Payn v. Kelley et al

Filing 138

ORDER Granting re 82 MOTION to Dismiss Amended Complaint filed by Paula Enix, Smokey McKinney, Granting 83 MOTION to Dismiss and Continuing Special Appearance filed by Marilyn Kay Payn Ramsey, Joe Leroy Payn, Marilyn K Rams ey, Richard C Labarthe, Pioneer Pies, Sandra Gales Shapard, Joe L Payn, Edwin Jennings Shapard, Sandra G Shapard, James L Ramsey, James Lee Ramsey, Standley Malaske, Marilyn Ramsey, William Shapard, Granting 80 MOTION to Dismiss Amended Complaint filed by Andeel PC, Richard L Andeel, Granting 88 MOTION to Dismiss filed by Janice A Doerge, Denying 115 MOTION for Order filed by Ray Wilbur Payn, Ray Payn, Denying 135 MOTION for Order filed by Ray Wilbur Payn, Ray Payn, Granting 81 MOTION to Dismiss Amended Complaint filed by Gerald E Kelley LLC, Kelley & Kelley PC, Kelley Kelley & Gregory, Gerald E Kelley. Signed by Honorable Timothy D. DeGiusti on 12/29/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RAY WILBUR PAYN,
Plaintiff,
v.
GERALD E. KELLEY, et al.,
Defendants.

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Case No. CIV-15-1089-D

ORDER
Before the Court are several Motions to Dismiss Plaintiff’s Amended Complaint [Doc.
Nos. 80, 81, 82, 83, and 88].1 Plaintiff’s original Complaint [Doc. No. 1] was dismissed for
failure to assert a claim within this Court’s jurisdiction [Doc. No. 75].2 Plaintiff’s Amended
Complaint [Doc. No. 77], which does little more than add two conclusory allegations, fails
to correct the defects in the original. Accordingly, Plaintiff’s Amended Complaint is
dismissed without prejudice.
STANDARD
“Motions to dismiss for lack of subject matter jurisdiction ‘generally take one of two
forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject matter

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Defendants’ Motions were originally granted and judgment entered in their favor on April 4, 2016.
See Order and Judgment, Apr. 2, 2016 [Doc. Nos. 90 and 91]. Subsequently, however, the Court granted
Plaintiff’s Motion to Alter or Amend Judgment [Doc. No. 92], allowing Plaintiff additional time to respond
to Defendants’ Motions. See May 26, 2016 Order [Doc. No. 104] at 1.
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Plaintiff’s original Complaint listed the following jurisdictional bases: OKLA. STAT tit. 58, § 293;
OKLA. STAT. tit. 24, §§ 112-123; the PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001); and numerous
other criminal statutes which do not permit a private right of action. To the extent Plaintiff re-asserts any of
these bases in his Amended Complaint, the Court declines to re-address them.

jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is
based.” City of Albuquerque v. U. S. Dep’t of Interior, 379 F.3d 901, 906 (10th Cir. 2004)
(quoting Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002)). If the motion challenges
only the sufficiency of the plaintiff’s jurisdictional allegations, a district court must confine
itself to the pleadings and accept all well-pled allegations as true. See Peterson v. Martinez,
707 F.3d 1197, 1205-06 (10th Cir. 2013); Paper, Allied-Indus., Chem. & Energy Workers
Int’l Union v. Cont’l Carbon Co., 264 F.3d 1297, 1303 (10th Cir. 2001); Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). Defendants’ Motions present facial attacks to
the sufficiency of Plaintiff’s Amended Complaint to establish a basis for subject matter
jurisdiction.
DISCUSSION
Plaintiff’s Amended Complaint newly alleges conspiracy in violation of the
Fourteenth Amendment and 42 U.S.C. § 1985.3 In support of his allegations, Plaintiff
contends that Defendants took unspecified assets “under the premise of being ‘family,
friends, and fiduciaries,’. . . . created relationships for control, monetary gains, tax shelters,
[and to] confiscate assets, [while making Plaintiff] responsible for the liabilities,” and “forged
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Plaintiff also requested that an “attorney and prosecutor” be appointed by the Court pursuant to “due
process under the applicable laws of the United States Constitution.” Am. Compl. [Doc. No. 77] at 3-4 n.4.
However, it is well established that no constitutional right to appointed counsel exists in civil cases. See
Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). However, the Court may, in its discretion, appoint
an attorney to an indigent plaintiff. See 28 U.S.C. § 1915(e)(1). Plaintiff does not contend that he cannot
afford counsel, but rather that he is “unable to find a reputable attorney in Oklahoma” because the attorneys
he has spoken to “either said they ‘do not sue other attorneys,’ or cite a ‘conflict of interest,’” or lead Plaintiff
to believe they will take the case, but then do not. Am. Compl. [Doc. No. 77] at 3-4 n.4. Accordingly,
Plaintiff’s request for appointed counsel is denied.

