Whane v. State of Kan.

• Decision Date: 25 September 1997
• Docket Number: No. 96-4190-SAC.,96-4190-SAC.
• Citation: 980 F.Supp. 387
• Parties: Tommie WHAYNE, Plaintiff v. STATE OF KANSAS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

980 F.Supp. 387

Tommie WHAYNE, Plaintiff v. STATE OF KANSAS, et al., Defendants.

No. 96-4190-SAC.

United States District Court, D. Kansas.

September 25, 1997.

COPYRIGHT MATERIAL OMITTED

Tommie Dorsey Whane, Topeka, KS, pro se.

Christopher F. Burger, Office of Attorney General, Topeka, KS, for Defendant Carla J. Stovall, State of Kansas, William Carpenter, Prosecuting Dist. Atty.

Sandra L. Jacquot, Richard V. Eckert, Office of the County Counselor, Shawnee County, Topeka, KS, for Defendant Shawnee County Sheriffs Dept.

Melanie D. Caro, Office of U.S. Atty., Kansas City, KS, for Defendant U.S. Marshal's Office.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

This civil rights case comes before the court on the joint motion to dismiss (Dk.8) filed by the defendants the State of Kansas, the Honorable William R. Carpenter, "Shawnee County Judges," and "Shawnee County Prosecuting Attorneys;" a motion to dismiss (Dk.11) filed by the defendant Shawnee County Sheriff's Department; a motion to dismiss (Dk.20) filed by the United States of America on behalf of its agency, the United States Marshal's Service; the plaintiff's "motion to retax the cost of this case ... and motion to strike or cancel all of Magistrate Newman's orders ... in this case" (Dk.22); the plaintiff's motion to review and for oral argument (Dk.23); the plaintiff's motion for leave to file attachments (Dk.28); and the plaintiff's motion to amend "petitions" (Dk.29).

NATURE OF ACTION

The plaintiff appears pro se in bringing this action. The plaintiff's complaint is vague and difficult to comprehend. After several readings of the complaint, the court gleans the following to be the plaintiff's central allegations.

The plaintiff first alleges the facts surrounding a "drug bust"¹ at his rental home on July 3, 1991, when officers found growing marijuana plants.² The plaintiff alleges that deputies with the Shawnee County Sheriff's Department arrested him on October 21, 1991, based on the evidence found during the earlier "drug bust."

The plaintiff alleges that he was released after this first arrest in 1991. Accusing his wife and her family of conspiring to create grounds for a divorce, the plaintiff says he was arrested later in 1991 on "drug pushers" charges. The plaintiff alleges that officers seized property from his residence in execution of forfeiture laws. The plaintiff alleges he was detained on these charges and sent to Larned State Hospital for a mental evaluation. Told that he faced incarceration if he did not plead guilty, the plaintiff says he "finally went along with the probation." (Dk.1, p. 1b). The plaintiff complains that he asked his attorneys to appeal, but they advised that he could not appeal.

The plaintiff next alleges that as of October 19, 1992, he had performed his forty hours of community service required as a term of his probation. Having assumed that the time sheets for his service work were sent to his probation officer and that he had completed all other conditions of his probation, the plaintiff alleges that "he went on ... [with his] life" after first trying to contact his probation officer.

The plaintiff next alleges that on October 24, 1996, he was arrested by four men representing that they had a warrant for his arrest. At that time, the plaintiff says he did not believe there was a warrant for his arrest.³ After telling the officers "don't touch me," the officers⁴ used force in arresting and placing handcuffs on him and then moved him to a room in the Marshal's office where his pockets were emptied and searched. The plaintiff alleges the arresting officers committed assault and battery.

According to the complaint, the arresting officers transferred the plaintiff to the custody of two officers of the Topeka Police Department and two deputies of the Shawnee County Sheriff's Department, who then transported him to the Shawnee County Jail. While at the jail, the plaintiff called his probation officer and asked how he could be arrested for a probation violation when he was no longer on probation. The plaintiff alleges that he was detained until midnight when he was released after posting "$28.00" in "bail" and signing a form on which he agreed to appear in court.

From these bare allegations of events, the plaintiff purports to assert a laundry list of "charges" or claims, which include:

"Racketeering Frauds" — (civil R.I.C.O.) violations, false arrest (3 times), under "false pretenses," exstortioni (sic), "illegal (forfeiture enforcement), theft, Double Jeopardy (sic) (4 times), slander, defamation of Character," Scapegoating, false witnessing ..., false imprisonment (3 times), issueing (sic) "false writtings" (sic) or documents, (Malicious Discrimination and prejudices) Criminal damage to my "personal property," illegal searches amounting to "invasion of privacy," illegal harrasment (sic) and threat, violation of my "civil and Constitutional rights-(1st, 4th, 5th, 6th, 7th (mostly the 8th), 13th (mostly the 14th)), breach of contract, violation of the "Civil Rights Act of 1964 & 1968," Conspiracy to commit fraud against me purposely, Malicious prosecutions.... (Dk.1). As for relief, the plaintiff seeks only monetary damages, actual and punitive, totalling $2.5 million.

