Opinion
24-2395-KHV-BGS
11-08-2024
PHILIP N. JAAX, Plaintiff, v. STATE OF KANSAS, et al., Defendants.
REPORT AND RECOMMENDATION FOR DISMISSAL OF AMENDED COMPLAINT
BROOKS G. SEVERSON, UNITED STATES MAGISTRATE JUDGE
Plaintiff Philip Jaax filed this action pro se. In conjunction with his federal court complaint (Doc. 1), Plaintiff filed a motion to proceed without prepayment of fees, which is a motion requesting leave for Plaintiff to proceed in forma pauperis (“IFP”). Doc. 3. That motion was granted; however, service was not authorized. Doc. 8. Plaintiff subsequently filed an amended complaint on October 3, 2024. Doc. 10. After review of Plaintiff's amended complaint, however, the Court recommends to the District Court that Plaintiff's claims against Defendants be dismissed for failure to state a claim upon which relief may be granted and for lack of subject matter jurisdiction.
Plaintiff proceeds pro se. The Court construes his filings liberally and holds him to a less stringent standard than trained lawyers. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the Court does not assume the role of advocate for the pro se litigant. Hall, 935 F.2d at 1110.
I. Standard of Review for IFP Complaints
When a Plaintiff proceeds IFP, the court may screen the Complaint under 28 U.S.C. § 1915(e)(2). The court “shall dismiss” an in forma pauperis case “at any time if the court determines that ... the action or appeal - (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). “When a plaintiff is proceeding in forma pauperis, a court has a duty to review the complaint to ensure a proper balance between these competing interests.” Mitchell v. Deseret Health Care Facility, No. 13-1360-RDR-KGG, 2013 WL 5797609, at *1 (D. Kan. Sept. 30, 2013). The purpose of § 1915(e) is “the prevention of abusive or capricious litigation.” Harris v. Campbell, 804 F.Supp. 153, 155 (D. Kan. 1992) (internal citation omitted) (discussing similar language contained in § 1915(d), prior to the 1996 amendment). Sua sponte dismissal under § 1915(d) may be appropriate when “on the face of the complaint it clearly appears that the action is frivolous or malicious.” Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991) (citing Henriksen v. Bentley, 644 F.2d 852, 854 (10th Cir.1981)).
In addition, the court also has an obligation to ensure it has subject matter jurisdiction to hear and resolve the action. See Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). The court may raise the issue sua sponte. See 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006). Federal courts are courts of limited jurisdiction and may only exercise jurisdiction when authorized. Pfuetze v. Kansas, No. 10-1139-CM-GLR, 2010 WL 3892243, at *3 (D. Kan. Sept. 29, 2010), aff'd, 420 Fed.Appx. 854 (10th Cir. 2011). When it becomes apparent that subject matter jurisdiction is lacking, the court must dismiss the case regardless of the stage of the proceeding. Fish v. Kobach, 189 F.Supp.3d 1107, 1124-25 (D. Kan. 2016). The court has a duty to raise and resolve issues of subject matter jurisdiction, even if no party has objected to the exercise of jurisdiction. Wachovia Bank v. Schmidt, 546 U.S. 303, 305 (2006). To determine whether a plaintiff has adequately alleged subjectmatter jurisdiction, the court looks to the face of the complaint. Penteco Corp. v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991).
In determining whether dismissal is appropriate under 28 U.S.C. § 1915(e)(2)(B), a plaintiff's complaint will be analyzed by the Court under the same sufficiency standard as a Fed.R.Civ.P. 12(b)(6) motion to dismiss for failure to state a claim. Kajy v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). In conducting this analysis, the Court will accept as true all well-pleaded facts and draw all reasonable inferences from those facts in favor of a plaintiff. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006).
