Kirkland v. Montgomery

1

WAYLAND DEE KIRKLAND, et al., Plaintiffs, v. STEVEN C. MONTGOMERY, et al., Defendants.

No. 23-05045-CV-SW-LMC

United States District Court, W.D. Missouri, Southwestern Division

September 12, 2023

ORDER

LAJUANA M. COUNTS, UNITED STATES MAGISTRATE JUDGE

On July 7, 2023, Plaintiffs, proceeding pro se, filed their Civil Complaint. (Doc. #1.) On August 28, 2023, Plaintiffs filed an Amended Civil Complaint adding one additional party and new claims.^[1] (Doc. #3.) Plaintiffs also request that the Court order service of summons on all Defendants via the United States Marshals Service. (Doc. #4.) Plaintiffs have not submitted an Affidavit of Financial Status and therefore this request is denied. After reviewing the Amended Civil Complaint, this Court directs Plaintiffs to provide the Court with information necessary to confirm that this Court may exercise jurisdiction in this matter.

Plaintiffs' Complaint

Plaintiffs fail to assert a basis for jurisdiction in the Amended Civil Complaint but indicate on the Civil Cover Sheet that jurisdiction is based on diversity of citizenship. Plaintiffs state that the matter is

a civil rights complaint alleging violations of Plaintiffs [sic] civil and constitutional rights by Defendants pursuant to 18 U.S.C. §§ 241, 242, and the 1st, 4th, 6th and 14^th amendments to the United States Constitution. Malicious prosecution and criminal misconduct by defendant lawyers and judges. Discrimination in police actions during course of 4^th amendment illegal search. Recent retaliation against Plaintiffs by a close friend of a defendant lawyer and his wife after filing the initial complaint.

(Doc. #3 at 2.) The Amended Civil Complaint (Doc. #3) provides a rambling statement of the claims. The nucleus of this action appears to be a paternity action in Miami County Kansas,^[2]involving Plaintiff Cody Joe Pearson. Plaintiff Wayland Dee Kirkland is Plaintiff Pearson's uncle and was living with Plaintiff Pearson in January of 2020.

According to Plaintiffs, the paternity action was filed at the beginning of January of 2020 by Defendant Chasity Nicole Gochenour, who was being represented by Defendant Steven A Jensen. Plaintiffs allege that the petition included false information and failed to disclose pertinent information. Plaintiffs also contend that the petition was improper because Defendant Jensen and Defendant Chasity Gochenour's father (Defendant Jimmy Gochenour) are best friends and business partners. Additionally, Plaintiffs argue that Defendant Jensen has been disciplined by the Kansas Supreme Court.

Plaintiffs also contend that at the end of January 2020, Defendant Chasity Gochenour arrived at Plaintiff Pearson's residence for a “child exchange” and a dispute arose between Plaintiff Kirkland, Plaintiff Pearson, and Defendant Chasity Gochenour. Police were called to the residence, questioned Plaintiff Pearson and “kicked the door in and arrested plaintiff Pearson and began searching plaintiff's residence.” (Doc. #3 at 3.) At about 10:30 that night, Defendant Judge Steven C. Montgomery, who is also the presiding judge in the paternity action, signed a search warrant for Plaintiff Pearson's residence. Plaintiffs assert that the “search allegedly yielded drugs and boots which were used against plaintiff Pearson in the paternity case, but no charges were ever filed, and no boots discovered.” (Doc. #3 at 3.) Defendant Judge Montgomery subsequently ordered no parenting time for Plaintiff Pearson and a drug test for Plaintiff Pearson.

Plaintiff Pearson then retained an attorney, Defendant Craig E. Cole. Plaintiffs allege that Defendant Cole refused to investigate the matter, raise issues requested by Plaintiffs, and acted in a manner that was against Plaintiff Pearson's interests.

Plaintiffs further allege that in June of 2020, they became aware of what they believed to be discrepancies in the docket in the paternity case and requested a copy of the file from the Clerk's office. Plaintiffs allege that the Court Clerk, Defendant Gina Witherspoon, became angry and ordered him out of the courthouse before Plaintiff Pearson could finish copying the file.

Plaintiffs also allege that Defendant Judge Montgomery ordered no parenting time for Plaintiff Pearson and ordered that Plaintiff Kirkland was not to be around the minor children at issue in the paternity case. Plaintiffs assert that Defendants Judge Amy L. Harth and Judge Terry L. Johnson adopted the orders of Defendant Judge Montgomery. Plaintiffs argue that the Defendant Judges lacked authority to issue orders regarding Plaintiff Kirkland as Plaintiff Kirkland was not part of the paternity action.

