Marshall et al v. Burnley et al
MEMORANDUM AND ORDER granting 42 Motion to Dismiss for Failure to State a Claim by the Breaking Benjamin defendants (Aaron Bruch, Benjamin Burnley, Shaun Foist, Jason Rauch, and Keith Wallen). The claims against these defendants are dismissed with prejudice; granting 47 Motion to Dismiss by Defendant Hollywood Records, Inc.. The claims against this defendant are dismissed with prejudice; granting 52 Motion for More Definite Statement by Defendant Bob Adams; granting 53 Motion to Dism iss by Defendant Wichita City Council. The claims against this defendant are dismissed without prejudice.; granting 55 Motion to Dismiss by Defendants Catherine Leslie and Cotillion Ballroom. The claims against these defendants are dismissed witho ut prejudice.; denying 57 Motion to Dismiss by Defendant Dueling Piano Bar; denying 58 Motion to Disqualify Counsel; denying 61 Motion to Amend Complaint; denying 62 Motion for Discovery; denying 62 Motion for Leave to File Conventiona lly; denying 63 Motion to Add Parties. Any amended complaint by plaintiffs correcting the foregoing deficiencies shall be filed by December 28, 2017. Signed by District Judge J. Thomas Marten on 12/14/2017. Mailed to pro se party Krystal M. Marshall & Milton J. Davison at 935 N Beech St, Wichita, KS 67206 by regular mail (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KRYSTAL MARSHALL, and
MILTON J. DAVISON,
Case No. 17-1090-JTM
BENJAMIN BURNLEY, et al.,
MEMORANDUM AND ORDER
Plaintiffs filed this pro se action against a multitude of defendants, asserting
various claims including disability discrimination, battery, false arrest, conspiracy,
outrage, and deprivation of constitutional rights. (Dkt. 1). The matter is now before the
court on a number of pending motions.
I. Summary of Complaint
According to the complaint, Krystal Marshall is a disabled individual with a
“congenital renal system abnormality” as well as an “orthopedic foot condition that
impairs mobility.” She serves as a home care assistant to Milton Davison, who is “a
legally deaf disabled American veteran” with numerous “service-connected physical
disabilities that … [limit] his … mobility.” (Dkt. 1 at 4).
The complaint appears to assert claims arising out of two unrelated incidents.
One incident allegedly occurred on May 3, 2016, when Marshall attended a concert at
the Cotillion Ballroom in Wichita. Breaking Benjamin, a five-member alternative rock
band from Pennsylvania, was playing. At some point, according to the complaint, “the
Cotillion staff and production crews (Rainbow) under [the] direction of Breaking
Benjamin erected a double metal barrier blocking the dining seating and restaurant
areas, bathroom facilities, and exits….” (Dkt. 1 at 7). Marshall alleges that “upon
disclosing her disability and seeking accommodation access to the bathroom facility and
dining seating areas[,] [she] was publically subjected to sexual battery[,] multiple
assaults and batteries, kidnapping, and false arrest/imprisonment, under the direction
of Breaking Benjamin by Rainbow, and Cotillion staff….” (Id. at 8).
The complaint alleges that an “unidentified Rainbow employee male deliberately
grabbed [plaintiff] [and] pushed her,” and that with assistance from unidentified
defendants Molly Doe and Female Doe, they restrained her and “committed sexual
battery,” with Molly Doe pushing plaintiff and kicking her from behind while Marshall
was on the floor. These three individuals allegedly flipped Marshall on her back,
pushed her down and pinned her, and Molly Doe then “grabbed [Marshall’s] bra with
her shirt and pulled it hard upwards to deliberately and forcibly expose [Marshall’s]
breasts to the crowd near the barrier….” (Id. at 9).
The complaint alleges a second incident occurred on September 3, 2016, when
plaintiff Milton Davison went to the Dueling Piano Bar in Wichita, where he was served
alcohol and was then allegedly “kick[ed] out because his disabilities became
‘disturbing’ to a customer.” (Dkt. 1 at 7). Davison went outside, and then “returned
seeking access to the bathroom facilities to relieve himself … and to administer
prescribed medication.” He was then allegedly “placed under false arrest by [defendant
Bob Adams, a Wichita police officer] without an interpreter for the hearing impaired …
and taken to be drugged under false pretenses with toxic levels of part of lethal [sic]
injection cocktail wherein he almost went into cardiac syncope and stroke, and died.”
