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Shophar v. State

United States District Court, D. Kansas

May 23, 2017

JOREL SHOPHAR, Plaintiff,
v.
STATE OF KANSAS, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         Pro se plaintiff Jorel D. Shophar brings this action against the mother of his two children, various state and local agencies, and individuals who, he contends, have contrived a false campaign against him and conspired to terminate his parental rights. Generally, plaintiff alleges that defendants discriminated against him and violated his constitutional and civil rights when his children were placed in the temporary custody of the State of Kansas in September 2015 and, later, placed in their mother's custody. Plaintiff asserts claims under 42 U.S.C. §§ 1983 and 1985 and various federal and Kansas criminal statutes.

         On March 23, 2017, the court dismissed five of the seven defendants named in plaintiff's lawsuit because the court either lacked subject matter jurisdiction over plaintiff's claims or plaintiff's claims failed to state a claim for relief against those five defendants. Doc. 111. As the court noted in its March 23, 2017 Memorandum and Order, defendant Teena Wilkie never had answered plaintiff's Second Amended Complaint-the operative pleading in the case. Id. at 1 n.1. On March 24, 2017, Ms. Wilkie filed a Motion for Leave to File Out of Time. Doc. 113. It asks the court for leave to respond to plaintiff's Second Amended Complaint out of time because, as a pro se litigant, she did not understand that she was required to file a response. Ms.

         Wilkie also has filed a Motion to Dismiss. Doc. 114. For the reasons explained below, the court grants both of Ms. Wilkie's motions.

         I. Pro Se Litigant Standard

         Because plaintiff and Ms. Wilkie proceed pro se, the court must construe their filings liberally and hold them to a less stringent standard than formal pleadings drafted by attorneys. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). This liberal standard requires the court to construe a pro se litigant's pleadings as ones stating a valid claim if a reasonable reading of them allows the court to do so “despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110.

         But, at the same time, the court will not serve as a pro se litigant's advocate. James, 724 F.3d at 1315. The court “cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Also, the requirement that the court must read a pro se plaintiff's pleadings broadly “does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall, 935 F.2d at 1110. And, a plaintiff's pro se status does not excuse him or her from complying with federal and local rules. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (“This court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants.” (citations and internal quotation marks omitted)).

         II. Ms. Wilkie's Motion for Leave to File Out of Time

         On July 5, 2016, plaintiff filed a First Amended Complaint naming Ms. Wilkie as a defendant. Doc. 31. Ms. Wilkie filed a “Response” to plaintiff's First Amended Complaint. Doc. 49. The Clerk docketed the Response as an Answer. But, the Response includes a request that the court dismiss plaintiff's claims for failing to state a claim upon which relief may be granted. Id. at 3. On December 2, 2016, plaintiff filed a Second Amended Complaint. Doc. 90. This amended pleading also names Ms. Wilkie as a defendant. Plaintiff certified that he served a copy the Second Amended Complaint on Ms. Wilkie by U.S. Mail. Id. at 23.

         The Federal Rules required Ms. Wilkie to respond to plaintiff's Second Amended Complaint within 14 days after service. Fed.R.Civ.P. 15(a)(3). Ms. Wilkie never responded within the required time. On March 24, 2017, Ms. Wilkie filed a Motion for Leave to File Out of Time, asking for leave to file her response to plaintiff's Second Amended Complaint out of time. Doc. 113. When Ms. Wilkie filed her Motion for Leave to File Out of Time, she also filed a “Motion to Dismiss All Claims Against Teena Wilkie.” Doc. 114. This motion asks the court to dismiss plaintiff's Second Amended Complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief can be granted. Id. at 1.

         Ms. Wilkie states in her Motion for Leave that she is a pro se litigant. Ms. Wilkie also explains that she did not understand that she was required to respond to plaintiff's Second Amended Complaint. She notes that she responded timely to plaintiff's First Amended Complaint. And, because plaintiff's allegations against Ms. Wilkie in the First Amended Complaint did not differ from his allegations in the Second Amended Complaint, Ms. Wilkie believed that no other response was required.

