Opposition Brief — In re Orcutt

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No. 10-525

Sn the

Supreme Court of the Anited States

IN RE: WILLIAM E. ORCUTT!

On Petition for a Writ of Mandamus to the United

States Court of Appeals for the Tenth Circutut

RESPONSE IN OPPOSITION TO

PETITION FOR WRIT OF MANDAMUS

Teresa L. Watson, KS Bar# 16654

Counsel of Record

J. Steven Pigg, KS Bar# 09213

Fisher, Patterson, Sayler

& Smith, LLP

3550 SW 5" Street, P.O. Box 949

Topeka, Kansas 66601-0949

Phone: (785) 232-7761

fax: (785) 232-6604

E-mail: twatson@fisherpatterson.com

spigg@fisherpattterson.com

Attorneys for Respondent

Joel R. Euler in his

November 18, 2010

individual capacity

Becker Gallagher Cincinnan, OH Washington, D.C. + 800.890.5001

TABLE OF CONTENTS

Counter-Statement of the Questions Presented

Table of Contents

Table of Authorities

Statement of the Case

Reasons for Denying the Wr

Orcutt’'s Petition for Writ of

Mandamus should be denied

because it is an untimely Petition

for Writ of Certiorar1

Orcutt’s claims arising out of state

foreclosure proceedings are barred

under the Rooker-Feldman

doctrine

he district court did not err in

declining to consider two claim:

arising out of pending

criminal proceedings against

Orcutt based on the Younge,

ibstention doctrine

The district court did not err in

dismissing the balance of Orcutt’:

claims based on Fed.R.Civ.Pro

12(b)(6) lL?

Conclusion aa

Appendix

Opinion of the District Court

(filed September 23, 2009)

IV

TABLE OF AUTHORITIES

Cases

District of Columbia Court of Appeals \

keldman, 460 U.S. 462, 482,

103 S.Ct. 1303, 75 L.Ed.2d 206

(1983) ar ae ee

Kenmen Engg v. City of Union, 314 F.3d 468

473 (10 Cir. 2002) 6

Rooker v. Fidehty Trust Co., 263 U.S. 4138,

115-16, 448.Ct. 149, 68 L.Ed. 362

(1923) 6-8. 1]

Sanchez v. Wells Fargo Bank, N.A., No. 08-2148,

2009 WL, 56894. at *3 10" Cir. 2009) LO

Weitzel v. Div. of Occupational & Prof]

Licensing of the Dep't of

Commerce of Utah, 240 F.3d 871

875 (10" Cir. 2001) 9,11

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746

27 L.Ed.2d 669 (1971) 9-1]

Statutes

18 U.S.C. § 241

18 U.S.C. § 1343

18 U.S.C. § 1962(c)

28 U.S.C. §2101(e)

12 U.S.C. § 198]

42. U.S.C. § 1983

12 U.S.C. § 1985

Rules

Hed. R.Civ.Pro. 12(b)(6)

sup.Ct. R. 15(2)

sup.Ct. R. 13Q1)

sup.Ct. R. 13(5) G

STATEMENT OF THE CASE

Plaintiff William EF. Orcutt proceeds pro se. His

recitation of the facts is cursory and incomplete. It will

be supplemented here pursuant to Supreme Court

Rule 15(2). Most of the facts below are gleaned from

the district court’s opinion.

Orcutt was the defendant in two Doniphan

County, Kansas, civil lawsuits, case nos. 2006-CV-1

(the Farmers State Bank lawsuit) and 2006-CV-30 (the

Troy State Bank lawsuit). Orcutt was also prosecuted

and convicted by a jury ina Doniphan County, Kansas,

criminal trial, case no. 2007-CR-16, for violating K.S.A.

21-3734 (impairment of a security interest). Orcutt

appealed his criminal case to the Kansas Court of

Appeals, case number 08-101395A. The matter was

ultimately affirmed in part, reversed in part, and

remanded to the district court. Orcutt’s petition for

review was denied by the Kansas Supreme Court on

March 3], 2010.

The district court set out the operative facts of

the case as follows:

“In 1984, plaintiff started a farm

and home equipment’ business in

Wathena, Kansas in which he leased and

rented equipment. In the1990s, plaintiff

formed A-1 Auto and Metal Salvage in

which he bought and sold cars in

Wathena. Farmers and Troy both made

promissary notes and_= security

agreements to plaintiff or his wife

individually or to an entity that plaintiff

owned. Plaintiffs employees, Jason

Orcutt and Bobby Orcutt, also took out

loans from Farmers. These loans were

secured by personal property and

personal guarantees made to Farmers by

plaintiff and his wife.”

