Hulett v. Foster et al

1
In the United States District Court
for the District of Kansas
_____________
Case No. 24-cv-02387-TC
_____________
TC HULETT JR.,
Plaintiff
v.
HANNAH FOSTER ET AL.,
Defendants
_____________
MEMORANDUM AND ORDER
TC Hulett Jr., proceeding pro se, brought various federal and state
law claims against several county entities and employees after he was
arrested at a public library. Doc. 1. The defendants moved to dismiss.
Doc. 16. For the following reasons, their motion is granted.
I
A
Each ground on which the defendants seek dismissal has a differ-
ent standard that governs its resolution. And Hulett’s pleadings are
subject to certain standards that apply only to pro se plaintiffs. The
following describes each applicable standard.
1. The defendants assert that there is no personal jurisdiction over
them because they were not properly served. Under Federal Rule of
Civil Procedure 12(b)(5), a defendant may move to dismiss for insuffi-
cient service of process. When a defendant moves to dismiss under
Rule 12(b)(5), the plaintiff has the burden “of establishing the validity
of the service of process.” Fed. Deposit Ins. Corp. v. Oaklawn Apartments,
959 F.2d 170, 174 (10th Cir. 1992).
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Before personal jurisdiction may be exercised over a defendant, the
plaintiff must have served process validly under Rule 4. Omni Cap. Int’l,
Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987); Trujillo v. Williams,
465 F.3d 1210, 1217 (10th Cir. 2006) (indicating that proper service is
an aspect of personal jurisdiction). Rule 4(e) sets forth the manners in
which an individual defendant may be served. Peay v. BellSouth Med. As-
sistance Plan, 205 F.3d 1206, 1210 (10th Cir. 2000). One way is to per-
sonally deliver a copy of the summons and the complaint to the indi-
vidual, his or her agent, or a person of suitable age and discretion at
the individual’s residence. Fed. R. Civ. P. 4(e)(2)(A)–(C). The other is
by “following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is
located or where service is made.” Fed. R. Civ. P. 4(e)(1).
District courts have broad discretion to determine the appropriate
remedy when the plaintiff fails to effect proper service. 5B Wright &
Miller, Federal Practice & Procedure § 1353 (4th ed. 2025). As a general
rule, the appropriate remedy after the plaintiff’s first attempt is to
quash service rather than dismissing the plaintiff’s claims. Id.; Gregory v.
United States/U.S. Bankruptcy Ct. for Dist. of Colo., 942 F.2d 1498, 1500
(10th Cir. 1991). Other remedies include dismissing the case without
prejudice or extending the time for service. See Scott v. Hern, 216 F.3d
897, 912 (10th Cir. 2000).
2. The defendants also move to dismiss Hulett’s claims under Rule
12(b)(6). A federal district court may grant a motion to dismiss for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6).
To survive a motion to dismiss for failure to state a claim, the com-
plaint need only contain “a short and plain statement . . . showing that
the pleader is entitled to relief” from each named defendant. Fed. R.
Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Two
“working principles” underlie this standard. Kan. Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1214 (10th Cir. 2011); see also Ashcroft v. Iqbal,
556 U.S. 662, 678–79 (2009). First, a court ignores legal conclusions,
labels, and any formulaic recitation of the elements. Penn Gaming, 656
F.3d at 1214. Second, a court accepts as true all remaining allegations
and logical inferences and asks whether the claimant has alleged facts
that make his or her claim plausible. Id.
A claim need not be probable to be considered plausible. Iqbal, 556
U.S. at 678. But the facts, viewed in the light most favorable to the
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claimant, must move the claim from conceivable to plausible. Id. at
678–80. The “mere metaphysical possibility that some plaintiff could
prove some set of facts in support of the pleaded claims is insufficient;
the complaint must give the court reason to believe that this plaintiff
has a reasonable likelihood of mustering factual support for these
claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177
(10th Cir. 2007).
Plausibility is context specific. The requisite showing depends on
the claims alleged, and the inquiry usually starts with determining what
the plaintiff must prove at trial. See Comcast Corp. v. Nat’l Assoc. of African
Am.-Owned Media, 589 U.S. 327, 332 (2020). In other words, the nature
and complexity of the claim(s) define what plaintiffs must plead. Cf.
Robbins v. Oklahoma, 519 F.3d 1242, 1248–49 (10th Cir. 2008) (compar-
ing the factual allegations required to show a plausible personal injury
claim versus a plausible constitutional violation).
3. These rules do not operate in a vacuum. When a plaintiff, such
as Hulett, proceeds pro se, a court must construe his or her pleadings
generously. See Smith v. United States, 561 F.3d 1090, 1096 (10th Cir.
2009). That generosity means a court should overlook the failure to
properly cite legal authority, confusion of various legal theories, and
apparent unfamiliarity with pleading requirements. Id. But it does not
permit a court to construct legal theories on the plaintiff’s behalf or
assume facts not plead. See id.; Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005).
