Leiser v. Moore et al
MEMORANDUM AND ORDER granting in part and denying in part 21 Motion for Judgment on the Pleadings; denying 25 Motion to Strike; granting 26 Motion for Judicial Pardon for Late Filing. See order for details. Signed by District Judge Daniel D. Crabtree on 9/15/17. Mailed to pro se party Joseph W. Leiser by regular mail (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSEPH W. LEISER,
Case No. 16-4110-DDC-KGS
SHANNON MOORE and
MEMORANDUM AND ORDER
Plaintiff Joseph W. Leiser filed this action pro se1 in the District Court of Coffey County,
Kansas. Defendants Shannon Moore and Randy Rogers removed the case to federal court. Doc.
1. This matter comes before the court on defendants’ Motion for Judgment on the Pleadings.
Doc. 21. For reasons explained below, the court concludes that plaintiff’s federal claims fail to
state a claim for relief. The court thus dismisses plaintiff’s federal claims under Fed. R. Civ. P.
12(c). The court declines to exercise supplemental jurisdiction over plaintiff’s state law claims.
So, the court remands the case to the District Court of Coffey County, Kansas.
Defendants’ Motion to Strike and Plaintiff’s “Motion for Judicial Pardon”
Before turning to defendants’ Motion for Judgment on the Pleadings, the court first
addresses two other pending motions—one filed by plaintiff and the other filed by defendants.
Defendants have filed a Motion to Strike Plaintiff’s Response to Defendants’ Motion for
Judgement on the Pleadings. Doc. 25. Defendants assert that the court should strike plaintiff’s
Because plaintiff brings this lawsuit pro se, the court construes his pleadings liberally and holds
them to a less stringent standard than formal pleadings drafted by lawyers. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
response because it is untimely, redundant, and immaterial. Doc. 25 at 2. Indeed, plaintiff’s
response was untimely—he served it three days past the deadline for responding.
Defendants filed their Motion for Judgment on the Pleadings on March 17, 2017. Doc.
21. Under our court’s local rules, plaintiff had 21 days to file a response to that Motion. See D.
Kan. Rule 6.1(d)(2) (“Responses to . . . motions for judgment on the pleadings must be filed and
served within 21 days.”). So, plaintiff’s response was due by April 11, 2017. Plaintiff’s
response time was extended by three additional days under Fed. R. Civ. P. 6(d), because
defendants served their motion by mail. See Doc. 21 at 2 (stating in the certificate of service that
defendants served plaintiff by “first-class mail, postage prepaid” to plaintiff’s address at the
Winfield Correctional Facility). So, with these three additional days, plaintiff’s response was
due on April 14. But, plaintiff did not serve his response until April 17. See Doc. 23 at 5
(certificate of service).
In response to defendants’ Motion to Strike, plaintiff has filed a “Motion for Judicial
Pardon for Late Filing.” Doc. 26. This motion explains why plaintiff was unable to file his
response in a timely fashion. It also asks the court “to excuse the late filing due to circumstances
out of his control.” Id. at 1. The court thus construes plaintiff’s “Motion for Judicial Pardon for
Late Filing” as a motion for leave to file his response out of time.
Plaintiff asserts that on March 24, 2017, prison officials transferred him without notice to
the El Dorado Correctional Facility (“EDCF”). Plaintiff states that he initially was placed in
maximum custody with no library time. But, on April 5, 2017, plaintiff was moved to “low
medium custody.” Doc. 26 at 1. Plaintiff says he received defendants’ Motion for Judgment on
the Pleadings on April 1, 2017, but that he was unable to use the library from April 3 to April 13,
after a facility-wide lockdown following a violent stabbing in the prison. Plaintiff asserts that he
was unable to write his response until April 14, 2017. He also asserts that April 17, 2017, was
the first time that he was able to “e-file” his response with the court. Id.