Farmers Lawsuit

“Farmers called the notes that

were due and named plaintiff both

individually and doing business as A>]

Metal and Salvage, Inc., Farmers and

Home Equipment and Orcutt’s Auto

Sales as defendants. Plaintiff admitted

hability on the promissory notes and

stipulated that he and the other

defendants, jointly and severally, owed

l’armers $414,741.64.’

“The Doniphan County, Kansas

district court (the Kansas court’)

determined the interests and obligations

of all defendants. The Kansas court found

that an express agency relationship

existed among plaintiff, Jason Orcutt,

and Bobby Orcutt in that the latter two

were authorized to borrow money on

behalf of plaintiff. The Kansas court

entered judgment in favor of Farmers

and granted its motion to extinguish

redemption rights. The court ordered a

sheriffs ‘sale-of réal estate located in

Doniphan County and confirmed and

approved the sale on December 5, 2007.

No notice of appeal was filed.”

Troy Lawsuit

“Troy called the notes that were

due and named plaintiff, his wife, and

Farmers as defendants. The Kansas

court found that plaintiff was delinquent

on the promissory notes, security

agreements, and real estate mortgages

and foreclosed on various real estate and

secured property. The Kansas court also

found that plaintiff had waived his nght

of redemption. A sheriffs sale of real

estate located in Doniphan County was

ordered and confirmed and approved by

the Kansas court on June 22, 2007. No

notice of appeal was filed.” (Response,

App. 4a-5a.)

Orcutt later filed suit against various

defendants alleging violations under federal criminal

statutes 18 U.S.C. §§ 241,1341, 1343, and 1962(c) and

(d). Orcutt also alleged violations under federal civil

statutes 42 U.S.C. §§ 1981, 1983, and 1985. Orcutt

claimed that defendants conspired to illegally seize

and sell his property in bad faith and used Kansas law

and judicial proceedings to do so.

Defendants named in Orcutt’s complaint were

Brandon, Tony, and Brice Libel (“the Libels”), who are

officers of Farmers State Bank and were witnesses

during the Farmers lawsuit. James Needham is the

president of Troy State Bank and was a witness during

the Troy lawsuit. Joel Euler is an attorney who

represented Farmers in both civil lawsuits against

Orcutt. Ire Dennis Hawver is an attorney who

represented plaintiff in both civil lawsuits. Robert

Orcutt is plaintiffs brother who allegedly forged

plaintiffs name in order to borrow money. Thad Geiger

and Needham were subpoenaed to testify in the felony

criminal case against Orcutt. Darrell Lamme and

Larry Hunsaker are employees of the City of Elwood,

Kansas, which is also a defendant. Jerry Dubach is the

sheriff of Doniphan County, which is also a defendant.

The district court observed that though Orcutt’s

complaint was “virtually devoid of facts,” Orcutt’s

claims apparently stemmed from an alleged illegal

foreclosure on his personal and real assets by Farmers

State Bank and Troy State Bank. The foreclosures

were based upon notes which Orcutt alleges were

signed with his name by his brother and employee,

Robert Orcutt, without authorization.

Orcutt also alleged, without specificity, that

local law enforcement officers used illegal search

warrants and other harassment methods to destroy

Orcutt’s businesses and well being. All other

allegations of Orcutt’s complaint were generic and

failed to identify any specific defendant.

Orcutt’s complaint. failed to identify any specific

act or omission of defendant Euler upon which his

claims are based and failed to identify Euler

individually at any point other than the paragraph in

which he identified Euler's residence address

Defendant Euler was not mentioned in any of Orcutt’s

alleged 35 counts in the complaint.

REASONS FOR DENYING THE WRIT

es Orcutt’s Petition for Writ of Mandamus should

be dismissed because it is an untimely Petition

for Writ of Certiorari.

Orcutt filed the instant Petition for Writ of

Mandamus on October 15, 2010. In it, he attacks the

reasoning contained in the decisions of the District

Court and Tenth Circuit Court of Appeals. In his

conclusion he asks this Court to enter an order

overturning the decision of the courts below. This ts

the very essence of a Petition for Writ of Certiorari.

A Petition for Writ of Certiorari seeking relief

from the decision of a federal circuit court of appeals

must be filed within 90 days of entry of judgment. 28

U.S.C. §2101(c); Supreme Court Rule 13(1). The entry

of judgment in this case occurred on June 9, 2010.

Because Orcutt timely filed a petition for rehearing,

the time to file a Petition for Writ of Certiorari in this

case ran from the date rehearing was denied. Supreme

Court Rule 13(1). Orcutt’s petition for rehearing was

denied on June 15, 2010.

Orcutt had 90 days to file a Petition for Writ of

Certiorari beginning on June 15, 2010. This means his

Petition for Writ of Certiorari should have been filed

on or before September i3, 2010. Instead, it was filed

6

October 15, 2010, approximately one month late

Orcutt did not seek or receive a grant of additional

time to file a Petition for Writ of Certiorari. See

Supreme Court Rule 13(5).

