Folkers v. Simmons et al

Filing 19

MEMORANDUM AND ORDER granting 5 Motion to Dismiss for Failure to State a Claim; denying as moot 9 Motion to Remand to ; denying as moot 17 Motion for Review. Signed by District Judge Eric F. Melgren on 4/7/2015.Mailed to pro se party Chris Folkers by regular mail. (smg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHRIS FOLKERS,
Plaintiff,

vs.

Case No. 14-CV-2515-EFM-JPO

AARON SIMMONS, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Chris Folkers filed this suit pro se alleging violations of his rights under the
Kansas and United States Constitutions, federal and state statutes, and state tort law. Plaintiff
asserts claims against Defendants Aaron Simmons, John Harvell, Elizabeth Boldt, [First Name
Unknown] Brokaw, three unnamed male law enforcement officers, and one unnamed woman in
their official and individual capacities. Before the Court is Defendants Simmons, Harvell, Boldt,
and Brokaw’s Motion to Dismiss (Doc. 5). Because the Court finds that Plaintiff has failed to
state a claim under which relief may be granted, the Court grants Defendants’ motion. In light of
this decision, the Court also denies as moot Plaintiff’s Motion to Remand (Doc. 9) and Motion
for Review of Magistrate’s Orders (Doc. 17).

I.

Factual and Procedural Background

Plaintiff is a resident of the State of Kansas. On April 26, 2014, Defendant Simmons, a
law enforcement officer, conducted a traffic stop and issued Plaintiff a Kansas Uniform
Complaint and Notice to Appear for exceeding the speed limit while operating a vehicle in the
City of Merriam, Kansas. The Notice to Appear required Plaintiff’s appearance in the Municipal
Court of Merriam, Kansas.1
On June 26, 2014, Plaintiff filed a Motion to Strike/Dismiss the speeding ticket issued by
Officer Simmons challenging the subject matter jurisdiction of the City and the Municipal Court.
Two weeks later, on July 10, 2014, Plaintiff appeared before Municipal Court Judge Harvell at
the City of Merriam Municipal Court. Judge Harvell indicated that he had read Plaintiff’s
Motion to Strike/Dismiss and that he was denying it. Plaintiff argued that the motion was
unopposed by the City, whereupon Defendant Boldt, a City of Merriam prosecutor, stated that
she had not received a copy of it. After this exchange, Judge Harvell denied the motion, entered
a plea of not guilty on Plaintiff’s behalf, and set a trial date of September 18, 2014.
On September 15, 2014, Plaintiff filed a renewed motion to dismiss for lack of subject
matter jurisdiction, hand-delivering the motion to Defendant Boldt and Defendant Simmons by
leaving it with the City Clerk in a sealed envelope. According to Plaintiff, the motion states a
claim of abuse of legal process under Kansas law—a criminal violation relating back to the April
26, 2014, Notice to Appear.
Plaintiff appeared at the Merriam Municipal Court for his trial on September 18, 2014.
After Judge Harvell heard thirty to forty minutes of other matters, Plaintiff spoke out under his

1

Plaintiff’s complaint does not specify whether he appeared at this hearing.

-2-

breath. Plaintiff then claims that he noticed Defendant Simmons in the room, in the first row,
near Defendant Boldt’s chair and desk. Plaintiff saw Defendants Simmons and Boldt converse
and then saw Defendant Boldt go to Judge Harvell’s chair in the center of the room and spoke
with him about the motion Plaintiff filed on September 15, 2014.
After these conversations, Defendant Simmons left his seat at the front of the courtroom
and went to the back of the room to talk with Defendant Brokaw, a Merriam City police officer.
Defendant Brokaw then approached Plaintiff and asked to speak with him outside the courtroom.
Once outside, Brokaw indicated that a woman sitting in the front of the room overheard him say
something about wanting to bomb the court. Plaintiff denied making this statement.
At some point, two other law enforcement officers employed by the City of Merriam
appeared behind Plaintiff. Defendant Brokaw stated that he was going to search Plaintiff, and
Plaintiff responded that he did not consent. Defendant Brokaw placed Plaintiff in handcuffs
while the two other officers restrained him. Defendant Brokaw then searched Plaintiff’s pockets,
finding keys, a wallet, money, and a digital recorder.
Plaintiff claims that after the search he was returned to the courtroom in shackles where
Judge Harvell held him in contempt of court “ ‘for failure to stand’ ” and set a bond of $500.00.2
Judge Harvell also continued Plaintiff’s trial to September 23, 2014.
Defendant Brokaw then took Plaintiff downstairs, and Plaintiff asked him for a piece of
paper and a pen to write a writ of habeas corpus. Defendant Brokaw did not grant Plaintiff’s
request.

