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Frank v. Kansas Department of Agriculture

United States District Court, D. Kansas

June 5, 2019

TERRENCE W. FRANK, Plaintiff,
v.
KANSAS DEPARTMENT OF AGRICULTURE, Division of Water Resources; David W. Barfield, Chief Engineer; SUMNER COUNTY PLANNING & ZONING ENVIRONMENTAL HEALTH; KANSAS DEPARTMENT OF TRANSPORTATION, Defendants.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE

         Before the court are three motions to dismiss by the Defendants. (Docs. 11, 13, 15.) The motions have been adequately briefed. (Docs. 12, 14, 16, 18, 19, 20.) For the reasons set forth herein, Defendants' motions to dismiss (Docs. 11, 13, 15) are GRANTED.

         I. Background

         Plaintiff is the owner of a five-acre parcel of property at 1073 E. 119th St. South near Mulvane, Kansas. (Doc. 1 at 3.) In 2002, he applied for and was granted a permit from the Kansas Division of Water Resources (“DWR”), to build a pond on his property. The chief engineer of the DWR issued an order in 2003 finding Plaintiff had unlawfully obstructed a stream in constructing the pond, contrary to a Kansas statute and regulation. That finding was based in part on a regulation applicable to watershed areas of a certain acreage, and which applies a presumption that a stream existed in the watershed if the site was altered so that it can no longer be determined from visual inspection whether a stream bed was there.[1] Plaintiff disputed the order and litigation in state court ensued. The background was described by the Kansas Court of Appeals in an opinion upholding the chief engineer's order:

After construction of the pit, Frank's neighbor complained about water backing up onto the neighbor's property. The chief engineer concluded that Frank had obstructed a stream, which caused the change in water flow. Frank's permit had specifically said that it gave no authority to obstruct a stream, so the chief engineer told Frank that he must file a separate application for a permit to construct a stream obstruction. Frank contested this view, and the chief engineer heard testimony from Frank and the Division of Water Resources. The chief engineer concluded that a stream had been obstructed and that Frank had to apply for a permit to do that. The chief engineer also ordered that staff of the Division of Water Resources work with Frank in an attempt to find a solution that would allow Frank to comply with the law but still proceed with the project. The chief engineer said that “the solution should find a way to stop water from backing up” on the right-of-way to Highway K-53 and on the property of neighboring landowners. Frank appealed the chief engineer's order.

Frank v. Kansas Dep't of Agric., Div. of Water Res., 40 Kan.App.2d 1024, 1026, 198 P.3d 195, 197-98 (2008). The Kansas Court of Appeals found the chief engineer's interpretation of the applicable regulation was reasonable. Id. at 1035, 198 P.3d at 203. In addition to the prior state litigation, Plaintiff also filed a federal suit in 2009 that included some of the same allegations found in the current complaint. The prior federal suit was dismissed by Judge Rogers in 2010. Frank v. Bush, No. 09-4146-RDR, 2010 WL 1408405 (D. Kan. Apr. 2, 2010), aff'd, 391 Fed.Appx. 745 (10th Cir. 2010).

         The current complaint alleges among other things that “[i]n March of 2005 a government document was altered to show a ‘STREAM' through [Plaintiff's] property, ” and the judge in Plaintiff's state case “ignored the facts, and took the altered document as true, ” causing Plaintiff to lose the case. (Doc. 1 at 4.) It further alleges the Kansas Department of Agriculture “continued with frivolous lawsuits until now” causing “emotional distress and financial drain” on Plaintiff. (Id. at 5.) It alleges that jurisdiction is proper in this court “due to the defendants' violation of federal law” and “continued manifest injustice toward plaintiff by local, state and national governing officials, actors and entities [from] 2002-2019.” (Id. at 5-6.) The complaint also alleges that Defendants committed various state law torts[2] and “violated [Plaintiff's] right to privacy under [the] 4th Amendment to the United States Constitution and right to due process of law under the 5th Amendment (as applied to the states through the 14th Amendment).” (Id. at 5.) Plaintiff seeks damages against Defendants, attorney's fees, and an injunction against Defendants “from continuing the intentional infliction of emotional distress.” (Id. at 15.)

         II. Motions to Dismiss

         Defendant Sumner County Planning, Zoning, Environmental Health (“Sumner County”) moves to dismiss on the following grounds: 1) failure to state a plausible claim for relief; 2) the statute of limitations and statue of repose; 3) failure to file a notice of claim pursuant to K.S.A. § 12-105b; 4) lack of federal subject-matter jurisdiction; and 5) the Rooker-Feldman doctrine. (Doc. 12 at 1.) Defendant Kansas Department of Agriculture seeks dismissal on the same grounds (except for § 12-105b) and adds the following: 1) the Department of Agriculture is entitled to Eleventh Amendment immunity and is not a “person” for purposes of 42 U.S.C. § 1983; 2) the Department's lack of statutory capacity to be sued; and 3) res judicata. (Doc. 14 at 7.) Defendant Kansas Department of Transportation (“KDOT”) asserts the same Eleventh Amendment and § 1983 arguments and also contends that process and service of process upon it were insufficient. (Doc. 16 at 2-3.) All of the Defendants invoke Fed.R.Civ.P. 12(b)(1) and 12(b)(6) in support of their motions, and one or more additionally invokes Rule 12(b)(2), 12(b)(4), and 12(b)(5). (Docs. 11, 13, 15.)

         In response, Plaintiff argues the State has caused the flooding problem and does not want to pay to fix it. (Doc. 18 at 1.) He argues he has stated plausible claims for fraud, collusion, conspiracy, and deception, and that this is a continuous problem that should not have a time limit. (Id. at 1-2) He argues that subject matter jurisdiction should be present in this court “to eliminate the bias a patronage [sic] in the lower court.” (Id.) He also argues the Defendants cannot prove there was a stream on his property, and that the outcome of the state case was erroneous and resulted from bias on the part of the judge. (Doc. 20 at 1-2.)

         III. Standards

         The court discusses the standards for two of the provisions invoked by Defendants - Rule 12(b)(1) and 12(b)(6) - because those provisions are dispositive in this case.

         “Different standards apply to a motion to dismiss based on lack of subject matter jurisdiction under Rule 12(b)(1) and a motion to dismiss for failure to state a claim under Rule 12(b)(6).” Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012). When the court is faced with motions for dismissal relying on both Rule 12(b)(1) and 12(b)(6), the court must first determine that it has subject matter jurisdiction over the controversy before reviewing the merits of the case under Rule 12(b)(6). Bell v. Hood, 327 U.S. 678, 682 (1946). Because federal courts are courts of limited jurisdiction, a presumption exists against jurisdiction, and “the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Therefore, the court will first review the challenge to subject matter jurisdiction.

         “Motions to dismiss for lack of subject matter jurisdiction generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” City of Albuquerque v. U.S. Dep't of Interior, 379 F.3d 901, 906 (10th Cir. 2004) (internal citations omitted). If the motion challenges the sufficiency of the complaint's jurisdictional allegations, the court must accept all such allegations as true. Holt v. United States, 46 F.3d 1000, 1002 (10th ...


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