McLain v. Sedgwick County Sheriff's Office et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL S. MCLAIN and ROSALEE
JANETTE MCLAIN,
Plaintiffs,
v. 	Case No. 25-04036-JWB
BOARD OF COUNTY COMMISISONERS
OF SEDGWICK COUNTY, KANSAS, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter is before the court on Defendants Mayor of Goddard, City Facebook
Administrator, and the City of Goddard’s (hereinafter “Goddard Defendants”) motion to dismiss
(Doc. 68.) The motion is fully briefed and ripe for decision. (Doc. 69, 71, 79.) This motion is
GRANTED for the reasons stated herein. As part of its analysis the court also DENIES as moot
Goddard Defendants’ motion to strike a surreply. (Doc. 82.) The court also DENIES outstanding
applications for entry of default, (Docs. 59, 63, 64), a motion for alternative service, (Doc. 66),
and a motion to strike an answer by Defendants Megan Baugh and SG Communities (hereinafter
“Leasing Defendants”). (Doc. 77.) Finally, the court DENIES Plaintiffs’ motion for leave to file
conventional exhibits. (Doc. 78.)
I. 	Facts and Procedural History
Plaintiffs Michael and Rosalee McClain filed this lawsuit on April 7, 2025, alleging
discrimination and civil rights violations against various city and county officials. (Doc. 1.) Over
the ensuing several months, Plaintiffs amended their complaint three times and have struggled to
properly serve the various Defendants. 	(Docs. 37, 40-48, 51-53, 55-57, 60, 65.) 	The Goddard
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 1 of 20

2
Defendants have been properly served and have filed a motion to dismiss in lieu of filing an answer
as permitted by Federal Rule of Civil Procedure (“FRCP”) 12(b). (Doc. 68.)
Plaintiffs bring this lawsuit alleging lease violations by their landlord and civil rights
violations by the City of Goddard and Sedgwick County. (Doc. 37 at 1–5.) Plaintiffs claim that a
registered sex offender moved into their mobile home community in violation of a covenant within
their lease. (Id. at 5.) Plaintiffs objected strongly to this, as they contend that lease provision is
part of the reason they had set out to live at this community. (Id. at 6.) Plaintiff Michael McLain
allegedly got into an altercation with the alleged registered sex offender. 	(Id.) A confrontation
with Sedgwick County sheriff’s deputies ensued and McClain was ultimately arrested. (Id. at 6-
7.) 	Mr. McClain explains that he has post-traumatic stress disorder (“PTSD”), and that certain
actions by the deputies during the confrontation triggered symptoms of PTSD. (Id. at 7.) Plaintiffs
claim that they tried to inform the deputies of Mr. McClain’s condition. (Id. at 8.) This allegedly
entitled Plaintiffs to reasonable accommodations under the ADA. 	(Id. at 7.) 	According to Mr.
McClain, those accommodations were never made, before, during, or after his arrest. (Id. at 7.)
Sometime after his arrest, Plaintiff Michael McClain was allegedly blocked from accessing
or posting on a Facebook page administered by the City of Goddard. (Id. at 12.) He claims that
this was in retaliation for his complaints about the alleged sex offender in his community and his
assertion of rights under multiple federal statutes before, during, and after his arrest by Sedgwick
County. 	(Id.) 	Plaintiffs’ complaints against the City of Goddard are premised upon an alleged
First Amendment violation stemming from the City’s blocking of Mr. McClain on Facebook. The
Goddard Defendants move to dismiss four counts of the Third Amended Complaint that pertain to
them. (Doc. 37.) The court grants this motion.
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 2 of 20

3
The court also addresses Plaintiffs’ attempts to serve Defendant Megan Baugh and
Defendant SG Communities (collectively the “Leasing Defendants”). Plaintiffs struggled to serve
the Leasing Defendants, and a dispute has arisen about proper service, an allegedly untimely
answer, and default. Plaintiffs moved for clerk’s entry of default, (Docs. 59, 63, 64), for alternative
service, (Doc. 66), to strike the Leasing Defendants’ allegedly untimely answer, (Doc. 77), and to
submit video recording exhibits as part of their motion to strike. (Doc. 78.) The court denies all
of the aforementioned motions.
II. 	Standard
A. 	Motion to Dismiss
To withstand a motion to dismiss for failure to state a claim under Rule 12(b)(6), a
complaint must contain enough allegations of fact to state a claim to relief that is plausible on its
face. 	Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007)). All well-pleaded facts and the reasonable inferences derived from
those facts are viewed in the light most favorable to Plaintiff. Archuleta v. Wagner, 523 F.3d 1278,
1283 (10th Cir. 2008). 	Conclusory allegations, however, have no bearing upon the court’s
consideration. 	Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007). 	Given
Plaintiffs’ pro se status, the court construes the pleadings liberally, but it cannot act as their
advocates or construct arguments on their behalf. Garrett v. Selby Connor Maddux & Janer, 425
F.3d 836, 840 (10th Cir. 2005) (citation omitted).
B. 	Clerk’s Entry of Default
Before filing a motion for default judgment, a party must file a motion for entry of default
with the Clerk of Court. Fed. R. Civ. P. 55(a). Only after the Clerk of Court issues an entry of
default may a plaintiff file a motion for default judgment against a party that has failed to plead or
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 3 of 20

