Coffman v. Hutchinson Community College

Filing 28

MEMORANDUM AND ORDER: 26 Motion to Strike is denied. 21 Motion to Dismiss is granted in part and denied in part. See order for details. Signed by U.S. Senior District Judge Sam A. Crow on 9/22/17. Mailed to pro se party Dustin D. Coffman by regular mail (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DUSTIN D. COFFMAN,
Plaintiff
vs.

Case No. 17-4070-SAC

HUTCHINSON COMMUNITY
COLLEGE, et al.,
Defendants.
MEMORANDUM AND ORDER
The docket sheet reflects that plaintiff Dustin D. Coffman sent to
the clerk’s office for filing and docketing his pro se form complaint that
referenced an “attached Petition.” ECF# 1. A review of the docket sheet
shows that what Mr. Coffman apparently intended to be his “attached
Petition” was docketed separately at ECF# 7 as his “Supplement to 1
Complaint by Plaintiff.” In this 50-page supplement, Mr. Coffman lays out
the parameters of his action as arising from his acceptance into a registered
nurse (“RN”) program at Hutchinson Community College (“HCC”), his
treatment by the educators and supervisors while in that program, and his
eventual termination from the program. In the section entitled,
“Introduction,” Mr. Coffman summarizes his different claims:
1. Violation of the plaintiff’s First amendment (retaliation); 2) violation
of the Fourteenth Amendment’s due process clause; 3) Violation of the
Fourteenth Amendment’s equal protection clause; 4) Violation of the
Kansas constitutional right to free speech; 5) Violation of Kansas’
constitutional right to due process; 6) Violation of Kansas’

constitutional right of equal protection under the law; 7) Breach of
contract; 8) Defamation (as to defendants Jay Ballard and Kathy
Sanchez); 9) Libel and slander as to defendants Jay Ballard and Kathy
Sanchez; 10) Tortious interference with a contract as to defendants
Debra Heckler, Cindy Hoss, Janet Hamilton, Kathy Sanchez and Jay
Ballard; 11) Intentional infliction of emotional distress; 12) Violation of
the Kansas Civil Rights Act; and 13) Violation of the Kansas victim
protection act.
ECF# 7, p. 1. This filing also inexplicably refers to summary judgment
procedures, but the plaintiff did not file his motion for summary judgment
until over a week later. The defendant HCC’s confusion over what constitutes
the plaintiff’s complaint and attached petition is understandable, but the
court will construe this pro se pleading liberally consistent with the Tenth
Circuit’s teachings. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005).
In her recent order, the magistrate judge pointed out that Mr.
Coffman had filed eight motions all within the first month after filing his
action. ECF# 23, p. 2. The district court denied the summary judgment
motion without prejudice. ECF # 19. Besides denying the balance of the
motions, the magistrate judge summarized the plaintiff’s suit as one brought
by a former student against the college, instructors and administrators on
allegations that his federal and state constitutional rights were violated and
state tortious acts were committed. ECF# 23. The magistrate judge also
noted that the plaintiff had “attempted service on all named defendants.” Id.
at p. 2. The magistrate judge denied the plaintiff’s request for appointment
of counsel based on his current allegations and claims, but recognized that
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her ruling “could change as the case progresses.” Id. at p. 6. Moreover, the
magistrate judge observed various procedural deficiencies with the content
and timing for some of the plaintiff’s motions and appropriately encouraged
the plaintiff to review the information for self-represented litigants available
on the court’s webpage. ECF# 23 at p. 8.
The defendant HCC has since filed two motions. In its motion to
dismiss, it argues that the plaintiff’s form complaint does not attach a
petition and does not otherwise state a claim for relief, that the court lacks
personal jurisdiction over the individual defendants due to lack of proper
service, and that the court lacks subject matter jurisdiction over any state
law tort claims due to the failure to allege compliance with the statutorily
required notice of K.S.A. 12-105(d). ECF## 21 and 22. Four days later, the
plaintiff filed a 97-page response that addresses more than the matters
raised in this motion to dismiss. ECF# 24. Three days later, HCC filed a
motion to strike the plaintiff’s response as exceeding the page limitation in
D. Kan. Rule 7.1(e) without leave of the court and as lacking the
organization required by D. Kan. Rule 7.6(a). ECF# 26.
Motion to Strike ECF# 26
The court’s authority to strike a party’s brief or memorandum for
violating court’s local rules is without question. What was docketed as the
plaintiff’s response (ECF# 24) to the defendant’s motion to dismiss certainly
exceeds the 30-page limitation in D. Kan. Rule 7.1(e) without a court order
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authorizing the same. Nor can it be disputed that the plaintiff’s filing (ECF#
24) fails to follow and contain the elements set forth in D. Kan. Rule 7.6(a)
as required for briefs and memoranda. In the exercise of its discretion, the
court will not strike the plaintiff’s filing in this instance for several reasons.
First, the plaintiff is pro se and is hereby admonished to follow all of the
court’s local rules including Rule 7.1 that governs the filing of motions and
responses and replies thereto and Rule 7.6 that governs briefs and
memoranda. Second, the plaintiff apparently intended his filing (ECF# 24) to
be more than a response to the defendant’s motion. In that regard, the
court warns the plaintiff to file separate memoranda in support of or in
opposition to separate motions. This should be done in almost all instances
unless to do so would mean repetitive, redundant and wasteful filings. Third,
despite its excessive length and its disjointed presentation, the plaintiff’s
response did not keep the court from locating and considering the relevant
responsive arguments. The court observes that there is much in the
plaintiff’s response which is not relevant to any matter raised in the motion
to dismiss. These extraneous matters lack any proper procedural format for
the court’s consideration of them. Thus, the court will look only at what is
responsive in the plaintiff’s memorandum, and this constitutes less than
one-third of the plaintiff’s memorandum.
Motion to Dismiss ECF# 21

