Moral v. Hagen

Filing 21

MEMORANDUM AND ORDER - Defendant Ronald Hagens Motion To Dismiss (Doc. #8) filed December 13, 2010 is SUSTAINED IN PART. The Court sustains the motion with respect to plaintiffs malicious prosecution claim and OVERRULES it with respect to her First A mendment retaliation claims. The Court also overrules defendants motion for fees. IT IS FURTHER ORDERED that Plaintiff's Supplemental Exhibit In Response To Defendant Ronald Hagens Motion To Dismiss And Memorandum In Support Pursuant to Fed. R. Civ. P. 12(b) (Doc. 8 & 9) (Doc. #16) filed January 6, 2011, which the Court construes as a motion for surreply, be and hereby is OVERRULED. Signed by Chief Judge Kathryn H. Vratil on 7/14/2011. (Mailed to pro se party Julie K Moral by certified mail; Certified Tracking Number: 7002 2030 0000 9348 3300) (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JULIE K. MORAL,

)
)
Plaintiff,
)
)
v.
)
)
RONALD HAGEN,
)
)
Defendant.
)
____________________________________)

CIVIL ACTION
No. 10-2595-KHV/KGG

MEMORANDUM AND ORDER
Julie K. Moral brings suit pro se against Ronald Hagen, an agent for the Kansas Bureau of
Investigation (“KBI”), under 42 U.S.C. § 1983. Plaintiff claims that defendant violated her rights under
the First, Fourth and Eighth Amendments to the United States Constitution. Under Rule 12(b)(6), Fed.
R. Civ. P., defendant moves to dismiss plaintiff’s First and Fourth Amendment claims, which plaintiff
styles as claims for retaliation and malicious prosecution respectively.1 Defendant asserts that the
complaint fails to state a claim and, that as a government official, he has qualified immunity from suit.
This matter is before the Court on Defendant Ronald Hagen’s Motion To Dismiss (Doc. #8) filed
December 13, 2010 and Plaintiff’s Supplemental Exhibit In Response To Defendant Ronald Hagen’s
Motion To Dismiss And Memorandum In Support Pursuant To Fed. R. Civ. P. 12(b) (Doc. 8 & 9)
(Doc. #16) filed January 6, 2011, which the Court construes as a motion to file a surreply. For the
following reasons, the Court sustains defendant’s motion in part and overrules plaintiff’s motion.
Legal Standards
In ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), Fed. R. Civ. P.,
the Court assumes as true all well pleaded factual allegations and determines whether they plausibly give
1

Plaintiff’s complaint alleges that defendant also violated her Eighth Amendment right
against excessive bail. Defendant’s motion to dismiss does not mention this claim and it therefore
remains unchallenged.

rise to an entitlement of relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).2 Because plaintiff
proceeds pro se, the Court construes her complaint liberally and holds it to a less stringent standard than
formal pleadings drafted by lawyers. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The
Court does not, however, assume the role of advocate for a pro se litigant. See id. To survive a motion
to dismiss, a complaint must contain sufficient factual matter to state a claim that is plausible – and not
merely conceivable – on its face. See Iqbal, 129 S. Ct. at 1949-50; Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). The Court draws on its judicial experience and common sense to determine
whether a complaint states a plausible claim for relief. Iqbal, 129 S. Ct. at 1950.
The Court does not accept as true those allegations which state only legal conclusions. Id. at
1949. Plaintiff bears the burden to frame her complaint with enough factual matter to suggest that she
is entitled to relief; a threadbare recitation of the elements of a cause of action supported by labels and
conclusions without further factual enhancement is not enough. Id. at 1949-50. To be facially plausible,
plaintiff’s complaint must contain factual content from which the Court can reasonably infer that
defendant is liable for the misconduct she alleges. Id. at 1949. Thus, plaintiff must show more than a
sheer possibility that defendant has acted unlawfully, and must plead facts that are more than “merely
consistent” with liability. Id. (citing Twombly, 550 U.S. at 557). Where the well-pleaded facts do not
permit the Court to infer more than the mere possibility of misconduct, the complaint has alleged – but
not “shown” – that the pleader is entitled to relief. Id. at 1950. The degree of specificity required to
establish plausibility is context-specific because what constitutes fair notice under Rule 8(a)(2), Fed.

