United States District Court, D. Kansas
SANTINE M. WHITE, Plaintiff,
CITY OF GRANDVIEW PLAZA, ET AL., Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
plaintiff Santine M. White brings this civil rights action
against defendants City of Grandview Plaza, Grandview Police
Department, Lieutenant Shawn Peirano, and Officer Shawn
Weeks. In short, plaintiff alleges that defendants violated
his constitutional rights and Kansas law during a traffic
stop and arrest on April 27, 2010. Plaintiff filed this
action in the District Court of Geary County, Kansas on
September 30, 2016. Doc. 1-1. On October 19, 2016, defendants
removed the action to this court under 28 U.S.C. § 1331,
asserting that the federal court has original jurisdiction
over plaintiff's claims for constitutional violations
under 42 U.S.C. § 1983-claims that arise under federal
matter is before the court on several pending motions. First,
plaintiff has filed a Motion to Remand. Doc. 8. The motion
asks the court to remand the case to Geary County, Kansas.
The court denies this motion as moot. Defendants properly
removed the case under 28 U.S.C. §§ 1331, 1441(a),
1446. The court has original jurisdiction over
plaintiff's federal claims and supplemental jurisdiction
over his state law claim. But, plaintiff's federal claims
fail to state a claim for relief, and the court, in its
discretion, declines to exercise supplemental jurisdiction
over the state law claim. So, the court remands the case to
the District Court of Geary County, Kansas.
defendants have filed a Motion to Strike. Doc. 17. This
motion asks the court to strike a Statement of Claim that
plaintiff has filed. Doc. 16. Defendants assert that this
Statement of Claim is an Amended Complaint that plaintiff
filed without written consent or leave from the court as
Fed.R.Civ.P. 15(a)(2) requires. The court agrees. The court
thus grants defendants' Motion to Strike and strikes
plaintiff's Statement of Claim.
plaintiff has filed a Motion for Order. Doc. 19. This motion
asks the court to supplement the record with certain
information. Although the court refuses to consider this
filing as an Amended Complaint because plaintiff has not
satisfied the requirements of Rule 15(a)(2), the court allows
plaintiff to supplement the record with the information
contained in Doc. 19. The court thus grants plaintiff's
Motion for Order.
plaintiff has filed a “Motion/Notice of a
Constitutional Challenge of Statute.” Doc. 20. This
filing is difficult to understand but it appears that
plaintiff is asking the court to intervene under 28 U.S.C.
§ 2403(a) and that plaintiff seeks to challenge the
constitutionality of a Kansas statute-Kan. Stat. Ann. §
22-2401a(2)(a). To the extent the court can construe this
filing liberally as one seeking leave to file an amended
complaint, the court denies the request because plaintiff has
not complied with D. Kan. Rule 15.1(a)(2). But, even if
plaintiff had complied with the local rule, the court would
deny plaintiff leave to file an amended complaint because his
purported constitutional challenge is futile.
defendants have filed a Motion to Dismiss. Doc. 7. Defendants
ask the court to dismiss plaintiff's Complaint under
Fed.R.Civ.P. 12(b)(6). For reasons explained below, the court
concludes that plaintiff's federal claims fail to state a
claim for relief and none of the factual allegations in
plaintiff's Statement of Claim, his Motion for Order, or
his “Motion/Notice of a Constitutional Challenge of
Statute”-even if pleaded as a properly Amended
Complaint- would change that outcome. The court thus
dismisses plaintiff's federal claims under Fed.R.Civ.P.
12(b)(6), but does so without prejudice. The court declines
to exercise supplemental jurisdiction over plaintiff's
state law claim.
Pro Se Litigant Standard
plaintiff brings this lawsuit pro se, the court
construes his filings liberally and holds them to a less
stringent standard than formal pleadings drafted by lawyers.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). But the court does not assume the role of advocate for
a pro se litigant. Id. Also, a
litigant's pro se status does not excuse him
from complying with the court's rules or facing the
consequences of his noncompliance. Ogden v. San Juan
Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
Motion to Remand
filed his Complaint on September 30, 2016, in the District
Court of Geary County, Kansas. Doc. 1-1 at 1. He used this
court's federal form Complaint for Violation of Civil
Rights. Id. And, he checked the box stating that he
is bringing suit for violations of his constitutional rights
under 42 U.S.C. § 1983. Id. at 3. He attached
an addendum to his Complaint asserting several bases for
jurisdiction. Id. at 7. The addendum alleges
violations of his rights under the Second, Fourth, Fifth, and
Fourteenth Amendments to the United States Constitution.
removed the case on October 19, 2016. Docs. 1, 14 at 2. On
November 21, 2016, plaintiff filed a Motion to Remand in the
District Court of Geary County, Kansas. Doc. 14-4 at 1-2.
