Owens v. State of Kansas et al

Filing 54

MEMORANDUM AND ORDER granting 30 Motion to Dismiss/Motion for Judgment; denying 40 Motion to Strike; denying 41 Motion to Vacate; granting 48 Motion to Dismiss for Failure to State a Claim; granting 50 Motion to Dismiss for Failure to State a Claim; denying as moot 9 Motion to Dismiss; granting 18 Motion to Dismiss. Signed by District Judge Eric F. Melgren on 5/10/2011. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GARY OWENS and OBO DLT
TRANSPORT,
Plaintiffs,

vs.

Case No. 11-4007-EFM

THE STATE OF KANSAS, LINN
COUNTY, LINN COUNTY DISTRICT
COURT, RICHARD SMITH, JOHN
SUTHERLAND, UNKNOWN RE-ISSUER
OF BOGUS WARRANT, THE KANSAS
HIGHWAY PATROL, CJ HAMMOND,
JUSTIN ROHR, ALEX TAYLOR, SALINE
COUNTY SHERIFFS DEPARTMENT,
CRAIG NORRIS, W. MUEHLBERG,
OFFICER DICKINSON, ROY PALMER,
PALMER TRUCK AND TRAILER
REPAIR, and GLEN KOCHANOWSKI,
Defendants.

MEMORANDUM AND ORDER
This case arises out of Plaintiff Gary Owens’ arrest that occurred on December 20, 2006,
near Salina, Kansas. In their complaint, Plaintiffs, Owens and OBO DLT Transport, proceeding pro
se, allege that every party that played a role in Owens’ arrest and subsequent processing is a
“member[] of or beholden to a nefarious criminal organization which is dedicated to the maxim, ‘tell
any lie, violate any rule, break any law, statutes, policy and regulations, and commit any crime

necessary to perfect schemes, frauds, swindles, and extortion.’ ”1 The following motions are now
before the Court: (1) Saline County Sheriffs Department’s, Craig Norris’, William Dickinson’s, W.
Muehlberg, and Glen Kochanowski’s (“Saline County Defendants”) Rule 12(b)(2) & (3) motion to
dismiss (Doc. 9); (2) CJ Hammond’s, the Kansas Highway Patrol’s, the State of Kansas’, Linn
County District Court’s, Justin Rohr’s, Richard Smith’s, and Alex Taylor’s Motion to Dismiss (Doc.
18); (3) Linn County’s and John Sutherland’s Motion to Dismiss and/or For Judgment on the
Pleadings (Doc. 30); (4) Plaintiffs’ Motion to Strike CJ Hammond’s, the Kansas Highway Patrol’s,
the State of Kansas’, Linn County District Court’s, Justin Rohr’s, Richard Smith’s, and Alex
Taylor’s Motion to Dismiss (Doc. 40); (5) Plaintiffs’ Motion to Vacate the Court’s Order striking
his response to Saline County Defendants’ Rule 12(b)(2) & (3) motion (Doc. 41); (6) Roy Palmer’s
and Palmer Truck and Trailer Repair’s Motion to Dismiss (Doc. 48); and (7) Saline County
Defendants’ Motion to Dismiss (Doc. 50). For the reasons stated below, the Court concludes that
this case should be dismissed.
I. BACKGROUND
On December 20, 2006, Plaintiff Owens, an over-the-road truck driver, was pulled over by
Kansas Highway Patrol Trooper CJ Hammond near Salina, Kansas. Among other things, Trooper
Hammond ran Owens’ driver license, which led to the discovery of the fact that a Linn County
official had issued a bench warrant for Owen’s arrest in July 23, 1997.2 When asked, Trooper
1

See Doc. 1, p. 4.