Our local rules provide that a party “who fails to file a responsive brief or memorandum
within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or
memorandum” “[a]bsent a showing of excusable neglect[.]” D. Kan. Rule 7.4(b). Excusable
neglect “is a somewhat elastic concept and is not limited strictly to omissions caused by
circumstances beyond the control of the movant.” Pioneer Inv. Servs. Co. v. Brunswick Assocs.
L.P., 507 U.S. 380, 392 (1993) (citations and internal quotation marks omitted). But, a party’s
“inadvertence, ignorance of the rules, or mistakes concerning the rules do not usually constitute
‘excusable’ neglect.” Id. The determination of whether neglect is excusable “is at bottom an
equitable one, taking account of all relevant circumstances surrounding the party’s omission.”
Id. at 395. The factors to consider when making this determination include “the danger of
prejudice to the [opposing party], the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was within the reasonable control of
the movant, and whether the movant acted in good faith.” Id.
After considering the relevant factors, the court exercises its discretion to grant plaintiff
leave to file his response out of time. The length of delay here is slight. Plaintiff filed his
response three days past the deadline. His late filing has had little to no effect on the judicial
proceedings because this action is in its early stages. Circumstances outside plaintiff’s control
appear to have caused the delay—he was transferred to a new prison facility without notice, and
he was unable to access the prison library to prepare his response until the day before the
response was due. Plaintiff seems to have acted in good faith, and nothing suggests that allowing
plaintiff to file a late response would prejudice defendants. These factors favor a finding of
excusable neglect, so the court grants plaintiff’s request to file his response out of time. The
court also denies defendants’ Motion to Strike Plaintiff’s Response on the basis that it is
Defendants also assert that the court should strike plaintiff’s response because it contains
redundant, immaterial, impertinent, or scandalous matter. Federal Rule of Civil Procedure 12(f)
provides that “[t]he court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). But, courts disfavor
striking pleadings and “any doubt as to the utility of the material to be stricken should be
resolved against the motion to strike.” Landrith v. Gariglietti, No. 11-2465-KHV, 2012 WL
171339, at *1 (D. Kan. Jan. 19, 2012), aff’d, 505 F. App’x 701 (10th Cir. 2012) (citations
Defendants argue that plaintiff’s response “contains no factual assertions or relevant case
law controverting any of defendants’ contentions or arguments.” Doc. 25 at 3. Although
plaintiff fails to address all of defendants’ arguments in their Motion for Judgment on the
Pleadings, plaintiff responds to others, asserting that he has stated a claim for relief under federal
and state law. The court resolves any doubts about the utility of plaintiff’s response against the
motion to strike and concludes that plaintiff’s failure to address all the issues raised in
defendants’ motion does not render his pleading “redundant, immaterial, impertinent, or
scandalous.” The court also recognizes that plaintiff has filed his response pro se. So, the court
must construe his pleadings liberally. Hall, 935 F.2d at 1110. For these reasons, the court denies
defendants’ Motion to Strike.
Motion for Judgment on the Pleadings
The court now turns to defendants’ Motion for Judgment on the Pleadings.
A. Factual Background
Plaintiff’s Petition alleges the following facts. The court accepts them as true and views
them in the light most favorable to plaintiff. Ramirez v. Dep’t of Corr., 222 F.3d 1238, 1240
(10th Cir. 2000).
On May 26, 2014, plaintiff was incarcerated in the Jefferson County Detention Center in
Mt. Vernon, Illinois. Plaintiff was awaiting extradition to Coffey County, Kansas. Before
extradition, Shannon Moore, a Jail Administrator employed by Coffey County, asked the
Jefferson County Detention Center to conduct medical tests on plaintiff. Ms. Moore
commissioned two medical examinations—a chest x-ray and CT scan—to determine if plaintiff
sustained injury when United States Marshals tasered him for “an extreme length of time.” Doc.
1-1 at 2. The tests showed plaintiff had bone lesions and possibly cancer.
