Zesiger et al v. Leavenworth County, Kansas

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-02323-JAR-RES
MEMORANDUM AND ORDER
Plaintiffs Bryan Zesiger and Gina Montalbano Zesiger, proceeding pro se, bring this
action against Defendants the Board of County Commissioners of Leavenworth County, Kansas;
Misty Brown in her official capacity as the Leavenworth County Counselor; and Melissa
Johnson in her official capacity as an employee of the Leavenworth County Planning and Zoning
Department. Plaintiffs allege that Defendants’ tax classification of Plaintiffs’ property and
imposition of a special use permit (“SUP”) violated 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 two amended pleadings, the most recent of which is their
Revised Second Amended Complaint.2
This matter is now before the Court on Defendants’ Motion to Dismiss (Doc. 20)
Plaintiffs’ Revised Second Amended Complaint under Fed. R. Civ. P. 12(b)(6), as well as
1 Doc. 9.
2 Doc. 15.
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Plaintiffs’ Motion for Partial Summary Judgment and Judicial Notice (Doc. 19), Motion for
Temporary Restraining Order (Doc. 22), Motion to Supplement the Record in Support of
Pending Motion for Temporary Restraining Order (Doc. 26), and Motion to Supplement the
Record and Request for Judicial Notice in Support of Pending Motion for Temporary Restraining
Order (Doc. 29). For the reasons explained below, the Court grants Defendants’ motion to
dismiss and denies Plaintiffs’ motions as moot.
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”3 and include “enough facts to state a claim to relief that is plausible on its face.”4 The
plausibility standard does not require a showing of probability that “a defendant has acted
unlawfully,” but requires more than “a sheer possibility.”5 “[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.”6 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.7 The Court will view all well-pleaded factual allegations in the light
most favorable to Plaintiffs.8 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
3 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
4 Id. at 570.
5 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
6 Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S. at
555).
7 Iqbal, 556 U.S. at 678.
8 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.9 However, Plaintiffs’ pro se status does not excuse them from complying with federal
and local rules.10
II. Background
The following facts are alleged in Plaintiffs’ Revised Second Amended Complaint.11 For
purposes of deciding this motion, the Court assumes these facts to be true and draws all
reasonable inferences in Plaintiffs’ favor.
Plaintiffs Bryan Zesiger and Gina Montalbano Zesiger are agricultural producers
recognized by the United States Department of Agriculture (“USDA”) under Farm Service
Agency Farm No. 8994. Plaintiffs conduct agricultural operations in Leavenworth County,
Kansas, including viticulture, enology, and agritourism activities. Their property has been
recorded and taxed as agricultural land throughout their ownership, and the USDA has
recognized the enterprise through programs supporting specialty-crop farming, small-farm
innovation, and agritourism.
Despite those designations, at an unspecified time, Defendants imposed an SUP on
Plaintiffs’ property and classified it as commercial for tax purposes while assessing adjacent
agricultural properties at the statutory agricultural rate. No other vineyard, winery, or
agricultural producer in Leavenworth County was subject to the same SUP requirement.
Although Defendants reclassified Plaintiffs’ property from commercial to agricultural in 2024,
they did not reassess the property retroactively to 2020.
9 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
10 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 . . . .”).
11 Doc. 15.
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Between 2018 and 2022, Defendants obtained and retained Plaintiffs’ confidential federal
agricultural records, including IRS Schedule F filings and proprietary business-plan materials
submitted for USDA programs. In 2019, Defendants used those materials to justify the SUP
requirement and commercial tax status. Between 2020 and 2022, Plaintiffs repeatedly sought
copies of those records through requests made under the Kansas Open Records Act (“KORA”),
but Defendants did not provide the requested materials in response.
At an unspecified time, the Leavenworth County Board of County Commissioners
convened a meeting regarding Plaintiffs’ vineyard and winery operations and declined Plaintiffs’
request to treat Plaintiffs’ operations as agricultural. Plaintiffs then submitted multiple written
requests and emails to Defendants asking that the SUP be dissolved, attaching a letter from the
Kansas Department of Agriculture stating that no SUP was required for Plaintiffs’ operations.
Defendants did not dissolve the SUP.
As a result of Defendants’ actions, Plaintiffs have suffered financial injury, over-taxation,
compliance costs, loss of federal grant eligibility, impairment of federal program standing, and
reputational harm.
