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dismissing § 1981 claim for failure to state a claim where the plaintiff did not allege discrimination on account of racial animus
Summary of this case from Lassiter v. Topeka Unified School District No. 501Opinion
Civil Action No. 04-2209-KHV.
November 16, 2004
MEMORANDUM AND ORDER
This matter comes before the Court with respect to various motions to dismiss: the Motion To Dismiss And For Sanctions Of Defendants Couchman, Moore, York And Favors (Doc. #13) filed June 2, 2004; the Motion To Dismiss Amended Complaint And For Sanctions of Defendants Couchman, Moore, York And Favors (Doc. #25) filed June 18, 2004; the Motion To Dismiss (Doc. #28) filed June 22, 2004 by Lampson and Highberger; the Motion To Dismiss [The Amended Complaint] By The Federal Defendants [Allman, The Federal Bureau of Investigation And The United States Marshal's Service] (Doc. #34) filed July 26, 2004; theJoint Motion To Strike [The Twice Amended Complaint] By Defendants FBI, Lampson, York, Couchman, Moore, Favors, Highberger, Allman, And U.S. Marshal's Service (Doc. #41) filed August 19, 2004; and the Motion Of Defendant Sandy Gonzalez To Dismiss Amended Complaint For Insufficiency Of Process (Doc. #43) filed August 19, 2004. For reasons set forth below, the Court finds that the original motion to dismiss by defendants Couchman, Moore, York and Favors should be overruled as moot, but that all remaining motions should be sustained.
Procedural History
On May 13, 2004, plaintiff filed a complaint (Doc. #1) against the following defendants: Honorable R. Wayne Lampson, District Judge, Wyandotte County, Kansas; Brenda Highberger, court reporter in Wyandotte County district court; Henry Couchman, Jr., Kenneth Moore and Delia York, lawyers for the legal department of the Unified Government of Wyandotte County/Kansas City, Kansas ("Unified Government"); Wayman Favors, property tax lawyer for the Unified Government; James Christopher Allman, Assistant United States Attorney for the District of Kansas; the United States Marshal's Service ("Marshal's Service") and the Federal Bureau of Investigation ("FBI"). Liberally read, the complaint asserts causes of action under 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986 and 1988, and states that defendants conspired to violate his rights under the Fourth, Fifth, Sixth, Eighth, Thirteenth and Fourteenth Amendments of the Constitution.On June 2, 2004, plaintiff filed an amended complaint which joined Sandy Gonzalez, building code enforcement officer for the Unified Government. On August 12, 2004, plaintiff purported to file a Twice Amended Complaint (Doc. #39) which renamed all defendants and, in addition to the facts asserted in the amended complaint, made further factual allegations. On October 27, 2004, plaintiff filed a motion to amend the amended complaint of June 2, 2004. See Doc. #54. As noted above, defendants have filed various motions to dismiss the amended complaint and to strike the second amended complaint. Plaintiff has not opposed these motions. On October 29, 2004, the magistrate judge overruled plaintiff's motion to amend the second complaint, see Doc. #55, citing defendants' pending motion to strike.
Standards For Motions To Dismiss Under Rule 12(b)(1)
The Court may exercise jurisdiction only when specifically authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994), and must "dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F. Supp. 279, 281 (D. Kan. 1995) (quoting Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); see also Fed.R.Civ.P. 12(h)(3). The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. See Basso, 495 F.2d at 909. When federal jurisdiction is challenged, plaintiff bears the burden of showing why the case should not be dismissed. See Jensen v. Johnson Co. Youth Baseball League, 838 F. Supp. 1437, 1439-40 (D. Kan. 1993).
