United States District Court, D. Kansas
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 ...