While a complaint generally need not plead detailed facts, it must give the defendant sufficient notice of the claims asserted by the plaintiff so they may provide an appropriate answer. Fed.R.Civ.P. 8(a); Monroe v. Owens, 38 Fed. App'x. 510, 515 (10th Cir. 2002) (citation omitted). This requires that a complaint contain three minimal pieces of information: (1) a short and plain statement of the claim showing that the pleader is entitled to relief, (2) a short and plain statement of the grounds upon which the court's jurisdiction depends, and (3) the relief requested. Fed.R.Civ.P. 8(a).
Because the court will liberally construe the pleadings of a pro se plaintiff, the court should “reasonably read the pleadings to state a valid claim on which the plaintiff could prevail ... despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. The court cannot, however, become an advocate for the pro se plaintiff. Id.
A pro se Plaintiff's complaint must still “set forth the grounds of plaintiff's entitlement to relief through more than labels, conclusions, and a formulaic recitation of the elements of a cause of action.” Fisher v. Lynch, 531 F.Supp.2d 1253, 1260 (D. Kan. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007), and Hal/, 935 F.2d at 1110 (holding that a plaintiff need not precisely state each element, but must plead minimal factual allegations on those material elements that must be proven)). “In other words, plaintiff must allege sufficient facts to state a claim which is plausible - rather than merely conceivable - on its face.” Id. (citing Twombly, 550 U.S. at 570, 127 S.Ct. at 1974). See also Bemis, 500 F.3d at 1218 (stating that factual allegations in the complaint must establish “above the speculative level” that plaintiff is entitled to relief).
The Court's relaxed scrutiny of the pro se plaintiff's pleadings “does not relieve [him] of the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall, 935 F.2d at 1110. A pro se plaintiff's pleading conclusory statements is insufficient to state a claim because no special legal training is required to “recount the facts surrounding his alleged injury[.]” Id. See also Olson v. Carmack, 641 Fed. App'x. 822, 825 (10th Cir. 2016). If this Court finds, after construing the allegations in Plaintiff's complaint liberally, that Plaintiff has failed to state a claim upon which relief may be granted, the court is compelled to recommend that the action be dismissed.
II. Plaintiff's Claims and Factual Allegations
On August 30, 2024, Plaintiff's brought suit against the State of Kansas, Ellis County, the City of Hays, Ellis County District Court, Don Scheibler, and Scott Braun. He also named John and Jane Does 1 to 100. Doc. 1. After reviewing the complaint, the Court recommended to the District Judge that the case be dismissed for failure to state a claim and for lack of subject-matter jurisdiction. Doc. 9. In response to the undersigned's report and recommendation, Plaintiff filed an amended complaint and a motion to amend the complaint. The Court recognized that Plaintiff may amend his complaint as a matter of right and granted the motion. Doc. 12. As more fully discussed below, the amended complaint does not fix the deficiencies noted in the original report and recommendation.
The amended complaint removed some Defendants and added others. The current Defendants are the State of Kansas, Ellis County, Brad Steen, the Hays Police Department, the Ellis County Sheriff, the Ellis County Court, and the Hays Police Chief. He also names John Does 1-100 and ABC Corporations 1-100. Similar to his original complaint, the exact nature of his claims against the Defendants are unclear. He first alleges that the Defendants violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68, and 42 U.S.C. § 1983 for violations of his constitutional rights and racketeering. Additionally, he states that the Defendants attempted to “remove the Constitutional Rights of Plaintiff under the First, Third, Fourth, Fifth, Sixth and Fourteenth Amendments.” Doc. 10, at 3.
The Court notes that there are several causes of action potentially available under those amendments, most of which are not applicable. It is not the Court's role to read additional claims or facts into Plaintiff's complaint. Hall, 935 F.2d at 1110. Nor is it the Court's role to “supply additional factual allegations to round out a plaintiff's complaint” or assume causes of action. Whitn.y v. State of N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997). In other words, it not for the Court to guess what claims Plaintiff is intending to assert. The Court will screen through the complaint to attempt to “reasonably read the pleadings to state a valid claim;” however, it will not assume the role of advocate. Hall, 935 F.2d at 1110.
