Owens v. State, Case No. 11-4007-EFM

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Writing for the CourtERIC F. MELGREN
PartiesGARY OWENS and OBO DLT TRANSPORT, Plaintiffs, v. THE STATE OF KANSAS, LINN COUNTY, LINN COUNTY DISTRICT COURT, RICHARD SMITH, JOHN SUTHERLAND, UNKNOWN RE-ISSUER OF BOGUS WARRANT, THE KANSAS HIGHWAY PATROL, CJ HAMMOND, JUSTIN ROHR, ALEX TAYLOR, SALINE COUNTY SHERIFFS DEPARTMENT, CRAIG NORRIS, W. MUEHLBERG, OFFICER DICKINSON, ROY PALMER, PALMER TRUCK AND TRAILER REPAIR, and GLEN KOCHANOWSKI, Defendants.
Docket NumberCase No. 11-4007-EFM
Decision Date10 May 2011

GARY OWENS and OBO DLT TRANSPORT, Plaintiffs,
v.
THE STATE OF KANSAS, LINN COUNTY, LINN COUNTY DISTRICT
COURT, RICHARD SMITH, JOHN SUTHERLAND, UNKNOWN RE-ISSUER
OF BOGUS WARRANT, THE KANSAS HIGHWAY PATROL, CJ HAMMOND,
JUSTIN ROHR, ALEX TAYLOR, SALINE COUNTY SHERIFFS DEPARTMENT,
CRAIG NORRIS, W. MUEHLBERG, OFFICER DICKINSON, ROY PALMER,
PALMER TRUCK AND TRAILER REPAIR, and GLEN KOCHANOWSKI, Defendants.

Case No. 11-4007-EFM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: May 10, 2011.


MEMORANDUM AND ORDER

This case arises out of Plaintiff Gary Owens' arrest that occurred on December 20, 2006, near Salina, Kansas. In their complaint, Plaintiffs, Owens and OBO DLT Transport, proceeding pro se, allege that every party that played a role in Owens' arrest and subsequent processing is a "member[] of or beholden to a nefarious criminal organization which is dedicated to the maxim, 'tell any lie, violate any rule, break any law, statutes, policy and regulations, and commit any crime

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necessary to perfect schemes, frauds, swindles, and extortion.' "1 The following motions are now before the Court: (1) Saline County Sheriffs Department's, Craig Norris', William Dickinson's, W. Muehlberg, and Glen Kochanowski's ("Saline County Defendants") Rule 12(b)(2) & (3) motion to dismiss (Doc. 9); (2) CJ Hammond's, the Kansas Highway Patrol's, the State of Kansas', Linn County District Court's, Justin Rohr's, Richard Smith's, and Alex Taylor's Motion to Dismiss (Doc. 18); (3) Linn County's and John Sutherland's Motion to Dismiss and/or For Judgment on the Pleadings (Doc. 30); (4) Plaintiffs' Motion to Strike CJ Hammond's, the Kansas Highway Patrol's, the State of Kansas', Linn County District Court's, Justin Rohr's, Richard Smith's, and Alex Taylor's Motion to Dismiss (Doc. 40); (5) Plaintiffs' Motion to Vacate the Court's Order striking his response to Saline County Defendants' Rule 12(b)(2) & (3) motion (Doc. 41); (6) Roy Palmer's and Palmer Truck and Trailer Repair's Motion to Dismiss (Doc. 48); and (7) Saline County Defendants' Motion to Dismiss (Doc. 50). For the reasons stated below, the Court concludes that this case should be dismissed.

I. BACKGROUND

On December 20, 2006, Plaintiff Owens, an over-the-road truck driver, was pulled over by Kansas Highway Patrol Trooper CJ Hammond near Salina, Kansas. Among other things, Trooper Hammond ran Owens' driver license, which led to the discovery of the fact that a Linn County official had issued a bench warrant for Owen's arrest in July 23, 1997.2 When asked, Trooper

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Hammond was unable to answer Owens' question of why the arrest warrant had been issued, but he did say that it had been renewed on October 19, 2006. Due to the outstanding warrant, Trooper Hammond arrested Owens. Fearing that his vehicle, and the cargo contained therein, would be left on the side of the road, Owens requested that he be able to move it to a nearby truck stop. Owens' request was denied, and Roy Palmer of Palmer Truck and Trailer Repair was called in to remove Owens' vehicle from the road. At some point in time, Troopers Justin Rohr and Alex Taylor arrived on scene.

