United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
February 3, 2017, pro se plaintiff Ken Auman filed this action
against four groups of defendants: (1) State of Kansas; (2)
City of Overland Park, Kansas; City of Overland Park, Kansas
Police Department; City of Overland Park, Kansas Police
Officers John Does 1-3; and City of Overland Park, Kansas
Court Clerk Jane Doe (collectively, the “Overland Park
defendants”); (3) “Kansas Judge Franklin;”
and (4) the Johnson County Sheriff's Department and
Johnson County Jail Personnel John and Jane Does 1-5
(collectively, the “Johnson County defendants”).
Plaintiff brings claims against these defendants under 42
U.S.C. §§ 1982, 1983, 1985, 1986, 1988, and 1989;
and 28 U.S.C. §§ 2201 and 2202. He alleges that
defendants have violated his First, Fourth, Fifth, Sixth,
Ninth, and Fourteenth Amendments rights. Doc. 1 at 1-2.
State of Kansas and the Overland Park defendants have moved
to dismiss the claims in their entirety. Docs. 13 & 18.
The State of Kansas asserts that the court lacks subject
matter jurisdiction over the claims against it. Docs. 13
& 14. The Overland Park defendants moved to dismiss under
Rule 12(b)(6). Docs. 18 & 19. They argue that the statute
of limitations bars plaintiff's claims and then,
alternatively, that each of the claims in the Complaint fails
to state a claim.
these motions to dismiss, plaintiff filed four motions of his
own: a “Motion for Leave of Court to File the Following
Amended Petition” (Doc. 39) and three motions asking
the court to take judicial notice (Docs. 33-35).
court addresses defendants' motions first and then,
plaintiff's motions. For reasons discussed below, the
court grants defendants' motions and denies
following facts are taken from plaintiff's Complaint. The
court accepts the facts asserted in the Complaint as true and
views them in the light most favorable to plaintiff.
Burnett v. Mortg. Elec. Registration Sys., Inc., 706
F.3d 1231, 1235 (10th Cir. 2013) (citing Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)).
Complaint, plaintiff alleges that between February 2 and 23,
2012, defendants falsely incarcerated him for 21 days,
without-what he calls-“a proper 4th
Amendment set of documents.” Doc. 1 at 2 ¶ 6.
During this 21-day period, plaintiff alleges that he asked to
see those documents and defendants failed to provide them.
Although, plaintiff asserts a “supervisor jailer”
produced a copy of a “vague document which did not come
close to a 4th amendment set of warrant
documents.” Id. at 2 ¶ 10.
also alleges that he was told at some point-but not right
away-that he was being held on a contempt charge. But
plaintiff asserts that defendants never provided a reason for
a contempt charge. Indeed, plaintiff's Complaint alleges
that during his 21-day incarceration he was never charged or
given a bond hearing. He concedes that the court set a bond
hearing at some point, but later cancelled it.
Complaint also alleges that jail personnel refused to provide
him a toothbrush, pen, or pencil for eight days. When he
finally received paper and pen, plaintiff wrote three motions
for delivery to the court. But jail personnel refused to
deliver them and would not allow plaintiff to deliver them.
Plaintiff alleges that he finally got stamps and an envelope
to mail a motion for early release. Later, when he later
checked the “record, ” the motion for early
release was the only motion filed with the court.
also alleges that a supervisor threatened to inject him with
a needle and feed him intravenously because he refused to eat
or drink. Finally, plaintiff alleges that he was forced to
provide a urine sample to medical personnel. The urine test
showed that he had a liver problem. Plaintiff demanded the
urine sample and any documentation about it.
Complaint never links these factual allegations to a specific
claim. Instead, “[p]laintiff includes all
statements” under each claim he asserts. See
Doc. 1 at 3-5. Each claim requests a different form of
State of Kansas moves for dismissal under Rule 12(b)(1) and
the Overland Park Defendants move for dismissal under Rule
motion to dismiss, the State of Kansas asserts that the court
lacks subject matter jurisdiction over plaintiff's claims
because Eleventh Amendment immunity makes it immune from suit
in federal court. Docs. 13 & 14. The Overland Park
defendants moves for dismissal under Rule 12(b)(6). Docs. 18
& 19. The Overland Park defendants argue, first, that the
statute of limitations bars plaintiff's claims.
Alternatively, they argue that each of the claims in the
Complaint fails to state a claim.
Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter
Jurisdiction by the State of Kansas
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).
motion to dismiss, the State of Kansas asserts that the court
lacks subject matter jurisdiction over the claims asserted
against it because of the immunity established by the
Eleventh Amendment. The Eleventh Amendment “accord[s]
states the respect owed them as joint sovereigns, ” by
granting immunity to nonconsenting states to suits in federal
court. Steadfast Ins. Co. v. Agric. Ins. Co., 507
F.3d 1250, 1252 (10th Cir. 2007) (citations omitted).
Eleventh Amendment immunity “applies . . . whether a
plaintiff seeks declaratory or injunctive relief, or money
damages.” Id. (citations omitted). Eleventh
Amendment immunity bars suits against a state “unless
the state waives immunity or Congress has validly abrogated
immunity.” Nelson v. Geringer, 295 F.3d 1082,
1096 (10th Cir. 2002) (citing Seminole Tribe v.
Florida, 517 U.S. 44, 54-55 (1996)). Neither exception
has not waived its immunity, and Congress did not abrogate
state sovereign immunity when it enacted 42 U.S.C.
§§ 1982, 1983, 1985, 1986, 1988, or
1989. See Alyshah v. Georgia, 239 F.
App'x 473, 474 (11th Cir. 2007) (holding that Eleventh
Amendment immunity barred plaintiff's claims against the
state which alleged violations of 42 U.S.C. § 1983,
1986, and 1988); Ellis v. Univ. of Kan. Med. Ctr.,
163 F.3d 1186, 1195-96 (10th Cir. 1998) (holding that
Eleventh Amendment immunity barred plaintiffs'
§§ 1981, 1983, and 1985 claims “against
Kansas and its state agencies in the federal courts”);
Gilbert v. Kansas, No. 02-4163-JAR, 2002 WL
31863840, at *1 n.8 (D. Kan. Dec. 16, 2002) (holding that
“42 U.S.C. § 1982 does not abrogate the
states' Eleventh Amendment immunity”).
short, Eleventh Amendment immunity bars plaintiffs'
§§ 1982, 1983, 1985, 1986, 1988, and 1989 claims
against the State of Kansas. This requires the court to
dismiss them without prejudice. See Rural Water Sewer
& Solid Waste Mgmt. v. Guthrie, 654 F.3d 1058, 1069
n.9 (10th Cir. 2011) (“[A] dismissal on [Eleventh
Amendment] sovereign immunity grounds . . . must be without
Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
by the Overland Park Defendants