2

Another unnamed Merriam Police Officer drove Plaintiff to the Johnson County

Complaint, Doc. 1-1, p. 5.

-3-

Detention Center in Olathe, Kansas, where he spent over fifteen hours in an eight-foot by tenfoot room before being released.
On September 22, 2014, Plaintiff filed suit against Defendants in the District Court of
Johnson County, Kansas. Plaintiff’s complaint sets forth sixteen counts against Defendants.
Plaintiff’s claims consist of the following: “willful violations of Kansas Constitution ‘Bill of
Rights’ sections 1, 3, 8, 10, 15, and 20, Kansas criminal statutes and U.S. Constitution
amendments 1, 4, 5, 6, 10 and 14 and Federal criminal statutes,” willful abuse of legal process,
conspiracy to abuse the legal process, “tort conversion of Kansas and U.S. Constitutional rights,”
“violation of 15 USC (FDCPA),” “Civil RICO,” and state law tort claims of battery, assault,
false imprisonment, gross negligence, negligent malpractice, failure in duty of care, and
intentional infliction of emotional distress.3 Defendants Harvell, Simmons, Boldt, and Brokaw
removed the case to this Court on October 9, 2014. That same day, Defendants filed a Motion to
Dismiss, which is now before the Court.
II.

Legal Standard

Under Rule 12(b)(6), a defendant may move for dismissal of any claim for which the
plaintiff has failed to state a claim upon which relief can be granted.4 Upon such motion, the
court must decide “whether the complaint contains ‘enough facts to state a claim to relief that is
plausible on its face.’”5 A claim is facially plausible if the plaintiff pleads facts sufficient for the

3

Complaint, Doc. 1-1, p. 1.

4

Fed. R. Civ. P. 12(b)(6).

5

Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009).

-4-

court to reasonably infer that the defendant is liable for the alleged misconduct.6 The plausibility
standard reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of
the nature of the claims as well as the grounds upon which each claim rests.7 Under Rule
12(b)(6), the court must accept as true all factual allegations in the complaint but need not afford
such a presumption to legal conclusions.8 Viewing the complaint in this manner, the court must
decide whether the plaintiff’s allegations give rise to more than speculative possibilities.9 If the
allegations in the complaint are “so general that they encompass a wide swath of conduct, much
of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable
to plausible.’ ”10
The pleadings of a pro se plaintiff are to be liberally construed.11 But, the Court is not an
advocate and will not allege additional facts or assert alternative legal theories for the pro se
party.12 To avoid dismissal, the pro se complaint “must set forth the grounds of plaintiff’s
entitlement to relief through more than labels, conclusions and a formulaic recitation of the

6

Iqbal, 566 U.S. at 678 (citing Twombly, 550 U.S. at 556).

7

See Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (internal citations omitted); see also Fed.
R. Civ. P. 8(a)(2) (“A pleading that states a claim for relief must contain a short and plain statement of the claim
showing that the pleader is entitled to relief.”).
8

Iqbal, 556 U.S. at 678-79.

9

See id. at 678. (“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.”).
10

Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 570).

11

Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

12

Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997).

-5-

elements of a cause of action . . . [and] must allege sufficient facts to state a claim which is
plausible—rather than merely conceivable—on its face.”13
III.
A.