Similar to Plaintiff's original complaint, the facts in Plaintiff's amended complaint are hard to follow. However, most of Plaintiff's grievances seem to stem from his criminal proceeding in state court. The amended complaint alleges that on December 31, 2023, his iPhone indicated that multiple “Apple AirTags” were tracking him on his way from Colorado to Hays, Kansas. After becoming aware, Plaintiff contacted the Hays Police Department who directed him to drive to the police station for assistance. Upon arrival, he alleges that the police officers searched his vehicle and found a syringe, which he alleges was planted by the officers. Plaintiff underwent sobriety tests and submitted to a breathalyzer which Plaintiff says he passed. He also informed the police that he was prescribed “Adderall XR” which was confiscated by the police who informed him that he is “not allowed to drive on his Adderall XR.” Doc. 10, at 1. Plaintiff informed the officers that he would consent to a blood test at a hospital to test for narcotics. The police obtained a warrant for the blood test. Plaintiff takes issue that the warrant was stamped with a judge's signature rather than signed with wet ink. After the blood test, he was placed in jail for 13-days. In his motion for a temporary restraining order, he alleges that he was unlawfully arrested for driving under the influence and the officers lied on the police report and planted evidence. Doc. 5, at 5. Plaintiff was held for 10 business days which he views as unjustifiably long.
He further alleges that he was denied a speedy trial, his motions filed in state court were not ruled on in a timely manner, and his court-appointed defense attorney was biased in favor of the court and prosecution. He also alleges that:
[Defendants] are attempting to extradite him and then arrest him and hold him without bond because of him locating emails and also asking questions of his defense attorney who was requested several times to have the case dropped and never did who lied along with the prosecuting attorney to try to force Plaintiff into a plea bargain that he did not agree to when he requested a Trial By Jury. Now defendants are not giving him an attorney to help try this case and give Plaintiff the best criminal defense possible.Doc. 5, at 5. The amended complaint also alleges several grievances Plaintiff has with his state court proceeding. He states that he was being coerced in accepting a plea deal, ignored his request for an immediate jury trial, his court-appointed counselor was involved in a concerted effort to extradite him, alleges “they are attempting to entrap him and destroy his life.,” and other complaints about his court case. Doc. 10, at 2. His amended complaint indicates that the state court proceedings have not yet resolved. Attached to the original complaint were various filings from his action in state court. These included a motion to quash his arrest warrant, communications with the Ellis County District Court, a motion to discharge his attorney and reassign counsel, and a motion for a continuance. See Doc. 1-1. Plaintiff attached these exhibits presumably to show how his state court proceeding is unfair or against his rights.
As a result of Defendants' conduct, Plaintiff alleges that he is homeless, no longer has his vehicle, and lost his job. Doc. 10, at 3. Plaintiff seeks $100,000 in compensatory damages, punitive damages, injunctive relief to prevent future violations, and attorney's fees.
It is difficult for the Court to ascertain exactly what claims he is alleging and against which Defendant. It is not the Court's role to read additional facts into Plaintiff's complaint nor assume the role of advocate. Hall, 935 F.2d at 1110. From what the Court can gather, it appears that Plaintiff is making claims that his civil rights were violated arising from his arrest and subsequent criminal proceedings.
These issues are addressed in more detail below.
Plaintiff's amended complaint fails to state a claim upon which relief can be granted and most, if not all, of his claims are barred by the Rooker-Feldman doctrine. For the reasons stated below, the undersigned recommends that Plaintiff's claims be dismissed.
