Zesiger et al v. Leavenworth County, Kansas et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRYAN ZESIGER and GINA MONTALBANO
ZESIGER,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF
LEAVENWORTH COUNTY, KANSAS, et al.,
Defendants.
Case No. 2:25-CV-02324-JAR-RES
MEMORANDUM AND ORDER
Plaintiffs Bryan Zesiger (“Bryan”) and Gina Montalbano Zesiger (“Gina”), proceeding
pro se, bring this action against Defendants the Board of County Commissioners of Leavenworth
County, Kansas (“Leavenworth County”); Misty Brown in her official capacity as the
Leavenworth County Counselor; and Mike Stieben in his official capacity as a Leavenworth
County Commissioner. Plaintiffs allege that Defendants’ handling of their Kansas Open Records
Act (“KORA”) requests violated Kansas law and the United States Constitution. The Court
previously dismissed Plaintiffs’ federal claims under Fed. R. Civ. P. 12(b)(6) and declined to
exercise supplemental jurisdiction over Plaintiffs’ state law claims, but granted Plaintiffs leave to
amend.1 Plaintiffs thereafter filed an Amended Complaint.2 This matter is now before the Court
on Defendants’ Motion to Dismiss (Doc. 18) Plaintiffs’ Amended Complaint under Fed. R. Civ.
P. 12(b)(6). Plaintiffs filed a response to Defendants’ motion;3 Defendants did not file a reply,
1 Doc. 9.
2 Doc. 10.
3 Doc. 24
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and the time to do so has passed.4 Having reviewed the parties’ filings, the Court is prepared to
rule. For the reasons stated below, the Court grants in part and denies in part Defendants’
motion.
I. Standard
To survive a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), a complaint must
contain factual allegations that, assumed to be true, “raise a right to relief above the speculative
level”5 and include “enough facts to state a claim to relief that is plausible on its face.”6 The
plausibility standard does not require a showing of probability that “a defendant has acted
unlawfully,” but requires more than “a sheer possibility.”7 “[M]ere ‘labels and conclusions,’ and
‘a formulaic recitation of the elements of a cause of action’ will not suffice; a plaintiff must offer
specific factual allegations to support each claim.”8 The Court must accept the non-moving
party’s factual allegations as true and may not dismiss on the ground that it appears unlikely the
allegations can be proven.9 The Court will view all well-pleaded factual allegations in the light
most favorable to Plaintiffs.10 And because Plaintiffs proceed pro se, the Court must construe
their filings liberally and hold them to a less stringent standard than formal pleadings drafted by
4 D. Kan. Rule 6.1(d)(1) (“Replies must be filed within 14 days after the response is served.”).
5 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
6 Id. at 570.
7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
8 Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S. at
555).
9 Iqbal, 556 U.S. at 678.
10 Jordan-Arapahoe, LLP v. Bd. of Cnty. Comm’rs of Cnty. of Arapahoe, Colo., 633 F.3d 1022, 1025 (10th
Cir. 2011).
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attorneys.11 However, Plaintiffs’ pro se status does not excuse them from complying with
federal and local rules.12
II. Background
The following facts are alleged in Plaintiffs’ Amended Complaint.13 For purposes of
deciding this motion, the Court assumes these facts to be true and draws all reasonable inferences
in Plaintiffs’ favor.
Plaintiffs operate Z&M Twisted Vines, a federally recognized agricultural entity engaged
in viticulture, enology, and agritourism. Leavenworth County has required Plaintiffs to obtain
special use permits and has assessed commercial-level taxation against their agricultural
operations. By contrast, Forever Fencing, LLC (“Forever Fencing”), a commercial enterprise
owned by Raymond Reynolds, has not been required by Leavenworth County to obtain or
maintain a special use permit.
On May 14, 2025, Plaintiffs submitted a series of KORA requests to Leavenworth
County seeking records related to Leavenworth County’s permitting and enforcement treatment
of Forever Fencing. That same day, Leavenworth County personnel disclosed the existence of
Plaintiffs’ KORA requests to Raymond Reynolds, the owner of Forever Fencing, and to
Leavenworth County Commissioner Mike Stieben.
