United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
matter comes before the court on plaintiff's Objection to
Magistrate Judge K. Gary Sebelius's Report and
Recommendation (Doc. 10, objecting to Doc. 7) and
plaintiff's motion for leave to file a second amended
complaint (Doc. 11). While these were pending, plaintiff
filed a Motion for Preliminary Injunction (Doc. 17) and a
Motion for an Emergency Temporary Restraining Order (Doc.
22). On November 3, 2017, the court denied the Motion for
Preliminary Injunction and the Motion for an Emergency
Temporary Restraining Order. Doc. 23. And, approximately a
month later, plaintiff filed another Motion for Preliminary
Injunction (Doc. 24). For reasons explained below, the court
overrules plaintiff's Objection, denies his motion for
leave to amend, and dismisses this lawsuit because the
Complaint fails to state a claim. This renders
plaintiff's Motion for Preliminary Injunction (Doc. 24)
moot, and the court denies it for that reason.
Objection to Judge Sebelius's Report and
30, 2017, Judge Sebelius issued a Report and Recommendation
(Doc. 7). Judge Sebelius concluded that the plaintiff's
First Amended Complaint (Doc. 6) fails to state a claim upon
which relief may be granted. For this reason, he recommended
dismissal of this action without prejudice under 28 U.S.C.
Judge Sebelius explained in his Report and Recommendation,
plaintiff had the right to file objections to the Report and
Recommendation under 28 U.S.C. § 636(b)(1) and Federal
Rule of Civil Procedure 72 within 14 days after service. Doc.
7 at 5. He also advised plaintiff that failing to make a
timely objection to the Report and Recommendation would waive
any right to appellate review of his proposed findings of
fact, conclusions of law, and recommended disposition.
Id. On June 30, 2017, the Clerk sent a copy of the
Report and Recommendation to plaintiff both by regular and
certified mail (Docket Entry for Doc. 7), thus completing
service of the Report and Recommendation. See Fed.
R. Civ. P. 5(b)(2)(C) (providing that the court may
accomplish service by mailing the Report and Recommendation
“to [plaintiff's] last known address-in which event
service [was] complete upon mailing”); accord
ReVoal v. Brownback, No. 14-4076, 2014 WL 5321093, at *1
(D. Kan. Oct. 16, 2014).
aggrieved party objects to the magistrate judge's report
and recommendation, the district judge assigned to the case
“must determine de novo any part of the magistrate
judge's disposition that has been properly objected
to.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C.
§ 636(b)(1) (“A judge of the court shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.”). For the Report and Recommendation
to be “properly objected to, ” a party's
objection must “be both timely and specific.”
United States v. One Parcel of Real Prop., 73 F.3d
1057, 1060 (10th Cir. 1996). An objection is sufficiently
specific if it “focus[es] the district court's
attention on the factual and legal issues that are truly in
dispute.” Id. If the aggrieved party fails to
make such a proper objection, then he fails to preserve the
objection for appellate review. Id.
plaintiff timely filed his Objection to Judge Sebelius's
Report and Recommendation on July 13, 2017. Doc. 10. But,
plaintiff's Objection does not actually object to any
portion of Judge Sebelius's Report and Recommendation.
Instead, it asks the court to grant plaintiff leave to file
an amended complaint and informs the court that plaintiff
intends to file a motion to appoint counsel. Id.
Plaintiff's Objection thus is not sufficiently specific
to require de novo review. Because the gist of
plaintiff's filing asks to amend his First Amended
Complaint, the court also considers plaintiff's Objection
as a motion to amend under Rule 15.
plaintiff has not objected to Judge Sebelius's Report and
Recommendation properly, the court has considerable
discretion to review the recommendation under any standard it
finds appropriate. Summers v. Utah, 927 F.2d 1165,
1167 (10th Cir. 1991). After reviewing the First Amended
Complaint and Judge Sebelius's Report and Recommendation,
the court agrees with Judge Sebelius's recommendation in
its entirety. Plaintiff's First Amended Complaint asserts
claims under federal statutes that either create no private
causes of action or do not authorize plaintiff, a pro se
litigant, to bring an action. And, plaintiff's First
Amended Complaint fails to allege facts sufficient to support
a claim under the False Claims Act, 31 U.S.C. § 3729
et seq. The court thus accepts, affirms, and adopts
Judge Sebelius's Report and Recommendation in its
Motion for Leave to File a Second Amended Complaint
portion of plaintiff's filing asking to amend his
existing Complaint, plaintiff seeks leave to file a proposed
Second Amended Complaint. He attaches this proposed amendment
to the motion, Docs. 11, 11-1, 11-2, as our D. Kan.Rule 15.1
requires. Rule 15(a)(2) provides that courts should
“freely give leave when justice so requires.” The
decision whether to grant leave to amend is committed to the
court's discretion. Zenith Radio Corp. v. Hazeltine
Research, Inc., 401 U.S. 321, 330 (1971); Minter v.
Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006).
“Refusing leave to amend is generally only justified
upon a showing of undue delay, undue prejudice to the
opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of
amendment.” Frank v. U.S. W., Inc., 3 F.3d
1357, 1365 (10th Cir. 1993) (citations omitted). “A
proposed amendment is futile if the complaint, as amended,
would be subject to dismissal for any reason . . . .”
Watson ex rel. Watson v. Beckel, 242 F.3d 1237,
1239-40 (10th Cir. 2001) (citations omitted).
reviewing plaintiff's proposed Second Amended Complaint,
the court concludes that it is subject to dismissal under 28
U.S.C. § 1915(e)(2)(B)(ii). So, giving plaintiff leave
to amend is a futile act. When plaintiff is proceeding in
forma pauperis, § 1915(e)(2)(B)(ii) authorizes the
court to consider, sua sponte, whether the complaint fails to
state a claim on which relief may be granted. Whitney v.
New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997). The
court granted plaintiff in forma pauperis status on
May 22, 2017, and now elects to exercise its authority under
§ 1915(e)(2)(B)(ii) to consider whether plaintiff's
proposed Second Amended Complaint fails to state a claim on
which relief may be granted.
determining whether dismissal is appropriate under §
1915(e)(2)(B), a plaintiff's complaint will be analyzed
by the Court under the same sufficiency standard as a Rule
12(b)(6) Motion to Dismiss.” Washington v.
Washington, No. 14-1215-EFM-KGG, 2014 WL 4059788, at *3
(D. Kan. Aug. 15, 2014) (citing Kay v. Bemis, 500
F.3d 1214, 1217-18 (10th Cir. 2007)).
Rule 12(b)(6) Motion to Dismiss, the court looks to the
pleading standard provided in Rule 8(a)(2). This rule
provides that a complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). 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.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. 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, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
motion to dismiss, the court assumes that a complaint's
factual allegations are true, but need not accept mere legal
conclusions as true. Id. at 1263. “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements” are not enough to state a
claim for relief. Iqbal, 556 U.S. at 678. But,
because plaintiff proceeds pro se, the court construes his
pleadings liberally and holds them to a less stringent
standard than those drafted by lawyers. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the
court does not assume the role of advocate for plaintiff.
Id. Nor does plaintiff's pro se status excuse
him from complying with the court's rules or facing the
consequences of noncompliance. Nielsen v. Price, 17
F.3d 1276, 1277 (10th Cir. 1994).
proposed Second Amended Complaint names three
defendants-Ronnie D.M. Faircloth, Capitol Federal Savings
Bank, and the Federal Housing Finance Agency-and purports to
assert claims under five federal statutes. Doc. 11-2 at 1-2.
These statutes are: (1) Title 12 U.S.C. § 1723a(a); (2)
Title 24 U.S.C. § 3500; (3) Title 12 U.S.C. § 2601;
(4) Title 15 U.S.C. § 1601(a); and (5) Title 15 U.S.C.
§ 1635. One of these statutes comes from the Real Estate
Settlement Procedures Act, 12 U.S.C. §§ 2601-17,
(“RESPA”)-§ 2601-and two come from the Truth
in Lending Act (“TILA”)-15 U.S.C. §§
1601(a) and § 1635. The court's analysis, which
follows, organizes under these two acts.
first, the court addresses the other two statutes invoked by
the proposed Second Amended Complaint. The proposed Second
Amended Complaint contains no factual allegations to support
a claim under either statute. On page three of the Second
Amended Complaint, plaintiff references “TITLE 24
U.S.C. 3500” as another ground under which the court
has subject matter jurisdiction. Doc. 11-2 at 3. The United
States Code contains no such ...