United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
brings this lawsuit against three sets of defendants: (1)
Chief District Judge James Fleetwood (in his official and
individual capacities), District Judge Jeff Dewey (in his
official capacity), District Judge Seth Rundle (in his
official and individual capacities), Court Trustee Carl
Wheeler, (in his official capacity), and District Court Clerk
Bernie Lumbreras (in her official capacity) (“the
Sedgwick County, Kansas defendants”); (2) the Board of
County Commissioners of Sedgwick County (“the Sedgwick
County BOCC”) and Sedgwick County Sheriff Jeff Easter
(in his official capacity); and (3) plaintiff’s
ex-wife, Melinda Slater.
Sedgwick County, Kansas defendants filed a Motion to Dismiss
under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Doc. 14. Defendants
Sedgwick County BOCC and Sheriff Easter filed a Motion to
Dismiss under Rule 12(b)(6), or alternatively a Motion for
More Definite Statement under Rule 12(e). Doc. 19. Defendant
Slater also filed a Motion to Dismiss under Rule 12(b)(6), or
alternatively a Motion for More Definite Statement under Rule
12(e). Plaintiff has filed a Response. Doc. 33. All
defendants have filed Replies. Docs. 35, 36, 37. For reasons
explained below, the court grants defendants’ motions.
following facts come from plaintiff’s Complaint and the
court views them in the light most favorable to him.
S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir.
2014) (“We accept as true all well-pleaded factual
allegations in the complaint and view them in the light most
favorable to the [plaintiff].” (citation and internal
quotations marks omitted)).
lawsuit arises from plaintiff and defendant Slater’s
Sedgwick County, Kansas child support case. Doc. 1 at 6.
Plaintiff’s factual allegations are hard to follow.
But, generally, plaintiff claims that Sedgwick County judges
and “government partners” have
“obstruct[ed] recusal and appeal in an interstate child
support case for the purpose of preventing [p]laintiff and
his attorney’s further racketeering complaints to
federal agents.” Id. at 2. Plaintiff and his
attorney are now “faced with threats of physical force
by state actor Judge Seth Rundle based upon prima
facie insufficient contempt pleadings and
proceedings.” Id. Plaintiff claims that
“continuing acts of retaliatory obstruction against
[p]laintiff and his attorney that have occurred during an
active federal investigation plausibly show that Sedgwick
County is incapable of preventing its property, personnel,
services[, ] and revenue from being used to further [an]
illegal enterprise even in a court system.”
is an “African-American and Native-American”
male. Id. He and Ms. Slater were married from 1997
to 2013. Id. at 6 (Compl. ¶ 10). They have
three children together. Id. Judge Rundle has
presided over their child support proceedings in Sedgwick
County No. 13DM4220. Id. (Compl. ¶ 16). In July
2017, Ms. Slater filed to increase plaintiff’s child
support obligation. Id. (Compl. ¶ 13).
During discovery, plaintiff learned that Ms. Slater had been
reporting her income inaccurately since child support began
in 2013. Id. (Compl. ¶ 17). Plaintiff filed a
“Notice of Intent to Request Sanctions” for this
conduct, but the Sedgwick County court struck
plaintiff’s notice without notice to plaintiff.
Id. at 6–7 (Compl. ¶¶ 18, 19).
child support proceeding, Judge Rundle asked Ms.
Slater’s attorney whether she was arguing
plaintiff’s attorney had contacted a represented party.
Id. at 7 (Compl. ¶ 20). Ms. Slater’s
attorney said no. Id. But after the proceeding,
Judge Rundle ordered plaintiff’s attorney to
self-report “insinuated ex parte
communications” to the Kansas Disciplinary
Administrator. Id. (Compl. ¶ 21). Also, Judge
Rundle “approved an unspecified assessment of fees
against [plaintiff] and/or his attorney without specific
findings of bad faith nor waste or delay.” Id.
(Compl. ¶ 22).
March 2018, plaintiff filed a request to disqualify Judge
Rundle after a “formal ethics investigation resulting
from Rundle’s Order.” Id. (Compl. ¶
24). Judge Rundle then denied voluntary disqualification from
the case. Id. (Compl. ¶ 26). Plaintiff’s
attorney filed an affidavit asserting Judge Rundle’s
judicial bias. Id. at 8 (Compl. ¶¶ 27,
28). The affidavit stated, in part, that plaintiff’s
attorney had made “formal inquiry into
racketeering” in Sedgwick County courts, and that 64
days later, her three-year-old relative/client was murdered
after “his mother was granted a clearly fraudulent
protection from stalking order.” Id.
(Compl. ¶ 28). Chief Judge Fleetwood held a hearing on
plaintiff’s attorney’s recusal affidavit,
“but his understanding of his statutory, administrative
duties as to recusal could not be legally
corroborated.” Id. at 9 (Compl. ¶ 30).
Judge Fleetwood denied plaintiff’s request for
reassignment. Id. (Compl. ¶ 32).
