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Hawver v. Nuss

United States District Court, D. Kansas

March 31, 2015

DENNIS HAWVER, Plaintiff,
v.
LAWTON R. NUSS, et al., Defendants.

ORDER GRANTING MOTION TO DISMISS

GREG KAYS, Chief District Judge.

This lawsuit arises out of Plaintiff Dennis Hawver's disbarment by the Kansas Supreme Court for "inexplicable incompetence" in defending a client against capital murder charges. After the Kansas Supreme Court's action, the United States District Court for the District of Kansas ("District of Kansas") ordered Plaintiff to show cause why it should not impose reciprocal discipline pursuant to D. Kan. Rule 83.6.4. Plaintiff then filed the pending lawsuit, seeking to stave off his Kansas disbarment and any reciprocal discipline. Plaintiff is suing the members of the Kansas Supreme Court, the Kansas Attorney Discipline Administrator, the Kansas Attorney Discipline Prosecutor, members of the Kansas Board of Discipline for Attorneys, and the chief judge of the District of Kansas for injunctive relief and damages.

Now before the Court is Defendant Chief Judge J. Thomas Marten's ("Chief Judge Marten" or "the Chief Judge") motion to dismiss (Doc. 19) pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). Because the Court lacks subject-matter jurisdiction, the motion is GRANTED. Plaintiff's claims against Chief Judge Marten are dismissed without prejudice.

Background

Chief Judge Marten is currently the chief judge of the District of Kansas. The Complaint alleges Plaintiff is in "present and immediate" danger that Chief Judge Marten will take Plaintiff's constitutional right to practice law from him by allowing the District of Kansas' disciplinary committee to disbar him. Compl. at ¶ 124. Plaintiff is suing Chief Judge Marten in his official capacity for injunctive and declaratory relief. Id. at cover page, ¶ 1.

Specifically, in his own words, Plaintiff seeks:

1. Injunctive relief against the Chief Judge under the First Amendment "to restrain the ongoing violation of the federal rights of similarly situated Kansas attorneys to protect the misconduct of State of Kansas officials under the color of state law." Id. ¶ 66.

2. "[I]njunctive relief... for the other Kansas lawyers identified in this Complaint, who face barriers and certain retaliation if they would seek redress for the repeated rote violation of their constitutional rights by the Kansas Supreme Court." Id. at ¶ 126.

3. "Declaratory relief against all defendants, stating that an attorney has the right to represent a criminal defendant for an agreement to pay a flat fee." Id. at ¶ 127.

4. "Declaratory relief against all defendants that an attorney has the right to represent a criminal defendant by following the lawful trial strategy decided upon by that defendant, and to make truthful representations... pursuant to the instruction of that criminal defendant." Id. at ¶ 128.

5. "Declaratory relief against all defendants that an attorney is protected by the First Amendment regarding advocacy and association, for representing a criminal defendant in a lawful strategy... and therefore... all prosecutions of an attorney by the state and its' minions for the same protected conduct are void under the Fourteenth Amendment." Id. at ¶ 129.

6. A declaratory judgment applicable to the Chief Judge stating "that the Kansas U.S. District Court cannot reciprocally disbar the Plaintiff, and thereby violate his rights under the First Amendment regarding advocacy and association." Id. at ¶ 130.

7. Prospective injunctive relief against the Chief Judge "that the Kansas District Court cannot prearrange a denial of the Plaintiff's federal Due Process rights by refusing to follow stare decisis opinions" of previous federal court cases establishing Plaintiff's rights to damages, declaratory relief, and prospective injunctive relief. Id. at ¶ 131.

8. Prospective injunctive relief prohibiting disbarment by the Kansas Supreme Court. If the Kansas Supreme Court does disbar him, Plaintiff requests that this Court order his ...


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