Count One of the complaint alleges a violation of 42 U.S.C. § 12132 or § 12182 of
the Americans with Disabilities Act (ADA), by excluding or denying benefits of a public
entity or the facilities of a public accommodation to a qualified person with a disability.
Count Two alleges claims for sexual battery and assault and battery based on the
incident at the Cotillion. Count Three alleges claims for false arrest and false
imprisonment based upon the separate incidents at the Cotillion and the Dueling Piano
Bar. Count Four alleges civil conspiracy against Breaking Benjamin, Hollywood
Records, Inc., Catherine Leslie (identified as the owner of the Cotillion), Dueling Piano
Bar, the Wichita City Council, and Sedgwick County. Among other things, plaintiffs
allege these defendants “acted in agreement to cover-up illegal activities involving
Wells Fargo Bank” and others, and to cover up criminal complaints filed by plaintiffs,
and that defendant Hollywood Records, Inc. is involved because plaintiffs’ minor
daughter “was kidnapped from Redding, California by Penn State officials with forged
Probate documentation purporting to be from the state of New Hampshire,” and
Breaking Benjamin performs regularly at Penn State and is aided by “Hollywood
Productions” [sic] on a contractual basis. (Dkt. 1 at 13). Count Five alleges the tort of
outrage based on the Cotillion and Dueling Piano Bar incidents. Count Six alleges a
claim under 42 U.S.C. § 1983 for deprivation of constitutional rights including
“disregard[ing] the civil rights of disabled individuals” and unlawful arrest. (Id. at 16).
II. Standards Governing Rule 12(b)(6) Motion to Dismiss
Several of the defendants move to dismiss the complaint for failure to state a
claim upon which relief can be granted. “To survive a motion to dismiss, a complaint
must contain ‘enough facts to state a claim to relief that is plausible on its face.’ ” The
Estate of Lockett by & through Lockett v. Fallin, 841 F.3d 1098, 1106–07 (10th Cir. 2016), cert.
denied sub nom. Lockett v. Fallin, 137 S. Ct. 2298 (2017) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is plausible if it 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). In reviewing a motion to dismiss, the
court must accept as true all well-pleaded allegations and view those allegations in the
light most favorable to the non-moving party. See Dias v. City & Cty. of Denver, 567 F.3d
1169, 1178 (10th Cir. 2009).
The plausibility standard “asks for more than a sheer possibility that a defendant
has acted unlawfully. Where a complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Iqbal, 556 U.S. at 678. Mere “labels and conclusions” and “a
formulaic recitation of the elements of a cause of action” are insufficient. Twombly, 550
U.S. at 555. Moreover, “[t]he tenet that a court must accept as true all of the allegations
contained a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
III. Breaking Benjamin Defendants (Dkt. 42)
Defendants Benjamin Burnley, Jason Rauch, Keith Wallen, Shaun Foist, Aaron
Bruch, and Breaking Benjamin move to dismiss the complaint for failure to state a claim
upon which relief can be granted. (Dkt. 43 at 6). They also seek dismissal for insufficient
service of process under Fed. R. Civ. P. 12(b)(5). Plaintiffs have not specifically
responded to the motion, although they filed a “Motion to object to Benjamin’s [sic]
Burnley of Council [sic],” (Dkt. 58), as well as responses to another defendant’s motion
to dismiss. (Dkts. 60, 69).
The court finds Count One of the complaint fails to state a valid claim for relief
against any of the Breaking Benjamin defendants. The complaint does not allege that
these defendants were a public entity, and it thus fails to state a claim under 42 U.S.C. §
12132. See 42 U.S.C. § 12131(1) (defining “public entity” as a state or local government,
an instrumentality of a state or local government, or the National Railroad Passenger
Corporation or other commuter authority). Nor does the complaint allege facts showing
these defendants owned, leased, or operated a place of public accommodation within
the meaning of 42 U.S.C. § 12182. The complaint’s sole allegation in that regard is that
Cotillion and Rainbow staff allegedly set up a metal barrier “under [the] direction of
Breaking Benjamin.” The latter allegation is unexplained and conclusory, as is much of
the plaintiffs’ complaint, and fails to show that these defendants had authority that
made them the operator of a public accommodation. Counts Two and Three contain no
allegations against the Breaking Benjamin defendants that could make them liable for
the acts alleged. Count Four, the civil conspiracy count, consists almost entirely of
conclusory allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”). It fails to a state a valid claim for relief against any of the defendants. Count
Five asserts the tort of outrage but fails to allege any act by the Breaking Benjamin
defendants that could support such a claim. Finally, Count Six, which invokes 42 U.S.C.