Ms. Moore and Randy Rogers, the Coffey County Sheriff, disclosed the results of the
tests to the Coffey County Hospital and to plaintiff’s friends and family. Plaintiff never
consented to disclosure of his medical records. Plaintiff’s Petition asserts several claims based
on defendants’ disclosure of his medical information, including violations of his constitutional
rights and the Health Insurance Portability and Accountability Act (“HIPAA”).
B. Legal Standard
A party may move for judgment on the pleadings under Fed. R. Civ. P. 12(c) after the
pleadings are closed but early enough not to delay trial. Fed. R. Civ. P. 12(c). Courts evaluate a
Rule 12(c) motion under the same standard that governs a Rule 12(b)(6) motion to dismiss.
Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002) (citing Atl. Richfield Co.
v. Farm Credit Bank, 226 F.3d 1138, 1160 (10th Cir. 2000)).
The court will grant a motion for judgment on the pleadings only when the factual
allegations in the Complaint fail to “state a claim to relief that is plausible on its face,” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007), or when an issue of law is dispositive, Neitzke v.
Williams, 490 U.S. 319, 326 (1989). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556). “Under this standard, ‘the complaint must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual support for these claims.’” Carter v.
United States, 667 F. Supp. 2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).
Although the court must assume that the factual allegations in the complaint are true, it is
“not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 1263
(quoting Iqbal, 556 U.S. at 678). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” are not enough to state a claim for relief. Iqbal, 556
U.S. at 678. Instead, a plaintiff must plead “more than labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. This requires a
plaintiff to plead factual allegations that “raise a right to relief above the speculative level . . . on
the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id.
The court also construes the pro se plaintiff’s pleadings liberally but does not assume the
role as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Plaintiff’s pro
se status also does not excuse him from “the burden of alleging sufficient facts on which a
recognized legal claim could be based.” Id. Nor is plaintiff relieved from complying with the
rules of the court, if he fails to comply with them, or facing the consequences of noncompliance.
Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276,
1277 (10th Cir. 1994)).
Defendants’ Motion for Judgment on the Pleadings asks the court to dismiss plaintiff’s
Petition because each of plaintiff’s claims fails as a matter of law. Plaintiff’s Petition asserts
three causes of action: (1) Count I, violation of plaintiff’s Fourth Amendment rights; (2) Count
II, breach of federal and state HIPPA laws; and (3) Count III, violation of federal and state
privacy acts and tort laws. Doc. 1-1 at 3–4. The court addresses each of plaintiff’s claims in
1. Violation of Fourth Amendment (Count I)
Defendants assert that plaintiff’s Fourth Amendment claim fails as a matter of law
because defendants are not liable under 42 U.S.C. § 1983. Specifically, defendants contend that
they had a duty to determine whether plaintiff required medical care and that plaintiff had no
expectation of privacy in the exchange of his medical records between jail personnel.
Private citizens can assert a civil action for deprivation of rights “secured by the
Constitution and laws” of the United States under 42 U.S.C. § 1983. To assert a § 1983 claim, a
plaintiff “must allege the violation of a right secured by the Constitution . . . and must show that
the alleged deprivation was committed by a person acting under color of state law.” West v.
Atkins, 487 U.S. 42, 48 (1988); see also Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir.
1992). Here, plaintiff asserts that defendants, acting under color of state law, illegally searched
and seized his medical records in violation of the Fourth Amendment.
The Supreme Court has held that the Fourth Amendment prohibition against
unreasonable searches and seizures does not apply to prisoners in certain circumstances. See
Hudson v. Palmer, 468 U.S. 517, 529–30 (1984) (finding prisoners do not have a Fourth
Amendment right to privacy in their cells); see also Hayes v. Marriott, 70 F.3d 1144, 1146 (10th
Cir. 1995) (concluding prisoners retain a limited right to bodily privacy under the Fourth
Amendment). Although the Fourth Amendment provides inmates only limited privacy
protections, the Tenth Circuit has recognized that there is a “constitutional right to privacy that
protects an individual from the disclosure of information concerning a person’s health.” Herring
v. Keenan, 218 F.3d 1171, 1173 (10th Cir. 2000).
