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Schwab v. Kobach

United States District Court, D. Kansas

September 25, 2019

RAYMOND R. SCHWAB AND AMELIA D. SCHWAB, Plaintiffs,
v.
KRIS KOBACH, et al., Defendants.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE

         This matter comes before the court on 11 pending motions to dismiss filed by 24 of the defendants in this case. The case was transferred to this court from the District of Colorado, where pro se plaintiffs Raymond and Amelia Schwab had filed both an 84-page Complaint (Doc. 1) and a form complaint, docketed as an “Amended Complaint” (Doc. 7). The “Amended Complaint” appears to supplement plaintiffs’ original Complaint because it references pages in the original Complaint. And, plaintiffs assert, they “were asked . . . to file the complaint using a specific format and template so they placed the same complaint on the form provided by the court.” Doc. 107 at 1. Thus, the court construes Doc. 1 and Doc. 7 as the Complaint when addressing defendants’ dismissal arguments in this case. This interprets plaintiffs’ filings liberally and thus holds them to a more forgiving standard than pleadings drafted by experienced counsel.[1]

         Plaintiffs also have filed a “Joint Motion to Withdraw”[2] (Doc. 102), which asks the court to dismiss the claims against five defendants without prejudice. Three of those defendants-Kris Kobach, Randy Debenham, and Blake Robinson-have responded to that motion.

         Finally, plaintiffs have filed a “Joint Request for Judicial Notice that All Required Pleadings and Responses Have Been Entered and a Request to Rule on Motions or Set Hearing Date to Hear and Rule on Motions.”[3] Doc. 121. This motion asks the court to rule on the pending motions. Because this Order rules all pending motions, the court denies plaintiffs’ most recent motion-Doc. 121-as moot.

         The court addresses all 11 motions to dismiss and plaintiffs’ “Joint Motion to Withdraw” in this Order. For reasons explained below, the court makes the following rulings:

         First, the court grants plaintiffs’ motion to dismiss all claims asserted against defendants Kris Kobach, [4] Rhonda Eisenbarger, Deja Jackson, Randy Debenham, and Blake Robinson.

         Second, the court grants the motions to dismiss filed by Miranda Johnson; Sunflower CASA Project, Inc. (“CASA”); Barry Wilkerson, Bethany Fields, Carla Swartz, Julia Goggins, the Riley County Police Department (“RCPD”) and Pathways Family Services, LLC (“Pathways”); and Theresa Freed, [5] Kendra Baker, Gina Mier-Hummel, [6] Angie Suther, Kim Yoxell, [7] and the Kansas Department for Children and Families (“KDCF”).

         Third, the court grants in part and denies in part the motions to dismiss filed by St. Francis Community Services, Inc. (“St. Francis”);[8] Lora Ingels; Kathy Boyd, Laura Price, and Kaylee Posson; KVC Behavioral Healthcare, Inc. (“KVC”); and Pawnee Mental Health Services, Inc. (“PMHS”).

         Last, the court orders plaintiffs to serve defendants Theresa Freed, Kendra Baker, Phyllis Gilmore, Angie Suther, and Kim Yoxell-all sued in their individual capacities-properly, no later than October 25, 2019.

         The rest of this Order explains the reasons for the court’s decisions. It begins with plaintiffs’ “Joint Motion to Withdraw.” Concluding that plaintiffs intended for their joint motion to dismiss certain claims against some defendants, the court analyzes it under the familiar rubric of Rule 41. Then, the court turns to defendants’ 11 motions to dismiss.

         I. Plaintiffs’ “Joint Motion to Withdraw” (Doc. 102)

         On February 8, 2019, plaintiffs filed a “Joint Motion to Withdraw” their claims against defendants Kobach, Eisenbarger, Jackson, Debenham, and Robinson. Doc. 102. Plaintiffs filed their motion after defendants Debenham, Robinson, and Kobach filed their Motions to Dismiss (Docs. 59 & 64). The docket does not reflect that plaintiffs ever served Eisenbarger or Jackson with a summons. For reasons explained below, the court grants plaintiffs’ motion.