B
TC Hulett Jr. brought this civil rights action against several county
entities and employees after he was arrested at a public library in Au-
gust 2022. Doc. 1 at ¶ 9.1 The individual defendants include five law-
enforcement officers: Adam Gardner, Jesse Valdez, and three officers
with unknown first names—Hunn, Drake, and Cristensen. Id. at ¶¶ 6,
7, 29. The other two county employees Hulett sued are Hannah Foster
and Nathan Stavig, two emergency medical technicians who provided
Hulett emergency medical treatment and transported him to a hospital
after his arrest. Id. at ¶ 9. And the final two defendants are governmen-
tal entities: Olathe Booking Center and Johnson County, Kansas. Id. at
1 All references to the parties’ briefs are to the page numbers assigned by
CM/ECF.
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¶¶ 5, 8. It is not clear from the Complaint exactly what happened or in
what order the alleged events took place. The following description,
however, attempts to outline Hulett’s allegations against the nine afore-
mentioned defendants.2
On August 22, 2022, Hulett visited a public law library in Olathe,
Kansas. Doc. 1 at ¶ 9. He was reading, studying, and using the library’s
resources to work on another lawsuit in which he was involved. Id. At
some point, Hulett went outside and sat in front of the library’s en-
trance. Id. While he sat there, Hulett observed officers from the John-
son County Sheriff’s Office detain and arrest an unknown individual.
Id.
The officers eventually arrested Hulett, too. Doc. 1 at ¶ 9. Hulett
does not allege why the officers arrested him or how the encounter
between him and the officers began. Hulett only broadly states that the
officers “unlawfully detained, battered, searched and arrested” him af-
ter he expressed statements like, “This is a free Nation!” Id. Hulett
further alleges that three officers—Drake, Cristensen, and Hunn—
forced him “into a bounded area in the law library” and physically in-
timidated him. Id. at ¶ 11. The officers “painfully contorted and applied
pressure to his wrist and shoulder, causing those areas of his body sig-
nificant injury.” Id. at ¶ 12. According to Hulett, those injuries caused
him to have a panic attack requiring medical treatment. Id. Hulett states
that the law-enforcement officers then collaborated to falsify a police
report, which led to Hulett being charged for an unknown offense. Id.
at ¶ 10.
Two emergency medical technicians—Hannah Foster and Nathan
Stavig—arrived at the scene. Doc. 1 at ¶ 9. Hulett alleges that Foster
“got mad and snatched” a blood-pressure cuff off his arm after he de-
clined to sign a consent form. Id. Next, he alleges that Foster and Stavig
intentionally falsified his medical records in an attempt to commit
fraud. Id. And he says that Stavig threatened to call the police after
Hulett stated facts about the legal requirements governing the provi-
sion of emergency medical services. Id. Foster and Stavig transported
Hulett to Olathe Medical Center, where Hulett alleges that Stavig
“went and got security and laughed at [him].” Id.
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Based on these events, Hulett sued the defendants. Doc. 1. He
seeks money damages for various alleged common-law and constitu-
tional violations. See generally id. In particular, Hulett alleges that each
of the individual defendants violated his First, Fourth, and Fourteenth
Amendment rights, and that they conspired among each other to vio-
late those same rights. Id. at 2, ¶¶ 1–4 (citing 42 U.S.C. §§ 1983 &
1988). And Hulett alleges that Johnson County and Olathe Booking
Center violated his constitutional rights under a municipal-liability the-
ory and by failing to train and supervise their employees. Id. at 2, ¶¶ 5–
9. Hulett’s final allegations are state-law claims against some or all of
the defendants. Id. at 2, ¶¶ 7–12. Specifically, he alleges that some or
all of the defendants are liable under state law for intentional infliction
of emotional distress, healthcare fraud, defamation, assault, battery,
state constitutional violations, conversion, and a violation of the Uni-
form Commercial Code. Id. at 2, 7. The defendants moved to dismiss
all of Hulett’s claims, making various arguments as to why Hulett failed
to properly serve or state a claim against them. See generally Doc. 17.
II
The defendants offer various reasons that Hulett’s claims against
them should be dismissed. They are considered in the following order.
Section II.A. deals with the defendants’ arguments that Hulett did not
properly serve them. Section II.B. then addresses two of the defend-
ants’ arguments that they are not entities capable of being sued under
Kansas law. Section II.C. considers Hulett’s Section 1983 claims
against all the defendants. Finally, Section II.D. evaluates Hulett’s re-
maining state-law claims.
A
The individual defendants and Johnson County assert that Hulett’s
claims against them should be dismissed for lack of personal jurisdic-
tion because Hulett’s attempt to serve them was improper. Doc. 17 at
3–4, 7–8; see also Fed. R. Civ. P. 12(b)(5). The record confirms their
position. See Albers v. Bd. of Cnty. Comm’rs of Jefferson Cnty., Colo., 771
F.3d 697, 702 n.6 (10th Cir. 2014) (explaining that a defendant does
not waive an insufficient-service defense by asserting it in a motion to
dismiss before filing a responsive pleading).
