Opinion
Civil Action No. 02-2223-KHV
December 17, 2002.
MEMORANDUM AND ORDER
Thomas Clelland, pro se, brings suit against the State of Kansas, the Crawford County Court Services Office, the Crawford County Attorney's Office, Jeff Glines and James Pratt under 42 U.S.C. § 1983. Plaintiff alleges that defendants provided inadequate medical care during his incarceration at the Crawford County jail, that they acted in bad faith in negotiating his plea agreement, that in order to revoke his probation, they intentionally deceived him regarding the results of his urinalysis test, and that they continue to maintain and report inaccurate information on his criminal history. This matter is before the Court on Defendant Pratt's Motion To Dismiss Plaintiff's Amended Complaint (Doc. #71) filed September 26, 2002; defendants' Motion To Dismiss Amended Complaint (Doc. #74) filed September 27, 2002 and Plaintiff's Response To Defendant Glines Motion To Dismiss And Supporting Memorandum And Request From The Court/Clerk For Additional Time To Further Reply (Doc. #79) filed October 8, 2002. For reasons set forth below, defendants' motions to dismiss are sustained and plaintiff's motion for an extension of time is overruled as moot.
Standards For Motions To Dismiss Under Rule 12(b)(1)
The Court may exercise jurisdiction only when specifically authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994), and must "dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F. Supp. 279, 281 (D.Kan. 1995) (quoting Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); see also Fed.R.Civ.P. 12(h)(3). The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. See Basso, 495 F.2d at 909. When federal jurisdiction is challenged, plaintiff bears the burden of showing why the case should not be dismissed. See Jensen v. Johnson County Youth Baseball League, 838 F. Supp. 1437, 1439-40 (D.Kan. 1993).
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take two forms: facial attacks on the complaint or factual attacks on the accuracy of those allegations. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). Defendants' motion falls within the latter category because it relies on evidence outside the complaint. In such event, the Tenth Circuit has set forth the following standard:
A party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.
Id. at 1003 (citations omitted). Here, the pertinent jurisdictional facts are uncontested.
Standards For Motions To Dismiss Under Rule 12(b)(6)
A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Associated Wholesale Grocers., Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). In reviewing the sufficiency of plaintiff's complaint, the issue is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. Rehab. Servs., 871 F. Supp. 1331, 1333 (D.Kan. 1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). The Court may not assume the role of advocate for a pro se litigant. See Hall, 935 F.2d at 1110 (10th Cir. 1991).
Factual Background
Plaintiff's amended complaint, as supplemented by his Memorandum In Support Of Amended Complaint (Doc. #33) filed July 31, 2002, alleges the following facts:
To provide context for plaintiff's allegations, the Court has considered the exhibits to defendants' Memorandum In Support Of Motion To Dismiss By Defendant State Of Kansas, Jeff Glines, Court Services Officer, And The Crawford County Kansas Court Services Office ("Defendants' Memorandum") (Doc. #75) filed September 27, 2002. Many of these exhibits are complete copies of excerpts which plaintiff has attached to various filings.
Plaintiff was convicted of possession of methamphetamine on July 2, 1998, in the District Court of Crawford County, Kansas. Crawford County Case No. 97CR379G. The court sentenced plaintiff to probation for 24 months. Less than three months later, on September 25, 1998, plaintiff was arrested for possession of drug paraphernalia, driving under the influence (DUI) and possession of marijuana. For approximately 80 days, from the time of his arrest through December 14, 1998, plaintiff was held without bond in the Crawford County jail. During or shortly before his incarceration, plaintiff suffered a heart attack. Defendants did not provide "acceptable medical treatment" for plaintiff's heart condition, and they denied his access to medical records.
On June 3, 1999, in exchange for the State's agreement to dismiss the DUI and marijuana possession charges, plaintiff entered a plea of no contest to attempted possession of drug paraphernalia. Crawford County Case No. 98CR433G. The court sentenced plaintiff to time served (80 days in jail) and 24 months probation through the Crawford County Court Services Office, to run consecutively to his sentence in Case No. 97CR379G. Plaintiff asserts that the State used non-existent evidence to secure his plea and judicial approval of the plea agreement.
On February 5, 2000, plaintiff was arrested on charges of DUI and assault. Therefore, on February 15, 2000, Steve Stockard, Assistant Crawford County Attorney, filed a motion to revoke plaintiff's probation in both criminal cases. See Exhibit 6 to Defendants' Memorandum (Doc. #75). Stockard's motion included an affidavit of Jeff Glines, a Court Services Officer. The court appointed counsel for plaintiff in March of 2000, and scheduled a probation revocation hearing for May 22, 2000.
