Brin v. Kansas, 97-4243-SAC.

• Decision Date: 09 June 2000
• Docket Number: No. 97-4243-SAC.,97-4243-SAC.
• Parties: Arlen J. BRIN, Plaintiff, v. State of KANSAS, Fort Hays State University, Johnny M. Williams, Francis Pechanec, Dr. Carl Parker, Terron Jones, and Larry Perkins, Defendants.
• Court: U.S. District Court — District of Kansas

Page 1343

101 F.Supp.2d 1343

Arlen J. BRIN, Plaintiff, v. State of KANSAS, Fort Hays State University, Johnny M. Williams, Francis Pechanec, Dr. Carl Parker, Terron Jones, and Larry Perkins, Defendants.

No. 97-4243-SAC.

United States District Court, D. Kansas.

June 9, 2000.

COPYRIGHT MATERIAL OMITTED

Caleb Boone, Hays, KS, pro se.

Arlen J. Brin, Zurich, KS, pro se.

William Scott Hesse, Office of Atty. General, Topeka, KS, for defendants.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

Arlen J. Brin ("Brin") is a former employee of Fort Hays State University ("FHSU"). After working for fifteen years as an FHSU employee, Brin was terminated against his will. Brin commenced this action pro se, ostensibly alleging violations of his constitutional right to freedom of speech and violations of certain civil rights. Brin seeks compensatory and punitive damages in excess of $200,000 and reinstatement into his former position.

This case comes before the court upon the defendants' "Motion to Dismiss" (Dk.11). The defendants seek dismissal of the plaintiff's claims on several grounds including Eleventh Amendment immunity, qualified immunity, failure to state a claim upon which relief can be granted, collateral estoppel and improper service on the State of Kansas and FHSU. The plaintiff initially filed a pro se response to the defendants' motion to dismiss, and subsequently retained the services of counsel, who filed a supplemental response to the defendants' motion to dismiss. The court has reviewed the pleadings and the arguments of counsel, and makes the following rulings.

Pro Se Litigant

In analyzing the plaintiff's complaint, the court has taken into consideration the fact that he appears pro se. "A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). "At the same time, we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant." Id. See Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991) ("Despite liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues."). Nor is the court to "supply additional factual allegations to round out a plaintiff's complaint." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997).

Subject Matter Jurisdiction

"Federal courts are courts of limited jurisdiction." Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir. 1994). This court's jurisdiction is established by the Constitution and acts of Congress. See United States v. Hardage, 58 F.3d 569, 574 (10th Cir.1995) ("Federal courts have limited jurisdiction, Insurance Corp. of lreland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701, 102 S.Ct. 2099, 2103-04, 72 L.Ed.2d 492 (1982), and they are not omnipotent. They draw their jurisdiction from the powers specifically granted by Congress, id. at 701-02, 102 S.Ct. at 2103-04, and the Constitution, Article III, Section 2, Clause 1.").

The Tenth Circuit has commented on the limited jurisdiction of the federal courts and summarized the duties of the district court in considering whether it has jurisdiction to consider a case:

"The Federal Rules of Civil Procedures [sic] direct that `whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.'" [Tuck v. United Services Automobile Ass'n,] 859 F.2d 842, 844 (10th Cir.1988) (quoting Fed.R.Civ.P. 12(h)(3)), cert. denied, 489 U.S. 1080, 109 S.Ct. 1534, 103 L.Ed.2d 839 (1989). Moreover, "[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) (emphasis in original). Nor may lack of jurisdiction be waived or jurisdiction be conferred by "consent, inaction or stipulation." Id. Since federal courts are courts of limited jurisdiction, there is a presumption against our jurisdiction, and the party invoking federal jurisdiction bears the burden of proof. Id.

Penteco Corp. v. Union Gas System, 929 F.2d 1519, 1521 (10th Cir.1991).

Fed.R.Civ.P. 12(b)(6) Standards

A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993); see Hospice of Metro Denver, Inc. v. Group Health Ins. of Oklahoma, 944 F.2d 752, 753 (10th Cir.1991) ("Dismissal of a case pursuant to Fed.R.Civ.P. 12(b)(6) requires the legal determination that the plaintiff can prove no set of facts in support of his claim to entitle him to relief.") (citations omitted); Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472 (10th Cir.1990) ("Under Rule 12(b)(6), dismissal is inappropriate unless plaintiff can prove no set of facts in support of his claim to entitle him to relief."). The Tenth Circuit has observed that the federal rules "`erect a powerful presumption against rejecting pleadings for failure to state a claim.'" Maez v. Mountain States Tel. and Tel., Inc., 54 F.3d 1488, 1496 (10th Cir.1995) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986)).

A court judges the sufficiency of the complaint accepting as true the well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiff. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987). It is not the court's function "to weigh potential evidence that the parties might present at trial." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (footnote omitted). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir.1989).

Analysis

Improper Service

Defendants allege that the State of Kansas and FHSU were not properly served with process, although no challenge is made to service of process on the individual defendants. It is uncontested that the plaintiff, while acting pro se, mailed service of process to FHSU, instead of serving the governor or attorney general or her assistant, as required by law. See K.S.A. 60-304(d)(5). Defendants allege that the court therefore lacks personal jurisdiction over them, and that they should be dismissed from the case. The court disagrees.

Kansas law provides that substantial compliance with the service of process statute is sufficient. K.S.A. 60-204 provides in part:

In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his or her person, status or property were subject to being affected.

This statute has been applied to uphold service of process where the defendant was actually aware of the action against him, and was not prejudiced by the manner of service. See e.g., Chee Craw Teachers Ass'n v. U.S.D. No. 247, 225 Kan. 561, 563, 593 P.2d 406 (1979) (where party appears to have been clearly aware of the action and its consequences, and in the absence of a showing of prejudice by the particular means of service, the trial court's assumption of personal jurisdiction will be upheld.)

The Tenth Circuit has held that sufficiency of service under state law satisfies the federal rule regarding service of process. As the court stated in Pedi Bares, Inc. v. P & C Food Markets, Inc., 567 F.2d 933, 936 (10th Cir.1977):

Section 60-204 of the Kansas Rules of Civil Procedure says that substantial compliance with the provisions for process service suffices if a party is made aware of the action. Section 60-102 declares that the rules of civil procedure shall be liberally construed. Under Kansas law, substantial compliance with the requirements for service and awareness of the action are all that is necessary. Briscoe v. Getto, 204 Kan. 254, 462 P.2d 127, 129. Here we have both. Sufficiency of service under state law satisfies the federal rule.

Here, defendants do not allege that they were not made fully aware of the commencement of this action when process was served. The record contains no allegation of prejudice to any defendant from the method of service of process. In light of the fact that the service was made by a pro se litigant, the court finds the mailing to constitute substantial compliance with the requirements for service, and therefore declines the State and FHSU's invitation to dismiss them for lack of personal jurisdiction based on improper service of process.

Preclusive Effect of Prior Administrative Decisions

Defendants...