Full opinion text
MEMORANDUM & ORDER LUNGSTRUM, District Judge. This action involves multiple 42 U.S.C. § 1983 claims Dale E. McCormick has brought against government officials of both the City of Lawrence, Kansas and the State of Kansas in their individual capacities, alleging that they have violated his constitutional rights on a number of occasions. More specifically, Mr. McCormick alleges three broad groups of government officials as well as the City of Lawrence violated his constitutional rights. First, he alleges police officers of the City of Lawrence — Vince Casagrande, Gil Crouse, James White, Leo Souders, Chris Mann, Ken Farrar, Mike Byrn, Susan Hadl, Sam Harvey, and officers referred to as John Doe 1 and John Doe 3 — retaliated against him for exercising his First Amendment rights (as well as violated his constitutional rights in other ways) on numerous occasions, usually when he was protesting traffic stops. Second, he alleges Douglas County District Attorney Christine Ken-ney and Assistant District Attorney Brad Burke conspired with Officer James White to fabricate evidence on which to base a criminal charge in retaliation for Mr. McCormick exercising his constitutional rights. Third, he alleges Assistant Attorney General M.J. Willoughby fabricated evidence on which to base a complaint she filed with the Consumer Protection Division of the Office of the Kansas Attorney General contending Mr. McCormick was practicing law without a license. Also, he alleges two agents in the Consumer Protection Division, David Harder and Shelly Welch, subpoenaed a witness and harassed her regarding her association with Mr. McCormick in retaliation for Mr. McCormick’s exercise of his First Amendment rights. Finally, he alleges the City of Lawrence implemented and maintained an unconstitutional policy or custom in its police force of encouraging officers to prohibit or impede First Amendment rights. The matter is currently before the court on the following defendants’ motions to dismiss: Vince Casagrande (Doc. 28), Ken Farrar and Mike Byrn (Doc. 30), the City of Lawrence, Kansas (Doc. 34), James Wfiiite and Leo Souder (Doc. 36), Sam Harvey and Susan Hadl (Doc. 40), Gerard Little (Doc. 42), Gil Crouse (Doc. 44), Chris Mann (Doc. 46), Christine Kenney and Bradley Burke (Doc. 52), and M.J. Willoughby, David Harder, and Shelly Welch (Doc. 58). The matter is also before the court on Mr. McCormick’s motion for summary judgment (Doc. 20). For the reasons set forth in detail below, the motions are granted in part and denied in part. More specifically, Mr. McCormick’s motion for summary judgment is denied. The defendants’ motions to dismiss are granted as to Gerard Little, Christine Kenney, Bradley Burke, David Harder, Shelly Welch, and Vince Casagrande. They are granted in part and denied in part as to James White, Leo Souder, and M.J. Willoughby. Finally, they are denied as to Gil Crouse, Chris Mann, Ken Farrar, Mike Byrn, Susan Hadl, Sam Harvey, and the City of Lawrence. 1. 12(b)(6) Motion to Dismiss Standard The court will dismiss a cause of action for failure to state a claim only when “it appears beyond a doubt that the plaintiff can prove no set of facts in support of his [or her] claims which would entitle him [or her] to relief,” Poole v. County of Otero, 271 F.3d 955, 957 (10th Cir.2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir.2001). The issue in resolving a motion such as this is “not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 997, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). When, as here, a plaintiff is proceeding pro se, the court construes his or her pleadings liberally and holds the pleadings to a less stringent standard than formal pleadings drafted by lawyers. McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir.2001); accord Shaffer v. Saffle, 148 F.3d 1180, 1181 (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991)). In other words, “[n]ot every fact must be described in specific detail, ... and the plaintiff whose factual allegations are close to stating a claim but are missing some important element that may not have occurred to him should be allowed to amend his complaint.” Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.1996) (quoting Hall, 935 F.2d at 1110). The liberal construction of the plaintiffs complaint, however, “does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based.” Id. (quoting Hall, 935 F.2d at 1110). “Conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.” Id. (quoting Hall, 935 F.2d at 1110). II. Allegations in the First Amended Complaint The following allegations are set out in Mr. McCormick’s pro se first amended complaint. Of course, on a motion to dismiss pursuant to Rule 12(b)(6), the only facts considered by the court are those contained in the plaintiffs complaint or documents attached as exhibits to the complaint. Oxendine v. Kaplan, 241 F.3d 1272, 1274 (10th Cir.2001) (stating that in deciding a Rule 12(b)(6) motion, “a court may look both to the complaint itself and to any documents attached as exhibits to the complaint”). His allegations set forth his version of the events that occurred in Lawrence, Kansas at the end of 2001 and beginning of 2002 giving rise to this litigation. The court divided the allegations into eight different incidents, and, in keeping with the applicable standard under Rule 12(b)(6), assumes as true any well pleaded facts in those allegations for the purposes of deciding these motions. Confrontation at Mr. McCormick’s House On December 27, 2001, Mr. McCormick drove home to find a “police-cruiser,” with no emergency or other lights on, parked on the street blocking his entire driveway. Mr. McCormick put his turn signal on and waited for the “cruiser” to move. After the cruiser did not move, Mr. McCormick began honking his horn in an attempt to prod the cruiser to move. After a short while the cruiser moved in reverse, out of the path of Mr. McCormick’s driveway, and Mr. McCormick pulled into his driveway. Mr. McCormick then took his briefcase and other items inside his house and went back outside to find out why the cruiser was parked in front of his driveway. Mr. McCormick asked Officer Gil Crouse why he was illegally parked in front of Mr. McCormick’s driveway. Officer Crouse responded: “I know the law better than you, and I was not illegally parked.” Mr. McCormick responded by calling Officer Crouse a “cognitively impotent pig,” and “instructed [Officer] Crouse that it most certainly was not lawful for [him] to park blocking [Mr. McCormick’s] driveway, absent some emergency, of which there was obviously none at hand.” Officer Crouse responded by saying words to the effect of: “You better watch it or this pig is going to take you to jail.” Mr. McCormick then told Officer Crouse to wait one minute, and he went inside his house to get his video camera. Several moments later, he made “peaceful (albeit perhaps crude) verbal expressions” — calling Officer Crouse a pig. In response, Officer Crouse, talking directly into Mr. McCormick’s video camera, threatened to take Mr. McCormick