Bricker v. State of Kansas et al
MEMORANDUM AND ORDER granting 41 Motion to Dismiss; denied as moot 6 Motion to Dismiss; granting 9 Motion to Dismiss Party; granting 11 Motion to Dismiss. Signed by District Judge Daniel D. Crabtree on 2/13/2017.Mailed to pro se party Corinthian Bricker by regular mail ; Certified Tracking Number: 70123460000082626160 (ydm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 16-cv-02283-DDC-GLR
STATE OF KANSAS, et al.,
MEMORANDUM AND ORDER
This matter comes before the court on four motions:
1. Defendants State of Kansas and Patrick Carney’s joint Motion to Dismiss
Complaint (Doc. 6);
2. Defendants State of Kansas and Patrick Carney’s joint Motion to Dismiss
Amended Complaint (Doc. 11);
3. Defendants American Family Insurance Company of Wisconsin and Butler &
Associates, P.A.’s joint Motion to Dismiss (Doc. 9); and
4. Defendant Jessica Travis’s Motion to Dismiss (Doc. 41).
Defendants State of Kansas and Mr. Carney filed their first Motion to Dismiss Complaint
(Doc. 6) in response to plaintiff’s original complaint. When plaintiff filed his First Amended
Complaint, that rendered this motion moot. The court thus denies defendants State of Kansas
and Mr. Carney’s joint Motion to Dismiss Complaint (Doc. 6) as moot. And, for reasons
explained below, the court grants all other motions to dismiss.
Because defendants bring their motions to dismiss under Federal Rule of Civil Procedure
12(b)(1) and 12(b)(6), the court takes the following facts from plaintiff’s First Amended
Complaint. See S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014); Holt v. United States, 46
F.3d 1000, 1002 (10th Cir. 1995).
Plaintiff Corinthian Bricker brings this action, pro se,1 against six defendants: the State
of Kansas, Mark Furney, Patrick Carney, Jessica Travis, American Family Insurance Company
of Wisconsin (“American Family”), and Butler & Associates, P.A. (collectively “defendants”).
Plaintiff’s First Amended Complaint (“Complaint”) recites the following statutes and
constitutional provisions: 42 U.S.C. §§ 1983, 1985–86; 28 U.S.C. § 1343; 28 U.S.C. § 1331;
“K.S.A. CHAPTER 60”; Kan. Stat. Ann. §§ 22-4503, -4518, -4522; Kan. Stat. Ann. §§ 60-234,
-226; the Indigent Defense Services’ Act; the Fifth, Sixth, Eighth, and Fourteenth Amendments
to the United States Constitution; the First, Ninth, Tenth, and Eighteenth Articles of the Kansas
Bill of Rights; and various Kansas Rules of Professional Conduct. Doc. 4 at 2. But citing these
provisions does not hide that plaintiff’s Complaint alleges only the following state-law claims:
negligence and fraud against Mr. Furney; breach of contract against Mr. Carney; negligence
against Ms. Travis; harassment against American Family and Butler & Associates; and
negligence and respondeat superior against the State of Kansas. These claims all arise from
defendants’ connections to plaintiff’s March 2006 DUI conviction in Johnson County, Kansas,
and a related subrogation action brought by American Family in Kansas state court. Doc. 4 at
62; Doc. 4-1 at 43.
All defendants but Mr. Furney have filed motions to dismiss plaintiff’s Complaint—
either individually or in groups. And it appears that Mr. Furney’s absence may result from
plaintiff’s failure to serve him. Nothing in the record establishes that Mr. Furney has been
Because plaintiff proceeds pro se, the court construes his pleadings liberally and holds them to a less stringent
standard than those drafted by lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the court does
not assume the role of advocate for plaintiff. Id. Nor does plaintiff’s pro se status excuse him from complying with
the court’s rules or facing the consequences of noncompliance. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
served. See Doc. 26 (summons and complaint for Mr. Furney returned as “Refused”). So, Mr.
Furney is not a party currently. See Omni Capital Int’l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97,
104 (1987) (“Before a federal court may exercise personal jurisdiction over a defendant, the
procedural requirement of service of summons must be satisfied.”); see also Doc. 46 (Show
Cause Order giving plaintiff additional time to serve Mr. Furney).
