Velayo v. Fox et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BENJAMIN VELAYO,
Plaintiff,
v.
CHERYL FOX, et al.,
Defendants.
Case No. 2:25-cv-02624-JMK-JBW
MEMORANDUM AND ORDER
Plaintiff Benjamin Velayo brings this civil rights suit against Defendants Cheryl Fox,
Kansas Attorney General Kris Kobach, and the Kansas Department of Motor Vehicles (“DMV”).
The suit arises out of DMV employee Fox’s alleged unauthorized distribution of Velayo’s
residential address. Kobach filed a Motion to Dismiss and Magistrate Judge Jennifer B. Wieland
issued a Report and Recommendation (“R&R”) recommending dismissal of all claims for lack of
subject-matter jurisdiction, the Complaint’s failure to state a claim, and because the claims are
frivolous and malicious. For the reasons set forth herein, the Court grants Kobach’s Motion to
Dismiss, adopts the R&R, and dismisses the Complaint against all Defendants.
I. 	BACKGROUND
Velayo claims he went to the Leavenworth, Kansas, DMV in August 2025, to change his
driver’s license address. Id. at 4. He alleges DMV employee, Cheryl Fox, distributed his address
and personal information, and engaged in “a conspiracy to commit harassment and personal
privacy violation.” Id. at 3–4. Velayo further alleges that the DMV “didn’t do a good job of
counseling Cheryl Fox about the customers” and their “rights to have their privacy be left alone
and their personal information not known to anyone.” Id. at 4. Velayo also names Kobach as an
additional defendant, but does not allege that Kobach did anything. See generally Doc. 1.
Case 2:25-cv-02624-JMK-JBW Document 17 Filed 10/08/26 Page 1 of 10

-2-
II. 	LEGAL STANDARD
A. 	Motion to Dismiss
Under Fed. R. Civ. P. 12(b)(1), a defendant can move to dismiss for a lack of subject-matter
jurisdiction. “Federal courts are courts of limited jurisdiction” and the Court is obligated to dismiss
the action if the Court determines it lacks subject-matter jurisdiction. Pueblo of Jemez v. United
States, 790 F.3d 1143, 1151 (10th Cir. 2015) (quoting Gunn v. Minton, 568 U.S. 251, 256 (2013)).
The Court must presume no jurisdiction exists absent an adequate showing by the party invoking
federal jurisdiction. Id.
A defendant may also move to dismiss a complaint under Fed. R. Civ. P. 12(b)(6). A
complaint survives a Rule 12(b)(6) motion to dismiss when it contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible if it contains factual content that “allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. The plausibility standard requires
“more than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a
‘probability requirement.’” Id. “Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to
relief.” Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted). A court accepts
as true all well-pleaded allegations in the complaint but need not accept legal conclusions. Id.
Because Velayo proceeds pro se, the Court construes his pleadings liberally. Smith v.
United States, 561 F.3d 1090, 1096 (10th Cir. 2009). The Court holds Velayo to a less stringent
standard than lawyers, but does not construct legal theories on his behalf or assume facts not pled.
Id.
Case 2:25-cv-02624-JMK-JBW Document 17 Filed 10/08/26 Page 2 of 10

-3-
B. 	Report and Recommendation
Fed. R. Civ. P. 72(b)(2) governs objections to a magistrate judge’s R&R and states that
“[w]ithin 14 days after being served with a copy of the recommended disposition, a party may serve
and file specific written objections to the proposed findings and recommendations.” When reviewing
a magistrate judge’s ruling on a dispositive matter, the district judge “must determine de novo any part
of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). A
failure to properly object leaves a party with no entitlement to appellate review. United States v. 2121
E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). Objections to a magistrate judge’s R&R must be
“both timely and specific to preserve an issue for de novo review by the district court.” Id.
III. 	ANALYSIS
A. 	The Court grants Defendant Kris Kobach’s Motion to Dismiss.
Defendant Kobach moves to dismiss Velayo’s Complaint based on a lack of subject-matter
jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). Doc. 7.
Kobach asserts the Court lacks subject-matter jurisdiction because Eleventh Amendment
immunity bars a suit against him in his official capacity. He also asserts Velayo fails to state a
claim against him in his individual capacity because Kobach is not named in any of the factual
allegations in the Complaint.
The Eleventh Amendment prohibits “suits against a state in federal court commenced by
citizens of that state or citizens of another state.” K.A. v. Barnes, 134 F.4th 1067, 1073 (10th Cir.
2025) (quoting Good v. Dep’t of Educ., 121 F.4th 772, 788 (10th Cir. 2024)). “Suits against state
officials in their official capacity [are] treated as suits against the State.” Hafer v. Melo, 502 U.S.
21, 25 (1991). Properly raised, Eleventh Amendment immunity rids federal courts of subject-
matter jurisdiction as it “precludes unconsented suits in federal court against a state and arms of
the state.” Wagoner Cnty. Rural Water Dist. No. 2. v. Grand River Dam Auth., 577 F.3d 1255,
Case 2:25-cv-02624-JMK-JBW Document 17 Filed 10/08/26 Page 3 of 10