On May 15, 2000, Glines asked plaintiff to undergo a urinalysis test. Plaintiff agreed and Glines informed him that he had tested positive for methamphetamine. Plaintiff tried to have an independent physician test the sample, but he did not get back the results before his hearing on May 22, 2000. Plaintiff asked his attorney to seek a continuance, but his attorney suggested that he stipulate to the test results to avoid significant prison time. Accordingly, on May 22, 2000, plaintiff stipulated that he had tested positive for methamphetamine. Based on the stipulation, the court revoked plaintiff's probation with the Court Services Office and placed plaintiff on 24 months probation with the Community Corrections Office. On May 23 and 24, 2000, plaintiff received negative test results from his doctor. Glines had asked someone at the doctor's office to withhold the negative test results until after the probation revocation hearing on May 22, 2000.
Plaintiff apparently claims that he had a positive test result because he was taking certain medication, or that factors other than methamphetamine caused his positive test result.
On May 14, 2002, plaintiff filed his complaint under 42 U.S.C. § 1983. In his amended complaint, plaintiff alleges that defendants provided inadequate medical care during his incarceration in 1998 (Count I); that they acted in bad faith in negotiating the plea agreement of June 3, 1999, which violated his rights to equal protection and due process (Count II); that they intentionally deceived him as to the results of his urinalysis on May 15, 2000, which violated his rights to equal protection and due process (Count III); and that they continue to maintain and report inaccurate information on his criminal history (Count IV). Defendants seek to dismiss plaintiff's amended complaint, arguing that (1) they are entitled to Eleventh Amendment immunity on all counts against Glines in his official capacity, and against the State of Kansas and the Crawford County Court Services Office; (2) Counts I, II and IV do not state a claim on which relief may be granted because they do not allege personal participation by the individual defendants; (3) Count I is barred by the statute of limitations; (4) the Court does not have jurisdiction to hear Counts II and III because they are collateral attacks on plaintiff's state court convictions; (5) all counts against the Crawford County Court Services Office are barred because the agency lacks the capacity to be sued; and (6) as a Court Services Officer, Glines is entitled to judicial or qualified immunity. In opposition, plaintiff has filed several briefs with attached exhibits.
On May 14, 2002, plaintiff sought leave to file his original complaint (Doc. #1) by fax, but Magistrate Judge James P. O'Hara denied his motion without prejudice. See Order (Doc. #7) filed June 3, 2002. Judge O'Hara ruled that plaintiff could reassert his motion if and when defendants asserted a statute of limitations defense. See id. at 3. On May 15, 2002, plaintiff's counsel, an attorney who was not admitted to practice in the District of Kansas, filed a complaint with her original signature. See Complaint With Jury Demand (Doc. #3). The Court, however, overruled her motion to appear pro hac vice. See Order (Doc. #6) filed May 21, 2002. At a telephone conference, plaintiff announced that he wanted to proceed pro se. Accordingly, local counsel for plaintiff, who had filed the motion for counsel to appear pro hac vice but had not signed either complaint (Docs. #1, 3), moved to withdraw. On July 10, 2002, Judge O'Hara granted the motion. See Order (Doc. #13). On July 31, 2002, plaintiff filed an amended complaint. See Plaintiff's Amended Complaint With Jury Demand (Doc. #32) filed July 31, 2002. Because defendants had filed responsive pleadings and plaintiff had not secured leave to file an amended complaint, Judge O'Hara struck plaintiff's amended complaint pending briefing on his motion to amend. See Order (Doc. #43) filed August 7, 2002. Finally, on September 4, 2002, Judge O'Hara granted plaintiff leave to file an amended complaint and directed the Clerk to re-file the amended complaint which the Court had previously stricken. See Order (Doc. #62).
The caption of the amended complaint names James Pratt as a defendant, but it does not identify his specific involvement in these events. Plaintiff states that Pratt was a state-appointed special prosecutor for his probation revocation hearing in May of 2000. See Plaintiff's Response To Defendant Pratt's Motion To Dismiss Plaintiff's Amended Complaint And Plaintiff's Response To Defendant Pratt's Answer To Plaintiffs Amended Complaint (Doc. #81) filed October 7, 2002 at 4.