Orcutt’s Petition for Writ of Mandamus is, in

reality, a Petition for Writ of Certiorari, and as such

was untimely filed. The Petition should be dismissed.

Z. Orcutt’s claims arising out of state foreclosure

proceedings are barred under the Rooker-

Feldman doctrine.

The Rooker-Fe/dman doctrine is based on two

United States Supreme Court cases, Rooker v. Fidelity

Trust Co., 263 U.S. 413, 415-16, 448.Ct. 149, 68 L.Ed.

362 (1923), and District of Columbia Court of Appeals

v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75

L.Ed.2d 206 (1983). The doctrine “prohibits a lower

federal court from considering claims actually decided

by a state court, and claims inextricably intertwined

with a prior state-court judgment.” Kenmen Eng’g v.

City of Union, 314 F.3d 468, 473 (10 Cir. 2002)

(internal citation and quotations omitted). A claim is

inextricably intertwined if “the state-court judgment

caused, actually and proximately, the injury for which

the federal-court plaintiff seeks redress.” /d. at 476. A

federal case does not involve an “inextricably

intertwined” state court judgment if the complaint

challenges the constitutionality of the state law, so

long as the state court did not address it and the

plaintiff does not request the federal court to upset the

state court judgment. /d.

The district court in this case reasoned

The court finds that the

Rooker-Feldman doctrine’ precludes

review of plaintiffs claims arising out of

or otherwise related to the Farmers and

Troy lawsuits. Viewed to the outer hmits

of liberal construction, plaintiff's

allegations raise claims that were

decided in favor of defendants by the

Kansas court or are inextricably

intertwined with the state judgments

The Kansas court found that Bobby

Orcutt was authorized to borrow money

on behalf of plaintiff by virtue of an

express agency relationship. The Kansas

court interpreted the contracts and

determined the contractual rights and

interests of the parties in both the

Farmers and Troy lawsuits. It also found

that plaintiff had no right of redemption

in both lawsuits

The Kansas court entered

judgments 1n both the Farmers and Troy

lawsuits which entitled the banks to

foreclose on their security interests and

to execute on other property to collect the

debt owed by plaintiff. The Doniphan

County sheriff took possession of

plaintiffs properties pursuant to the

judgments and sold the property in a

sheriffs sale. The Kansas court found

that the sale was regular and in

contormity with Kansa vy and

(Respon e App a)

Orcutt argu in hi Petit

Mandamus that Hovoker-keldman does not : ly

because he does not seek to overturn the state court

decisions. Instead, he argues, he simply seeks damage

from individual defendants for personal wrongful act

committed against him to be paid out of each

individual defendant's personal fund This |

nothing to do with the Rooker: heldman analy

Orcutt s claims clearly attack the validity of the

tate court's orders in the foreclosure case or at the

very least are inextricably intertwined with them. At

page & of his Petition for Writ of Mandamus, Orcutt

argues that defendants violated his constitutional!

rights by trespassing, breaking and entering and

accuses them of “inappropriate treatment” of hi

personal property amounting to theft. All of the

alleged violations happened in the context of the

foreclosure proceeding

Rooker: keldman apphes to bar Orcutt’s claim

and his Petition for Writ of Mandamu hould |

denied

i

3 The district court did not err in declining to

consider two claims arising out of pending

criminal proceedings against Orcutt based on

the Younger abstention doctrine

} UnvCT at tcl ] tri ’ ma

Younger v. Harri 10) \ } ct 16

L..td.2d 669 (1971) he doctrine p! ent 1 fece

district court from intertering in nvoins

proceeding. Wetzel v. Div. of Occupational & P21

hacensing of the Dep't of Comme: ai hy

Lt el eT MOOD). Furth

L.ilederal 1] ) [ [

reising jurisdiction whet ne

Onvoinyv Lite crimini |

Iministrative proceeding Lin Lal

yurt provide in adequat forum to he

Line claim raised mn tre eae

ym plant mad 4.5/7 tne Lil proces ain

involve lm portant Late mle!

matters which traditionally look to stat

law for their resolution r impli

paratlely art ul ted Hol

ih | | 1} i}

There are except to the J

ibstention doctrin me of which 1

Late prose ution undertaken in bad fait!