Owens was taken to the Saline County jail for booking. There, Owens' photo and fingerprints were taken, Owens' money was inventoried, and Owens was searched by the following members of the Saline County Sheriffs Department: Glen Kochanowski, Craig Norris, W. Muehlberg, and Officer Dickinson. Owens alleges that these officers, like the arresting troopers, assaulted, battered, intimidated, and harassed him to further "their scheme to extort under color of law [and] to further their meanness and greed."3 As a result of law enforcement's actions, Owens claims to have suffered severe emotional distress.

Eventually, Owens bonded out of jail by posting a $500 bond, which was the amount set forth in the 1997 bench warrant. Owens did not receive back the money that was taken from him during the booking; however, he did receive a check in the amount of $102.72. According to Owens, upon his release, the Saline County Sheriffs Department issued him a bogus bond card, as

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the portion of the card stating Saline County was marked out and replaced with Linn County and the card did not say how to get to the Linn County courthouse.

At some point in time, Owens began filing, via fax, motions and pleadings with the Linn County Court Clerk's Office and John Sutherland, the Linn County Attorney.4 Owens alleges that many of his motions and pleading were never answered, and that Sutherland had ex parte hearings with Judge Richard Smith, the chief judge for the Sixth Judicial District and who sits in Linn County, 5 which ultimately resulted in the conversion of Owens' $500 bond "to the criminal enterprise treasuries of [Linn] [C]ounty."6 To cover up their gross misconduct, Owens claims that Sutherland and Smith removed court documents from the record.

Based on the events described above, on December 20, 2010, Plaintiffs, proceeding pro se, filed this action in the United States District Court for the Northern District of Texas, asserting a litany of claims arising under both federal law, namely 42 U.S.C. §§ 1983, 1985, & 1986 and 18 U.S.C. § 1964(a) & (c), and state law. Plaintiffs are requesting, among other things, injunctive and declaratory relief, $30,000,000 in punitive damages, possession of the arresting troopers' squad cars, that John Sutherland be permanently disbarred, and possession of Sutherland's bar card.

II. Legal Standards

Rule 12(b)(1) Standard

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District courts have "original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States."7 "A case arises under federal law if its 'well pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.' "8 Plaintiff is responsible for showing the court by a preponderance of the evidence that jurisdiction is proper.9 Mere allegations of jurisdiction are not enough.10

Federal courts are courts of limited jurisdiction and, as such, must have a statutory or constitutional basis to exercise jurisdiction.11 The law imposes a presumption against jurisdiction, and plaintiff bears the burden of showing that jurisdiction is proper.12

Rule 12(b)(6) Standard

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.' "13 "[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable

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likelihood of mustering factual support for these claims."14 "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted."15

In determining whether a claim is facially plausible, the court must draw on its judicial experience and common sense.16 All well pleaded facts in the complaint are assumed to be true and are viewed in the light most favorable to the plaintiff.17 Allegations that merely state legal conclusions, however, need not be accepted as true.18

Rule 12(c) Standard

The distinction between Fed. R. Civ. P. 12(c) and Fed. R. Civ. P. 12(b)(6) is one without difference, as the standards under the two provisions are the same.19 Thus, to survive a motion to dismiss made under Rule 12(c), a complaint must present factual allegations, assumed to be true, that "raise a right to relief above the speculative level," and must contain "enough facts to state a claim to relief that is plausible on its face."20 The allegations must be enough that, if assumed to be true, the plaintiff plausibly, not merely speculatively, has a claim for relief.21

Pro Se Standard

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"A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers."22 However, "it is not the proper function of the district court to assume the role of advocate for the pro se litigant."23 "[T]he court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues."24

III. ANALYSIS

As noted above, there are a number of outstanding motions. These motions fall into two distinct categories: (1) motions addressing whether the United States District Court for the Northern District of Texas had personal jurisdiction over Defendants and is the proper venue to entertain this matter; and (2) motions addressing whether Plaintiffs' action should be dismissed because either the Court lacks subject-matter jurisdiction over Plaintiffs' claims or Plaintiffs' complaint fails to state a claim upon which relief can be granted. The Court will address these categories of motions in turn.

Saline County Defendants' Rule 12(b)(2) & (3) Motion (Doc. 9) and Plaintiffs' Motion...

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