4
otherwise defend an action brought against it. 	Fed. R. Civ. P. 55(b)(2); see also Olcott v. Del.
Flood Co., 327 F.3d 1115, 1119 n.4 (10th Cir. 2003) (distinguishing the Rule 55(a) entry of default
from the Rule 55(b) grant of default judgment; Watkins v. Donnelly, 551 F. App’x. 953, 958 (10th
Cir. 2014) (“Entry of default by the clerk is a necessary prerequisite that must be performed before
a district court is permitted to issue a default judgment.”). Entry of default is only granted “[w]hen
a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise.” Fed R. Civ. P. 55(a).
III. 	Analysis
A. Motion to Dismiss
The Goddard Defendants perceive four claims against them: (1) 42 U.S.C. § 1983 claims
under Monell v. Dep’t of Social Serv. of City of New York, 436 U.S. 658 (1978); (2) claims under
the Americans with Disabilities Act (“ADA”); (3) claims of retaliation under the ADA and Fair
Housing Act (“FHA”); and (4) claims under the Racketeer Influenced and Corrupt Organizations
(“RICO”) Act. (Doc. 69.) The court considers the parties’ arguments on each claim.
1. 	42 U.S.C. § 1983 Claims Against Local Governments Through Monell
Plaintiffs allege that the Goddard Defendants have a policy of retaliatory discrimination on
its Facebook platforms. (Doc. 37 at 12.) While Plaintiffs’ complaint is not a model of clarity, they
appear to claim that Goddard’s blocking of Mr. McClain from a Goddard Facebook page was a
retaliatory violation of their First Amendment rights. In Plaintiffs’ eyes, they complained about a
sex offender in their community, attempted to assert rights under the ADA and FHA with their
landlord and Sedgwick County, and then Goddard retaliated by blocking them on Facebook. The
First Amendment guarantees the right of the people to speak freely; it is made applicable to the
States through the Due Process Clause of the Fourteenth Amendment. Gitlow v. New York, 268
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 4 of 20

5
U.S. 652, 666 (1937). “A scheme of prior restraint gives ‘public officials the power to deny use
of a forum in advance of actual expression.’” 	American Target Advertising, Inc. v. Giani, 199
F.3d 1241, 1250 (10th Cir. 2000) (quoting Southeastern Promotions Ltd v. Conrad, 420 U.S. 546,
553 (1975)). 	Plaintiffs’ claims resemble those of a prior restraint. 	Because the Goddard
Defendants do not argue about whether a cognizable civil rights violation has occurred in their
briefs, the court assumes for the purpose of this order that one has. Even if Plaintiffs have plausibly
alleged a violation of their rights, Plaintiffs’ Monell claim falls well short of surviving the motion
to dismiss because Plaintiffs have failed to show that the alleged violation was undertaken pursuant
to an official policy.
Monell overrode a prior holding of the Supreme Court that held 42 U.S.C. § 1983 did not
apply to suits against local governments. 436 U.S. at 663. “When execution of a government's
policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts [an] injury [] the government as an entity is responsible
under § 1983.” Id. at 695. There are five ways to plead a Monell § 1983 claim:
(1) the municipality may be liable for a decision by its properly constituted legislative body;
(2) an official policy exists when the municipal board or agency exercises authority delegated
to it by a municipal legislative body;
(3) actions by those with final decision-making authority for the municipality constitute official
policy;
(4) the municipality may be liable for a constitutional violation resulting from inadequate
training when its failure to train the lawless employee reflects a deliberate indifference to the
plaintiff's constitutionally-protected rights; or
(5) the municipality's custom caused the constitutional violation.
Darr v. Town of Telluride, Colorado, 495 F.3d 1243, 1256-57 (10th Cir. 2007) (citing cases). The
Goddard Defendants allege that Plaintiffs have failed to plead facts under any of the available
avenues to properly plead a Monell claim. 	Instead, Plaintiffs state in conclusory fashion that
Goddard 	“established 	and 	maintained 	policies, 	practices 	and 	custom 	showing 	deliberate
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 5 of 20

