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Folkers v. Simmons

United States District Court, D. Kansas

April 7, 2015

CHRIS FOLKERS, Plaintiff,
v.
AARON SIMMONS, et al., Defendants.

MEMORANDUM AND ORDER

ERIC F. MELGREN, District Judge.

Plaintiff Chris Folkers filed this suit pro se alleging violations of his rights under the Kansas and United States Constitutions, federal and state statutes, and state tort law. Plaintiff asserts claims against Defendants Aaron Simmons, John Harvell, Elizabeth Boldt, [First Name Unknown] Brokaw, three unnamed male law enforcement officers, and one unnamed woman in their official and individual capacities. Before the Court is Defendants Simmons, Harvell, Boldt, and Brokaw's Motion to Dismiss (Doc. 5). Because the Court finds that Plaintiff has failed to state a claim under which relief may be granted, the Court grants Defendants' motion. In light of this decision, the Court also denies as moot Plaintiff's Motion to Remand (Doc. 9) and Motion for Review of Magistrate's Orders (Doc. 17).

I. Factual and Procedural Background

Plaintiff is a resident of the State of Kansas. On April 26, 2014, Defendant Simmons, a law enforcement officer, conducted a traffic stop and issued Plaintiff a Kansas Uniform Complaint and Notice to Appear for exceeding the speed limit while operating a vehicle in the City of Merriam, Kansas. The Notice to Appear required Plaintiff's appearance in the Municipal Court of Merriam, Kansas.[1]

On June 26, 2014, Plaintiff filed a Motion to Strike/Dismiss the speeding ticket issued by Officer Simmons challenging the subject matter jurisdiction of the City and the Municipal Court. Two weeks later, on July 10, 2014, Plaintiff appeared before Municipal Court Judge Harvell at the City of Merriam Municipal Court. Judge Harvell indicated that he had read Plaintiff's Motion to Strike/Dismiss and that he was denying it. Plaintiff argued that the motion was unopposed by the City, whereupon Defendant Boldt, a City of Merriam prosecutor, stated that she had not received a copy of it. After this exchange, Judge Harvell denied the motion, entered a plea of not guilty on Plaintiff's behalf, and set a trial date of September 18, 2014.

On September 15, 2014, Plaintiff filed a renewed motion to dismiss for lack of subject matter jurisdiction, hand-delivering the motion to Defendant Boldt and Defendant Simmons by leaving it with the City Clerk in a sealed envelope. According to Plaintiff, the motion states a claim of abuse of legal process under Kansas law-a criminal violation relating back to the April 26, 2014, Notice to Appear.

Plaintiff appeared at the Merriam Municipal Court for his trial on September 18, 2014. After Judge Harvell heard thirty to forty minutes of other matters, Plaintiff spoke out under his breath. Plaintiff then claims that he noticed Defendant Simmons in the room, in the first row, near Defendant Boldt's chair and desk. Plaintiff saw Defendants Simmons and Boldt converse and then saw Defendant Boldt go to Judge Harvell's chair in the center of the room and spoke with him about the motion Plaintiff filed on September 15, 2014.

After these conversations, Defendant Simmons left his seat at the front of the courtroom and went to the back of the room to talk with Defendant Brokaw, a Merriam City police officer. Defendant Brokaw then approached Plaintiff and asked to speak with him outside the courtroom. Once outside, Brokaw indicated that a woman sitting in the front of the room overheard him say something about wanting to bomb the court. Plaintiff denied making this statement.

At some point, two other law enforcement officers employed by the City of Merriam appeared behind Plaintiff. Defendant Brokaw stated that he was going to search Plaintiff, and Plaintiff responded that he did not consent. Defendant Brokaw placed Plaintiff in handcuffs while the two other officers restrained him. Defendant Brokaw then searched Plaintiff's pockets, finding keys, a wallet, money, and a digital recorder.

Plaintiff claims that after the search he was returned to the courtroom in shackles where Judge Harvell held him in contempt of court "for failure to stand'" and set a bond of $500.00.[2] Judge Harvell also continued Plaintiff's trial to September 23, 2014.

Defendant Brokaw then took Plaintiff downstairs, and Plaintiff asked him for a piece of paper and a pen to write a writ of habeas corpus. Defendant Brokaw did not grant Plaintiff's request. Another unnamed Merriam Police Officer drove Plaintiff to the Johnson County Detention Center in Olathe, Kansas, where he spent over fifteen hours in an eight-foot by ten-foot room before being released.