2

The Court takes judicial notice of the fact that the warrant was issued in 1997 by a Linn County official. See,
e.g., United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (stating that a court “may exercise [its] discretion
to take judicial notice of publicly-filed records . . . concerning matters that bear directly upon the disposition of the case
at hand”); S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group LTD., 181 F.3d 410, 426 (3d Cir. 1999) (“To
resolve a 12(b)(6) motion, a court may properly look at public records, including judicial proceedings, in addition to the
allegations in the complaint.”); Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994) (“[T]he district court may
also take judicial notice of matters of public record without converting a 12(b)(6) motion into a motion for summary

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Hammond was unable to answer Owens’ question of why the arrest warrant had been issued, but he
did say that it had been renewed on October 19, 2006. Due to the outstanding warrant, Trooper
Hammond arrested Owens. Fearing that his vehicle, and the cargo contained therein, would be left
on the side of the road, Owens requested that he be able to move it to a nearby truck stop. Owens’
request was denied, and Roy Palmer of Palmer Truck and Trailer Repair was called in to remove
Owens’ vehicle from the road. At some point in time, Troopers Justin Rohr and Alex Taylor arrived
on scene.
Owens was taken to the Saline County jail for booking. There, Owens’ photo and
fingerprints were taken, Owens’ money was inventoried, and Owens was searched by the following
members of the Saline County Sheriffs Department: Glen Kochanowski, Craig Norris, W.
Muehlberg, and Officer Dickinson. Owens alleges that these officers, like the arresting troopers,
assaulted, battered, intimidated, and harassed him to further “their scheme to extort under color of
law [and] to further their meanness and greed.”3 As a result of law enforcement’s actions, Owens
claims to have suffered severe emotional distress.
Eventually, Owens bonded out of jail by posting a $500 bond, which was the amount set
forth in the 1997 bench warrant. Owens did not receive back the money that was taken from him
during the booking; however, he did receive a check in the amount of $102.72. According to
Owens, upon his release, the Saline County Sheriffs Department issued him a bogus bond card, as

judgment.” (internal quotation marks omitted)); Cont’l Coal, Inc. v. Cunningham, 511 F. Supp. 2d 1065, 1071 (D. Kan.
2007) (considering “pleadings, court orders, motions and certified transcripts of hearings from [a related] state court
case” when deciding the defendant’s Rule 12(c) motion).
3

See Doc. 1, p. 8.

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the portion of the card stating Saline County was marked out and replaced with Linn County and
the card did not say how to get to the Linn County courthouse.
At some point in time, Owens began filing, via fax, motions and pleadings with the Linn
County Court Clerk’s Office and John Sutherland, the Linn County Attorney.4 Owens alleges that
many of his motions and pleading were never answered, and that Sutherland had ex parte hearings
with Judge Richard Smith, the chief judge for the Sixth Judicial District and who sits in Linn
County,5 which ultimately resulted in the conversion of Owens’ $500 bond “to the criminal
enterprise treasuries of [Linn] [C]ounty.”6 To cover up their gross misconduct, Owens claims that
Sutherland and Smith removed court documents from the record.
Based on the events described above, on December 20, 2010, Plaintiffs, proceeding pro se,
filed this action in the United States District Court for the Northern District of Texas, asserting a
litany of claims arising under both federal law, namely 42 U.S.C. §§ 1983, 1985, & 1986 and 18
U.S.C. § 1964(a) & (c), and state law. Plaintiffs are requesting, among other things, injunctive and
declaratory relief, $30,000,000 in punitive damages, possession of the arresting troopers’ squad cars,
that John Sutherland be permanently disbarred, and possession of Sutherland’s bar card.
II. Legal Standards
Rule 12(b)(1) Standard

4

The Court takes judicial notice of the fact that John Sutherland is the county attorney for Linn County. See
Fed. R. Evid. 201(b) (discussing the types of facts that are judicially noticeable).
5

Judicial notice of the fact that Smith is chief judge for the Sixth Judicial District and sits in Linn County is taken.

6

See Doc. 1, p. 14.