§ 1983, fails to state a claim for relief against the Breaking Benjamin defendants because
it does not allege that these defendants acted under color of state law. See Polk Cnty. v.
Dodson, 454 U.S. 312, 315 (1981) (to state a claim under § 1983, the complaint must allege
that the defendants acted under color of state law). Accordingly, the court grants the
motion to dismiss (Dkt. 42) for failure to state a claim upon which relief can be granted.
Moreover, the court determines that any attempt by plaintiffs to amend the complaint
to remedy the foregoing defects would be futile. Accordingly, the dismissal of the
claims against these defendants will be with prejudice.
IV. Hollywood Records, Inc. (Dkt. 47)
The only count of the complaint mentioning Hollywood Records, Inc. is Count
Four, which alleges a civil conspiracy. As indicated above, Count Four contains no
factual allegations to plausibly support a conspiracy claim against this or any of the
other named defendants. The response to the motion only verifies that plaintiffs are
alleging a stream-of-consciousness conspiracy that states no valid claim for relief:
Plaintiffs state the (D) Hollywood is trying to dismiss to prevent
discovery; downplaying the Penn State scandal as “so-called.” Plaintiffs
state that Hollywood Records, Inc. a derivative of Walt Disney
shareholders donated significant amounts to Second Mile Charity.
Plaintiffs state a one [sic] Robert Nilram (aka Robert Marlin, Robert
Beaulieu and countless other aliases and his supposed wife Dawn Taylor,
Theresa Haubrick (daughter of Dawn Taylor, and wife of MMA fighter
Bryce Haubrick), procured her minor committed perjury, and took her
Lewistown Pennsylvania holding her hostage for eight years. Boehm and
Nilram are also involved what appears to be stealing wills and estates (see
attached). They then deliberately mixed her name with Kristal Melisa
Marshall from WWF in order to conceal her minor in Pennsylvania.
Dkt. 60 at 4-5.
As for the remaining claims, none of them mentions Hollywood Records, Inc. or
identifies any factual basis for finding this defendant liable. Accordingly, Hollywood
Records, Inc.’s motion to dismiss will be granted. And because plaintiffs identify no
basis upon which they could amend the complaint to state a valid claim against
Hollywood Records, the dismissal will be with prejudice.
V. Bob Adams (Dkt. 51)
Defendant Bob Adams moves for a more definite statement of the claims against
him, pursuant to Fed. R. Civ. P. 12(e). Plaintiffs have not responded to the motion.
Under Rule 12(e), a party is entitled to a more definite statement if the allegations
are “so vague or ambiguous that the party cannot reasonably prepare a response.” Id.
The court finds defendant Adams is entitled to relief under this rule. With respect to
Adams, the “Facts” section of the complaint alleges that when Davison returned to the
Dueling Piano Bar after being kicked out for some sort of disturbance, he “was placed
under false arrest by Defendant Adams without an interpreter for the hearing impaired;
and taken to be drugged under false pretenses….” (Dkt. 1 at 7). The complaint fails to
state in plain terms the circumstances under which Adams arrested Davison or the basis
upon which Adams is claimed to be liable.
Davison will be granted until December 28, 2017, to file an amended complaint
that alleges facts sufficient to explain his claim against defendant Adams.
VI. Wichita City Council (Dkt. 53)
The complaint names the “City of Wichita City Council” as a defendant. The City
Council now moves for dismissal pursuant to Fed. R. Civ. P. 17(b), arguing it is not a
legal entity capable of being sued. Plaintiffs argue in response that federal law permits
“a cause of action for ADA violations against the City of Wichita.” (Dkt. 69 at 2).
It is apparent that plaintiffs attempted to sue the City of Wichita but instead
named the Wichita City Council as a defendant. Even if the court were to consider the
complaint as effectively naming the City of Wichita, it is clear for reasons previously
stated that the complaint fails to state a claim upon which relief can be granted. The
only count making any allegation against the City is the conspiracy count, which alleges
that the City Council and Sedgwick County “acted in agreement to cover-up illegal
activities involving Wells Fargo Bank, Adams Family Financial Group of Wells Fargo
Advisors, LLC, Keller Williams & Realty, First Century Bank, N.A., certain approved
business contractual services providing to the public and residents of the state of
Kansas; county of [Sedgwick], and city of Wichita; formulated a plan to injure the
Plaintiffs….” (Dkt. 1 at 13). The complaint goes on to allege a conspiracy “to conceal the
criminal complaints [apparently filed by plaintiffs]; and suppress the press; obstructed
justice, and outright refusal to even bother to launch any investigation, thus cooperated
in misprisions; and continued in covering up problem of sexual assault in battery
crimes in the city, county, and state levels, and problems of depriving disabled of their
rights, and depriving victims’ rights.” (Id).