Although defendants file separate motions to dismiss, they all contend that the court lacks
subject matter jurisdiction to hear plaintiff’s Complaint and thus ask the court to dismiss the
Complaint under Federal Rule of Civil Procedure 12(b)(1). Because all of the motions share this
argument, the court addresses defendants’ various motions to dismiss as if they were one, using
the legal standard outlined in the following section.
Rule 12(b)(1) Motion to Dismiss Standard
The court must dismiss any case that it lacks subject matter jurisdiction to hear. Fed. R.
Civ. P. 12(h)(3). It must do so because “[a] court lacking jurisdiction cannot render judgment.”
Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citing Bradbury v.
Dennis, 310 F.2d 73, 74 (10th Cir. 1962)). The party who invokes the court’s jurisdiction bears
the burden to establish that it exists. Id. Here, that party is plaintiff.
Because defendants attack the Complaint’s allegations of subject matter jurisdiction, the
court “must accept the allegations in the complaint as true.” Holt, 46 F.3d at 1002 (citing Ohio
Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). But, conclusory
allegations about jurisdiction are not sufficient. Penteco Corp. Ltd. P’ship–1985A v. Union Gas
Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991); Matthews v. YMCA, No. 04-4033-SAC, 2005
WL 2663218, at *2 (D. Kan. Oct. 19, 2005).
The State of Kansas: Eleventh Amendment Immunity
The State of Kansas (“the State”) asserts that the Eleventh Amendment bars plaintiff’s
claims against it because it is immune from suit in federal court.
The Eleventh Amendment grants immunity that “accord[s] states the respect owed them
as joint sovereigns,” and “applies to any action brought against a state in federal court, including
suits initiated by a state’s own citizens.” Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250,
1252 (10th Cir. 2007). Eleventh Amendment immunity protects states and entities who are arms
of the state. Wagoner Cty. Rural Water Dist. No. 2 v. Grand River Dam Auth., 577 F.3d 1255,
1258 (10th Cir. 2009). As with many legal principles, some exceptions to this immunity exist.
For instance, federal suits against state-government officials can proceed when the plaintiff only
seeks prospective relief for an ongoing violation of rights, Verizon Md., Inc. v. Pub. Serv.
Comm’n of Md., 535 U.S. 635, 645 (2002), and the relief sought is not premised on state law,
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). Here, plaintiff sues the
State of Kansas itself. The State thus is immune from suit unless some exception to its immunity
applies. None does.
No exception applies because plaintiff has sued the State of Kansas, and not an official of
the State of Kansas. See Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1196 (D. Kan. 1998)
(“[T]he Eleventh Amendment bars federal court jurisdiction over a state agency for both money
damages and injunctive relief . . . .”); Smith v. Kansas, 574 F. Supp. 2d 1217, 1219 (D. Kan.
2008) (holding that the Ex Parte Young doctrine allows some suits against state officials, but
“does not permit suits against the State itself” (citing Hill v. Kemp, 478 F.3d 1236, 1255–56
(10th Cir. 2007))). The Eleventh Amendment thus bars plaintiff’s claims against the State of
Kansas, so the court dismisses plaintiff’s claims against the State.
Remaining Defendants: Diversity and Federal Question Jurisdiction
The other defendants—Mr. Carney, Ms. Travis, American Family, and Butler &
Associates—contend that plaintiff has failed to plead facts sufficient to establish subject matter
jurisdiction. To invoke the court’s subject matter jurisdiction, plaintiff’s Complaint must allege
facts that could support either diversity or federal question jurisdiction.
Diversity jurisdiction requires two things: the requisite amount-in-controversy and
complete diversity. 28 U.S.C. § 1332; Newman-Green Inc. v. Alfonzo-Larrain, 490 U.S. 826,
829 & n.1 (1989). The Complaint explicitly satisfies the first requirement, claiming more than
$75,000 in damages. Doc. 4 at 64. But the second element—complete diversity of citizenship—
For complete diversity of citizenship to exist, plaintiff cannot be “a citizen of the same
State as any defendant.” Owens Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978)
(citing Snyder v. Harris, 394 U.S. 332, 338–39 (1969)). Plaintiff alleges that he is a citizen of
Kansas. So, to satisfy the complete diversity requirement, no defendant can be a Kansas citizen.