Analysis

Plaintiff’s Complaint Fails to State a Claim under Rule 12(b)(6).
Plaintiff’s complaint is difficult to understand. Although it sets forth sixteen counts

against Defendants, these counts contain a mishmash of statements concerning Defendants’
alleged conduct and only vaguely refer to the legal theories under which he is asserting his
claims. Plaintiff’s introductory paragraph asserts that he is alleging violations of federal and
state criminal statutes, 15 U.S.C., 42 U.S.C. §§ 1983, 1985, 1986, and 1966, and 18 U.S.C., as
well as the Kansas and United States Constitutions. But, even a liberal reading of Plaintiff’s
complaint fails to reveal facts supporting these legal theories and fails to identify a specific
violation under these legal theories. The Court will address each of Plaintiff’s claims below,
although not necessarily in the order in which they appear in the complaint.
1. Violations of the Kansas and United States Constitutions
In Count 1, Plaintiff asserts that Defendants Simmons, Harvell, Boldt, Brokaw, and the
three unnamed law enforcement officers willfully violated the “Kansas Constitution ‘Bill of
Rights’ sections 1, 3, 8, 10, 15, and 20, Kansas criminal statutes, and U.S. Constitution
Amendments 1, 4, 5, 6, 10, and 14 and Federal Criminal Statutes.”14 Plaintiff also asserts that
Defendants “willfully committed felony perjury and treason of and upon their sworn oaths of
office by their willful conducts.”15
13

Fisher v. Lynch, 531 F. Supp. 2d 1253, 1260 (D. Kan. 2008).

14

Complaint, Doc. 1-1, p. 2.

15

Complaint, Doc. 1-1, p. 2.

-6-

Count 1 fails to meet the requirements of Rule 12(b)(6). Plaintiff has not set forth any
federal or state statute that Defendants allegedly violated. Even if the court assumes Plaintiff is
bringing a claim under 42 U.S.C. § 1983, Plaintiff’s claim still fails because he has not identified
the precise constitutional right that was allegedly infringed.16 Plaintiff generally asserts that
Defendants violated certain amendments from the Kansas and United States Constitutions, but he
does not specifically state what rights under these amendments were violated.

Neither

Defendants nor the Court is required to guess what Plaintiff’s claim is. Because Count 1 does
not set forth a “plausible” claim, this count must be dismissed.
2.

Criminal Statutes

Plaintiff appears to assert a private cause of action against Defendants for violation of
federal and state criminal statutes under Counts 2, 4, and 5 Defendant asserts Count 2 against
Defendant Judge Harvell for willful abuse of the legal process, alleging that Judge Harvell
committed felony perjury and treason. Plaintiff asserts Count 4 against all Defendants except
Defendant Jane Doe 1. Count 4 alleges an abuse of legal process claim and a variety of criminal
assault and battery claims and false charge claims. Plaintiff brings Count 5 against Defendant
Jane Doe 1, who was the woman in the courtroom who allegedly overheard Plaintiff say he
wanted to bomb the court. Plaintiff asserts that Defendant Jane Doe 1 abused the legal process
and violated Kansas and federal terror laws when she accused him of making that statement.
“Generally, criminal statutes, state or federal, do not create a private cause of action.
Instead they are enacted to protect the public at large and provide a penal remedy for their

16

See McCarty v. Gilchrist, 646 F.3d 1281, 1285 (10th Cir. 2011) (“The analysis in a 42 U.S.C. § 1983
case begins with the identification of the precise constitutional right allegedly infringed.”).

-7-

violation.”17 Plaintiff’s complaint fails to direct the Court to any state or federal criminal statute
that provides a civil remedy under this legal theory. Instead, Plaintiff simply refers to “Kansas
and Federal felony crimes” or “Federal and Kansas terror laws.”18 Plaintiff’s allegations are
insufficient to state a claim for private right of recovery. Therefore, the Court dismisses these
claims.
3.

Tort Conversion

In Count 6, Plaintiff asserts that Defendants Simmons, Harvell, Boldt, Brokaw, and the
three unnamed law enforcement officers committed “tort conversion of Kansas and U.S.
constitutional rights.”19 Plaintiff specifically alleges that Defendants willfully violated his rights
in the Kansas Constitution Bill of Rights Sections 1, 3, 8, 10, 15, and 20, and U.S. Constitution
Amendments 1, 4, 5, 6, 10, and 14. This claim appears to mirror Count 1 and fails for the same
reasons set forth above.
4.