III. Analysis
A. Plaintiff's Complaint Fails to State a Claim upon which Relief may be Granted.
First, he alleges violations under RICO, 18 U.S.C. §§ 1961-68. The RICO Act is a federal criminal statute which targets criminal activity and racketeering and creates enhanced punishment for the same. Under some circumstances, there may be a civil cause of action under RICO. See 18 U.S.C. § 1964(c). RICO vests a private citizen with substantive rights to avoid injury to “his business or property” caused by a pattern of racketeering activity, and it explicitly creates a federal cause of action to vindicate those federal rights. Id. However, a plaintiff must prove that (1) a defendant violated the RICO statute, (2) that plaintiff's business or property were injured, and (3) that the defendant's violation caused the injury. Safe Streets All. v. Hickenlooper, 859 F.3d 865, 881 (10th Cir. 2017). It is clear that Plaintiff is not alleging harm to a business but is upset with how he perceives government officials and/or entities were treating him. As such, any civil cause of action under RICO fails.
Additionally, a plaintiff generally cannot assert causes of action under a criminal statute. Title 18 of the United States Code does not provide for a private cause of action. Etheredge v. Kansas, No. 23-2333-JAR-ADM, 2023 WL 5351163, at *2 (D. Kan. Aug. 21, 2023), report and recommendation adopted, No. 23-2333-JAR-ADM, 2023 WL 9196696 (D. Kan. Sept. 12, 2023). To the extent, Plaintiff is attempting to enforce a criminal statute, that also fails. Accordingly, the Court recommends that Plaintiff's RICO claims be dismissed against all Defendants.
Plaintiff also alleges the Defendants violated 42 U.S.C. § 1983 and violated the First, Third, Fourth, Fifth, Sixth and Fourteenth Amendments. He alleges that they are responsible for his illegal arrest and are involved in misconduct during his state court proceedings. The Court is unsure of what role each Defendant had in the events alleged in the amended complaint. He identifies the State of Kansas, Brad Steen as an attorney, Ellis County, the Ellis County Court, the Hays Police Department, the police chief, and the sheriff of Ellis County. He also lists John Does and ABC corporations 1-100. He does not state what role any of these Defendants had in his arrest or in any of the events alleged in the complaint. He also does not state whether he is suing the individuals in their personal or official capacity.
All other claims he is attempting to assert have no factual support and should be dismissed for the reasons discussed herein.
Whether Plaintiff is attempting to assert personal or official capacity claims makes no difference in the Court's analysis.
Although courts construe pro se pleadings liberally, courts “will not supply additional factual allegations to round out a plaintiffs complaint.” Whitney v. State of N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997). Plaintiff supplies general facts as to the circumstances surrounding his arrest and his state court case. However, he does not articulate a basis to sue the State of Kansas, the police chief, Brad Steen, Ellis County or the any other municipality. To state a claim against a municipality under 42 U.S.C. § 1983, a Plaintiff must show: (1) the existence of a municipal policy or custom and (2) a direct causal link between the policy or custom and the injury alleged. Poore v. Glanz, 724 Fed.Appx.635, 644 (10th Cir. 2018). To allege a claim against an individual under 42 U.S.C. § 1983, he must allege “that [the] person has deprived him of a federally protected right and [ ] the person who has deprived him of that right acted under the color of state law.” Houston v. Reich, 932 F.2d 883, 890 (10th Cir. 1991). When suing an individual under § 1983 in their individual or personal capacity, “the complaint [must] make clear exactly who is alleged to have done what to whom .. as distinguished from collective allegations.” Brown v. Montoya, 662 F.3d 1152, 1165 (10th Cir. 2011) (citing Kansas Penn Gaming, L.L.C. v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Additionally, there must be facts supporting an intentional violation of a right secured by the Constitution and laws of the United States. Crump v. Clemens, No. 24-3076-JWL, 2024 WL 3328424, at *7 (D. Kan. July 8, 2024).
