United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
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.
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.
also has filed a Motion to Dismiss. Doc. 114. For the reasons
explained below, the court grants both of Ms. Wilkie's
Pro Se Litigant Standard
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.
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)).
Ms. Wilkie's Motion for Leave to File Out of
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.
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.
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.
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.
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.”
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).
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).
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.
Ms. Wilkie's Motion to Dismiss
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).