Dickerson v. Leavitt Rentals

• Decision Date: 11 February 1998
• Docket Number: Civil Action No. 97-2584-EEO.
• Citation: 995 F.Supp. 1242
• Parties: Durand K. DICKERSON, Plaintiff, v. LEAVITT RENTALS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

995 F.Supp. 1242

Durand K. DICKERSON, Plaintiff, v. LEAVITT RENTALS, et al., Defendants.

Civil Action No. 97-2584-EEO.

United States District Court, D. Kansas.

February 11, 1998.

COPYRIGHT MATERIAL OMITTED

Durand K. Dickerson, pro se.

William E. Pray, Leavenworth, KS, for Leavitt Rentals, Paul Leavitt and Deborah M. Leavitt.

Brian G. Boos, James M. Yeretsky, Yeretsky & Maher, L.L.C., Kansas City, MO, for G. Ronald Bates, Jr. and Crow, Clothier & Bates.

Ernest C. Ballweg, Johnston, Ballweg & Tuley, L.C., Overland Park, KS, for Patrick E. Henderson and Duncan, Senecal Law Offices, Chartered.

John R. Dowell, Office of Attorney General, Topeka, KS, for Phillip Lacey and David J. King.

Michael T. Jilka, Wendell F. Cowan, Jr., Shook, Hardy & Bacon L.L.P., Overland Park, KS, for Board of County Com'rs of Leavenworth County, Wayne Eldridge, Donald Navinsky, Robert Adams, Jim Murry, Shirley Pendergraft and Herbert Nye.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Senior District Judge.

This matter is before the court on the motions to dismiss of all defendants (Doc. 17, 21, 27, 29, 39, 40), plaintiff's motions for entry of default (Doc. 24, 25, 26, 30, 32, 34, 36, 45, 47, 53, 62), and plaintiff's motions to strike defendants' motions to dismiss (Doc. 43, 49, 51, 61). Plaintiff's motions to strike will be considered as memoranda in opposition to defendants' motions to dismiss. After carefully considering the parties' briefs, the court is prepared to rule. For the reasons set forth below, defendants' motions to dismiss will be granted and plaintiff's motions for entry of default will be denied.

Factual Background

This is a civil rights action in which plaintiff Durand K. Dickerson seeks to recover damages from various defendants in the aggregate of $37,500,000.00. The following is a brief summary of the underlying dispute.

This case arises out of a landlord-tenant dispute between Mr. Dickerson and defendants Leavitt Rentals, Paul Leavitt, and Deborah Leavitt. In August 1996, the Leavitts filed suit against Mr. Dickerson seeking to have him evicted from the commercial property owned by the Leavitts. Mr. Dickerson retained defendants Duncan Senecal Law Offices ("Duncan") and Patrick E. Henderson to represent him in the state court action. The Leavitts retained defendant G. Ronald Bates, Jr., of the firm of Crow, Clothier & Bates ("Crow") to represent them. The Leavitts ultimately prevailed against Mr. Dickerson in state court. Mr. Dickerson appealed the district court's judgment to the Kansas Court of Appeals.

Throughout the last few months of 1996 and the first few months of 1997, the Leavitts apparently filed several actions against Mr. Dickerson after serving Mr. Dickerson with Ten Day Notices To Quit based on various alleged lease violations. On January 14, 1997, Judge King entered a writ of restitution and execution order in one of the actions filed against plaintiff. Plaintiff apparently appealed the court's order.

In February 1997, after the Leavitts had filed another action against Mr. Dickerson, Mr. Henderson declined to represent Mr. Dickerson. Mr. Dickerson retained defendant Michael J. Waite. On February 28, 1997, Judge Lacey signed a Journal Entry of Judgment ordering Mr. Dickerson evicted from the leased premises. Plaintiff apparently appealed this judgment the same day. Pursuant to the Journal Entry of Judgment, Sheriff Herbert Nye evicted Mr. Dickerson from the Leavitts' property. Judge Lacey subsequently denied Mr. Dickerson's motion for stay and temporary injunction.