Ms. Travis is now a citizen of Florida, but the opening page of the exhibit2 plaintiff attached to
his Complaint alleges that Mr. Carney is a Kansas citizen. Doc. 4-1 at 1. Complete diversity
thus does not exist in this case, and so neither does diversity jurisdiction.3 Because diversity
jurisdiction does not exist, the court lacks subject matter jurisdiction over plaintiff’s Complaint
unless he has alleged facts sufficient to support federal question jurisdiction.
The court may consider the exhibits attached to plaintiff’s First Amended Complaint as part of the Complaint. See
Harms v. I.R.S., 146 F. Supp. 2d 1128, 1130 (D. Kan. 2001) (explaining that, in a Rule 12(b)(1) motion, “a court’s
reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion” (quoting Holt, 46 F.3d
at 1003)), aff’d, 321 F.3d 1001 (10th Cir. 2003).
Indeed, plaintiff’s Complaint and attached exhibits strongly suggest that Butler & Associates is also a Kansas
citizen, as is confirmed in defendants American Family and Butler & Associates’s joint Reply. Doc. 4 at 2; Doc. 4-1
at 1; Doc. 35 at 2.
Federal Question Jurisdiction
Even the most generous interpretation of plaintiff’s Complaint fails to establish federal
question jurisdiction. “[F]ederal question jurisdiction must appear on the face of a plaintiff’s
well-pleaded complaint.” Martinez v. U.S. Olympic Comm., 802 F.2d 1275, 1280 (10th Cir.
1986). “The complaint must identify the statutory or constitutional provision under which the
claim arises, and allege sufficient facts to show that the case is one arising under federal law.”
Id. (citing Kirkland Masonry, Inc. v. C.I.R., 614 F.2d 532, 533 (5th Cir. 1980)). Indeed, there is
“no question that a mere allegation . . . that the cause arises under the Constitution or laws of the
United States without specific facts is not enough under any standard to pass the jurisdictional
hurdle.” Mitchell v. Parham, 357 F.2d 723, 725 (10th Cir. 1966) (citations omitted).
Although the Complaint refers to several federal statutes and constitutional provisions,
plaintiff bases none of his claims on those provisions. Instead, he alleges state-law causes of
action against defendants for negligence, fraud, harassment, breach of contract, and other things.
And, the length of plaintiff’s Complaint notwithstanding—it spans 64 pages and includes 86
pages of exhibits—the court can discern no allegations to support a cause of action under any of
the various federal laws that plaintiff cites. Nonetheless, the court considers plaintiff’s
arguments to the contrary below.
In his Response to the State and Mr. Carney’s joint Motion to Dismiss Amended
Complaint, plaintiff contends that his Complaint alleges federal claims because he mentions the
federal constitution and “has very clearly shown and proven the two elements to prevail on a
claim under 42 USC 1983.” Doc. 14 at 21. The court disagrees.
Some background about how plaintiff organizes his Complaint will provide helpful
context. On pages one and two of the Complaint, plaintiff references federal statutes and
constitutional amendments. Pages 3 through 56—titled “Statements of Fact/General
Allegations”—contain detailed allegations about the timeline of events in his state-court criminal
case and American Family’s state-court subrogation action, as well as what appears to be large
excerpts from court transcripts and/or quotations from plaintiff’s recollection. Then, starting on
page 56 and ending on page 64, plaintiff recites his causes of action against defendants, dividing
them into counts one through seven.
In count three, plaintiff alleges his only cause of action against Mr. Carney: for breach of
contract. Although plaintiff titles his claim as one for “breach of contract,” one could also view
it as a negligence claim. Doc. 4 at 59. But nothing in count three invokes or relies on a federal
statute or constitutional amendment. Instead, plaintiff’s allegations concern “[Mr.] Carney’s
negligence and failure to exercise due care and . . . breaching [the] contract with [p]laintiff.” Id.
at 60. Plaintiff does allege that Mr. Carney “knew, or . . . should have known, that his conduct
constituted a violation of one or more of the United States Constitution[’s] Amendments, Kansas
Statutes and/or regulations, and/or the policies and/or procedures applicable to members of the
Kansas Bar Association.” Id. at 59. But the Complaint does not allege which constitutional right
Mr. Carney purportedly violated, and his Response does not address this issue. The court can
find no thread connecting plaintiff’s lengthy factual allegations and any federal claim. Indeed,
plaintiff’s breach of contract and/or negligence claim against Mr. Carney rests purely on state
Simply reciting federal statutes and constitutional amendments at the outset of the
Complaint is not sufficient to invoke the court’s federal question jurisdiction. See, e.g., Ross v.