to jail. Mr. McCormick alleges the threats of arrest and incarceration caused Mr. McCormick “immediate fear and apprehension of losing his very Liberty for making simple expressions from the curtilage of his home, and provoked [Mr. McCormick] to wrath, as [his] video shows.” Shortly thereafter, Mr. McCormick went to his neighbor’s house and asked the neighbor to videotape the incident if Mr. McCormick’s camera was taken. Soon, two more “police-cruisers” arrived in front of Mr. McCormick’s house. The officers conferred with Officer Crouse for several minutes, then went back to their vehicles and left the scene. Mr. Crouse remained parked in front of Mr. McCormick’s house for approximately the next half hour, then left briefly, then returned for approximately 15 minutes, then left and did not return. Confrontation on the University of Kansas Campus On January 1, 2002, at or around 10:30 a.m., Mr. McCormick approached a “police-cruiser,” parked in the middle of the street with no emergency lights or blinker on. He was in the South-bound lane heading South in his vehicle, around the 900 block, on Mississippi Street in Lawrence. As he slowed down and went around the cruiser via the North-bound lane, he honked at the cruiser. Officer Vince Cas-agrande, who was in the cruiser, “cast an angry looking scowl at [Mr. McCormick,] apparently in response to [Mr. McCormick] honking [his] vehicle’s horn.” Seeing the scowl, Mr. McCormick “flipped the bird” to Officer Casagrande (mostly to “test” his First Amendment rights), and continued doing so until he was a block or more away. Mr. McCormick then proceeded South on Mississippi Street for approximately half a mile to the University of Kansas main campus where he parked his vehicle at the curb on the far west edge of parking lot 94 and prepared to depart his car to walk his dogs on the part of the campus known as Campanile Hill. As Mr. McCormick put on his scarf and hat and prepared to exit his vehicle, he noticed that Officer Casagrande had parked his cruiser diagonally, several feet behind Mr. McCormick’s vehicle, preventing Mr. McCormick from reversing his vehicle. Mr. McCormick picked up his micro cassette recorder and he and Officer Casagrande exited their respective vehicles simultaneously. Officer Casagrande then asked Mr. McCormick: “Do you have some kind of problem with me?” To which Mr. McCormick responded: “Well, I didn’t; but I do now. Just what the hell do you think you’re seizing me for?” Officer Casagrande then made comments about Mr. McCormick taking an “attitude” with him and he stated that he could “arrest” Mr. McCormick. Mr. McCormick alleges that the threat of arrest caused him “immediate apprehension and fear of losing his Liberty for making simple, protected expressions of his opinion.” After overcoming this fear of arrest, Mr. McCormick — alleging that he was aware that Officer Casagrande was simply harassing him for “flipping Casagrande ‘the bird’ ” and that certain types of police officers are not professional enough to remain calm when insulted — called Officer Casagrande a “sick pig” and told him: “you’d better get your pig ass out of here before you get in more trouble.” This infuriated Officer Casagrande, who then assumed a hostile and threatening stance within six inches of Mr. McCormick and yelled: “Oh, you wanna talk some shit, huh? I can talk some shit, too, motherfucker.” Mr. McCormick alleges this response “mortified” him and caused him to stop expressing his opinion. But after “gathering his wits,” Mr. McCormick informed Officer Casagrande that he would be sued for retaliating against Mr. McCormick for expressing his First Amendment rights and seizing Mr. McCormick in a “patently unreasonable manner.” Officer Casagrande then backed away several feet and asked Mr. McCormick: “Why do you have such a problem with us?” (as Mr. McCormick notes, presumably in regard to his “perpetual protesting and heckling of police activities in Lawrence”). Mr. McCormick responded that the officer “was not ‘cognitively capable of grasping’ the answer to his question, and so [he] would not ‘waste [his] breath’ answering the same.” Mr. McCormick then walked way from the scene to walk his dogs and Officer Casagrande got in his vehicle and left. Protesting Police Stop on New Jersey Street On January 9, 2002, at or about 11:00 p.m., Mr. McCormick was protesting a traffic stop, which he alleges was a lawful protest pursuant to Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), from a public sidewalk at or about 11th and New Jersey in Lawrence. The stop was being conducted by Lawrence Police Officer Chris Mann and an unidentified officer Mr. McCormick refers to as John Doe 1. Within moments of Mr. McCormick initiating his protest, the officers threatened to arrest him for making such oral expressions, specifically threatening to arrest him for obstruction of official duty. Mr. McCormick alleges that these threats caused him “immediate apprehension and fear at losing his Liberty for making simple expressions.” But he then “somewhat” overcame his apprehension and continued to heckle the officers, who shortly thereafter ended the traffic stop and departed. Shortly after this encounter, Mr. McCormick was driving his vehicle through down town Lawrence when he noticed Officer Mann following him. Officer Mann activated his emergency lights and pulled Mr. McCormick over around 9th and Vermont in Lawrence. Officer Mann explained to Mr. McCormick, who taped the conversation on a micro-cassette recorder, that he pulled Mr. McCormick over because he hesitated when a traffic light turned green, and this gave Officer Mann probable cause to believe he was intoxicated. Officer Mann then found that Mr. McCormick was driving with a suspended driver’s license (as explained below, Mr. McCormick’s license was suspended because the City of Lawrence sent incorrect driver related information to the State of Kansas) and arrested and booked him for that offense. Mr. McCormick later posted bail and was out of jail by 3:00 a.m. the next day. Confrontation at the Lawrence Municipal Court Clerk’s Office On January 10, 2002, at or about 10:00 a.m., approximately seven hours after getting out of jail, Mr. McCormick went to the Lawrence Municipal Court Clerk’s Office to find out why incorrect driver related information was sent to the State of Kansas, thereby leading to his arrest, and to have proper information sent to the State of Kansas. Gerard Little, the Lawrence City Prosecutor, attempted to explain why such information was sent. Mr. McCormick, believing Mr. Little to be “directly lying” to him (as documented on his micro-cassette recorder) became “greatly angered.” Officers Ken Farrar and Mike Byrn then arrived on the scene, and Mr. Little instructed them that Mr. McCormick was being “disorderly” and “profane” (which Mr. McCormick alleges his micro-cassette recording refutes) and told them he wanted Mr. McCormick to leave. The officers then began threatening to take Mr. McCormick to jail if he did not leave. Such threat, Mr. McCormick alleges, caused him “immediate apprehension and fear of losing his Liberty for trying to lawfully access the courts.” After overcoming his apprehension, Mr. McCormick, “provoked to wrath at being lied to” and being threatened by the officers, began calling the officers “pigs” and other crude phrases, and specifically began calling Officer Farrar a “lying, amoral, unethical, per-jurious piece of shit” (based on Mr. McCormick’s past experiences with Officer Farrar). The officers then continued to threaten to arrest Mr. McCormick. Finally, Mr. McCormick was able to talk to a clerk or deputy clerk at the municipal clerk window and have the clerk fax information to the State of Kansas correcting the erroneous information previously sent on November 27, 2001. Within thirty minutes the State of Kansas lifted Mr. McCormick’s suspension and corrected his driving record. Mr. McCormick alleges that the only two non-government individuals that witnessed these events told Mr. McCormick they approved of his remarks to the officer and, therefore, were in no way disturbed or offended by his actions even though some of his “protected expressions were perhaps at times somewhat crude and distasteful.” Protesting Police Stop on Massachusetts Street Later on January 10, 2002, Mr. McCormick again returned to his protest activities, this time protesting from a sidewalk at approximately 1050 Massachusetts Street in Lawrence a “traffic stop” being conducted by Officers James White and Leo Sounders. Mr. McCormick alleges that he was not uttering “fighting words” or disturbing the peace, but Officer White nonetheless threatened to arrest him for disorderly conduct if he continued communicating with the officers. In response, Mr. McCormick took his micro-cassette recorder out of his pocket, extended the device toward Officer White, and asked him to repeat his unlawful threat. In response, Officer White grabbed Mr. McCormick’s hand and physically and forcefully took Mr. McCormick’s recorder from him and shut off the device. Officer Souder and Officer Scott Chamberlain also grabbed Mr. McCormick against his will and in a manner which Mr. McCormick “found offensive, violent and aggressive.” The officers then forcefully took Mr. McCormick into custody, placed him in handcuffs, placed him in a patrol car, and transported him to Douglas County jail, where Officer White had him “booked” for “disorderly conduct” and “interference with police duties.” Apparently after making bail or otherwise being released, Mr. McCormick requested that Office White return his recording device, explaining to Officer White that he had no lawful right to take the device and that such device was vital to Mr. McCormick’s First Amendment activities. His request was denied, and as of March 12, 2002, two months later, the device had not been returned. But the charges against Mr. McCormick were dismissed by the City of Lawrence at Mr. McCormick’s first appearance for such charges on or about January 30, 2002. Mr. McCormick alleges that he had conducted virtually no First Amendment activities between this arrest and the date he filed this complaint because he is “mortified that he will again be arrested for making simple expressive protests pursuant to Houston v. Hill, and because [his] recording device has been confiscated, seized, unlawfully possessed by the government since such date.” Protesting Police Stop on Haskell Street On April 14, 2002, at around 2:45 a.m., Mr. McCormick, who alleges he finally over came his fear of being unlawfully arrested for expressing his opinion, returned to his protesting activities, this time protesting a “traffic stop” from a sidewalk on about 13th and Haskell in Lawrence. Mr. McCormick alleges that he “greatly limited” his expressions due to his knowledge of the lawless nature of the Lawrence Police Department. Nonetheless, Officer Sam Harvey threatened to arrest Mr. McCormick, as documented by Mr. McCormick’s video camera. Mr. McCormick alleges this threat of arrest caused him “immediate apprehension and fear at losing his Liberty for making simple expressions” and, consequently, caused him to stop making expressions to the officers. Having been prevented from orally challenging the stop, Mr. McCormick, now allegedly on a journalistic endeavor, began questioning Officer Harvey whether he was trained by the Lawrence Police Department to arrest and threaten persons who exercise their First Amendment right to orally challenge police activity. Officer Harvey responded to Mr. McCormick’s video camera that he had been so authorized and instructed by the Lawrence Police Department. After confirming several times that Officer Harvey had officially terminated his exercise of First Amendment rights by threatening to arrest Mr. McCormick, Mr. McCormick left the scene. Mr. McCormick alleges the threat of arrest frightened him to the point that he was shaking (as he alleges his video shows), humiliated and embarrassed, causing him “stress, anxiety, and consternation.” But ten minutes later, at or about 2:55 a.m., after Mr. McCormick returned to his home and was reminded by the vow posted on his wall of his “eternal hostility against every form of tyranny over the mind of man” (T. Jefferson), he alleges he overcame his fear of unlawful threats made by Officer Harvey and returned to the sidewalk to renew his oral opposition to the police activity. And Officer Harvey again threatened to arrest him, as documented by his video camera. In response, Mr. McCormick again agreed to stop his oral challenge of the police stop and then turned his attention to questioning Officer Harvey about the First Amendment. He also began “peacefully, verbally opposing and challenging [Officer] Harvey.” In response, the officer in command of the scene, Sergeant Susan Hadl, approached Mr. McCormick and ordered him to stop communicating with Officer Harvey and leave the scene or be arrested. This “frightened” Mr. McCormick and provoked him “to wrath.” He asked her whether she had heard of the First Amendment or Houston v. Hill. He also informed her and Officer Harvey that he “had a right to be on the public sidewalk expressing his opinion in an open public forum.” Officer Hadl then instructed Officer Harvey that Mr. McCormick was “10-15,” and Officer Hadl took handcuffs out of her belt and told Mr. McCormick he was under arrest. Both officers then approached Mr. McCormick and began indicating that they were arresting him. At that point, Mr. McCormick, now “mortified” that his video recorder would be confiscated and not returned, “plead for his Liberty” and offered to leave the scene if they did not arrest him. He alleges that Officer Hadl responded by telling him to “put the video-camera down so it doesn’t get broken” and continued to tell him he was under arrest. But after Mr. McCormick further “plead for his Liberty,” they agreed not to arrest him if he would leave the scene. Mr. McCormick alleges this provoked him to “maximum wrath,” terminated his First Amendment rights, and caused him “grave stress, anxiety and consternation.” Involvement in the Cobum Lawsuit At some