v.ithout hop ol obtainin vt)

conviction and perhap Lt

extraordinary circumstane Ny Th

irreparable injury can be shown.’ /d

$76. The plaintiff bears a heavy burd

LO how that the Late action wa

frivolou Or undertaken vith

reasonably objective hope of uc a9

motivals d by cde fend int

il YT

I]

harm or that he is being retaliated or

discriminated against by defendant

Plaintiff was convicted in his Kansas

criminal trial and therefore he cannot

show that there was no hope for a

conviction. Plaintiff asserts conclusory

allegations that defendants continually

exercised bad faith in prosecuting him

because they failed to follow Kansas law

in an unspecified way. Conclusory

allegations will not suffice. Wertze/, 240

F.3d at 877 CL]t is the plaintiff's ‘heavy

burden’ to overcome the bar of Younger

abstention by setting forth more than

mere allegations of bad faith = or

harassment.”).” (Response, App. 13a)

Orcutt argues in his Petition for Writ of

Mandamus at page 11 that all three exceptions to the

Younger abstention doctrine apply in this case. He

does not explain why

The district court dismissed Orcutt’s claims

which arose out of his criminal conviction based on

Younger because his criminal appeal was pending

Since then, his case was affirmed in part, reversed in

part, and remanded to the state district court for

further proceedings. As long as the criminal case 1

pending, Younger applies

Kven if Orcutt’s criminal matter had been

finally decided, Rooker-Feldman would apply to bar

consideration of the claims arising out of Orcutt’s

criminal conviction. Kither way, Orcutt’s Petition for

12

Writ of Mandamus should be denied

4 The district court did not err in dismissing the

balance of Orcutt’s claims based on

Fed.R.Civ.Pro. 12(b)(6).

The district court dismissed the balance of

Orcutt’s complaint because he failed .o state a claim.

The Tenth Circuit Court of Appeals agreed that “the

claimsin Mr. Orcutt’s complaint are so conclusory that

we are unable to discern exactly what acts he is

complaining about, or who is supposed to have

committed those acts.” (Petition for Writ of

Mandamus, App. 4) Certainly, as to defendant Euler,

there is absolutely no indication of what claims, if any,

are brought against him or what role he played in any

alleged violation.

Orcutt does not identify the dismissal of his

claims on this basis as a question presented for review.

He does not complain about their dismissal. This issue

Is Waived

CONCLUSION

Orcutt's Petition for Writ of Mandamus should

be dismissed or denied

Teresa L. Watson, KS Barf 16654

Counsel of Record

steven Pigg, KS Bar# 09213

isher, Patterson, Sayler & Smith, LLP

5550 SW 5" Street, P.O. Box 949

lopeka, Kansas 66601-0949

Phone: (785) 232-7761/Fax: (785) 232-6604

li-mail: twatson@fisherpatterson.com

spigg@fisherpattterson.com

Attorneys for Respondent

Joel R. Euler in his individual capacity

APPENDIX

INDEX

Opinion of the District Court

(filed September 23, 2009) la’ l&8a

la

Case No. 2:09-cv-02025-MLB-DJW Document 94

Filed 09/23/2009

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF KANSAS

WILLIAM EF. ORCUTT, ]

Plaintiff, ) CIVIL ACTION

Vv. ) No. 09-2025-MLB

BRANDON LIBEL. et al

Defendants

MEMORANDUM AND ORDER

Before the court are the following:

Defendants James Needham and “had

Geiger’s motion to dismiss’ and

memorandum in support (Docs. 28, 29);

plaintiff William Orcutt’s pro se response

(Doc. 42); defendants’ reply (Doc. 55);

plaintiffs surreplies (Docs. 59, 67); and

defendants’ motions to strike plaintiff's

: : « ry l

surreplies (Docs. 62, 70)

‘Plaintiff filed a motion for leave to file out of time a response to

Needham and Geiger's reply (Doc. 65). The court granted the

motion (Doc. 66). Plarintiff filed essentially the same arguments

in his second response (Doc. 67) as he did in his surreply (Doc

*).

2 Defendants Darrell Lamme, Larry Hunsaker,

and City of Elwood, Kansas’ motion for

judgment on the pleadings and memorandum in

support (Docs. 30, 31); plaintiffs response (Doc.

41); and defendants’ reply (Doc. 46).

Defendant Joel Euler’s motion to dismiss and

ed

memorandum in support (Docs. 32, 33) and

plaintiffs response (Doc. 50). No reply was

filed.

4 Defendants Doniphan County, Kansas and

Jerry Dubach’s motion for judgment on the

pleadings and memorandum in support (Docs.

44, 45). Plaintiff filed no response

5 Defendants Brandon, ‘Tony and Brice Libel’s

motion to dismiss and memorandum in support

(Docs. 75, 77); plaintiff's response (Doc. 83); and

defendants’ reply (Doc. 86).

Pro se plaintiff William Orcutt filed suit against

defendants alleging violations under federal criminal!

statues 18 U.S.C.§§ 241, 1341, 1343, and 1962(c) and

(d). Plaintiff further alleges violations under federal

civil statutes 42 U.S.C. §§ 1981, 1983, and 1985.

