Neighbors v. Lawrence Police Dep't

• Decision Date: 12 July 2016
• Docket Number: Case No. 15-CV-4921-DDC-KGS
• Parties: GUY MADISON NEIGHBORS, Plaintiff, v. LAWRENCE POLICE DEPARTMENT, et al., Defendants.
• Court: U.S. District Court — District of Kansas

GUY MADISON NEIGHBORS, Plaintiff, v. LAWRENCE POLICE DEPARTMENT, et al., Defendants.

Case No. 15-CV-4921-DDC-KGS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

July 12, 2016

MEMORANDUM AND ORDER

Plaintiff asserts civil rights violations against defendants in this lawsuit. This matter comes before the court on several motions, including defendants' Motion to Dismiss for Failure to State a Claim (Doc. 24). Plaintiff never has responded to defendants' Motion to Dismiss, despite the court affording him several opportunities to do so. Although the local rules allow courts "ordinarily" to grant uncontested motions, see D. Kan. Rule 7.4(b), the court nevertheless addresses the merits of defendants' motion. For the reasons explained below, the court grants in part and denies in part defendants' Motion to Dismiss. The court also denies all other pending motions in this case.

I. Background

On August 19, 2015, pro se plaintiff Guy Madison Neighbors filed a civil complaint against the following defendants: the Lawrence Police Department; the City of Lawrence, Kansas; Chief of Police Tarik Khabit; two police officers;¹ Municipal Judge Scott Miller; City Prosecutor Steven M. Lehwald; and additional unknown defendants (John Does). Doc. 1. He claims that defendants violated his constitutional rights by citing and prosecuting him for trafficviolations. He contends that these actions are part of a pattern of harassment by the Lawrence Police Department that has lasted for almost 10 years. This harassment, plaintiff asserts, includes eight criminal cases against him in federal court. According to plaintiff, the government eventually dismissed all eight cases.

On November 17, 2015, defendants filed a Motion to Dismiss for Failure to State a Claim (Doc. 24), seeking dismissal of plaintiff's lawsuit under Fed. R. Civ. P. 12(b)(6). Doc. 24. On April 7, 2016, the court issued a Notice and Order to Show Cause because plaintiff had filed no response to defendants' Motion to Dismiss. Doc. 57. The court explained that D. Kan. Rules 6.1(d)(2) and 7.1(c) required plaintiff to respond to defendants' motion within 21 days, i.e. by December 8, 2015. Id. at 1. It also explained that "[u]nder D. Kan. Rule 7.4(b), a party 'who fails to file a responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or memorandum' unless there is a showing of excusable neglect." Id. at 2 (quoting D. Kan. Rule 7.4(b)). And, the court explained that its local rule provides "'[i]f a responsive brief or memorandum is not filed within the D. Kan. Rule 6.1(d) time requirements, the court will consider and decide the motion as an uncontested motion. Ordinarily, the court will grant the motion without further notice.'" Id. (quoting D. Kan. Rule 7.4(b)). The court ordered plaintiff to show cause, in writing, on or before April 29, 2016, why it should not consider and rule on defendants' motion as an uncontested one under D. Kan. Rule 7.4(b). Id. The court also directed plaintiff, if he intended to file a response to defendants' motion, to file it on or before April 29, 2016. Id.

On April 15, 2016, plaintiff filed a "Motion to Respond to the Judge[']s Order to Show Cause" (Doc. 59). In this filing, plaintiff asserted that defendants' Motion to Dismiss is moot because he had filed an Amended Complaint. Id. The court construed plaintiff's filing as aresponse to the court's April 7, 2016 Show Cause Order. Doc. 60 at 1. And it considered his argument that no response to defendants' Motion to Dismiss was required because, plaintiff thought, the Motion to Dismiss was moot after he filed an Amended Complaint. Id. The court explained that plaintiff's understanding of the procedural posture was incorrect. Id. While plaintiff had filed an Amended Complaint (Doc. 30), he did so without moving for leave to amend his Complaint as Fed. R. Civ. P. 15(a)(2) and D. Kan. Rule 15.1(a) require. See id. at 3. For that reason, the court struck plaintiff's Amended Complaint. Id. The court also explained that the Motion to Dismiss was not moot. Id. at 1.

But the court also determined that plaintiff had demonstrated good cause and had explained why he did not respond to defendants' Motion to Dismiss, i.e., he thought the motion was moot. Id. at 2. For that reason, the court allowed plaintiff additional time to respond to defendants' Motion to Dismiss and ordered him to file a response on or before May 11, 2016. Id. at 2, 5.

Plaintiff filed no response as the court directed. He instead appealed the court's Order allowing him additional time to file a response. Doc. 66. The Tenth Circuit dismissed plaintiff's appeal for lack of jurisdiction because this court has entered no final or otherwise appealable order. Doc. 69.

