United States District Court, D. Kansas
CHARLES T. BOETTGER, Plaintiff,
ROBERT FAIRCHILD, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
14, 2017, pro se plaintiff Charles T. Boettger filed this
action against defendants Judge Robert Fairchild, Judge Peggy
Kittle, Judge Phillip Sieve, Judge Richard Smith, Mr. W.C.
Delany, Mr. David Melton, Mr. Joshua Seiden,  and Mr. James
Rumsey under 42 U.S.C. §§ 1983 and 1985. He also
invokes various Kansas statutes. All defendants but Mr.
Seiden have moved to dismiss the claims in their entirety.
Each defendant asserted different reasons for dismissal.
Judge Fairchild moved for dismissal asserting that the
Complaint fails to state a claim upon which relief may be
granted, and alternatively, that he has absolute judicial
immunity from this suit. Docs. 11 & 12. Judge Kittle,
Judge Sieve, Judge Smith, Mr. Delaney, and Mr. Melton also
moved for dismissal relying, primarily, on the argument that
the Complaint fails to state a claim. These defendants also
provided several alternative arguments for dismissal. Docs. 9
& 10. And last, Mr. Rumsey also has moved for dismissal,
arguing that the Complaint fails to state a claim. He adopts
by reference the Supporting Memorandum filed by Judge Kittel,
et al. Doc. 15. For reasons discussed below, the court grants
defendants' Motions to Dismiss.
alleges that Judge Sieve, Mr. Melton, and Mr. Rumsey
“conspired and colluded at the [September 24, 2014]
hearing to deprive and violate Mr. Boettger of his Civil
rights, Constitutional rights, and statutory rights.”
Doc. 1 at 8. The Complaint provides a putative recounting of
a September 24, 2014 competency hearing held in the District
Court of Douglas County, Kansas:
At the hearing on September 24, 2014, the district
court began by discussing the outcome of the
motion with the State and Mr. Rumsey outside of the presence
of Mr. Boettger where the following exchange occurred:
The Court: Boettger, 2014-CR-262. And we're here outside
the presence of the defendant, myself and counsel for the
State and his court-appointed lawyer, and I just wanted to
indicate to you, [an assistant has] been checking, and we
really cannot get in line for Larned unless he's in custody.
So I am proposing to go ahead and hear the motion, and
I'll say something about why he need[s] to be taken into
Mr. Rumsey: Okay.
The Court: And then we'll have to deal with, shall I
bring that up - - well, why don't, when we start out, you
say, Judge, I think we need to address something, my
client's in - - okay?
Mr. Rumsey: Right.
The Court: All right.
Mr. Rumsey: And then we'll go into the competency motion
The Court: Yeah, after that.
Mr. Rumsey: Yeah.
The Court: So that's going to be the plan, I just want to
let you know, so you guys go back in there a minute and sit
so I am not going to go in for about two minutes, okay?
Id. at 7 (footnotes added). The Complaint alleges
that Mr. Rumsey only had approximately 10 to 15 minutes to
speak with plaintiff before the September 24, 2014 competency
hearing. It also alleges that Mr. Rumsey was unable to
provide the court with plaintiff's mental health
diagnosis as part of the competency motion, but that he
asserted in that motion, “[I]t is likely that
[plaintiff] suffers from a serious undiagnosed and untreated
mental illness, such as Schizophrenia, Paranoia, or
both.” Id. (quoting R. I, 58.)
asserts that his commitment to Larned violated Due Process
“because he was not meaningfully represented by counsel
resulting in effective abandonment of client at the hearing
on September 24, 2014.” Id. at 8. Plaintiff
asserts that defendants violated other fundamental rights,
namely: (1) procedural and substantive due process under the
Fourteenth Amendment; (2) “the right to bail under
section 9 of the Kansas Constitution Bill of Rights;”
and (3) effective assistance of counsel under the Sixth
Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter
courts are courts of limited jurisdiction and, as such, must
have a statutory basis to exercise jurisdiction.”
Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002)
(citation omitted). Federal district courts have original
jurisdiction over all civil actions arising under the
constitution, laws, or treaties of the United States or where
diversity of citizenship exists. 28 U.S.C. § 1331; 28
U.S.C. § 1332. “A court lacking jurisdiction
cannot render judgment but must dismiss the cause at any
stage of the proceedings in which it becomes apparent that
jurisdiction is lacking.” Basso v. Utah Power &
Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citation
omitted). Since federal courts are courts of limited
jurisdiction, there is a presumption against jurisdiction,
and the party invoking federal jurisdiction bears the burden
to prove it exists. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994).
defendants attack the Complaint's allegations of subject
matter jurisdiction, the court “must accept the
allegations in the complaint as true.” Holt v.
United States, 46 F.3d 1000, 1002 (10th Cir. 1995)
(citing Ohio Nat'l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir. 1990)). But,
conclusory allegations about jurisdiction are not sufficient.
Penteco Corp. Ltd. P'ship-1985A v. Union Gas Sys.,
Inc., 929 F.2d 1519, 1521 (10th Cir. 1991); Matthews
v. YMCA, No. 05-4033-SAC, 2005 WL 2663218, at *2 (D.
Kan. Oct. 19, 2005).
Rule 12(b)(6) Motion to Dismiss for Failure to State a
Civ. P. 8(a)(2) provides that a complaint must contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Although this rule
“does not require ‘detailed factual allegations,
'” it demands more than “[a] pleading that
offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of
action'” which, as the Supreme Court explained,
“will not do.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Id. (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). “Under this
standard, ‘the complaint must give the court reason to
believe that this plaintiff has a reasonable
likelihood of mustering factual support for these
claims.'” Carter v. United States, 667
F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red
Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th
the court must assume that the factual allegations in the
complaint are true, it is “not bound to accept as true
a legal conclusion couched as a factual allegation.”
Id. at 1263 (quoting Iqbal, 556 U.S. at
678). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice” to state a ...