FDCPA

In Count 7 of his complaint, Plaintiff alleges that Defendants violated the Fair Debt
Collection Practices Act (“FDCPA”).

Specifically, Plaintiff alleges that Defendants were

operating a “ ‘debt collecting scheme’ ” to collect money by threat, fear, intimidation, or force.20
The complaint does not specify the operative section that Defendants violated.

17

The only

Mondonedo v. Henderson, 2012 WL 3245440, at *4 (D. Kan. Aug. 9, 2012) (citing Kaw Nation v.
Springer, 341 F.3d 1186, 1186 (10th Cir. 2003)); see also Cort v. Ash, 422 U.S. 66, 80 (1975) (stating that a private
right of action may not be inferred from a criminal prohibition).
18

Complaint, Doc. 1-1, p. 3-4.

19

Complaint, Doc. 1-1, p. 5.

20

Complaint, Doc. 1-1, p. 5.

-8-

reference Plaintiff makes to the underlying statute is in the introductory paragraph of the
complaint, where he refers to “15 U.S.C. (classified).”21
The FDCPA was enacted for the purpose of “eliminat[ing] abusive debt collection
practices by debt collectors, to insure that those debt collectors who refrain from using abusive
debt collection practices are not competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection abuses.”22 A defendant may only be held
liable for violating the FDCPA if that defendant meets the definition of a “debt collector.”23
Subject to exclusions, the FDCPA defines the term “debt collector” as “any person who uses any
instrumentality of interstate commerce or the mails in any business the principal purpose of
which is the collection of any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another.”24 Under this definition,
there are two alternative predicates for obtaining “debt collector” status: (1) engaging in debt
collection as the principal purpose of the entity’s business and (2) engaging in debt collection
regularly.25
Plaintiff’s complaint does not contain sufficient facts to support a claim under the
FDCPA. Plaintiff has not alleged any facts with regard to whether Defendants qualify as “debt
collectors.” Therefore, Plaintiff’s FDCPA claim fails.

21

Complaint, Doc. 1-1, p. 1.

22

15 U.S.C. § 1692(e).

23

James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).

24

15 U.S.C. § 1692a(6)

25

Id.

-9-

5.

RICO

In Count 8 of his complaint, Plaintiff asserts a civil RICO claim against Defendants
Simmons, Harvell, Boldt, Brokaw, and the three unnamed male law enforcement officers. This
claim apparently arises out of the operation of the City of Merriam Municipal Court. Plaintiff
alleges that Defendants were operating a “debt collection scheme,” that Defendants knowingly
and willfully lied to people to extort money from them, and that such acts were carried out
through a commerce scheme on behalf of the City of Merriam.26
To state a RICO claim under 18 U.S.C. § 1962(c), a plaintiff must set forth (1)
participation in conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.27
“The Supreme Court has adopted the ‘operation or management’ test to determine whether a
defendant has ‘participated in the conduct’ of the affairs of a RICO enterprise.”28 For liability to
exist under this test, the defendant “must have participated in the operation or management of the
RICO enterprise.”29 Furthermore, racketeering activity is commonly described as a “predicate
act” consisting of the state and federal crimes identified in 18 U.S.C. § 1961(1).30 Racketeering
claims alleging fraud must satisfy the heightened pleading standard of Rule 9(b).31
Plaintiff’s complaint fails to allege the four elements of a RICO claim. Nowhere in the
complaint does Plaintiff allege what Defendants did to carry on the RICO enterprise. Plaintiff
26

Complaint, Doc. 1-1, p. 5.

27

Bancoklahoma Mortg. Corp. v. Capital Title Co., 194 F.3d 1089, 1100 (10th Cir. 1999).

28

Id.

29

Id.

30

Ferluga v. Eickhoff, 408 F. Supp. 2d 1153, 1159 (D. Kan. 2006) (citing United States v. Smith, 413 F. 3d
1253, 1268-69 (10th Cir. 2005)).
31

Id. (citing Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d 982, 989 (10th Cir. 1992)); Cayman
Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1362 (10th Cir. 1989).