Standards For Motions To Dismiss Under Rule 12(b)(6)
In ruling on a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well pleaded facts in the amended complaint and views them in a light most favorable to plaintiff. Zinermon v. Burch, 494 U.S. 113, 118 (1990). The Court makes all reasonable inferences in favor of plaintiff, and liberally construes the pleadings. Rule 8(a), Fed.R.Civ.P.; Lafoy v. HMO Colo., 988 F.2d 97, 98 (10th Cir. 1993). The Court may not dismiss a cause of action for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts which would entitle him to relief. Jacobs, Visconsi Jacobs, Co. v. City of Lawrence, Kan., 927 F.2d 1111, 1115 (10th Cir. 1991). Although plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on material elements that must be proved. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The Court affords a pro se plaintiff some leniency and must liberally construe the complaint Oltremari v. Kan. Soc. Rehab. Serv., 871 F. Supp. 1331, 1333 (D. Kan. 1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). The Court may not assume the role of advocate for a pro se litigant. Hall, 935 F.2d at 1110.
Facts
The Court cannot easily follow the allegations in plaintiff's amended complaint of June 2, 2004. Plaintiff proceeds under 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986 and 1988 for violations of the Fourth, Fifth, Sixth, Eighth, Thirteenth and Fourteenth Amendments. The complaint alleges a conspiracy to obstruct justice. Plaintiff recounts four prior federal lawsuits which the courts dismissed without requiring defendants to file answers. Plaintiff also cites a state law property tax sale suit.
Plaintiff alleges that one or more of the defendant lawyers started a rumor that "there is a federal statute somewhere that states it is a crime to threaten to harm federal judges, and that plaintiff had somehow made such a threat in his writings." Amended Complaint, ¶ 6. Plaintiff alleges that the Marshal's Service acted on this rumor and walked about his private residence on December 28 and 29, 2000. A few days later Marshal Mike Shute left a message on plaintiff's answering machine that "if you ever threaten to harm federal judges again, we will prosecute you." Id., ¶ 8.
Plaintiff asserts that each of four federal suits involved numerous violations of the Federal Rules of Civil Procedure, and that Supreme Court clerks foiled his attempts to gain review of the dismissals.
Plaintiff recites numerous details of his travels: a bicycle trip in which he paid a call to the Clerk of the Supreme Court; a trip to the Florida Keys where he was arrested twice, for refusing to show identification and for trespassing; and in spring 2003, his arrest in Corpus Christi, Texas for riding across a closed bridge.
Plaintiff further alleges the following facts: On October 28, 2003, plaintiff attended a hearing in a property tax case in state court. Wayman Favors defended the Unified Government in the suit. Delia York filed a motion for protective orders against plaintiff, and Judge Lampson granted the motion. Judge Lampson would not let plaintiff testify in the witness chair, and he summoned police to the courtroom. On January 5, 2004, Judge Lampson ruled against plaintiff in the property tax suit. Brenda Highberger, the court reporter, did not correctly record the proceeding. She failed to indicate a dramatic moment when plaintiff looked Judge Lampson in the eyes, stated "You ARE a Pontius Pilate," and then shut up. Judge Lampson looked away and down and then recovered, but the transcript does not indicate the pause or plaintiff's later statement.
Assistant United States Attorney Christopher Allman met with York, and they filed similar motions to dismiss plaintiff's federal law suit, Brooks v. Graber, No. 00-2262, 2000 WL 1679420 (D. Kan. Nov. 6, 2000), aff'd, No. 00-3391, 2001 WL 909131 (10th Cir. Aug. 13, 2001). Attorneys Kenneth Moore and Henry Couchman co-signed a ten-day extension in Brooks v. Graber, and York filed a motion to dismiss.
Plaintiff alleges that in his federal lawsuits, defendants invoked the Federal Rules of Civil Procedure by filing motions to dismiss but violated the Rules by never filing answers. Plaintiff alleges that Couchman resisted a subpoena and advised York to violate an unspecified court order. Plaintiff asserts that York had a conflict of interest because she was a defendant in plaintiff's Brooks v. Sauceda, 85 F. Supp. 2d 1115 (D. Kan. 2000), aff'd, No. 00-3025, 2000 WL 1730892 (10th Cir. Nov. 22, 2000), while simultaneously representing an unspecified defendant in Brooks v. Graber. Plaintiff alleges that on October 28, 2003 York represented herself to be counsel of record for the Unified Government, when Favors was actually counsel of record. Plaintiff alleges that in Brooks v. Sauceda, Couchman filed a motion to dismiss which represented that Sauceda had probable cause to take an unspecified action, whereas in Brooks v. Graber, Sauceda stated that Couchman did not talk to defendants in Sauceda before filing the motion to dismiss.