To date, plaintiff still has not responded to defendants' Motion to Dismiss. Because plaintiff has not responded timely to defendants' Motion to Dismiss, the court could grant the motion as an uncontested one under D. Kan. Rule 7.4(b). The court, however, declines to do so, and instead addresses defendants' motion on the merits. For the reasons explained below, the court grants in part and denies in part defendants' Motion to Dismiss.

II. Pro Se Litigant Standard

Because plaintiff brings this lawsuit pro se, the court construes his filings liberally and holds them to a less stringent standard than formal pleadings drafted by lawyers. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the court does not assume the role of advocate for a pro se litigant. Id. Also, a litigant's pro se status does not excuse him from complying with the court's rules or facing the consequences of noncompliance. Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)).

In several filings, plaintiff refers to himself as proceeding "in pro-per." He even filed a "Notice Plaintiff Appears in Propria- Persona And Not Pro-Se." Doc. 62. In it, he objects to the court's use of the term pro se because, by doing so, plaintiff contends the court is holding plaintiff to the same standard as a licensed attorney and thus violates his due process rights. Id. at 1. But as noted above, the pro se standard in our Circuit requires courts to hold a pro se litigant's filings to a less stringent standard than formal pleadings drafts by lawyers. Hall, 935 F.2d at 1110. The court applies this standard because the Tenth Circuit requires it. But the standard also appears to conform to plaintiff's request that the court not hold him to the same standard as a licensed attorney.

Plaintiff also claims "[t]here is a huge difference between Pro- Per, as [opposed] to pro-se." Doc. 62 at 1. The federal court for the Middle District of Pennsylvania has explained the difference between these two terms as follows:

According to Black's Law Dictionary, [inpropria persona] was formerly a rule of pleading that an attorney, as an officer of the court, could not appear before a court which did not have jurisdiction. By appearing with an attorney, the party was admitting the jurisdiction of the court. Any challenge to jurisdiction would have to be made without an appearance by counsel. A person making such achallenge, then, would appear "in their own person," or in propria persona. Black's Law Dictionary 792 (6th ed. 1990).

On the other hand, a person appearing at any time without counsel is proceeding pro se. Id. at 1221. Thus, a non-attorney appearing to challenge jurisdiction was both in propria persona and pro se, but the designation of their status as in propria persona would not survive the determination of jurisdiction, and they would be proceeding solely with pro se status thereafter if no counsel appeared.

United States v. Goldberg, 937 F. Supp. 1121, 1125 n.1 (M.D. Pa. 1996). Several courts, including our own, have recognized that in propria persona "has historical significance as a former rule of pleading," but "'the term in propria persona is outdated, at least as having a separate legal meaning. Courts have continued to use the phrases in propria persona and pro se interchangeably and synonymously." Braun v. Stotts, No. 93-3118-GTV, 1997 WL 383034, at *1 (D. Kan. June 19, 1997) (quoting Goldberg, 937 F. Supp. at 1125 n.1); see also United States ex rel. Rockefeller v. Westinghouse Elec. Co., 274 F. Supp. 2d 10, 12 n.3 (D.D.C. 2003) (noting that "the terms pro se and pro persona (pro per) are analogous." (citing Black's Law Dictionary (7th ed. 1999)); Wik v. Kunego, No. 11-CV-6205-CJS, 2014 WL 1746477, at *5 (W.D.N.Y. Apr. 30, 2014) ("Pro se is synonymous with in propria persona. The court understands Plaintiff's status as a person representing himself." (citations omitted)).

Even if two terms have a different meaning, plaintiff does not contest the court's jurisdiction. Indeed, he's the one who filed this lawsuit here. The court thus finds no reason to refer to plaintiff as proceeding in propria persona. And, as our court has recognized, "the Supreme Court and the Tenth Circuit have used the term 'pro se' when discussing self-representation." Braun, 1997 WL 383034, at *1 (citing McKaskle v. Wiggins, 465 U.S. 168 (1984); United States v. McKinley, 58 F.3d 1475, 1480 (10th Cir. 1995); United States v. Reddeck, 22 F.3d 1504, 1510 (10th Cir. 1994)). Following Judge Van Bebber's guidance inBraun, the court "will continue to use the phrase 'pro se' when referring to self-representation." Id. And accordingly it will refer to plaintiff as proceeding pro se in this case.

III. Plaintiff's Motion to Join Defendants' Attorney as a Defendant

Before turning to the Motion to Dismiss, the court addresses plaintiff's recent filing asking to add defendants' attorney as a defendant in the case. He also asks the court to strike all pleadings filed by defendants' attorney, including the Motion to Dismiss, because, plaintiff contends, the attorney cannot prove that he has a license to practice law. See Doc. 63...