Here, Plaintiff does not allege facts supportive of an intentional violation of the law, and importantly, these issues are being litigated in his state court proceeding. See, e.g., Allen v. Kansas, No. 21-1250-JWB-KGG, 2021 WL 4948261, at *4 (D. Kan. Oct. 25, 2021) (finding that plaintiff's civil rights claims fail to state a claim). There are no facts supportive of a constitutional violation by any of the named Defendants. He also does not plead any policy that could subject the municipal Defendants to liability. Debbrecht v. Ciy of Haysville, Kan., No. 10-1419-JAR-DJW, 2012 WL 1080527, at *6 (D. Kan. Feb. 7, 2012), report and recommendation adopted, No. 10-CV-1419-JAR, 2012 WL 1080923 (D. Kan. Mar. 29, 2012) (recommending dismissal of a § 1983 claim for failure to identify a custom or policy). Plaintiff also does not specify what action each Defendant took. Where a complaint attributes all actions to the “Defendants” or a collection of individuals without specifying what actions are attributable to each individual defendant, a claim fails to meet the requirements of Fed.R.Civ.P. 8 and should be dismissed for failure to state a claim upon which relief may be granted. See Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008). These deficiencies alone are grounds for the amended complaint to be dismissed. However, there are also issues pertaining to subject-matter jurisdiction.
Plaintiff is also attempting to sue the Hays Police Department. That entity is not capable of being sued. Arnold v. City of Wichita Police Dep't, No. 19-3016-DDC-TJJ, 2020 WL 136851, at *3 (D. Kan. Jan. 13, 2020) (finding that a city police department does not have the capacity to sue or be sued absent statutory authority). Similarly, he is attempting to sue the Ellis County Court. A courthouse is a non-suable entity. Rawson v. Sumner Cny. Dist. Ct., No. 24-2101-JWB-BGS, 2024 WL 3742774, at *3 (D. Kan. Apr. 29, 2024). Accordingly, the Magistrate Judge recommends that the Hays Police Department and Ellis County Court be dismissed on that basis.
B. This Court has no Subject Matter Jurisdiction Plaintiff's Claims.
Most of Plaintiff's claims relate to his state court proceedings that are referenced in his amended complaint. This Court does not have subject matter jurisdiction over such claims. Pursuant to the Rooker-Feldman doctrine, a federal court does not have jurisdiction to review decisions of a state court or any claim “inextricably intertwined” with claims decided by a state court. See Mounkes v. Conklin, 922 F.Supp. 1501, 1508-10 (D. Kan. 1996) (explaining the doctrine, deriving from District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923)). In this case, Plaintiff is essentially requesting the Court to overturn or intervene in his state court action. He requests the Court to prevent extradition and to protect him from being arrested. He also alleges numerous facts that are being litigated in his state court proceedings. All of these claims are intertwined with his state court case and the Court does not have jurisdiction to review those decisions or to interfere in that action. Plaintiff's pleading fails to establish subject matter jurisdiction pursuant to the Rooker-Feldman doctrine.
Accordingly, the undersigned recommends to the District Judge that Plaintiff's amended complaint be dismissed for failure to state a claim upon which relief may be granted and for lack of subject matter jurisdiction.
IT IS THEREFORE RECOMMENDED to the District Court that Plaintiff's amended complaint (Doc. 10) be DISMISSED for lack of subject-matter jurisdiction and failure to state a claim upon which relief may be granted.
IT IS ORDERED that a copy of the recommendation shall be sent to Plaintiff via certified mail. Pursuant to 28 U.S.C. § 636(b)(1), Fed R. Civ. P. 72, and D. Kan. Rule 72.1.4, Plaintiff shall have fourteen (14) days after service of a copy of these proposed findings and recommendations to serve and file with the U.S. District Judge assigned to the case, any written objections to the findings of fact, conclusions of law, or recommendations of the undersigned Magistrate Judge. Plaintiff's failure to file such written, specific objections within the 14-day period will bar appellate review of the proposed findings of fact, conclusions of law, and the recommended disposition. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
IT IS SO RECOMMENDED.