Essentially, plaintiff claims that defendants

collectively conspired to illegally seize and sell his

property in bad faith and used Kansas law and judicial

proceedings to do so.

59). As such, the court treats both responses to Needham and

Geiger’s reply and motion to strike as surrephies

3a

Defendants contend that the court lacks subject

matter jurisdiction and further that plaintiff has failed

to state a claim under Federal Rules of Civil Procedure

12(b)(1), (6) and (c). Defendants variously asset other

bases for dispositive relief but, in the interest of

brevity, these will not be discussed.

For the following reasons, the aforesaid,

dispositive motions are granted

In addition, plaintiff has failed a second motion

for leave to amend his complaint to add Jack Euler as

a defendant.” (Docs. 91, 92). Mr. Euler is an attorney

who submitted an order in the Farmers lawsuit.

Plaintiff asserts that Mr. Euler “participated in the

civil rights violations towards plaintiff by signing an

improper and erroneous document which instigated

and perpetuated the civil rights violations thereafter.”

Plaintiffs motion is denied as futile for the reasons

specified herein.

PARTIES

l. Plaintiff was the defendant in two

Doniphan County, Kansas civil lawsuits, Case Nos

2006-CV-1 (the Farmers State Bank lawsuit) and

2006-CV-30 (the Troy State Bank lawsuit). He also

was prosecuted and convicted by a jury in a Doniphan

County, criminal trial, Case No. 2007-CR-16, for

violating K.S.A. 21-3734 Gmpairment of a security

interest). Plaintiffs appeal, case number 08-10395A,

Plaintiffs first motion to amend (Doc. 74) was denied

1a

is currently pending before the Kanses Court of

Appeals.

2 Brandon, Tony, and Brice Libel (“the

Libels”) are officers of Farmers State Bank (“Farmers”)

and were witnesses during the Farmers lawsuit

3 James Needham is the president of the

Troy State Bank (“Troy”) and was a witness during the

Troy lawsuit

3 Joel Euler 1 an attorney who

represented Farmers in both civil lawsuits against

plaintiff

D Ira Dennis Hawver is an attorney who

represented plaintiff in both civil lawsuits

6 Bobby (or Robert) Orcutt is plaintiffs

brother allegedly forged plaintiffs name in “order to

borrow money from [Farmers] at the instruction of

srandon Libel.” (Doc. 77 at 7)

7 Thad Geiger and Needham’ were

subpoenaed to testify in the felony criminal case

against plaintiff

8 City of Elwood, Kansas and Darrell

Lamme and Larry Hunsaker who are employees of

KH lwood, are alleged to have violated plaintiffs rights

9. Doniphan County, Kansas and Jerry

Dubach, who is the sheriff of Doniphan County are also

alleged to have violated plaintiffs rights

I]. FACTS”

In 1984, plaintiff started a farm and home

equipment business in Wathena, Kansas in which he

leased and rented equipment. In the 1990's, plaintiff

formed A-1 Auto and Metal Salvage in which he

bought and sold cars in Wathena. Farmers and Troy

both made promissary notes and security agreements

to plaintiff or his wife individually or to an entity that

plaintiff owned. Plaintiffs employees, Jason Orcutt

and Bobby Orcutt, also took out loans from Farmers.

These loans were secured by personal property and

personal guarantees to Farmers by plaintiff and his

wife. (Doc. 78-22 at 2).

farmers Lawsult

Farmers called the notes that were due and

named plaintiff both individually and doing business

as A-1 Metal and Salvage, Inc., Farmers and Home

Equipment and Orcutt’s Auto Sales as defendants.‘

Plaintiff admitted liability on the promissory notes

(Doc. 78-17 at 2) and stipulated that he and the other

‘Plaintiffs complaint is virtually devoid of facts. The court has

been able to ascertain the facts set forth herein primarily from

defendants’ submissions

‘Farmers also named plaintiffs wife, Jason Orcutt, and Bobby

Orcutt as defendants

ba

defendants, jointly and severally, owed Farmer:

$414,741.64. (Doc. 78-14 at 2)