But, a prisoner’s right to privacy in his medical information is less than absolute. A
prison policy may encroach on an inmate’s constitutional right if the regulation “is reasonably
related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). Here,
defendants had a legitimate interest in knowing the results of plaintiff’s medical tests. Indeed,
pretrial detainees are guaranteed adequate medical care under the Fourteenth Amendment’s Due
Process Clause. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). And, defendants
needed to know from the test results if plaintiff would require medical care at the Coffey County
facility after his extradition there. It was also reasonable for defendants to communicate the
results between various prison officials and medical personnel. Indeed, “assuring that prison
inmates receive necessary medical attention entails cooperation between non-medical and
medical prison personnel.” Keltner v. Bartz, No. 13-3022-SAC, 2013 WL 761157, at *3 (D.
Kan. Feb. 27, 2013). The court thus concludes that plaintiff’s allegations about the testing
conducted and communications about the results of that testing between prison and medical
personnel fail to state an actionable Fourth Amendment violation.
Plaintiff’s Petition also asserts that defendants violated his rights when they
communicated the test results to plaintiff’s family and friends. Defendants argue that, even if
defendants violated plaintiff’s constitutional rights by doing so, qualified immunity bars
“[G]overnment officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). “Qualified immunity balances two important interests—the need to
hold public officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009). “The qualified immunity inquiry has two
prongs: whether a constitutional violation occurred, and whether the violated right was ‘clearly
established’ at the time of the violation.” Weise v. Casper, 593 F.3d 1163, 1166–67 (10th Cir.
2010) (citing Pearson, 555 U.S. at 232). Courts are free to address either prong first “in light of
the circumstances of the particular case at hand.” Id. (quoting Pearson, 555 U.S. at 236).
Addressing the clearly established question first “may avoid the risk of deciding a case
incorrectly given insufficient briefing on the constitutional violation question.” Id. Because it is
unclear whether defendants’ alleged conduct here violated plaintiff’s constitutional rights, the
court first addresses whether plaintiff’s rights were clearly established at the time of the
A plaintiff’s right is clearly established if “there [is] a Supreme Court or Tenth Circuit
decision on point, or the clearly established weight of authority from other courts found the law
to be as the plaintiff maintains.” Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011)
(quoting Stearns v. Clarkson, 615 F.3d 1278, 1282 (10th Cir. 2010)). “A plaintiff cannot simply
identify a clearly established right in the abstract and allege that the defendant has violated it.”
Herring, 218 F.3d at 1176.
Here, plaintiff cites no Supreme Court or Tenth Circuit case supporting the proposition
that plaintiff possessed a right to privacy in medical test results that forbade disclosing those
results to friends and family and that this right was a clearly established constitutional right. The
court has not found any case supporting this right either.
The court recognizes that the Tenth Circuit has held that a probationer adequately alleged
a violation of a constitutional right to privacy when his federal probation officer disclosed his
HIV status to his sister and his employer. Herring v. Keenan, 218 F.3d 1171, 1176 (10th Cir.
2000). But, the court has found no case holding that a prisoner in custody can allege a
constitutional violation based on the disclosure of a cancer diagnosis to the prisoner’s family and
friends, as plaintiff alleges here. Indeed, other circuit courts have held that prisoners have no
constitutional right to absolute medical confidentiality. See, e.g., Franklin v. McCaughtry, 110
F. App’x 715, 719 (7th Cir. 2004) (“Prisoners, though, at best have very limited privacy rights,
and we have not previously held in a published opinion that they enjoy a constitutional right to
privacy in their medical information.” (citations omitted)); Franklin v. Dist. of Columbia, 163
F.3d 625, 637–38 (D.C. Cir. 1998) (holding that no right to privacy in medical records exists for
Spanish-speaking prisoners who had to communicate their medical information through
interpreters because the court “cannot see how a prisoner’s right to medical confidentiality can
be derived from the Constitution”); Anderson v. Romero, 72 F.3d 518, 523 (7th Cir. 1995)
(noting that the court was unable to find “any appellate holding that prisoners have a
constitutional right to the confidentiality of their medical records”).