Rundle then ordered child support income withholding
(including a 3.5 percent Sedgwick County Trustee fee) against
plaintiff. Id. at 10 (Compl. ¶ 35). And
plaintiff lost every post-trial motion. Id.
Plaintiff appealed, and Ms. Slater “filed a
facially-invalid Motion for Contempt” to enforce a $4,
400.00 attorney’s fees award against plaintiff.
Id. at 11 (Compl. ¶ 41). Judge Rundle set a
hearing on the matter for October 1, 2018. Id.
(Compl. ¶ 43).
on October 1, plaintiff’s attorney had a docket
conflict with plaintiff’s hearing in front of Judge
Rundle and another matter in front of Judge Dewey.
Id. (Compl. ¶¶ 44–45).
Plaintiff’s attorney told opposing counsel and court
personnel where she would be so that they could find her for
plaintiff’s case, if needed. Id. at 12 (Compl.
¶ 45). But nobody requested that plaintiff’s
attorney appear in either Judge Dewey or Judge Rundle’s
courtroom that day. Id. (Compl. ¶ 46).
Plaintiff’s attorney then received an “order for
her disqualification and insinuation of citation for indirect
contempt for failing to appear at 2:15 PM that day on Mrs.
Slater’s facially-invalid contempt motion.”
Id. (Compl. ¶ 47). Ms. Slater then tried to
disqualify plaintiff’s attorney from appellate
representation, but the court denied her motion. Id.
(Compl. ¶ 50).
October 12, 2018, plaintiff’s attorney contacted an HHS
Office of the Inspector General Special Agent and
“relayed complaints of racketeering involving an
enterprise with courts in Sedgwick, Johnson[, ] and Wyandotte
[C]ounties in Kansas.” Id. (Compl. ¶ 51).
The same day, Judge Rundle “obstructed
[p]laintiff’s attorney’s right to file Notice of
Appeal of his decisions to disqualify the attorney, find her
in contempt and to further pursue the judge’s
disqualification and venue transfer.” Id.
(Compl. ¶ 52). On October 29, 2018, plaintiff’s
attorney learned that Judge Fleetwood had reported to the
Sheriff’s Office that plaintiff’s attorney had
threatened him. Id. (Compl. ¶ 53).
Plaintiff’s attorney complained about Judge
Fleetwood’s conduct to Sedgwick County Attorney Eric
Yost the same day. Id. at 13 (Compl. ¶ 54).
alleges the following against all defendants: a general claim
under 42 U.S.C. §§ 1983 and 1988 (Count I); a
§ 1983 First Amendment claim (Count II); a § 1983
Equal Protection claim (Count III); and a Racketeer
Influenced and Corrupt Organization Act (“RICO”)
claim under 18 U.S.C. § 1962 (Count IV). Plaintiff also
brings an “abuse of process” claim against Ms.
Slater (Count V).
plaintiff asks the court for the following relief: (1)
disqualification of Sedgwick County Judges Fleetwood, Dewey,
and Rundle from plaintiff’s child support case; (2)
transfer of venue from Sedgwick County to Cowley County; (3)
a “stay” of Judge Rundle’s orders,
including his order disqualifying plaintiff’s attorney;
(4) an injunction preventing further filings in the child
support case; (5) “[f]ederal reorganization,
appointment of trustee and removal of officers” in the
Sedgwick County Trustee’s Office; (6) plaintiff’s
costs and treble attorney’s fees; and (7) “[s]uch
other relief as this [c]ourt may deem just and proper,
including but not limited to prospective and/or retroactive
injunctive relief for any injustice for which relief in the
law is inadequate, declaratory relief, compensatory damages,
punitive damages, pain and suffering, statutory damages
(including treble damages and/or fines), reimbursement of
funds paid or lost, class action certification, attorneys
fees and/or costs.” Doc. 1 at 29.
Rule 12(b)(1) standard
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 of all civil actions arising under the
constitution, laws, or treaties of the United States or where
there is diversity of citizenship. 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 jurisdiction bears the burden to prove
it exists. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994).
a motion to dismiss for lack of subject matter jurisdiction
under Fed.R.Civ.P. 12(b)(1) takes one of two forms: a facial
attack or a factual attack. Holt v. United States,
46 F.3d 1000, 1002 (10th Cir. 1995). “First, a facial
attack on the complaint’s allegations as to subject
matter jurisdiction questions the sufficiency of the
complaint. In reviewing a facial attack on the complaint, a
district court must accept the allegations in the complaint
as true.” Id. (citing Ohio Nat’l
Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th
Cir. 1990)) (internal citations omitted).
a party may go beyond allegations contained in the complaint
and challenge the facts upon which subject matter
jurisdiction depends.” Id. at 1003 (citations
omitted). “When reviewing a factual attack on subject
matter jurisdiction, a district court may not presume the
truthfulness of the complaint’s factual
allegations.” Id. (citations omitted).
Rule 12(b)(6) standard
motion to dismiss for failure to state a claim, the court
accepts all facts pleaded by the non-moving party as true and
draws any reasonable inferences in favor of the non-moving
party. Brokers’ Choice of Am. v. NBC Universal,
Inc., 757 F.3d 1125, 1136 (10th Cir. 2014). “To
survive a motion to dismiss [under Rule 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “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).