III. Discussion
In the Revised Second Amended Complaint, Plaintiffs assert the following federal claims
under 42 U.S.C. § 1983 arising from Defendants’ actions related to Plaintiffs’ property: (1)
violation of procedural due process (Count I); (2) violation of substantive due process (Count II);
(3) denial of access to courts (Count III); (4) violation of equal protection (Count IV); and (5)
municipal liability (Count V). In addition to their § 1983 claims, Plaintiffs assert that federal law
regulating the classification and taxation of agricultural enterprises preempts Defendants’ actions
under the Supremacy Clause (Count VI). Plaintiffs’ response to Defendants’ motion to dismiss
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does not address their Supremacy Clause claim. The Court therefore considers that claim
abandoned and dismisses it.12 As to the remaining § 1983 claims, Defendants move to dismiss
under Fed. R. Civ. P. 12(b)(6), arguing that they are barred by the applicable statute of
limitations.
“A statute of limitations defense ‘may be appropriately resolved on a [Rule] 12(b) motion
when the dates given in the complaint make clear that the right sued upon has been
extinguished.’”13 Congress has not enacted a statute of limitations for claims under § 1983, but
federal courts apply the forum state’s statute of limitations for personal injury actions to such
claims.14 State law also governs questions of tolling, unless state tolling rules would “defeat the
goals” of § 1983.15 Federal law, however, determines when § 1983 claims accrue.16
In Kansas, the statute of limitations for personal injury actions is two years.17 Under
federal law, § 1983 claims generally accrue “when the plaintiff knows or has reason to know of
the injury which is the basis of the action.”18 “[I]t is not necessary that a claimant know all of
12 C1.G ex rel. C.G. v. Siegfried, 38 F.4th 1270, 1282 (10th Cir. 2022) (“The district court correctly
dismissed Plaintiff’s facial challenge here because he abandoned it by not addressing it in his response to
Defendants’ motion to dismiss.”); Cortishae-Eier v. Ford Motor Co., No. 23-3081-EFM-TJJ, 2023 WL 5625311, at
*3 (D. Kan. Aug. 31, 2023) (finding plaintiff abandoned some claims by “fail[ing] to substantively respond” on
motion to dismiss).
13 Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016) (alteration in original) (quoting
Lee v. Rocky Mountain UFCW Unions & Emps. Tr. Pension Plan, No. 92-1308, 1993 WL 482951, at *1 (10th Cir.
Nov. 23, 1993)).
14 Barnett v. Corr. Corp. of Am., 441 F. App’x 600, 601 (10th Cir. 2011); see also Lyons v. Kyner, 367 F.
App’x 878, 881–82 (10th Cir. 2010).
15 Hardin v. Straub, 490 U.S. 536, 539 (1989).
16 McDonough v. Smith, 588 U.S. 109, 115 (2019) (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)).
17 K.S.A. § 60-513(a)(4).
18 Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005) (quoting Baker v. Bd. of Regents, 991 F.2d 628,
632 (10th Cir. 1993)).
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the evidence ultimately relied on for the cause of action to accrue,”19 and “[t]he cause of action
accrues even though the full extent of the injury is not then known or predictable.”20
Here, Plaintiffs commenced this action on May 16, 2025. The two-year statute of
limitations therefore bars § 1983 claims that accrued before May 16, 2023. Liberally construing
the Revised Second Amended Complaint, Plaintiffs’ claims center around Defendants’ (1)
imposition of the SUP on Plaintiffs’ property; (2) classification of Plaintiffs’ property as
commercial, rather than agricultural, for tax purposes; and (3) acquisition and retention of
Plaintiffs’ USDA application materials and IRS Schedule F filings, and their subsequent failure
to provide Plaintiffs access to those materials despite their repeated requests.
Defendants argue that Plaintiffs’ § 1983 claims accrued when these events occurred. The
Court agrees. Plaintiffs plead that Defendants retained their federal records between 2018 and
2022, and that between 2020 and 2022 Plaintiffs repeatedly sought copies of those records
through KORA requests but Defendants refused to produce them. On the face of the pleading,
Plaintiffs therefore knew or had reason to know of the injury stemming from Defendants’
retention and non-production of those records no later than 2022, which is outside the two-year
limitations period.
Furthermore, the Revised Second Amended Complaint does not plead the specific date
Defendants imposed the SUP or began classifying Plaintiffs’ property as commercial for tax
purposes. However, Plaintiffs allege that Defendants reclassified their property as agricultural in
2024 but did not reassess the property retroactively to 2020, which indicates the challenged
commercial classification existed by 2020 at the latest. In addition, Defendants submit filings
19 Baker, 991 F.2d at 632 (citing Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 645 (5th Cir. 1988)).
20 Varnell v. Dora Consol. Sch. Dist., 756 F.3d 1208, 1216 (10th Cir. 2014) (alteration in original) (quoting
Wallace, 549 U.S. at 391).
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from the Leavenworth County District Court showing that Plaintiffs challenged Leavenworth
County’s zoning treatment and the imposition of the SUP by filing a petition on October 3, 2022,
seeking a declaratory judgment determining that Leavenworth County zoning regulations do not
apply to Plaintiffs’ agricultural use of their property and dissolution of the SUP.21 At minimum,
those state-court filings confirm Plaintiffs knew or had reason to know of the asserted injuries
stemming from the SUP requirement no later than October 3, 2022, again outside the limitations
period.
