Woodward (ID 200025235) v. Zmuda et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAVID L. WOODWARD,
Plaintiff,
v. 	CASE NO. 25-3110-JWL
JEFF ZMUDA, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff and Kansas prisoner David L. Woodward brings this pro se civil rights action
under 42 U.S.C. § 1983. Plaintiff is in custody at the Lansing Correctional Facility (“LCF”) in
Lansing, Kansas and he has paid the required filing fee. This matter comes now before the Court
on Plaintiff’s motion to withdraw his notice of interlocutory appeal (Doc. 37) and his motion for
leave to file a second amended complaint (Doc. 38). Because the Tenth Circuit has dismissed the
interlocutory appeal in question (Doc. 39), the motion to withdraw notice of interlocutory appeal
(Doc. 37) will be denied as moot. For the reasons explained in this order, the motion for leave to
file a second amended complaint (Doc. 38) will be granted, but Count III of the proposed second
amended complaint will be dismissed for failure to state a plausible claim for relief. The Court will
enter a separate e-service order and this case will proceed on Counts I and II of the second amended
complaint.
I. 	Background and Nature of the Matter before the Court
a. 	The Initial Complaint (Doc. 1)
This civil rights action began on June 5, 2025, when Plaintiff filed his initial complaint.
(Doc. 1.) Highly summarized, the complaint stated three claims. Count I was based on the
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permanent suspension of delivery to Plaintiff of certain publications, magazines, and religious
materials to which Plaintiff had paid subscriptions and which he had received for over two years
without incident. (See Doc. 7, p. 3-4.) Although Plaintiff protested the mail censorship notices he
received in May 2025, none of his protests were answered. Id. at 4. Count I asserted the violation
of Plaintiff’s First Amendment rights to access information and exercise religious freedom. Id.
Count II was based on events that occurred in April 2025, when the door to Plaintiff’s cell
was left unsecured and three men entered his cell and stole some of Plaintiff’s personal property.
Id. Although Plaintiff immediately reported the incident to LCF staff, the perpetrators evaded
capture. Id. at 5. Because the perpetrators had threatened to return to Plaintiff’s cell, he sought
protective custody, and he was moved first to a caged shower, where he was left for 5 hours. Id. at
4-5. He was then moved to an infirmary crisis cell and then to a segregation unit, where his time
outside of his cell and access to certain services and supplies was limited. Id. at 5. Plaintiff was
later moved to a protective custody pod but was not assigned a cell that complied with the
Americans with Disabilities Act. Id. at 6. Count II asserted that the conditions of confinement
Plaintiff experienced violated the Eighth Amendment. Id.
Count III was based on the censorship of Plaintiff’s outgoing mail. Id. at 6. Specifically,
on May 23, 2025, LCF staff opened two stamped and sealed envelopes that were placed in the
outgoing mail and addressed to Corey Woodward, Plaintiff’s son and his designated attorney-in-
fact. Id. The envelopes contained letters and portions of a short story that included graphic
descriptions of sexual acts involving girls under the age of 18. Id. at 7. Plaintiff received a
disciplinary report for possession of sexually explicit materials based on the contents of the
envelopes. Id. In June 2025, Plaintiff was found guilty of possession of sexually explicit materials
and he received time in disciplinary segregation and other restrictions. Id. He later learned that all
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of his future correspondence would be subject to inspection and censorship. Id. As of the date of
the initial complaint, Plaintiff believed six letters he attempted to mail Corey Woodward were
intercepted by LCF mail room staff. Id. Count III asserted the violation of Plaintiff’s First
Amendment rights “‘to write stories and correspond with family.’” Id. It also asserted that the
opening of the mail to Corey Woodward violated attorney-client privilege. Id. Plaintiff sought
injunctive relief, compensatory damages, reimbursement of costs and fees incurred in this matter,
declaratory relief, and an order vacating his disciplinary conviction. Id. at 8.
Because Plaintiff is a prisoner, the Court was required by statute to screen his complaint
and to dismiss it or any portion of it that is frivolous, fails to state a claim on which relief may be
granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b).
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48-49 (1988)
(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). The Court
liberally construes a pro se complaint and applies “less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the Court accepts all
well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir.