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’” which, as the Supreme Court has
explained, simply “will not do.” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
This is so because the court need not “accept as true a
legal conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 557 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986) (internal quotation
court also will grant a motion to dismiss if an issue of law
is dispositive. Neitzke v. Williams, 490 U.S. 319,
326 (1989). And “if as a matter of law ‘it is
clear that no relief could be granted under any set of facts
that could be proved consistent with the allegations, ’
a claim must be dismissed, without regard to whether it is
based on an outlandish legal theory or on a close but
ultimately unavailing one.” Id. at 327
(quoting Hishon v. King & Spalding, 467 U.S. 69,
defendants ask the court to dismiss plaintiff’s
Complaint. They provide several reasons supporting their
dismissal request. The court addresses each reason, in turn,
Plaintiff’s Requests for Declaratory Relief
Sedgwick County, Kansas defendants argue that
plaintiff’s requests for “declaratory
relief” fail as a matter of law. Plaintiff labels
some of his requests for relief as seeking
“declaratory” relief. See,
e.g., Doc. 1 at 3 (“Declaratory relief is
authorized by 28 U.S.C. §§ 2201 and 2202.”);
id. at 17 (requesting “declaratory
relief” against Judge Fleetwood “to reassign
[p]laintiff’s case”); id. at 21
(requesting “declaratory relief” against Judge
Rundle “to voluntarily disqualify himself from
[p]laintiff’s case, vacate his orders of October 2,
2018 and thereafter and to provide proof of his training as
to liability for coercive use of pleadings and orders,
employee responsibilities to as to liability for coercive use
of pleadings and orders, employee responsibilities to report
the appearance of such conduct and the parameters of
qualified, quasi-judicial and absolute immunity”).
of plaintiff’s demands are requests for injunctive
relief. A declaratory judgment “declare[s] the rights
and other legal relations of any interested party seeking
such declaration . . . .” 28 U.S.C. § 2201.
See also United States v. Fisher-Otis Co., Inc., 496
F.2d 1146, 1151 (10th Cir. 1974) (citation omitted)
(“The purpose of the Declaratory Judgment Act is to
settle actual controversies before they ripen into violations
of law or a breach of duty.”). Here, none of
plaintiff’s requests for relief seek a declaration of
rights. Instead, each request for “declaratory
relief” asks the court to order defendants to initiate
some kind of action-for the most part, actions in
plaintiff’s underlying child support proceedings.
plaintiff truly was seeking declaratory relief, state
officials are immune from suit in their official capacities
for retrospective declaratory relief because the Eleventh
Amendment bars such claims. Meiners v. Univ. of
Kan., 359 F.3d 1222, 1232 (10th Cir. 2004).
“the Supreme Court has held [the Declaratory Judgment
Act] confers upon courts the power, but not the duty, to hear
claims for declaratory judgment.” Mid-Continent
Cas. Co. v. Vill. at Deer Creek Homeowners Ass’n,
Inc., 685 F.3d 977, 980 (10th Cir. 2012) (first citing
Wilton v. Seven Falls Co., 515 U.S. 277,
286–87 (1995); then citing Pub. Affairs Assoc.,
Inc. v. Rickover, 369 U.S. 111, 112 (1962)). When
determining whether a court should exercise jurisdiction over
a declaratory judgment action, the court should consider the
 whether a declaratory action would settle the
controversy;  whether it would serve a useful purpose in
clarifying the legal relations at issue;  whether the
declaratory remedy is being used merely for the purpose of
procedural fencing or to provide an arena for a race to res
judicata;  whether use of a declaratory action would
increase friction between our federal and state courts and
improperly encroach upon state jurisdiction; and  whether
there is an alternative remedy which is better or more
Id. at 980–81 (quoting State Farm Fire
& Cas. Co. v. Mhoon, 31 F.3d 979, 983 (10th Cir.
the “declaratory” relief that plaintiff seeks
asks this court to order defendants to perform various
actions-including actions in plaintiff’s child support
proceedings. Even if plaintiff was seeking declaratory
relief-and not injunctive relief-the Mhoon factors
strongly favor the court exercising its discretion to decline
to hear plaintiff’s claims under the Declaratory
Judgment Act. An order of declaratory relief here: (1) will
not settle plaintiff’s underlying child support
proceedings, (2) would not serve a useful purpose in
clarifying the legal relations at issue, (3) would promote
procedural fencing because plaintiff seeks the relief as a
way to avoid the jurisdiction of the Sedgwick County District
Court, and (4) would increase friction between federal and
state courts. Also, plaintiff has (5) an alternative remedy
in state court because he can raise his arguments in that
forum and also appeal any adverse Sedgwick County District
Court orders to the Kansas appellate courts. For these
reasons-and to the extent plaintiff raises any plausible
claims for declaratory relief-the court declines to exercise
jurisdiction over them.