1. Consider Johnson County first. To serve a local governmental
entity, a plaintiff may serve the municipality’s chief executive officer,
Fed. R. Civ. P. 4(j)(2)(A), or the plaintiff may follow the manner set
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forth by the law of the state in which the municipality sits, Fed. R. Civ.
P. 4(j)(2)(B). In Kansas, a plaintiff attempting to serve a county must
deliver the complaint and summons to “one of the county commis-
sioners, the county clerk, or the county treasurer.” Kan. Stat. Ann.
§ 60-304(d)(1).
Hulett did not meet the requirements to serve a local governmental
entity under Kansas law. He did not name any individual in his sum-
mons, let alone one of the three individuals that Section 60-304(d)(1)
authorizes to receive service on the county’s behalf. See Towers v. Unified
Gov. of Wyandotte Cnty., No. 24-4024, 2025 WL 2495319, at *5 (D. Kan.
Aug. 29, 2025) (finding that the plaintiff’s attempt at service was insuf-
ficient under Section 60-304(d)(1) where the plaintiff did not address
service to any of the officials listed by the statute); cf. Strong v. Laubach,
371 F.3d 1242, 1248 (10th Cir. 2004) (finding the plaintiff’s attempt at
service was sufficient where the plaintiff served one of the individuals
that state law authorized to accept service on a corporation’s behalf).
Nor did Hulett attempt to serve the county at the offices where
any of those three individuals work. Those offices are located at 111
South Cherry Street in Olathe, Kansas. See Wanjiku v. Johnson Cnty., 173
F. Supp. 3d 1217, 1234 (D. Kan. 2016) (indicating the address of John-
son County officials’ offices). Instead, the U.S. Marshals Service, using
the address Hulett provided, sent the summons by certified mail to the
Johnson County District Court at 150 West Santa Fe Street. Doc. 10
(listing the addresses Hulett provided for the defendants); Doc. 13-7
at 1 (indicating that the U.S. Marshals Service sent the summons to the
address that Hulett provided). That is insufficient under Kansas law.
See Zesiger v. Leavenworth Cnty., Kan., No. 25-2322, 2025 WL 2710724, at
*4 (D. Kan. Sep. 23, 2025) (applying Section 60-304(d)(1) to reach the
same result); Pemberton v. Patton, 673 F. App’x 860, 864 (10th Cir. 2016)
(citing Johnson v. U.S. Postal Serv., 861 F.2d 1475, 1479–80 (10th Cir.
1988) (noting that “the Marshals Service is not responsible for lack of
service where a plaintiff does not provide correct information required
for service”).
2. So, too, with the individual defendants. In Kansas, an individual
may be served at his or her place of business if and only if two thresh-
old requirements are met. Kan. Stat. Ann. § 60-304(a); Fisher v. DeCar-
valho, 314 P.3d 214, 218 (Kan. 2013). First, service must be attempted
at the individual’s dwelling or usual place of abode. Kan. Stat. Ann.
§ 60-304(a). Second, the plaintiff must file a return of service stating
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that residential service was refused or unclaimed and that there is a
known business address where the individual may be served. Id.
Hulett has not met the requirements for business-address service.
There is no indication or argument that Hulett attempted service at any
of the individual defendants’ residences or that he filed anything estab-
lishing that the residential service was refused or unclaimed. That con-
stitutes a failure of service. Fisher, 314 P.3d at 218 (noting that a filing
indicating that service was refused or unclaimed is one of the essential
requirements of the statute); Hukill v. Okla. Native Am. Dom. Violence
Coal., 542 F.3d 794, 802 (10th Cir. 2008) (relying on the Oklahoma
Supreme Court’s most recent interpretations of the state’s statute re-
garding service at an individual’s residence to conclude that the plain-
tiff failed to comply with the statute’s requirements); Hulett v. Ad-
ventHealth Shawnee Mission, No. 24-4040, 2025 WL 2495547, at *4 (D.
Kan. Aug. 29, 2025) (dismissing Hulett’s claims for the same reason).
* * *
These service defects justify dismissal of all claims against these
defendants. In some circumstances, a court might consider granting
leave to afford a litigant an opportunity to effectuate proper service.
Gregory v. United States/U.S. Bankruptcy Ct. for Dist. of Colo., 942 F.2d
1498, 1500 (10th Cir. 1991) (internal citation and quotation marks
omitted) (“The general rule is that when a court finds that service is
insufficient but curable, it generally should quash the service and give
the plaintiff an opportunity to re-serve the defendant.”). That option
is not available, however, when it would be futile. See id. In this case,
permitting such an opportunity would be futile because, as explained
below, Hulett failed to state a claim upon which relief may be granted.
Id. (finding that allowing time for the plaintiff to effectuate proper ser-
vice of process would be futile where the complaint was subject to
dismissal under Rule 12(b)(6)); accord Ngiendo v. Soc. Sec. Admin., 547 F.
App’x 913, 914 (10th Cir. 2013).
