Knight vs. Northstar Property Management, LLC

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PHYLLIS M. KNIGHT, )
)
Plaintiff, )
)
v. ) Case No. 25-1141- TC-GEB
)
NORTHSTAR PROPERTY )
MANAGEMENT, LLC and )
KOBY MACKEY. )
)
Defendants. )
)
NOTICE AND REPORT AND RECOMMENDATION
Plaintiff filed her Complaint (ECF No. 1) on July 2, 2025, and simultaneously filed
a Motion to Proceed without Prepayment of Fees (ECF No. 3, sealed). For the reasons set
forth herein, the Court RECOMMENDS Plaintiff’s Motion to Proceed Without
Prepayment of Fees (ECF No. 3, sealed) be DENIED and further RECOMMENDS
DISMISSAL of Plaintiff’s claims (ECF No. 1), for lack of subject matter jurisdiction and
failure to state a claim and directs service be stayed pending review of this Report and
Recommendation.
I. NOTICE
Within fourteen (14) days after Plaintiff is served with a copy of this Report and
Recommendation, she may, pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P.
72(b)(2) file written objections to the same. Plaintiff must file any objections within the
time prescribed in the event she seeks appellate review of the proposed findings of fact,
conclusions, of law, or recommended disposition.
Case 6:25-cv-01141-TC-GEB Document 6 Filed 03/03/26 Page 1 of 10

2
II. Background1
Plaintiff filed her initial Complaint naming Northstar Property Management, LLC
and Koby Mackey of the Wichita Police Department as Defendants. The Complaint alleges
violations of K.S.A. 58-2571(b), 42 U.S.C. § 1983, and the Fourth and Fourteenth
Amendments to the Constitution based on a landlord dispute Plaintiff had in May 2025
involving a repair that she alleges resulted in an unreasonable entry to her apartment and
injury to her and her property. Plaintiff filed her financial affidavit along with the present
motion on July 2, 2025.2
III. Recommendation of Denial of Plaintiff’s Motion for Leave to Proceed In Forma
Pauperis (ECF No. 3)
Pursuant to 28 U.S.C. § 1915(a), the Court has discretion to authorize filing of a
civil case “without prepayment of fees or security thereof, by a person who submits an
affidavit that . . . the person is unable to pay such fees or give security thereof.”3
“Proceeding in forma pauperis in a civil case ‘is a privilege, not a right—fundamental or
otherwise.’”4 The decision to grant or deny in forma pauperis status is within the sound
1 Unless otherwise indicated, the information recited in this section is taken from the Complaint
(ECF No. 1). This background information should not be construed as judicial findings or factual
determinations.
2 ECF No. 3-1, sealed.
3 Barnett ex rel. Barnett v. Northwest. Sch., No. 00-2499-KHV, 2000 WL 1909625, *1 (D. Kan.
Dec. 26, 2000) (citing Cabrera v. Horgas, No. 98-4231, 173 F.3d 863, *1 (10th Cir. Apr. 23,
1999)).
4 Id. (quoting White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998)).
Case 6:25-cv-01141-TC-GEB Document 6 Filed 03/03/26 Page 2 of 10

3
discretion of the court.5 In civil cases for damages, the position of courts in this District is
to grant in forma pauperis status sparingly.6
To determine whether a party is eligible to file without prepayment of the filing fee,
the Court reviews the party’s financial affidavit and compares his or her monthly expenses
with the monthly income disclosed therein.7 To succeed on a motion to proceed in forma
pauperis, a party must show a financial inability to pay the required filing fees. The filing
fee is currently $405. Plaintiff’s financial affidavit reflects that her monthly income, albeit
barely, exceeds her monthly expenses. As such, the law requires the Court find she has the
ability to pay the filing fee. This same finding was made and affirmed in a previous matter
involving pro se Plaintiff, Case No. 23-1193-DDC-GEB.
However, a magistrate judge does not have authority under 28 U.S.C. § 636 to deny
a motion to proceed without prepayment of fees.8 Accordingly, the undersigned Magistrate
Judge RECOMMENDS Plaintiffs’ Motion (ECF No. 3, sealed) be DENIED. In the event
any claims are permitted to proceed, the undersigned further recommends Plaintiff be
allowed to pay the filing fee in seven monthly payments of $50.00, and an eighth payment
of $55.00. Even though such payments could be challenging to Plaintiff, the payment
5 Patillo v. N. Am. Van Lines, No. 02-2162-JWL, 2002 WL 1162684, at *1 (D. Kan. Apr. 15, 2002)
(citing Cabrera v. Horgas, No. 98-4231, 1999 WL 241783, at *1 (10th Cir. Apr. 23, 1999)).
6 Scherer v. United States, No. 01-2428-JWL, 2001 WL 1516736, at *1 (D. Kan. Nov. 7, 2001)
(citing Barnett, 2000 WL 1909625, at *1); Forrester v. Via Christi St. Joseph & ITS Reps., No.
97-1243-MLB, 1997 WL 557329, at *1 (D. Kan. June 10, 1997)).
7 Alexander v. Wichita Hous. Auth., No. 07-1149-JTM, 2007 WL 2316902, *1 (D. Kan. Aug. 9,
2007) (citing Patillo, 2000 WL 1162684, at *1 and Webb v. Cessna Aircraft, No. 00-2229-JWL,
2000 WL 1025575, *1 (D. Kan. July 17, 2000)).
8 Lister v. Dept. of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (the denial of plaintiff’s motion
to proceed in forma pauperis is a dispositive matter and the magistrate judge should issue a report
and recommendation for de novo review by the district judge).
Case 6:25-cv-01141-TC-GEB Document 6 Filed 03/03/26 Page 3 of 10