6
indifference to the constitutional and statutory rights of persons within their jurisdiction.” (Doc.
37 at 14-15.) 	Plaintiffs then launch a barrage of different alleged policies, but none provide
sufficient detail for this court to find they are adequately pled. (Id. at 15.) The list fails to provide
information on what entity promulgated the alleged policy, when they did so, how it is enforced,
or any other details that would support a well-pleaded complaint. For example, Plaintiffs recite
with stunning brevity, the policy of “[e]ncouraging or permitting retaliation against individuals
who raise concerns about public safety or official misconduct.” (Id.)
Nothing that Plaintiffs offer in their response to the motion to dismiss helps either.
Plaintiffs point to an attached “Exhibit A” as “proving systematic coordination between City
officials (or persons acting on their behalf) and private parties to suppress citizen complaints across
multiple platforms.” (Doc. 71 at 3.) The court believes Plaintiffs are referring to Mr. McClain’s
inability to access the Goddard Facebook page.
Exhibit A is a screenshot from Facebook’s messaging function. (Doc. 71-1.) It purports
to show a woman named Samantha Blunck messaging another woman named Kayla, about a
Facebook post of Mr. McClain’s that Blunck did not approve to be posted in a community
Facebook group, apparently because it is unrelated to the topic of the group. 	(Id.) Ms. Blunck
also tells Kayla that she “just wanted you to have this screenshot in case you need it for anything.”
(Id.) It is largely this statement upon which Plaintiffs rest their Monell claims, but they plead no
other information that support claims of a policy that violates constitutional rights. Plaintiffs argue
that the exhibit “shows final policymaker-level coordination” when City of Goddard individuals
“used official information about Plaintiff’s arrest; applied content-based restrictions to suppress
community safety complaints; and coordinated with private parties using government-obtained
intelligence.” 	(Id.) 	The “casual nature” of the constitutional violation apparently showcases
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 6 of 20

7
deliberate indifference. (Id.) But nothing in the exhibit lends any support to the assertion that the
City’s actions in blocking the post from Facebook had anything to do with Plaintiff’s arrest or his
prior complaints.
The Goddard Defendants also suspect that Plaintiffs seek to raise a failure to train claim
under Monell. This would posit that the alleged constitutional violation (blocking on Facebook)
occurred because of Goddard’s failure to properly train its employees. 	“A municipality's
culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to
train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). This is because a policy of poor training is
a more “nebulous” assertion. Id. (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 822-23 (1985)).
To be cognizable, the alleged failure to train must show “deliberate indifference to the rights of
persons with whom the [untrained employees] come into contact.” Id. (quoting City of Canton,
Ohio v. Harris, 489 U.S. 378, 388 (1989)) (modification in original) (internal quotation marks
omitted). 	“Ordinarily, a plaintiff must prove a pattern of untrained employees’ constitutional
violations to show deliberate indifference.” 	George, on behalf of Bradshaw v. Beaver Cty., 32
F.4th 1246, 1253 (10th Cir. 2022).
Defendants argue that Plaintiffs have not met their burden. The court finds that Plaintiffs
fail to raise a single fact to support a claim of indifference to proper training. There is no alleged
prior history of constitutional violations or poor training; there is only the sparsely detailed
blocking on Facebook that occurred on one occasion. As explained in the preceding paragraphs,
Plaintiffs instead rest on the thin ice of conclusory assertions. (Doc. 37 at 15.) They merely restate
their perceived standards for a failure to train claim and state with no support, that the conduct
shown in Exhibit A demonstrates “complete ignorance of constitutional limits.” 	(Id.) 	This is
insufficient.
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 7 of 20