Enter. Bank & Tr., No. 11-2189-JAR, 2011 WL 2112468, at *3 (D. Kan. May 26, 2011)
(dismissing a complaint because the plaintiff’s “general references to the Securities Exchange
Act [were] insufficient” to establish federal question jurisdiction when the complaint’s
allegations made “no reference to any claim or requirement under federal law”); Landry v. Davis,
No. 08-3244-SAC, 2009 WL 274242, at *2 & n.2 (D. Kan. Jan. 26, 2009) (dismissing complaint
because it did “not present facts establishing federal question jurisdiction” seeing as the
plaintiff’s claims were for state law violations “such as breach of contract or fraud” and
“professional negligence”). Plaintiff thus has failed to allege facts supporting federal question
jurisdiction over count three.
American Family and Butler & Associates
In his Response to American Family and Butler & Associates’s joint Motion to Dismiss,
plaintiff contends that he has alleged claims under the Eighth Amendment of the United States
Constitution and so has alleged facts supporting federal question jurisdiction here. The court
In count five, plaintiff alleges his only cause of action against American Family and
Butler & Associates: something he calls “harassment.”4 Plaintiff does not reference the Eighth
Amendment or any other federal provision in count five and the court cannot infer such a claim
from anything in plaintiff’s Complaint. Indeed, count five states that plaintiff seeks damages for
American Family and Butler & Associates’s “harassing actions which were constituted of
negligence and failure to exercise due care.” Id. at 62. The court thus understands plaintiff to
base his claims against American Family and Butler & Associates on state-law negligence and/or
harassment principles—and not federal law. E.g., Harris v. Tulsa 66ers, 551 F. App’x 451, 452
Plaintiff alleges no facts supporting count five. Instead, he “requests this Court’s guidance on this issue.” Doc. 4
at 62. The court cannot instruct plaintiff about his case. The court may not act as his advocate. Hall, 935 F.2d at
(10th Cir. 2014) (affirming dismissal of a complaint “which allege[d] harassment” because it
could not “reasonably be construed to allege a claim arising under federal law”).
Nonetheless, plaintiff contends that his Complaint alleged an Eighth Amendment
violation by incorporating a complaint to the “Kansas Office of the Disciplinary Administrator”
into count five. Doc. 33 at 6; Doc. 4 at 62. Even if he could incorporate a cause of action in the
manner he asserts, the incorporated disciplinary complaint provides no basis for federal
jurisdiction. American Family and Butler & Associates are private entities, not state actors, so
they cannot violate the Eighth Amendment. See Baze v. Rees, 553 U.S. 35, 47 (2008) (“The
Eighth Amendment to the Constitution . . . [is] applicable to the States through the Due Process
Clause of the Fourteenth Amendment . . . .” (citation omitted)); Lugar v. Edmondson Oil Co.,
457 U.S. 922, 924 (1982) (“Because the [Fourteenth] Amendment is directed at the States, it can
be violated only by conduct that may be fairly characterized as ‘state action.’”); Alloway v.
