Knight v. Neodesha, Kan., Police Dept.

• Decision Date: 10 October 1980
• Docket Number: No. 50765,50765
• Citation: 5 Kan.App.2d 472,620 P.2d 837
• Parties: Harlyn P. KNIGHT, Appellant, v. NEODESHA, KANSAS, POLICE DEPARTMENT et al., Appellees.
• Court: Kansas Court of Appeals

Page 837

620 P.2d 837

5 Kan.App.2d 472

Harlyn P. KNIGHT, Appellant, v. NEODESHA, KANSAS, POLICE DEPARTMENT et al., Appellees.

No. 50765.

Court of Appeals of Kansas.

Oct. 10, 1980.

Syllabus by the Court

1. When a motion to dismiss under K.S.A. 60-212(b)(6) raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff's petition. The motion in such case may be treated as the modern equivalent of a demurrer.

2. Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.

3. In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff's description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.

4. The court is under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. It is not necessary that the petition spell out a legal theory for relief so long as an opponent is apprised of the facts that entitle plaintiff to relief.

5. Civil conspiracy does not become actionable without the commission of some wrong that would give rise to a cause of action independent of the conspiracy.

6. The attorney general and county attorney have absolute immunity for their conduct in investigations for potential prosecutions. This immunity applies to the decision not to act as well as to the decision to file charges.

7. Prosecutorial immunity extends to agents of the Kansas Bureau of Investigation at least insofar as their activities involve solely investigatory functions for the attorney general.

8. Judges of courts of general jurisdiction as well as judges of courts of limited jurisdiction possess immunity for official actions performed within the scope of their jurisdiction.

9. An action must be prosecuted in the name of the party who, by the substantive law, is the real party in interest.

10. Fair editorial comment is protected by the constitutional guarantee of free speech.

11. While a petition alleging libel and slander must set forth the alleged defamatory words, the names of the persons to whom they were published and the time and place of their publication, a petition which fails to do so may not be dismissed without the district court first ordering the plaintiff to plead more specific facts.

12. K.S.A. 60-514 requires actions for slander to be brought within one year of the making of the defamatory statements.

13. Police officers may be personally liable if they maliciously or wantonly injure a person.

14. Claims of misappropriation of public funds, of falsifying public records and of improper appointment of a public officer may not be brought by a private citizen absent some showing that the citizen has been uniquely affected by the alleged wrongful acts.

15. While a trial judge has inherent power to recuse himself in any particular case, a party may seek a judge's removal only through use of the procedure set out in K.S.A.1979 Supp. 20-311d, and the failure to file an affidavit of prejudice prevents consideration of a judge's removal.

16. In an action for damages based on miscellaneous theories, it is held: The trial court did not err in dismissing plaintiff's lawsuit against some of the defendants, but it did err in dismissing plaintiff's action against other defendants, all as more specifically set forth in the opinion.

Harlyn P. Knight, appellant pro se.

Albert Poznik, Neodesha, for appellee Neodesha, Kan., Police Dept. and, unless otherwise noted, in their official capacity only for appellees Thomas H. Prunier, Chief of Police, Bobby L. Olive, policeman; Robert C. Ramey, policeman; Forest Tincknell, policeman; Ray Anderson, policeman and individual; John F. Fenner, Police Judge and individual; Albert Poznik, City Atty., and individual; Mrs. Albert (Bernice I.) Poznik, individual; Richard Thrasher, Neodesha City Com'r; Harry L. Allen, Neodesha City Commissioner and individual; Dr. Charles A. Koger, Neodesha Mayor; and Jerry Goodwin, policeman and individual.

David K. Clark, Fredonia, for appellees Mrs. Thomas H. (Carol) Prunier, Bobby L. Olive, Robert Ramey, Harry Bisnett, Forest Tincknell, Richard Thrasher and Dr. Charles A. Koger.

Richard L. Helms of Jones & Dearth, Chartered, Parsons, for appellee Laurel McClellan, Wilson County Attorney.

Thomas A. DeVore and Jack L. Lively of Hall, Levy, Lively & Viets, Coffeyville, and Richard G. Oliver, Neodesha, for appellees Lawrence H. Tucker and Shari B. Tucker, d/b/a Neodesha Daily Sun newspaper.

William D. Biles and Janet A. Chubb, Asst. Attys. Gen., and Robert T. Stephan, Atty. Gen., for appellees Curt T. Schneider, William Albott, Ronald M. Klingenberg and Buddy Handshy.

Before ABBOTT, P. J., and REES and PARKS, JJ.

ABBOTT, Judge:

This is an appeal by the plaintiff, Harlyn P. Knight, from a judgment dismissing his lawsuit against all defendants for failure to state any claims on which relief may be granted. K.S.A. 60-212(b )(6). Knight sued most of the twenty-one named individuals both in their individual and official capacities and named the Neodesha City Police Department and the Neodesha Daily Sun newspaper as defendants.

The petition alleges a number of incidents and complaints against public officials ranging from local to state officials. The fourteen-page petition is confusing and repetitious and defies structured analysis in the traditional manner. We will attempt to give some background to the suit, handle the legal issues common to all of the defendants, and then dispose of each of the remaining issues against named defendants on an individual basis.

The allegations cover fourteen pages of legal size paper and defy condensation. Generally, the principal allegations of the petition involve conspiracy, various abuses against plaintiff and others, misconduct concerning public elections, a dog bite case with both civil and criminal charges arising therefrom, complaints of various traffic charges, libel and slander, and the failure of public officers to carry out their duties (at least what plaintiff perceives to be their duties). There are also a number of other allegations.

Plaintiff further filed an affidavit of prejudice that sought to disqualify all of the judges in the Eleventh Judicial District of Kansas. The departmental justice then assigned the case to the Honorable Robert F. Stadler (now deceased).

All of the defendants filed motions to dismiss the petition on the theory that it failed to state any claim upon which relief could be granted. No discovery was made, and no evidence was presented to the trial court. The plaintiff appeared and orally presented his petition and attempted to clarify it. Plaintiff appeals the judgment dismissing his petition, contending (1) that the trial court erred in dismissing plaintiff's claims, and (2) that the trial judge should have recused himself and plaintiff was prejudiced by improper conduct on the part of the trial judge.

Our scope of review is well defined. Illustrative of that scope of review is Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 413-14, 479 P.2d 875 (1971), wherein the Supreme Court said:

"In Robertson v. McCune, 205 Kan. 696, 472 P.2d 215, we considered the scope of a motion to dismiss and said:

" 'When a motion to dismiss under K.S.A. 60-212(b)(6) ... raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff's petition. The motion in such case may be treated as the modern equivalent of a demurrer.' (p. 700, 472 P.2d 215.)

"Obviously, disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.

"The thrust of the foregoing is the court must accept the plaintiff's description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself, (see 5 Wright & Miller, Federal Practice and Procedure, § 1357)."

It is not necessary to spell out a legal theory for relief so long as an opponent is apprised of the facts that entitle the plaintiff to relief. Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 199, 563 P.2d 467 (1977). The court is under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. Monroe v. Darr, 214 Kan. 426, Syl. P 3, 520 P.2d 1197 (1974).

Plaintiff begins his petition by charging all of the defendants collectively with participating in a civil conspiracy to deprive plaintiff of his rightful services from public officials. Although Kansas has recognized civil conspiracy as an actionable tort ...