2

Although the Tenth Circuit once imposed a heightened pleading standard when a
defendant raised qualified immunity as a defense, it has now held that the heightened requirement did
not survive the Supreme Court decision in Crawford-El v. Britton, 523 U.S. 574 (1998). Currier v.
Duran, 242 F.3d 905, 916 (10th Cir. 2001); Coburn v. Nordeen, 72 Fed. Appx. 744, 745-46 (10th Cir.
2003).
-2-

R. Civ. P., depends upon the type of case. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
Factual Background
Plaintiff’s complaint alleges the following facts.3
In March of 2009, defendant told plaintiff to dissociate from her husband, whom defendant was
investigating. Plaintiff remained with her husband. On or about November 9, 2009, plaintiff reported
defendant to the KBI internal affairs division on an unrelated matter. On January 12, 2010, defendant
filed an affidavit which provided the sole support for a warrant for plaintiff’s arrest. The affidavit
alleged that plaintiff had committed theft in violation of K.S.A. § 21-3701, made a false information in
violation of K.S.A. § 21-3711, given a worthless check in violation of K.S.A. § 21-3707 and conspired
in violation of K.S.A. § 21-3302. Specifically, the affidavit may be summarized as follows:
On October 31, 2008, defendant opened an investigation into plaintiff and her
husband, Carlos Moral, as a result of an investigation by the Grant County Sheriff. The
Sheriff had received a complaint that Carlos Moral had tried to cover a debt with more
than $400,000 in bad checks. The Sheriff gave defendant 28 bad checks drawn on bank
accounts that belonged to plaintiff, her husband and their company, M & M Investors,
Inc. The checks totaled $424,538. Because of a conflict of interest in the Grant County
Attorney’s Office, the Sheriff asked the KBI to further investigate the complaint.
That same day, October 31, 2008, defendant located a felony arrest warrant for
Carlos Moral in the District Court of Reno County, Kansas. The warrant was for giving
a worthless check, drawn on an E-Trade account, to Lucke and Associates in the amount
of $7,200. The Sheriff and defendant arrested Carlos Moral on the warrant.
On July 15, 2009, the Grant County District Court issued an arrest warrant for
Carlos Moral which charged him with 29 felonies. Authorities arrested Carlos Moral the
same day.
On August 19, 2009, defendant interviewed the publisher of the Garden City

3

The Court has also considered the exhibits attached to the complaint. See Tal v. Hogan,
453 F.3d 1244, 1265 n.24 (10th Cir. 2006) (exhibits attached to complaint properly treated as part of
pleadings); Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 964-65 (10th Cir.
1994).
-3-

Telegram, Dena Sattler. She told defendant that Carlos Moral had tried to pass an
invalid credit card and worthless check to cover an outstanding bill. The Telegram had
entered into an agreement with plaintiff and her husband to print their newspaper, the
Grant County Gazette, for a fee. At some point, plaintiff and her husband refused to pay
the Telegram and accrued an outstanding bill of $4,130.82. On June 30, 2009, plaintiff
e-mailed Sattler that an accountant in Wichita, Kansas had caused the delay in payment.
Around the same time, Carlos Moral represented to the Telegram that Scott Davis was
the accountant causing the problem. The Telegram also received a fax regarding Davis
from the Tiger Lily, plaintiff’s flower shop in Ulysses, Kansas.
On August 19, 2009, defendant interviewed the Telegram’s business manager,
Marisa Perez. Perez told defendant that Carlos Moral had sent her a copy of a Fed Ex
airbill to verify that Davis would satisfy the publishing debt. The airbill gave a false
address and phone number for Davis. The address which Carlos Moral gave was for
residential apartments. No one by the name of Scott Davis lived there, but David Lutz,
a known associate of plaintiff and her husband, did live there.
After a period of time, Perez contacted Carlos Moral and demanded payment.
Carlos Moral gave her a credit card number and asked that Perez only use it on the 15th
and 30th of the month. Perez checked with various credit card companies and found that
the credit card number was invalid. When she told Carlos Moral that it was invalid, he
did not dispute it and instead gave her a check drawn on an E-Trade account.4 Perez
contacted E-Trade and found that the check was worthless.5
See Doc. #1 at 10-16.
Based on defendant’s affidavit, the District Court of Finney County, Kansas issued a warrant for
plaintiff’s arrest. On January 21, 2010, law enforcement officers arrested plaintiff and removed her from
her home in handcuffs and in plain sight. While plaintiff awaited transport to jail, defendant laughed
and snickered at her. Officers then transported plaintiff to the Finney County Jail. The trip took more
than one hour, during which plaintiff remained in handcuffs and shackles.