The Court has further considered Plaintiff's Further Notification To The Court Of Available "New Evidence" In Support Of Plaintiff's Complaint And Motion For Scheduling-Planning (Doc. #78) filed October 8, 2002, which provides additional information as to Pratt. In this filing, plaintiff alleges that Pratt may have had personal ties with someone at the County Attorney's Office and that Pratt failed to perform his function as special prosecutor. See id. at 2-3. Plaintiff states that an unknown individual at the County Attorney's Office "privately" retained and compensated Pratt to handle the case, and did not hire Pratt as a special prosecutor for the State of Kansas. See id. at 2. Because the amended complaint alleges wrongful conduct as to actions by Pratt after he was appointed special prosecutor, the circumstances surrounding Pratt's initial hiring are immaterial to the motions to dismiss.
Defendants correctly note that under D. Kan. Rule 7.1(c), plaintiff is entitled to only one opposition brief. Because plaintiff proceeds pro se and consideration of the additional materials does not alter the outcome of defendants' motions to dismiss, the Court has considered plaintiff's multiple responses and exhibits. In particular, the Court has considered: Plaintiff's Motion "In Support Of Courts Order To Stay" — And Supporting Case Informations (Doc. #77) filed October 3, 2002; Plaintiff's Further Notification To The Court Of Available "New Evidence" In Support Of Plaintiff's Complaint And Motion For Scheduling-Planning (Doc. #78) filed October 8, 2002; Plaintiff's Response To Defendant Glines Motion To Dismiss And Supporting Memorandum And Request From The Court/Clerk For Additional Time To Further Reply (Doc. #79) filed October 8, 2002; Plaintiff's Response To Defendant Pratt's Motion To Dismiss Plaintiff's Amended Complaint And Plaintiff's Response To Defendant Pratt's Answer To Plaintiffs Amended Complaint (Doc. #81) filed October 7, 2002; Plaintiff's Further Response To Defendant(s) Motions To Dismiss Plaintiff's Amended Complaint (Doc. #82) filed October 16, 2002; Plaintiff's Further Response to Defendant(s) Motions To Dismiss Plaintiff's Amended Complaint (Doc. #84) filed October 17, 2002; and Memorandum In Support Of Amended Complaint (Doc. #33) filed July 31, 2002.
Analysis
Initially, the Court addresses plaintiff's procedural objections to defendants' motion to dismiss. See Plaintiffs Response To Defendant Pratt's Motion To Dismiss Plaintiffs Amended Complaint And Plaintiffs Response To Defendant Pratt's Answer To Plaintiffs Amended Complaint (Doc. #81) filed October 7, 2002; Plaintiffs Further Response To Defendant(s) Motions To Dismiss Plaintiffs Amended Complaint (Doc. #82) filed October 16, 2002.First, plaintiff asserts that any motion to dismiss is premature because of "the odd circumstances surrounding the filing of plaintiff's original complaint." Order (Doc. #62) filed September 4, 2002 at 2; see id. at 2 n. 5 (noting that the Court overruled plaintiff's request to file the complaint by fax and that though plaintiff's counsel later filed a written complaint, the Court overruled counsel's request to appear pro hac vice). Judge O'Hara addressed this concern, however, when he allowed plaintiff to file an amended complaint. His order did not suggest that further delay was warranted because of how plaintiff attempted to file his initial complaint. Plaintiff asks the Court to review a number of actions which his attorneys took before they withdrew, see Plaintiff's Motion "In Support Of Courts Order To Stay" — And Supporting Case Informations (Doc. #77) filed October 3, 2002, but such conduct is not the subject of the instant motions or even the subject of this lawsuit. To the extent plaintiff seeks judicial review of such actions, he should file a separate lawsuit.
Next, plaintiff argues that Pratt cannot file a motion to dismiss because he also filed an answer. Pratt answered the amended complaint after he filed his motion to dismiss that complaint, however, and his motion is therefore appropriate. See Fed.R.Civ.P. 12(b) (motion to dismiss shall be made before pleading if further pleading is permitted). Plaintiff also maintains that Pratt's motion to dismiss is premature because his answer states that he does not have sufficient knowledge to admit or deny certain allegations. Pratt's answer and motion to dismiss are consistent, however, because Pratt asserts that he lacks knowledge of certain allegations and that he did not personally participate in the alleged wrongful conduct.
