Zorn v. Marion, Kansas, City of et al. *** Case Consolidated for Discovery; All Non-Dispositive filings to be made in Lead Case 23-cv-1179

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PHYLLIS J. ZORN, )
)
Plaintiff, )
)
v. ) Case No. 24-2044-DDC-GEB
)
CITY OF MARION, KANSAS, )
GIDEON CODY, )
ZACHARIAH HUDLIN, )
JEFF SOYEZ, and )
AARON CHRISTNER, )
)
Defendants. )
)
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Phyllis J. Zorn’s Motion To Amend
Complaint (“Motion”) (ECF No. 90). For the reasons outlined below, the undersigned
Magistrate Judge GRANTS Plaintiff’s Motion.
I. Background1
Plaintiff is a reporter for the Marion County Record, (the “Record”) a weekly
newspaper published in Marion, Kansas. She sued Defendants City of Marion, Kansas
(“City”); former Mayor David Mayfield (“Mayfield”); former police chief Gideon Cody
(“Cody”); acting police chief Zachariah Hudlin (“Hudlin”); Board of County Commission
of Marion County, Kansas (“Board”); Sheriff Jeff Soyez (“Soyez”); and Detective Aaron
1 The facts are taken from Plaintiff’s Amended Complaint (ECF No. 35) unless otherwise
indicated. This background information should not be construed as judicial findings or factual
determinations.
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Christner (“Christner”) regarding their involvement in a police raid of the Record’s office
on August 11, 2023, which Plaintiff claims was unlawful. It should be noted, the facts
alleged by Plaintiff have been set out in length by the District Judge in his Memorandum
and Order granting in part and denying in part Defendants’ motions to dismiss2 and will
not be reiterated at length here. However, a highly summarized recitation of the facts as
pled, is necessary for consideration of this Motion.
Plaintiff alleges the City was searching for a new police chief in or around April
2023. Soyez was friends with Cody from when he was on the Kansas City, Missouri Police
Department, and he encouraged Cody to apply for the position; which he did. The Record
reported Cody was a candidate, and the Record began receiving tips regarding him which
led to the commencement of an investigation into Cody’s background. Mayfield offered
Cody the position. When Cody learned of the investigation into his background he was
angry and suggested Plaintiff should leave the Record, and he would invest in a more
positive newspaper. Plaintiff disregarded Cody’s suggestion which made him angry at her
personally.
In August 2023, Plaintiff received a message on Facebook from a resident of the
City, indicating a local business owner, Kari Newall (“Newall”), had been driving on a
suspended driver’s license following a DUI conviction. Plaintiff confirmed the conviction
and license suspension on the Kansas Department of Revenue’s (“KDOR”) public website
using information provided by an informant. Eric Meyer (“Meyer”), an owner of the
2 Zorn v. City of Marion, Kansas, 774 F.Supp.3d 1279, 1297-1302 (D. Kan. 2025).
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Record, elected not to publish a report regarding Newall’s conviction and her driving on
a suspended license, but on August 4, 2023 he emailed Cody and Soyez alerting them a
confidential source had provided the paper with a letter from KDOR to Newall regarding
the steps she would need take to get her license reinstated. While not naming Newell, the
email indicated their source alleged local law enforcement was aware this businesswoman
had been driving without an active license.
Also on August 4th, Marion Vice Mayor Ruth Herbel (“Herbel”) emailed the City
Administrator providing a screenshot of the KDOR letter to Newell. This email was
forwarded on to Mayfield and other City Council members on August 7, 2023. The City
Administrator indicated the police department and Cody would not look into this issue.
But Mayfield, who the Record had written unflattering articles about, had a different idea.
Mayfield and a council member contacted Newall telling her Herbel learned of her
DUI and falsely claimed Herbel intended to use the DUI conviction to oppose Newell’s
application for a liquor license at a local restaurant which would come before the council
later that day. Mayfield told Newell a reporter at the Record had stolen her identity and
provided Herbel with a copy of her driving record. When Newell appeared before the City
Council regarding her liquor license she repeated Mayfield’s false claim the Record had
illegally obtained her driving record. Meyer, who was covering the meeting for the
Record, disputed this claim. Newell indicated she would take the issue to the County
Attorney.