The court also recognizes that two circuit courts have found that prisoners alleged a
constitutional violation based on the disclosure of medical information but, in both cases, the
defendants purposefully disseminated information about the prisoner’s HIV-positive status that
was unrelated to legitimate penological interests and thereby exposed the prisoners to potential
discrimination, hostility, or violence. See Doe v. Delie, 257 F.3d 309, 317 (3d Cir. 2001); see
also Powell v. Schriver, 175 F.3d 107, 112–13 (2d Cir. 1999). Plaintiff’s allegations here are not
at all similar to those in Delie or Schriver. Thus, the court cannot conclude that the
constitutional violation that plaintiff alleges was clearly established at the time when the
purported violation allegedly occurred.
Because plaintiff cannot merely allege a violation of an abstract right, he “has failed to
carry [his] burden under the threshold inquiry for qualified immunity.” Douglas v. Dobbs, 419
F.3d 1097, 1103 (10th Cir. 2005). For these reasons, qualified immunity applies. The court thus
dismisses plaintiff’s constitutional claim.
2. Violation of Federal and State HIPAA Laws (Count II)
Defendants next ask the court to dismiss Count II because HIPPA provides no private
right of action. Congress enacted HIPAA to establish “national standards for protection of the
privacy of individually identifiable health and medical information.” Howard v. Douglas Cty.
Jail, No. 09-3085-SAC, 2009 WL 1504733, at *3 (D. Kan. May 28, 2009) (citation and internal
quotation marks omitted). HIPAA allows for both civil and criminal penalties for unlawful
disclosures of medical information. Keltner, 2013 WL 761157, at *4. However, the Secretary of
the Department of Health and Human Services enforces and investigates HIPAA violations, not
private individuals. See Logan v. Dep’t of Veterans Affairs, 357 F. Supp. 2d 149, 155 (D.D.C.
2004). Courts thus have concluded that HIPPA does not support a private right of action. See
Wilkerson v. Shinseki, 606 F.3d 1256, 1269 n.4 (10th Cir. 2010) (“Any HIPAA claim fails as
HIPAA does not create a private right of action for alleged disclosures of confidential medical
information.”); see also Keltner, 2013 WL 761157, at *4 (“[A]ll courts to consider the matter
have held that HIPAA does not create a private right of action.”). Because plaintiff does not
have a private right of action, the court dismisses plaintiff’s claim under the federal HIPAA law.
Plaintiff also asserts a claim under state HIPAA laws. Plaintiff never identifies the
specific state statute that he asserts defendants violated. Construing plaintiff’s Petition liberally,
the court could consider plaintiff’s state law claim as one under the Kansas Health Information
Technology Act (“KHITA”), Kansas’s statutory equivalent to HIPAA. Kan. Stat. Ann. §§ 656821–65-6835. But, for the reasons explained below, the court exercises its discretion to decline
supplemental jurisdiction over plaintiff’s state law claims. So, even if the court construed
plaintiff’s Petition as alleging a violation of KHITA and even if that act provides a private right
of action, the court does not address that claim because it declines to exercise supplemental
3. Violation of Privacy Acts and Tort Laws (Count III)
Plaintiff alleges that defendants violated “[f]ederal and [s]tate [p]rivacy acts” and “[t]orts
[l]aws[,]” and that defendants unlawfully invaded his privacy. Doc. 1-1 at 4. Plaintiff does not
identify the federal privacy act or any federal tort laws that defendants purportedly violated.
Nevertheless, the court concludes that qualified immunity bars any such claim. A government
official may lose his or her qualified immunity by “violat[ing] clearly established statutory . . .
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982); see also Davis v. Scherer, 468 U.S. 183, 194 n.12 (1984) (“officials become liable
for damages only to the extent that there is a clear violation of the statutory rights that give rise
to the cause of action for damages”). Because plaintiff has failed to allege a violation of a
clearly established statutory right, plaintiff’s federal privacy act and federal tort claims are barred
by qualified immunity.
