Caranchini v. Peck et al

Filing 129

MEMORANDUM AND ORDER dismissing as moot 27 Motion to Produce Jail Records and 35 Motion to Produce Jail Records; granting 122 Motion to Dismiss for Failure to State a Claim; denying 123 Motion for Require Linus Baker to Advise Rick Peck of the Court's Recent Filing and to Sanction Linus Baker for Failing to Provide Said Court Filing to Rick Peck Immediately Upon its Entry. Signed by District Judge Carlos Murguia on 12/10/18. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GWENDOLYN G. CARANCHINI,
Plaintiff,
v.

Case No. 18-2249-CM-TJJ

LOLA PECK, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is before the court on defendant Lola Peck’s Motion to Dismiss (Doc. 122) and pro
se plaintiff Gwendolyn G. Caranchini’s Motion to Require Linus Baker to Advise Rick Peck of the
Court’s Recent Filing and to Sanction Linus Baker for Failing to Provide Said Court Filing to Rick Peck
Immediately Upon its Entry (Doc. 123).
The court recently granted in part defendants Rick and Lola Peck’s Motion to Strike, striking
three of the claims against defendants. (Doc. 121). Only Counts III and IV remain in the case, and both
counts involve only Lola Peck.
Addressing plaintiff’s motion first, plaintiff asks the court to order defendants’ counsel to provide
defendant Rick Peck a copy of the court’s recent order striking the claims against him, and requests a
court order advising Rick Peck that he may contact plaintiff. The court’s role is neither to act as an
intermediary between plaintiff and defendants, nor to resolve these parties’ private domestic relationship
matters. Plaintiff’s motion is a frivolous and unsupported attempt to have the court order contact with
Rick Peck. The court’s order (Doc. 121) is a publicly filed document, and Rick Peck may access it
without court intervention.

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This litigation has been pending since May 2018. Due to the numerous filings, the court is quite
familiar with the circumstances surrounding this case. The court is not persuaded by defendants’
responses to plaintiff’s filings, and does not condone plaintiff and defense counsel continuing to berate
one another in pleadings. These back-and-forth insults are not constructive and are contrary to the Pillars
of Professionalism. And this court is not the first to remind counsel of the importance of professionalism.
Magistrate Judge Teresa J. James recently noted, “[t]he Court reminds all counsel that it expects counsel
to conduct themselves in accordance with the Pillars of Professionalism adopted by and available on the
District of Kansas website. The Court strongly encourages all parties and counsel to focus on the issues
in this case and to avoid personal attacks on each other.” (Doc. 117, at 4.)
Plaintiff’s motion is denied. It is improper for plaintiff to use the court as a means to resolve
issues related to the end of her alleged romantic relationship with Rick Peck, particularly when she has
not pleaded any plausible legal theories that entitle her to any relief. And it is unprofessional for
defendants to further provoke plaintiff by filing inflammatory pleadings and responses.
As for defendant’s motion to dismiss, defendant moved to dismiss the remaining claims against
her for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Counts III
and IV still remain in the case; Count III is for “harassment and threat of bodily harm” and in Count IV,
plaintiff claims defendant engaged in a conspiracy to incarcerate her.
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which
relief can be granted.” Rule 8(a)(2) states that a pleading must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” To withstand a motion to dismiss under 12(b)(6),
a complaint must contain “enough allegations of fact, taken as true, ‘to state a claim to relief that is
plausible on its face.’” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). A claim is plausible when “the pleaded factual content

