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White v. City of Grandview Plaza

United States District Court, D. Kansas

May 19, 2017

SANTINE M. WHITE, Plaintiff,
v.
CITY OF GRANDVIEW PLAZA, ET AL., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         Pro se 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 law.

         This 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.

         Second, 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.

         Third, 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.

         Fourth, 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.

         Finally, 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.

         I. Pro Se Litigant Standard

         Because 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. 1994)).

         II. Motion to Remand

         Plaintiff 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. Id.

         Defendants 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 1446.

         A. Defendants' Notice of Removal

         A 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. § 1446(b)(1).

         Here, 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. § 1331.

         The 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.

         B. Plaintiff's Motion to Remand

         When a 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).

         Here, 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.

         It is 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.

         Even 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.

         III. Motion to Strike

         On 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.

         Defendants 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.

         Plaintiff 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 Fed.R.Civ.P. 15.

         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. Fed.R.Civ.P. 15(a)(2).

         On 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.

         The 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)).

         Here, 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.”[1] 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.

         IV. ...


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