-10-

also hasn’t alleged a pattern of racketeering activity. Plaintiff has not identified two or more
predicate acts32 committed by Defendants and certainly has not specifically pled any acts of
fraudulent activity. Therefore, Plaintiff’s RICO claim is dismissed.
6.

Conspiracy

In Counts 3 and 9 of his complaint, Plaintiff asserts conspiracy claims. In Count 3,
Plaintiff alleges that Defendants Simmons, Harvell, Boldt, Brokaw, and two unnamed law
enforcement officers committed abuse of process by conspiracy. Specifically, Plaintiff asserts
that “Defendants had meetings. Defendants had thoughts. Defendants then plotted, then planned
to abuse plaintiff’s rights under constitutions and laws. Defendants then carried out such plots
and plans against plaintiff.”33 In Count 9, Plaintiff asserts a conspiracy claim against Defendants
based on Counts 7 and 8 of his complaint (violation of the FDCPA and Civil RICO claims).
Plaintiff’s complaint does not specifically state whether his conspiracy claims are
asserted under federal or state law. The introductory paragraph of his complaint refers to 42
U.S.C. §§ 1983, 1985 and 1986, so the Court will address his claims under each of these statutes.
a.

§ 1983

To recover under a § 1983 conspiracy, a plaintiff must plead and prove a conspiracy and
a deprivation of a constitutional right.34 In this case, Plaintiff has done neither. As discussed
above, Plaintiff has not sufficiently alleged that Defendants deprived him of a constitutional

32

See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 838 (10th Cir. 2005) (“A pattern of
racketeering activity must include commission of two predicate acts.”).
33

Complaint, Doc. 1-1 p. 3.

34

Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990).

-11-

right. Nor has he alleged sufficient facts showing an agreement and concerted action among
Defendants.
To state a cause of action for conspiracy under § 1983, Plaintiff must “allege specific
facts showing agreement and concerted action among [defendants].”35

Plaintiff must

demonstrate “a single plan, the essential nature and general scope of which was known to each
person who is to be held responsible for its consequences.”36 A mere opportunity to confer and
communicate is insufficient.37 Here, Plaintiff’s complaint generally alleges that Defendants
Simmons, Boldt, and Harvell spoke with each other in the courtroom before his trial. He then
alleges that Defendant Simmons spoke with Defendant Brokaw. These general allegations fall
short of those needed to state a claim for conspiracy. They do not contain “enough facts to state
a claim for relief that is plausible on its face.”38 Therefore, the Court finds that Plaintiff has not
stated a conspiracy claim under § 1983.
b.

§ 1985

Section 1985(2) contains four clauses that create four distinct causes of action.39 These
are:
A. If two or more persons conspire to deter, by force, intimidation, or threat, any
party or witness in any court of the United States from attending such court, or
from testifying to any matter pending therein . . . or
35

Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994).

36

Fernandez v. Mora-San Miguel Elec. Co-op., Inc., 462 F.3d 1244, 1252 (10th Cir. 2006) (quotation

omitted).
37

Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1988).

38

Schneider, 493 F.3d at 1177 (quotation omitted).

39

Wright v. No Skiter, Inc., 774 F.2d 422, 425 (10th Cir. 1985). It is unlikely that Plaintiff is asserting a
§ 1985(3) claim because an essential element of that claim is racially discriminatory animus, and Plaintiff makes no
allegations of such in his complaint. See Paris v. Sw. Bell Tel. Co., 94 F. App’x 810, 815 (10th Cir. 2004).

-12-

B. to injure such party or witness in his person or property on account of his
having so attended or testified, or
C. if two or more persons conspire for the purpose of impeding, hindering,
obstructing, or defeating, in any manner, the due course of justice in any State or
Territory, with intent to deny to any citizen the equal protection of the laws, or
D. to injure him or his property for lawfully enforcing . . . the right of any person,
or class of persons, to the equal protection of the laws.40
Clause A is aimed at conspiracies to discourage parties or witnesses from attending or testifying
in federal court, and Clause B is aimed at conspiracies to injure a party or witness for having
attended or testified in federal court.41 Plaintiff makes no allegations regarding any party or
witness testifying in federal court. His allegations only concern Merriam City Municipal Court.
Therefore, he does not state a claim under Clauses A or B.
Clauses C and D require that the conspiracy be class-based.42 Plaintiff does not allege
that he is a member of a class protected by § 1985 nor does he allege discriminatory animus.
Accordingly, Plaintiff has not stated a claim under 42 U.S.C. § 1985(2).
c.