Also on May 14, 2025, Leavenworth County Counselor Misty Brown denied sixteen
KORA requests submitted by Plaintiffs. Brown stated that, based on the volume and frequency
of Plaintiffs’ past and current requests, the requests appeared intended to “intentionally disrupt,
11 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
12 Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994); see D. Kan. Rule 83.5.4(f) (“Any party
appearing on his or her own behalf without an attorney is expected to read and be familiar with the Rules of Practice
and Procedure of this court [and] the relevant Federal Rules of Civil Procedure . . . .”).
13 Doc. 10.
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harass, or place an undue burden on agency operations,” and she therefore denied them.14
Brown’s denial did not identify specific statutory exemptions or provide an individualized
analysis for each request.
Sometime after Plaintiffs submitted their May 14 KORA requests, Brown contacted
attorney Ryan Kriegshauser, who at the time represented Forever Fencing, and disclosed the
existence of Plaintiffs’ KORA requests to him. Kriegshauser then contacted Reynolds and
relayed that information. On May 25, 2025, licensed surveyor Joe Herring told Plaintiffs that
Stieben had told Herring that Plaintiffs’ “filings are the reason County work is being delayed.”15
III. Discussion
In the Amended Complaint, Plaintiffs assert the following claims under 42 U.S.C. §
1983: (1) denial of access to the courts (Count I); (2) violation of procedural due process (Count
II); (3) First Amendment retaliation (Count III); (4) municipal liability (Count IV); and (5)
defamation under a stigma-plus theory (Count V). Plaintiffs also assert two state law claims: (1)
violation of KORA (Count VI); and (2) violation of §§ 1 and 15 of the Kansas Bill of Rights
(Count VII). Defendants move to dismiss Plaintiffs’ federal claims under Fed. R. Civ. P.
12(b)(6). Specifically, Defendants argue that Plaintiffs’ federal claims are barred by the doctrine
of res judicata and that the Court should decline to exercise supplemental jurisdiction over
Plaintiffs’ remaining state law claims. The Court addresses each argument in turn.
14 Id. ¶ 15.
15 Id. ¶ 20.
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A. Plaintiffs’ Federal Claims
Under the doctrine of res judicata, or claim preclusion, a party may not assert “a legal
claim that was or could have been the subject of a previously issued final judgment.”16 The
principle underlying this doctrine “is that a party who once has had a chance to litigate a claim
before an appropriate tribunal usually ought not have another chance to do so.”17 “Federal law
governs the scope of preclusive effect given to federal-court decisions.”18 Under federal law, res
judicata applies if a party establishes the following three elements: (1) a final judgment on the
merits in a prior action; (2) both cases include the same cause of action; and (3) both actions
involve the same parties or their privies.19 However, even if these elements are satisfied, claim
preclusion does not apply if the opposing party “did not have a ‘full and fair opportunity to
litigate’ the claim in the prior action.”20
Defendants argue that Plaintiffs have already litigated their federal claims in a previous
case brought in this Court—Zesiger v. Leavenworth County, Kansas (“Zesiger I”).21 There,
Bryan sued Leavenworth County, Brown, and Stieben in their individual and official capacities
based on their handling of his KORA requests. He alleged that: (1) between January and May
2025, he submitted numerous KORA requests to Leavenworth County; (2) Brown disclosed
information about his court-related matters and KORA requests to a third party associated with
16 Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1239 (10th Cir. 2017) (quoting
MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005)).
17 Id. (quoting Stone v. Dep’t of Aviation, 453 F.3d 1271, 1275 (10th Cir. 2006)).
18 Atkins v. Heavy Petroleum Partners, LLC, 86 F. Supp. 3d 1188, 1204 (D. Kan. 2015) (quoting Stan Lee
Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1297 (10th Cir. 2014)).
19 Watkins v. Genesh, Inc., 135 F.4th 1224, 1229 (10th Cir. 2025).
20 Lenox, 847 F.3d at 1239 (quoting MACTEC, 427 F.3d at 831 & n.6).
21 Case No. 25-CV-02295-JAR-RES. The Court may take judicial notice of its own records or public
records from other proceedings without converting a motion to dismiss to a motion for summary judgment. Tal v.
Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).