4

The parties dispute whether the E-Trade check was a legal check for purposes of the
worthless check statute. Although the Court refers to the E-Trade document as a “check” it does not
determine whether it constitutes a check for purposes of the worthless check statute.
5

Defendant’s report from his interview with Perez indicates that she told him that the
E-Trade check did not have a date or signature.
-4-

The Telegram and the Ulysses News published front-page articles about plaintiff’s arrest. The
Ulysses News included plaintiff’s mug shot and was distributed to the schools that plaintiff’s children
attend.
On January 21, 2010, the State of Kansas filed a criminal complaint which charged plaintiff with
one count of theft of services and one count of giving a worthless check. The complaint listed
17 witnesses including defendant. Based on defendant’s affidavit, the District Court of Finney County
set plaintiff’s bail at $25,000. At a preliminary hearing on January 27, 2010, Judge Ricklin Pierce – the
same judge who had issued the arrest warrant – ruled that the State lacked probable cause with respect
to both charges. Accordingly, he dismissed all charges against plaintiff.
Plaintiff’s complaint alleges that defendant engaged in malicious prosecution by purposefully
disregarding the inaccuracy of his affidavit. Specifically, it alleges that defendant’s affidavit did not
implicate plaintiff in any of the crimes alleged and did not match defendant’s investigative reports.
Thus, she alleges, defendant caused her to be arrested without probable cause in violation of the Fourth
Amendment. She also alleges that defendant submitted the affidavit in retaliation for reporting him to
the KBI internal affairs department and for remaining with her husband.
Analysis
Plaintiff brings suit under Section 1983 alleging that (1) in violation of the Fourth Amendment,
defendant obtained a warrant for her arrest without probable cause, and (2) in violation of the First
Amendment, defendant retaliated against her for filing a complaint with the KBI internal affairs
department and for remaining with her husband.6 Defendant moves to dismiss both claims for failure

6

To state a claim under Section 1983, plaintiff must plausibly allege that defendant
deprived her of a federal right and that he acted under color of state law in doing so. 42 U.S.C. § 1983;
(continued...)
-5-

to state a claim and because he is entitled to qualified immunity.
I.

Malicious Prosecution
The following elements of common law malicious prosecution are the starting point for analysis

of a Section 1983 malicious prosecution claim: (1) defendant caused plaintiff’s continued confinement
or prosecution; (2) the original action terminated in favor of plaintiff; (3) the original arrest, continued
confinement or prosecution was not supported by probable cause; (4) defendant acted with malice; and
(5) plaintiff sustained damages. Wilkins v. DeReyes, 528 F.3d 790, 797 (10th Cir. 2008), cert. denied
129 S. Ct. 1526 (2009); Novitsky v. City of Aurora, 491 F.3d 1244, 1257-58 (10th Cir. 2007). The
ultimate question, however, is whether plaintiff has alleged a constitutional violation. See Wilkins, 528
F.3d at 797 (probable cause element provides necessary connection between common law tort and
Fourth Amendment). Defendant challenges only the third and fourth elements, i.e. whether probable
cause supported plaintiff’s arrest and whether defendant acted with malice.
A.