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District courts have “original jurisdiction of all civil actions arising under the Constitution,
laws or treaties of the United States.”7 “A case arises under federal law if its ‘well pleaded
complaint establishes either that federal law creates the cause of action or that the plaintiff's right
to relief necessarily depends on resolution of a substantial question of federal law.’ ”8 Plaintiff is
responsible for showing the court by a preponderance of the evidence that jurisdiction is proper.9
Mere allegations of jurisdiction are not enough.10
Federal courts are courts of limited jurisdiction and, as such, must have a statutory or
constitutional basis to exercise jurisdiction.11 The law imposes a presumption against jurisdiction,
and plaintiff bears the burden of showing that jurisdiction is proper.12
Rule 12(b)(6) Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim for relief that is plausible on its face.’ ”13 “[T]he mere metaphysical
possibility that some plaintiff could prove some set of facts in support of the pleaded claims is
insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable

7

28 U.S.C. § 1331.

8

Nicodemus v. Union Pac. Corp., 440 F.3d 1227, 1232 (quoting Franchise Tax Bd. v. Constr. Laborers Vacation
Trust, 463 U.S. 1, 27-28 (1983)).
9

United States v. Rockwell Int’l Corp., 282 F.3d 787, 797 (10th Cir. 2002).

10

Id. at 798.

11

Lindstrom v. United States, 510 F.3d 1191, 1193 (10th Cir. 2007).

12

See, e.g., Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005).

13
Ashcroft v. Iqbal, - - - U.S. - - -, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

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likelihood of mustering factual support for these claims.”14 “The court’s function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties might present at trial, but to assess whether
the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.”15
In determining whether a claim is facially plausible, the court must draw on its judicial
experience and common sense.16 All well pleaded facts in the complaint are assumed to be true and
are viewed in the light most favorable to the plaintiff.17 Allegations that merely state legal
conclusions, however, need not be accepted as true.18
Rule 12(c) Standard
The distinction between Fed. R. Civ. P. 12(c) and Fed. R. Civ. P. 12(b)(6) is one without
difference, as the standards under the two provisions are the same.19 Thus, to survive a motion to
dismiss made under Rule 12(c), a complaint must present factual allegations, assumed to be true,
that “raise a right to relief above the speculative level,” and must contain “enough facts to state a
claim to relief that is plausible on its face.”20 The allegations must be enough that, if assumed to be
true, the plaintiff plausibly, not merely speculatively, has a claim for relief.21
Pro Se Standard

14

Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

15

Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003).

16

Iqbal, 129 S. Ct. at 1950.

17

See Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984).

18

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

19

See Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir. 2003); Cont’l Coal, Inc., 511 F. Supp. at 1070.

20

Twombly, 550 U.S. at 555.

21

Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008).

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“A pro se litigant’s pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.”22 However, “it is not the proper function of the
district court to assume the role of advocate for the pro se litigant.”23 “[T]he court will not construct
arguments or theories for the plaintiff in the absence of any discussion of those issues.”24
III. ANALYSIS
As noted above, there are a number of outstanding motions. These motions fall into two
distinct categories: (1) motions addressing whether the United States District Court for the Northern
District of Texas had personal jurisdiction over Defendants and is the proper venue to entertain this
matter; and (2) motions addressing whether Plaintiffs’ action should be dismissed because either the
Court lacks subject-matter jurisdiction over Plaintiffs’ claims or Plaintiffs’ complaint fails to state
a claim upon which relief can be granted. The Court will address these categories of motions in
turn.
Saline County Defendants’ Rule 12(b)(2) & (3) Motion (Doc. 9) and Plaintiffs’ Motion to
Vacate the Court Order Striking Their Response to this Motion (Doc. 41)
On January 18, 2011, the Saline County Defendants filed a motion asking the United States
District Court for the Northern District of Texas to dismiss Plaintiffs’ case because it lacked
personal jurisdiction over them, or, in the alternative, to transfer the case to the District Court for
the District of Kansas. In an order issued on January 20, 2011, the District Court for the Northern

22

Hall, 935 F.2d at 1110.

23

Id.

24

Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).