Mayfield overruled the City Administrator and authorized Cody to begin an
investigation into the Herbel and the Record based upon his authority of “superintending
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control of all officers and affairs of the city” pursuant to city code. On August 7, 2023
Hudlin, at the direction of Cody, contacted the KDOR. The following day Cody met with
Soyez who shared Cody’s disdain for the Record and planned to “take down the Marion
County Record.”
After discussion with Cody, Christner prepared an application for a search warrant
for the Record. Although he drafted it, Christner indicated he was unwilling to sign the
application and he had not conducted the investigation which he set out in the application.
On August 10, 2023, Cody, using Christner’s draft, prepared search warrant applications.
The applications falsely alleged the Driver’s Protection Act applied to the KDOR letter
and, they indicated the Record lied about the reasons it sought the driving record. Using
the applications, the search warrants were prepared and taken before the Magistrate to be
approved.
On Friday, August 11, 2023, Cody, with local law enforcement officers, conducted
raids on the Record office; the home of the Record’s owners, Joan and Eric Meyer; and
the home of Herbel. Cody, Hudlin, and Christner were involved in the raid on the Record’s
office. Cody and Soyez seized Plaintiff’s, Deb Gruver’s, and Eric Meyer’s computers and
the network file server effectively shutting down the Record. Additionally, Cody directed
Hudlin to seize Plaintiff’s cell phone. And Cody interviewed the Record staff individually.
Following the raids and interviews, Cody went to the Sheriff’s Office to debrief
Soyez. Two days after the raids, the KBI announced it would take over the investigation
into the raids. And five days later, the Marion County Attorney filed a motion to release
the evidence seize during the raids and issued a press release finding insufficient evidence
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existed “to establish a legally sufficient nexus” between any crime being investigated and
“the places searched and items seized.”
Plaintiff filed her Complaint in this matter in February 2024. All Defendants filed
Motions to Dismiss3 which were found as moot after Plaintiff filed an Amended
Complaint.4 All Defendants again filed Motions to Dismiss Plaintiff’s Amended
Complaint.5 All Motions to Dismiss the Amended Complaint were granted in part and
denied in part.6 The District Judge dismissed all claims against Mayfield;7 any Fourth
Amendment claims against Soyez and Hudlin based upon the warrant’s procurement;8 any
Fourth Amendment claim against Cody based upon the oath-or-affirmation requirement;9
any Fourth Amendment claim against Christner based upon the execution of the warrant;10
any Fourth Amendment claim based upon the seizure of Plaintiff’s workplace computer;11
all conspiracy claims against Hudlin and Christner;12 all claims against the Board;13 and
all municipal claims based upon a failure to train.14 However, all other Fourth Amendment
3 Defendants Board of County Commission of Marion County, Kansas, Aaron Christner and Jeff
Soyez – ECF No. 20; Defendant Gideon Cody – ECF No. 22; and Defendants Zachariah Hudlin,
City of Marion, Kansas, and David Mayfield – ECF No. 26.
4 Order – ECF No. 41.
5 Defendants Board of County Commission of Marion County, Kansas, Aaron Christner and Jeff
Soyez – ECF No. 53; Defendants Zachariah Hudlin, City of Marion, Kansas, and David Mayfield
– ECF No. 57; and Defendant Gideon Cody – ECF No. 60.
6 Order – ECF No. 88; Zorn v. City of Marion, Kansas, 774 F.Supp.3d 1279 (D. Kan. 2025).
7 Zorn, 774 F.Supp.3d at 1321.
8 Id. at 1322.
9 Id.
10 Id.
11 Id. at 1339.
12 Id. at 1330.
13 Id.
14 Id.
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claims,15 including Plaintiff’s claims based upon the seizure of her phone16 and against
Cody and Christner based upon warrant procurement,17 along with the direct First
Amendment claim,18 retaliation claims against Cody and Soyez,19 conspiracy claims
against Soyez and Cody,20 municipal liability claim based upon Soyez and Cody as
policymakers,21 and Privacy Protection Act claims22 survived.