Finally, Plaintiffs state that Plaintiff Kirkland began seeing Defendant Kathleen Dudney in May of 2023. Early in the relationship, Plaintiff Kirkpatrick asked Defendant Dudney about her relationship with Defendant Cole. Defendant Dudney stated that she knew Cole from high school but had not seen him since high school. At some point, Plaintiff Kirkland informed Defendant Dudney that he was homeless with limited means. Defendant Dudney assisted Plaintiff Kirkland with reviewing the complaint in the instant matter and paid the filing fee. According to Plaintiffs, Defendant Dudney agreed to serve summons on all Defendants except for Defendant Cole. A couple of days later, Defendant Dudney picked Plaintiff Kirkland up from Nevada, Missouri, and brought Plaintiff Kirkland to her home in Garnett, Kansas. While at her residence, Defendant Dudney told Plaintiff Kirkland that Defendant Cole was a friend and Plaintiff Kirkland would have to leave her residence. Defendant Dudney then drove Plaintiff Kirkland back to Nevada, Missouri, and as Plaintiff Kirkland was unloading his things, Defendant Dudney left abruptly and before he was able to unload his clothes and other possessions, including files on the instant matter. All but Plaintiff Kirkland's fishing pole, tackle, and blood pressure monitor were returned to Plaintiff Kirkland. Plaintiff Kirkland later became aware that Defendant Dudney was a lifelong friend and business associate of both Defendant Cole and Defendant Cole's wife.

Plaintiffs' Amended Civil Complaint lists twenty “Questions Presented,” which will not be repeated here. Suffice it to say, the questions provide a very general overview of Plaintiffs' allegations that certain conduct violated the Plaintiffs' rights under the Constitution.

Plaintiff requests that this court issue declaratory judgment, monetary damages, and orders vacating the paternity case, and preliminary injunction regarding parenting time and child support until “these matters can be fully adjudicated by this court.” (Doc. #3 at 8.)

Discussion

“Federal courts are courts of limited jurisdiction[, and] possess only that power authorized by Constitution and statute ....” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S 375, 377, 114 S.Ct. 1673, 1675 (1994). “Generally speaking, a federal court's subject-matter jurisdiction over a case must be based on either federal question jurisdiction [28 U.S.C. § 1331] or diversity jurisdiction [28 U.S.C. § 1332].” Miller v. Clark, 2013 WL 12156800, at *1 (W.D. Mo. June 14, 2013). Federal courts have an independent obligation to confirm that jurisdiction is proper. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990); Reece v. Bank of New York Mellon, 760 F.3d 771, 777 (8th Cir. 2014). When a court determines that it lacks subject matter jurisdiction, the court must dismiss the action pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure.

The Plaintiffs, as the proponents of federal jurisdiction, have the duty to demonstrate that federal jurisdiction is appropriate. Moore v. Kansas City Public Schools, 828 F.3d 687, 692 (8th Cir. 2016). Claims brought by pro se plaintiffs are to be liberally construed. Whitson v. Stone Cnty. Jail, 602 F.3d 920, 922 (8th Cir. 2010).

Rule 8 of the Federal Rules of Civil Procedure requires that a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief ....” Fed.R.Civ.P. 8(a)(1). The rule requires more than an “unadorned” complaint, but requires less than “detailed factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). Thus, in order to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In determining whether a complaint fails to state a claim for relief, courts must “construe the complaint in the light most favorable to the nonmoving party.” Carton v. General Motor Acceptance Corp., 611 F.3d 451, 454 (8th Cir. 2010).

The non-moving party is entitled to all reasonable inferences. Cent. Platte Nat. Res. Dist. v. U.S. Dep't of Agric., 643 F.3d 1142, 1148 (8th Cir. 2011). Nevertheless, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678. Courts must read the complaint “as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).

This Court, therefore, must determine whether Plaintiffs' claims fall within this Court's ambit. For the reasons discussed below, the Court is concerned that Plaintiffs' claims do not fall within this Court's jurisdiction. Therefore, the Plaintiffs are directed to show cause why this matter should not be dismissed for the following reasons.

With regard to personal jurisdiction and venue,^[3] the majority of the events appear to take place in Kansas and all of the Defendants have Kansas addresses. See Peter v....