United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
23, 2017, the court issued a Show Cause Order to plaintiff.
Doc. 124. It explained that plaintiff never had served one of
the defendants he has named in this lawsuit- Moms Club of
Olathe East (“Olathe East”). The court thus
considered whether it should dismiss plaintiff's lawsuit
against Olathe East under Fed.R.Civ.P. 4(m), for failing to
effect service within 90 days of filing the complaint, or
grant plaintiff a mandatory or permissive extension of time
to serve this defendant. The court concluded that plaintiff
had failed to establish good cause entitling him to a
mandatory extension. And, the court recognized that a
permissive extension of time to effect service is futile if
plaintiff fails to state a claim for relief against Olathe
court explained that the 42 U.S.C. § 1983 claims that
plaintiff's Second Amended Complaint asserts against
Olathe East appear to suffer from the same deficiencies that
led the court to dismiss plaintiff's § 1983 claims
against other defendants. Specifically, the Second Amended
Complaint never alleges facts showing that Olathe East is a
state actor who one can hold liable under § 1983.
See Scott v. Hern, 216 F.3d 897, 906 (10th Cir.
2000) (explaining that, to state a viable § 1983 claim
against a private individual, the individual's alleged
conduct causing the constitutional deprivation must be
“fairly attributable to the state” (citations and
internal quotation marks omitted)).
court thus ordered plaintiff to show cause by June 6, 2017
why a permissive extension of time to effect service on
Olathe East is not futile when plaintiff's Second Amended
Complaint appears to fail to state a claim for relief against
this defendant for the same reasons that the court already
has dismissed plaintiff's § 1983 claims against
other defendants in its March 28, 2017 Memorandum and Order
(Doc. 115) and its May 23, 2017 Memorandum and Order (Doc.
never responded to the Show Cause Order, and the time for
doing so has passed. Plaintiff thus fails to show why the
court should grant a permissive extension of time to serve
Olathe East. Plaintiff also fails to explain why granting
such an extension is not futile when his Second Amended
Complaint fails to state a claim for relief against this
filed this action pro se,  and so the court must construe his
pleadings liberally. See Hall v. Bellmon, 935 F.2d
1106, 1110 n.3 (10th Cir. 1991) (explaining that “pro
se litigant's pleadings are to be construed liberally and
held to a less stringent standard than formal pleadings
drafted by lawyers[, ]” but a court should not
“assume the role of advocate for the pro se litigant[,
]” and a pro se litigant's “conclusory
allegations without supporting factual averments are
insufficient to state a claim on which relief can be
based”). Even affording plaintiff's Second Amended
Complaint the most liberal construction possible, the
pleading never asserts any facts showing that Olathe
East's conduct is “fairly attributable to the
state” to support a viable § 1983 claim.
Scott, 216 F.3d at 906. It never alleges that Olathe
East is a state actor or somehow acted under color of state
law. It also alleges no facts establishing any connection
between the State and Olathe East or other facts sufficient
to subject it to § 1983 liability as a state actor under
the various tests promulgated by the Tenth Circuit to
establish state action (i.e., the nexus text,
symbiotic test, joint action test, or public function test).
See Gallagher v. Neil Young Freedom Concert, 49 F.3d
1442, 1447, 1456 (10th Cir. 1995).
plaintiff concedes that Olathe East is not a state actor by
alleging that it “is not a legal agency to remove
children from the home of any residence.” Doc. 90 at
21. Thus, Olathe East never was performing any state
functions because, the Second Amended Complaint contends, its
actions involved the illegal removal of
children-something that is not a function traditionally and
exclusively reserved to the State. For these reasons,
plaintiff's Second Amended Complaint fails to assert a
plausible § 1983 claim against Olathe East.
court thus concludes that a permissive extension of time for
plaintiff to serve Olathe East is futile because, even though
the court gave plaintiff notice and an opportunity to clarify
the basis for his § 1983 claims, his Second Amended
Complaint fails to state a claim for relief against this
defendant. See Quarles v. Williams, No. 04-2101-JWL,
2004 WL 2378840, at *1, 3 (D. Kan. Oct. 21, 2004) (after
ordering plaintiff to show cause “why the court should
not exercise its discretion and decline to extend the time to
effect valid service of process and consequently dismiss
[the] case without prejudice because it appears that
plaintiff's complaint fails to state a claim upon which
relief can be granted and therefore it would be futile to
extend the time for service” and after plaintiff
responded to that show cause order, the court still concluded
that plaintiff's complaint failed to state a claim upon
which relief could be granted so a permissive extension of
time to serve defendant was futile).
court thus dismisses plaintiff's claims against Olathe
East without prejudice under Rule 4(m) because plaintiff has
failed to serve Olathe East within 90 days, plaintiff has
failed to establish good cause for the failure to serve this
defendant so no mandatory extension of the time for service
is required, and the court declines to exercise its
discretion to grant a permissive extension of time to serve
Olathe East because doing so is futile when plaintiff's
Second Amended Complaint fails to state a plausible claim
against Olathe East.
THEREFORE ORDERED THAT defendant Moms Club of Olathe East is
dismissed from this action without prejudice under
Fed.R.Civ.P. 4(m) because plaintiff has failed to effect
valid service of process within 90 days of filing his
complaint against this defendant.
 On June 5, 2017, an attorney filed a
“Limited Entry of Appearance” on behalf of
plaintiff. Doc. 128. This attorney did not file
plaintiff's Second Amended Complaint. ...