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Sause v. Bauer

United States Court of Appeals, Tenth Circuit

June 20, 2017

MARY ANNE SAUSE, Plaintiff - Appellant,
TIMOTHY J. BAUER, Chief of Police; JASON LINDSEY, Police Officer of Louisburg, Kansas; BRENT BALL, Police Officer of Louisburg, Kansas; RON ANDERSON, Former Chief of Police of Louisburg, Kansas; LEE STEVENS, Former Louisburg, Kansas Police Officer; MARTY SOUTHARD, Mayor of City of Louisburg, Kansas; TRAVIS THOMPSON, Former Mayor of City of Louisburg, Kansas, Defendants - Appellees.

         Appeal 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.

          Before TYMKOVICH, Chief Judge, LUCERO and MORITZ, Circuit Judges.

          MORITZ, Circuit Judge.

         Mary 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.

         Because 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.


         We 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.").

         On 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.

         "[A]ppearing 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 "COPS." Id.

         At some 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." Id.

         While 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.

         Sause's 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.

         Next, 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. Id.

         Two years later, Sause filed suit under § 1983, alleging that the defendants violated her First Amendment rights.[1] 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.

         But 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.[2]Id. And because the ...

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