Plaintiff alleges that Judge Lampson allowed himself to be influenced by the Unified Government's legal department, and allowed and participated in the editing of a court transcript. Plaintiff asked Highberger for a transcript of the hearing on January 5, 2004. She took three months to produce it, and she did not put a cover sheet on the transcript.
Plaintiff alleges that on May 26, 2004, Sandy Gonzalez posted his houses as substandard, even though she did not inspect them.
Plaintiff asserts that in Couchman's motion to dismiss inBrooks v. Sauceda, Couchman stated that the main issue was whether plaintiff stated a claim under Section 1983, and that this language was "legalspeak" to tip off other lawyers that he was in danger of losing. Plaintiff asserts that Couchman's invocation of immunity — sovereign, absolute, legislative and judicial — was erroneous because Section 1983 does not allow such immunities.
Plaintiff asserts in conclusory fashion that defendants conspired to obstruct justice by interfering with court orders, falsifying court records, tampering with evidence and falsely acting as court officers. Plaintiff goes on to complain that the Tenth Circuit opinions in Brooks v. Sauceda and Brooks v. Graber are fakes because the judges did not sign them. He alleges that for months, the FBI — upon notice from York and Allman — withheld delivery of his appeal to the Supreme Court. Finally, plaintiff asserts that Judge Lampson was improperly influenced by Favors and York, and that United States District Judges Kathryn H. Vratil and Dale E. Saffels (who are not defendants in this case) were bribed. Plaintiff alleges that as a result of this judicial conspiracy, he has suffered years of lost joy and revenue.
Analysis
Plaintiff has not opposed any of defendants' motions to dismiss or to strike, or for sanctions. Under D. Kan. Rule 7.4, "If a respondent fails to file a response within the time required by Rule 6.1(e), the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." The Court finds that each of defendants' motions to dismiss and to strike (except defendants' motion to dismiss the original complaint, which is moot) should be sustained as unopposed. On the merits, the Court reaches the same result for reasons set forth below.
I. Motion To Dismiss And For Sanctions Of Defendants Couchman, Moore, York And Favors (Doc. #13) filed June 2, 2004
Couchman, Moore, York and Favors filed their motion to dismiss on June 2, 2004. That same day, before the motion to dismiss was docketed, plaintiff filed an amended complaint. The Court therefore finds that the motion to dismiss is moot.
In their motion to dismiss, defendants argue that the Court should sanction plaintiff because of the "frivolous nature of the Complaint and of Plaintiff's multiple prior filings of civil actions in this court." Motion To Dismiss And For Sanctions Of Defendants Couchman, Moore, York, And Favors (Doc. #13) filed June 2, 2004 at 2. Under Fed.R.Civ.P. 11(c)(1)(A), a motion for sanctions "shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b)." Also under Fed.R.Civ.P. 11(c)(1)(A), a motion for sanctions shall be served as provided in Rule 5, but shall not be filed with or presented to the Court unless, within 21 days after service of the motion (or such other period as the Court may prescribe), the challenged paper, claim, defense, contention, allegation or denial is not withdrawn or appropriately corrected. Defendants' motion for sanctions is contained in defendants' motion to dismiss and is not made separately from other motions. Also, defendants have not shown that Rule 11(c)(1)(A) has been satisfied, and the Court therefore declines to entertain the request for sanctions. See Davidson v. Kansas, No. 99-3235, 2001 WL 533207 at *5 (D. Kan. Mar. 13, 2001).
II. Motion To Dismiss Amended Complaint And For Sanctions Of Defendants Couchman, Moore, York And Favors (Doc. #25) filed June 18, 2004
Couchman, Moore, York and Favors assert that plaintiff's amended complaint does not state a claim against them. Each movant acted as an attorney for the Unified Government during the period in question. Plaintiff alleges that one or more of them started a rumor that "there is a federal statute somewhere that states it is a crime to threaten to harm federal judges, and that plaintiff had somehow made such a threat in his writings." Amended Complaint, ¶ 6. He alleges that the Marshal's Service acted on this rumor and walked about his private residence on December 28 and 29, 2000. Plaintiff further alleges that these movants signed motions and otherwise defended the Unified Government in his state court action.