The Doniphan County, Kansas district court

(“the Kansas court”) determined the interests and

obligations of all defendants. The Kansas court found

that an express agency relationship existed among

plaintiff. Jason Orcutt, and Bobby Orcutt in that the

later two were authorized to borrow money on behalf

of plaintiff. (Doc. 78°22 at 2). The Kansas court

entered judgment in favor of Farmers and granted its

motion to extinquish redemption rights. (Doc. 78°23 at

2). The court ordered a sheriffs sale of the real estate

located in Doniphan County and confirmed and

approved the sale on December 5, 2007. (Doc. 78°25 at

2). No notice of appeal was filed

Troy Lawsuit

Troy called the notes that were due and named

plaintiff, his wife, and Farmers as defendants. ‘lhe

Kansas court found that plaintiff was delinquent on

the promissory notes, security agreements, and real

estate mortgages and foreclosed on various real estate

and secured property. (Doc. 78-29 at 5). The Kansas

court also found that plaintiff had waived his right of

redemption. A sheriffs sale of real estate located in

Doniphan County was ordered (Doc.7831) and

confirmed and approved by the Kansas court on June

22, 2007. (Doc. 78°30). No notice of appeal was filed

li lede ral ourt I himite

jurisdiction | | land] there is a strong presumption

iainst federal jurisdiction Beams v. Norton

I Supp 2d 1323. 1327 (D.Kan. 2004) \ party m

move for dismissal under Fed.R.Civ.P. 12 (bdC1¢

because the federal court lack uby L Matte

jurisdiction. ‘The plaintiff bears the burden to plead

adequate fact not conclusory allegation that ar

ufficient to prove jurisdiction. Beams, 327 F Supp

at 1327 (citing Penteco Corp. Ltd. Partnership—19#

Union Gas System, Inc., 929 F.2d 1519, 152) CLO

Cir. 1991). Plaintiff ha vVholly failed t

I tooker Kediman Voctru

hy court lack Jur! di} Li | ( mv Hil

judgments from state court proceeding

1257(a) provide Iflinal judyment r decree

rendered by the highest court of a State in which a

deci 1OT) could be had may eo) reviewed Dy Line

Supreme Court by writ of certiorar This statut

has been interpreted Lo preclude review of final state

court proceedings by federal district courts unde:

Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (192

nd District of Columbia Court of Appeals v. Feldma)

160 U.S. 462, 482-3 (1983)

‘The hooker’ keldman loctringe

prohibit a lower federal court tboth

from considering claims actually decided

by a state court, and claims inextricably

intertwined with } prio! tate-court

motuon

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Kansas judgments by filing § 1983 claims in federal

court and allege that the parties involved in those

proceedings violated his constitutional rights.”

Anderson v. State of Colo., 793 F.2d 262, 263 (10th Cir

1986) (“Itis well settled that federal district courts are

without authority to review state court judgments

where the relief sought 1s in the nature of appellate

review. )

Plaintiffis not challenging the constitutionality

of the laws and rules that governed hi Cat

proceedings. He simply claims that defendants violated

his constitutional rights and in effect, requests thi

court to upset the Kansas court judgments. As such

the court lacks jurisdiction to review plaintiff's claim

Feldman, 460 U.S. at 486; Tal, 453 F.3d at 1256. Al!

counts, except Counts 5, 9, 13, and 27, are dismissed

HCCAUSe they were either decided by the KK insa ourt

‘he court could also sua sponte dismiss plaintiffs complaint

under Fed. R. Civ. P. 12(b)(6). Garrett v. Seymour, No. 06-7029

2007 WL 549388, at *1 (10th Cir. Feb. 23, 2007). Plaintiff

illeges in conclusory fashion that defendants collectively

conspired to unfairly and in bad faith take his property in

violation of federal constitutional law, federal statutes, and

Kansas common law. At no point in his complaint does plaintiff

make clear exactly which defendant did what alleged violatior

In § 1983 cases, defendants often include the government

agency and a number of government actors sued in their

individual capacities. Therefore it is particularly important

such circumstances that the complaint make clear exactly wh

is allered to have done what to whom, to provide each

individual with fair notice as to the basis of the claims against

him or her, as distinguished from collective allegations against

the state.” Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th

Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544

165-6 n. 10 (2007))

lla

and final judgments were entered accordingly or are

inextricably intertwined with those judgments. Counts

5.9, 13. and 27 are dismissed for other reasons. infra

- Younger Doctrine

Plaintiff was convicted in the Kansas court for

violating criminal statute K.S.A. 21-2734. His appeal

is currently pending before the Kansas Court of

Appeals. Defendants contend that the court must

abstain under Younger v. Harris, 401 U.S. 37 (1971)

Under the Younger abstention doctrine, federal

courts should not ‘interfere with tate court

proceedings when a state forum provides an

adequate avenue for relief.” Weitzel v. Division of

Occupational and Professional Licensing of Dept. of

Commerce of State of Utah, 240 F.3d 871, 875 (0th

Cir. 2001).

A federal court must abstain fron

exercising jurisdiction when: ()) t

an ongoing state criminal, civil, or

administrative proceeding, (2) the state

court provides an adequate forum to hear

the claims raised in the = federal

complaint, and (3) the state proceedings

“involve important state interests,

matters which traditionally look to state

law for their resolution or implicate

separately articulated state policies.”

Id.