On September 22, 2014, Plaintiff filed suit against Defendants in the District Court of Johnson County, Kansas. Plaintiff's complaint sets forth sixteen counts against Defendants. Plaintiff's claims consist of the following: "willful violations of Kansas Constitution Bill of Rights' sections 1, 3, 8, 10, 15, and 20, Kansas criminal statutes and U.S. Constitution amendments 1, 4, 5, 6, 10 and 14 and Federal criminal statutes, " willful abuse of legal process, conspiracy to abuse the legal process, "tort conversion of Kansas and U.S. Constitutional rights, " "violation of 15 USC (FDCPA), " "Civil RICO, " and state law tort claims of battery, assault, false imprisonment, gross negligence, negligent malpractice, failure in duty of care, and intentional infliction of emotional distress.[3] Defendants Harvell, Simmons, Boldt, and Brokaw removed the case to this Court on October 9, 2014. That same day, Defendants filed a Motion to Dismiss, which is now before the Court.

II. Legal Standard

Under Rule 12(b)(6), a defendant may move for dismissal of any claim for which the plaintiff has failed to state a claim upon which relief can be granted.[4] Upon such motion, the court must decide "whether the complaint contains enough facts to state a claim to relief that is plausible on its face.'"[5] A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct.[6] The plausibility standard reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of the nature of the claims as well as the grounds upon which each claim rests.[7] Under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint but need not afford such a presumption to legal conclusions.[8] Viewing the complaint in this manner, the court must decide whether the plaintiff's allegations give rise to more than speculative possibilities.[9] If the allegations in the complaint are "so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.'"[10]

The pleadings of a pro se plaintiff are to be liberally construed.[11] But, the Court is not an advocate and will not allege additional facts or assert alternative legal theories for the pro se party.[12] To avoid dismissal, the pro se complaint "must 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... [and] must allege sufficient facts to state a claim which is plausible-rather than merely conceivable-on its face."[13]

III. Analysis

A. Plaintiff's Complaint Fails to State a Claim under Rule 12(b)(6).

Plaintiff's complaint is difficult to understand. Although it sets forth sixteen counts against Defendants, these counts contain a mishmash of statements concerning Defendants' alleged conduct and only vaguely refer to the legal theories under which he is asserting his claims. Plaintiff's introductory paragraph asserts that he is alleging violations of federal and state criminal statutes, 15 U.S.C., 42 U.S.C. §§ 1983, 1985, 1986, and 1966, and 18 U.S.C., as well as the Kansas and United States Constitutions. But, even a liberal reading of Plaintiff's complaint fails to reveal facts supporting these legal theories and fails to identify a specific violation under these legal theories. The Court will address each of Plaintiff's claims below, although not necessarily in the order in which they appear in the complaint.

1. Violations of the Kansas and United States Constitutions

In Count 1, Plaintiff asserts that Defendants Simmons, Harvell, Boldt, Brokaw, and the three unnamed law enforcement officers willfully violated the "Kansas Constitution Bill of Rights' sections 1, 3, 8, 10, 15, and 20, Kansas criminal statutes, and U.S. Constitution Amendments 1, 4, 5, 6, 10, and 14 and Federal Criminal Statutes."[14] Plaintiff also asserts that Defendants "willfully committed felony perjury and treason of and upon their sworn oaths of office by their willful conducts."[15]

Count 1 fails to meet the requirements of Rule 12(b)(6). Plaintiff has not set forth any federal or state statute that Defendants allegedly violated. Even if the court assumes Plaintiff is bringing a claim under 42 U.S.C. § 1983, Plaintiff's claim still fails because he has not identified the precise constitutional right that was allegedly infringed.[16] Plaintiff generally asserts that Defendants violated certain amendments from the Kansas and United States Constitutions, but he does not specifically state what rights under these amendments were violated. Neither Defendants nor the Court is required to guess what Plaintiff's claim is. Because Count 1 does not set forth a "plausible" claim, this count must be dismissed.

2. Criminal Statutes

Plaintiff appears to assert a private cause of action against Defendants for violation of federal and state criminal statutes under Counts 2, 4, and 5 Defendant asserts Count 2 against Defendant Judge Harvell for willful abuse of the legal process, alleging that Judge Harvell committed felony perjury and treason. Plaintiff asserts Count 4 against all Defendants except Defendant Jane Doe 1. Count 4 alleges an abuse of legal process claim and a variety of criminal assault and battery claims and false charge claims. Plaintiff brings Count 5 against Defendant Jane Doe 1, who was the woman in the courtroom who allegedly overheard Plaintiff say he wanted to bomb the court. Plaintiff asserts that Defendant Jane Doe 1 abused the legal process and violated Kansas and federal terror laws when she accused him of making that statement.

"Generally, criminal statutes, state or federal, do not create a private cause of action. Instead they are enacted to protect the public at large and provide a penal remedy for their violation."[17] Plaintiff's complaint fails to direct the Court to any state or federal criminal statute that provides a civil remedy under this legal theory. Instead, Plaintiff simply refers to "Kansas and Federal felony crimes" or "Federal and Kansas terror laws."[18] Plaintiff's ...


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