Movants point out that the allegations do not state a cause of action under Section 1983 or any other federal statutes which plaintiff invokes. If anything, plaintiff appears to be attempting to relitigate a state court action concerning a property tax sale. The Court agrees, and finds that the motion to dismiss should be sustained.
Movants also assert that the Court should abstain from exercising jurisdiction under Younger v. Harris, 401 U.S. 37, 43 (1971). The Court need not reach this issue because it has already determined the these defendants are entitled to dismissal.
Younger abstention requires that a federal court refrain from hearing an action over which it has jurisdiction "when [the] federal proceedings would (1) interfere with an ongoing state judicial proceeding (2) that implicates important state interests and (3) affords an adequate opportunity to raise the federal claims." J.B. v. Valdez, 186 F.3d 1280, 1291 (10th Cir. 1999). Once a court finds that the required conditions are present, abstention is mandatory. See, e.g., Amanatullah v. Colo. Bd. of Med. Exam'rs, 187 F.3d 1160, 1163 (10th Cir. 1999).
Movants attach a copy of the complaint in Brooks v. Unified Government, Wyandotte County Court, No. 2004C 2211, relating to rental property inspections on May 26, 2004, and seeking a restraining order against the Unified Government from enforcing the landlord rental licensing laws. Movants assert that eachYounger element is met here: (1) a pending state court action by plaintiff with regard to enforcement of municipal rental property ordinances — specifically, challenging the alleged enforcement acts of May 26 and before by Unified Government employees; (2) the proceedings involve the important state interest in licensing and inspection of real property, which is traditionally a matter of state law; and (3) the state court offers an adequate opportunity to raise the federal claims.
In their motion to dismiss, movants also ask the Court to impose sanctions on plaintiff under Rule 11, Fed.R.Civ.P., for filing a frivolous complaint. As noted above, defendants' motion for sanctions is not made separately from other motions, and movants have not shown compliance with Fed.R.Civ.P. 11(c)(1)(A). The Court therefore declines to entertain the request for sanctions. See Davidson, 2001 WL 533207 at *5.
III. Motion To Dismiss of Lampson and Highberger (Doc. #28) filed June 22, 2004
Lampson and Highberger assert that they are entitled to dismissal because (a) the complaint is incoherent and fails to state a claim; (b) the suit against Judge Lampson is barred by absolute judicial immunity; (c) Highberger is entitled to qualified immunity; (d) the suit is barred by theRooker-Feldman doctrine, see Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983), or the Younger abstention doctrine, see Younger v. Harris, 401 U.S. 37, 43 (1971); and (e) injunctive relief against judicial officials is not available under 42 U.S.C. § 1983. Plaintiff has not responded to the motion, and thus has not addressed any of the arguments presented.
A. Failure To State A Claim
The Court first notes that the amended complaint contains mostly conclusory allegations which make it impossible for defendants to respond with anything other than a general denial.See Rodrock v. Foulston, 1998 WL 317574 at 3 (10th Cir. June 12, 1998). Conclusory allegations of conspiracy under Section 1983 are insufficient to state a claim for relief. See Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981). Defendants also point out that to the extent that plaintiff proceeds under 42 U.S.C. §§ 1981, 1982, 1985, 1986 and 1988, he fails to state a claim because he does not allege discrimination on account of racial animus. See Brooks v. Sauceda, No. 00-3025, 2000 WL 1730892 (10th Cir. Nov. 22, 2000) (claims under §§ 1981 and 1982 require intentional discrimination resulting from defendants' racial animus; § 1985(3) applies only to conspiracies motivated by racial or class-based animus) (where plaintiff alleges no facts to establish racial animus he can not assert § 1986 claim for failing to prevent violation of § 1985(3)and has no claim for attorney fees or costs as "prevailing party" under § 1988(b)). Plaintiff has failed to state a claim on which relief can be granted. In addition, his theories of recovery under these statutes are so vague that allowing him to amend to assert such claims would appear to be futile.