Eight days later, plaintiff filed a Motion to Remand in
federal court. Doc. 8. For reasons explained below, the court
concludes that defendants properly removed the case to
federal court under 28 U.S.C. §§ 1331, 1441(a), and
Defendants' Notice of Removal
defendant may remove a civil action from state to federal
court when the action is within the original jurisdiction of
the federal courts. 28 U.S.C. § 1441(a) (“[A]ny
civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may
be removed by the defendant or the defendants, to the
district court of the United States for the district and
division embracing the place where such action is
pending”). Under 28 U.S.C. § 1331, federal courts
have original jurisdiction over cases “arising
under” the Constitution and laws of the United States,
regardless of the amount in controversy. 28 U.S.C. §
1331. “A case arises under federal law if its
‘well-pleaded complaint establishes either that federal
law creates the cause of action or that the plaintiff's
right to relief depends on resolution of a substantial
question of federal law.'” Morris v. City of
Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (quoting
Franchise Tax Bd. v. Constr. Laborers Vacation Tr.,
463 U.S. 1, 27-28 (1983)). The governing federal removal
statutes require a defendant to remove an action
“within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based . . . .” 28 U.S.C. §
defendants properly removed the case to federal court because
plaintiff's Complaint asserts constitutional and federal
statutory claims. Doc. 1-1 at 7, Doc. 1 at 1. Plaintiff
alleges violations of 42 U.S.C. § 1983, lists several
amendments to the United States Constitution as bases for
jurisdiction, and claims violations of his constitutional
rights. Doc. 1-1 at 7. Plaintiff's allegations arise
under federal law because 42 U.S.C. § 1983 creates a
private right of action. 42 U.S.C. § 1983 (“Every
person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress”). The court thus concludes that
plaintiff's Complaint raises a federal question over
which this court has original jurisdiction under 28 U.S.C.
court also determines that defendants satisfied all
procedural requirements for removal under 28 U.S.C. §
1446(b)(1). Defendants filed their Notice of Removal on
October 19, 2016, within the 30-day statutory deadline after
plaintiff filed his Complaint on September 30, 2016. Doc. 1-1
at 1, Doc. 14 at 2.
Plaintiff's Motion to Remand
plaintiff seeks remand to state court, the removing defendant
bears the burden to demonstrate that removal was proper.
Ruiz v. Farmers Ins. Co., 757 F.Supp. 1196, 1197 (D.
Kan. 1991) (citing McNutt v. Gen. Motors Acceptance
Corp., 298 U.S. 178, 189 (1936)). A motion to remand a
case “on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after
the filing of the notice of removal under section
1446(a).” 28 U.S.C. § 1447(c).
plaintiff argues that courts must resolve any doubts about
jurisdiction in favor of remand and evaluate notices of
removal and motions to remand by construing factual
allegations “‘in the light most favorable to the
plaintiff.'” Doc. 8 at 2 (quoting Crowe v.
Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)). Even
applying this standard to plaintiff's motion here, the
court concludes that no such doubts exist about jurisdiction.
Defendants have met their burden of showing that the removal
satisfied substantive and procedural requirements and that
they properly removed this case.
also unclear whether the governing federal statute required
plaintiff to meet the 30-day deadline under 28 U.S.C. §
1447(c). Plaintiff filed his Motion to Remand under 28 U.S.C.
§ 1447(a), which authorizes federal district courts to
“bring before it all proper parties” to determine
whether removal was proper. 28 U.S.C. § 1447(a).