To the extent any of these allegations are coherent, they fail to state any possible
valid claim for relief against the City of Wichita or the Wichita City Council.
Accordingly the motion to dismiss will be granted without prejudice.
VII. Catherine Leslie and Cotillion Ballroom (Dkt. 55)
Leslie and the Cotillion move to dismiss for failure to make timely service and
for failure to state a claim upon which relief can be granted. Leslie points out that, aside
from the conspiracy count, none of the other counts mentions her or alleges that she
engaged in any wrongful conduct. She argues these counts fail to provide fair notice of
the claims as required by Fed. R. Civ. P. 8(a). The court generally agrees. The complaint
borders on incoherence at times and refers generically to “defendants” without making
clear what particular defendants are alleged to have done. Count One fails to state a
claim for reasons that will be discussed infra. Counts Two, Three, Five, and Six allege no
facts to support liability against Leslie. As for Count Four, the conspiracy count, those
allegations fail to state a valid claim against any of the defendants for reasons
previously indicated. The court will therefore grant the motion to dismiss as to
The Cotillion argues Count One fails to state a claim for relief against it under the
ADA. It argues plaintiffs have not alleged themselves to be disabled within the meaning
of the ADA and they fail to offer facts showing that the Cotillion employed a
discriminatory policy or failed to make a reasonable accommodation.
Under § 12182, the owner, lessor, lessee, or operator of a public accommodation
may be liable if it discriminates against an individual on the basis of disability in the full
and equal enjoyment of its goods, services, facilities, or accommodations. The term
“disability” under the ADA refers to an individual with a physical or mental
impairment that substantially limits a major life activity; who has a record of such
impairment; or who is regarded as having such an impairment. 42 U.S.C. § 12102(2).
Under a liberal construction of the allegations in the complaint, plaintiffs have
sufficiently alleged that Marshall is disabled within the meaning of the ADA and that
Leslie is the owner or operator of the Cotillion, a public accommodation. But the
allegations fail to show how Leslie or the Cotillion discriminated against Marshall on
the basis of her disability. Cotillion staff allegedly erected a metal barrier “blocking …
bathroom facilities” and other areas of the facility, but the complaint does not explain
whether other bathroom facilities were available, whether another access point to
bathroom facilities was available, or how a barrier apparently affecting all patrons
constituted discrimination against Marshall on account of her disability. The court
concludes that Count One fails to state a claim for relief against Leslie or the Cotillion.
Count Two alleges generally that seven unidentified Cotillion employees
assaulted or battered Marshall, but the complaint only makes specific allegations about
two such employees, identified as Molly Doe and Female Doe. It alleges that both of
them assisted in pushing or restraining Marshall, and that one or both kicked her,
flipped her on her back, and then pulled her shirt up exposing her breasts. These
allegations would be sufficient to state a claim for assault or battery against these two
individual Cotillion employees, but they have not been identified or served with the
complaint. As for the Cotillion, the complaint fails to allege facts to show that it is liable
for any such assault or battery by its employees. See Williams v. Community Drive-In
Theater, Inc., 214 Kan. 359, 520 P.2d 1296 (1974) (if assault is committed by employee
while furthering employer’s interest in some way, the employer is liable under
respondeat superior). Count Two therefore fails to state a valid claim for relief against the
Cotillion. Counts Three, Five, and Six do not mention the Cotillion and fail to allege
facts supporting any claim against it. Count Four fails for reasons previously stated.
Accordingly, the court finds that the Cotillion’s motion to dismiss for failure to state a
claim should be granted without prejudice.
VIII. Dueling Piano Bar (Dkt. 57)
Dueling Piano Bar, otherwise known as EB Management Company, LLC, moves
to dismiss the complaint for plaintiffs’ failure to serve process within 90 days of filing
the complaint. See Fed. R. Civ. P. 12(b)(5).
Rule 4(m) provides in part that that if a defendant is not served within 90 days
after the complaint is filed, the court “must dismiss the action without prejudice against
that defendant or order that service be made within a specified time.” It further
provides that “if the plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period.” Id.