B. Judicial Immunity
Judge Lampson asserts that he is entitled to absolute judicial immunity because the allegations against him are based on comments and rulings made during a hearing on a counterclaim by plaintiff in a state court tax sale case. See Mireles v. Waco, 502 U.S. 9, 11 (1991) (per curiam) (judges immune from suit for judicial acts unless acts "taken in complete absence of all jurisdiction"). Plaintiff does not allege that Judge Lampson acted outside his judicial capacities or without jurisdiction. Judge Lampson is therefore entitled to absolute immunity. See id. at 11-12.
C. Qualified Immunity
Highberger asserts that as a court reporter she is entitled to qualified immunity. Court reporters are entitled to qualified immunity if they show that they did not violate a clearly established right of which a reasonable person would have known.See Antoine v. Byers Anderson, Inc., 508 U.S. 429, (1993);Maestas v. Lujan, 351 F.3d 1001, 1007 (10th Cir. 2003). Once defendant asserts the defense of qualified immunity, the burden of showing a violation of clearly established legal rights shifts to plaintiff. See Applewhite v. United States Air Force, 995 F.2d 997, 1000 (10th Cir. 1993).
Because Highberger has asserted the defense of qualified immunity, plaintiff has the burden to allege a violation of a clearly established right. Plaintiff's allegations as to Highberger include that she took three months to produce a transcript and did not put a cover sheet on it. Plaintiff does not articulate any constitutional right which these actions violated. He alleges that a transcript was altered, but does not allege who altered it or how it was altered. Because plaintiff has not alleged that Highberger violated a clearly established right of which she reasonably should have known, she is entitled to qualified immunity.
D. Suit Barred by Rooker-Feldman or Younger Abstention Doctrines
Lampson and Highberger alternatively assert that to the extent that plaintiff is attempting to relitigate rulings in a state court case, this Court lacks jurisdiction under theRooker-Feldman doctrine. The Rooker-Feldman doctrine prevents a party losing in state court from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923);District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482(1983); see also Johnson v. DeGrandy, 512 U.S. 997, 1005-06 (1994). The Rooker-Feldman doctrine is a jurisdictional prohibition which applies to two categories of claims: (1) those actually decided by a state court, seeRooker, 263 U.S. at 415, and (2) those "inextricably intertwined" with a state court judgment, see Feldman, 460 U.S. at 482 n. 16.
When a defendant brings a Rule 12(b)(1)motion to dismiss for lack of subject matter jurisdiction, plaintiff must carry the burden of proving jurisdiction. Richmond, Fredericksburg Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). Defendants argue that the Court lacks subject matter jurisdiction under Rooker-Feldman because plaintiff's conspiracy claims essentially seek review of the state court decision in the property tax foreclosure case in Wyandotte County. To the extent plaintiff asserts that state court rulings violated his constitutional rights in the state court case, Rooker-Feldman bars such claims.
Defendants also argue that to the extent any of plaintiff's claims implicate pending state court proceedings, Younger v. Harris, 401 U.S. 37, 43 (1971) precludes federal court intervention. Defendants rely upon arguments by Couchman, Moore, York and Favors in support of their motion to dismiss. The Court need not reach this issue because it has already determined Judge Lampson and defendant Highberger are entitled to dismissal.
III. Motion To Dismiss [The Amended Complaint] By The Federal Defendants [Allman, The Federal Bureau of Investigation And The United States Marshal's Service] (Doc. #34) filed July 26, 2004
A. No Subject Matter Jurisdiction Over The FBI Or The Marshal's Service
The FBI and the Marshal's Service first argue that the Court must dismiss the amended complaint against them because they are not entities subject to suit and are not proper parties to this action. They cite Blackmar v. Guerre, 342 U.S. 512, 515 (1952) for the proposition that federal agencies may not be sued eo nomine except as authorized by Congress in "explicit language."See Aviles v. Lutz, 887 F.2d 1046 (10th Cir. 1989) (claim for money damages against federal agency generally considered one against United States, and can proceed only if Congress has waived sovereign immunity and consented to action).
