Moral v. Hagen, CIVIL ACTION No. 10-2595-KHV

JULIE K. MORAL, Plaintiff,

v.RONALD HAGEN, Defendant.

CIVIL ACTION No. 10-2595-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: April 17, 2013

MEMORANDUM AND ORDER

Under 42 U.S.C. § 1983, Julie K. Moral brings suit against Ronald Hagen, an agent for the Kansas Bureau of Investigation ("KBI"), for retaliatory arrest in violation of her First and Fourteenth Amendment rights to familial association. Defendant asserts qualified immunity. This matter is before the Court on Defendant Ron Hagen's Motion For Summary Judgment (Doc. #101) filed January 4, 2013 and plaintiff's Motion For Hearing (Doc. #109) filed February 14, 2013. The Court overrules plaintiff's motion.¹ For the reasons stated below, the Court finds that defendant is entitled to qualified immunity and sustains defendant's motion for summary judgment.

Procedural History

Plaintiff initially sued defendant pro se and the Court granted leave to proceed in forma pauperis. Under 42 U.S.C. § 1983, the complaint alleged that defendant violated plaintiff's First, Fourth and Eighth Amendment rights. Within a week of being served, defendant moved to dismiss plaintiff's First and Fourth Amendment claims. Finding that defendant's affidavit provided probable cause for plaintiff's arrest, the Court dismissed plaintiff's Fourth Amendment claim for malicious prosecution.Memorandum And Order (Doc. #21) filed July 14, 2011 at 6-11. Relying on Howards v. McLaughlin, 634 F.3d 1131, 1148 (10th Cir. 2011) ("Howards I"), the Court overruled defendant's motion to dismiss plaintiff's First Amendment retaliatory arrest claim. Howards I held that in June of 2006, "it was clearly established that an arrest made in retaliation of an individual's First Amendment rights is unlawful, even if the arrest is supported by probable cause." 634 F.3d at 1148.

Plaintiff then moved to amend her complaint and defendant moved for summary judgment. Under Rule 56(d), Fed. R. Civ. P., plaintiff asked the Court to defer ruling on defendant's motion for summary judgment until she had an opportunity to take additional discovery. After plaintiff filed a reply in support of her Rule 56(d) motion, counsel entered an appearance on her behalf. See Entry Of Appearance (Doc. #69) filed October 7, 2011.

The Court sustained plaintiff's motion for leave to amend her complaint. Accordingly, it overruled the portions of defendant's motion for summary judgment that related to the anticipated amendments, namely plaintiff's First Amendment retaliatory arrest claim. The Court sustained defendant's motion for summary judgment on plaintiff's Eighth Amendment claim. After plaintiff filed an amended complaint, the U.S. Supreme Court reversed Howards I, holding that defendants were entitled to qualified immunity because "it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation." Reichle v. Howards, 132 S. Ct. 2088, 2097 (2012) ("Howards II").

In the pretrial order, plaintiff asserts that she is entitled to recover because "she was arrested due to Defendant's desire to retaliate against her in violation of her First and Fourteenth Amendment familial association rights." Pretrial Order (Doc. #100) filed December 13, 2012. Defendant again moves for summary judgment, arguing that plaintiff has not produced evidence that he specifically intended todeprive her of a protected familial relationship and that he is entitled to qualified immunity.

Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits and other materials, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Liberty Lobby, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252. Judgment as a matter of law is appropriate when the nonmoving party has failed to make a sufficient showing on an essential element of her case on which she has the burden of proof. Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Celotex, 477 U.S. 317, 323 (1986)); see also Liberty Lobby, 477 U.S. at 251. In deciding a motion for summary judgment the Court views the record in the light most favorable to the nonmoving party. Koch v. City of Del City, 660 F.3d 1228, 1238 (D. Kan. 2011).

Because defendant has asserted a qualified immunity defense on summary judgment, plaintiff must first show that (1) defendant violated a constitutional right and (2) that constitutional right was clearly established. Vondrak v. City of Las Cruces, 535 F.3d 1198, 1205 (10th Cir. 2008) (quoting Cortez v. McCauley, 478 F.3d 1108, 1114-15 (10th Cir. 2007) (en banc)). This is a "heavy two-part burden." Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir. 2007) (quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)). Plaintiff "must do more than identify in the abstract a clearly established right and allege that the defendant has violated it"; she "must articulate the clearly established constitutional right and the defendant's conduct which violated the right withspecificity." Green v. Post, 574 F.3d 1294, 1300 (10th Cir. 2009); see also Swanson v. Town of Mountain View, Colo., 577 F.3d 1196, 1200 (10th Cir. 2009). The Court has discretion to decide which of the two prongs of the qualified immunity analysis to address first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).²

In determining whether a right is clearly established, the relevant, dispositive inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful under the circumstances. Saucier v. Katz, 533 U.S. 194, 202 (2001) receded from on other grounds by Pearson, 555 U.S. 223. Summary judgment based on qualified immunity is appropriate if the law did not put the officer on notice that his conduct would be clearly unlawful. Id. (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). For a right to be clearly established, the Court looks for a Supreme Court or Tenth Circuit decision on point, or clearly established weight of authority from other courts finding the law to be as plaintiff maintains. Koch, 660 F.3d at 1246 (quoting Lundstrum v. Romero, 616 F.3d 1108, 1119 (10th Cir. 2010)).

If - and only if - plaintiff carries her two-part burden, defendant bears the traditional burden of the movant for summary judgment - showing that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Koch, 660 F.3d at 1238 (quoting Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Ifdefendant meets his burden, the burden shifts to plaintiff to demonstrate that genuine issues remain for trial as to those dispositive matters on which she carries the burden of proof. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). Plaintiff may not rest on her pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

The Court views the record in the light most favorable to the nonmoving party. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). It may grant summary judgment if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250-51. In response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial. Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). The inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52.

Facts

The following facts are either uncontroverted, deemed admitted or construed in the light most favorable to plaintiff, the nonmovant. The Court recites only those facts that are material to deciding defendant's motion for summary judgment and disregards any facts not supported by citations to the record.

Carlos Moral and plaintiff Julie Moral are husband and wife. They have never been separated or divorced. During the time period in question, the Morals were directors of M&M Investors, a former Kansas corporation. Among other things, M&M Investors operated two newspapers in western Kansas.

I. March 12, 2009 Interview

On March 12, 2009, defendant interviewed plaintiff concerning an investigation of Carlos Moral. At the time, defendant was a Senior Special Agent with the KBI. During the interview, defendant asked plaintiff about potential criminal activity conducted through M&M Investors. He stated that plaintiff's husband was laundering money and that he was going to deport her husband to Cuba. Defendant also stated that he would be seeing plaintiff every week if she continued supporting her husband and did not cut ties with him. Defendant told plaintiff that she needed to save herself. He never told plaintiff that she was the target of an investigation. He never expressly told plaintiff to divorce her husband. Defendant told plaintiff to tell her husband everything they talked about in the interview. Defendant did not give plaintiff Miranda warnings and plaintiff did not understand defendant's questions to be related to her conduct.

II. Garden City Telegram

In April of 2009, M&M Investors engaged the Garden City...