         A. Legal Standard for Voluntary Dismissal

         Federal Rule of Civil Procedure 41(a)(1) allows a plaintiff to dismiss a claim voluntarily without a court order under certain circumstances. “[T]he plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment[.]” Fed.R.Civ.P. 41(a)(1)(A), 41(a)(1)(A)(i). Specifically, a “motion to dismiss under Rule 12 does not terminate the right of dismissal by notice.” Davidson v. Thompson, No. 18-3084-SAC, 2019 WL 1317465, at *1 (D. Kan. Mar. 22, 2019).

         Also, Federal Rule of Civil Procedure 41(a)(2) permits a plaintiff to dismiss a case voluntarily “only by court order, on terms that the court considers proper.” “The rule is designed primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.” Brown v. Baeke, 413 F.3d 1121, 1123 (10th Cir. 2005) (citation omitted). Ordinarily, district courts should grant a Rule 41(a)(2) dismissal without prejudice “[a]bsent ‘legal prejudice’ to the defendant.” Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997).

         As the court explained in City of Scranton v. Orr Wyatt Streetscapes, No. 18-4035-DDC-TJJ, 2018 WL 4222414, at *1–2 (D. Kan. July 16, 2018), a plaintiff may dismiss voluntarily all claims against fewer than all defendants under Rule 41(a)(1)(A)(i). Allowing a plaintiff to stipulate to dismiss fewer than all defendants from a multi-defendant case-instead of requiring plaintiff to file an amended pleading-advances the aims of Federal Rule of Civil Procedure 1, which directs federal courts to construe the Rules “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1.

         B. Analysis

         1. The court grants plaintiffs’ “Joint Motion to Withdraw” their claims against defendant Kobach, in his individual capacity, and defendant Schwab, in his official capacity.

         Plaintiffs’ motion asserts that they have inadequate resources to pursue their claims against Mr. Kobach. Thus, they ask the court to dismiss the claims against him. But, because Mr. Kobach has filed a Motion to Dismiss, plaintiffs maintain their “right of dismissal by notice.” Davidson, 2019 WL 1317465, at *1. As Mr. Kobach explains in his response to plaintiffs’ motion, the court should construe the motion-at least, as it applies to him-as a notice of voluntary dismissal under Fed.R.Civ.P. 41(a)(1)(A)(i), since Mr. Kobach has not filed an answer or a motion for summary judgment. The court thus construes plaintiffs’ motion as a voluntary dismissal under Rule 41. And with plaintiffs’ filing, they have dismissed voluntarily defendant Mr. Kobach from the case. The court notes that this dismissal applies to both the official capacity claims against current Secretary of State Scott Schwab and the individual capacity claims against Kris Kobach. The court thus dismisses both defendants from this action. Mr. Kobach’s Motion to Dismiss (Doc. 64) is denied as moot.

         2. The court grants plaintiffs’ “Joint Motion to Withdraw” their claims against Rhonda Eisenbarger and Deja Jackson.

         Plaintiffs’ motion also asserts that they were unable to locate and serve Rhonda Eisenbarger and Deja Jackson, both named as defendants in plaintiffs’ Complaint. Doc. 1 at 2. The motion asks the court to dismiss the claims against Ms. Eisenbarger and Ms. Jackson without prejudice. Again, plaintiffs failed to serve Ms. Eisenbarger and Ms. Jackson and, as one would expect, neither Ms. Eisenbarger nor Ms. Jackson has filed a response of any kind. Thus, as it applies to Ms. Eisenbarger and Ms. Jackson, Rule 41(a)(1)(A)(i) permits plaintiffs to maintain their “right of dismissal by notice.” Davidson, 2019 WL 1317465, at *1. The court construes plaintiffs’ motion-as it applies to Ms. Eisenbarger and Ms. Jackson-as a notice of voluntary dismissal under Fed.R.Civ.P. 41(a)(1)(A)(i), since neither has filed any responsive pleading.