4
schedule is warranted here, and the undersigned does not find installment payments to be
an undue burden on Plaintiff.
IV. Recommendation of Dismissal of Plaintiff’s Complaint (ECF No. 1) for Failure
to State a Claim
When a party seeks to proceed without the prepayment of fees, the in forma pauperis
statute, 28 U.S.C. § 1915, requires the court to screen the party’s complaint. Under § 1915,
sua sponte dismissal of this case is required if the court determines the action: 1) is
frivolous or malicious; 2) fails to state a claim upon which relief may be granted; or 3)
seeks relief from a defendant who is immune from suit. The purpose of § 1915(e) is “the
prevention of abusive or capricious litigation.”9 After application of these standards, the
undersigned Magistrate Judge recommends dismissal of Plaintiff’s claims.
After a thorough review of the record, the Court finds Plaintiff’s Complaint is
subject to dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). As an
initial consideration, it appears this Court lacks jurisdiction over Plaintiff's claim under
K.S.A. 58-2571(b). Federal courts are courts of limited jurisdiction that require a statutory
basis for their jurisdiction.10 Plaintiff provides no factual basis for the exercise of federal
jurisdiction over what appears, factually, to be a state law landlord/tenant dispute. Based
9 Harris v. Campbell, 804 F. Supp. 153, 155 (D. Kan. 1992) (quoting Neitzke v. Williams, 490 U.S.
319, 324 (1989) (citing language contained in § 1915(d), prior to the statute’s amendment in
1996)).
10 See Perry v. Cowley County Cmty. Coll., No. 13-1425-JTM, 2013 WL 6804185, at *1 (D. Kan.
Dec. 23, 2013) (discussing the two statutory bases for federal subject-matter jurisdiction: federal
jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332) (citing
Nicodemus v. Union Pac. Corp., 318 F.3d 1231, 1235 (10th Cir. 2003)).
Case 6:25-cv-01141-TC-GEB Document 6 Filed 03/03/26 Page 4 of 10

5
on the information provided in the Complaint, it is recommended the Court dismiss
Plaintiff's Complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(1).11
Plaintiff also has not established a claim under 42 U.S.C. § 1983. Fed. R. Civ. P.
8(a)(2) requires that a complaint include a “short and plain statement of the claim showing
that the pleader is entitled to relief.” This requires the complaint state more than “labels
and conclusions” and “[f]actual allegations must be enough to raise a right to relief above
the speculative level.”12 Because Plaintiff proceeds pro se, her pleadings must be liberally
construed.13 However, she still bears the burden to allege “sufficient facts on which a
recognized legal claim could be based”14 and the Court cannot “take on the responsibility
of serving as [her] attorney in constructing arguments and searching the record.”15 Finally,
Fed. R. Civ. P. 8 “demands more than naked assertions.”16
Under Fed. R. Civ. P. 8(a), every complaint must contain three minimal pieces of
information: 1) the pleading should contain a short and plain statement of the claim
showing Plaintiff is entitled to relief; 2) a short and plain statement of the grounds for the
Court’s jurisdiction; and 3) a statement of the relief requested. If any of these requirements
are absent, even after providing a liberal construction to Plaintiff’s Complaint, the court “is
11 See Greene v. Sprint Nextel Corp., 750 Fed. Appx. 661 (10th Cir. 2018).
12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
13 Hall v. Bellmon, 935 F. 2d 1106, 1110 (10th Cir. 1991).
14 Id.
15 Mays v. Wyandotte County Sheriff's Dep’t, 419 F. App’x 794, 796 (10th Cir. 2011) (internal
edits omitted) (citing Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005)).
16 Cohen v. Delong, 369 F. App’x 953, 957 (10th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662
(2009)).
Case 6:25-cv-01141-TC-GEB Document 6 Filed 03/03/26 Page 5 of 10