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Forever Fencing without his authorization; (3) Stieben told Herring that Leavenworth County
could not timely process Herring’s permit because Brown was busy responding to Bryan’s
KORA requests; and (4) Brown denied a May 29, 2025 KORA request as disruptive.
Based on these allegations, Bryan asserted claims for (1) First Amendment retaliation
under 42 U.S.C. § 1983, (2) Fourteenth Amendment due process violations under § 1983, (3)
conspiracy to interfere with civil rights under 42 U.S.C. § 1985(3), and (4) abuse of power under
color of law under § 1983. He also asserted state law claims for KORA violations, along with
defamation and business disparagement. The Court dismissed Bryan’s federal claims for failure
to state a claim under Rule 12(b)(6) and declined to exercise supplemental jurisdiction over
Bryan’s remaining state law claims.22 The Court granted Bryan leave to file an amended
complaint within twenty-one days, but Bryan did not amend within the time permitted. The
Court therefore entered judgment dismissing the case.23
Based on that prior case, Defendants contend that all three elements of claim preclusion
are satisfied. The Court agrees, but only as to Bryan and not as to Gina. First, there was a final
judgment on the merits in the prior action. The Court in Zesiger I dismissed Bryan’s federal
claims under Rule 12(b)(6). The dismissal order did not state that it was without prejudice,24
therefore it operates as an adjudication on the merits.25
22 Case No. 25-CV-02295-JAR-RES, Doc. 37.
23 Id., Doc. 39.
24 Id., Doc. 37.
25 Slocum v. Corp. Exp. U.S. Inc., 446 F. App’x 957, 960 (10th Cir. 2011) (“Rule 12(b)(6) dismissals,
unless otherwise indicated, constitute a dismissal with prejudice.”); Fed. R. Civ. P. 41(b) (providing that, unless the
dismissal order states otherwise, dismissals other than for lack of jurisdiction, improper venue, or failure to join a
party operate “as an adjudication on the merits”).
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Second, both cases involve the same cause of action. “A cause of action includes all
claims or legal theories of recovery that arise from the same transaction, event, or occurrence.”26
The federal claims asserted in this case arise from the same series of events at issue in Zesiger I:
Leavenworth County’s response to Bryan’s KORA requests, Brown’s disclosure of those
requests to third parties associated with Forever Fencing, and Stieben’s statement to Herring that
Leavenworth County work was being delayed because Brown was occupied responding to
Bryan’s KORA requests.
Third, this case involves the same parties as Zesiger I, but only in part. Bryan and
Leavenworth County, Brown in her official capacity, and Stieben in his official capacity were
opposing parties in that action. Gina Zesiger, however, was not a party. “It is a fundamental rule
of civil procedure that one who was not a party to an action is not bound by the judgment.”27 “A
person who was not a party to a suit generally has not had a ‘full and fair opportunity to litigate’
the claims and issues settled in that suit.”28 An exception to this rule exists when it can be said
that there is “privity” between a party to the second case and one who is bound by an earlier
judgment.29 “Privity requires, at a minimum, a substantial identity between the issues in
controversy and showing the parties in the two actions are really and substantially in interest the
same.”30
The Supreme Court has provided only limited guidance on the boundaries of privity but
has “expressly rejected an expansive doctrine of virtual representation as an exception to the
26 Watkins v. Genesh, Inc., 135 F.4th 1224, 1229–30 (10th Cir. 2025) (citation modified) (applying the
transactional approach articulated in the Restatement (Second) of Judgments).