2006). On the other hand, the Court “will not supply additional factual allegations to round out a
plaintiff’s complaint or construct a legal theory on plaintiff’s behalf.” Whitney v. New Mexico, 113
F.3d 1170, 1173-74 (10th Cir. 1997).
“[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement
to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007).
Furthermore, a pro se litigant’s “conclusory allegations without supporting factual averments are
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insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). The Court must determine whether Plaintiff has “nudge[d] his claims across the
line from conceivable to plausible.” See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.
2009) (quotation marks and citation omitted). “Plausible” in this context refers “to the scope of the
allegations in a complaint: if they are so general that they encompass a wide swath of conduct,
much of it innocent,” then the plaintiff has not met his or her burden. Robbins v. Okla., 519 F.3d
1242, 1247 (10th Cir. 2008) (citing Twombly, at 550 U.S. at 570).
The Court screened the complaint and, on July 7, 2025, issued a memorandum and order
(“M&O”) identifying certain deficiencies in the complaint that left it subject to dismissal. (Doc.
7.) The M&O explained that the complaint did not comply with Rule 18(a) and 20(a)(2) of the
Rules of Civil Procedure, which govern the joinder of multiple defendants and claims in a single
action. Id. at 8-10. It further explained that Plaintiff’s use of general and collective terms to refer
to actions by individuals left unclear which named Defendant committed which act and which
Defendant faced liability under each Count. Id. at 12-13.
The M&O also informed Plaintiff that vicarious liability does not apply in suits brought
under 42 U.S.C. § 1983, so to the extent that the complaint asserted a claim against a defendant
due to his role as the supervisor of other individuals who violated Plaintiff’s constitutional rights,
it failed to state a plausible claim against the supervisor. Id. at 14. The M&O also set forth Rule 8
of the Federal Rules of Civil Procedure, which requires that a complaint must contain a short and
plain statement of each claim showing that the plaintiff is entitled to relief so that the opposing
parties will have fair notice of the claims against them and so that the Court is able to conduct the
required screening of the complaint. Id. at 14-15.
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The M&O further explained that even liberally construing the pro se complaint and taking
all the well-pleaded facts therein as true, Count III failed to state a plausible claim for relief. Id. at
15. First, Corey Woodward’s status as Plaintiff’s attorney-in-fact does not render written
communication between Plaintiff and Corey Woodward legal mail or otherwise create a privilege.
Id. at 15-17. Second, because the letters do not fit the definition of legal mail, official mail, or
privileged mail under the applicable Kansas regulations, Plaintiff cannot state a plausible claim for
relief based on the inspection and censorship of the letters unless the application of the regulations
violated his constitutional rights. Id. at 18. The M&O explained that to show that his First
Amendment rights were violated in this context, he “‘must include sufficient facts to indicate the
plausibility that the actions of which he complains were not reasonably related to legitimate
penological interests.’” Id. at 19 (quoting Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir. 2010)).
Third, the complaint left “unclear whether Plaintiff intends to base his claim in Count III
on the inspection of his letters to Corey Woodward,” the censorship of those letters, the resulting
disciplinary proceedings, the controlling regulations, or some combination thereof.” Id. at 20.
Thus, the Court directed Plaintiff to make clear in his amended complaint the nature of his claim
and the acts on which it was based. Id. at 20. The Court granted Plaintiff time in which to file an
amended complaint that cured the deficiencies identified in the M&O. Id. at 21-23.
b. 	The Amended Complaint (Doc. 8)
Plaintiff timely filed his amended complaint on July 17, 2025. (Doc. 8.) The amended
complaint named as Defendants Kansas Secretary of Corrections Jeff Zmuda, former LCF Warden
Jesse Howes, LCF mail clerk J. Crouse, KDOC CM II Darcie Holthaus, and LCF ISA Leslie West.
(Doc. 8, p. 1-3.) Count I of the amended complaint asserted the violation of Plaintiff’s First
Amendment rights to access information and exercise his religion. Id. at 4. As supporting facts for
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Count I, Plaintiff alleged that after LCF ceased delivering magazines to him on April 1, 2025, he
asked an LCF Unit Team Supervisor why he was no longer receiving his magazines. Id. She replied
that Defendant Howes, who was the LCF warden at the time, and Defendant Holthaus had
permanently suspended delivery of all publications to Plaintiff. Id. On May 3, 2025, Plaintiff began
receiving mail censorship notices issued by Defendant Crouse that stated that the publications were
a threat to either public officials or the general public and/or that Plaintiff was engaging in
unauthorized correspondence with persons under 18 years old. Id. Later notices stated that delivery
was denied because the publications contained pictures or images of persons under 18 years old.