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District of Texas, referencing the Saline County Defendants’ motion, transferred Plaintiffs’ case to
this Court pursuant to 28 U.S.C. § 1404(a).25
On February 16, 2011, Plaintiffs filed their response to Defendants’ January 18 motion.
Because Plaintiffs’ response was untimely under the local rules, the Court struck it.26 Plaintiff then
filed a motion to vacate the order striking their response. In their motion, Plaintiffs argue that their
response should be reinstated because Owens, the filer, was confused about where to file it, and, due
to the fact that Owens is an over-the-road truck driver, it is difficult for Plaintiffs to timely file
documents. According to Plaintiffs, these two facts constitute excusable neglect, which is required
under the local rules to file an untimely response.27
The Court denies both motions. Beginning with the Saline County Defendants’ motion first,
it is moot, as Plaintiffs’ case has already been transferred to the District Court of the District of
Kansas, a court that clearly has personal jurisdiction over Defendants. Accordingly, Defendants’
Rule 12(b)(2) & (3) motion is denied. As for Plaintiffs’ motion, it fails because it does not establish
excusable neglect. While the Court sympathizes with Plaintiffs, the fact remains that “pro se parties

25
None of the parties discuss what effect this transfer has on the law that the Court applies in this case. Under
§ 1404(a), the transferee court is to apply the law of the transferor court. See, e.g., Ferens v. John Deere Co., 494 U.S.
516, 523 (1990). Therefore, because Plaintiff brought its suit in Texas, the Court must apply Texas law. Pursuant to
Texas’ conflict of law principles, courts are to apply the non-substantive, procedural rules of Texas. See, e.g., Arkoma
Basin Exploration Co., Inc. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 (Tex. 2008). “The statute of limitations
is a procedural issue.” Hill v. Perel, 923 S.W.2d 636, 639 (Tex. Ct. App. 1995). Therefore, the Court will apply Texas
law when deciding what is the applicable statute of limitation for Plaintiffs’ claims. However, as for the substantive
issues, assuming there is a conflict between Kansas and Texas on such issues, the Court will apply Kansas law because
that is the state with the most significant relationship to the claims asserted by Plaintiffs. See, e.g., Torrington Co. v.
Stutzman, 46 S.W.3d 829, 848 (Tex. 2000) (applying the Restatement’s “most significant relationship” test).
26

See Doc. 25.

27

See D. Kan. R. 7.4(b).

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[must] follow the same rules of procedure that govern other litigants.”28 As a result, the Court denies
Plaintiffs’ motion to reinstate their response.
The Court notes, though, that even if it were to grant Plaintiffs’ motion, Plaintiffs’ response
would not impact this case in anyway. The Court has reviewed Plaintiffs’ response, and finds that
it sets forth no basis for altering the District Court for the Northern District of Texas’ conclusion that
this Court is the proper venue to hear this matter.
Defendants’ Motions to Dismiss (Docs. 18, 30, 48, 50) and Plaintiffs’ Motion to Strike the First
Motion to Dismiss That Was Filed (Doc. 40)
Plaintiffs responded to the filing of the first motion to dismiss by filing a motion to strike,
as opposed to a response. The Court has reviewed Plaintiffs’ motion and has determined that it
provides no basis for striking the first motion to dismiss. As a result, the Court denies Plaintiffs’
motion, and moves on to address the substance of both the first motion to dismiss, as well as the
other ones that were subsequently filed.
Before applying the Rule 12(b)(6) analysis to Plaintiffs’ claims, though, the Court must first
determine if there are any claims over which it lacks subject-matter jurisdiction.29 Under the
Eleventh Amendment, the State of Kansas, governmental entities that act as arms of the state, and
state officials sued in their official capacities are immune from suit in federal court, irrespective of
the relief sought, unless the state has waived its immunity or Congress has abrogated it.30 Here,

28

Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (internal quotation marks omitted).

29

See, e.g., In re Aramark Leisure Servs., 523 F.3d 1169, 1173 (10th Cir. 2008).