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[his] name to fit their schemes.” Am. Compl. [Doc. No. 77] at 2, 3. In a later footnote,
Plaintiff adds that certain Defendants filed a dissolution of Eastwood Development
Corporation without his signature.4 See Am. Compl. [Doc. No. 77] at 12 n.3.
Plaintiff’s conclusory allegations fall short of stating an actionable claim under either
the Fourteenth Amendment or 42 U.S.C. § 1985. See Hall v. Belmon, 935 F.2d 1106, 1110
(10th Cir. 1991) (stating “conclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based”). Because “Plaintiff has no
cause of action directly under the United States Constitution,” Azul-Pacifico, Inc. v. City of
Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992), the Court looks to Plaintiff’s allegations
under 42 U.S.C. § 1985.
Subsection (1) of § 1985 provides a right of action for conspiracy to prevent an officer
of the United States, who Plaintiff has not claimed to be, from performing his duties. See 42
U.S.C. § 1985(1). Subsections (2) and (3) provide causes of action for conspiracy to
interfere with a person’s civil rights accompanied by some racial or otherwise class-based
discriminatory animus. See Jones v. Norton, 809 F.3d 564, 578 (10th Cir. 2015). “The other
‘class-based animus’ language of this requirement has been narrowly construed and does not,
for example, reach conspiracies motivated by an economic or commercial bias.” Tilton v.
Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (citation omitted). Here, the Amended
Complaint fails to allege any facts demonstrating a racial or class-based animus, and must
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Plaintiff lists an unidentified exhibit as support for his claim. Despite Plaintiff’s pro se status, the
Court cannot take on the responsibility of serving as Plaintiff’s attorney in searching the record. See Garrett
v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

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be dismissed. See Bisbee v. Bey, 39 F.3d 1096, 1102 (10th Cir. 1994) (“[I]n the absence of
allegations of class based or racial discriminatory animus, the complaint fails to state a claim
under § 1985.”).
CONCLUSION
Therefore, because Plaintiff alleges no adequate facts to support his conspiracy claims
under 42 U.S.C. § 1985, he has also failed to state a claim under the Fourteenth Amendment.
Accordingly, the Court finds such claims should be dismissed for lack of subject matter
jurisdiction. Additionally, because Plaintiff has already amended once, and did not request
leave to amend in his response brief, the Court finds that further amendment would be futile.5
IT IS THEREFORE ORDERED that Defendants’ Motions to Dismiss [Doc. Nos. 80,
81, 82, 83, and 88] are hereby GRANTED and Plaintiff’s Amended Complaint [Doc. No. 77]
is DISMISSED without prejudice. A separate judgement will be entered accordingly.
Having granted this Order in favor of Defendants, the Court further finds that
Plaintiff’s Motion for Relief Pursuant to Rule 60 [Doc. No. 115] and Motion to Unseal and
Unredact [Doc. No. 135] are hereby DENIED as moot.

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“Where a plaintiff does not move for permission to amend the complaint, the district court commits
no error by not granting such leave.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1238
n.4 (10th Cir. 2013) (citing Calderon v. Kansas Dep’t of Soc. & Rehab. Svcs., 181 F.3d 1180, 1185-87 (10th
Cir. 1999); Glenn v. First Nat’l Bank, 868 F.2d 368, 371 (10th Cir. 1989)).

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IT IS SO ORDERED this 29th day of December, 2016.

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