         Plaintiff never has responded to Ms. Wilkie's Motion for Leave to File Out of Time, 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 to Ms. Wilkie's Motion for Leave to File Out of Time, the court grants the motion. The court also grants the motion because Ms. Wilkie has satisfied the requirements for obtaining leave to file out of time.

         A court may extend the time to act after a deadline has passed if the party “failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B); D. Kan. Rule 6.1(a)(4). Excusable neglect “is a somewhat elastic concept and is not limited strictly to omissions caused by circumstances beyond the control of the movant.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 392 (1993) (citations and internal quotation marks omitted). But, a party's “inadvertence, ignorance of the rules, or mistakes concerning the rules do not usually constitute ‘excusable' neglect.” Id.

         The determination of whether neglect is excusable “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.” Id. at 395. The factors to consider when making this determination include “the danger of prejudice to the [opposing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id. “[P]erhaps the most important single factor” to determine whether neglect is excusable is “[f]ault in the delay.” Jennings v. Rivers, 394 F.3d 850, 857 (10th Cir. 2005) (citations omitted). “An additional consideration is whether the moving party's underlying claim is meritorious.” Id. (citing Cessna Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444-45 (10th Cir. 1983) (discussing, in the context of a motion to set aside a default judgment, the need to avoid frivolous litigation)). Though these factors guide the court's inquiry, the excusable-neglect determination, ultimately, is an equitable decision that's committed to the court's sound discretion. See Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th Cir. 2004) (reviewing excusable-neglect decision under abuse of discretion standard).

         After considering the relevant factors, the court exercises its discretion to grant Ms. Wilkie leave to file her response to plaintiff's Second Amended Complaint out of time. Ms. Wilkie acted in good faith: As a pro se litigant, she did not understand that she must file a response to plaintiff's Second Amended Complaint after she already had responded to his First Amended Complaint. And, the day after the court pointed out Ms. Wilkie's omission in its March 23, 2017 Memorandum and Order (Doc. 111 at 1 n.2), Ms. Wilkie corrected her oversight by filing her Motion for Leave and her Motion to Dismiss. Docs. 113, 114. Although Ms. Wilkie's status as a pro se litigant does not excuse her from complying with the court's rules, Nielsen, 17 F.3d at 1277, her ignorance of the rules is probative of her good faith for failing to file a timely response, see Cooper v. Regent Asset Mgmt. Solutions-Kansas, LLC, No. 10-2634-JAR-KGG, 2012 WL 3238139, at *3 (D. Kan. Aug. 7, 2012) (holding that pro se defendants had shown excusable neglect when they failed to answer because they mistakenly believed an answer was not required).

         The court also finds that granting the motion will not prejudice plaintiff or negatively affect the judicial proceedings. Although plaintiff filed the case over a year ago, the court has not entered a scheduling order yet because defendants have moved to dismiss each amended pleading that plaintiff has filed. So, the court has established no deadlines, including a trial date. Indeed, discovery has not even commenced. So far, the case has not required significant litigation efforts by plaintiff-other than responding to the several motions to dismiss. The court has granted those motions to dismiss either because the court lacked subject matter jurisdiction or plaintiff's claims fail to state a claim for relief. And, for many of the same reasons, plaintiff's Second Amended Complaint also fails to state a claim against Ms. Wilkie, as the court explains below. Under these circumstances, the court finds it equitable to grant Ms. Wilkie's Motion for Leave to File Out of Time.

         III. Ms. Wilkie's Motion to Dismiss

         The court now turns to Ms. Wilkie's Motion to Dismiss. Doc. 114. In it, she asks the court to dismiss plaintiff's Second Amended Complaint against her because the court lacks subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) and plaintiff fails to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). Plaintiff never has responded to Ms. Wilkie's Motion to Dismiss, and the time for doing so has passed. D. Kan. Rule 7.4(b) thus allows the court to “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 ...


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