27 Pelt v. Utah, 539 F.3d 1271, 1281 (10th Cir. 2008).
28 Taylor v. Sturgell, 553 U.S. 880, 892 (2008).
29 Richards v. Jefferson County, 517 U.S. 793, 798 (1996).
30 Lowell Staats Min. Co. v. Phila. Elec. Co., 878 F.2d 1271, 1275 (10th Cir. 1989).
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general rule against nonparty preclusion, and described six recognized (non-conclusive)
exceptions to the general rule under federal common law.”31 Those exceptions are:
(1) when a person agrees to be bound by the determination of
issues in an action between others; (2) when a pre-existing
substantive legal relationship exists; (3) when a nonparty was
“adequately represented by someone with the same interests who
[wa]s a party” in an earlier suit; (4) when the nonparty assumed
control over the earlier litigation; (5) when a party who did not
take part in litigation, as a way of avoiding preclusion, later sues as
the designated representative of a person who was a party to the
earlier suit; and (6) when a special statutory scheme, such as
bankruptcy, so directs.32
Here, Defendants do not identify which of these recognized bases for non-party
preclusion applies. Instead, Defendants argue that Gina is in privity with Bryan because the
Amended Complaint alleges that they jointly own and operate Z&M Twisted Vines and because,
in another lawsuit, they identified themselves as husband and wife.33 However, “the mere fact of
the marital relationship itself is insufficient for privity.”34 Nor does the allegation that Bryan and
Gina jointly own and operate Z&M Twisted Vines establish privity on this record. Z&M
Twisted Vines was not a party in Zesiger I and is not a party here. And neither action seeks to
vindicate rights belonging to the business. Rather, Bryan and Gina seek to vindicate their own
personal rights, including, among others, the right of access to the courts and procedural due
process rights. Defendants cite no authority supporting the proposition that co-owners of a
business are, by virtue of that relationship alone, in privity for purposes of federal claim
31 Sierra Club v. Two Elk Generation Partners, Ltd. P’ship, 646 F.3d 1258, 1267 (10th Cir. 2011) (citing
Taylor v. Sturgell, 553 U.S. 880, 893–95 (2008)).
32 Pelt, 539 F.3d at 1281–82 (citing Taylor, 553 U.S. at 893–95).
33 See Zesiger v. Kelly, Case No. 25-CV-02354-EFM-ADM, Doc. 1 at 5–6.
34 Brubaker v. Schneider, No. 03-1075-JTM, 2006 WL 8440477, at *5 (D. Kan. Mar. 9, 2006).
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preclusion under these circumstances. On this record, Defendants have failed to meet their
burden to show that Gina was in privity with Bryan in Zesiger I.
Having found that the elements of claim preclusion are satisfied as to Bryan, the Court
also finds that Bryan had a full and fair opportunity to litigate his federal claims in Zesiger I.
Although the Court dismissed Bryan’s claims in that action, it granted him leave to file an
amended complaint within twenty-one days of the dismissal order. Yet, Bryan never filed an
amended complaint. “If a party had a full and fair opportunity to litigate an issue but simply
failed to take advantage of the opportunity, the full and fair opportunity element is still met.”35
Accordingly, Bryan’s federal claims are barred by the doctrine of res judicata. However,
because Defendants have not established that Gina was a party, or in privity with a party, to
Zesiger I, res judicata does not bar Gina’s federal claims.
B. Plaintiffs’ State Law Claims
Turning to Plaintiffs’ state law claims, Defendants argue that if the Court dismisses
Plaintiffs’ federal claims, it will have “dismissed all claims over which it has original
jurisdiction” and should therefore decline to exercise supplemental jurisdiction over Plaintiffs’
remaining state law claims.36 However, the Court has not dismissed all claims over which it has
original jurisdiction, as Gina’s federal claims remain pending. And Defendants do not argue that
Plaintiffs’ state law claims are otherwise unrelated to Gina’s federal claims and therefore outside
the scope of 28 U.S.C. § 1367(a). Accordingly, the Court will continue to exercise supplemental
jurisdiction over Plaintiffs’ state law claims. Defendants’ motion to dismiss is therefore denied
on this basis.
35 Dale v. Bank of Am., N.A., No. 16-1081-EFM-KGG, 2016 WL 4245493, at *4 (D. Kan. Aug. 11, 2016)
(citation modified).
36 Doc. 19 at 7; 28 U.S.C. § 1367(c)(3).
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IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion to
Dismiss (Doc. 18) is granted in part and denied in part. Bryan Zesiger’s federal claims under
42 U.S.C. § 1983 asserted in Counts I through V are dismissed as barred by res judicata.
Defendants’ motion is otherwise denied. Gina Montalbano Zesiger’s federal claims asserted in
Counts I through V and Plaintiffs’ joint state-law claims in Counts VI and VII remain pending.
IT IS SO ORDERED.
Dated: March 13, 2026
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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