§ 1986

42 U.S.C. § 1986 provides for the recovery of damages when a person knows of a
conspiracy under § 1985, has the power to prevent such conspiracy, and refuses to do so.43 A
40

Wright, 774 F.2d at 425 (quotation omitted).

41

See Kush v. Rutledge, 460 U.S. 719, 725 (1983) (stating that § 1985(2) has two parts and that the first
part applies to the administration of justice in the federal system and the second part relates to “conspiracies to
obstruct the course of justice in state courts”); Santistevan v. Loveridge, 732 F.2d 116, 118 (10th Cir. 1984).
42

See Kush, 460 U.S. at 725-26 (stating that a violation of the second part of § 1985(2) requires a showing
that the conspirators intended to deprive the injured party of the equal protection of the laws); see also Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971) (“The language requiring intent to deprive of equal protection, or equal
privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ action.”).
43

42 U.S.C. § 1986.

-13-

§ 1986 claim is premised upon the existence of a valid § 1985 claim.44 Because Plaintiff has not
stated a valid conspiracy claim under § 1985, Plaintiff has no cause of action under § 1986.
7.

State Law Tort Claims

In Counts 6, 10, 11, 12, 13, 14, 15, and 16, Plaintiff alleges state law tort claims against
Defendants. The Court, however, declines to exercise jurisdiction over these claims because all
federal claims against Defendants have been dismissed.45 Accordingly, Plaintiff’s tort claims
against Defendants are also dismissed.
8.

Declaratory Judgment

In the Damages section of his Complaint, Plaintiff seeks an order “nullifying” any
summons issued to him by the City and “expunging” any records of arrest or criminal charges
against him. The Court presumes that Plaintiff is seeking this relief under the Declaratory
Judgment Act, which provides in relevant part: “In a case of actual controversy within its
jurisdiction, . . . any court of the United States, upon the filing of an appropriate pleading, may
declare the rights and other legal relations of any interested party seeking such declaration,
whether or not further relief is or could be sought.”46 The Supreme Court has held that this
statute gives courts the power, but not the duty, to hear claims for declaratory judgment.47 In
determining whether to exercise their discretion, district courts should consider the following
factors:

44

Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir. 1990).

45

See, e.g., 28 U.S.C. § 1367(c).

46

28 U.S.C. § 2201(a).

47

Wilton v. Seven Falls Co., 515 U.S. 277, 286-87 (1995).

-14-

“[1] whether a declaratory action would settle the controversy; [2] whether it
would serve a useful purpose in clarifying the legal relations at issue; [3] whether
the declaratory remedy is being used merely for the purpose of procedural fencing
or to provide an arena for a race to res judicata; [4] whether use of a declaratory
action would increase friction between our federal and state courts and improperly
encroach upon state jurisdiction; and [5] whether there is an alternative remedy
which is better or more effective.”48
Here, Plaintiff is essentially asking the Court to perform the functions of a state
municipal court relative to his municipal court charges. In looking at the factors set forth above,
this is not the type of case where the Court should exercise discretion to hear Plaintiff’s claims
under the Declaratory Judgment Act.

A declaration from this Court would not settle the

underlying municipal charges, would not serve a useful purpose in clarifying the legal relations
at issue, is being requested to avoid the authority of the Municipal Court, and would increase
friction between federal and state courts. In addition, Plaintiff has an alternative remedy in state
court to appeal any municipal charge to the state district court or file a petition for expungement,
both of which are allowed under state statute. For these reasons, the Court declines to exercise
jurisdiction over Plaintiff’s claim for declaratory relief.
B.