8
Plaintiffs lastly gesture at a single-incident liability failure to train claim by citing Zorn v.
City of Marion, 774 F.Supp.3d 1279 (D. Kan. 2025). Single-incident liability is a “narrow range”
of cases where “evidence of a pre-existing pattern of violations is unnecessary” because the
“unconstitutional consequences of a failure to train are highly predictable and patently obvious.”
George, 32 F.4th at 1253 (internal quotation marks and citations omitted). Put simply, the facts
Plaintiffs alleged are not those of a single violation that amounts to a policy of failure to train.
Based on the foregoing analysis the court concludes that Plaintiffs have not adequately pled
a claim under Monell and its progeny; as a consequence, its claims are dismissed as to the Goddard
Defendants.
2. 	ADA Claims
The Americans with Disabilities Act prohibits discrimination against disabled individuals
in various public and private settings. See e.g., 42 U.S.C. § 12132. Plaintiffs raise Title II ADA
claims that relate to their Kansas Open Records Act (“KORA”) request for information related to
Mr. McClain’s arrest. (Doc. 37 at 16.) The Goddard Defendants ask for dismissal of these claims
against them because they say that nothing in the ADA count references them or any conduct by
them. 	(Doc. 69 at 6-7.) 	Plaintiffs retort with three sentences, saying that there is a cognizable
ADA claim against the Goddard Defendants. 	(Doc. 71 at 3.) 	A review of the third amended
complaint reveals that the Goddard Defendants are correct, Count II (the ADA claim) does not
mention the Goddard Defendants or attribute any conduct to them. 	(Doc. 37 at 16.) 	In their
response to the motion to dismiss, Plaintiffs claim that their being blocked from a Goddard
Facebook page was “systematic retaliation against Plaintiffs based on their PTSD disabilities.”
(Doc. 71 at 3.) This one-line allegation is nowhere near sufficient to plead an ADA claim. See
Robertson v. Las Animas Cty. Seriff’s Dep’t., 500 F.3d 1185, 1193 (10th Cir. 2007) (“To state a
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 8 of 20

9
claim under Title II, the plaintiff must allege that (1) he is a qualified individual with a disability,
(2) who was excluded from participation in or denied the benefits of a public entity's services,
programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason
of a disability.”). Therefore, Plaintiffs’ ADA claims are dismissed as to the Goddard Defendants.
3. 	Retaliation Claims Under the ADA and FHA
Retaliation claims are a distinct species of claims under various federal laws. See e.g., 42
U.S.C. § 12303. They prohibit defendants from taking adverse actions against persons who are
asserting rights under the corresponding federal statute. See id. Here, Plaintiffs advance retaliation
claims under the ADA and FHA, claiming that their blocking on Facebook was retaliation for their
assertion of rights under each statute. 	The Goddard Defendants move for dismissal on both
retaliation claims. The court considers each claim.
a. 	ADA
Plaintiffs brought their ADA claims under Title II of the ADA. (Doc, 37 at 16.) They also
allege claims under the ADA’s anti-retaliation provisions codified at 42 U.S.C. § 12203. As an
initial matter it is important to point out, as Defendants do, that only public entities are subject to
suit under Title II of the ADA. 	City and Cty. of San Francisco v. Sheehan, 575 U.S. 600, 610
(2015). See also 42 U.S.C. § 12132, 12131(1) (“The term “public entity” means-- (A) any State
or local government; (B) any department, agency, special purpose district, or other instrumentality
of a State or States or local government; and (C) the National Railroad Passenger Corporation, and
any commuter authority.”).
Therefore, retaliation claims against non-public entities, here the Goddard City Facebook
Administrator and Mayor of Goddard, cannot survive. 	Retaliation under the ADA requires
“discriminat[ion] against any individual because such individual has opposed any act or practice
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 9 of 20

10
made unlawful by this chapter or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this chapter.” 	42
U.S.C. § 12203(a). Because Title II only makes conduct by public entities unlawful, by definition,
it is impossible for a non-public entity to “retaliate” for an individual’s opposition to “any act or
practice made unlawful by this chapter.” See 42 U.S.C. § 12203. 	Therefore, Plaintiffs’ claims
against the Mayor and Facebook Administrator are dismissed. 	Plaintiffs’ arguments to the
contrary are unpersuasive in light of the statutory language.
But the City of Goddard is subject to Title II of the ADA. 	Defendants contend that
Plaintiffs have not properly pled the elements of a retaliation claim premised on a violation of Title
II. (Doc. 69 at 7-8.) To state a retaliation claim a plaintiff must allege: “(1) that she engaged in
protected activity; (2) that she suffered a materially adverse action by [Defendants] either after or
contemporaneous with her protected activity; and (3) a causal connection between the protected
activity and the adverse action.” See Duvall v. Putnam City School Dist., 530 F. App’x. 804, 810
(10th Cir. 2013) (explaining elements for a claim for retaliation under section 504 of the
Rehabilitation Act of 1973, but courts have held that this provision is functionally identical to the
one in the ADA and thus their elements are the same. See Glenn, 2019 WL 5423728 at *4.).
Defendants rebut Plaintiffs’ complaint by claiming that there is no “causal connection”
between the allegedly adverse action and the protected activity. 	Duvall, 530 F. App’x. at 810.
According to Defendants, “Plaintiffs have failed to allege facts establishing that he was blocked
from Facebook as a result of any disability.” (Doc. 69 at 8.) The court agrees. A review of the
Third Amended Complaint’s count III shows sparse reference to the City of Goddard at all. (Doc.
37 at 16-18.) The only reference to a causal connection that could apply to the City of Goddard is
“close temporal proximity between the protected activities and adverse actions.” (Doc. 71 at 17.)
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 10 of 20

