                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 28 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    FRED W. PHELPS, SR.,

                Plaintiff-Appellant,

    v.                                                  No. 98-3145
                                                 (D.C. No. 97-CV-2235-GTV)
    JOAN HAMILTON, in her official                         (D. Kan.)
    capacity as District Attorney,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before ANDERSON , BRORBY, and KELLY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Fred. W. Phelps, Sr. brought this suit for declaratory and

injunctive relief under 42 U.S.C. § 1983, alleging that defendant Shawnee

County, Kansas District Attorney Joan Hamilton is violating his constitutional

rights by following a policy of prosecuting him under Kansas’ criminal

defamation statute selectively and in bad faith. He also sought leave to file a

third amended complaint to assert claims for damages against defendant in her

personal capacity. Plaintiff appeals from the district court’s denial of his request

to amend his complaint, and its grant of summary judgment in favor of defendant.

       We must consider at the outset whether plaintiff’s claims for declaratory

and injunctive relief present a justiciable controversy, as the state court has

dismissed both of the remaining underlying criminal defamation cases against

plaintiff. Case No. 96-CR-3051 was dismissed on November 14, 1997. Case

No. 97-CR-3081 was dismissed on May 22, 1998. Defendant maintains that:

(1) the case is now moot because the possibility of future prosecution is

speculative and unripe; (2) the suit is barred by the Eleventh Amendment because

it does not fall within the exception provided in   Ex parte Young , 209 U.S. 123

(1908), that allows a suit to proceed against a State in federal court to grant

prospective injunctive relief in order to end an actual, present, and on-going

violation of the United States Constitution; and (3) we should abstain from

hearing the case under the doctrine of    Younger v. Harris , 401 U.S. 37 (1971).


                                             -2-
Plaintiff argues that the issue presented is “capable of repetition, yet evading

review,” Murphy v. Hunt , 455 U.S. 478, 482 (1982), and is neither moot nor

otherwise barred.

       We hold that the case is now moot. An issue is “capable of repetition, yet

evading review” when: “(1) the challenged action [is] in its duration too short to

be fully litigated prior to its cessation or expiration, and (2) there [is] a

reasonable expectation that the same complaining party [will] be subjected to the

same action again.”    Spencer v. Kemna , 523 U.S. 1, ___, 118 S. Ct. 978, 988

(1998) (quotation omitted). “[T]he capable-of-repetition doctrine applies only in

exceptional situations.”   Id. (quotation omitted). Plaintiff has not demonstrated

that his case satisfies either of the required conditions. He has not shown that the

time between the filing of state charges and the completion of those proceedings

is always so short as to evade review. Nor has he demonstrated that it is

sufficiently likely that Mrs. Hamilton will again prosecute him again under

Kansas’ criminal defamation statute without a prior probable cause determination

or without probable cause. Plaintiff has not presented sufficient evidence to

establish that defendant maintains a “policy” of prosecuting him under Kansas’

criminal defamation statute selectively and in bad faith. His claims for

declaratory and injunctive relief are therefore moot.




                                           -3-
      We review the district court’s denial of plaintiff’s motion for leave to

amend his complaint for abuse of discretion.     See Jefferson County Sch. Dist. No.

R-1 v. Moody’s Investor’s Servs., Inc.   , No. 97-1157, 1999 WL 270398, at *11

(10th Cir. May 4, 1999). “Although Fed. R. Civ. P. 15(a) provides that leave to

amend shall be given freely, the district court may deny leave to amend where

amendment would be futile.”     Id. We affirm the district court’s conclusion that

amendment would have been futile in this case. Although plaintiff argues that

being served with a summons was a “significant restraint on liberty” under

Kansas law because he was subject to being hailed into court, the Supreme Court

has specifically stated that merely being required to appear at trial does not

qualify as “significant” under the Fourth Amendment.       Gerstein v. Pugh , 420 U.S.

103, 123-25 & n.26 (1975).

      AFFIRMED in part and DISMISSED as MOOT in part.



                                                       Entered for the Court



                                                       Paul J. Kelly, Jr.
                                                       Circuit Judge




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