         3. The court grants plaintiffs’ “Joint Motion to Withdraw” their claims against defendants Randy Debenham and Blake Robinson and denies those defendants’ Motion to Dismiss (Doc. 59) as moot.

         Plaintiffs’ Motion to Withdraw also seeks to withdraw their claims against Mr. Debenham and Mr. Robinson. Plaintiffs filed their motion after Mr. Debenham and Mr. Robinson filed a Motion to Dismiss that, alternatively, moves for summary judgment “to the extent that facts beyond the allegations of the Complaint are necessary to resolve the issues.” Doc. 60 at 1. Also, as our local rule 56.1(f) requires, Mr. Debenham and Mr. Robinson filed a “Notice to Pro Se Litigants Who Oppose a Motion for Summary Judgment.” Doc. 61.

         Although plaintiffs have filed a motion to withdraw their claims against Mr. Debenham and Mr. Robinson voluntarily after these defendants have filed a motion to dismiss or in the alternative, summary judgment, the court follows a recent decision from our court and construes plaintiffs’ motion as a notice of voluntary dismissal. See Davidson, 2019 WL 1317465, at *1 (concluding that plaintiff’s “motion to withdraw . . . should have been considered a notice of unilateral voluntary dismissal under Rule 41(a)(1)” after defendant filed a motion to dismiss). Courts are divided on the question of “what procedural event transforms a pending, undecided motion to dismiss into one for summary judgment for the purposes of Rule 41(a)(1)(A)(i).” 8 J.W. Moore et al., Moore’s Federal Practice – Civil § 41.33 (3d ed. 2010). But, Moore’s Federal Practice explains,

[t]he better view is that a formal, court-ordered conversion is required: thus, a notice of dismissal may be vacated only if filed after the time that the court has actually reviewed the motion to dismiss, determined whether to include or exclude the extraneous matters, notified the parties of the conversion to Rule 56, and expressly afforded the parties a reasonable opportunity to present materials relevant to a motion for summary judgment.

Id.; see also 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2363 (3d ed. 2019) (“[U]nless formally converted into a motion for summary judgment under Rule 56, a significant number of decisions make . . . it clear that a motion to dismiss under Rule 12 does not terminate the right of dismissal by notice.”).

         Here, the court has not yet ruled on Mr. Debenham and Mr. Robinson’s motion to dismiss. Also, the court also has not converted the motion to dismiss into one for summary judgment. The court follows the majority view which requires formal conversion of a motion to dismiss into a summary judgment motion before precluding a plaintiff from dismissing a party voluntarily under Rule 41(a)(1)(A)(i). And, the court grants plaintiffs’ motion to withdraw their claims against Mr. Debenham and Mr. Robinson. For the same reasons, the court denies Mr. Debenham and Mr. Robinson’s Motion to Dismiss (Doc. 60) as moot.

         II. Defendants Barry Wilkerson, Bethany Fields, Carla Swartz, Julia Goggins, Riley County Police Department, and Pathways Family Services, LLC; St. Francis Community Services, Inc.; Miranda Johnson; Lora Ingles; Sunflower CASA Project, Inc.; Kathy Boyd, Laura Price, and Kaylee Posson; KVC Behavioral Healthcare, Inc.; Pawnee Mental Health Service, Inc.; and Kansas Department for Children and Families, Theresa Freed, Kendra Baker, Gina Meier-Hummel, in her official capacity, Phyllis Gilmore, in her individual capacity, Angie Suther, and Kim Yoxell’s Motions to Dismiss

          A. Background

         Plaintiffs filed their Complaint in this case on August 27, 2018 (Doc. 1). Then, nine days later, plaintiffs filed another document docketed as an “Amended Complaint” (Doc. 7). Their original Complaint is an 84-page filing containing factual and legal allegations. But, their “Amended Complaint” alleges only basic information about this action on a form complaint, including identifying information about plaintiffs and each defendant and the basis for subject matter jurisdiction over this case. In blank spaces where plaintiffs are instructed to make a “statement of [their] claim(s)” and explain their “request for relief, ” plaintiffs merely have referenced an “[a]ttached [c]omplaint.” Doc. 7 at 11–12. They never filed this “attached complaint” as an attachment to Doc. 7. But the page numbers correspond exactly with the original Complaint. And, plaintiffs allege that they “were asked . . . to file the complaint using a specific format and template so they placed the same complaint on the form provided by the court.” Doc. 107 at 1. Thus, the court construes the filing docketed as an “Amended Complaint” as a supplement to the Complaint and not a new pleading.