30

See, e.g., V-1 Oil Co. v. Utah State Dep’t of Pub. Safety, 131 F.3d 1415, 1420-21 (10th Cir. 1997).

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Kansas has not waived its immunity,31 and Congress has not abrogated it.32 As a result, the Court
clearly lacks jurisdiction to entertain Plaintiffs’ claims against the State of Kansas. As for Plaintiffs’
claims against the Kansas Highway Patrol (“KHP”) and the Linn County District Court (“LCDC”),
it is a closer call. To determine whether these governmental entities are entitled to Eleventh
Amendment immunity, the Court must consider the following four factors: (1) the character ascribed
to the entity under state law; (2) the autonomy accorded to the entity under state law; (3) the entity’s
finances; and (4) whether the entity in question is concerned primarily with local or state affairs.33
Applying the above factors to the KHP, the Court concludes that it is protected by the
Eleventh Amendment. Among others things, KHP members have the authority to enforce the state’s
laws anywhere within the state, irrespective of county lines,34 all of the equipment supplied to KHP
members remain property of the state,35 and KHP members are subject to the Kansas civil service
act.36 Thus, in light of these facts, it is clear that the primary purpose of the KHP is to serve the State
of Kansas, as opposed to just a local municipality or county. As a consequence, the Court concludes

31

See K.S.A. 75-6116(g). Based on Plaintiffs’ motion to strike, it appears that it is their position that Eleventh
Amendment immunity was waived by the Saline County Defendants’ filing for, and receiving, a transfer of Plaintiffs’
case to this Court. Plaintiffs’ position is erroneous. Unlike the cases cited by Plaintiffs, this case does not involve a
removal of the plaintiff’s action from a state court to a federal court, but rather a transfer from one federal court to
another. See, e.g., Beckham v. Nat’l R.R. Passenger Corp., 569 F. Supp. 2d 542, 552-56 (D. Md. 2008) (rejecting the
same argument that is made by Plaintiffs).
32

See, e.g., Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 (10th Cir. 2010) (section 1983
does not abrogate a state’s sovereign immunity); Lape v. Pennsylvania, 157 F. App’x 491, 497 n.5 (3d Cir. 2005) (RICO
does not abrogate a state’s sovereign immunity); Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1196 (10th Cir. 1998)
(section 1985 does not abrogate a state’s sovereign immunity); Cerrato v. S.F. Cmty. Coll. Dist., 26 F.3d 968, 975 (9th
Cir. 1994) (section 1986 does not abrogate a state’s sovereign immunity).
33

See, e.g., Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1253 (10th Cir. 2007).

34

See K.S.A. 74-2108.

35

See K.S.A. 74-2111.

36

See K.S.A. 74-2114(b).

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that the KHP is immune from suit in federal court.37 Additionally, due to the previous conclusion,
the Court also finds that the individual members of the KHP are immune from Plaintiffs’ damage
claims in so far as they are asserted against them in their official capacity.
As for the LCDC, it too is immune from suit. The question regarding the applicability of the
Eleventh Amendment to this entity is made trickier by the fact that the LCDC receives a
considerable amount of funding from Linn County.38 Nevertheless, despite this fact, the Court
agrees with the Third and Ninth Circuits’ decision that these entities are entitled to Eleventh
Amendment immunity.39 Notably, the LCDC, like every other county district court in the state, is
considered by the state’s constitution to be part of the state’s “one court of justice.”40 Furthermore,
it is subject to the Kansas Supreme Court’s general administrative authority,41 which includes,
among other things, the ability to transfer cases from one district to another.42 Accordingly, the
Court concludes that the LCDC is immune from suit in federal court.

37

See Steadfast Ins. Co., 507 F.3d at 1253 (“If a state entity is more like a political subdivision – such as a
county or city – than it is like an instrumentality of the state, that entity is not entitled to Eleventh Amendment
immunity.”). This conclusion is consistent with the one reached by other courts. See, e.g., Keller v. California, 234 F.
App’x 699, 699 (9th Cir. 2007).
38

See K.S.A. 20-348.