-4-
1258 (10th Cir. 2009). But it does not bar suits for money damages against state officers in their
individual capacities “for unconstitutional or wrongful conduct fairly attributable to the officer
himself, so long as the relief is sought not from the state treasury but from the officer personally.”
Alden v. Maine, 527 U.S. 706, 757 (1999).
Velayo does not specify whether he is asserting a claim against Kobach in his official or
individual capacity, and it is not entirely clear what claim Velayo intends to bring against Kobach.
See generally Docs. 1, 9. Construing his claims liberally, it appears that Velayo may intend to
assert his claims under 42 U.S.C. § 1983—a statute providing individuals the right to sue state
government officials for civil rights violations.
1. 	The Court lacks subject-matter jurisdiction over Velayo’s official-
capacity claim against Kobach.
Courts construe § 1983 claims against government officials in their official capacities as
claims against the state itself. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (holding
an official-capacity suit against a state official is against the official’s office and is thus a suit
against the state). But “[t]he Eleventh Amendment bars such suits unless the State has waived its
immunity.” Id. at 66. Courts stringently evaluate whether a state has waived its immunity and will
not find a waiver without express language. Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1195
(10th Cir. 1998).
Kansas has not expressly consented to suit under § 1983 through a state statute or
constitutional provision. See Braithwaite v. Rainbow Mental Health Facility, 2012 WL 3655291,
at *1 (D. Kan. Aug. 27, 2012). And without a waiver of immunity, the Court lacks jurisdiction
over Velayo’s § 1983 official-capacity claim against Kobach. Maley v. Kansas, 543 F. App’x. 889,
890 (10th Cir. Nov. 26, 2013) (“The Kansas Attorney General is the ‘chief law officer of the state’
and therefore is entitled to the same immunity under the Eleventh Amendment as the State itself.”).
Case 2:25-cv-02624-JMK-JBW Document 17 Filed 10/08/26 Page 4 of 10

-5-
Although Velayo asserts in his response to the Motion to Dismiss that there is jurisdiction because
the Leavenworth DMV is in the State of Kansas, this statement has no bearing on Kobach’s
immunity from suit or the Court’s subject-matter jurisdiction. See City of Albuquerque v. Soto
Enters., Inc., 864 F.3d 1089 (10th Cir. 2017) (“[S]ubject matter jurisdiction defines the court’s
authority to hear a given type of case.”).
Because the Court lacks subject-matter jurisdiction over Velayo’s official-capacity claim
against Kobach, the Court dismisses it.
2. 	Velayo has failed to state an individual-capacity claim against Kobach.
Velayo also fails to state an individual-capacity claim against Kobach. Individual-capacity
claims brought under § 1983 require “that the complaint make clear exactly who is alleged 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, 1250 (10th Cir. 2008). Section 1983 claims also require a showing of the
“defendant’s direct personal responsibility for the claimed deprivation of a constitutional right.”
Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006).
Velayo fails to allege any facts relating to Kobach—let alone facts supporting Kobach’s
personal involvement in his alleged deprivation of rights. See generally Doc. 1. Instead, Velayo
states that the DMV negligently trained employees, like Fox, about the privacy rights of
individuals. Doc. 1 at 3. But a general allegation of negligent training by the DMV with no nexus
to Kobach is insufficient to state a claim under § 1983. To the extent that Velayo intends to assert
a negligent supervision claim against the DMV or Kobach, § 1983 prohibits such actions. Porro
v. Barnes, 624 F.3d 1322, 1327 (10th Cir. 2010) (Section “1983’s plain language . . . doesn’t
Case 2:25-cv-02624-JMK-JBW Document 17 Filed 10/08/26 Page 5 of 10