point in the year 2001, Robert Coburn of Edgerton, Kansas contacted Mr. McCormick. Mr. Coburn explained that he believed his wife, Merrily Coburn, had been wronged by the government and was considering filing a lawsuit against the agents she believed wronged her. He also told Mr. McCormick he had read a case decided by the Kansas Court of Appeals — McCormick v. Board of County Commissioners, et al., 28 Kan.App.2d 744, 24 P.3d 739 (2001)—in which Mr. McCormick partially prevailed in the same type of § 1983 claim the Coburns were considering filing. He asked Mr. McCormick whether he could direct the Coburns to sources of information which he used in his case and Mr. McCormick agreed to do so. In the months following this - conversation, Mr. McCormick met -with the Coburns to provide them with copies of legal decisions to photocopy and citations of cases to look up, to answer questions the Coburns had regarding the way and maimer in which they could get the information needed to file their lawsuit pro se, and to discuss the history of the law and the fundamental principles upon which Kansas and the United States were founded — with these interactions leading to a friendship between Mr. McCormick and the Coburns. Ms. Coburn eventually filed her lawsuit in the United States District Court for the District of Kansas. Mr. McCormick acted as a process server for Ms. Coburn’s complaint and several ensuing documents, but alleges that he otherwise took no part in her lawsuit or took any action on her behalf in any way. In or about January, 2002, an Assistant Attorney General of Kansas, M.J. Wil-loughby, the attorney representing Mr. Nordeen in Ms. Coburn’s lawsuit and the attorney who represented Cynthia J. Long in the Kansas Court of Appeals case described above, accused Mr. McCormick of drafting and writing documents filed by Ms. Coburn. Ms. Willoughby made the accusation in documents she filed on behalf of Mr. Nordeen in Ms. Coburn’s lawsuit. Mr. McCormick states the accusation “is and was patently false,” and it was made with no evidence to substantiate it. Mr. McCormick alleges that Ms. Willoughby also retaliated against him and the Co-burns for their previous interactions by filing a complaint against Mr. McCormick with the Consumer Protection Division of the Office of the Kansas Attorney General for practicing law without a license. Thereafter, Ms. Willoughby “connived” with David Harder and Shelly Welch, two agents in the Consumer Protection Division of the Office of the Kansas Attorney General, to launch a “fabricated and baseless inquisition” into Mr. McCormick’s interactions with the Coburns in order to “intimidate” the Coburns and Mr. McCormick, to interfere with their right of expression, to interfere with their right of petition, to harass them, to interfere with their right of association, and to “otherwise oppress” them in whatever way possible. . After “so conniving,” Ms. Willoughby, Mr. Harder and Ms. Welch subpoenaed Merrily Coburn to appear at an “inquisition” regarding Mr. McCormick’s involvement in Ms. Coburn’s case. During their inquiry, Mr. Harder and Ms. Welch repeatedly “lied” to Ms. Coburn regarding Mr. McCormick, “threatened” Ms. Coburn regarding her association with Mr. McCormick, “misrepresented the law” to Ms. Co-burn, and “otherwise did everything in their power to prevent or dissuade Merrily Coburn and her husband from associating with [Mr. McCormick].” These events caused the Coburns to stop associating with Mr. McCormick “for a time” out of fear of further retaliation and has since caused the Coburns to “almost entirely terminate their association” with Mr. McCormick because, based on their experiences, they believe the government “is bent” on preventing Mr. McCormick’s Constitutional advocacy activities. Thus, Mr. McCormick alleges he has been denied his right to associate with the Coburns. He also alleges the above described actions, which he believes constitutes another instance in which the government has fabricated allegations and supposed evidence regarding him, “provoked [him] to wrath” and caused him “stress, anxiety, fear, consternation and feelings of oppression.” Such actions also caused him to diminish or cease his activist efforts out of fear that he would be subpoenaed to appear before the Kansas Attorney General for an “inquisition.” Initiation of a Criminal Charge by the Lawrence District Attorney’s Office In or around March, 2002, Mr. McCormick alleges that Christine Kenney, Bradley Burke, James White, and “likely others unknowable to [Mr. McCormick] without discovery,” made an agreement, expressly or impliedly, to retaliate against Mr. McCormick for exercising his First Amendment rights, to use harassing litigation to interfere with Mr. McCormick’s access to the courts, and to deter Mr. McCormick from accessing the courts. Specifically, he alleges they used “false information” in an affidavit to initiate a criminal charge — disorderly conduct — against him in case no. 02-cr-0527 in the District Court of Douglas County. Mr. McCormick sets out six particular facts in Officer White’s affidavit which he believes are false. He also points out that they “conspired” to omit from the affidavit three material facts, including that Mr. McCormick made a micro-cassette recording of the events, Officer White took the recorder during the incident, the recorder has not been returned, and Officer White “destroyed, altered or adulterated the recordings.” After creating the “false affidavit,” the conspirators caused Officer White to swear the affidavit under oath, and Mr. Burke “swore a complaint under oath,” thereby instigating said false and falsely premised ‘disorderly conduct’ charge against [Mr. McCormick].” All of which caused Mr. McCormick to appear in court and defend himself against these charges. Mr. McCormick alleges these actions: “provoked [him] to wrath;” deprived him of his Liberty in violation of clearly established law; caused him to feel “oppressed, frightened, sad;” “caused stress, anxiety and consternation” in him; and made him “scared to express his opinion or exercise other First Amendment rights.” III. Analysis Based on the allegations set forth in the first amendment complaint, Mr. McCormick brings twenty five § 1983 claims against government officials of the City of Lawrence and the State of Kansas in their individual capacities and one such claim against the City of Lawrence. All of the named defendants have filed motions to dismiss. Gerard Little, the Lawrence City Prosecutor, argues that, although he is a named defendant and mentioned in the first amended complaint, no claim is actually made against him in that complaint. The police officers of the City of Lawrence — Vince Casagrande, Ken Farrar, Mike Byrn, James White, Leo Souder, Sam Harvey, Susan Hadl, Gil Crouse, and Chris Mann — argue they are entitled to qualified immunity. Officers Wdiite and Souder also argue some claims should be dismissed under Heck v. Humphrey. The City of Lawrence argues that Mr. McCormick has failed to allege a cognizable constitutional injury; thus, he