from the United States District Court for the District of
Kansas (D.C. No. 2:15-CV-09633-JAR-TJJ)
Bradley G. Hubbard, Gibson, Dunn & Crutcher LLP, Dallas,
Texas (James C. Ho, Gibson Dunn & Crutcher LLP, Dallas,
Texas, Hiram S. Sasser III, Justin E. Butterfield and
Stephanie N. Phillips, First Liberty Institute, Plano, Texas,
and Jason Neal, Gibson, Dunn & Crutcher LLP, Washington,
D.C., with him on the briefs), for Plaintiff-Appellant.
Christopher B. Nelson, Fisher, Patterson, Sayler & Smith,
LLP, Overland Park, Kansas (Michael K. Seck and Amy J. Luck,
Fisher, Patterson, Sayler & Smith, LLP, Overland Park,
Kansas, on the brief), for Defendants-Appellees.
TYMKOVICH, Chief Judge, LUCERO and MORITZ, Circuit Judges.
MORITZ, Circuit Judge.
Anne Sause brought this action under 42 U.S.C. § 1983,
alleging that Officers Lee Stevens and Jason Lindsey (the
defendants) violated her rights under the First Amendment.
The district court dismissed Sause's complaint with
prejudice for failure to state a claim, see Fed. R.
Civ. P. 12(b)(6), and Sause appeals.
Sause fails to demonstrate that the contours of the right at
issue are clearly established, we agree with the district
court that the defendants are entitled to qualified immunity.
And we likewise agree that allowing Sause leave to amend her
complaint would be futile. Accordingly, we affirm the
district court's order to the extent that it dismisses
with prejudice Sause's claims for money damages. But
because we conclude that Sause lacks standing to assert her
claims for injunctive relief, we reverse in part and remand
with instructions to dismiss those claims without prejudice.
derive the following facts from Sause's pro se complaint,
construing her allegations liberally and in the light most
favorable to her. See Hall v. Bellmon, 935 F.2d
1106, 1109 (10th Cir. 1991) ("A court reviewing the
sufficiency of a complaint presumes all of plaintiff's
factual allegations are true and construes them in the light
most favorable to the plaintiff."); id. at 1110
("A pro se litigant's pleadings are to be construed
liberally and held to a less stringent standard than formal
pleadings drafted by lawyers.").
November 22, 2013, the defendants contacted Sause at her home
while investigating a noise complaint. At first, Sause denied
the defendants entry "[f]or [her] protection"
because she couldn't see through her peephole to
determine who was at her door. App. 14. But when the
defendants later returned, Sause let them in.
angry, " the defendants asked Sause why she didn't
answer her door the first time. Id. at 12. Sause
responded by showing them a copy of the Constitution and Bill
of Rights that she keeps "on display" by her front
door. Id. at 13. Lindsey "laugh[ed]" and
"mock[ed]" Sause, saying, "[T]hat's
nothing, it's just a piece of paper" that
"[d]oesn't work here." Id. Lindsey
also turned on his body camera and told Sause that she was
"going to be on" the television show
point, Stevens left Lindsey alone with Sause and her friend
Sharon Johnson, who was also present. Lindsey then informed
Sause that she "was going to jail, " although he
"d[idn't] know [why] yet." Id.
Understandably frightened, Sause asked Lindsey if she could
pray. Lindsey replied, "Yes, " and Sause
"knelt down on . . . [her] prayer rug."
Sause was still praying, Stevens returned and asked what she
was doing. Lindsey laughed and told Stevens "in a
mocking tone" that Sause was praying. Id.
Stevens then ordered Sause to "[g]et up" and
"[t]o [s]top praying." Id. at 13-14.
complaint doesn't explicitly state that she complied with
Stevens' orders, but it appears she at least stopped
praying; when Lindsey told her that she
"need[ed] to move back" to Missouri, Sause
responded, "Why?" Id. at 14. Lindsey then
explained to Sause that Sause's apartment manager told
him that "no one likes" Sause. Id.
the defendants started "looking through [their]
booklet" for something to charge Sause with.
Id. "Lindsey would point" at something in
the book, and Stevens "would shake [his] head."
Id. Eventually, the defendants cited Sause for
disorderly conduct and interfering with law enforcement,
based at least in part on Sause's failure to answer the
door the first time the defendants "came out."
Id. The defendants then asked to see Sause's
tattoos and scars. Sause explained several times that she had
previously "had a double mastectomy" and eventually
"raised [her] shirt up" and showed the defendants
her scars "because they kept asking." Id.
"That appeared to disgust" the defendants.
Id. And it "humiliat[ed]" Sause.
years later, Sause filed suit under § 1983, alleging
that the defendants violated her First Amendment
rights. The defendants moved to dismiss with
prejudice, arguing that Sause's complaint fails to state
a claim upon which relief can be granted and that they're
entitled to qualified immunity. In response, Sause moved to
amend her complaint. Citing a local rule, the district court
denied Sause's motion because Sause failed to attach to
it a proposed amended complaint. The court explained that it
wasn't foreclosing "any future motion to amend that
attaches a proposed amended complaint and complies with all
applicable [rules]." Id. at 62-63.
when Sause failed to file another motion to amend, the
district court granted the defendants' motion to dismiss
with prejudice. In doing so, the court reasoned that while
Stevens "may have offended" Sause by ordering her
to stop praying, he didn't "burden . . . her ability
to exercise her religion." Id. at 71.
Accordingly, the district court concluded that Sause's
complaint fails to allege "a plausible First Amendment
claim against" Stevens; ruled that Stevens is entitled
to qualified immunity; and dismissed Sause's First
Amendment claim against him.Id. And because the