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The defendant’s motion addresses only the contents of the
plaintiff’s form complaint (ECF# 1) without acknowledging the plaintiff’s
supplement (ECF# 7). Because these matters were filed and docketed by the
clerk of the court, the plaintiff will not be prejudiced by the defendant’s
argument that there was no attached petition. ECF# 22, p. 1. The
defendant’s motion to dismiss for failure to state a claim is summarily
denied, for it fails to address the plaintiff’s allegations in his supplement to
the complaint.
On the issue of personal jurisdiction, the court record shows the
summons returns for “Jay Ballard, Instructor” (ECF# 12), “Kathy Sanchez,
Nursing Instructor” (ECF# 13), “Debra Heckler, Administrator of Nursing”
(ECF# 14), “Cindy Hoss, Vice President” (ECF# 15), and “Janet Hamilton,
Instructor” (ECF# 16). There is also a summons return for “Dr. Carter File,
President and trustee of Hutchinson Community College” (ECF# 17). The
filed returns show each of these named defendants was served by certified
mail addressed to Hutchinson Community College, 1300 North Plum,
Hutchinson, Kansas. The defendant argues that the attempted service on the
individual defendants was ineffective, because the certified mail was not first
attempted at the “dwelling or usual place of abode” for each of these
individuals. Id. at p. 6 (quoting K.S.A. § 60-304(a)). The defendant also
contends that the person who signed for certified receipts was not a person
authorized to accept service on behalf of the individual defendants. Finally,
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the defendant summarily argues that if the defendants are being sued in
their official capacity, then such claims are duplicative of the claims against
the defendant HCC which has admitted service. Id. at p. 6.
A party must be served with a summons and a copy of the
complaint by someone who “is at least 18 years old and not a party.” Fed.
R. Civ. P. 4(c)(1) and (2). “Serving a summons or filing a waiver of service
establishes personal jurisdiction over a defendant (A) who is subject to the
jurisdiction of a court of general jurisdiction in the state where the district
court is located . . . .” Fed. R. Civ. P. 4(k)(1)(A). To serve an individual
within a judicial district, the federal rules specify personal service or service
“following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where
service is made.” Fed. R. Civ. P. 4(e). As relevant here, Kansas law provides
for service “by return receipt delivery, which is effected by certified mail.”
K.S.A. § 60-303(c). Kansas law also requires the following for service upon
on an individual:
Service by return receipt delivery must be addressed to an individual
at the individual’s dwelling or usual place of abode and to an
authorized agent at the agent’s usual or designated address. If the
sheriff, party or party’s attorney files a return of service stating that
the return receipt delivery to the individual at the individual’s dwelling
or usual place of abode was refused or unclaimed and that a business
address is known for the individual, the sheriff, party or party’s
attorney may complete service by return receipt delivery, addressed to
the individual at the individual’s business address.