-6-
authorize respondeat superior liability.”). And Velayo’s response to Kobach’s Motion to Dismiss
further fails to address his claim against Kobach.1
Because Velayo does not allege any facts relating to Kobach, Velayo’s Complaint does not
set forth “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 Twombly, 550 U.S. at 570). Accordingly, the Court
dismisses Velayo’s individual-capacity claim against Kobach.
B. 	The Court adopts the R&R and dismisses Velayo’s remaining claims without
prejudice.
Finally, the Court adopts the R&R and dismisses Velayo’s remaining claims without
prejudice. The Court can permit the commencement of a civil action “without prepayment of fees
or security therefor, by a person who submits an affidavit . . . [if] the person is unable to pay such
fees or give security therefor.” 28 U.S.C. § 1915(a)(1). Velayo sought leave to proceed in forma
pauperis and Magistrate Judge Teresa J. James granted Velayo’s Motion to Proceed Without
Prepayment of Fees. Doc. 4; see also Doc. 3, 3-1. But Magistrate Judge James withheld service of
process and summons, pending review under 28 U.S.C. § 1915(e)(2)(B).
Under § 1915, the Court must dismiss the case at any time if the Court finds that the action
“(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B);
see also Fuller v. Myers, 123 F. App’x 365, 368 (10th Cir. 2005). The statute’s purpose is to
“discourage the filing of, and waste of judicial and private resources upon baseless lawsuits.”
1 On December 22, 2025, Velayo submitted an unauthorized second response to Kobach’s Motion to Dismiss.
Doc. 8. He again asserted there is jurisdiction without explanation and failed to name Kobach.
Case 2:25-cv-02624-JMK-JBW Document 17 Filed 10/08/26 Page 6 of 10

-7-
Trujillo v. Williams, 465 F.3d 1210, 1216 (10th Cir. 2006) (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)).
On July 22, 2026, Magistrate Judge Wieland issued an R&R for Dismissal of the
Complaint. Doc. 14. After screening Velayo’s Complaint, Magistrate Judge Wieland concluded
that Velayo’s Complaint should be dismissed without prejudice against all Defendants “because
the Court lacks subject-matter jurisdiction, and the action is frivolous, malicious, and fails to state
a claim upon which relief can be granted under 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).” Doc. 14 at 6. A
party can object to a magistrate judge’s R&R within 14 days of being served with the R&R, but
the objections must be specific. Fed. R. Civ. P. 72(b)(2). The district judge then reviews de novo
any part of the magistrate judge’s disposition that was properly objected to. Fed. R. Civ. P.
72(b)(3). On July 31, 2026, Velayo timely filed his objection to the R&R. Doc. 15.
1. 	The 	Court 	agrees 	with 	Magistrate 	Judge 	Wieland’s 	conclusions
regarding subject-matter jurisdiction and the viability of Velayo’s
claims.
Although Velayo’s objections were timely, Velayo did not address Judge Wieland’s
conclusion that the Court lacks subject-matter jurisdiction over his claims or her conclusion that
he failed to state a claim upon which relief may be granted. See Docs. 14–15. Instead, Velayo
simply restated the same facts about Fox contained in his Complaint and argued that his claims
were not frivolous because he had filed two other suits against Fox in recent years.2
First, Velayo’s failure to provide specific objections to Magistrate Judge Wieland’s
conclusions regarding subject-matter jurisdiction and his failure to state a claim is reason enough
for the Court to adopt the R&R. See Bagwell v. Safeway Denver Milk Plant, 437 F. App’x 689,
2 Velayo also references a “Sgt. Wajda” for the first time in his objection to the R&R. Velayo states that Sgt.
Wajda referred Velayo to the Leavenworth Police Department and claims this remark supports his claims against Fox,
but provides no further explanation. Doc. 15 at 1–2.
Case 2:25-cv-02624-JMK-JBW Document 17 Filed 10/08/26 Page 7 of 10