Plaintiff does not assert any other statutory grounds for
remand. Doc. 8 at 1-2. But, even assuming that
plaintiff's Motion to Remand intended to assert that this
court lacks subject matter jurisdiction, defendants have
established that this court has original jurisdiction over
plaintiff's claims under 28 U.S.C. § 1331.
so, the court denies plaintiff's Motion to Remand as
moot. As explained below, the court dismisses plaintiff's
federal claims because they fail to state a plausible claim
for relief. And, the court declines to exercise supplemental
jurisdiction over plaintiff's state law claim. So, the
court remands plaintiff's state law claim to the District
Court of Geary Count, Kansas.
Motion to Strike
December 17, 2016, plaintiff filed something he calls a
“Statement of Claim.” Doc. 16. Plaintiff's
Statement of Claim is somewhat hard to follow. But, it
appears that the Statement of Claim is tantamount to an
Amended Complaint. Plaintiff recites the claims he is
asserting in this lawsuit and the facts, he contends, that
support those claims. He also describes the damages he has
sustained from defendants' alleged constitutional
violations. The court thus construes plaintiff's
Statement of Claim as an Amended Complaint.
have filed a Motion to Strike Plaintiff's Statement of
Claim. Doc. 17. Defendants argue that the court must strike
this Statement of Claim because plaintiff did not obtain
written consent or leave from the court to file an Amended
Complaint as Fed.R.Civ.P. 15(a)(2) requires. Defendants also
argue that, to the extent plaintiff is attempting to file an
Amended Complaint, his amended pleading is futile because,
like his original Complaint, it fails to state a claim upon
which relief may be granted.
never responded to defendants' Motion to Strike, and the
time for doing so has passed. Under D. Kan. Rule 7.4(b), a
party “who fails to file a responsive brief or
memorandum within the time specified in D. Kan. Rule 6.1(d)
waives the right to later file such brief or
memorandum” unless there is a showing of excusable
neglect. This rule also provides “[i]f a responsive
brief or memorandum is not filed within the D. Kan. Rule
6.1(d) time requirements, the court will consider and decide
the motion as an uncontested motion. Ordinarily, the court
will grant the motion without further notice.” D. Kan.
Rule 7.4(b). Because plaintiff never has responded, the court
grants defendants' Motion to Strike. The court also
grants the motion because plaintiff does not satisfy the
requirements necessary for filing an Amended Complaint under
Rule 15, a party may amend its complaint once as a matter of
course within 21 days after serving it on the opposing party
or within 21 days after service of a responsive pleading or a
motion under Rule 12(b), (e), or (f). Fed.R.Civ.P. 15(a)(1).
If the amendment falls outside of that period of time, Rule
15 provides that the party may only amend with leave of the
court or with the opposing party's written consent.
September 30, 2016, plaintiff filed this lawsuit in the
District Court of Geary County, Kansas. Doc. 1-1 at 1. On
October 19, 2016, defendants removed the lawsuit to our
court. Doc. 1. On October 31, 2016, defendants filed their
Motion to Dismiss. Doc. 8. Plaintiff filed his Statement of
Claim on December 17, 2016-more than 21 days after defendants
had filed their Motions to Dismiss under Rule 12(b). Thus,
under Rule 15, plaintiff cannot file an Amended Complaint as
a matter of right. Instead, Rule 15 required plaintiff to
seek leave from the court or obtain written consent from all
opposing parties before filing an Amended Complaint.
Plaintiff did neither. So, construing plaintiff's
Statement of Claim as an Amended Complaint, the court strikes
it from the record.
court also notes that, had plaintiff sought leave to file the
Statement of Claim as an amended pleading, the court would
deny the request because it is futile. Rule 15(a)(2) provides
that “[t]he court should freely give leave [to amend
the pleadings] when justice so requires.” But, the
court may deny leave to amend on the grounds of undue delay,
bad faith or dilatory motive by the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party, or futility of the proposed
amendment. Minter v. Prime Equip. Co., 451 F.3d
1196, 1204 (10th Cir. 2006) (citing Foman v. Davis,
371 U.S. 178, 182 (1962)).
plaintiff's Statement of Claim is an exercise in futility
because it, like plaintiff's original Complaint, fails to
state a claim for relief. Plaintiff asserts violations of the
United States Constitution, the Americans with Disabilities
Act (“ADA”), and the “Kansas Family
Protection Act.” Doc. 16 at 2. For the reasons explained
below, plaintiff fails to state a claim for relief under any
of these provisions. The court thus concludes that
plaintiff's Statement of Claim is futile.