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Simmons v. Kansas Department of Revenue

United States District Court, D. Kansas

February 6, 2017



          Gerald L. Rushfelt United States Magistrate Judge


         Within fourteen days after a party is served with a copy of this Report and Recommendation, that party may, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, file written objections to the Report and Recommendation. A party must file any objections within the fourteen-day period allowed if that party wants to have appellate review of the proposed findings of fact, conclusions of law, or the recommended disposition. If no objections are timely filed, no appellate review will be allowed by any court.


         The Court has previously granted Plaintiff leave to proceed in forma pauperis.[1] As a result, his Complaint is subject to screening under 28 U.S.C. § 1915(e)(2). As explained more fully below, the Court recommends dismissal of this action for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.


         A. Background

         Plaintiff, proceeding pro se, alleges that one or both Defendants seized Plaintiff's assets and delivered the assets to an auction company to be sold at auction, pursuant to state tax demands from the Kansas Department of Revenue. Plaintiff alleges that Defendant did this in spite of its awareness of the existence of prior and superior claims on these assets. As a result of the seizure of these assets, Plaintiff alleges he and his business suffered severe financial loss. In his Complaint, Plaintiff requested a thirty-day “stay of proceedings to enforce a judgment” pursuant to Fed.R.Civ.P. 62, apparently in an effort to stay the execution of a sale made to satisfy a Kansas state obligation. Defendant repeated his request in a Motion for Order Granting Stay of Execution.[2] The Court, on January 5, 2017, denied Plaintiff's motion.[3]

         B. Subject Matter Jurisdiction

         Although 28 U.S.C. § 1915(e)(2) does not contemplate dismissal for lack of subject matter jurisdiction, a court lacking jurisdiction must dismiss a case at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.[4] Thus, when a court encounters a jurisdictional issue in the process of screening a complaint pursuant to § 1915(e)(2), the court has a duty to address the issue.[5]

         Plaintiff first suggests in his Complaint that subject matter jurisdiction arises based on diversity of citizenship of the parties.[6] “When jurisdiction is premised on diversity of citizenship under 28 U.S.C. § 1332(a), as is the case here, each plaintiff must be diverse from each defendant to have what is known as complete diversity.”[7] Here, Plaintiff alleges that he is a citizen of Kansas, and one of the Defendants is a citizen of Kansas while the other is a Missouri corporation. Because both Plaintiff and one of the Defendants are Kansas citizens, there is a lack of complete diversity as required by § 1332(a). The Court therefore lacks diversity jurisdiction.

         Plaintiff also asserts that jurisdiction arises based on violation of civil or equal rights, privileges, or immunities pursuant to 28 U.S.C. § 1343. Plaintiff requests, inter alia, a stay of execution of a state court judgment regarding the disposition of his assets.[8] Under the Rooker-Feldman doctrine, federal district courts lack jurisdiction to review state court judgments.[9] The Rooker-Feldman doctrine “precludes federal district courts from effectively exercising appellate jurisdiction over claims ‘actually decided by a state court' and claims ‘inextricably intertwined' with a prior state-court judgment.”[10] In Weaver v. Boyles, this Court dismissed an action similar to this case, premised on § 1343 jurisdiction, in which the plaintiff sought reversal of state agencies and private companies' seizure of his assets pursuant to state court judgments.[11] In dismissing the plaintiff's Complaint, Judge Crow explained that the Rooker-Feldman doctrine barred the plaintiff's claim because granting the requested relief would require the Court to review and declare wrong the prior state judgments.[12] As in Weaver, Plaintiff's claims here are “inextricably intertwined” with state judgments concerning the disposition of his assets. Accordingly, the Court lacks jurisdiction to pass upon Plaintiff's claims.

         C. Failure to State a Claim

         In addition to recommending dismissal for lack of jurisdiction, the Court also recommends dismissing this case for failure to state a claim upon which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Under § 1915(e)(2)(B), a court, after granting leave to proceed in forma pauperis, must screen a Complaint to determine whether the case should be dismissed because “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.” In determining whether a case must be dismissed for failure to state a claim under § 1915(e)(2)(B)(ii), courts employ the same standard applicable to determining a motion to dismiss under Fed.R.Civ.P. 12(b)(6).[13] To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must present factual allegations, assumed to be true, that “raise a right to relief above the speculative level” and must contain “enough facts to state a claim to relief that is plausible on its face.”[14] “[T]he complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”[15] The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than “a sheer possibility.”[16] “[M]ere ‘labels ...

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