fails to state a claim against the City of Lawrence. Christine Kenney and Bradley Burke argue they are entitled to absolute prosecutorial immunity or, alternatively, qualified immunity. M.J. Willoughby, David Harder, and Shelly Welch (the “Attorney General defendants”) argue that Mr. McCormick does not have standing to bring claims against them. They also argue they are entitled to absolute immunity or, alternatively, qualified immunity. The court will address each of these arguments in turn. A. Motion to Dismiss Gerard Little Gerard Little argues that he should be dismissed from this lawsuit because no claim is made against him in the first amended complaint. Mr. McCormick’s response states that he filed a motion to amend his allegations against Mr. Little and added a First Amendment retaliation claim against Mr. Little. Mr. Little’s reply points out that he never received a copy of a proposed amendment. Subsequent to the parties filing their papers, Mr. McCormick filed a motion to amend his first amended complaint and included a proposed second amended complaint with his motion. Magistrate Judge O’Hara granted his motion to amend in part and this court upheld that decision. Significantly, Mr. McCormick did not add a claim against Mr. Little in the proposed second amended complaint. Thus, Mr. McCormick has failed to plead a claim again Mr. Little and, consequently, the motion to dismiss is granted. Although normally the court would provide Mr. McCormick an opportunity to cure this deficiency, because Mr. McCormick did not include a claim against Mr. Little in the proposed second amended complaint after Mr. Little informed him of the deficiency in his first amended complaint, the court presumes Mr. McCormick chose not to include a claim against Mr. Little. Thus, the court dismisses the motion without leave to amend. B. Motions to Dismiss Police Officers of the City of Lawrence The first amended complaint sets forth the following claims against police officers of the City of Lawrence arising from six encounters Mr. McCormick had with different officers: Count I is an “unreasonable seizure claim” and Count II is a retaliation claim, both against Officer Vince Casagrande stemming from the January 1, 2002 encounter on the University of Kansas campus. Count III is a retaliation claim against Officer Gil Crouse stemming from the December 27, 2001 encounter at Mr. McCormick’s home. Count IV is a retaliation claim against Officers Chris Mann and John Doe 1 stemming from the events surrounding the January 9, 2002 traffic stop protest. Count V is a retaliation claim against Officers Ken Farrar and Mike Byrn stemming from the January 10, 2002 encounter at the municipal court clerk’s office. Count VI is a retaliation claim, Count VII is a “First (and Fourteenth) Amendment Free Speech” claim, and Count VIII is an “unreasonable seizure” claim, each against Officers James White and Leo Souder stemming from the events surrounding the January 10, 2002 traffic stop protest. Count IX is an “unreasonable seizure” claim and Count X is a “taking property without due process” claim, both against Officer James White for confiscating Mr. McCormick’s micro-cassette recorder during the January 10, 2002 traffic stop protest. Count XVI is a retaliation claim and Count XVII is a “free speech” claim, both stemming from the first encounter, at 2:45 a.m., of the January 9, 2002 traffic stop protest. Count XVIII is a retaliation claim and Count XIX is a “free speech” claim, both stemming from the second encounter, at 2:55 a.m., of the January 9, 2002 traffic stop protest. Count XX is a retaliation claim and Count XXI is a “free speech” claim, both stemming from the continued encounter, at 3:00 а.m., of the January 9, 2002 traffic stop protest. 1. Qualified Immunity All of the officers have filed motions to dismiss on the basis of qualified immunity. Qualified immunity safeguards government officials performing discretionary functions from individual liability under 42 U.S.C. § 1983 unless their actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir.1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The purpose of qualified immunity is to avoid excessive disruption of governmental functions and to dispose of frivolous claims in the early stages of litigation. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). It “protects all but the plainly incompetent or those who knowingly violate the law.” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir.2001) (internal quotations and citations omitted). It is “an immunity from suit rather than a mere defense to liability.” Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Consequently, the Supreme Court has explained “that courts should resolve the ‘purely legal question,’ Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), raised by a qualified immunity defense ‘at the earliest possible stage in litigation.’ ” Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.1995) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). “Once a defendant raises the defense of qualified immunity in the context of a motion to dismiss, a court must first determine whether the plaintiff has asserted a violation of federal law.” Currier v. Doran, 242 F.3d 905, 917 (10th Cir.2001), cert. denied, 534 U.S. 1019, 122 S.Ct. 543, 151 L.Ed.2d 421, 70 U.S.L.W. 3163 (U.S. Nov. 13, 2001) (No. 01-382), and cert. denied, 534 U.S. 1019, 122 S.Ct. 543, 151 L.Ed.2d 421, 70 U.S.L.W. 3270 (U.S. Nov. 13, 2001) (No. 01-551). Such a determination is made under the ordinary motion to dismiss standard: “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (quoting Conley, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In Saucier, 533 U.S. at 201, 121 S.Ct. 2151, the Supreme Court instructed lower courts to always first ask whether a constitutional violation has occurred; otherwise, the body of law regarding constitutional violations may be deprived of development. Id. If the plaintiff fails to meet his or her initial burden of alleging a constitutional violation, “there is no necessity for further inquires concerning qualified immunity.” Id. If, on the other hand, he or she has pled allegations, that if proven, amount to a constitutional violation, “the next sequential step is to ask whether the right was clearly established at the time of the defendant’s unlawful conduct.” Id. That is, “the plaintiff must prove the right was sufficiently clear that a reasonable official would have understood that his [or her] conduct violated the right.” Id. “This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition.” Id. at 201, 121 S.Ct. 2151. a. Constitutional Violations Mr. McCormick’s claims against the police officers can be grouped broadly into four different types of claims: unlawful seizure claims, First Amendment retaliation claims, First Amendment free speech claims, and a taking property without due process claim. The court will analyze each of the types of claims in turn. i. Unreasonable Seizure Claims The Fourth Amendment protects citizens from unreasonable searches and seizures by government actors. United States v. Sanchez, 89 F.3d 715, 717 (10th Cir.1996). Not all interaction between a police officer and a citizen amount to a seizure. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). A seizure does not occur merely because a police officer addresses an individual and asks a few questions. Id. As long as “a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.” Id. (internal quotations and citation omitted). That is, an “encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” Id. The Supreme Court noted in Bostick that “the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Id. at 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (internal quotations omitted). The test is an objective one. Sanchez, 89 F.3d at 717. In other words, “[t]he subjective intention or state of mind of either the [individual] or police is irrelevant....” Id. Applying such a test is nonetheless difficult. The Tenth Circuit has helped ease the task by identifying the following factors that could lead a reasonable innocent person to believe that he or she is not free to disregard a police officer: the threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory; prolonged retention of a person’s personal effects such as identification and plane or bus tickets; a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed space; and absence of other members of the public. Id. at 718. In this action, Mr. McCormick has three different unreasonable seizure claims arising from two different encounters with police officers of the City of Lawrence. Count I — Confrontation on the University of Kansas Campus This claim, as described in detail above, alleges that Officer Casagrande seized Mr. McCormick when the officer followed him to the University of Kansas Campus, blocked his car, and confronted him. Officer Casagrande argues that only one of the factors set out by the Tenth Circuit was present; therefore, Mr. McCormick was not seized. Indeed, Officer Casagrande approached Mr. McCormick alone. He did not brandish a weapon, touch Mr. McCormick, retain any of Mr. McCormick’s personal effects, or request that Mr. McCormick do anything. The interaction occurred in broad daylight in a public parking lot with, according to the first amended complaint, a “line of sight ... extending] hundreds of yards in each direction.” Only the fact that Mr. McCormick alleged that “there was not a person in sight...” cuts in favor of Mr. McCormick. On the other hand, Mr. McCormick points out that he considered himself seized because, according to his allegations, Officer Casagrande’s car was parked “several feet behind [his vehicle], in a manner such that [he] would not be able to reverse his vehicle [to leave] if [he] so desired.” He also points to his allegation that Officer Casagrande “assumed a hostile and threatening stance within six inches of [him] and yelled [profanities at him].” As Officer Casagrande points out, however, the test is not subjective. Thus, whether Mr. McCormick felt seized does not factor into the court’s analysis. Also, in response to the allegation that Mr. McCormick’s car was blocked, Officer Casagrande refers the court to two Ninth Circuit cases that held that an individual is not seized when his or her vehicle is partially blocked by police cars if he or she is free to leave on foot. United States v. Summers, 268 F.3d 683 (9th Cir.2001); United States v. Kim, 25 F.3d 1426, 1431 n. 2 (9th Cir.1994). Mr. McCormick concedes in his papers that these two cases “raise a few questions,” but he seeks to distinguish their facts and notes that they are Ninth Circuit cases that are not controlling. Although Mr. McCormick is correct that the cases are from the Ninth Circuit, in the absence of Supreme Court or Tenth Circuit authority, the court looks to other circuit opinions as persuasive authority. The court also does not find Mr. McCormick’s factual distinction persuasive. He points out that he has alleged that Officer Casagrande was six inches from Mm and yelling at him; thus, he was much more constrained than the individuals in the two Ninth Circuit cases. While this is true, Mr. McCormick neglects to mention that he previously alleged that Officer Casagrande assumed that position only after Mr. McCormick called him a “sick pig” and told him: “Get your pig ass out of here before you get in more trouble.” Moreover, Mr. McCormick alleges that he eventually walked away from the scene to walk his dogs. Taking into account all of the circumstances surrounding the encounter, the court concludes that the police conduct would not have communicated to a reasonable person that he or she was not at liberty to ignore the police presence and go about his or her business. Only one of the factors set forth by the Tenth Circuit was present (absence of other members of the public). Although it is true that Officer Casagrande blocked Mr. McCormick’s car, Mr. McCormick had already parked and was getting ready to exit his vehicle. Moreover, Officer Casagrande did not activate his emergency lights or use other means to pull Mr. McCormick over. Mr. McCormick was already parked. Aso, once Mr. McCormick exited his vehicle, Officer Casagrande did not ask him for identification. Instead, he asked Mr. McCormick if he had a problem with him. Mr. McCormick said he did not before but he did now. Officer Casagrande then said something to the effect that Mr. McCormick was taking an attitude with “him” and he could arrest him. Up until that point, a reasonable person would have felt free to leave and go about his or her business. But Mr. McCormick did not leave. Instead, he called Officer Casag-rande a “sick pig” and told his “pig ass” to leave “before you get in more trouble.” Officer Casagrande then assumed a hostile and threatening stance six inches from Mr. McCormick. It is at this point that Mr. McCormick alleges that he was not free to leave. However, when he told the officer he was going to sue him, the officer stepped away and Mr. McCormick eventually left to go walk his dogs. Thus, while it is true that Officer Casagrande probably invaded Mr. McCormick’s personal space for a short period of time, that act alone is not sufficient to constitute a seizure. In sum, the court concludes that even if Mr. McCormick is able to prove the allegations in his first amended complaint, such allegations do not establish that Officer Casagrande seized him. Thus, the court grants Officer Casagrande’s motion to dismiss this claim. Count VIII and Count IX — Protesting Police Stop on Massachusetts Street In Count VIII, Mr. McCormick alleges that Officers James White and Leo Souder did, “knowingly and intentionally,” seize Mr. McCormick without probable cause to believe he had committed a crime. He adds that he was arrested merely for making protected expressions from an open public forum. In Count IX, Mr. McCormick alleges that Officer White seized his micro-cassette recording device without probable cause to believe it was contraband, a weapon, or evidence of a crime. Officers White and Souder do not dispute that Mr. McCormick was