B
Olathe Booking Center and Johnson County contend that all
claims against them should be dismissed because they are not entities
capable of suing or being sued under Kansas law. Doc. 17 at 6–7, 9–
10. The defendants’ position is sound.
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1. Olathe Booking Center asserts that it is a subordinate govern-
ment agency that lacks the capacity to be sued under Kansas law. Doc.
17 at 10. A municipality or a municipal agency’s capacity to be sued is
governed “by the law of the state where the court is located.” Fed. R.
Civ. P. 17(b)(3); Arbogast v. Kan., Dep’t of Labor, 789 F.3d 1174, 1179
(10th Cir. 2015). The Kansas Supreme Court has held that “subordi-
nate government agencies do not have the capacity to sue or be sued
in the absence of statute.” Hopkins v. State, 702 P.2d 311, 316 (Kan.
1985). Hulett has not identified any statute that would make Olathe
Booking Center an entity with the capacity to be sued under Kansas
law. As a result, his claims against it must be dismissed. See Mayfield v.
Harvey Cnty. Sheriff’s Dep’t, 732 F. App’x 685, 688 (10th Cir. 2018) (find-
ing a county sheriff’s department was not an entity capable of being
sued where the plaintiffs did not identify a statute giving it the capacity
to sue or be sued); Hulett v. Rodden, No. 24-1090, 2025 WL 1555033, at
*2 (D. Kan. June 2, 2025) (dismissing Hulett’s claims against Olathe
Booking Center for the same reason).
2. Nor can Johnson County be sued under Kansas law. Kansas law
requires that “[i]n all suits or proceedings by or against a county, the
name in which the county shall sue or be sued shall be ‘The board of
county commissioners of the county of ____________.” Kan. Stat.
Ann. § 19-105; Arbogast, 789 F.3d at 1179 (noting that a municipality’s
capacity to be sued is governed by state law). Although the Tenth Cir-
cuit has not addressed this issue, complaints are frequently dismissed
in the District of Kansas where a plaintiff attempts to sue a county by
naming the county itself, rather than its board of county commission-
ers. See Brantley v. Richards, No. 18-2651, 2020 WL 2306634, at * 4 (D.
Kan. May 8, 2020) (collecting cases). Because Hulett failed to name the
board of county commissioners, his suit is subject to dismissal under
K.S.A. § 19-105. See, e.g., Bennett v. Kansas, No. 24-3127, 2024 WL
4264193, at *4 (D. Kan. Sept. 23, 2024) (noting that Johnson County,
Kansas is not a proper entity that can be sued under Kansas law but
dismissing the plaintiff’s complaint on the ground that it failed to state
a claim); Hulett v. Rodden, No. 24-1090, 2025 WL 1555033, at *2 (D.
Kan. June 2, 2025) (noting that Hulett’s claims against Johnson County
were subject to dismissal for this same reason).
C
Invoking 42 U.S.C. § 1983, Hulett seeks damages for alleged First,
Fourth, and Fourteenth Amendment violations. Doc. 1 at 2. Section
1983 provides that “[e]very person who, under color of [state law,]
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subjects, or causes to be subjected, any citizen . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.” 42 U.S.C. § 1983. It creates
no substantive rights but merely provides a mechanism for enforcing
a right conferred by the Constitution or a federal statute. Gonzaga Univ.
v. Doe, 536 U.S. 273, 285 (2002); see also Health & Hosp. Corp. of Marion
Cnty. v. Talevski, 599 U.S. 166, 174–75 (2023).
Hulett makes several assertions related to his Section 1983 claim.
He alleges that each of the individual defendants personally violated
his constitutional rights, that the defendants conspired to violate his
rights, and that Johnson County is liable for the alleged violations be-
cause they occurred pursuant to an official policy or custom. See gener-
ally Doc. 17. None of Hulett’s arguments have merit.
1
The individual defendants invoke qualified immunity in response
to Hulett’s claims. Doc. 17 at 4–6. Qualified immunity attempts to bal-
ance competing interests. Suits against government actors allow those
wronged by government misconduct a method of redress. See Anderson
v. Creighton, 483 U.S. 635, 638 (1987) (citing Harlow v. Fitzgerald, 457
U.S. 800, 814 (1982)). But non-meritorious suits exact a high cost from
society and government officials by unduly interfering with the dis-
charge of official duties. See id.; see also Horstkoetter v. Dep’t of Pub. Safety,
159 F.3d 1265, 1277 (10th Cir. 1998). So government officials per-
forming discretionary duties are immune from suit when their conduct
does not violate clearly established statutory or constitutional rights of
which a reasonable official would have been aware. See Pearson v. Calla-
han, 555 U.S. 223, 231 (2009); see also Johnson v. City of Shelby, 574 U.S.
10, 11 (2014) (recognizing municipalities may not rely on their officers’
entitlement to qualified immunity). Whether an official is immune
turns on the objective reasonableness of the official’s actions, consid-
ering the laws clearly established at the time the official acted. See Mes-
serschmidt v. Millender, 565 U.S. 535, 546 (2012). Objective reasonable-
ness is not an exacting standard; qualified immunity protects all but the
plainly incompetent or those who knowingly violate the law. See White
v. Pauly, 580 U.S. 73, 79 (2017); Malley v. Briggs, 475 U.S. 335, 341 (1986).