         When considering a motion to dismiss, the court accepts facts asserted by the Complaint as true and views them in the light most favorable to plaintiffs. 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)). Many of the facts asserted in plaintiffs’ Complaint are identical to facts plaintiffs asserted in an earlier lawsuit. The court dismissed that case in 2016. Schwab v. Kansas, No. 16-CV-4033-DDC-KGS, 2017 WL 2831508 (D. Kan. June 30, 2017).

         B. Facts

         Mr. and Mrs. Schwab are the natural parents of four children. Mrs. Schwab is the mother of a fifth child, and Mr. Schwab is his stepfather. In April 2015, Mr. and Mrs. Schwab allowed their five children to stay with their maternal grandmother in Dickinson County, Kansas. Without the Schwabs knowing it, the maternal grandmother and a maternal uncle contacted the Riley County Police Department-RCPD-to express their concerns about how Mr. and Mrs. Schwab were caring for their children. The RCPD removed the children from the Schwab’s custody and the State of Kansas initiated proceedings in the District Court of Riley County Kansas (“District Court’) to determine if the Schwab children were Children In Need of Care- CINC-under Kansas law. See Kan. Stat. Ann. § 38-2202(d) (providing the statutory definition for a “child in need of care”).

         On April 29, 2015, the District Court held a temporary custody hearing for the five children. At its conclusion, the District Court placed the five children in the temporary custody of the Kansas Department for Children and Families-KDCF. The District Court appointed defendant Lora Ingels as guardian ad litem to represent the five children. The District Court also appointed separate counsel to represent Mr. Schwab and Mrs. Schwab in the CINC case pending before the District Court. Through counsel, Mr. and Mrs. Schwab filed separate motions seeking rehearing of the temporary custody ruling.

         On May 13, 2015, the District Court held a rehearing. Both Mr. and Mrs. Schwab attended the hearing, represented by their separate counsel. Before the hearing started, the District Court ordered Mr. and Mrs. Schwab to submit to urinalysis and breathalyzer tests. Both complied with that order. During the hearing, both Mr. and Mrs. Schwab withdrew their respective motions seeking rehearing of the temporary custody ruling. At the end of the hearing, the District Court ordered that the five children remain in temporary KDCF custody.

         On June 4, 2015, Mr. Schwab filed a pro se motion to suppress the results of the May 13, 2015 urinalysis test. His motion asserted that the test was an unlawful search and seizure that violated his rights under the Fourth Amendment to the United States Constitution. His motion also claimed that the test results were unreliable.

         Mr. Schwab filed a complaint against his court appointed counsel with the Office of the Disciplinary Administrator. His counsel promptly withdrew from representation. On June 16, 2015, Mr. Schwab’s complaint was dismissed.

         After holding a hearing on June 11, 2015, the District Court denied Mr. Schwab’s pro se motion. Also, the District Court ordered Mr. Schwab to submit to another urinalysis and breathalyzer test. He refused. The District Court considered Mr. Schwab’s refusal to take the tests as a positive result. Mr. Schwab asked for new counsel and the court obliged.

         On July 10, 2015, the District Court held an adjudication hearing. Mr. Schwab attended that hearing, represented by her counsel. Mrs. Schwab did not appear in person, but she was represented by counsel at the hearing. The parties presented testimony and evidence during the adjudication hearing and, at its conclusion, the District Court adjudicated the children as CINC.