(crting Amanatullah v. State Bd. of Medical

Kxaminers, 187 F.3d 1160, 1163 (10th Cir. 1999)). If

the conditions are met, federal district courts must

abstain. Id. (stating that “Younger abstention 1s

non-discretionary| ]”)

There are exceptions to the Younger abstention

doctrine, one of which is a= state’ prosecution

undertaken in bad faith “without hope of obtaining a

valid conviction and perhaps in other extraordinary

circumstances where irreparable injury can be shown

Id. at 876. The plaintiff bears a heavy burden to show

that the state action was: (1) “frivolous or undertaken

with no reasonably objective hope of succe ia

motivated by defendant's suspect cla: I

retaliation for the defendant's exercise of constitutiona

rights’; and (3) “conducted in such a way as |

constitute harassment and an abuse of prosecutorial

discretion, typically through the unjustified and

oppressive use of multiple prosecutions.” Id

The court finds that the Younger abstention

doctrine apphes to plaintiffs case because he has failed

to show that any, much less all, of the conditions do

exist. First, plaintiffs appeal from his criminal!

conviction 1s currently pending before the Kansas

Court of Appeals. Second, Kansas courts provide an

adequate forum to hear plaintiffs complaints, which

plaintiff is currently utilizing. Third, Kansas has an

important state interest in considering defective

complaints and prosecutions brought in bad faith and

have state laws governing such actions by Kansas

officials. See, e.g., Sanchez v. Wells Fargo Bank, N.A.,

No. 08-2148, 2009 WL 56894, at *3 (10th Cir. Jan. 9,

2009) (stating that “the propriety of the state district

court judge's actions is a matter of obvious state

*)

a

interest and one that is best left, at least in the first

instance, for review by the state appellate courtsl |”).

Plaintiff has not met his burden to show that he

will suffer irreparable harm or that he is being

retaliated or discriminated against by defendants.’

Plaintiff was convicted in his Kansas criminal trial and

therefore he cannot show that there was no hope fora

conviction. Plaintiffasserts conclusory allegations that

defendants continually exercised bad faith in

prosecuting him because they failed to follow Kansas

law in an unspecified way. Conclusory allegations wil!

not suffice. Weitzel, 240 F.3d at 877 ([I]t is the

plaintiffs ‘heavy burden’ to overcome the bar of

Younger abstention by setting forth more than mere

allegations of bad faith or harassment.”)

The court therefore abstains from considering

plaintiffs claims concerning his criminal information

and prosecution under the Younger doctrine. Counts 9

and 13 are dismissed. This leaves Counts 5 and 27

IV. 12(b)(6)

Defendants also move to dismiss for failure to

state a claim under Fed. R. Civ. P. 12(b)(6). The court

construes lhberally a pro se litigant’s complaint

Dickerson v. Leavitt Rentals, 995 F. Supy. 1242, 1245

(). Kan. 1998). “Pro se complaints are held to ‘less

‘Actually, because plaintiffs complaint ts entirely conclusory, it

is impossible to determine which defendants supposedly

violated plaintiffs rights in connection with the state

prosecution, much less how they did so.

Lda

tringent standards than formal pleadings drafted by

lawyers.” Id. (quoting Hughes v. Rowe, 449 U.S. 5, 9

(1980)). Nonetheless. to withstand a motion to dismiss

for failure to state a claim, a complaint must contain

enough allegations of fact to state a claim to relief that

is plausible on its face. Robbins v. Oklahoma, 519 F.3d

1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. \

Twombly, 550 U.S. 544 (2007)). All well-pleaded facts

ind the reasonable inferences derived from those facts

ire viewed in the light most favorable to the plaintiff

(Archuleta v. Wagner, 523 F.3d 1278, 1283 (Oth Cu

2008) allegations,

bearing upon this court's consideration. Shero v. City

of Grove, Okla., 510 F.3d 1196, 1200 (1LOth Cir. 2007)

[In the end, the issue is not whether the plaintiff will

or she is entitled to

Beedk \ Wilson

Conclusory

however. have n

ultimately prevail, but whether hi

offer evidence to support the claim:

122 F.3d 1059, 1063 GO0th Cir. 2005)

Counts 5 ana 2

Plaintiff alleges that defendant violated

criminal statute 18 U.S.C. § 241. “[Plrivate citizens

cannot prosecute criminal actions” unless a private

right of action can be inferred from the statutory

language or Mamer_ v. Collie Club of

America, Inc., 229 F.3d 1164, 2000 WL 1114237, at *2

(10th Cir. Aug. 8, 2000) (Table); King v. Keller, No.

06-4001-SAC, 2006 WL 1517765,

‘ 6 (D. Kan. May

2006)

elsewhere.