39

See Benn v. First Judicial Dist. of Penn., 426 F.3d 233, 240-41 (3d Cir. 2005); Greater L.A. Council on
Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987); see also Myers v. Sup. Ct. of Kan., 2006 WL 276399, at
*4 (D. Kan. Feb. 1, 2006) (finding that the Fourth Judicial District of Kansas is entitled to Eleventh Amendment
immunity); cf. Harris v. Mo. Ct. App., W. Dist., 787 F.2d 427, 429 (8th Cir. 1986) (finding that a state appellate court
is an entity that is protected by the immunity afforded by the Eleventh Amendment).
40

See Kan. Const. art. 3, § 1.

41

See id.

42

See K.S.A. 20-318(b).

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In addition to the afore stated entities, John Sutherland and Judge Smith are entitled to
Eleventh Amendment immunity in so far as Plaintiffs are asserting damage claims against them in
their official capacity.43
In sum, the Court finds that the Eleventh Amendment strips it of jurisdiction over Plaintiffs’
damage claims against the KHP troopers, John Sutherland, and Judge Smith in their official
capacities and over all of Plaintiffs’ claims against the State of Kansas, the KHP, and the LCDC.
With regard to the rest of the defendants, however, the Court concludes that it has jurisdiction to
entertain the claims against them.
Plaintiffs’ claims against the “unknown re-issuer of bogus warrant,” Troopers Hammond,
Rohr, and Taylor, the Saline County Defendants, Roy Palmer, and Palmer Truck and Trailer Repair
should be dismissed under 12(b)(6). First, Plaintiffs’ § 1983 claim, as well as their state law claims,
are barred by the applicable statute of limitation, as there is no allegation that these defendants took
any action against Plaintiffs after December 20, 2006.44 Second, to the extent that Plaintiffs are
attempting to hold these Defendants liable under sections 1985 or 1986 or RICO, their efforts fail
because such claims are implausible. To succeed on a 1985 or 1986 claim, the following four
factors must be satisfied: “(1) a conspiracy; (2) to deprive plaintiff of equal protection or equal

43

See, e.g., Nielander v. Bd. of Cnty. Comm’rs of Cnty of Republic, Kan., 582 F.3d 1155, 1164 (10th Cir. 2009)
(county attorney is entitled to Eleventh Amendment immunity); Schroeder v. Kochanowski, 311 F. Supp. 2d 1241, 1256
(D. Kan. 2004) (county district court judge is entitled to Eleventh Amendment immunity).
44

See, e.g., Brockman v. Tex. Dep’t of Crim. App., 397 F. App’x 18, 21 (5th Cir. 2010) (two-year statue of
limitation applies to § 1983 claims); Tex Civ. Prac. & Rem. Code Ann. § 16.003(a) (two-year statute of limitation applies
to “conversion of personal property, taking or detaining the personal property of another, personal injury forcible entry
and detainer, and forcible detainer”)). The result would be no different if the Court was to apply Kansas law. See, e.g.,
Lyons v. Kyner, 367 F. App’x 878, 882 (10th Cir. 2010) (two-year statute of limitation applies to § 1983 claim); K.S.A.
60-513(a)(4) (two-year statute of limitation applies to claims not arising from a contract or other action described in
Chapter 60, Article 5, of the Kansas Statutes); K.S.A. 60-514 (one-year statute of limitation applies to assault, battery,
malicious prosecution, or false imprisonment claim).

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privileges and immunities; (3) an act in furtherance of the conspiracy; and (4) an injury or
deprivation resulting therefrom.”45 For a RICO claim, the plaintiff must establish: “(1) conduct (2)
of an enterprise (3) through a pattern (4) of racketeering activity.”46 Here, Plaintiffs’ theory of
recovery under the cited statutes – that each of the named Defendants was part of an enterprise or
“conspiracy to preserve and expand the treasuries of the STATE OF KANSAS and the entities
involved in this matter at hand to unsuspecting individuals by breaking their own state civil,
criminal, rules of proper procedures, policies, and motor vehicle stops, and non resident violator
statutes of fair notice, and their own state constitution”47 – is outlandish. It simply defies logic to
believe that government employees and independent parties across Kansas have conspired together
to illegally deprive persons in the state of their property.48 As a consequence, these Defendants’
motions to dismiss the claims against them are granted.49
45

Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993).