seized. Indeed, it is undisputed that Mr. McCormick was arrested for “disorderly conduct” and “interference with police duties.” Instead, they seek to dismiss both claims because they argue the claims are in essence attacking the constitutionality of the criminal case pending against Mr. McCormick in state court. According to them, this means any decision in favor of Mr. McCormick might undermine, if not defeat, the criminal case in state court. Thus, under a doctrine enunciated in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 388 (1994), they seek to dismiss. In Heck, the plaintiff, a state prisoner, was convicted of killing his wife. While his habeas corpus claim was on appeal, he filed a § 1983 suit against the prosecutor, alleging constitutional deprivations which led to his arrest and conviction. He asked for money damages and not for a reconsideration of his conviction or release from prison. The Supreme Court held that in order to recover damages for an 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. Id. at 486-87, 114 S.Ct. 2364. As a result, a claim for damages “necessarily implying” the invalidity of a conviction or sentence that has not previously been invalidated is not cognizable under § 1983. Id. at 487, 114 S.Ct. 2364. The Supreme Court in Heck did not directly address the situation of a plaintiff who brings his § 1983 case prior to the completion of his criminal case. Circuit courts, however, have applied Heck to pending charges. Covington v. City of New York, 171 F.3d 117, 122 (2d Cir.1999); Washington v. Summerville, 127 F.3d 552, 555-56 (7th Cir.1997), cert. denied, 523 U.S. 1073, 118 S.Ct. 1515, 140 L.Ed.2d 668 (1998); Smith v. Holtz, 87 F.3d 108, 112-13 (3d Cir.1996). Indeed, the Tenth Circuit has held that Heck should apply to such situations when the concerns underlying Heck exist. Beck v. City of Muskogee Police Dept., 195 F.3d 553, 557 (10th Cir.1999) (citations omitted). More specifically, the court held that “Heck precludes § 1983 claims relating to pending charges when a judgment in favor of the plaintiff would necessarily imply the invalidity of any conviction or sentence that might result from prosecution of the pending charges.” Id. at 557; see also, Heck, 512 U.S. at 487 n. 8, 114 S.Ct. 2364 (suggesting that “if a state criminal defendant brings a federal civil-rights lawsuit during the pendency of his criminal trial, appeal, or state habeas action, abstention may be an appropriate response to the parallel state-court proceedings.”) (citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). Consequently, “such claims arise at the time the charges are dismissed.” Id. In this action, Officers White and Souder urge the court to dismiss these claims until the criminal trial runs its course. The issue, then, is whether a judgment in favor of Mr. McCormick on either of these two claims would necessarily imply the invalidity of any conviction or sentence that might result from prosecution of the pending charges. In Beck, the Tenth Circuit explained that Heck generally does not apply to claims arising out of police actions toward a criminal suspect, such as arrest, interrogation, or search and seizure. 195 F.3d at 558. The court noted that some courts have held that Heck would apply in the rare situation where the only evidence against the defendant was obtained as a result of an illegal search, but it stated that it generally disagreed with the reasoning of such courts. Id. Here, like in Beck, the court is not confronted with the issue because the officers do not allege that the only evidence against Mr. McCormick is the seized micro-cassette recorder. Moreover, the officers have not provided any explanation as to why obtaining a judgment on the unreasonable seizure claims would necessarily imply the invalidity of any conviction that might result from prosecution of the pending charges. Accordingly, the court concludes that Heck does not apply to these two claims. Because the officers do not otherwise challenge Mr. McCormick’s two unreasonable seizure claims, the court concludes that their motion to dismiss these two claims should be denied. ii. First Amendment Retaliation Claims “[T]he purpose behind the Bill of Rights, and of the First Amendment in particular [,is] to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.” McIntyre v. Ohio Elections Comnn’n, 514 U.S. 334, 357, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). Thus, “the First Amendment bars retaliation for protected speech.” Crawford-El v. Britton, 523 U.S. 574, 592, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). In fact, “[a]ny form of official retaliation for exercising one’s freedom of speech, including prosecution, threatened prosecution, bad faith investigation, and legal harassment, constitutes an infringement of that freedom.” Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.2000). First Amendment retaliation claims are generally, but not always, brought in the public employment context. 44 Fed.Appx. 896, 902-03, 2002 WL 1788529, at *5 (10th Cir.2002) (citing Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). In this case, Mr. McCormick is not an employee of the defendants and no contractual relationship exists between the parties. The court, therefore, employs the substantive standard announced by the Tenth Circuit in Worrell v. Henry, 219 F.3d 1197 (10th Cir.2000), cert. denied, 533 U.S. 916, 121 S.Ct. 2521, 150 L.Ed.2d 693 (2001). Worrell recognized “an alternative to the Pickering balancing is warranted when allegations of retaliatory conduct are directed at a defendant who is not the plaintiffs employer and when there is no contractual relationship between them.” Worrell, 219 F.3d at 1212. [The test] require[s] proof of the following elements: (1) that the plaintiff ‘was engaged in constitutionally protected activity’; (2) that the defendant’s actions caused the plaintiff ‘to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity’; and (3) that the ‘defendant’s adverse action was substantially motivated as a response to the plaintiffs exercise of constitutionally protected conduct.’ Worrell, 219 F.3d at 1212 (quoting Lackey, 1999 WL 2461, at *3). In this action, Mr. McCormick has eight different retaliation claims arising from six different encounters with various police officers of the City of Lawrence. Count II arises from the confrontation with Officer Casagrande on the University of Kansas campus, Count III arises from the confrontation with Officer Crouse at Mr. McCormick’s house, Count IV arises from the police response to his protest on New Jersey Street, Count V arises from the confrontation at the Lawrence Municipal Court Clerk’s Office, Count VI arises from the police response to his protest on Massachusetts Street, and Counts XVI, XVIII, and XX arise from the police response to his protest on New Jersey Street. The circumstances surrounding each of these confrontations with the police, as alleged in the first amended complaint, are outlined in detail above. For purposes of this motion to dismiss, the circumstances regarding each claim (with the exception of Count II — the claim against Officer Casag-rande) have a common thread: Mr. McCormick alleges he was engaged in an activity protected by the First Amendment (either protesting police stops or challenging police action), the police threatened to arrest him, and he either left the scene or stopped engaging in such activities. He alleges that the officers’ threats of arrest were in response to his First Amendment activities (either protests or challenges to their authority). Thus, at this stage in the litigation, Mr. McCormick’s allegations regarding each event do support a retaliation claim. Rather than apply the three part Worrell test to each claim individually, then, the court will group the officers arguments together and address them collectively under each prong of the Worrell test. Because the court believes that the circumstances involved in Count II, the retaliation claim against Officer Casag-rande, are factually distinct and do not support a constitutional violation, the court will address that claim individually after addressing the other claims. Prior to doing so, however, the court must address Officers Harvey and Hadl’s argument that Mr. McCormick cannot bring three different retaliation claims arising out of one confrontation they had with him over a twenty minute period. They argue such claims are duplicative. Mr. McCormick points out that he alleges he initiated his protesting at 2:45 a.m. but left the scene unable to express his opinion because of the threatened arrest. He returned, however, at 2:55 a.m. and again renewed his protested. But again his protesting was terminated by threats of arrest, first by Officer Harvey then by Officer Hadl. Thus, he argues he has three separate claims based on three separate threats. The officers reply that Mr. McCormick cannot multiply his causes of action simply by leaving the scene and then returning to subject himself to the same alleged misconduct. The court agrees with the officers and concludes that Mr. McCormick should be limited to one claim against both Officer Hadl and Officer Harvey. It was the collective effect of their threats of arrest that deterred Mr. McCormick’s speech and therefore gave rise to his single injury. Cf. H.E. Butt Grocery Co. v. National Union Fire Ins. Co., 150 F.3d 526, 534 (5th Cir.1998) (applying proximate cause tort analysis to insurance dispute in asking whether there was but one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damage). Put another way, the court would conclude that any injury Mr. McCormick suffered from the 2:45 a.m. threat of arrest standing alone was de minimis because he was back protesting ten minutes later. Also, the two threats of arrest around 2:55 a.m. were so close in time and interrelated that Mr. McCormick cannot claim two injuries. Thus, the court will conduct its analysis as if Mr. McCormick brought only one claim against both officers. Protected Activity Now the court turns its attention to the arguments the officers make regarding why Mr. McCormick’s actions did not constitute protected activity — the first element of the Worrell test. Worrell, 219 F.3d at 1212. While they concede that most forms of expression are protected from government censure by the First Amendment, they argue that during several of the confrontations or protests Mr. McCormick engaged in an unprotected form of speech or expression — fighting words. Mr. McCormick disputes that his actions constituted fighting words, arguing that the officers’ authorities are outdated in light of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). He argues that the Supreme Court case brought about a “fundamental change in the law.” In reply, the officers contend that Mr. McCormick reads Hill too broadly and note that Hill is an overbreadth case. Although the officers are correct that Hill involved a facial challenge to an ordinance instead of a police officer’s actions, the Court’s reasoning has been applied to the latter situation by numerous courts. See, e.g., Sweatt v. Bailey, 876 F.Supp. 1571 (M.D.Ala.1995) (applying Hill to § 1983 retaliation claim by a prisoner who claimed he was beaten while in detention for calling an officer an “ass”); Nichols v. Chacon, 110 F.Supp.2d 1099 (W.D.Ark. 2000) (discussing Hill in § 1983 retaliation claim by a person who was ticketed for making an offensive gesture at an officer). In Hill, 482 U.S. at 460-67, 107 S.Ct. 2502, the Supreme Court found an ordinance prohibiting oral interruptions of police officers unconstitutionally overbroad. Id. In reaching this result, the Court stated that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” Id. at 461, 107 S.Ct. 2502. The Court added: “Speech is often provocative and challenging. ... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Id. (quoting Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949)). To illustrate its point, the Court explained that in Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), it vacated the conviction of a woman who was found to have yelled threats and obscenities at an officer who asked her husband to produce his driver’s license because the statute she was convicted under was overly broad. Hill, 482 U.S. at 461-62, 107 S.Ct. 2502. The Court noted that critical to its decision was the fact the ordinance was not limited to “fighting words that ‘by their very utterance inflict injury or tend to incite an immediate breach of the peace.’ ” Id. at 462, 107 S.Ct. 2502 (quoting Lewis, 415 U.S. at 132, 94 S.Ct. 970). The Court added that in Justice Powell’s concurring opinion in Lems, he suggested that even the “fighting words” exception set forth in Chaplinsky, 315 U.S. at 568, 62 S.Ct. 766, “might require a narrower application in cases involving words addressed to a police officer, because a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to fighting words.” Id. (internal quotations and citations omitted). Finally, the Court ended its analysis by noting: “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 462-63, 62 S.Ct. 766. Subsequent to Hill, numerous courts have held that derogatory or profane remarks to police officers do not constitute fighting words. See, e.g., L.A.T. v. State of Florida, 650 So.2d 214, 217 (Fla.App.3d 1995) (collecting state law cases holding as such); Nichols, 110 F.Supp.2d at 1099 (discussing multiple federal cases holding as such). Of course, in determining whether words constitute fighting words, the circumstances surrounding the words are crucial. Lewis v. City of New Orleans, 415 U.S. 130, 135, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974) (Powell, J., concurring) (observing that “words may or may not be ‘fighting words’ depending upon the circumstances of their utterance”); Chaplinsky, 315 U.S. at 568, 62 S.Ct. 766; Lamar v. Banks, 684 F.2d 714 (11th Cir.1982); United States v. McKinney, 9 Fed.Appx. 887, 888, 2001 WL 565745, at *1 (10th Cir. May 25, 2001)(unpublished decision). At this stage in the litigation, the court is limited to considering only the allegations in Mr. McCormick’s first amended complaint. The court