On April 2, 1997, Judge King signed a writ of execution in one of the actions the Leavitts filed against plaintiff. Plaintiff claims he was not properly served with notice of the writ. Plaintiff inquired of Shirley Pendergraft and Lt. Donald Murray of the Sheriff's Department regarding the failure to provide notice. Despite the alleged absence of service on plaintiff, plaintiff filed a motion to stay the order of execution and sale, which the court granted.

On June 27, 1997, after various other legal proceedings, a Sheriff's Sale was held to dispose of plaintiff's property. The Leavenworth Board of County Commissioners and Sheriff Nye apparently were involved in the sale. On July 8, 1997, the court entered judgment against plaintiff in the amount of $9,076.70. Plaintiff appealed this judgment. On August 11, 1997, funds from plaintiff's bank account were garnished. It is unclear from the factual record whether plaintiff's appeals have been resolved by the Kansas Court of Appeals.

In sum, plaintiff has filed this civil rights action against nearly everyone involved in the above state court cases, including his own attorneys, the Leavitts, the Leavitts' attorney, two of the judges of the Leavenworth County District Court, the Sheriff who evicted plaintiff pursuant to court order, two employees of the Sheriff's department, as well as the Leavenworth Board of County Commissioners, and its individual members. Plaintiff has filed his complaint pursuant to 42 U.S.C. §§ 1983, 1985, 1986, 1988, alleging violations of his rights protected by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.

Legal Standards For Motions To Dismiss A Pro Se Litigant's Complaint

A federal court will construe liberally a pro se litigant's pleadings. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir.1995). Pro se complaints are held to "less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); see Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir. 1988). Nevertheless, a pro se litigant is still obligated to follow the same rules of procedure as any other litigant. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.1992), cert. denied, 507 U.S. 940, 113 S.Ct. 1336, 122 L.Ed.2d 720 (1993); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) ("It is not the court's function to become an advocate for the pro se litigant.").

Defendants move to dismiss this action for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(1), 12(b)(6).

a. Subject Matter Jurisdiction.

Federal courts are courts of limited jurisdiction. Mr. Dickerson, as plaintiff, bears the burden of establishing that the district court has subject matter jurisdiction of his claims. See Henry v. Office of Thrift Supervision, 43 F.3d 507, 512 (10th Cir. 1994); Miller v. United States, 710 F.2d 656, 662 (10th Cir.), cert. denied, 464 U.S. 939, 104 S.Ct. 352, 78 L.Ed.2d 316 (1983). Here, defendants do not challenge the factual support for plaintiff's jurisdictional allegations. Rather, defendants argue that plaintiff's factual allegations as to subject matter jurisdiction are insufficient as a matter of law to establish the jurisdiction of this court. Therefore, "[a]ll well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984); see Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995). The court must view all reasonable inferences in favor of the plaintiff and the pleadings must be liberally construed. See Swanson, 750 F.2d at 813.

b. Failure To State A Claim.

A court may dismiss a complaint for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). A court judges the sufficiency of the complaint by accepting as true the well-pleaded factual allegations and drawing all reasonable inferences in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987). "[T]he court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). The issue in resolving a motion to dismiss for failure to state a claim is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Complaints drawn by pro se litigants are held to a less stringent standard than those drafted by legal counsel. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Nevertheless, a pro se complaint may be dismissed if it clearly fails to state a legally cognizable claim. Id.

I. Subject Matter Jurisdiction/Rooker-Feldman Doctrine.

We have reviewed plaintiff's complaint as it relates to all defendants under the Rooker-Feldman doctrine. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 414-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923). The Rooker-Feldman doctrine bars "a party losing in state court ... from seeking what in substance would be appellate review of the state judgment in a United States District Court, based on the losing party's claim that the state judgment itself violates the loser's federal rights." Johnson v. De Grandy, 512 U.S. 997, 1005-06, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994). Federal district courts lack subject matter jurisdiction to evaluate constitutional claims that are inextricably intertwined with the state court's decisions. See Feldman, 460 U .S. at 486 ("Federal district courts do not have jurisdiction over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional.") (internal quotation omitted); Williams Natural Gas Co. v. City of Oklahoma City, 890 F.2d 255, 264-65 (10th Cir. 1989), cert. denied, 497 U.S. 1003, 110 S.Ct. 3236, 111 L.Ed.2d 747 (1990). The Supreme Court has held:

[A] federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Where...