PLAINTIFF'S MOTION TO REVIEW (Dks. 22 and 23).

The plaintiff has filed a "motion to retax the cost of this case ... and ... to strike or cancel all of Magistrate Newman's orders ... in this case" (Dk.22) and a motion to review and for oral argument (Dk.23). The court construes these two filings as seeking review of the magistrate judge's order granting the defendants' motion to stay discovery and the case pending determination of the defendants' motion to dismiss. (Dk.18).

The plaintiff's filing generally objects to the treatment he has received from the defendants and the judicial system. He advances no specific objections or arguments against the magistrate judge's order other than to deny that he has consented to the magistrate judge presiding over his case. The rules of this court, specifically D.Kan. Rule 72.1.2(b), do not require the parties' consent before assigning a case to the magistrate judge "for the conduct of a Fed. R.Civ.P. 16(b) scheduling conference, the issuance of a scheduling order, ..., and for the hearing and determination of all pretrial, procedural and discovery motions." The clerk's office properly referred the defendants' motion to stay discovery to the magistrate judge who was authorized by D.Kan. Rule 72.1.2(b) to decide the same. There being no serious challenge to the magistrate judge's authority or his exercise of it, the court summarily denies the plaintiff's motions to review.

PLAINTIFF'S MOTION FOR LEAVE TO FILE ATTACHMENTS (Dk.28) and PLAINTIFF'S MOTION TO AMEND "PETITIONS" (Dk.29).

In both motions, the plaintiff seeks relief based on the erroneous premise that the defendants are in default for not having filed an answer to his complaint. Rule 55 of the Federal Rules of Civil Procedure provides for entry of default judgment when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by the rules. A motion to dismiss is a proper defense pleading under Rule 12(b), and Rule 12(a)(4) further provides that the service of such a motion alters the period for answering. The period for filing an answer becomes ten days after notice of the court's order that denies the motion or postpones a decision until the trial. Fed.R.Civ.P. 12(a)(4)(A).

In this case, the record clearly reveals that the defendants State of Kansas, Hon. William R. Carpenter, "Shawnee County Judges," "Shawnee County Prosecutors," and Shawnee County Sheriff's Department filed their motions to dismiss within twenty days⁵ of their receipt by certified mail of the summons and the plaintiff's complaint. As an agency of the United States, the United States Marshal's Service had sixty days to file an answer or Rule 12 motion. Fed. R.Civ.P. 12(a)(3). The record shows the United States of America on behalf of the United States Marshal's Service filed a motion to dismiss within the sixty-day period. Thus, there are no facts on which to seek default against these defendants.

As for the Topeka Police Department, it is only a subunit of city government and, therefore, is not a governmental entity subject to suit. Baker v. Colorado Springs Police Department, 42 F.3d 1406, 1994 WL 673070 (10th Cir.1994) (table); Fritchey v. Denver Police Department, 21 F.3d 1121, 1994 WL 142474 (10th Cir.1994); cf. Hopkins v. State, 237 Kan. 601, 606, 702 P.2d 311 (1985). The plaintiff has neither named nor served the proper defendant concerning the actions taken by officers of the Topeka Police Department.

Consequently, the plaintiff is not entitled to a default judgment for failure of the defendants to plead or otherwise defend against this action. Nor did the plaintiff follow the default judgment procedure required by Rule 55.⁶ For all of these reasons, the court denies the plaintiff's related requests advanced in these motions.

JOINT MOTION TO DISMISS (Dk.8).

This joint motion filed by the defendants the State of Kansas, the Honorable William R. Carpenter, "Shawnee County Judges," and "Shawnee County Prosecuting Attorneys" seeks dismissal on several alternative grounds. The defendants are entitled to dismissal on most of the grounds argued; some of which the court will briefly discuss now.

The court has no jurisdiction over the plaintiff's claims against the State of Kansas. The Eleventh Amendment confers sovereign immunity on the states that functions as "a constitutional limitation on the federal judicial power" of Article III courts. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984). It affords absolute immunity from suit in federal courts for states and their agencies regardless of the legal or equitable nature of the relief sought. Ramirez...