The analytical framework for the invocation of qualified immunity
at the Rule 12 stage is settled. See, e.g., City of Tahlequah, Okla. v. Bond,
595 U.S. 9, 12 (2021) (per curiam); Rivas-Villegas v. Cortesluna, 595 U.S.
1, 5 (2021) (per curiam). First, the complaint must allege conduct that,
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assuming the allegations are true, violates the Constitution or laws of
the United States. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). Second,
the law must have been clearly established at the time of the alleged
conduct such that the defendant had fair notice that his or her conduct
was unlawful. See District of Columbia v. Wesby, 583 U.S. 48, 63 (2018). If
both inquiries are answered in the affirmative, the motion to dismiss
must be denied. But, if the answer to either is no, the defendant is
entitled to judgment as a matter of law. Hemry v. Ross, 62 F.4th 1248,
1253 (10th Cir. 2023).3
Hulett asserts that the defendants violated his First, Fourth, and
Fourteenth Amendments. Doc. 1 at 2. But he has not plausibly alleged
that the defendants’ conduct violated the Constitution or laws of the
United States, so the defendants are entitled to qualified immunity.4
a. Hulett first alleges that the defendants retaliated against him for
engaging in conduct protected by the First Amendment. Doc. 1 at 2.
Construed generously, Hulett alleges that the law-enforcement defend-
ants unlawfully arrested, detained, and otherwise mistreated him after
or while he engaged in activity that the First Amendment protects. Id.
at ¶ 9. Specifically, he alleges that the defendants mistreated him after
he exercised his First Amendment right to visit a public library and
express statements “to the effect of ‘This is a free Nation!’ and other
similar words.” Id. And regarding the emergency medical technicians,
Hulett alleges that Hannah Foster falsified his medical records and
snatched a blood-pressure cuff off his arm because he did not sign a
consent form. Id. The other technician, Nathan Stavig, allegedly
3 Courts have discretion to address the inquiries in any order, as courts must
“think carefully before expending ‘scarce judicial resources’ to resolve diffi-
cult and novel questions of constitutional or statutory interpretation that will
‘have no effect on the outcome of the case.’” al-Kidd, 563 U.S. at 735 (quoting
Pearson v. Callahan, 555 U.S. 223, 236 (2009)); Kisela v. Hughes, 584 U.S. 100,
103–04 (2018).
4 And, even if he had, Hulett has not identified any law that clearly established
that the defendants’ conduct was unlawful. VDARE Found. v. City of Colorado
Springs, 11 F.4th 1151, 1175 (10th Cir. 2021) (declining to reach the second
prong of qualified immunity regarding clearly established law after finding
that the plaintiff could not meet its burden to plausibly allege a constitutional
violation); Quinn v. Young, 780 F.3d 998, 1013 (10th Cir. 2015) (noting that
the plaintiff has the burden to identify clearly established law to defeat an
officer’s assertion of qualified immunity).
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threatened to call the police because Hulett was expressing statements
related to the legal obligations of emergency medical professionals. Id.
Hulett’s allegations fall short. To state a First Amendment retalia-
tion claim, he must show three things. One, that he “was engaged in
constitutionally protected activity.” Irizarry v. Yehia, 38 F.4th 1282,
1288 (10th Cir. 2022) (quoting Worrell v. Henry, 219 F.3d 1197, 1212
(10th Cir. 2000)). Two, that “the defendant’s actions caused [him] to
suffer an injury that would chill a person of ordinary firmness from
continuing to engage in that activity.” Id. And three, that “the defend-
ant’s adverse action was substantially motivated as a response to [his]
exercise of constitutionally protected conduct.” Id.
Even assuming Hulett engaged in protected activity, he has not
plausibly alleged the second element of a retaliation claim—that the
defendants retaliated against him because he engaged in that activity.
Most of Hulett’s allegations are simply conclusory statements that the
defendants retaliated against him for engaging in protected expression.
See Doc. 1 at ¶ 9. For example, Hulett states: “The plaintiff asserts re-
taliation in that his speech was suppressed, not accepted, and resulted
in retaliation. . . .” Id. at 1. These are the exact kind of conclusory alle-
gations that cannot be considered. See VDARE Found. v. City of Colo-
rado Springs, 11 F.4th 1151, 1172–73 (10th Cir. 2021) (affirming the dis-
missal of a First Amendment retaliation claim that including nothing
more than bare conclusions without any facts suggesting why or how
the defendant’ conduct would have chilled a person of ordinary firm-
ness from engaging in protected activity); see also Harrell v. Lira, No. 24-
8011, 2025 WL 251832, at *3 (10th Cir. Jan. 21, 2025) (affirming dis-
missal of a pro se plaintiff’s First Amendment retaliation claim because
the plaintiff failed to allege specific facts showing that the government
officials retaliated against him because he exercised his constitutional
rights).