Id. at 5. Plaintiff protested the censorship by mail to Defendant Zmuda, but his protests were
denied. Id. at 5.
In Count II, Plaintiff asserted the violation of his right to correspond by mail with
individuals outside of LCF, as guaranteed by the First and Fourteenth Amendments. Id. at 4. As
supporting facts for Count II, Plaintiff alleged that on May 23, 2025, two letters addressed to Corey
Woodward were censored and not processed into outgoing mail.. Id. at 4, 6. Plaintiff asserted that
Defendant Crouse opened the letters. Id. at 4. Plaintiff further alleged that up to six additional
letters he placed into outgoing mail were intercepted and not mailed, even though previous letters
had been mailed without difficulty. Id. at 4-5. Plaintiff asserted that all of his outgoing mail is
“being stopped,” noting continuing efforts of publishers to mail material to him despite Plaintiff’s
informing those publishers by mail that LCF refused to deliver the material to Plaintiff. Id. at 5.
In Count III of the amended complaint, Plaintiff asserted the violation of his First
Amendment right to free speech. Id. at 7. As supporting facts for Count III, Plaintiff points to the
two letters to Corey Woodward that included “partial stories,” were opened on May 23, 2025 by
Defendant Crouse, and were not placed in the outgoing mail by LCF staff. Id. Plaintiff further
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alleged that he had not received the required notice of censorship that states the reason his mail is
being censored. Id. at 6. He also referred to the disciplinary action that occurred based on the
content of the stories in his letters to Corey Woodward and he asserted that any future stories he
writes will be subject to censorship and seizure and may result in further punishment. Id. Thus,
Plaintiff asserted, he essentially “is prohibited from writing fictional stories of his choice.” Id.
The Court began the statutorily required screening of the amended complaint and found
that the proper processing of the claims therein could not be achieved without additional
information from the appropriate Kansas Department of Corrections (“KDOC”) officials. Thus, it
ordered the appropriate KDOC officials to prepare and file a Martinez Report (“the Report”)
regarding the claims in the amended complaint. (Doc. 10.) The KDOC filed the Report on
September 18, 2025. (Doc. 12.) Submission of the exhibits in support of the Report was completed
on October 9, 2025. (See Docs. 22 and 23.)
The Court resumed the screening of the amended complaint and, on October 23, 2025, the
Court issued a memorandum and order to show cause (“MOSC”). (Doc. 27.) The MOSC informed
Plaintiff that Defendant Zmuda was subject to dismissal from this action because, even liberally
construed, the amended complaint alleged only supervisory liability, which, as explained in the
M&O, does not apply to claims under 42 U.S.C. § 1983. Id. at 6-7. The MOSC further advised
that Counts I and II, as pled in the amended complaint, would survive the statutorily required
screening of the amended complaint. Id. at 7. Count III, however, was subject to dismissal because
it failed to state a plausible claim for relief. Id. at 8. The MOSC explained:
Count III is subject to dismissal because it fails to state a plausible claim for
relief.1 As noted above, Count III asserts the violation of Plaintiff’s First
Amendment right to free speech, based on the seizure of letters Plaintiff wrote to
1 As previously explained to Plaintiff, to the extent that he intends in Count III to argue that his disciplinary conviction
violated his First Amendment rights, any such argument must be dismissed because Plaintiff has not shown that the
disciplinary conviction or any resulting punishment has been invalidated. (See Doc. 7, p. 20.)
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his son and placed in the outgoing mail in May 2025. (Doc. 8, p. 6-7.) The letters,
which were submitted by the KDOC as sealed exhibits to the Martinez Report,
contain graphic descriptions of the repeated rape of a six-year-old child. (Doc. 19-
2.) Plaintiff received a disciplinary report based on the content of the stories and he
asserts in Count III that he is now “prohibited from writing fictional stories of his
choice.” (Doc. 8, p. 6.) This assertion is overly broad and not supported by specific
alleged facts. Rather, the facts alleged in the complaint, when supplemented by the
Martinez Report and its exhibits, reflect that Plaintiff is prohibited from writing
fictional stories that describe the rape of children. Plaintiff asserts in Count III that
this prohibition violates his First Amendment right to free speech.
