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Bricker v. Furney

United States District Court, D. Kansas

October 3, 2017

MARK FURNEY, Defendant.


          Daniel D. Crabtree, United States District Judge.

         On June 21, 2005, Corinthian Bricker was driving his truck while under the influence of drugs and alcohol. His blood alcohol content measured .22-nearly three times the legal limit of .08.[1] And, he also had cocaine, marijuana, and barbiturates in his system. While speeding between 58 and 62 mph in a 35-mph zone, he collided with another vehicle driven at an intersection in Lenexa, Kansas. The collision injured the other driver seriously. The State of Kansas charged Mr. Bricker with aggravated battery, driving under the influence, and failure to provide insurance. He pleaded guilty to all these charges, as part of a plea agreement. The Johnson County District Court sentenced him to 36 months imprisonment for aggravated battery, 180 days in jail for driving under the influence, and 180 days in jail for failing to provide insurance-the sentences to run concurrently. During those proceedings, Mark Furney represented Mr. Bricker as a public defender. Following the sentencing, Jessica Travis represented Mr. Bricker. Paul Carney was the prosecutor representing Johnson County, Kansas.

         In addition to the criminal conviction and sentence, Mr. Bricker has a civil judgment against him from a subrogation claim arising from the collision. American Family Insurance Company of Wisconsin (“American Family”) covered the other driver and it paid her the maximum of her uninsured motorist benefits as damages. Then, American Family retained Butler & Associates, P.A. (“Butler”) to pursue a subrogation claim against Mr. Bricker, hoping to recover the damages American Family had paid to Ms. Cunningham. American Family secured summary judgment against Mr. Bricker on this claim.

         On May 4, 2016, Mr. Bricker, proceeding pro se, [2] filed a Complaint alleging negligence and fraud against defendant Mark Furney; breach of contract against defendant Paul Carney; negligence against defendant Jessica Travis; harassment against defendants American Family and Butler; and negligence and respondeat superior against defendant State of Kansas. Doc. 1 at 67-73. On June 20, 2016, as a matter of right, plaintiff filed his First Amended Complaint (Doc. 4) before he served any of the defendants. Plaintiff's allegations remained generally the same. See Doc. 4 at 56-64. On February 13, 2017, this court granted several defendants' motions to dismiss, dismissing defendants State of Kansas, Patrick Carney, American Family, Butler, and Jessica Travis from the action. See Doc. 49 at 11. The court concluded that the Eleventh Amendment immunized the State of Kansas from this suit in federal court and that the court lacked subject matter jurisdiction over the claims against defendants Patrick Carney, American Family, Butler, and Jessica Travis. Id. at 4, 11. It thus dismissed all claims against those defendants. This ruling left Mark Furney as the only remaining defendant.

         In the interim, plaintiff has filed three motions: Motion for Leave to Amend (Doc. 54); “Motion to Correct Clerical Mistakes and or Error” (Doc. 55); and Motion for Leave to Amend (Doc. 67). Also, defendant Mark Furney has filed a Motion to Dismiss (Doc. 64). This order rules on all of these motions.

         I. Plaintiff's Motions

         A. Plaintiff's Motion for Leave to Amend (Doc. 54)

         1. Legal Standard

         Plaintiff requests leave to file a Second Amended Complaint. Doc. 54 at 1. “A party may amend its pleading once as a matter of course within 21 days after serving it . . . .” Fed.R.Civ.P. 15(a)(1)(A). Plaintiff already has filed one Amended Complaint. See Doc. 4. So, he can no longer amend his Complaint as a matter of course. But, Rule 15 allows plaintiff to amend with defendants' consent or the court's leave. Fed.R.Civ.P. 15(a)(2) (“In other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave.”). In cases where plaintiff seeks to amend by leave of court, “[t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). “Refusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S. W., Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citations omitted). As explained below, the court finds that allowing plaintiff to file the proposed Second Amended Complaint is both prejudicial and futile. So, the court denies plaintiff's Motion for Leave to Amend.

         2. Prejudice

         Defendants American Family and Butler contend that plaintiff's proposed amendment is prejudicial because it tries to change the theory of the case. Doc. 58 at 2. “[P]rejudice is a key factor in deciding a motion to amend. Prejudice under Rule 15 means undue difficulty in defending a lawsuit because of a change of tactics or theories on the part of the other party.” Jones v. Wildgen, 349 F.Supp.2d 1358, 1361 (D. Kan. 2004) (citations omitted); see also LeaseAmerica Corp. v. Eckel, 710 F.2d 1470, 1474 (10th Cir. 1983); Sithon Maritime Co. v. Holiday Mansion, 177 F.R.D. 504, 508 (D. Kan. 1998). “The party opposing the amendment has the burden of showing prejudice.” Sithon Maritime Co., 177 F.R.D. at 508.

         Here, defendants American Family and Butler assert that plaintiff's proposed change in case theory stems from his request for a Writ of Audita Querela. Doc. 58 at 2. This is not the only theory change. Plaintiff's First Amended Complaint alleged claims for negligence, fraud, breach of contract, harassment, and respondeat superior. See Doc. 4 at 56-64. But, plaintiff's proposed Second Amended Complaint would assert claims for ineffective assistance of counsel against defendant Mark Furney and for a Writ of Audita Querela and a Writ of Habeas Corpus. See Doc. 54-1 at 1, 17. In short, none of the claims in the First Amended Complaint and the proposed Second Amended Complaint are the same. Plaintiff's amendment would drastically change the landscape of the case. This causes defendants undue difficulty in defending the case, making it prejudicial.