Having disregarded Hulett’s conclusory allegations, all that remains
are Hulett’s statements that the alleged constitutional violations hap-
pened while or soon after Hulett engaged in protected activity. Hulett
states, for example, that the law-enforcement defendants “unlawfully
detained, battered, searched and arrested” him . . . after Mr. Hulett en-
gaged in expression protected by the First Amendment, exclaiming
words to the effect of ‘This is a free Nation!’ and other similar words.”
Doc. 1 at ¶ 9 (emphasis added). These allegations are insufficient to
plausibly allege the retaliatory motive that the First Amendment re-
quires. See Trant v. Oklahoma, 754 F.3d 1158, 1170 (10th Cir. 2014)
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(“Temporal proximity between the protected speech and the alleged
retaliatory conduct, without more, does not allow for an inference of
a retaliatory motive.”); see also Guy v. Lampert, 748 F. App’x 178, 181
(10th Cir. 2018) (affirming the dismissal of a First Amendment retali-
ation claim where the plaintiff did not plead anything more than tem-
poral proximity and conclusory allegations because such facts were in-
sufficient to support a plausible inference of retaliatory motive).
Hulett’s claim against Foster and Stavig is subject to dismissal for
an additional reason. Specifically, he has not alleged facts that would
satisfy the third element of a First Amendment retaliation claim—that
the defendants’ conduct would chill a person of ordinary firmness
from engaging in protected activity. Hulett states that Foster placed
inaccurate information in his medical records and snatched a blood-
pressure cuff off his arm, and that Stavig threatened to call the police
and laughed at him when they arrived at the hospital. Doc. 1 at ¶ 9.
These allegations, even if true, would not chill the actions of a person
of ordinary firmness from continuing to engage in the type of activity
Hulett was engaged in—e.g., visiting a public library, making state-
ments about medical professionals’ legal obligations, and expressing
things like “This is a free Nation!” See Smith v. Plati, 258 F.3d 1167,
1177 (10th Cir. 2001) (finding that restrictions on a plaintiff that made
it more difficult for him to publish an internet site would not affect an
ordinary person’s ability to maintain a website); Eaton v. Meneley, 379
F.3d 949, 955–56 (10th Cir. 2004) (finding that a person of ordinary
firmness would not be chilled from continuing to criticize a sheriff’s
conduct after the sheriff ran a background check on them for doing
so); Benavidez v. Howard, 931 F.3d 1225, 1233 (10th Cir. 2019) (noting
that being named as a defendant in a lawsuit or being subject to a pro-
tective order would not chill a person of ordinary firmness from con-
tinuing to engage in protected speech).
b. Hulett next asserts a Fourth Amendment claim against the de-
fendants. Doc. 1 at 2. That claim has two facets. One is that Hulett’s
allegation that the law-enforcement defendants arrested him without
probable cause. Id. at ¶ 9. The other is that the same defendants applied
excessive force against him during that arrest. Id.
First, Hulett has not plausibly alleged that the defendants arrested
him without probable cause. A Fourth Amendment false-arrest claim
requires a plaintiff to allege facts that establish both that a seizure oc-
curred and also to permit the conclusion that the seizure was unrea-
sonable. Thomas v. Durastanti, 607 F.3d 655, 663 (10th Cir. 2010). An
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13
arrest constitutes an unreasonable seizure if “the arresting officer[s]
acted in the absence of probable cause that the person had committed
a crime.” Cronick v. Pryor, 99 F.4th 1262, 1268 (10th Cir. 2024) (quoting
Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012)).
Hulett repeatedly states that the law-enforcement defendants un-
lawfully arrested, seized, searched, and detained him, among other
things. See Doc. 1 at ¶ 9. These allegations are conclusory statements
containing no facts suggesting that an unreasonable search or seizure
occurred. As a result, Hulett failed to allege facts that establish not only
that he was seized, but also to permit the conclusion that the seizure—
his arrest—was unreasonable. See Thomas, 607 F.3d at 663; Smith v. Plati,
258 F.3d 1167, 1176 (10th Cir. 2001) (affirming the dismissal of a com-
plaint that contained conclusory allegations of a false arrest because
the plaintiff “failed to allege sufficient facts to support the pleading
requirements for an unconstitutional detention”).
Second, Hulett’s excessive-force claim fails. The Fourth Amend-
ment protects an arrestee’s “right to be free from excessive force dur-
ing an arrest if the officer’s actions were not ‘objectively reasonable’ in
light of the facts and circumstances confronting him.” McCowan v. Mo-
rales, 945 F.3d 1276, 1283 (10th Cir. 2019) (citing Est. of Ceballos v. Husk,
919 F.3d 1204, 1213 (10th Cir. 2019)). It is objectively reasonable for
officers to use some force in the course of an arrest, like handcuffing
the arrestee or placing him or her into a patrol vehicle. Cortez v.