Finally, plaintiff argues that Pratt cannot file a motion to dismiss because the Court granted plaintiff leave to amend and Pratt did not seek reconsideration of that order. When the Court granted plaintiff leave to amend, however, it specifically stated that defendants' arguments as to futility were more appropriately resolved on a motion to dismiss or for summary judgment. See Order (Doc. #62) at 2. Accordingly, the Court's prior order does not bar Pratt's motion to dismiss.
I. Eleventh Amendment Immunity
Glines, the State of Kansas and the Crawford County Court Services Office argue that they are entitled to absolute immunity. The Eleventh Amendment doctrine of sovereign immunity bars actions for damages against a State, its agencies and its officials acting in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 165-167, n. 14 (1985); Ambus v. Granite Bd. of Educ., 995 F.2d 992, 994 (10th Cir. 1993) (Eleventh Amendment immunity extends to agencies that act as arms of state); see also Entrup v. Colorado, 127 F.3d 1109, 1997 WL 639322, at *1 (10th Cir. Oct. 14, 1997) (suit against Boulder County District Court barred under Eleventh Amendment). In passing 42 U.S.C. § 1983, Congress did not intend to abrogate the immunity of states under the Eleventh Amendment. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 66-71 (1989) (state, its entities and its officials acting in official capacity considered arms of state for Eleventh Amendment purposes are not persons within meaning of 42 U.S.C. § 1983). Accordingly, the Court sustains defendants' motion to dismiss as to the State of Kansas, the Crawford County Court Services Office, and Glines in his official capacity.
Even if the Crawford County Court Services Office is not an arm of the State for Eleventh Amendment purposes, the agency and its officer Glines are entitled to dismissal for the reasons stated below. In addition, the Crawford County Court Services Office lacks the capacity to sue or be sued under Kansas law. See Fugate v. Unified Gov't of Wyandotte County/Kansas City, Kan., 161 F. Supp. d 1261, 1266 (D.Kan. 2001) (Wyandotte County Court Services Office lacks capacity to be sued).
The amended complaint names the Crawford County Attorney's Office as a defendant, but the record does not reflect service on that agency. See Plaintiff's Amended Complaint With Jury Demand (Doc. #63) filed September 4, 2002. Because the Court lacks jurisdiction to hear Counts II and III, see infra part III, those counts against the Crawford County Attorney's Office shall be dismissed. The Court does not address Counts I and IV against the Crawford County Attorney's Office at this time. On or before December 31, 2002, plaintiff shall show cause in writing why the Court should not dismiss Counts I and IV of his amended complaint against the Crawford County Attorney's Office based on (1) Eleventh Amendment immunity, (2) lack of capacity to be sued, and (3) the statute of limitations.
II. Deliberate Indifference To Plaintiff's Medical Needs (Count I)
Liberally construed, the amended complaint alleges that defendants were deliberately indifferent to plaintiff's medical needs because they knew of his heart condition but provided substandard treatment during his incarceration from September 25 to December 14, 1998. See Amended Complaint (Doc. #63) ¶¶ 9-10. Glines and Pratt, acting in their individual capacities, are the only named defendants that are "persons" who can be sued for such a claim under Section 1983. See supra part I. They seek to dismiss plaintiff's claim because the amended complaint does not allege that they personally participated in the alleged constitutional violation.
Beginning in approximately June of 2000, Glines was plaintiff's probation officer. See Amended Complaint (Doc. #63) ¶¶ 31-34. Pratt was a state-appointed special prosecutor in plaintiff's criminal case. Except for a general reference to "defendants," Count I does not specify the individuals who allegedly violated plaintiff's civil rights. Personal participation is an essential allegation in a Section 1983 action. See Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996); Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Absent allegations of personal participation by individual defendants, the Court must dismiss Count I for failure to state a claim on which relief may be granted.
Glines and Pratt also argue that the Count I is barred by the applicable statute of limitations. As noted, plaintiff complains of substandard medical treatment from September 25 to December 14, 1998, and he filed suit on May 14, 2002 — more than three years later. Plaintiff does not deny that his claim is subject to a two year statute of limitations. See Beck v. City of Muskogee Police Dep't, 195 F.3d 553 (10th Cir. 1999) (state statute of limitations for general personal injury claims supplies limitations periods for § 1983 claims); K.S.A. § 60-513(a)(4) (two year statute of limitations for personal injury claims). Plaintiff asserts, however, that his claim is tolled until defendants' actions first caused substantial injury. See Plaintiff's Further Response To Defendant(s) Motions To Dismiss Plaintiff's Amended Complaint (Doc. #82) filed October 16, 2002 at 29.