Probable Cause

Probable cause for an arrest warrant is established by demonstrating a substantial probability that
a crime has been committed and that a specific individual committed the crime. Wilkins, 528 F.3d at
801; Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996). The complaint alleges that defendant’s
affidavit lacked probable cause for two reasons: (1) it did not contain any information connecting
plaintiff to the alleged crimes, see Civil Complaint (Doc. #1) at 7, ¶ 16, i.e. the affidavit was insufficient
on its face to establish probable cause, and (2) defendant’s investigation reports do not match his

6

(...continued)
Iqbal, 129 S. Ct. at 1949; West v. Atkins, 487 U.S. 42, 48 (1988). Defendant does not contest that he
acted under color of state law; he only argues that plaintiff has not sufficiently alleged that he violated
her constitutional rights.
-6-

affidavit, see Doc. #1 at 7, ¶¶ 17-18, 20, i.e. defendant omitted facts that would have vitiated probable
cause.7 Although plaintiff characterized defendant’s affidavit as “false” and alleged that it would have
vitiated probable cause if certain information had been included, her characterizations are merely
conclusory – not well-pled facts which must be accepted as true. Coburn, 72 Fed. Appx. at 746 (citing
S. Disposal, Inc. v. Tex. Waste Mgmt., 161 F.3d 1259, 1262 (10th Cir. 1998)).
1.

Allegations In Affidavit

Defendant’s affidavit averred that plaintiff, her husband and their company committed theft in
violation of K.S.A. § 21-3701,8 made a false information in violation of K.S.A. § 21-3711,9 gave a

7

Defendant places great weight on the fact that a magistrate judge independently verified
his probable cause to arrest plaintiff, while plaintiff emphasizes that the same magistrate judge later
held that the State lacked probable cause to press charges. Neither argument withstands scrutiny. The
Supreme Court has rejected defendant’s argument. Malley v. Briggs, 475 U.S. 335, 345-46 (1986)
(rejecting argument that officer is entitled to rely on judgment of judicial officer because “it is possible
that a magistrate, working under docket pressures, will fail to perform as a magistrate should”).
Plaintiff’s argument is equally without merit because the State only charged plaintiff with theft of
services and giving a worthless check while defendant’s affidavit also alleged making a false
information and conspiracy. Moreover, Malley presumably would apply with equal force to the
judge’s determination at the preliminary hearing, i.e. working under docket pressures, a magistrate
might fail to perform as a magistrate should. Likewise, plaintiff’s argument that the Rooker-Feldman
doctrine precludes the Court from determining whether defendant’s affidavit supported a finding of
probable cause is without merit. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U .S. 280,
284 (2005) (Rooker-Feldman bar “confined to . . . cases brought by state-court losers complaining of
injuries caused by state-court”); Mann v. Boatright, 477 F.3d 1140, 1446 (10th Cir. 2007).
8

K.S.A. § 21-3701 provides in part as follows:

Theft is any of the following acts done with intent to deprive the owner permanently
of the possession, use or benefit of the owner’s property:
(1) Obtaining or exerting unauthorized control over property;
(2) obtaining by deception control over property;
(3) obtaining by threat control over property; or
(4) obtaining control over stolen property knowing the property to have been
stolen by another.
(continued...)
-7-

worthless check in violation of K.S.A. § 21-370710 and conspired in violation of K.S.A. § 21-3302.11
Doc. #1 at 10. Specifically, it averred that (1) plaintiff’s husband had written more than $400,000 in
bad checks from bank accounts belonging to plaintiff, her husband and their company; (2) plaintiff
8

(...continued)
K.S.A. § 21-3701(a) (repealed and recodified by 2010 Kan. Sess. Laws Ch. 136, New Sec. 87, which
combines theft of property and theft of services but makes no other material change).
9

K.S.A. § 21-3711 provides in part as follows:

Making false information is making, generating, distributing or drawing, or causing
to be made, generated, distributed or drawn, any written instrument, electronic data or
entry in a book of account with knowledge that such information falsely states or
represents some material matter or is not what it purports to be, and with intent to
defraud, obstruct the detection of a theft or felony offense or induce official action.
K.S.A. § 21-3711 (repealed and recodified without change by 2010 Kan. Sess. Laws Ch. 136, New
Sec. 110).
10

K.S.A. § 21-3707 provides in part as follows:

