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Farr v. Davis

United States District Court, D. Kansas

April 6, 2017

JOAN E. FARR, pro se, Plaintiff,
v.
DARYL DAVIS, et al., Defendants.

          MEMORANDUM & ORDER ON MULTIPLE MOTIONS and REPORT & RECOMMENDATIONS TO DENY MOTION TO JOIN ADDITIONAL DEFENDANTS

          KENNETH G. GALE United States Magistrate Judge

         NOW BEFORE THE COURT are the following motions filed by pro se Plaintiff Joan Farr (hereinafter “Plaintiff”):

1. Motion to Stipulate (Doc. 44);
2. Motion to Join Additional Party as Plaintiff (Doc. 45);
3. Motion for Leave to Join Additional Defendants (Doc. 46); and
4. Motion for Rule 35 Mental Evaluation (Doc. 48).

         Defendant has responded to each of the motions. Plaintiff has replied (Doc. 61) to the Motion to Join Additional Party as Plaintiff (Doc. 45), but chose not to reply as to the other motions. Although replies have yet to be filed to the remaining motions, the Court finds that additional briefing would not be beneficial. As such, the Court will address each motion individually herein.

         BACKGROUND

         Plaintiff filed the present lawsuit, pro se, individually and on behalf of residents of the Huckleberry Estates addition to Derby, Kansas. (See Doc. 1.) Plaintiff alleges that Defendants violated her First Amendment rights and converted her private property. (Id.) She also brings a claim for “intentional emotional distress/tort of outrage.” (Id.) Among her factual allegations is that Defendants influenced the police to harass her.

         Defendants previously moved to dismiss Plaintiffs' claims, arguing that she failed to sufficiently plead a federal cause of action under 42 U.S.C. § 1983 because she did not adequately allege that Defendants were acting under color of state law. (See Doc. 13.) The District Court denied Defendants' motion, holding that

Plaintiff has pleaded a cause of action under 42 U.S.C. § 1983, as well as underlying facts that could potentially support such a claim. Plaintiff's complaint states that defendant Davis called the sheriff's office and urged officers to arrest plaintiff's son at plaintiff's house. Then, approximately eight officers surrounded plaintiff's house, drew their guns, and began banging on her doors and yelling for her son to come out. This allegedly continued for almost an hour, with one of the officers shouting “If he doesn't come out, we're coming in!” Lastly, the complaint states, “[T]he sheriff's officers finally left, since they had no legal authorization to enter plaintiff's home.” Taken together, and when the pro se plaintiff's complaint is construed liberally, plaintiff has alleged facts that could allow a reasonable jury to infer that defendants conspired together to successfully exert influence over the police, and therefore should be treated as state actors under 42 U.S.C. § 1983.

(Doc. 20, at 5-6.)

         Plaintiff initially filed a motion to amend last fall, seeking leave to add violations of 18 U.S.C. § 242. That federal statute states:

[w]hoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. . . shall be fined under this title or imprisoned not more than one year, or both.

(Doc. 27, at 1.) Soon thereafter, Plaintiff requested and received a stay of 120 days in this case because of persisting health issues and impending surgery. (Docs. 31; see also, Doc. 32, text order granting stay.) Plaintiff's then-pending motion to amend was denied ...


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