B. Sovereign Immunity
The FBI, the Marshal's Service and Assistant United States Attorney Allman in his official capacity assert that they are entitled to sovereign immunity. Sovereign immunity generally proscribes suits against the United States unless the government has expressly waived its immunity. See Nat'l Commodity Barter Ass'n, Nat'l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245-46 (10th Cir. 1989). The Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., provides a limited waiver of sovereign immunity for tort claims against the United States.See, e.g., Bradley v. U.S., 951 F.2d 268, 270 (10th Cir. 1991); Three-M Enter., Inc. v. U.S., 548 F.2d 293, 294 (10th Cir. 1977). Because the FTCA constitutes a waiver of sovereign immunity, the Court must strictly construe its notice requirements. See Cizek v. U.S., 953 F.2d 1232, 1233 (10th Cir. 1992) (citing Three-M, 548 F.2d at 295); see also Bradley, 951 F.2d at 270. Section 2675(a) of the FTCA requires a claimant to present his claim to the appropriate federal agency before bringing suit against the United States. See Cizek, 953 F.2d at 1233. The Tenth Circuit has stated that in order to comply with Section 2675(a), claimants must file an administrative claim which contains "(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim." Cizek, 953 F.2d at 1233. The requirements are jurisdictional and cannot be waived. See id. Plaintiff has not alleged that he filed an administrative claim, and to the extent that he brings suit under the FTCA, this Court lacks jurisdiction.
28 U.S.C. § 2675(A) provides in relevant part:
(a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.
C. Failure To State A Claim
The FBI, the Marshal's Service and AUSA Allman assert that plaintiff has failed to state a claim under 42 U.S.C. §§ 1981 and 1982 because the amended complaint does not allege nonconclusory facts which demonstrate discrimination based upon race. See Brooks, 2000 WL 1730892 at *2 (10th Cir. Nov. 22, 2000) (Brooks is Caucasian and claims under §§ 1981 and 1982 require intentional discrimination resulting from racial animus). The Court agrees. Furthermore, Section 1985 applies only to conspiracies motivated by racial or perhaps otherwise class-based discriminatory animus, see Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971), and plaintiff has not alleged such animus. Finally, the amended complaint contains mostly conclusory allegations which make it impossible for defendants to respond with anything other than a general denial. See Rodrock v. Foulston, 1998 WL 317574 at *3. Conclusory allegations of conspiracy under Section 1983 are insufficient to state a claim for relief. See Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981). Plaintiff's allegations that defendants started a rumor that plaintiff made a threat against a federal judge do not set forth a conspiracy to obstruct justice. The other allegations against Allman — that he spoke with York and filed motions to bar discovery to dismiss in the Graber case — do not set forth a claim for conspiracy. Finally, plaintiff's purported claims under Section 1983 fail because that statute does not apply to federal officials acting under color of federal law.
Even if the Court construes the claim against Allman in his individual capacity as one under Bivens v. Six Unknown Agents of Federal Bureau of Investigation, 403 U.S. 388 (1971), plaintiff has not made nonconclusory allegations that plaintiff violated his Fourth, Fifth, Sixth, Eighth, Thirteenth or Fourteenth Amendment rights. Allman is therefore entitled to dismissal because plaintiff has not stated a claim on which relief can be granted.
IV. Motion Of Defendant Sandy Gonzalez To Dismiss Amended Complaint For Insufficiency Of Process (Doc. #43) filed August 19, 2004.
Gonzalez asks the Court to dismiss all claims against her for insufficiency of service of process under Rule 12(b), Fed.R.Civ.P. Pursuant to Rule 12(b)(5), Fed.R.Civ.P., the Court may dismiss a complaint for insufficient service of process. Examples of insufficient service include serving the wrong person or serving an individual not authorized to accept service for defendant. See James Wm. Moore, 2 Moore's Federal Practice 3d § 12.33[4] at 12-54 (3d ed. 1997).