Giving a worthless check is the making, drawing, issuing or delivering or causing or
directing the making, drawing, issuing or delivering of any check, order or draft on any
bank, credit union, savings and loan association or depository for the payment of
money or its equivalent with intent to defraud and knowing, at the time of the making,
drawing, issuing or delivering of such check, order or draft, that the maker or drawer
has no deposit in or credits with the drawee or has not sufficient funds in, or credits
with, the drawee for the payment of such check, order or draft in full upon its
presentation.
K.S.A. § 21-3707(a) (repealed and recodified without change by 2010 Kan. Sess. Laws Ch. 136, New
Sec. 107).
11

K.S.A. § 21-3302 provides in part as follows:

A conspiracy is an agreement with another person to commit a crime or to assist in
committing a crime. No person may be convicted of a conspiracy unless an overt act
in furtherance of such conspiracy is alleged and proved to have been committed by
such person or by a co-conspirator.
K.S.A. § 21-3302(a) (repealed and recodified without change by 2010 Kan. Sess. Laws Ch. 136, New
Sec. 34).
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helped her husband avoid paying a debt to the Telegram by e-mailing the publisher that a non-existent
accountant was responsible for the delay in payment; (3) plaintiff’s flower shop sent a fax which
indicated that the accountant would satisfy the debt; (4) plaintiff’s husband tried to pay the debt with
an E-Trade check – a written instrument which purported to be but was not actually capable of satisfying
the debt; and (5) plaintiff refused to speak with the Telegram business manager about the worthless
check which her husband used to try to pay the debt. Taken together, these allegations established
probable cause to believe that at a minimum, plaintiff had conspired with her husband to make a false
information – a writing that was not what it purported to be – with intent to defraud. Therefore, on its
face the affidavit provided probable cause to arrest plaintiff.
2.

Material Omissions From Affidavit

The complaint alleges that defendant’s probable cause affidavit was false, that his investigation
reports did not match his affidavit and that defendant purposefully disregarded the inaccuracies in his
affidavit. In responding to defendant’s motion to dismiss, plaintiff argues that defendant’s affidavit
omitted material facts about the E-Trade check which would have vitiated probable cause.12

12

As previously noted, plaintiff moves to supplement her response to defendant’s motion
to dismiss with an interrogatory response by Perez, the business manager of the Telegram. The Court
construes the motion as a motion for leave to file a surreply. The Court typically does not allow
surreplies, see Metzger v. City of Leawood, 144 F. Supp.2d 1225, 1266 (D. Kan. 2001), except in rare
cases with leave of court, Humphries v. Williams Natural Gas Co., No. 96-4196-SAC, 1998 WL
982903, at *1 (D. Kan. Sept. 23, 1998). For example, a nonmoving party should be given an
opportunity to respond to new material raised for the first time in a reply brief. Green v. New Mexico,
420 F.3d 1189, 1196 (10th Cir. 2005). For purposes of this analysis, “material” includes both new
evidence and new legal arguments. Id.; Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1139
n.13 (10th Cir. 2003).
Here, plaintiff provides supplemental evidence which she received after she filed her response
to defendant’s motion – specifically, an interrogatory answer from Perez regarding her interview with
defendant. By rule, on a motion to dismiss, the Court does not consider matters outside the complaint
or the attachments thereto. See Fed. R. Civ. P. 12(d). Therefore, the Court overrules plaintiff’s
(continued...)
-9-

Specifically, she asserts that defendant withheld the fact that the check did not have a date or amount
and never entered the banking system, and therefore was not a check for purposes of the worthless check
statute. Under the Fourth Amendment, an arrest warrant affiant may not knowingly, or with reckless
disregard for the truth, include false statements in the affidavit or knowingly or recklessly omit
information which would vitiate probable cause if included. Taylor v. Meacham, 82 F.3d 1556, 1562
(10th Cir. 1996); Wolford, 78 F.3d at 489 (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978);
Stewart v. Donges, 915 F.2d 572, 581-83 (10th Cir. 1990)).
Defendant’s affidavit stated that plaintiff’s husband signed an E-Trade check payable to the order
of the Telegram, that the check was to pay a debt of M & M Investors and that Perez called E-Trade and
discovered that the check was worthless. The affidavit did not state that Perez tried to deposit or cash
the check. Therefore, the affidavit sufficiently reflected the fact that the check never entered the
banking system. The affidavit did, however, omit the fact that the check did not contain an amount.
Plaintiff alleges that because defendant’s interview notes with Perez state that the check did not include
an amount, defendant knowingly or recklessly omitted the information from his affidavit. See Doc. #1
at 7, ¶¶ 17-18, 20. Plaintiff ultimately argues that if the affidavit had disclosed that the check did not