Wackenhut Corr. Facility, 15 F. App’x 743, 744 (10th Cir. 2001) (requiring “a claim under the
Eighth Amendment . . . [to] show . . . state action” (citation omitted)). Nothing in the
disciplinary complaint or plaintiff’s Complaint here gives rise to an exception to this general
rule. And, though plaintiff asserts that American Family and Butler & Associates misused the
state subrogation statute, such misuse, even if true, cannot convert American Family and Butler
& Associates into state actors. See Lugar, 457 U.S. at 941 (explaining that “private misuse of a
state statute [alone] does not describe conduct that can be attributed to the State”). Plaintiff thus
fails to allege facts supporting federal question jurisdiction over count five.5
The court also concludes that plaintiff’s Eighth Amendment claim, raised for the first time in his Response, is
“wholly insubstantial and frivolous,” thus allowing the court to dismiss the claim under Rule 12(b)(1) instead of
dismissing it on the merits under Rule 12(b)(6). Shapiro v. McManus, _U.S._, 136 S. Ct. 450, 455 (2015); see also
Baker v. Carr, 369 U.S. 186, 199 (1962) (“The complaint alleges that the 1901 statute effects an apportionment that
deprives the appellants of the equal protection of the laws in violation of the Fourteenth Amendment. Dismissal of
the complaint upon the ground of lack of jurisdiction of the subject matter would, therefore, be justified only if that
claim were ‘so attenuated and unsubstantial as to be absolutely devoid of merit,’ or ‘frivolous.’” (citations
In his Response to Ms. Travis’s Motion to Dismiss, plaintiff contends that he has alleged
claims under the Sixth Amendment of the United States Constitution and so has alleged facts
supporting federal question jurisdiction here. Again, the court disagrees.
In count four, plaintiff alleges his only cause of action against Ms. Travis: negligence.
Plaintiff does not reference the Sixth Amendment or any other federal provision in count four
and the court cannot infer such a claim from anything in plaintiff’s Complaint. Indeed, count
four states that plaintiff seeks damages for Ms. Travis’s “negligence and failure to exercise due
care,” and speaks only in terms of what Ms. Travis “knew or . . . should have known.” Doc. 4
at 62. The court thus understands plaintiff to base his claims against Ms. Travis on state-law
negligence principles, and not federal law.
Nonetheless, plaintiff contends that he alleges a Sixth Amendment violation because the
negligence claim he asserts in count four does “not differ significantly from allegations of
ineffective assistance of counsel under the Sixth Amendment.” Doc. 43 at 23. Even if this
negligence claim is like an ineffective assistance of counsel claim, this similarity will not provide
our court with jurisdiction. The court is not required to accept plaintiff’s allegations in his
Response as true when considering Ms. Travis’s Rule 12(b)(1) motion. Ms. Travis brings her
Motion to Dismiss based on the face of plaintiff’s Complaint and so “the [c]ourt only evaluates
the sufficiency of the pleadings . . . rather than the statements of the parties in their briefs.”
Frederick v. S. Star Cent. Gas Pipeline, Inc., No. 10-1063-JAR, 2011 WL 1430005, at *3 (D.
Kan. Apr. 14, 2011); see also Holt, 46 F.3d at 1002 (stating that when a defendant attacks the
complaint’s allegations of subject matter jurisdiction, the court “must accept the allegations in
omitted)); Junior Chamber of Commerce of Rochester, Inc. v. U.S. Jaycees, 495 F.2d 883, 886 (10th Cir. 1974) (“A
proposition settled by the Supreme Court no longer presents a federal question for jurisdictional purposes.” (citation
the complaint as true” (citing Ohio Nat’l, 922 F.2d at 325)). And, as explained above, plaintiff’s
Complaint alleges only state-law claims against Ms. Travis. E.g., Landry, 2009 WL 274242, at
*2 & n.2 (dismissing complaint because it did “not present facts establishing federal question
jurisdiction” seeing as the plaintiff’s claims were for state law violations such as “professional
negligence”). Plaintiff thus fails to allege facts supporting federal question jurisdiction over
In sum, plaintiff fails to allege facts supporting either diversity or federal question
jurisdiction. The court thus lacks the subject matter jurisdiction to hear plaintiff’s claims and so
dismisses his Complaint.
IT IS THEREFORE ORDERED THAT defendants State of Kansas and Patrick
Carney’s Motion to Dismiss Amended Complaint (Doc. 11) is granted, but their Motion to
Dismiss (Doc. 6) is denied as moot.
IT IS FURTHER ORDERED THAT defendants American Family Insurance Company
of Wisconsin and Butler & Associates, P.A.’s Motion to Dismiss (Doc. 9) is granted.
IT IS FURTHER ORDERED THAT defendant Jessica Travis’s Motion to Dismiss
(Doc. 41) is granted.
IT IS SO ORDERED.
Dated this 13th day of February, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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