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allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). When the complaint contains well-pleaded factual
allegations, a court should “assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id.
A court must liberally construe a pro se complaint and apply “less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, when a trained
attorney proceeds pro se, “he is not entitled to have his filings liberally construed. . . .” McNamara v.
Brauchler, 570 F. App’x 741, 743 (10th Cir. 2014).
In Count III, plaintiff claims defendant is liable for “harassment and threat of bodily harm.” She
alleges that that defendant physically threatened her and harassed her by driving up and down her street,
by following her on the highway and to her doctor’s office, by placing a condom on her car, by leaving
beer bottles in her back yard, and by vandalizing her car. She claims that Rick Peck told her he was
afraid for her safety because he believed Lola Peck wanted to harm her. Plaintiff believes Rick Peck
was telling the truth because he “[does] not exaggerate.” (Doc. 1, at 90.)
Plaintiff does not plead a recognized cause of action or identify what law or common law torts
entitle her to relief. Plaintiff simply included paragraphs of factual allegations and claimed defendant
was liable for harassment or threat of bodily harm. “It is not the role of either the court or the defendant
to sort through a lengthy, poorly drafted complaint and voluminous exhibits in order to construct
plaintiff’s causes of action.” McNamara, 570 F. App’x at 743.
“Harassment” and “threat of bodily harm” are not torts recognized under Kansas law. Assault
under Kansas law is defined as “an intentional threat or attempt, coupled with apparent ability, to do
bodily harm to another, resulting in immediate apprehension of bodily harm.” Baska v. Scherzer, 156
P.3d 617, 622 (Kan. 2007). Words alone generally cannot be an assault; however, words can constitute

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assault if “together with other acts or circumstances they put the other in reasonable apprehension of
imminent or offensive contact with his person.” Vetter v. Morgan, 913 P.2d 1200, 1203–04 (Kan. Ct.
App. 1995). Even if the court were to interpret plaintiff’s claim as one for assault, plaintiff has not
pleaded any facts to show she was ever in immediate apprehension of bodily harm. The court finds
plaintiff has failed to state a claim under Rule 12(b)(6) and dismisses Count III.
In Count IV, plaintiff alleges that Lola Peck and ADA John Fritz committed conspiracy to
incarcerate her. She claims Fritz told Lola Peck he could arrange to have plaintiff arrested and not given
the right to post bond, and that Lola Peck, with the assistance of Fritz, ensured plaintiff’s time in jail was
a “nightmare,” and that Lola Peck paid money to Fritz to ensure plaintiff was arrested after the TRO
hearing and incarcerated. The court struck any allegations in this count related to any communication
between Lola Peck and ADA John Fritz as protected by K.S.A. § 60-5320. (Doc. 121.) The only
remaining allegation in Count IV is plaintiff’s claim that Lola Peck paid money to ADA John Fritz to
ensure plaintiff was arrested. ADA John Fritz has already been dismissed from this case. (Doc. 111.)
Conspiracy is not a civil tort under Kansas law. And the court is unable to decipher how
plaintiff’s factual allegations are actionable. Even if plaintiff did list a recognized cause of action, her
speculative factual allegations do not rise to the level of “plausible” to survive a motion to dismiss.
Plaintiff has no factual support for her accusation that Lola Peck paid ADA John Fritz. Count IV is
therefore dismissed.
The court would caution plaintiff that in the future she should consider exercising restraint in
regard to the amount of personal, private information she shares in publicly filed pleadings with the
court. The court does not need more information than necessary to make its decisions, and sharing
private, unnecessary details about one’s romantic life is unprofessional and unhelpful.

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The remaining counts of the complaint are dismissed for failure to state a claim under Rule
12(b)(6). All defendants are now dismissed from this action. The court notes that defendants Rick and
Lola Peck have requested fees or sanctions as provided by K.S.A. § 60-5320 in both their Motion to
Strike (Doc. 3) and in their Response to Plaintiff’s Motion Doc 123 and Request for Kansas Anti-SLAPP
Relief (Doc. 124). They are directed to file a motion at this time detailing their request for fees and/or
sanctions.
IT IS THEREFORE ORDERED that plaintiff’s Motion to Require Linus Baker to Advise Rick
Peck of the Court’s Recent Filing and to Sanction Linus Baker for Failing to Provide Said Court Filing
to Rick Peck Immediately Upon its Entry (Doc. 123) is denied.
IT IS FURTHER ORDERED that defendant’s Motion to Dismiss (Doc. 122) is granted. This
case is closed. The clerk of the court is directed to enter judgment in favor of defendants and against
plaintiff. Defendants Rick and Lola Peck are instructed to file any motions for fees and sanctions under
K.S.A. § 60-5320 at this time.
IT IS FURTHER ORDERED that plaintiff’s Motions to Produce Jail Records (Docs. 27 & 35)
are dismissed as moot.
Dated December 10, 2018, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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