12

(...continued)
motion. Even if the Court did consider plaintiff’s supplement, it would not change the Court’s
analysis.
In part, the interrogatory states, “I have never spoken to [plaintiff], and I did not tell Hagen I
had.” Doc. #16. Plaintiff argues that Perez’ statement supports her allegations that defendant’s
affidavit was inaccurate and that his reports do not match his affidavit. Defendant’s affidavit and his
report are consistent with each other, however, and with Perez’ interrogatory response. Defendant’s
interview report states that plaintiff “repeatedly attempted to re-contact MORAL without success.”
Doc. #1 at 21 (emphasis added). It does not specify whether “MORAL” refers to Carlos Moral, to
plaintiff or to both. Defendant’s affidavit stated that Perez “continued to try to contact Carlos Moral
and Julie Moral” about it. Doc. #21 at 15 (emphasis added). Neither the report nor the affidavit stated
that Perez ever spoke with plaintiff about the worthless check; they are therefore consistent with Perez’
interrogatory response.
-10-

state an amount, the affidavit would have lacked probable cause to arrest her. The Court disagrees.
Plaintiff’s e-mail to the Telegram, and the fax sent from her flower shop, which stated that a nonexistent accountant would pay the publishing bill, provided probable cause to conclude that plaintiff
agreed to assist her husband in his attempt to defraud the Telegram. See K.S.A. § 21-3302 (conspiracy).
The E-Trade check that plaintiff’s husband sent the Telegram after plaintiff’s e-mail provided probable
cause to conclude that he made a false information – a written instrument, which he misrepresented
would cover the $4,130.82 publishing debt, with the intent to defraud.13 See K.S.A. § 21-3711 (false
information). Even if the affidavit had stated that the E-Trade check did not include an amount, and
even if the E-Trade check did not constitute a check for purposes of the worthless check statute, the
affidavit would have provided probable cause to conclude that plaintiff conspired with her husband to
make a false information.
In short, even if the affidavit had included the fact that the E-Trade check did not state an
amount, it would have provided probable cause for plaintiff’s arrest. Accordingly, plaintiff has not
alleged a Fourth Amendment violation or a claim for malicious prosecution under Section 1983.
II.

First Amendment Retaliation
The complaint alleges that by obtaining the arrest warrant in retaliation for plaintiff’s filing of

a complaint against defendant with the KBI internal affairs division and because she would not
dissociate from her husband, defendant violated her First Amendment rights to free speech, to petition
the government and to freedom of association. To state a Section 1983 retaliation claim, plaintiff must
plausibly allege that (1) she engaged in a constitutionally protected activity; (2) defendant’s actions

13

The affidavit’s allegation that plaintiff’s husband provided the Telegram an invalid
credit card number to pay the publishing bill may also provide probable cause to believe that he made
a false information.
-11-

caused her to suffer an injury that would chill a person of ordinary firmness from continuing to engage
in that activity; and (3) defendant’s actions were substantially motivated as a response to plaintiff’s
exercise of First Amendment rights. Howards v. Laughlin, 634 F.3d 1131, 1144 (10th Cir. 2011).
Defendant attacks only the third element, i.e. whether plaintiff has alleged that her exercise of First
Amendment rights was the motive for his conduct. In this regard, defendant argues that plaintiff must
allege that he acted without probable cause.
A.