6
compelled to recommend that the action be dismissed.”17 Mere “allegations of conclusions
or opinions are not sufficient when no facts are alleged by way of the statement of the
claim.”18
Plaintiff alleges violations of her Fourth and Fourteenth Amendment rights under
42 U.S.C. § 1983 (“Section 1983”), which provides a remedy for constitutional violations
committed by state officials.19 Liability attaches only to those individuals “acting under
color of law.”20 Accordingly, “the only proper defendants in a Section 1983 claim are those
who ‘represent [the state] in some capacity, whether they act in accordance with their
authority or misuse it.’”21 To state a claim under Section 1983, a plaintiff must allege a
violation of rights secured by the Constitution and laws of United States and must show
the alleged deprivation was committed by persons acting under color of state law.22 A
defendant in a Section 1983 suit acts under color of state law when a position given by the
state is abused.23
In order to help determine whether a private party may be considered a state actor
for purposes of a Section 1983 claim, the Tenth Circuit Court of Appeals has outlined four
tests: 1) the public function test; 2) the nexus test; 3) the symbiotic relationship test; and 4)
17 Snider v. Burton, No. 15-1043-JTM, 2015 WL 867423, at *2 (citing requirements under Rule
8), report and recommendation adopted, No. 15-1043-JTM, 2015 WL 1442096 (D. Kan. Mar. 30,
2015).
18 Id. (quoting Bryan v. Stillwater Bd. of Realtors, 578 F.2d 1319, 1321 (10th Cir.1977)); see also
Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984).
19 Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995).
20 Id.
21 Id. (citing National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 191, 109 S.Ct. 454,
462, 102 L.Ed.2d 469 (1988)).
22 West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2550 (1988).
23 Id. at 50.
Case 6:25-cv-01141-TC-GEB Document 6 Filed 03/03/26 Page 6 of 10

7
the joint action test.24 The public function test is shown when the state delegates to a private
party a function “traditionally exclusively reserved to the State,” this action transforms the
private party into a state actor.25 Generally, the public function test can be satisfied when
private parties do things like hold public elections or operate a municipality within a state.26
The nexus test requires a plaintiff to demonstrate “there is a sufficiently close nexus”
between the government and the challenged conduct such that the conduct “may be fairly
treated as that of the State itself.”27 Evidence that the state exercised “‘coercive power’
over the challenged action,” is typically used to satisfy the nexus test.28 The symbiotic
relationship test requires the state to “so far insinuate itself into a position of
interdependence” with a private party that “it must be recognized as a joint participant in
the challenged activity.”29 Private parties may have a symbiotic relationship with the state
when they get significant state funding or accept extensive state regulation of their
programs.30 Finally, state action is present per the joint action test when a private person is
a “willful participant in joint action with the State or its agents.”31 The joint action test is
24 Gallagher, 49 F.3d at 1442.
25 Id. at 1456 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 454
(1974)).
26 Marsh v. Alabama, 326 U.S. 501, 506–07 (1946); Winston v. Van Osdol, P.C., No. 21-2168-
KHV, 2021 WL 5083334, at *6 (D. Kan. Nov. 2, 2021).
27 Id. at 1448 (citing Jackson, 419 U.S. at 351).
28 Wittner v. Banner Health, 720 F.3d 770, 775 (10th Cir. 2013) (quoting Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001)); Sallaj v. Howard, No. 25-1119-DDC,
2026 WL 214346, at *7 (D. Kan. Jan. 27, 2026).
29 Id. at 1451 (See Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 862
(1961)); see also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175, 92 S.Ct. 1965, 1972, 32 L.Ed.2d
627 (1972)).
30 See Wittner, 720 F.3d at 778 (10th Cir. 2013).
31 Id. at 1453 (quoting Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185
(1980)).
Case 6:25-cv-01141-TC-GEB Document 6 Filed 03/03/26 Page 7 of 10