4. The Court Declines to Exercise Supplemental Jurisdiction over
Plaintiff’s State Law Claims.
Although filed in state court, plaintiff’s Petition invokes jurisdiction under 28 U.S.C. §
1343 and 42 U.S.C. § 1983.2 Defendants removed the lawsuit invoking the court’s federal
question jurisdiction. Doc. 1 at 3, ¶ 9 (citing 28 U.S.C. § 1331 that confers federal courts with
“original jurisdiction over all civil actions arising out of the Constitution, laws, or treatises of the
United States”). But, as explained above, the court has dismissed all of the federal claims that
plaintiff asserts and over which the court had original jurisdiction. Under 28 U.S.C. § 1367(c),
the court may decline to exercise supplemental jurisdiction over state law claims if it has
“dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). So, now,
the court must decide whether to exercise supplemental jurisdiction over the remaining state law
The decision whether to exercise supplemental jurisdiction is one committed to a district
court’s sound discretion. Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1138–39 (10th Cir.
2004). Section 1367 “reflects the understanding that, when deciding whether to exercise
supplemental jurisdiction, ‘a federal court should consider and weigh in each case, and at every
stage of the litigation, the values of judicial economy, convenience, fairness and comity.’” City
of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 172–73 (1997) (quoting Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 (1988)). “[I]n the usual case in which all federal-law claims
are eliminated before trial, the balance of factors to be considered under the [supplemental]
Plaintiff’s Petition never alleges that diversity jurisdiction exists. It also alleges no facts about the
parties’ citizenship that might establish diversity jurisdiction.
jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward
declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ.,
484 U.S. at 350 n.7; see also Tonkovich v. Kan. Bd. of Regents, 254 F.3d 941, 945 (10th Cir.
2001) (holding that where pretrial proceedings and discovery have not commenced in earnest,
“considerations of judicial economy, convenience, and fairness do not favor retaining
jurisdiction” (citations and internal quotation marks omitted)). Also, “[n]otions of comity and
federalism demand that a state court try its own lawsuits, absent compelling reasons to the
contrary.” Thatcher Enters. v. Cache Cty. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990).
Here, the court has dismissed every claim against defendants which it had original
jurisdiction to decide. The case is in its early stages. Discovery has not yet commenced and no
significant pretrial proceedings have occurred. The court thus concludes that considerations of
judicial economy, convenience, fairness, and comity weigh against the court’s exercise of
supplemental jurisdiction over plaintiff’s state law claims. The court thus exercises its discretion
and declines to exercise supplemental jurisdiction over plaintiff’s state law claims.
For reasons discussed above, the court grants in part defendants’ Motion for Judgment on
the Pleadings. Doc. 21. Even under the liberal construction standard afforded a pro se litigant’s
pleadings, plaintiff’s Petition fails to state plausible claims for relief under federal law. The
court thus dismisses those claims with prejudice. The court declines to exercise supplemental
jurisdiction over plaintiff’s state law claims and thus remands those claims to the District Court
of Coffey County, Kansas.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ Motion for
Judgement on the Pleadings (Doc. 21) is granted in part and denied in part. The court dismisses
plaintiff’s federal claims under Fed. R. Civ. P. 12(c) because they fail to state a plausible claim
for relief. The court declines to exercise supplemental jurisdiction over plaintiff’s state law
claims and thus remands the case to the District Court of Coffey County, Kansas
IT IS FURTHER ORDERED THAT defendants’ Motion to Strike Plaintiff’s Response
(Doc. 25) is denied.
IT IS FURTHER ORDERED THAT plaintiff’s “Motion for Judicial Pardon for Late
Filing” (Doc. 26), which the court has construed as a motion for leave to file plaintiff’s response
out of time, is granted.
IT IS SO ORDERED.
Dated this 15th day of September, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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