         Also, it is prejudicial because Plaintiff's proposed amendment explicitly names the State of Kansas as defendant and implicitly includes American Family and Butler as defendants. Doc. 54 at 1, 8-9. The court already has dismissed these defendants from the action. To allow plaintiff an amendment that would rejoin previously dismissed defendants and completely change the case is unduly prejudicial to the defendants. The court thus denies plaintiff leave to amend for this reason

         3. Futility

         The court also denies plaintiff leave to amend because the proposed amendment asserts claims that are futile. “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal for any reason . . . .” Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1239- 40 (10th Cir. 2001) (citations omitted). As already stated, the proposed Second Amended Complaint asserts three claims-ineffective assistance of counsel, Writ of Audita Querela, and a Writ of Habeas Corpus. Each of these claims, as proposed, is subject to dismissal, so the proposed Second Amended Complaint is futile.

         a. Ineffective Assistance of Counsel

         Plaintiff contends that he was denied effective assistance of counsel in violation of the Sixth Amendment. Doc. 54-1 at 17 (“Plaintiff asserts that Plaintiff was denied effective assistance of counsel due to Furney's failure to investigate the other driver's record and accident reconstruction analysis, due to not attacking the speed calculations which was the only evidence against Plaintiff, and due to Furney lying to Plaintiff about having ‘no way to attack the opinion of excessive speed'. Plaintiff further asserts this to be a violation of the IV Amendment of the United States Constitution right to effective assistance and a violation of due process.”). The court liberally construes plaintiff's proposed claim as one seeking relief under 42 U.S.C. § 1983.[3]

         Section 1983 creates a species of tort liability designed to compensate a person for injuries caused by violation of his legal rights. Heck v. Humphrey, 512 U.S. 477, 483 (1994). In Heck, the Supreme Court analogized unlawful confinement-the claim plaintiff seeks leave to assert here-to the tort of malicious prosecution. In doing so, the Court held that:

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

Id. at 486-87 (footnotes and citation omitted). Our Circuit has applied Heck to an ineffective assistance of counsel claim and barred that claim when no court had reversed, expunged, declared invalid, or called into question the plaintiff's conviction. See Ramos v. Shepherd, 415 F. App'x 48, 49 (10th Cir. 2011). In Ramos v. Shepherd, the plaintiff claimed the deputy public defender who represented him in an underlying criminal case had violated his rights to due process and equal protection and made other claims of ineffective assistance of counsel. 415 F. App'x at 48. The district court dismissed plaintiff's § 1983 claims as ones barred by Heck. Id. The Tenth Circuit affirmed, finding that the holding in Heck barred plaintiff's suit because no court had reversed, expunged, declared invalid, or called into question his conviction. Id. at 49.

         Our court also held that Heck bars claims against a public defender for legal malpractice and negligence. See Martinez v. Wurtz, No. 08-3008-SAC, 2008 WL 1867986, at *1 (D. Kan. Apr. 24, 2008). In Martinez v. Wurtz, the plaintiff sued his public defender for legal malpractice and negligence. Id. In response to an earlier Order, the plaintiff argued that he was not claiming his defense counsel was ineffective. Id. at *2. Despite plaintiff's response, the court found that the plaintiff's claims presented constitutional challenges to the legal representation he had received in his criminal proceeding. Because plaintiff's criminal proceedings had not concluded in his favor, the claims were premature under Heck. Id.

         Here, Ramos and Martinez inform the court's conclusion that Heck bars plaintiff's putative claim against Mr. Furney. Although not asserted explicitly under § 1983, as with plaintiff's claims in Ramos, plaintiff asks to assert a claim for ineffective assistance of counsel. But, Martinez demonstrates that a plaintiff does not need to assert a claim explicitly under § 1983 or specifically call a claim “ineffective assistance of counsel” for Heck to apply. Here, plaintiff clothes his ineffective assistance of counsel as a constitutional challenge. But, plaintiff alleges no facts showing that any court has reversed, expunged, declared invalid, or called into question his conviction or sentence. Any judgment in plaintiff's favor necessarily would imply that his underlying conviction or sentence is invalid. The court thus finds that Heck bars plaintiff's proposed ineffective of assistance claim.

         To the extent that plaintiff intended to bring this claim as one for legal malpractice or negligence under state law, the court lacks subject matter jurisdiction to decide it. A more fulsome discussion of subject matter jurisdiction is included in part IV.A. below. But, Martinez also holds that claims of legal malpractice and negligence are not immune from Heck analysis. Id. at *2 (“[T]he court [is not] limited to considering plaintiff's claims only as characterized by him. Instead, under Heck, a court is required to analyze whether or not a decision on plaintiff's claims would impugn his criminal conviction or sentence.”). Therefore, Heck also would bar any legal malpractice or negligence claim even assuming the court could decide it. The court thus determines that this claim is subject to dismissal, making the proposed amendment futile.

         b. Writ ...

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