As the Supreme Court recognized in 1974:
[A] prison inmate retains those First Amendment rights that are not
inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system. Thus, challenges
to prison restrictions that are asserted to inhibit First Amendment
interests must be analyzed in terms of the legitimate policies and
goals of the corrections system, to whose custody and care the
prisoner has been committed in accordance with due process of law.
Pell v. Procunier, 417 U.S. 817, 822 (1974).
Nearly 13 years later, the Supreme Court clarified that “when a prison
regulation impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S.
78, 89 (1987). This “standard is necessary” to ensure that “prison administrators . .
. , and not the courts, . . . make the difficult judgments concerning institutional
operations.” Id. (quoting Jones v. N.C. Prisoners’ Union, 433 U.S. 119, 128
(1977)). “‘[C]ourts are ill equipped to deal with the increasingly urgent problems
of prison administration and reform.” Id. at 84 (quoting Procunier v. Martinez, 416
U.S. 396, 405 (1074)). Moreover, the task of prison administration has been
committed to the executive and legislative branches of government, so “separation
of powers concerns counsel a policy of judicial restraint. Where a state penal system
is involved, federal courts have . . . additional reason to accord deference to the
appropriate prison authorities.” Id. at 85.
The Supreme Court has identified several factors relevant to determining
the reasonableness of the prison restriction that allegedly violates the First
Amendment, which are referred to as “the Turner factors.” See Al-Owhali v.
Holder, 687 F.3d 1236, 1240 (10th Cir. 2012). The Turner factors are:
(1) whether a rational connection exists between the prison policy
regulation and a legitimate governmental interest advanced as its
justification; (2) whether alternative means of exercising the right
are available notwithstanding the policy or regulation; (3) what
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effect accommodating the exercise of the right would have on
guards, other prisoners, and prison resources generally; and (4)
whether ready, easy-to-implement alternatives exist that would
accommodate the prisoner's rights.
Al-Owhali, 687 F.3d at 1240 (quoting Beerheide v. Suthers, 286 F.3d 1179, 1185
(10th Cir. 2002)). The first factor is an essential requirement, “‘not simply a
consideration to be weighed’” against the other factors. Id. (quoting Boles v. Neet,
486 F.3d 1177, 1181 (10th Cir. 2007)).
In the context of the initial screening of a prisoner’s § 1983 complaint, the
Court does not require a plaintiff to fully plead or argue the Turner factors. Id. at
1240 n.2. But “Iqbal and Turner require an inmate to ‘plead facts from which a
plausible inference can be drawn that the action was not reasonably related to a
legitimate penological interest.’” Id. at 1240 (quoting Gee v. Pacheco, 627 F.3d
1178, 1187 (10th Cir. 2010)). Although Plaintiff need not “identify every potential
legitimate interest and plead against it[,]’ . . . he is required to ‘recite[] facts that
might well be unnecessary in other contexts.’” Id. (quoting Gee, 627 F.3d at 1187).
K.A.R. 44-12-313(a) prohibits Kansas inmates from having “in [their]
possession or under [their] control any sexually explicit materials, including . . .
writing . . . .” Subsection (b) of the regulation defines when material is considered
sexually explicit and includes material that “contains any . . . description of . . .
[s]exual intercourse . . . .” K.A.R. 44-12-313(b). Even liberally construing the
amended complaint and taking all well-pleaded facts therein as true, the Court
cannot draw a plausible inference that no legitimate penological interest is
reasonably related to the prohibition against Plaintiff, who is serving a sentence
imposed for convictions of sex crimes involving minors2 , writing stories that
describe raping a child. In other words, Plaintiff has failed in the amended
complaint to allege facts that, if taken as true, support the plausible inference that
the restriction he challenges in Count III is not reasonably related to a legitimate
penological interest. Thus, Count III fails to state a claim on which relief can be
granted.
(Doc. 27, p. 8-10.) The MOSC directed Plaintiff to show cause why Defendant Zmuda and Count
III of the amended complaint should not be dismissed. Id. at 10.