When the face of the complaint shows that the action was filed beyond the applicable statute of limitations, plaintiff must allege facts sufficient to show that the limitations period should be tolled. See Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir. 1980) (when dates in complaint make clear that right sued upon has been extinguished, plaintiff has burden of establishing factual basis for tolling); S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 425 (3d Cir. 1999); LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509-10 (1st Cir. 1998); LRL Props. v. Portage Metro Hous. Auth., 55 F.3d 1097, 1107 (6th Cir. 1995); see also Jackson v. City of Kansas City, Kan., No. 99-2344-KHV, 2000 WL 574986, at *2 (D.Kan. Apr. 6, 2000) (on Rule 12(b)(6) motion, court cannot consider allegations or evidence of tolling outside pleadings). Plaintiff's complaint does not include any allegations which would establish a factual basis for tolling. Moreover, the Court rejects plaintiff's contention that the statute of limitations is tolled until he has complete access to all medical information. For these reasons, defendants' motion to dismiss Count I is sustained.
III. Defendants' Bad Faith In Negotiating The State Court Plea Agreement (Count II) And Defendants' Bad Faith Regarding The Urinalysis Test Used To Revoke Plaintiff's Probation (Count III)
Count II alleges that the State used non-existent evidence to secure plaintiff's plea of no contest and judicial approval of the plea agreement in June of 1999. Count III alleges that defendants intentionally deceived him as to the results of his urinalysis on May 15, 2000 and that Glines in fact asked someone at plaintiff's doctor's office to withhold an exculpatory test. Defendants assert that Counts II and III do not state a basis for federal subject matter jurisdiction.
To recover damages under Section 1983 based on a state court criminal conviction or sentence, plaintiff must prove that his conviction or sentence has been overturned. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). This same rule applies to Section 1983 actions which are based on revocations of probation. See Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996) (Heck applies to proceedings that call into question fact or duration of parole or probation).
Likewise, the Rooker-Feldman doctrine bars a federal court from reviewing the validity of state court rulings. "It is well settled that federal district courts are without authority to review state court judgments [or interlocutory orders] where the relief sought is in the nature of appellate review." Anderson v. State of Colorado, 793 F.2d 262, 263 (10th Cir. 1986); see Bisbee v. McCarty, 3 Fed. Appx. 819, 823 (10th Cir. Feb. 2, 2001) (doctrine applies to both final and interlocutory orders) (citing Brown Root, Inc. v. Breckenridge, 211 F.3d 194, 199 (4th Cir. 2000)). The Rooker-Feldman doctrine prevents "a party losing in state court . . . from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights." Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994). Generally, jurisdiction to review state-court decisions lies exclusively with appellate state courts and ultimately the United States Supreme Court. See Facio v. Jones, 929 F.2d 541, 543 (10th Cir. 1991). The Rooker-Feldman doctrine bars consideration of issues actually presented to and decided by a state court, and also bars consideration of constitutional claims that are "inextricably intertwined" with issues which the state court has adjudicated. See id; Feldman, 460 U.S. at 486 ("Federal district courts do not have jurisdiction over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional.") (internal quotation omitted). A federal claim is inextricably intertwined with the state court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987). In other words, plaintiff may only pursue claims that are "separable from and collateral to" a state court judgment. Kiowa Indian Tribe v. Hoover, 150 F.3d 1163, 1170 (10th Cir. 1998) (citing Pennzoil, supra).
See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 414-16 (1923).
Plaintiff has not alleged that any of the state court rulings have been overturned. Nor has he alleged facts which show that his claims are "separable from and collateral to" the state court decisions. Thus, the Court lacks jurisdiction over Counts II and III. See Heck, 512 U.S. at 486-87; Feldman, 460 U.S. at 482; Rooker, 263 U.S. at 414-16. To the extent that plaintiff seeks to challenge the state court rulings on constitutional grounds, his ultimate judicial remedy is with the United States Supreme Court. See Feldman, 460 U.S. at 482. Under Heck and the Rooker-Feldman doctrine, the Court dismisses Counts II and III for lack of jurisdiction as to all defendants.
Plaintiff does not dispute that on July 18, 2000, he appealed his probation "revocation" to the Kansas Court of Appeals. Plaintiff apparently did not pursue the appeal. See Criminal Appearance Dockets for Case Nos. 97CR379G and 98CR433G, Exhibits 15 and 16 to Defendant's Memorandum (Doc. #75) (letter from plaintiff asking for hearing to be taken off docket).