Causation

Defendant argues that plaintiff’s complaint relies exclusively on the temporal proximity between
her complaint to the KBI internal affairs division and her subsequent arrest, and that temporal proximity
alone is insufficient to state a First Amendment retaliation claim. In other contexts, the Tenth Circuit
has held that a six-week period between protected activity and adverse action may be sufficient by itself
to show causation, but that a three-month period, without more, is insufficient. Meiners v. Univ. of
Kan., 359 F.3d 1222, 1231 (10th Cir. 2004) (discussing retaliation in Title VII summary judgment
context); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (three-month gap alone
insufficient in Fair Labor Standards Act summary judgment context); Anderson v. Coors Brewing Co.,
181 F.3d 1171, 1179 (10th Cir. 1999) (assuming two month and one week gap sufficient in Americans
with Disabilities Act summary judgment context). The causation analysis in these cases also applies
to First Amendment retaliation claims. Lauck v. Campbell Cnty., 627 F.3d 805, 815-16 (10th Cir.
2010).
To survive a motion to dismiss, plaintiff need only plead enough facts to show that her claims
are plausible. Iqbal, 129 S. Ct. at 1950. With respect to plaintiff’s freedom of speech and petition
claims, the complaint alleges that plaintiff reported defendant to the KBI internal affairs division on or

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about November 9, 2009, and that roughly two months later, on January 12, 2010, defendant attested
to the affidavit which formed the sole basis for plaintiff’s arrest. Plaintiff alleges that defendant had
obtained all of the information in his affidavit prior to her internal affairs report, but that he did not
decide to act on the information until after she filed the report. She also alleges that in March of 2009,
defendant threatened to investigate her if she did not dissociate from her husband. Plaintiff has
sufficiently alleged causation with respect to her retaliation claims. See Howards, 634 F.3d at 1145;
Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000) (any form of official retaliation for exercising
First Amendment right – including prosecution, threatened prosecution, bad faith investigation and legal
harassment – constitutes infringement of right).
B.

Probable Cause

Relying on Becker v. Kroll, defendant argues that because plaintiff’s claims are based on
malicious prosecution, she must plead and prove the absence of probable cause. 494 F.3d 904, 925
(10th Cir. 2007). In Hartman v. Moore, 547 U.S. 250 (2006), the Supreme Court held that when a
plaintiff alleges retaliatory prosecution – that is, when a plaintiff sues a law enforcement officer for
inducing prosecution in retaliation for speech – she must allege and prove that the prosecutor lacked
probable cause for bringing the charges. 547 U.S. at 265-66. Here, plaintiff does not allege that
defendant induced prosecution in retaliation for speech. Rather, she alleges that defendant personally
retaliated against her by obtaining a warrant for her arrest.
In Howards v.Laughlin, the Tenth Circuit declined to extend Hartman to retaliatory arrest or
“ordinary retaliation cases” where the government agent who allegedly harbored the retaliatory animus
was also the individual who allegedly took the adverse action. Howards, 634 F.3d 1131, 1148 (10th Cir.
2011). Like Howards, this case involves “ordinary” retaliation, i.e. plaintiff alleges that defendant both

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harbored retaliatory animus and took adverse action. Hartman, 547 U.S. at 259; Howards, 634 F.3d at
1148. Therefore, plaintiff need not allege or prove that defendant acted without probable cause. See
Howards, 634 F.3d at 1148.14 Accordingly, plaintiff has sufficiently pled her First Amendment
retaliation claims.
III.

Qualified Immunity
As noted, defendant seeks to dismiss plaintiff’s First Amendment claims on the grounds of

qualified immunity.15 Qualified immunity shields public officials “from undue interference with their
duties and from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806
(1982). At this stage, plaintiff may overcome defendant’s assertion of qualified immunity by plausibly
alleging that (1) defendant violated a constitutional right and (2) the constitutional right was clearly
established at the time of defendant’s actions, such that it would have been clear to a reasonable officer
that his conduct was unlawful. Currier, 242 F.3d at 917, 923; see Wilkins, 528 F.3d at 796-97.