Plaintiff alleges that Gonzalez is a building code enforcement officer with the Unified Government. He purports to sue her in official and personal capacities. Plaintiff, however, has not personally served the summons and amended complaint on Gonzalez. Rather, on June 2, 2004, an individual named Chester Richards purported to serve the summons and amended complaint on "Rental Lic Dept at Indian Springs." As defendant points out, Fed.R.Civ.P. Rule 4(e) sets out the methods for service of process. Under Kansas law, service upon an individual must be made "by serving the individual or by serving an agent authorized by appointment or by law to receive service of process." K.S.A. § 60-304(a). Under K.S.A. § 60-303, service upon an individual can be accomplished by personal service, agency service, service by certified mail addressed to the individual, residence service, or personal and residence service. Here, none of these was accomplished. Actual notice of the suit does not confer personal jurisdiction over defendant. See Gregory v. United States Bankruptcy Court, 942 F.2d 1498, 1500 (10th Cir. 1991) (when court finds service insufficient but curable, it generally should quash service and give plaintiff opportunity to re-serve defendant). Further, under the standards set forth above, plaintiff's claim against Gonzalez is conclusory and fails to state a claim under any of the statutes cited. It therefore appears that allowing plaintiff to serve Gonzalez now would be futile. Plaintiff shall show cause in writing on or before November 30, 2004 why the Court should not dismiss with prejudice the amended complaint against Sandy Gonzalez for failure to state claim.
V. Joint Motion To Strike [The Twice Amended Complaint] By Defendants FBI, Lampson, York, Couchman, Moore, Favors Highberger, Allman And U.S. Marshal's Service (Doc. #41) filed August 19, 2004.
Defendants (except for Gonzalez) seek to strike the twice amended complaint because plaintiff did not seek leave of court or consent of defendants. Before a responsive pleading is served or within 20 days after service, Rule 15 of the Federal Rules of Civil Procedure allows one amendment of the pleadings. Subsequent amendments are allowed by leave of court or by written consent of an adverse party. Fed.R.Civ.Pro. 15(a). Subsequent amendments should be "freely given when justice so requires." After defendants filed their motion to strike, plaintiff filed a motion to amend (Doc. #54) filed October 27, 2004. Plaintiff's motion to amend his amended complaint does not comply with D. Kan. Rule 15.1. That rule provides as follows:
In addition to the other requirements of D. Kan. Rules 7.1 through 7.5, a motion to amend or a motion for leave to file a pleading or other document that may not be filed as a matter of right shall set forth a concise statement of the amendment or leave sought to be allowed with the proposed pleading attached.
Plaintiff attached to his motion only the paragraph he seeks to add to his complaint, rather than the entire proposed amended pleading. Even if the Court considers plaintiff's motion on the merits, the proposed amendment would be futile because the proposed amended complaint does not the cure the problems with the amended complaint, as forth above. Further, to the extent that the second amended complaint seeks to add United States Magistrate David Waxse as defendant, Judge Waxse is entitled to absolute judicial immunity under the standards set forth above.
IT IS THEREFORE ORDERED that the Motion To Dismiss Amended Complaint And For Sanctions of Defendants Couchman, Moore, York And Favors (Doc. #25) filed June 18, 2004; the Motion To Dismiss (Doc. #28) filed June 22, 2004 by Lampson and Highberger; the Motion To Dismiss [The Amended Complaint] By The Federal Defendants [Allman, The Federal Bureau of Investigation And The United States Marshal's Service] (Doc. #34) filed July 26, 2004; the Joint Motion To Strike [The Twice Amended Complaint] By Defendants FBI, Lampson, York, Couchman, Moore, Favors, Highberger, Allman, And U.S. Marshal's Service (Doc. #41) filed August 19, 2004; and the Motion Of Defendant Sandy Gonzalez To Dismiss Amended Complaint For Insufficiency Of Process (Doc. #43) filed August 19, 2004 be and hereby are SUSTAINED. IT IS FURTHER ORDERED that the Motion To Dismiss And For Sanctions of Defendants Couchman, Moore, York and Favors (Doc. #13) filed June 2, 2004 is OVERRULED as moot.
IT IS FURTHER ORDERED that plaintiff show cause in writing on or before November 30, 2004 why the Court should not dismiss with prejudice the amended complaint against Sandy Gonzalez for failure to state a claim.