2 Plaintiff is a convicted sex offender who, in 1991, “pled guilty to the felony murder of a 5-year-old child, A.S.[,]”
and “pled guilty to kidnapping, two counts of sexual exploitation of a child, rape, and indecent liberties with a child
in connection with the sexual molestation of a different child.” State v.Woodward, 2023 WL 8868564, *1 (Kan. Ct.
App. Dec. 22, 2023) (unpublished), rev. denied May 22, 2025; see also Woodward v. Cline, 2012 WL 2178855 (D.
Kan. June 14, 2012) (unpublished).
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Plaintiff filed a response, in which he argued that the Court should not accept as true the
facts alleged in the Report submitted by the KDOC. (Doc. 28, p. 20-30.) The response also disputed
the Court’s conclusion that the amended complaint did not state a plausible claim for relief against
Defendant Zmuda and that Count III of the amended complaint failed to state a claim upon which
relief could be granted. Id. at 1-19. Plaintiff expressed in the response that he wished to supplement
the amended complaint and amend it to add defendants and claims. Id. at 6-7, 36.
On November 10, 2025, the Court issued an M&O in which it reassured Plaintiff of the
proper use of the Report, it dismissed Defendant Zmuda from this matter, and it dismissed Count
III of the amended complaint for failure to state a claim. (Doc. 29, p. 1, 6-9.) This M&O also
addressed Plaintiff’s requests to supplement and amend the amended complaint, concluding:
The Court will grant Plaintiff time in which to file a motion for leave to file
a second amended complaint and/or a motion for leave to supplement his amended
complaint. Plaintiff is cautioned, however, that any proposed supplement to the
amended complaint that he files should not include claims against Defendant
Zmuda or supplements to Count III of the amended complaint since this order
dismisses those claims. Similarly, Plaintiff should not include in any proposed
second amended complaint the claim identified as Count III in the amended
complaint, nor should he name Jeff Zmuda as a Defendant unless the facts alleged
in the proposed second amended complaint justify doing so.
Id. at 11.
Plaintiff filed a notice of interlocutory appeal from this order (Doc. 30); the Tenth Circuit
has since dismissed the interlocutory appeal (Doc. 39). On November 20, 2025, Plaintiff filed a
motion for leave to file a supplemental pleading. (Doc. 33.) The Court granted the motion the
following day (Doc. 35) and reminded Plaintiff that if he wished to add claims or defendants to
this action, he was required to file a motion for leave to file a second amended complaint on or
before December 10, 2025. On December 2, 2025, Plaintiff filed the motion for leave to file second
amended complaint that comes now before the Court. (Doc. 38.)
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II. Discussion
The Court has conducted the statutorily required screening of the proposed second
amended complaint (Doc. 38-1) attached to the motion for leave to file a second amended
complaint (Doc. 38). The proposed second amended complaint names as Defendants former LCF
Warden Jesse Howes, KDOC CM II Darcie Holthaus, LCF ISA Leslie West, LCF Administrative
Assistant Jennifer Crouse, and LCF mail clerks R. Wedel, B. Hart, and C. Kincaid. (Doc. 38-1, p.
1-4.) As the background of the case, Plaintiff alleges that, by order of Defendants Howes and
Holthause, delivery of all of his publications, magazines, and religious materials ceased on April
1, 2025. Id. at 2. He further alleges that since May 23, 2025, incoming and outgoing letters to and
from him have been censored or prevented from reaching their intended recipient. Id. Plaintiff
asserts that unconstitutional application of related Kansas administrative regulations caused the
censorship. Id.
In Count I of the proposed second amended complaint, Plaintiff asserts the violation of his
First Amendment rights to access information and to freedom of worship based on the refusal to
deliver to him publications and magazines. Id. at 5. As supporting facts for Count I, Plaintiff points
to Defendants Howes and Holthaus’ order that delivery of publications and magazines to Plaintiff
be permanently suspended in April 2025. Id. Plaintiff also states that beginning on May 3, 2025,
he received censorship notices that documented changing reasons for the censorship, including a
new policy implemented in mid-July 2025 that all books and magazines must be ordered through
an approved vendor. Id. at 5-6. Plaintiff alleges that the censorship notices were issued by
Defendants Crouse, Wedel, Hart, and Kincaid. Id. at 6.