Judge Crabtree in his Order on the Motions to Dismiss considered whether the
claims dismissed were with or without prejudice.23 Although a close call, he ultimately
determined since the dismissals were based upon “insufficient allegations, qualified
immunity, and in some cases both” he could not conclude it was “patently obvious” that
amendment “would be futile.”24 The dismissals were made without prejudice and Plaintiff
was given 20 days to seek leave to amend.25 If Plaintiff were to fail to move to amend
within the allotted time allowed, the Rule 12(b)(6) dismissals would convert to dismissals
with prejudice.26 Plaintiff timely filed her Motion to Amend. Defendants the City,
Mayfield, and Cody (“City Defendants”) filed a response in opposition.27 Defendants
15 Id. at 1332.
16 Id. at 1316.
17 Id. at 1314.
18 Id. at 1324.
19 Id. at 1331.
20 Id. at 1330.
21 Id. at 1334.
22 Id. at 1338.
23 Id.
24 Id. (quoting Knight v. Mooring Cap. Fund, LLC, 749 F.3d 1180, 1190 (10th Cir. 2014)).
25 Id. at 1338.
26 Id.
27 ECF No. 93.
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Soyez and Christner filed a response;28 they do not oppose amendment but reserve their
right to raise any potential defenses that may be available under Rule 12. Plaintiff filed
her reply29 and the Motion is ripe for decision.
II. Plaintiff’s Motion to Amend
In Plaintiff’s proposed Second Amended Complaint, she primarily seeks to amend
her prior claim regarding retaliation. It is not crystal clear the theory(ies) raised in this
claim. Count III is titled “First Amendment Retaliation and Civil Conspiracy (42 U.S.C.
1983).” In Plaintiff’s Motion, she alleges she had not sought to raise a conspiracy claim
against Mayfield in her earlier complaints. Although not expressly raised in her Amended
Complaint, the District Judge understood a conspiracy claim against Mayfield, Cody, and
Soyez was raised. The claim against Mayfield was dismissed without prejudice. With the
addition of allegations regarding a newly produced text message from Mayfield to the
City Manager, Plaintiff indicates she now expressly wishes to bring a conspiracy claim
against him.
The City Defendants acknowledge Plaintiff’s Motion alleges she only seeks to raise
a conspiracy claim against Mayfield, but reviewing the proposed Second Amended
Complaint they believe there is also an intent to revive her retaliation claim against
Mayfield. The Court understands the City Defendant’s concern. However, having
reviewed the additional facts pled in Count III which all refer either to co-conspirators or
a conspiracy, the Court construes Plaintiff’s Motion to seek to add a § 1983 conspiracy
28 ECF No. 92.
29 ECF No. 94.
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claim against Mayfield. The District Judge’s rulings regarding Plaintiff’s retaliation
claims remain undisturbed by the Court’s ruling on this Motion.
Plaintiff, without opposition, also seeks to amend her claims in compliance with
the District Court’s Order by 1) removing allegations and claims regarding Defendants,
the City, and the Board; 2) excluding Mayfield from Count I – her First Amendment Direct
Violation claim; and 3) omitting her allegations and claims regarding the municipalities’
failure to train.
III. Legal Standard
The standard for permitting a party to amend her pleadings is well established. A
party may amend a pleading as a matter of course under Fed. R. Civ. P. 15(a)(1), either
before the responding party answers or within 21 days after service of a responsive
pleading. However, in cases such as this where the plaintiff has already amended her
complaint, without the opposing party’s consent, a party may amend its pleading only by
leave of the court under Rule 15(a)(2), where leave “shall be freely given when justice so
requires.”
A decision to grant or deny leave to amend is within the sound discretion of the
Court.30 “If the underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, [s]he ought to be afforded an opportunity to test h[er] claim on the
merits.”31 “In the absence of any apparent or declared reason—such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
30 Foman v. Davis, 371 U.S. 178, 182 (1962).
31 Id.
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amendments previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc.—the leave sought should, as the
rules require, be ‘freely given.’”32 Futility of amendment is adequate justification to deny
leave to amend.33 A court is “justified in denying the motion to amend if the proposed
amendment could not have withstood a motion to dismiss or otherwise failed to state a
claim.”34
A complaint must plead sufficient facts to state a claim for relief that is plausible on
its face in order to withstand a motion to dismiss.35 Well-pleaded facts are accepted as
true.36 Additionally, all reasonable inferences derived from such facts are viewed in the
light most favorable to Plaintiff.37 However, conclusory allegations without supporting
facts are insufficient to state a claim.38
III. Discussion
The City Defendants’ response focuses on the futility of Plaintiff’s § 1983
conspiracy claim. Therefore, the Court will only address the futility of Plaintiff’s proposed
claim. The District Judge’s Order granting in part and denying in part Defendants’ Motions
to Dismiss Plaintiff’s Amended Complaint,39 sets forth the law regarding conspiracies
under 42 U.S.C. § 1983. It provides as follows:
32 Id.
33 Schepp v. Fremont Cnty., 900 F.2d 1448, 1451 (10th Cir. 1990) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)).
34 Id.
35 Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008).
36 Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007).
37 Archuleta, 523 F.3d at 1283.
38 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
39 Zorn, 774 F.Supp.3d at 1328.
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A § 1983 “ ‘conspiracy claim allows for imputed liability[.]’ ”
Bledsoe, 53 F.4th at 609 (quoting Dixon v. City of Lawton, 898
F.2d 1443, 1449 n.6 (10th Cir. 1990)). That is, a § 1983
conspiracy theory isn’t a standalone claim on which a plaintiff
may recover. It requires “ ‘an underlying constitutional
deprivation’ ” for which “ ‘a plaintiff may be able to impose
liability on one defendant for the actions of another performed
in the course of the conspiracy.’ ” Id. (quoting Dixon, 898 F.2d
at 1449 n.6). To prevail on a conspiracy theory under § 1983,
“a plaintiff must show ‘at least a combination of two or more
persons acting in concert and an allegation of a meeting of the
minds, an agreement among the defendants, or a general
conspiratorial objective.’ ” Frasier, 992 F.3d at 1024 (quoting
Brooks v. Gaenzle, 614 F.3d 1213, 1227–28 (10th Cir. 2010),
abrogated on other grounds by Torres v. Madrid, 592 U.S. 306,
141 S.Ct. 989, 209 L.Ed.2d 190 (2021)). The general
conspiratorial objective must take the form of “ ‘a common,
unconstitutional goal.’ ” Bledsoe, 53 F.4th at 609 (quoting
Janny v. Gamez, 8 F.4th 883, 919 (10th Cir. 2021)); see also
Frasier, 992 F.3d at 1025 (“[P]roof that defendants formed an
agreement or conspired to engage in lawful activities—
including lawful investigative activities—would be inadequate
to support a § 1983 conspiracy claim.”).
But “ ‘[c]onclusory allegations of conspiracy are insufficient
to state a valid § 1983 claim.’ ” Id. (quoting Tonkovich v. Kan.
Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998)). Instead,
our Circuit demands specificity to plead conspiracy. “A § 1983
plaintiff must ‘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.’ ” Bledsoe, 53 F.4th at
609 (emphasis in original) (quoting Robbins, 519 F.3d at
1250); see also Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir.
1989) (affirming dismissal of conspiracy claim where
“plaintiff failed to allege specific facts showing agreement and
concerted action among defendants”).
The conspiracy allegations in the Proposed Second Amended Complaint are quite
similar to those alleged by plaintiffs in the related case of Meyer v. City of Marion,
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Kansas.40 Like the court did in Meyer, at this stage of the pleadings the Court finds Plaintiff
has alleged a cognizable § 1983 conspiracy theory.41 The proposed Second Amended
Complaint alleges “the conspiracy had a clear goal,” Defendants, including Mayfield, took
“specific actions” to “carry out the plan” and Defendants Mayfield, Cody, and Soyez
“participated in the conspiracy.”42 First, addressing the alleged goal of the conspiracy, the
proposed Second Amended Complaint alleges the goal was to “to take down the Marion
County Record.”43 It additionally alleges Mayfield, Cody, and Soyez “agreed on the
common-and unconstitutional-goal of fabricating false criminal charges and conducting an
unconstitutional search and seizure against the Record and its employees, including the
plaintiff, who were perceived enemies of the co-conspirators.”44 And finally Mayfield,
Cody, and Soyez met on or around August 8, 2023, Soyez agreed to join Cody and
Mayfield in their “illicit plan” to take down the Record, and Mayfield was behind Cody
and “his investigation 100 percent.”45
Second, regarding the specific actions taken to carry out the plan, Plaintiff alleges:
1) Defendants Mayfield, Cody, and Soyez as co-conspirators “conducted a sham
investigation with phonied up allegations the conspirators knew were false;”46 2) the “sham
‘investigation’ was not supported by even a reasonable suspicion of a crime;”47 3) they