Plaintiffs filed the complaint and sought to proceed in forma pauperis on April 24,
2017. (Dkts. 1, 3). The motion to proceed IFP was granted May 23, 2017. (Dkt. 5). Due to
an interlocutory appeal filed by plaintiffs and their objection to the Magistrate’s
recommendation to dismiss certain defendants, however, the court did not issue
summonses to the U.S. Marshals for service until September 1, 2017. Dueling Piano Bar
was served on September 13, 2017. (Dkt. 24).
Although service was clearly not made within the 90 day period provided by
Rule 4(m), the court concludes the period for service should be extended to permit the
September 13th service on this defendant to stand. In this instance, a substantial period
of delay was due to the court’s withholding of summonses until after the Magistrate’s
initial rulings were reviewed. The court’s procedures concerning issuance of
summonses in pro se cases was thus a contributing factor and amounts to good cause for
the delay. Given plaintiff’s pro se status, the court’s contribution to the delay, and the
absence of any indication of prejudice to the defendant, the court finds that the time for
service should be extended as indicated above, and that Dueling Piano Bar’s motion to
dismiss should be denied.
IX. Plaintiffs’ Motion to Disqualify Counsel (Dkt. 58)
Plaintiffs “object to the appointment of Attorney Hinkley [sic] as this is a
prejudicial conflict of interest violating the laws of ethics….” (Dkt. 58 at 1). This is an
apparent reference to attorneys from the Hinkle Law Firm representing the Breaking
Benjamin defendants, although the court has no idea what conflict plaintiffs are talking
about and finds no such conflict in the record. Plaintiffs’ request to disqualify these
attorneys is denied.
X. Plaintiffs’ Motion to Add Parties (Dkt. 63)
This motion seeks to add Lance E. Shuman, Hollis Clark, Jr., and Salvatore Erna,
Jr. as defendants in the case. (Dkt. 63 at 2). Plaintiffs allege that Clark owes Marshall
child support payments (Dkt. 63 at 1) and Erna is allegedly a member of the band
Godsmack, which has toured with Breaking Benjamin. (Id. at 2). Shuman is allegedly an
employee of the Cotillion and is “a personal direct friend of Catherine Leslie …
indicating the acts imposed on Plaintiffs was [sic] coordinated and deliberate
preplanned acts.” (Id.). Plaintiffs have shown no basis for joining these persons as
defendants or asserting claims against them in this action. The motion is accordingly
XI. Plaintiffs’ Motion to Enter Evidence (Dkt. 62)
Plaintiffs “request entering evidence from Wesley Healthcare….” (Dkt. 62 at 1).
They apparently attempted to file with the clerk of court a CD-ROM containing
evidence of Marshall’s and Davison’s medical conditions, as well as certain police
records, but were allegedly informed that “computer evidence is not allowed.” They
also make various complaints about the Wichita Police Department. (Id. at 2).
The court finds the motion should be denied. Exhibits may be attached to
motions if relevant, but the local rules of this court generally require that they be
submitted in electronic form (as plaintiffs have done with the instant motion). D. Kan.
R. 5.4.5(a). Plaintiffs’ motion shows no grounds for relief.
IT IS THEREFORE ORDERED this 14th day of December, 2017, that the Motion
to Dismiss of the Breaking Benjamin defendants (Aaron Bruch, Benjamin Burnley,
Shaun Foist, Jason Rauch, and Keith Wallen) (Dkt. 42) is GRANTED. The claims against
these defendants are dismissed with prejudice;
Hollywood Records, Inc.’s Motion to Dismiss (Dkt. 47) is GRANTED. The claims
against this defendant are dismissed with prejudice;
Bob Adams’s Motion for More Definite Statement (Dkt. 52) is GRANTED;
Wichita City Council’s Motion to Dismiss (Dkt. 53) is GRANTED. The claims
against this defendant are dismissed without prejudice;
Catherine Leslie’s and Cotillion Ballroom’s Motion to Dismiss (Dkt. 55) is
GRANTED. The claims against these defendants are dismissed without prejudice;
Any amended complaint by plaintiffs correcting the foregoing deficiencies shall
be filed by December 28, 2017;
Dueling Piano Bar’s Motion to Dismiss (Dkt. 57) is DENIED;
Plaintiffs’ Motions to Disqualify Counsel (Dkt. 58), to Amend the Complaint
(Dkt. 61), for Discovery (Dkt. 62) and to Add Parties (Dkt. 63) are DENIED.
___s/ J. Thomas Marten_____
J. THOMAS MARTEN, JUDGE
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