Indeed, in one his filings, plaintiff asks the Court to vacate his no contest plea in state court because the State of Kansas and its actors acted in bad faith, and he seeks damages for emotional distress caused by their criminal prosecution against him. See Plaintiff's Further Response To Defendant(s) Motions To Dismiss Plaintiff's Amended Complaint (Doc. #82) filed October 16, 2002 at 6, 38.
IV. Release Of Inaccurate Information (Count IV)
Count IV alleges that in plaintiff's criminal history report, the State of Kansas has falsely stated that he was convicted of marijuana possession, growing and distribution, and that he was convicted on DUI and marijuana possession charges which were actually dropped as part of a plea agreement. Plaintiff alleges that because of this false report, "independent investigating entities" have assessed fines, costs and related expenses against him. See Amended Complaint (Doc. #63) ¶¶ 80, 84. As explained above, the State of Kansas is not a "person" capable of being sued under Section 1983. See Will, 491 U.S. at 63-64 (1989). Because plaintiff has not alleged personal participation by any other defendant, the Court must dismiss Count IV for failure to state a claim on which relief may be granted. See Jenkins, 81 F.3d at 994; Bennett, 545 F.2d at 1262-63.
Plaintiff states that an "independent reporting agency is reporting (world wide) misinformation that was wrongfully provided to them by defendants and/or their State Associates." See Plaintiff's Further Response To Defendant(s) Motions To Dismiss Plaintiff's Amended Complaint (Doc. #82) filed October 16, 2002. Plaintiff apparently claims that the State of Kansas has damaged his reputation, but he does not explain why he is subject to fines, costs and related expenses or that any of the individual defendants were involved in this conduct.
V. Plaintiff's Motion For Additional Time To Reply To Glines' Motion To Dismiss
Glines filed his motion to dismiss on September 27, 2002. Under D. Kan. Rule 6.1(e), plaintiff had until October 21, 2002 to respond. On October 8, 2002, plaintiff filed a motion to extend to an unspecified date the time to respond to the motion to dismiss of Glines, the State of Kansas and the Crawford County Court Services Office. See Plaintiffs Response To Defendant Glines Motion To Dismiss And Supporting Memorandum And Request From The Court/Clerk For Additional Time To Further Reply (Doc. #79). Plaintiff apparently had determined that his response was due on October 10. On October 16 and 17, however, plaintiff timely filed more than 200 pages (including exhibits) in opposition to defendants' motions to dismiss. See Plaintiffs Further Response to Defendant(s) Motions To Dismiss Plaintiffs Amended Complaint (Doc. #84) filed October 17, 2002; Plaintiffs Further Response to Defendant(s) Motions To Dismiss Plaintiffs Amended Complaint (Doc. #82) filed October 17, 2002. Because plaintiff timely filed his opposition briefs and he has not identified information which he was unable to file before October 21, the Court overrules his request for an extension of time as moot.
Conclusion
The Court dismisses Counts I through IV against Jeff Glines, James Pratt, the State of Kansas and the Crawford County Court Services Office and dismisses Counts II and III against the Crawford County Attorney's Office. The only remaining claims are Counts I and IV against the Crawford County Attorney's Office, as to which the record contains no evidence of service of process.
Based on the above rulings, the Court need not address Glines' additional argument that as a Court Services Officer, he is entitled to judicial or qualified immunity.
IT IS THEREFORE ORDERED that Defendant Pratt's Motion To Dismiss Plaintiff's Amended Complaint (Doc. #71) filed September 26, 2002 be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that the Motion To Dismiss Amended Complaint (Doc. #74) filed September 27, 2002 by Jeff Glines, the State of Kansas and the Crawford County Court Services Office, be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that Plaintiff's Response To Defendant Glines Motion To Dismiss And Supporting Memorandum And Request From The Court/Clerk For Additional Time To Further Reply (Doc. #79) filed October 8, 2002 be and hereby is OVERRULED as moot.
IT IS FURTHER ORDERED that on or before December 31, 2002, plaintiff shall show cause in writing why the Court should not dismiss Counts I and IV of his amended complaint against the Crawford County Attorney's Office based on (1) Eleventh Amendment immunity, (2) lack of capacity to be sued, and (3) the statute of limitations.
Dated this 17th day of December, 2002 at Kansas City, Kansas.