14

Howards involved a warrantless arrest whereas here, defendant obtained a warrant for
plaintiff’s arrest. This distinction, however, is immaterial. Plaintiff’s allegations fall squarely within
the Hartman and Howards definition of an “ordinary” retaliation case in which plaintiff is not required
to plead and prove the absence of probable cause.
Moreover, the agent-magistrate relationship does not implicate the complex causation issues
which arose in the inspector-prosecutor relationship in Hartman. The Supreme Court described the
complex causation issue as follows: “Evidence of an inspector’s animus does not necessarily show that
the inspector induced the action of a prosecutor who would not have pressed charges otherwise.”
Hartman, 547 U.S. 263. In other words, because the prosecutor might have brought charges absent
the inspector’s action, plaintiff should be required to show that the prosecutor lacked probable cause
to “bridge the gap between the nonprosecuting government agent’s motive and the prosecutor’s action,
and to address the presumption of prosecutorial regularity.” Id. Unlike a prosecutor, a magistrate
cannot issue an arrest warrant absent a request by a government agent. Thus, plaintiff’s traditional
retaliatory arrest claim does not require her to bridge a gap between the motive of one person and the
action of another.
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Because the Court has dismissed plaintiff’s Fourth Amendment claims under
Rule 12(b)(6), Fed. R. Civ. P., it need not decide whether defendant is entitled to qualified immunity
on that claim.
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Official reprisal for protected speech offends the Constitution because it threatens to inhibit
exercise of the protected right. Hartman, 547 U.S. at 256; Crawford-El, 523 U.S. at 593; Howards, 634
F.3d at 1143. The law is settled that as a general matter the First Amendment prohibits government
officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for
speaking out. Hartman, 547 U.S. at 256; Howards, 634 F.3d at 1143. Moreover, it is well settled in the
Tenth Circuit that a plaintiff who brings an “ordinary” First Amendment retaliation claim is not required
to show that the defendant lacked probable cause for his actions. Howards, 634 F.3d at 1146 (in context
of arrest, act taken in retaliation for exercise of constitutionally protected right actionable under
Section 1983 even if act – when taken for different reason – would have been proper); DeLoach v.
Bevers, 922 F.2d 618, 620 (10th Cir. 1990).
The law in this regard was clearly established in 2009 and 2010, at the time of defendant’s
conduct. See Howards, 634 F.3d at 1148. On this record, defendant is not entitled to qualified
immunity. See Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004) (summary judgment provides
typical vehicle for asserting qualified immunity defense).
IV.

Attorney’s Fees
Defendant asks the Court to award attorney’s fees under 42 U.S.C. § 1988 for time spent

defending this action. Section 1988 gives the Court discretion to award a reasonable attorney’s fee to
a prevailing party in a civil rights action. 42 U.S.C. § 1988. Under Rule 54, Fed. R. Civ. P., the Court
may assess attorney’s fees only after final disposition of the case. See Fed. R. Civ. P. 54(a)-(b), (d)(2);
see also Steinert v. Winn Grp., Inc., No. 98-2564-CM, 2000 WL 1466178, at *2 (D. Kan. Aug. 2, 2000).
Although the Court dismisses plaintiff’s malicious prosecution claim, her First and Eighth Amendment
claims remain. Moreover, it appears that defendant has not complied with D. Kan. Rule 54.2, which

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provides the procedural framework for requesting attorney’s fees in this Court. For these reasons,
defendant’s request for attorney’s fees under Section 1988 is premature and without merit.
IT IS THEREFORE ORDERED that Defendant Ronald Hagen’s Motion To Dismiss (Doc. #8)
filed December 13, 2010 be and hereby is SUSTAINED in part. The Court sustains the motion with
respect to plaintiff’s malicious prosecution claim and overrules it with respect to her First Amendment
retaliation claims. The Court also overrules defendant’s motion for fees.
IT IS FURTHER ORDERED that Plaintiff’s Supplemental Exhibit In Response To Defendant
Ronald Hagen’s Motion To Dismiss And Memorandum In Support Pursuant to Fed. R. Civ. P. 12(b)
(Doc. 8 & 9) (Doc. #16) filed January 6, 2011, which the Court construes as a motion for surreply, be
and hereby is OVERRULED.
Dated this 14th day of July, 2011 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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