8
satisfied when courts find a substantial degree of cooperative action between state and
private officials, or if there is “overt and significant state participation” in carrying out the
deprivation of the plaintiff's constitutional rights, most often found in cases where a state
actor willfully participates in improper searches and seizures, like the improper tow of a
car.32
The Court, as required, has construed Plaintiff’s Complaint liberally.33 However, the
undersigned concludes there are no factual allegations which allow this Court to find a
Section 1983 claim against the Defendants. Plaintiff’s case centers on a dispute with her
landlord over entry into her rental property by a maintenance employee, apparently without
her consent. But Plaintiff makes no allegation that any type of governmental actor was
involved at any stage in her claim. There are no allegations supporting Northstar Property
Management, LLC is a state actor. The joint action test is likely the most applicable to
Plaintiff’s allegations, yet there are no facts pled that suggest the Defendants worked
together to exercise state power over Plaintiff. The Defendant, presumably, is a private
landowner unassociated with the state. Officer Koby Mackey is merely referenced in a
conclusory allegation claiming he assisted in the breaking and entry of Plaintiff’s home,
without any facts supporting his presence on the property in an official capacity, or any
actions he took involving the Plaintiff. Plaintiff simply does not provide any facts to allow
this Court to find a statutory basis for her Section 1983 claim or recommend it move
forward.
32 See Gallagher, 49 F.3d at 1454; Johnson v. Rodrigues, 293 F.3d 1196, 1205 (10th Cir. 2002).
33 Abdelsamed v. United States, 13 F. App’x 883, 884 (10th Cir. 2001).
Case 6:25-cv-01141-TC-GEB Document 6 Filed 03/03/26 Page 8 of 10

9
Fed. R. Civ. P. 8 does not require Plaintiff to state precisely each element of her
claims or describe every fact with specific detail, but it does require her to set forth
sufficient factual allegations on which a recognized legal claim could be based.34 Labels or
allegations of conclusions are insufficient when no facts are alleged.35 The absence of facts
to plausibly support Plaintiff’s claim makes it impossible for Defendants to have fair notice
of what is being alleged against them.36 Here, there are simply no facts that tend to support
the Defendants acted under color of state law to deprive Plaintiff of rights secured by the
Constitution.
A pro se complaint may be dismissed if it clearly fails to state a legally cognizable
claim, and it is not the court’s duty to become an advocate for the pro se litigant.37 The
absence of federal jurisdiction and facts to plausibly support Plaintiff’s claims results in a
failure to state a recognizable cause of action. Therefore, the Court RECOMMENDS
dismissal under 28 U.S.C. 1915(e)(2)(B)(ii) for failure to state a claim upon which relief
may be granted.38
34 Henderson v. Ojile, No. 97-4098-SAC, 1997 WL 723432, at *2 (D. Kan. Oct. 31, 1997); Hall,
935 F.2d at 1110.
35 Id.; Singleton v. Convergys Corp., No. 16-2614-DDC, 2016 WL 11397820, at *2 (D. Kan. Sept.
21, 2016).
36 Weaver v. City of Topeka, No. 94-4224-SAC, 1995 WL 783628, at *7 (D. Kan. Dec. 12, 1995),
aff’d, 103 F.3d 145 (10th Cir. 1996) (holding complaint offering no facts to support legal
conclusion fails to give defendants fair notice).
37 Hall at 1110.
38 See, e.g., El-Sattam v. Minnenger, No. 95-4180-SAC, 1995 WL 783206 (D. Kan. Nov. 16, 1995)
(dismissing complaint under Rule 8 for failure to allege facts supporting a recognized claim for
relief); Ferris v. Fed. Law, No. 97-4239-SAC, 1997 WL 833299 (D. Kan. Dec. 18, 1997) (same);
see also Weaver, 1995 WL 783628, at *7 (“The court should dismiss pro se claims ‘which are
supported only by vague and conclusory allegations.’”) (quoting Northington v. Jackson, 973 F.2d
1518, 1521 (10th Cir. 1992)).
Case 6:25-cv-01141-TC-GEB Document 6 Filed 03/03/26 Page 9 of 10

10
For the reasons described above, IT IS THEREFORE RECOMMENDED
Plaintiff’s Motion (ECF No. 3, sealed) be DENIED.
IT IS FURTHER RECOMMENDED In the event any claims are permitted to
proceed, Plaintiff be allowed to pay the filing fee in seven monthly payments of $50.00,
and an eighth payment of $55.00.
IT IS FURTHER RECOMMENDED Plaintiff’s Complaint (ECF No. 1) be
DISMISSED for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii).
IT IS FURTHER ORDERED no summons shall issue in this case until further
order of the Court.
IT IS SO ORDERED.
Dated this 3rd day of March 2026, at Wichita, Kansas.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
Case 6:25-cv-01141-TC-GEB Document 6 Filed 03/03/26 Page 10 of 10