Official Capacity Claims and Immunity
Besides arguing that Plaintiff’s complaint fails to state a claim, Defendants assert two

additional reasons why the Court should dismiss Plaintiff’s claims. First, Defendants argue that
Plaintiff’s official capacity claims should be dismissed because of lack of policy or custom.
Next, Defendants argue that Plaintiff’s individual claims against Defendants Harvell and Boldt
should be dismissed because they are entitled to absolute immunity and that Plaintiff’s individual

48

Mid-Continent Cas. Co. v. Village at Deer Creek Homeowners Assoc., 685 F.3d 977, 980-81 (10th Cir.
2012) (quoting State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 983 (10th Cir. 1994)).

-15-

claims against Defendants Simmons, Brokaw, and the three unnamed law enforcement officers
should be dismissed because they are entitled to qualified immunity.
1.

Official Capacity Claims

In his complaint, Plaintiff alleges that he brings this action “against each defendant in
their official capacities in part and as each individual people in part . . .” After looking at
Plaintiff’s complaint, the Court cannot discern against which individual Plaintiff is making
official capacity claims or individual capacity claims or both. Therefore, the Court assumes that
Plaintiff is making both an official capacity and individual capacity claim against each
Defendant.
a.

Federal Claims

Plaintiff’s claims against Defendants in their official capacities are equivalent to bringing
those claims against the City of Merriam itself. It is well established that an official capacity suit
is another way of suing a governmental entity.49 In other words, “[a section 1983] suit against a
municipality and a suit against a municipal official acting in his or her official capacity are the
same.”50
In Monell v. Department of Social Services of City of New York,51 the Supreme Court
held that when an officer deprives a citizen of a constitutional right, a municipal or other local
government body can be sued directly under § 1983 for monetary, declaratory, or injunctive
relief where the action that is alleged to be unconstitutional “implements or executes a policy
49

See Layton v. Bd. of Cnty. Comm’rs of Okla. Cnty., 512 F. App’x 861, 868 n.4 (10th Cir. 2013) (a “suit
against [the Sheriff] in his official capacity as sheriff is the equivalent of a suit against [the] County”) (quoting
Lopez v. LeMaster, 172 F.3d 756, 762 (10th Cir. 1999)).
50

Watson v. City of Kan. City, Kan., 857 F.2d 690, 695 (10th Cir. 1988) (citing Brandon v. Holt, 469 U.S.
464, 471-72 (1985)).
51

436 U.S. 658 (1978).

-16-

statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s
officers.”52 To hold a governing body liable under § 1983, the plaintiff must demonstrate “(1)
that an officer deprived the plaintiff of a constitutional right, and (2) that the municipal or county
policy or custom was the moving force behind the constitutional deprivation.”53
Here, Plaintiff’s complaint fails to allege that the moving force behind any of the
Defendants’ conduct was a City of Merriam policy or custom. In fact, Plaintiff’s complaint is
devoid of any allegation that such policy or custom existed. Therefore, Plaintiff’s official
capacity claims against Defendants fail.
b.

State Law Claims

To the extent Plaintiff asserts official capacity claims against Defendants under state tort
theories, these claims are to be treated as a suit against the municipal entity.54 These claims are
dismissed, however, because the Court declines to exercise supplemental jurisdiction over them
as discussed above.
2.

Individual Capacity Claims
a.

Absolute Immunity
1.

Judge Harvell

Judges are immune from civil liability for judicial acts, unless committed in the clear
absence of all jurisdiction.55 A judge does not act in the clear absence of jurisdiction even if “the
52

Id. at 690.

53

Cox v. Denning, 2014 WL 4843951, at *13 (D. Kan. Sept. 29, 2014) (citing City of Canton v. Harris, 489
U.S. 378, 385-88 (1989)).
54

Thomas v. Cnty. Com’rs of Shawnee Cnty., 40 Kan. App. 2d 946, 964, 198 P.3d 182, 194 (2008)
(citations omitted).
55

Henriksen v. Bentley, 644 F.2d 852, 855 (10th Cir. 1981) (citing Stump v. Sparkman, 435 U.S. 349

(1978)).

-17-

action he took was in error, was done maliciously, or was in excess of his authority.”56
Furthermore, “[a] judge is absolutely immune from liability for his judicial acts even if his
exercise of authority is flawed by the commission of grave procedural errors.”57
The United States Supreme Court has articulated two factors to determine whether an act
by a judge is a judicial act.58 These factors are whether the act is a function normally performed
by a judge and whether the parties dealt with the judge in his judicial capacity.59 Here, both of
these factors are satisfied.