McCauley, 478 F.3d 1108, 1128 (10th Cir. 2007); see also Graham v. Con-
nor, 490 U.S. 386, 396 (1989). When an excessive-force claim “includes
a challenge to the ‘[m]anner or course of handcuffing,’” the plaintiff
must show not only that the officers’ use of force was unreasonable,
but also that he or she suffered “some non-deminimis actual injury.”
Donahue v. Wihongi, 948 F.3d 1177, 1196–97 (10th Cir. 2020).
Hulett’s only allegation to support his excessive-force claim is that
the officers “painfully contorted and applied pressure to his wrist and
shoulder, causing those areas of his body significant injury.” Id. at ¶ 12.
He also states that those injuries caused him to have a panic attack. Id.
Hulett’s allegations are insufficient to permit the conclusion that the
officer applied unreasonable force beyond the type of force that “an
arrest or investigatory stop necessarily carries with it.” Graham, 490
U.S. at 396; Cortez, 478 F.3d at 1128 (finding that the use of force to
grab the arrestee and place him in the patrol car was objectively rea-
sonable); see also Segura v. Jones, 259 F. App’x 95, 103 (10th Cir. 2007)
(concluding that an officer’s use of force was reasonable when the
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14
officer pushed an arrestee against the wall while arresting her). Nor do
his statements that he had a panic attack and “significant injury” sup-
port that Hulett suffered the type of non-deminimis injury necessary
to state a Fourth Amendment claim based on an officer’s use of exces-
sive force while handcuffing an arrestee. See Donahue v. Wihongi, 948
F.3d 1177, 1196–97 (10th Cir. 2020) (collecting cases that found no
handcuffing injury sufficient to implicate the Fourth Amendment
where there were red marks for days afterwards or superficial abra-
sions).
Finally, to the extent Hulett’s Fourth Amendment claim implicates
the emergency medical technicians, it fails. Hulett makes no allegations
that Foster and Stavig—the medical team summoned to the scene to
provide Hulett medical care—searched or seized him or his property,
much less that they did so unreasonably. See Bowman v. Friedman, No.
23-2115, 2024 WL 1298883, at *3 (10th Cir. Mar. 27, 2024) (affirming
dismissal of a pro se plaintiff’s complaint where she did not allege that
a seizure occurred).
c. Hulett’s third constitutional claim implicates the Fourteenth
Amendment. Doc. 1 at 2. The defendants argue that Hulett’s Four-
teenth Amendment claims fail because he relies on the same allegations
of government conduct that his First and Fourth Amendment claims
cover—that the defendants unlawfully detained and arrested him with-
out probable cause and retaliated against him for engaging in constitu-
tionally protected expression. Doc. 17 at 10. Once again, the defend-
ants’ arguments are sound.
The Fourteenth Amendment’s due-process protections “are not a
fallback to protect interests more specifically addressed” by other con-
stitutional amendments. Becker v. Kroll, 494 F.3d 904, 918–19 (10th Cir.
2007). Indeed, the Fourteenth Amendment is not a font of tort law.
Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 768–69 (2005) (quot-
ing Parratt v. Taylor, 451 U.S. 527, 544 (1981)). Rather, where another
constitutional amendment “provides an explicit textual source of con-
stitutional protection” against a specific type of government conduct,
that specific amendment guides the analysis rather than the Fourteenth
Amendment’s substantive due process component. Albright v. Oliver,
510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)). That is the case here: The First and Fourth Amendments cover
the governmental conduct that Hulett alleges, so his Fourteenth
Amendment claims fail as a matter of law. See Shimomura v. Carlson, 811
F.3d 349, 362 (10th Cir. 2015) (finding that the Fourteenth
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15
Amendment was not the appropriate source for an individual’s allega-
tions that the government deprived him of his physical liberty because
the Fourth Amendment covered that conduct); see also Kiser v. Kamdar,
831 F.3d 784, 791 (6th Cir. 2016) (applying Graham and Albright to
conclude that the Fourteenth Amendment’s substantive due process
protection was not the appropriate source for a First Amendment free-
speech claim).
d. Hulett also alleges that the defendants conspired among one
another to violate his constitutional rights. Doc. 1 at 2. Not so. There
is no free-standing conspiracy claim under Section 1983. See Dixon v.
City of Lawton, 898 F.2d 1443, 1449 n.6 (10th Cir. 1990). Instead, con-
spiracy in the context of Section 1983 is a means by which multiple
actors can be liable for the same underlying constitutional violation. Id.
Because Hulett did not plausibly allege an underlying constitutional vi-
olation, he has not stated a claim for relief based on conspiracy liability.
See Hinkle v. Beckham Cnty. Bd. of Cnty. Comm’rs, 962 F.3d 1204, 1231
(10th Cir. 2020) (affirming the dismissal of a Section 1983 claim that
defendants conspired to make a false arrest because the plaintiff failed
to plausibly allege the underlying constitutional violation of a false ar-
rest).