46

Deck v. Engineered Laminates, 349 F.3d 1253, 1257 (10th Cir. 2003) (internal quotation marks omitted).

47

See Doc. 1, p. 3.

48

In addition to the fact that it is irrational to believe, based on Plaintiffs complaint, that a state-wide conspiracy
exists, Plaintiffs’ section 1985 and 1986 claims also fail because these two statutory causes of action only reach
conspiracies “ ‘motivated by some racial, or perhaps otherwise class-based, invidiously discriminatory animus,’ ” Kirby
v. Dallas Cnty. Adult Prob. Dep’t, 359 F. App’x 27, 35 (10th Cir. 2009) (quoting Tilton, 6 F.3d at 686), and Plaintiff has
not alleged discriminatory animus, id.
49

The Court is cognizant of the fact that the “unknown re-issuer of bogus warrant” and Saline County, who is
not listed in the case caption, but is nevertheless accused of violating Owens’ rights in the body of Plaintiffs’ complaint,
did not file motions to dismiss. This fact is of no consequence, though, as “ ‘[a] sua sponte dismissal under Rule 12(b)(6)
is not reversible error when it is ‘patently obvious’ that the plaintiff could not prevail on the facts alleged, and allowing
him an opportunity to amend his complaint would be futile.’ ” Mavrovich v. Vanderpool, 427 F. Supp. 2d 1084, 1089
(D. Kan. 2006) (quoting McKinney v. State of Okla. Dep’t of Human Servs., 925 F.2d 363, 365 (10th Cir. 1991)). In
addition to the claims discussed above, it appears that Plaintiffs may also be attempting to assert claims under the
following federal statutes: 42 U.S.C. § 1988, 28 U.S.C. §§ 1331, 1343, & 1346, and 18 U.S.C. §§ 231, 241, 242, 373,
659, 875, 880, 1201, 1202, 1341, 1343, 1346, 1951, 1952, 1956, 1957, 1959, 1961, 2312, 2313, 2314, 2315, & 2316.
Circuit court precedent demonstrates that 42 U.S.C. § 1988, 28 U.S.C. §§ 1343 & 1346, and 18 U.S.C. §§ 241, 242, 875,
1341, 1343, 1346, & 1951, do not create independent causes of action. See, e.g., O’Connor v. St. John’s Coll., 290 F.
App’x 137, 139 n.1 (10th Cir. 2008) (42 U.S.C. § 1988); Lynch v. Bulman, 2007 WL 2993612, at *2 (10th Cir. Oct. 15
2007) (18 U.S.C. §§ 241 & 242); Clements v. Chapman, 189 F. App’x 668, 692 (10th Cir. 2006) (18 U.S.C. §§ 875,
1341, 1343, & 1951); Strong v. Ford, 1997 WL 120757, at *1 (9th Cir. Mar. 17, 1997) (28 U.S.C. §§ 1343 & 1346);

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With regard to the remaining claims against John Sutherland, Judge Richard Smith, and Linn
County, they too should also be dismissed. Sutherland is entitled to absolute immunity from
Plaintiffs’ claims because there are no allegations that the actions he took were not intimately
connected with the judicial phase of a criminal process, i.e., the prosecution of Owens.50 Likewise,
Judge Smith is entitled to absolute immunity because Plaintiffs’ alleged injuries arise out of actions
that Smith took while acting in a judicial capacity in a case that he did not clearly lack jurisdiction
over.51 Lastly, the claims against Linn County fail for a combination of three reasons. First, none
of the actions taken by Sutherland, Judge Smith, or the LCDC may be attributed to the county, as
these parties are considered to be state actors or entities.52 Second, to the extent Plaintiffs’ claims
against the County are predicated upon the actions of the “unknown issuer of bogus warrant” they
are barred by the applicable statute of limitation because the unknown issuer’s actions took place
more than four years before suit was filed. Third, any claim that Plaintiffs could have against the
County for actions it took are implausible based on the factual allegations contained in Plaintiffs’