In Count II of the proposed second amended complaint, Plaintiff asserts the violation of
his First and Fourteenth Amendment right to correspond by mail with individuals outside of LCF.
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Id. at 5. As supporting facts for Count II, Plaintiff asserts that on May 23, 2025, two outgoing
letters addressed to Corey Woodward were censored by Defendant Crouse and were prevented
from leaving LCF by Defendant West. Id. at 5-6. Since then, up to six additional letters to Corey
Woodward have suffered the same censorship and seizure, which Plaintiff asserts is occurring at
the hands of Defendants Crouse, Wedel, Hart, Kincaid, and West. Id. at 5-6.
In Count III, Plaintiff asserts that K.A.R. 44-12-601 and K.A.R. 44-12-313, as applied to
him, violate his First Amendment right to free speech and his Fourteenth Amendment “liberty
interests.” Id. at 6-8. K.A.R. 44-12-13 defines sexually explicit materials and K.A.R. 44-12-601
allows sexually explicit material to be censored. Id. at 7. As supporting facts for Count III, Plaintiff
returns to the envelopes addressed to Corey Woodward that were opened and censored by
Defendant Crouse on May 23, 2025 and given to Defendant West, “who prevented their delivery.”
Id. Plaintiff asserts that the letters were censored because they contained sexually explicit “partial
stories which were claimed [to have been] written by” him. Id. at 6-7.
He argues that the letters should have been mailed to his son, pointing out that “[l]etters in
the free world are not censored or interfered with for the reasons used to censor and stop
[P]laintiff’s mail from reaching their intended recipient” and contending that his mail should be
equally free to reach its “intended recipient in the free world.” Id. As relief, the proposed second
amended complaint seeks injunctive relief, declaratory relief, and reimbursement of court costs
and the cost of magazines that were “lost or no longer usable due to time restraints.” Id. at 9.
Counts I and II, as pled in the proposed second amended complaint, survive the statutorily
required screening process. They are not frivolous or malicious, they state a plausible claim for
relief, and they do not seek monetary relief from immune defendants. See 28 U.S.C. §
1915A(b)(1)-(2). Count III, on the other hand, must be dismissed. Despite the Court’s caution that
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“Plaintiff should not include in any proposed second amended complaint the claim identified as
Count III in the amended complaint,” (see Doc. 29, p. 11), Count III of the proposed second
amended complaint continues to assert essentially the same claim as was in the now-dismissed
Count III of the amended complaint. Therefore, Count III of the proposed second amended
complaint must be dismissed for the same reasons Count III of the amended complaint was
dismissed, which were explained in detail in the Court’s October 23, 2025 MOSC and are quoted
above. (See Doc. 27, p. 8-10.) Simply put, Count III of the proposed second amended complaint
fails to allege facts that, if taken as true, support a plausible inference that K.A.R. 44-12-601 and
K.A.R. 44-12-313, as applied to him, are not reasonably related to a legitimate penological interest.
Therefore, Count III fails to state a plausible claim for relief.
The proposed second amended complaint (Doc. 38-1) will become the controlling pleading
in this matter. Count III of the second amended complaint will be dismissed. With respect to
Counts I and II of the second amended complaint, the Court concludes that a responsive pleading
is necessary and this matter may proceed to service. The Court will enter a separate e-service order
that will set deadlines for the responsive pleading.
IT IS THEREFORE ORDERED BY THE COURT that the motion to withdraw notice
of interlocutory appeal (Doc. 37) is denied as moot.
IT IS FURTHER ORDERED that the motion for leave to file a second amended
complaint (Doc. 38) is granted. The clerk is directed to file pages 1 through 9 of the document
currently located at Doc. 38-1 as the second amended complaint. The clerk is further directed to
file 10 through 29 of the document currently located at Doc. 38-1 as a memorandum in support of
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the second amended complaint and pages 40 through 56 of the document currently located at Doc.
38-1 as exhibits to the memorandum in support of the second amended complaint.
IT IS FURTHER ORDERED that Count III of the second amended complaint is
dismissed for failure to state a claim.
IT IS FURTHER ORDERED that this case may proceed to service on the defendants. A
separate e-service order will be entered.
IT IS SO ORDERED.
Dated December 15, 2025, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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