As set forth in Plaintiff’s complaint, Judge Harvell’s conduct

consisted of presiding over hearings, making rulings on legal and evidentiary matters, and
holding Plaintiff in contempt. These are acts normally performed by a judge. Furthermore, all
of Plaintiff’s communications with Judge Harvell occurred while Judge Harvell was acting in his
judicial capacity. Therefore, judicial immunity applies to this case, and Judge Harvell must be
dismissed from this suit.
2.

Elizabeth Boldt

Plaintiff’s complaint alleges that Defendant Boldt was present in the Merriam Municipal
Court on September 18, 2014, in her capacity as prosecutor. It further alleges that while Judge
Harvell was hearing other matters and Plaintiff was analyzing his “documents and strategies,”
she had a conversation with Defendant Simmons and then went to Judge Harvell’s chair to
discuss Plaintiff’s Motion to Dismiss. No further conduct of Defendant Boldt is alleged.

56

Stump, 435 U.S. at 356-57.

57

Id. at 359.

58

Id. at 362.

59

Id.

-18-

Courts apply a “functional approach” when determining whether a prosecutor is
shielded from liability under § 1983 by absolute immunity.60 This approach looks to the nature
of the function performed, not the identity of the actor who performed it.61 When a prosecutor
performs “advocative” conduct, that is, the prosecutor “act[s] within the scope of his duties in
initiating and pursuing a criminal prosecution,” the prosecutor is immune from suit.62
“Advocative” conduct includes that which is “intimately associated with the judicial phase of the
criminal process.”63 The Supreme Court has stated that a prosecutor’s statements in the
courtroom and in pleadings that are relevant to the subject matter of the proceedings are
absolutely immune.64 Here, Boldt’s alleged conduct was all performed within the scope of her
duties in initiating and pursuing a criminal prosecution. Therefore, she is entitled to absolute
immunity as well.
b.

Qualified Immunity

Defendants argue that Defendants Simmons, Brokaw, and the three unnamed law
enforcement officers are entitled to qualified immunity to the extent Plaintiff asserts claims
against them in their individual capacities. The Supreme Court has recognized that public
officials enjoy qualified immunity on § 1983 claims asserted against them in their individual
capacities and that arise out of performance of their duties.65 When a defendant asserts a

60

Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (quotations omitted).

61

Id.

62

Imbler v. Pachtman, 424 U.S. 409, 410 (1976).

63

Id. at 430-31.

64

Id. at 426 n.23.

65

Scheuer v. Rhodes, 416 U.S. 232, 240 (1974).

-19-

qualified immunity defense, a plaintiff must satisfy a two-pronged test to avoid dismissal.66 A
plaintiff must establish (1) that the official violated a statutory or constitutional right and (2) that
right was “clearly established” at the time of the challenged conduct.67
Here, Defendants provide no argument in support of their assertion that Defendants
Brokaw, Simmons, and the three unnamed law enforcement officers are entitled to qualified
immunity. Defendants simply state that Plaintiff has not alleged a constitutional violation and
that even if Plaintiff did allege such a violation, the law was not clearly established at that time.
Plaintiff also does not address Defendant’s argument in his response. However, the Court need
not look further at this issue because it has already determined that Plaintiff has failed to state a
claim under 42 U.S.C. § 1983. Therefore, the Court declines to determine at this time whether
Defendants Simmons, Brokaw, and the three unnamed law enforcement officers are entitled to
qualified immunity.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 5) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Remand (Doc. 9) is DENIED
AS MOOT.

66

Comprehensive Addiction Treatment Ctr. v. Leslea, 552 F. App’x 812, 815 (10th Cir. 2014).

67

Id.; Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

-20-

IT IS FURTHER ORDERED that Plaintiff’ Motion for Review of Magistrate’s Orders
(Doc. 17) is DENIED AS MOOT.
IT IS SO ORDERED.
Dated this 7th day of April, 2015.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

-21-