V

The Tenth Circuit has noted that

pection 24] IS

a criminal statute

prohibiting acts of conspiracy

igainst the rights of citizens, and 1t does not provide

| da

for a private civil cause of action.” Newcomb v. Ingle,

827 F.2d 675, 677 n. 1 (10th Cir. 1987). Plaintiff makes

no argument or cites no authority to the contrary. Nor

does the court infer a private right of action in 18

U.S.C. § 241. Counts 5 and 27 are dismissed

V CONCLUSION

Kor the reasons stated more fully herein

defendants’ motions to dismiss and for judgments on

the pleadings (Docs. 28, 30, 32, 44, 75) are vranted

Plaintiff did not have permission to file a surreply and

the court has not considered his surreplies. (Docs. 59,

67). Needham and Geiger’s motions to strike plaintif

+)

surreplies (Docs. 6 (QO) are granted

Defendant Hawver has answered (Doc. 23) but

has not filed a dispositive motion. He shall have until

October 2 to file such a motion

A motion for reconsideration of this order is not

encouraged The standards governing motions to

reconsider are wellestablished. A motion to reconsider

1s appropriate where the court has obviously

misapprehended a party's position or the facts or

applicable law, or where the party produces new

evidence that could not have been obtained through

the exercise of reasonable diligence. Revisiting the

issues already addressed is not the purpose of a motion

to reconsider and advancing new arguments or

supporting facts which were otherwise available for

presentation when the original motion was briefed or

argued 1s inappropriate. Comeauv. Rupp, 810 I. Supp

l6a

1172 (D. Kan.1992). Subject to the conditions set forth

in the next paragraph, plaintiff may file only one

motion which shall not exceed five total pages and

shall strictly comply with the standards enunciated by

this court in Comeau. A motion that does not comply

with these requirements wil! be stricken. Any

responses to a motion for reconsideration shall not

exceed three pages. No reply shall be filed

Plaintiff was granted leave to proceed in forma

pauperis,evidently without consideration of 28 U.S.C

§ 1915€e)(2)(B). He has been allowed to proceed pro se

Nevertheless, it 1s apparent that some of plaintiff's

submissions have been prepared either by a lawyer

or by someone with legal training. See, e.g., Docs. 41,

12, 50, and 83. This court will not tolerate “ghost

written” submissions and neither does the Tenth

Circuit. See Duran v. Carris, 238 F.3d 1268, 1273 (0th

Cir. 2001); Barnett v. LeMaster, No. 00-2455, 2001 WL

433413, at *3-4(C.A.10 (N.M. (LOth Cir. June 7, 2001);

Wesley v. Don Stein Buick, Inc., 987 F. Supp. 884, 886

(Db. Kan. 1997). Accordingly, BEFORE PLAINTIFF

WILL BE PERMITTED TO FILE IN THIS COURT,

EITHER BY PAPER FILING OR BY USE OF

CM/ECE, ANY DOCUMENT REGARDLESS OF ITS

DESIGNATION OR CONTENT, HE MUST OBTAIN

THIS COURTS PERMISSION. ON OR BEFORE

SEPTEMBER 30, 2009, PLAINTIFF SHALL

FURNISH TO THE CHAMBERS OF THE

UNDERSIGNED JUDGE AND TO DEFENDANTS’

COUNSEL A STATEMENT MADE UNDER OATH

AND SUBJECT TO THE PENALTY OF PERJURY,

WHICH FULLY SETS FORTH THE FOLLOWING:

l/a

PLAINTIFF'S KDUCATIONAL

ATTAINMENTS, INCLUDING THE

IDENTITY O F ALL

POST- ELEMENTARY SCHOOLS

PLAINTIFF HAS ATTENDED AND

DATES OF ATTENDANCE,

WHETHER PLAINTIFF HAS LEGAL,

TRAINING OF ANY KIND, FORMAI.

OR INFORMAL, AND, IF SO, A FULL

DESCRIPTION OF THE TRAINING

INCLUDING SCHOOLS ATTENDED

COURSES COMPLETED, DATES OF

ATTENDANCE, AND DEGREES OR

CERTIFICATES AWARDED. IF ANS

AND

PH Ie IDENTITY (FULL NAME

ADDRESS, TELEPHONE NUMBER

AND EMAIL ADDRESS) OF ANY

PERSON WHO HAS ASSISTED OR IS

ASSISTING HIM IN ANY FASHION IN

LEGAL RESEARCH AND/OR

PREPARATION OF SUBMISSIONS HE

HAS FILED IN THIS COURT AND

THAT PERSON(S) LEGAL TRAINING

AND EXPERIENCE.

FAILURE TO SUBMIT THIS INFORMATION

WILL SUBJECT PLAINTIFF TO CONTEMPT OR

OTHERSANCTIONS. FED. R. CIV. P. 110B) AND (C)

ITIS SO ORDERED

Dated thi - rd ray | Sr pte een £018) , Wi hit )

Kansa:

Monti Belot

Monti L. Belot

NITED STAT] DISTRICT JUD