Oyer v. City of Kansas City Missouri et al
ORDER (1) DENYING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, AND (2) DIRECTING CLERK'S OFFICE TO ACCEPT NO FURTHER FILINGS IN THIS MATTER. Signed on 2/1/17 by District Judge Ortrie D. Smith. (Order mailed to Plaintiff.) (Matthes Mitra, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CITY OF KANSAS CITY,
MISSOURI, et al.,
Case No. 16-00982-CV-W-ODS
ORDER (1) DENYING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS, AND (2) DIRECTING CLERK’S OFFICE TO ACCEPT NO FURTHER
FILINGS IN THIS MATTER
On September 7, 2016, Plaintiff filed a motion for leave to proceed in forma
pauperis. Doc. #1. The proposed complaint alleged Plaintiff is the co-owner of a
chimpanzee seized by Defendant City of Kansas City, Missouri and taken to Defendant
Kansas City Zoo. Doc. #1-1. He further alleged there were court proceedings
surrounding the chimp’s seizure, both in Kansas City Municipal Court and in the
Jackson County Circuit Court. He contends “[t]he case was resolved and the Court
refused to make a property disposition order leaving the chimp in the Kansas City Zoo.
Plaintiff has requested the zoo and all other [Defendants] to return the chimp or to aid in
returning the chimp and all Defendants have refused.” Id., at 2. He asserted an
unspecified “tort claim” for having his civil rights violated and sought a declaration and
order requiring the City to return the chimp.
The Court denied Plaintiff’s request to proceed in forma pauperis for two
reasons. Doc. #4. First, Plaintiff did not provide an Affidavit of Financial Status as
required by Local Rule 83.7(a), which made it impossible to determine that he was
unable to pay the filing fee. See 28 U.S.C. § 1915(a)(1). Second, the Court determined
it lacked jurisdiction because Plaintiff asserted state causes of action, and there was no
diversity of citizenship. Plaintiff then filed a multitude of Motions for Reconsideration, all
of which were denied. Docs. #6, 12, 15. Finally, Plaintiff requested leave to submit an
Amended Complaint. Doc. #17. The Court granted this request. Doc. #18. On
January 23, 2017, Plaintiff filed his Amended Complaint, and an Affidavit of Financial
Status. Docs. #19, 20.
The Court reviewed Plaintiff’s Amended Complaint and affidavit,1 and adheres to
its decision denying Plaintiff leave to proceed in forma pauperis. The Amended
Complaint specifically incorporates the original Complaint by reference. It identifies a
series of claims, many of which are redundant and none of which are fully explained.
Counts 1 through 5 all assert violations of the First, Fourth, Fifth, Sixth, Ninth and
Fourteenth Amendments. According to Plaintiff, Counts 6 through 10 “are identical to
Counts 1-5 except the claim is for negligent training,” and “Counts 11-15 are identical to
Counts 1-5 except the claim is for conspiracy.” Plaintiff describes Counts 16-20 as
presenting state law claims, but they too are predicated on the Constitution.
A request to file a lawsuit without paying the filing fee should be denied if the suit
is frivolous or malicious, fails to assert a claim for which relief can be granted, or seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B). A claim “is frivolous where it lacks an arguable basis in either law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). The “term ‘frivolous,’ when applied
to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful
factual allegation.” Id. The Court finds the Amended Complaint is frivolous.
Plaintiff’s Amended Complaint does not set forth any factual allegations
regarding multiple defendants. Plaintiff’s original Complaint states “[a]ll of the above
defendants were contacted for help administratively and declined to help or refused to
return the chimp.” The Court cannot find a conceivable basis for which Defendants
such as former Lieutenant Governor Peter Kinder, Friends of the Zoo, or Kansas City
Mayor Sly James are liable based on Plaintiff’s factual allegations. Plaintiff named the
Kansas City Police Department as a defendant, but it is not an entity that can be sued.
Cross v. Cleaver, 142 F.3d 1059, 1063 (8th Cir. 1998) (“The KCMPD does not exist as
an entity that can be sued....”). Plaintiff also brings suit against the 16th Circuit Court of
Jackson County, Missouri. Whether Plaintiff intends to sue a state court judge, or the
Plaintiff’s affidavit is not notarized as required on the form provided by the Clerk’s
Office. Doc. #20.
Circuit Court as an entity, Plaintiff’s claim fails. See Harris v. Missouri Court of Appeals,
Western Dist., 787 F.2d 427, 429 (8th Cir. 1986) (holding individual judges are immune
from suit when acting in their official capacity, courts are protected from § 1983 suits by
state immunity under the eleventh amendment, and a “court” cannot be liable under the
Civil Rights Act) (citations omitted). To the extent Plaintiff wishes the Court to review
municipal and state court decisions, this Court cannot do so. See District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983) (holding lower federal courts do
not have jurisdiction to hear “challenges to state court decisions in particular cases
arising out of judicial proceedings even if those challenges allege that that state court’s
action was unconstitutional.”).
Plaintiff’s Amended Complaint is frivolous. Plaintiff’s redundant recitation of
Constitutional amendments and various statutes lacks an arguable basis in law and
fact. Accordingly, the Court again denies Plaintiff leave to proceed in forma pauperis.
Given Plaintiff’s propensity to file a multitude of motions and the Court’s repeated
explanations of its previous decisions (Docs. #6, 12, 15), the Court directs the Clerk’s
Office to accept no further filings in the matter, other than a notice of appeal.
IT IS SO ORDERED.
DATE: February 1, 2017
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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