United States v. Scott

UNITED STATES OF AMERICA, Plaintiff,

v.KENNETH SCOTT, Defendant.

Civil Action No. 11-cv-01430-PAB-MEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

DATED January 25, 2012

Judge Philip A. Brimmer

ORDER

This matter is before the Court on defendant Kenneth Scott's renewed motion to dismiss [Docket No. 59]. The motion is fully briefed and ripe for disposition.

I. BACKGROUND

In its complaint [Docket No. 1], the United States alleges that defendant Kenneth Scott regularly protests abortion near the entranceway to the parking lot of Planned Parenthood of the Rocky Mountains ("PPRM"). The staff of PPRM provides reproductive health services, including abortion procedures. The driveway is the primary means for entry and exit of vehicles and pedestrians to and from PPRM.

The United States alleges that, in addition to protesting through expressive conduct, defendant walks into the entranceway when vehicles approach, in an attempt to physically obstruct the vehicles from entering or leaving the PPRM parking lot in violation of the Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248. For example, the United States alleges that, on December 16, 2009, defendant "stoodin the middle of the PPRM driveway and did not move as a vehicle approached to enter the driveway, forcing the vehicle to brake and make a narrow turn into the driveway to avoid hitting Defendant Kenneth Scott." Docket No. 1 at 6, ¶ 44. The complaint further alleges that, on December 2, 2010, "[a]s a vehicle approached to enter PPRM, [d]efendant Kenneth Scott, carrying a sign, walked into the middle of the driveway, forcing the vehicle to slow down and navigate around Defendant Kenneth Scott in order to avoid hitting him," and that, "[b]ecause of [d]efendant Kenneth Scott's actions, the vehicle stopped in the middle of the driveway . . . ." Docket No. 1 at 9, ¶¶ 63-64; see Docket No. 1 at 4, ¶ 25 ("As the motorcyclist entered the driveway [to exit the facility], Defendant Kenneth Scott, carrying a sign, walked in front of the motorcyclist, who was forced to stop."). The complaint alleges that these alleged acts of physical obstruction are aimed at interfering with persons who sought or provided reproductive health services at PPRM.

Defendant seeks dismissal of the complaint on four main grounds: (1) that the civil penalty sought by the United States is so severe as to constitute a criminal sanction, (2) that the complaint seeks to sanction him for protected expressive conduct, (3) that his conduct cannot violate FACE to the extent it occurred "within a public right of way," and (4) that the United States failed to plead that his alleged victims fell within a protected class of individuals.

II. STANDARD OF REVIEW

Defendant entitled his motion as a motion "to dismiss" and requests that the complaint "be dismissed." Docket No. 59 at 1, 3. He has also, however, submitted a number of affidavits and cited Federal Rule of Civil Procedure 12(d), which providesthat "[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d) ("All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion."). It is, therefore, not entirely clear under which rule defendant is proceeding. A review of his arguments, however, reveals that the motion to dismiss does not rely upon any of the evidence he has submitted. For instance, defendant's argument that the United States is seeking to sanction him for expressive conduct focuses upon the allegations in the complaint. See Docket No. 59 at 5. Similarly, although defendant does contend that the evidence he submits demonstrates that the acts alleged occurred on a "public right of way," Docket No. 59 at 6, he seeks dismissal based upon his contention that the government failed to allege that "exculpatory information." Id.

Moreover, to the extent defendant sought to have his motion considered pursuant to Federal Rule of Civil Procedure 56, he was required to comply with Rule 56, the Local Rules, and this Court's Practice Standards, which he has failed to do. See Fed. R. Civ. P. 56(c)(1)(A) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials."); D.C.COLO.LCivR 56.1A ("A motion under Fed. R. Civ. P. 56 for summary judgment . . . shall include a statement of undisputed facts . . . ."); Practice Standards (Civil cases), Judge Philip A. Brimmer § III.F.3. For these reasons, the Court has not considered and will exclude the outsideevidence submitted by defendant in support of his motion, which shall be resolved pursuant to Federal Rule of Civil Procedure 12(b)(6).

"The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's Complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations omitted). In doing so, the Court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quotation marks and citation omitted). At the same time, however, a court need not accept conclusory allegations. Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002).

Generally, "[s]pecific facts are not necessary; the statement need only 'give the defendant fair notice of what the claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (omission marks, internal quotation marks, and citation omitted). The "plausibility" standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible. Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).

However, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950 (2009) (internal quotation marks and alteration marks omitted). Thus, eventhough modern rules of pleading are somewhat forgiving, "a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Bryson, 534 F.3d at 1286 (quotation marks and citation omitted).

III. DISCUSSION

FACE subjects to sanction

[w]hoever . . . by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services[.]

18 U.S.C. § 248(a)(1). In addition to providing for criminal penalties, see 18 U.S.C. § 248(b), FACE authorizes the United States to commence a civil action to enforce the statute's provisions, as it has done here. See 18 U.S.C. § 248(c)(2)(A). If the United States succeeds in such a civil action, the Court "may award appropriate relief, including temporary, preliminary or permanent injunctive relief, compensatory damages, and civil penalties as described in paragraph (2)(B)," which provides in pertinent part for imposition of a fine "in an amount not exceeding $10,000 for a nonviolent physical obstruction." 18 U.S.C. § 248(c)(3) & (c)(2)(B).

In his motion, defendant argues that he is being unconstitutionally subjected to criminal sanctions in this civil proceeding. See Docket No. 59 at 7. Defendant argues that the nature of the civil penalty in this matter is so severe as to constitute a penal sanction, relying on United States v. Ward, 448 U.S. 242 (1980).¹ "Whether a statutorypenalty is civil or criminal is a matter of statutory construction which involves a two-part inquiry: (1) whether the legislature, in establishing the penalty, indicated either expressly or impliedly a preference for one label or the other; (2) if the legislature has indicated its intention to establish a civil penalty, whether the statutory scheme 'is so punitive either in purpose or effect as to negate that intention.'" Duncan v. Norton, 974 F. Supp. 1328, 1332 (D. Colo. 1997) (quoting Ward, 448 U.S. at 248-49).² FACE expressly reveals Congress' intention that the penalty sought in this case by the government is a civil remedy. See 18 U.S.C. § 248(c) ("Civil remedies"). Furthermore, there is nothing about the nature of the remedies provided in § 248(c) that are "so punitive either in purpose or effect as to negate that intention." Ward, 448 U.S. at 248-49. To the contrary, the available injunctive and monetary remedies under § 248(c) arequintessentially civil.³ See Hudson v. United States, 522 U.S. 93, 104 (1997) (stating that "money penalties" have not "historically been viewed as punishment"). Defendant argues that it is significant that FACE's legislative history reveals that the civil penalty was intended to serve as an additional deterrent. See Docket No. 59 at 11. The Supreme Court, however, has stated that the "mere presence of [a deterrent] purpose is insufficient to render a sanction criminal, as deterrence 'may serve civil as well as criminal goals.'" Hudson, 522 U.S. at 105.

And, in any event, defendant's argument regarding the severity of the...