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K.S.A. § 60-304(a). Thus, § 60-304(a) requires the return receipt delivery to
be “addressed to an individual at the individual’s dwelling” and if this
delivery is refused or unclaimed as shown by the filed return then delivery
may be made to the “individual’s business address.” Cessna Finance Corp. v.
VYWB, LLC, 982 F. Supp. 2d 1226, 1231 (D. Kan. 2013). The Kansas
Supreme Court addressed this issue in Fisher v. DeCarvalho, 298 Kan. 482,
314 P.3d 214 (2013), and its holding has been discussed by others:
In Fisher, the Kansas Supreme Court concluded that service upon an
individual at his place of business without first attempting to serve him
at his dwelling place does not constitute substantial compliance under
Kansas law. Id. at 220. The same factual scenario exists here.
Plaintiffs served Robinson at his business address and never attempted
to serve him at his dwelling house or usual place of abode. Plaintiffs
thus failed to comply substantially with the requirements of Kan. Stat.
Ann. § 60-304(a), and never served Robinson properly in this action.
See id.; see also Settle v. Diversified Consultants Inc., No. 13-2606EFM-GL, 2014 WL 1607589, at *3–4 (D. Kan. Apr. 22, 2014) (holding
that plaintiff failed to comply substantially with Kan. Stat. Ann. § 60304(a) because, among other things, he served defendant by certified
mail at his business address without first attempting service at his
dwelling house); Wanjiku v. Johnson Cty., Kan., No. 14-2001-RDR,
2014 WL 821285, at *2 (D. Kan. Mar. 3, 2014) (dismissing defendant
without prejudice for insufficient service of process because plaintiff
sent the summons and complaint to defendant's business address and
did not attempt first to serve process at defendant's dwelling). The
court thus dismisses plaintiffs' claims against defendant Robinson
under Fed. R. Civ. P. 12(b)(5) without prejudice for insufficiency of
service of process.
Schwab v. State of Kansas, 2016 WL 4039613, at *4 (D. Kan. Jul. 28,
2016), appeal dismissed, No. 16-3295 (10th Cir. Oct. 14, 2016).
The court agrees with the defendant HCC’s position that the
individual defendants have not been properly served in this case. If the
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plaintiff does not promptly cure the deficient service, the magistrate judge
will act timely in dealing with it. Because the court has yet to obtain personal
jurisdiction over the individual defendants, it will not address the defendant
HCC’s other argument on any possible official capacity actions against the
individual defendants.
Finally, the defendant HCC argues the plaintiff’s failure to comply
with K.S.A. § 12-105b(d). This provision requires a person asserting a claim
“against a municipality or against an employee of a municipality which could
give rise to an action brought under the Kansas tort claims act” to file a
written notice “with the clerk or governing body of the municipality” that
contains all the required information. K.S.A. § 12-105b(d). A “municipality”
includes the definition found at K.S.A. § 12-105a. Rockers v. Kansas
Turnpike Authority, 268 Kan. 110, 115, 991 P.2d 889 (1999). This definition
expressly includes a “community junior college.” K.S.A. § 12-105a. Thus,
K.S.A. § 12-105b(d) requires the plaintiff to give written notice to HCC, as a
municipality, before bringing tort claims against it. This requirement is
“jurisdictional like” such that, “[i]f the statutory requirements are not met,
the court cannot obtain jurisdiction over the municipality.” Myers v. Bd. of
Cty. Comm'rs of Jackson Cty., 280 Kan. 869, 877, 127 P.3d 319 (2006)
The written notice requirement of K.S.A. § 12-105b(d) “is a
condition precedent to suit” and “under Fed. R. Civ. P. 9(c), a plaintiff must
include a statement in his Complaint alleging that he has performed the
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required notice.” Wanjiku v. Johnson County, 173 F. Supp. 3d 1217, 1236
(D. Kan. 2016) (noting that Fed. R. Civ. P. 9(c) provides that “it suffices to
allege generally that all conditions precedent have occurred or been
performed.”) The court does not find in the plaintiff’s form complaint or in
his supplement an allegation that he provided HCC with statutorily required
notice. The court also finds no mention of this written notice in the plaintiff’s
response to this motion to dismiss. It is certainly the plaintiff’s burden to
establish jurisdiction, and the plaintiff has not done so in his complaint or
response. Pro se plaintiffs must still “allege the necessary underlying facts to
support a claim under a particular legal theory.” Hammons v. Saffle, 348
F.3d 1250, 1258 (10th Cir. 2003). Under these circumstances, the court
may rightly infer that the plaintiff is conceding that he did not substantially
comply with § 12-105b(d) and file the required notice. Wanjiku, 173 F.
Supp. 3d at 1236. “Because the Court finds that plaintiff concedes he did not
file the required notice here, allowing plaintiff to amend his Complaint ‘would
be futile as defendant would still be entitled to judgment on the pleadings
for failure to comply with K.S.A. § 12–105b(d).’” Wanjiku, 173 F. Supp. 3d
at 1237 (quoting Debbrecht v. City of Haysville, Kan., 2012 WL 1080527, at
*6 (D. Kan. Feb. 7, 2012)). Finding it lacks jurisdiction over any state law
tort claims against HCC or any of its employees, the court dismisses the
same without prejudice and does so without making any judgment as to the

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state law tort claims’ merits or as to the plaintiff’s ability to satisfy this
notice requirement in a future suit. Id.
IT IS THEREFORE ORDERED that the defendant HCC’s motion to
strike (ECF# 26) the plaintiff’s response (ECF# 24) is denied;
IT IS FURTHER ORDERED that the defendant HCC’s motion to
dismiss (ECF# 21) is granted on the plaintiff’s state law tort claims which are
dismissed without prejudice for lack of jurisdiction and is otherwise denied
but with the findings that the individual defendants have not been properly
served and that the plaintiff’s complaint consists of the form complaint
(ECF# 1) and the supplement (ECF# 7) which the court treats as the
plaintiff’s attached petition.
Dated this 22nd day of September, 2017, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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