Reynolds v. United States, 643 F.2d 707, 709 (10th Cir. 1981) (28 U.S.C. § 1346). As for the remaining statutes cited
by Plaintiffs in their complaint, which, with one exception, are all criminal statutes, the Court concludes that they too
do not provide independent causes of action. See, e.g., Kissi v. Panzer, 664 F. Supp. 2d 120, 127 (D.D.C. 2009)
(reaching the same conclusion with regard to 18 U.S.C. §§ 1952 & 1957); Crawford v. Adair, 2008 WL 2952488, at *1
(E.D. Va. July 29, 2008) (reaching the same conclusion with regard to 18 U.S.C. § 2314); Brown v. Montana, 442 F.
Supp. 2d 982, 988 (D. Mont. 2006) (reaching the same conclusion with regard to 18 U.S.C. § 1201); Piorkowski v.
Parziale, 2003 WL 21037353, at *8 (D. Conn. May 7, 2003) (reaching the same conclusion with regard to 18 U.S.C.
§ 2312); Dubai Islamic Bank v. Citibank, N.A., 126 F. Supp. 2d 659, 668 (S.D.N.Y. 2000) (reaching the same conclusion
with regard to 18 U.S.C. § 1956); Mead Corp. v. United States, 490 F. Supp. 405, 407 (D.D.C. 1980) (reaching the same
conclusion with regard to 28 U.S.C. § 1331). As a result, to the extent Plaintiffs are attempting to assert claims under
these federal statutes, their efforts fail.
50

See, e.g., Eidson v. Burrange, 113 F. App’x 860, 863 (10th Cir. 2004) (citing Gagan v. Norton, 35 F.3d 1473,
1475 (10th Cir. 1994)).
51

See, e.g., Eidson, 113 F. App’x at 862 (citing Mireles v. Waco, 502 U.S. 9, 11-12 (1991)).

52
See Schroeder, 311 F. Supp. 2d at 1254, 1256 (county attorneys and county district court judges are state
actors); Myers, 2006 WL 276399, at *4 (county district court is a state entity).

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complaint. Accordingly, the Court concludes that the claims against these Defendants should also
be dismissed.53
IT IS THEREFORE ORDERED that Defendants’ 12(b) motion to dismiss (Doc. 9) is
hereby DENIED AS MOOT.
IT IS FURTHER ORDERED that Defendants’ motion to dismiss (Doc. 18) is hereby
GRANTED.
IT IS FURTHER ORDERED that Defendants’ motion to dismiss and/or for judgment on
the pleadings (Doc. 30) is hereby GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ motion to strike (Doc. 40) is hereby DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ motion to vacate Court order striking certain
documents (Doc. 41) is hereby DENIED.
IT IS FURTHER ORDERED that Defendants’ motion to dismiss (Doc. 48) is hereby
GRANTED.
IT IS FURTHER ORDERED that Defendants’ motion to dismiss (Doc. 50) is hereby
GRANTED.
IT IS SO ORDERED.
Dated this 10th day of May, 2011.

/s Eric F. Melgren
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

53

John Sutherland and Linn County also argue that Plaintiffs’ claim should be dismissed because of the RookerFeldman doctrine. Because the Court concludes that the claims against these Defendants should be dismissed for
alternative reasons, the Court does not address this argument. See, e.g., Mehdipour v. Matthews, 386 F. App’x 775, 779
(10th Cir. 2010) (declining to address the defendant’s Rooker-Feldman argument because the plaintiff’s claims could
be dismissed on other grounds).

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