In response to Defendants’ statute-of-limitations argument, Plaintiffs do not identify any
dates bringing the challenged conduct within the limitations period, nor do they dispute that
Defendants classified their property as commercial and imposed the SUP requirement before
Plaintiffs filed their first lawsuit on October 3, 2022. Instead, Plaintiffs contend that the
continuing violation doctrine applies because Defendants’ ongoing enforcement of the SUP and
continued taxation of the property as commercial constitute a “continuing constitutional injury,
not a single, completed past act.”22 However, this argument fails.
In Epcon Homestead, LLC v. Town of Chapel Hill,23 the Fourth Circuit rejected a similar
effort to avoid the statute of limitations by characterizing ongoing enforcement of an SUP
condition as a continuing violation. There, a municipality required housing developers seeking
an SUP to either set aside a portion of a development for affordable housing or pay a fee in lieu
21 Doc. 21-1 at 2 (Plaintiffs’ Petition in Leavenworth County District Court Case No. 2022-CV-256). The
Court may take judicial notice of facts that are a matter of public record without converting a Rule 12(b)(6) motion
into one for summary judgment. Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006). This includes records
from state court proceedings. Wanjiku v. Johnson Cnty., 173 F. Supp. 3d 1217, 1232–33 (D. Kan. 2016) (taking
judicial notice of state court proceedings where complaint alleged no dates to determine accrual for statute-of-
limitations analysis).
22 Doc. 24 ¶ 22.
23 62 F.4th 882, 886–89 (4th Cir. 2023).
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of the set-aside.24 The plaintiff acquired property subject to that permit condition beginning in
2015 and later made fee-in-lieu payments in installments from 2017 to 2019.25 The plaintiff filed
suit in October 2019 and argued its § 1983 takings and due process claims accrued when it began
making the fee payments because those payments constituted the alleged constitutional injury.26
The Fourth Circuit disagreed and held that the claims accrued no later than when the
plaintiff began acquiring the property subject to an SUP condition because that was when the
plaintiff knew or should have known of the alleged injury.27 The court further rejected the
plaintiff’s argument that each installment payment constituted a continuing wrong, explaining
that “the payments were exactly what the continuing wrong doctrine is not: the continual ill
effects from an original violation” established by the SUP condition, rather than new
constitutional violations that restart the limitations period.28
The same reasoning applies here. Plaintiffs’ asserted constitutional injuries stem from
Defendants’ imposition of the SUP requirement and its classification of Plaintiffs’ property as
commercial for tax purposes. Plaintiffs knew or had reason to know of the asserted injuries
when the SUP requirement and commercial classification were imposed, which was no later than
October 3, 2022, when Plaintiffs challenged Defendants’ zoning treatment and the SUP
requirement in state court. Plaintiffs therefore cannot avoid the statute of limitations by
characterizing Defendants’ continued enforcement of the SUP and continued taxation of the
24 Id. at 884.
25 Id. at 885.
26 Id. at 886.
27 Id. at 887–88.
28 Id. at 889 (citation modified); see also 2701 Mt. Glen CT, LLC v. City of Woodland Park, 856 F. App’x
141, 144 (10th Cir. 2021) (affirming summary judgment on statute-of-limitations grounds where § 1983 claim
accrued in 2014, when the municipality approved the conditional use permit).
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property as commercial as a continuing constitutional injury. As in Epcon, those ongoing
consequences are “continual ill effects from an original violation” established by Defendants’
earlier decisions, not new constitutional violations that restart the limitations period.29
Accordingly, the Court finds that Plaintiffs’ § 1983 claims accrued no later than
October 3, 2022, and are therefore barred by Kansas’s two-year statute of limitations. Plaintiffs
thus fail to state a claim upon which relief can be granted on Counts I through V, and those
claims are dismissed under Rule 12(b)(6). Furthermore, having dismissed all claims in this
action, the Court denies all of Plaintiffs’ pending motions as moot.
IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion to
Dismiss (Doc. 20) is granted. The Clerk is directed to enter judgment in favor of Defendants
and terminate this action.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Partial Summary Judgment
and Judicial Notice (Doc. 19), Motion for Temporary Restraining Order (Doc. 22), Motion to
Supplement the Record in Support of Pending Motion for Temporary Restraining Order (Doc.
26), and Motion to Supplement the Record and Request for Judicial Notice in Support of
Pending Motion for Temporary Restraining Order (Doc. 29) are denied as moot.
IT IS SO ORDERED.
Dated: March 13, 2026
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
29 Epcon, 62 F.4th at 889.
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