40 Case No. 24-2122-DDC-GEB.
41 Meyer v. City of Marion, Kansas, 776 F.Supp.3d 991, 1020 (D. Kan. 2025).
42 Id. (quoting Bledsoe v. Carreno, 53 F.4th 589, 609-10 (10th Cir. 2022)).
43 Proposed 2nd Am. Compl., ECF No. 94-1, ¶ 333.
44 Id.
45 Id. at ¶¶ 92, 95, and 332.
46 Id. at ¶ 334.
47 Id.
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procured search warrants “knowingly or recklessly including false information in and
omitting material facts from the search warrant application;”48 and 4) the warrants were
used “to raid the Record and the reporters that worked there in retaliation for using their
First Amendment rights.”49
Third, regarding each co-conspirator participating in the conspiracy, as in Bledsoe
v. Carreno,50 here “the allegations are stronger for some [Defendants] than others.”
Ultimately, though, the Court finds the allegations sufficient for each one of them. Plaintiff
alleges Mayfield: 1) convinced Newall to “play the role of complaining victim, falsely
convincing” her the Record and Plaintiff were conspiring against her;51 2) as the City’s
mayor and pursuant to Code of the City of Marion, Kan. § 1-205(a) had “superintending
control of all officers and affairs of the city;”52 3) directed Cody to “conduct a sham
‘investigation’ as a pretext for his desire to retaliate against the Record and plaintiff;”53 and
4) “provided Cody with Herbel’s emails to use as ‘evidence against Herbel and Zorn.’”54
The proposed Second Amended Complaint alleges Cody: 1) made false statements
in the application for the search warrants;55 2) exceeded the scope of the warrant by
48 Id.
49 Id.
50 53 F.4th 589, 610 (10th Cir. 2022)).
51 Proposed 2nd Am. Compl., ECF No. 94-1, ¶ 335.
52 Id. at ¶ 305.
53 Id. at ¶ 335.
54 Id.
55 Id. at ¶ 327.
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reviewing the contents of a file on him;56 and 3) agreed with Soyez they should “disregard
the preview search requirement” and seize computers and other devices.57
Soyez is alleged to have: 1) assisted Cody with the investigation and in planning the
raids;58 2) “personally participated in the decision to have all of the Record’s newsroom’s
computers seized, even though the sham ‘preview’ search conducted by his own deputy
found no evidence of criminal wrongdoing;”59 and 3) tried to distance himself from the
raids by telling Plaintiff “[i]t’s not my search warrant; it is the PD’s search warrant;”60 and
“[y]ou didn’t see me over there,”61 referring to the Record’s offices.62 The allegations in
the proposed Second Amended Complaint, taken as true and viewed in the light most
favorable to Plaintiff are sufficient. They state a plausible § 1983 conspiracy claim against
Mayfield.
For the reasons set forth above, the undersigned Magistrate Judge GRANTS
Plaintiff Phyllis J. Zorn’s Motion To Amend Complaint (ECF No. 90).
56 Id. at ¶ 263.
57 Id. at ¶ 329.
58 Id.
59 Id. at ¶¶192 and 300.
60 Id. at ¶ 190.
61 Id. at ¶ 191.
62 Meyer, 776 F.Supp.3d 991, 1021-22 (D. Kan. 2025) (citing In re Terrorist Bombings of U.S.
Embassies in E. Afr., 552 F.3d 93, 113 (2d Cir. 2008) (“A defendant’s knowing and willing
participation in a conspiracy may be inferred from .... acts exhibiting a consciousness of guilt, such
as making false exculpatory statements.” (quotation cleaned up)).
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IT IS THEREFORE ORDERED Plaintiff’s Motion regarding her § 1983 claim
for conspiracy against Mayfield is GRANTED and such claim shall be permitted to
proceed. Plaintiff shall file her Second Amended Complaint forthwith.
IT IS SO ORDERED.
Dated this 5th day of November, 2025.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
U.S. Magistrate Judge
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