2
Hulett also brought his Section 1983 claim against Johnson
County. Doc. 1 at 2. In particular, he states that the individual defend-
ants violated his constitutional rights pursuant to a municipal policy or
custom and that Johnson County is liable for failing to train and su-
pervise its employees. Id. at 2, ¶¶ 5–9. Hulett’s arguments fail because,
as more fully explored above, none of Johnson County’s employees
violated Hulett’s constitutional rights. See supra Section II.C.1. This
precludes imposing liability on the municipal entity. See Frey v. Town of
Jackson, 41 F.4th 1223, 1239 (10th Cir. 2022) (dismissing a municipal
liability claim because the plaintiff did not allege an underlying consti-
tutional violation and therefore could not “recover simply because
some municipal policy might have authorized an officer to violate the
Constitution”); Crowson v. Wash. Cnty. Utah, 983 F.3d 1166, 1187 (10th
Cir. 2020) (noting that failure-to-train liability requires an underlying
constitutional violation by one of the municipality’s employees).
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16
D
Hulett brings several state-law claims against the defendants.5 Doc.
1 at 2, ¶¶ 7–12. Those claims fail for two independent reasons.
1. The defendants contend that Hulett failed to plead a mandatory
condition precedent before filing suit against a municipality and its em-
ployees. Doc. 17 at 11–12. Under Kansas law, a plaintiff must provide
notice before he or she sues a Kansas county or its employees. Kan.
Stat. Ann. § 12-105b(d). Kansas courts treat this requirement as juris-
dictional. See Whaley v. Sharp, 343 P.3d 63, 67 (Kan. 2014) (recognizing
that notice “is required before a court has subject matter jurisdiction
over a tort claim against a municipality”). So, too, do Kansas federal
courts applying that law. See, e.g., Von Busch v. Giordano, No. 23-4111,
2025 WL 238921, at *4 (D. Kan. Jan. 17, 2025).
To establish jurisdiction, the plaintiff must affirmatively plead that
he or she complied with that requirement. See Wanjiku, 173 F. Supp.
3d at 1236 (explaining that Section 12-105b’s notice requirement is a
condition precedent to filing suit against a municipality that must be
pled under Fed. R. Civ. P. 9(c)). Hulett’ complaint, however, fails to
allege compliance with Kansas’s notice requirement before filing suit
against Johnson County and its employees. Dismissal is therefore re-
quired. Garman v. Campbell Cnty. Sch. Dist. No. 1, 630 F.3d 977, 986 (10th
Cir. 2010) (affirming dismissal based on the failure to plead a state-law
5 Hulett listed Medicare fraud as one of his state-law claims. Doc. 1 at 2. It is
unclear what cause of action Hulett is referring to, even assuming he is at-
tempting to bring a federal claim. That alone is enough to dismiss Hulett’s
fraud claim. See Firstenberg v. City of Santa Fe, 696 F.3d 1018, 1024 (10th Cir.
2012) (explaining that a pro se plaintiff’s complaint cannot be rewritten “to
include claims that were never presented” even though pro se litigants’ plead-
ings are construed liberally). In any event, to the extent that Hulett attempts
to bring any type of fraud claim against the defendants, his sole allegation
that Foster and Stavig falsified his medical records does not amount to the
specificity required by Federal Rule of Civil Procedure 9(b). See Andrews v.
Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007) (finding that a pro se plaintiff’s
“conclusory allegations of fraud failed to come anywhere near satisfying the
specificity requirements” of Rule 9(b) even when construed generously);
United States ex rel. Sorenson v. Wadsworth Bros. Constr. Co., 48 F.4th 1146, 1156
(10th Cir. 2022) (finding allegations of fraud insufficient where they did not
specifically state who engaged in fraudulent activity and what the allegedly
false representations were).
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17
condition precedent when the plaintiff did not request to file an
amended complaint); See Rodden, 2025 WL 1555033, at *4 (dismissing
Hulett’s claims for failure to plead compliance with Section 12-105b).
2. Even if Hulett had plausibly alleged compliance with Section 12-
105b, dismissal of his state-law claims would be proper because all of
Hulett’s federal claims have been dismissed. Federal courts “should
normally dismiss supplemental state law claims after all federal claims
have been dismissed, particularly when the federal claims are dismissed
before trial.” I Dig Tex., LLC v. Creager, 98 F. 4th 998, 1012 (10th Cir.
2024) (citations omitted); see also Foxfield Villa Assocs., LLC v. Robben,
967 F.3d 1082, 1102–03 (10th Cir. 2020) (affirming dismissal of “co-
pious state law issues” on supplemental jurisdiction grounds where the
federal claim had been dismissed). This conclusion acknowledges that
“notions of comity and federalism demand that a state court try its own
lawsuits, absent compelling reasons to the contrary.” Brooks v. Gaenzle,
614 F.3d 1213, 1230 (10th Cir. 2010) (quoting Ball v. Renner, 54 F.3d
664, 669 (10th Cir. 1995)) (alteration omitted). Because no federal
claims remain, Hulett’s supplemental claims will be dismissed too.
III
For the foregoing reasons, Defendants’ Motion to Dismiss, Doc.
16, is GRANTED.
It is so ordered.
Date: November 26, 2025 s/ Toby Crouse
Toby Crouse
United States District Judge
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