         Mr. Schwab appealed the District Court’s decision to the Kansas Court of Appeals. Mrs. Schwab did not appeal. On April 8, 2016, the Kansas Court of Appeals issued four orders affirming the CINC adjudication. See In Re C.S., No. 114, 272, 2016 WL 1391810 (Kan.Ct.App. Apr. 8, 2016); In re A.S., No. 114, 273, 2016 WL 1391817 (Kan.Ct.App. Apr. 8, 2016); In re A.S., No. 114, 274, 2016 WL 1381818 (Kan.Ct.App. Apr. 8, 2016); In re E.S., No. 114, 275, 2016 WL 1391819 (Kan.Ct.App. Apr. 8, 2016).[9] The court of appeals also rejected Mr. Schwab’s arguments that the District Court, during the CINC proceedings, had violated his constitutional rights to due process and against unreasonable searches and seizures under the Fourth Amendment. See, e.g., In re C.S., 2016 WL 1391810, at *8, 11. Mr. Schwab filed Petitions for Review with the Kansas Supreme Court seeking review of the court of appeals’ decisions affirming the CINC adjudications. The Kansas Supreme Court denied review on October 21, 2016.

         Plaintiffs then brought a lawsuit much like this one against 26 individuals and entities and 10 John Does who were or had been involved in the 2016 CINC case. The lawsuit sought both monetary and injunctive relief. This court dismissed the lawsuit without prejudice on various grounds, including Eleventh Amendment immunity, the Younger Abstention doctrine, the Rooker-Feldman doctrine, and failing to state plausible claims for relief. Schwab v. Kansas, No. 16-CV-4033-DDC-KGS, 2017 WL 2831508 (D. Kan. June 30, 2017).

         In October 2016, the court held a permanency hearing to determine whether it was still viable to reunite plaintiffs with their children. After a lengthy hearing, the court maintained the case plan’s goal of reintegration. The Schwab children returned home in December 2017. The dependency proceedings terminated in May 2018. One child was subject to state oversight until August 2018, when the court dismissed his case.

         Throughout the Complaint, plaintiffs refer to various events without a reference date. These include (1) the failure of many defendants to accommodate plaintiffs’ religious faith, (2) attempted vaccination of plaintiffs’ children without their consent, and (3) the alleged abuse on three of plaintiffs’ children. Doc. 1 ¶¶ 73, 79, 87. Plaintiffs also allege that certain defendants foiled their attempt to gather signatures for a grand jury petition in November 2016. Id. ¶¶ 110-114.

         C. Overview of Plaintiffs’ Claims

         Now, plaintiffs have returned to federal court with this second lawsuit. It is similar to the first, suing 30 individuals and entities and 10 Does[10] who were involved in the 2016 CINC case. The Complaint asserts three claims under 42 U.S.C. §§ 1983 and 1985, and five claims under the Kansas Tort Claims Act (“KTCA”). The court summarizes those claims as follows:

• Counts 1 and 2 bring claims under §§ 1983 and 1985 against all defendants for alleged violations of the “Fourteenth Amendment Familial Association, ” “Warrantless Seizure of Children, ” and “violation of 4th Amendment illegal search and seizure of body fluids.” Doc. 1 at 55, 60.
• Count 3 brings claims under §§ 1983 and 1985 against St. Francis, KVC, and Does 1-10 for “MONTELL-Related Claims.” Doc. 1 at 62.
• Count 4 brings a claim for false light against “all individual defendants and Does 1-10” Doc. 1 at 66.
• Count 5 asserts a claim for public disclosure of private facts against “all individual Respondents and Does 1-10.” Doc. 1 at 68.
• Count 6 brings a claim for slander. Doc. 1 at 69. The Complaint does not specify which defendants are sued for slander. But, the paragraphs following this Count refer to “Respondents.” Doc. 1 at 70. The Complaint defines “Respondents” to include 22 of the 30 defendants in this case. Doc. 1 at 13.
• Count 7 brings a claim for negligence/malpractice against Carla Swartz, KVC, St. Francis, Laura Price, Blake Robinson, Randy Debenham, Miranda Johnson, Pawnee Mental Health Services, Pathways, and Does 1-10. Doc. 1 at 70.
• Count 8 brings a claim for malicious prosecution and abuse of power against Barry Wilkerson and Bethany ...

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