at the summary judgment stage in light of the Supreme Court's opinion in Crawford-El v. Britton, 523 U.S. 574 (1998). Id. at n. 5.
The defendants have carried their burden of showing that Officer Farrar's actions were objectively reasonable in stopping and ticketing the plaintiff by reason of the plaintiff's subsequent guilty plea to the same traffic charges. "A showing of probable cause . . . clearly establishes objective reasonableness." Gehl Group, 63 F.3d at 1536; see also Seeds v. Lucero, 177 F. Supp.2d at 1271. The defendant's conviction in municipal court establishes probable cause to conduct the traffic stop and to issue the ticket. Swanson v. Fields, 814 F. Supp. at 1014.
"[P]roof of an official's retaliatory intent rarely will be supported by direct evidence of such intent." Poole, 271 F.3d at 962. Consequently, the question becomes whether the plaintiff has shown he is able to present persuasive circumstantial evidence that when construed in the light most favorable to the plaintiff would persuade a rational trier of fact to find that Officer Farrar acted on a retaliatory motive in stopping and ticketing the plaintiff. In making this determination, the court has confined its consideration to those material facts supported by admissible evidence and has rejected all other conclusory allegations. The plaintiff filed his civil suit on April 28, 2000, and was pulled over and ticketed on August 10, 2000, approximately three and one-half months later. "Timing can be circumstantial evidence of retaliatory intent." Poole, 271 F.3d at 961 (citation omitted). Particularly in the public employment context, the Tenth Circuit has "rejected attempts to unduly stretch the close temporal proximity required under this standard." Butler v. City of Prairie Village, 172 F.3d 736, 752 (10th Cir. 1999) (internal quotations and citations omitted). The temporal proximity in this case is certainly being stretched and is insufficient by itself to establish retaliatory motive. See id. at 746.
Purged of its obvious conjecture and baseless assertions, the plaintiff's affidavit shows he would testify substantially that the following occurred on the night of August 10, 2001. Officer Farrar closely followed the plaintiff's car for four to five blocks, and the plaintiff considered this to be "vehicular-harassment" of him. (Dk. 33, Ex. A, ¶ 2). As he approached the intersection at 9th and Tennessee Street, the traffic light turned from green to yellow. In the plaintiff's words, "being concerned that the vehicle following so close behind me might rear-end my vehicle if I stopped abruptly, I debated the situation for a moment, tapped my brakes several times so my brake-lights would come on, and then made a split-second decision to stop abruptly at the yellow light, even though no traffic . . . was within my view. (Dk. 33, Ex. A, ¶ 3). The plaintiff also avers that "[a]t that time, I was unable to discern the location of any painted stop line or cross-walk line upon the roadway, as I barely had time to look for the same and the same was almost entirely worn off the roadway." Id. After the light turned green and the plaintiff pulled into the intersection, Officer Farrar activated the emergency signals indicating the plaintiff should stop. Officer Farrar approached the plaintiff and was immediately accused of trying to intimidate and harass him. The plaintiff refused to provide his driver's license and said that he would file civil claims and a criminal complaint against the officer. According to the plaintiff, Officer Farrar responded "by saying that he was 'doing his job' and that I was getting 'what you deserve.'" (Dk. 33, Ex. A, ¶ 5). When the officer told the plaintiff why he had been stopped, the plaintiff responded, "Oh bull shit you liar." When Officer Farrar told the plaintiff that he would be arrested if he did not provide his driver's license, the plaintiff provided a license but then refused the officer's subsequent request to see his insurance and registration. Again only after the officer explained that he could be arrested for interfering with police duties did the plaintiff comply and turn over the requested insurance and registration. Officer Farrar went back to his car and returned later with the citation and paperwork. The plaintiff repeated his threat that he would be filing claims against the officer and then drove off.
The plaintiff's account of the traffic stop does not support any inferences that during the stop Officer Farrar became hostile, vituperative, or displayed behavior indicative of a retaliatory motive. In almost every regard, the plaintiff's account shows Officer Farrar responded appropriately to the accusations, threats, and general uncooperativeness of the plaintiff. The only arguable inference of a retaliatory motive comes from the plaintiff's recollection of Officer Farrar's comments ostensibly made in response to the plaintiff's accusations of harassment and threats to file claims and complaints. Those comments are ambiguous, at best, in that Officer Farrar was doing his job as a police officer in ticketing drivers for traffic infractions. The violation of traffic laws deserves a citation. Though the plaintiff's own admitted conduct certainly gave Officer Farrar cause to resort to additional measures that could have been seen as retaliatory, Officer Farrar instead gained the plaintiff's compliance by simply admonishing him about the consequences of his obstructive conduct. The "tail-gating" and the circumstances of the traffic stop are not enough by themselves or in combination with the other evidence for a reasonable jury to find that Officer Farrar acted on a retaliatory intent in stopping and ticketing the plaintiff. The defendants are entitled to summary judgment on counts two, three and four.
COUNTS 5 and 6 — INJUNCTIVE RELIEF
The defendants seek summary judgment in that count five is moot because the plaintiff has already been tried and convicted on the municipal charges and in that count six fails to allege actions taken under color of state law or the likelihood of irreparable harm. In response, the plaintiff denies that count five is moot and abandons count six stating his intention to "go on suing Farrar for each instance he violates plaintiff's constitutional or other rights." (Dk. 33, p. 13). The authority cited in the defendant's reply brief and attached thereto, McCormick v. State of Kansas, 2001 WL 1637731 (10th Cir. Dec. 21, 2001), is controlling precedent on the mootness of plaintiff's count five.
IT IS THEREFORE ORDERED that the defendants's motion for judgment on the pleadings or, in the alternative, motion for summary judgment (Dk. 22) is granted on the grounds stated above.