-8-
692 (10th Cir. 2011) (holding district court’s dismissal was proper where the pro se party in a civil
rights action failed to specifically object to the magistrate’s R&R).
[The Tenth Circuit] has “adopted a firm waiver rule” regarding objections to a
magistrate judge’s recommendations. To avoid waiving appellate review of factual
and legal questions, a party’s objections to a magistrate judge’s report and
recommendation must be both timely and specific. This means the objection must
be sufficiently specific to focus the district court’s attention on the factual and legal
issues that are truly in dispute.
Coomer v. Make Your Life Epic, LLC, 140 F.4th 1269, 1277 (10th Cir. 2025) (cleaned up). By
failing to provide argument as to why Magistrate Judge Wieland’s conclusions regarding subject-
matter jurisdiction or the viability of his claims are incorrect, Velayo has waived these issues. Id.
But, regardless of this waiver, the Court agrees with Magistrate Judge Wieland’s well-
reasoned conclusions. Because Velayo has failed to set forth a jurisdictional basis for any of his
claims or facts supporting a violation of law by any defendant, dismissal for lack of subject-matter
jurisdiction and failure to state a claim is also appropriate under a de novo review.
2. 	Velayo’s argument that his claims are not frivolous is not persuasive.
Velayo argues that his claims are not frivolous because he has filed two other lawsuits
against Fox for purported privacy violations. But those cases do the opposite, and instead support
Magistrate Judge Wieland’s conclusion that his claims are frivolous and malicious. In 2020,
Velayo sued Fox, alleging that Fox told her friends about his new address and that his privacy was
violated. Velayo v. Fox, 2020 WL 3639808, at *1 (D. Kan. July 6, 2020), aff’d, 826 F. App’x 709
(10th Cir. Oct. 16, 2020). There, like here, Velayo failed to “mention which civil right defendants
allegedly violated or any applicable federal law.” Id. And so, the Court dismissed for lack of
subject-matter jurisdiction and the Tenth Circuit affirmed. Velayo, 826 F. App’x at 710.
Then, in 2023, Velayo filed a lawsuit against the Department of Veterans Affairs (“VA”),
asserting that Fox was employed by the VA and Fox had interfered with his privacy. Velayo v.
Case 2:25-cv-02624-JMK-JBW Document 17 Filed 10/08/26 Page 8 of 10

-9-
Fox, 2024 WL 507196, at *1–2 (10th Cir. Feb. 9, 2024). Although based on a failure to comply
with the Federal Tort Claims Act, this Court again dismissed for lack of subject-matter jurisdiction
and the Tenth Circuit affirmed. Id. at *1. Because of Velayo’s “[r]epetitious litigation of virtually
identical causes of action” against Fox, the Court agrees that Velayo’s claims are frivolous and
malicious. McWilliams v. Colorado, 121 F.3d 573, 574–75 (10th Cir. 1997) (citation omitted).
In sum, Velayo’s objection does not cite any case law, does not address Magistrate Judge
Wieland’s conclusions about subject-matter jurisdiction or the viability of his claims, and does not
raise any persuasive arguments opposing her conclusion that his claims against Fox are frivolous
and malicious. Because the Court agrees with Magistrate Judge Wieland’s conclusions that Velayo
has failed to establish that the Court has subject-matter jurisdiction over his claims, and that he has
failed to state a claim against any of the named defendants, the Court accepts the recommended
disposition of the R&R and dismisses Velayo’s remaining claims without prejudice.
IV. 	CONCLUSION
The Court finds that it lacks subject-matter jurisdiction over Velayo’s official-capacity
claim against Kobach and that Velayo fails to state a claim upon which relief can be granted against
Kobach in his individual capacity. Defendant Kobach’s Motion to Dismiss is granted. The Court
further adopts Magistrate Judge Wieland’s R&R and dismisses Velayo’s remaining claims without
prejudice.
THE COURT THEREFORE ORDERS that Defendant Kansas Attorney General Kris
Kobach’s Motion to Dismiss (Doc. 7) is GRANTED. Velayo’s claims against Kobach are
DISMISSED WITH PREJUDICE.
Case 2:25-cv-02624-JMK-JBW Document 17 Filed 10/08/26 Page 9 of 10

-10-
IT IS FURTHER ORDERED that the Court ADOPTS Magistrate Judge Jennifer B.
Wieland’s Report and Recommendation (Doc. 14) and DISMISSES Velayo’s remaining claims
WITHOUT PREJUDICE.
This case is closed.
IT IS SO ORDERED.
Dated: October 8, 2026 	s/ Jeffrey M. Kuhlman
JEFFREY M. KUHLMAN
UNITED STATES DISTRICT JUDGE
Case 2:25-cv-02624-JMK-JBW Document 17 Filed 10/08/26 Page 10 of 10