11
This is woefully inadequate to support a claim of retaliation as it is vague and does not connect the
exercise of allegedly protected conduct to the allegedly adverse action.
Even a broader reading of Plaintiffs’ complaint does not explain how requests for
reasonable accommodations made to Sedgwick County Sheriff’s Deputies led to alleged blocking
on Facebook by the City of Goddard. 	(Id.) 	Plaintiffs point to the “Exhibit A” that they have
attached to their response to Defendants’ motion to dismiss. 	(Doc. 71-1.) 	Assuming without
deciding that the court can consider this evidence at the motion to dismiss stage, it does not help
Plaintiffs’ case. The screenshot provided at Exhibit A shows a Facebook messenger screen which,
as explained above, purports to show someone acting on behalf of the City of Goddard, explaining
that she will not approve Plaintiffs’ post on a Facebook group. (Id.) In the message, the alleged
Goddard Facebook Administrator says “as I understand it, this is the guy who was arrested
yesterday…? I don’t personally know him, but he has submitted a post to the Goddard group. I
won’t approve it [because] it is not a community event or related business, but just wanted you to
have this screenshot in case you need it for anything.” (Id) (modification added). This message
does not show a causal connection between Plaintiffs’ alleged Facebook block and his request for
accommodations under the ADA.
As a result of the foregoing, Plaintiffs’ ADA retaliation claims against the Goddard
Defendants must fail.
b. 	FHA
The Fair Housing Act retaliation provision is contained at 42 U.S.C. § 3617 and provides
that: “It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the
exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 11 of 20

12
having aided or encouraged any other person in the exercise or enjoyment of, any right granted or
protected by section 3603, 3604, 3605, or 3606 of this title.”
In order to make out a prima facie case under Section 3617, plaintiff must demonstrate that
(1) she is a member of a protected class under the Fair Housing Act; (2) she exercised or
enjoyed a right protected by Sections 3603 through 3606, or aided or encouraged others in
exercising or enjoying such rights; (3) intentional discrimination motivated defendants'
conduct, at least in part; and (4) defendants' conduct constituted coercion, intimidation, a
threat, or interference on account of plaintiff having exercised, or aided or encouraged
others in exercising, a right protected under Sections 3603 through 3606.
Zhu v. Countrywide Realty, Co., 165 F.Supp.2d 1181, 1196 (D. Kan. 2001). Plaintiffs have not
provided sufficient factual allegations to support these elements. 	They have not pled that
intentional discrimination motivated the Goddard Defendants’ alleged blocking on Facebook, nor
have they pled that the alleged blocking constituted “coercion, intimidation, a threat, or
interference on account of [P]laintiff having exercised, or aided or encouraged others in exercising,
a right protected under Sections 3603 through 3606.” Id.
Additionally, as Defendants point out, regulated activities under the listed sections include:
“Discrimination in the sale or rental of housing and other prohibited practices”, id. at § 3604,
“Discrimination in residential real estate-related transactions”, id. at § 3605, “Discrimination in
the provision of brokerage services”, id. at § 3606. 	Upon review of Plaintiffs’ complaint, it is
virtually indisputable that the Goddard Defendants do not engage in any of the regulated activities
vis-à-vis Plaintiffs. Because of this, even if the Goddard Defendants did block Plaintiffs from a
Facebook page, it could hardly be said that it was in retaliation for the assertion of rights under the
Fair Housing Act. Plaintiffs once again offer no arguments to cure these defects. They simply
reply “[t]he coordinated response – blocking, prior restraint, and information sharing – violated 42
U.S.C. § 3617’s anti-retaliation provisions.” (Doc. 71 at 4.) This does not assist the court at all.
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 12 of 20

13
Plaintiffs’ anti-retaliation claims under the Fair Housing Act against the Goddard Defendants are
therefore dismissed.
4. 	RICO Claims
The RICO Act provides a private right of action for individuals who have been harmed by
an enterprise that violates the RICO statutes. Robert L. Kroenlein Trust ex rel. Alden v. Kirchhefer,
764 F.3d 1268, 1274 (10th Cir. 2014). To adequately plead this right of action a Plaintiff must
allege: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” 	Id.
(quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)) (internal quotation marks
omitted). 	Racketeering activity “include[s] a host of so-called predicate acts.” 	Id. (internal
quotation marks omitted).
Plaintiffs fail to adequately allege multiple elements of the RICO cause of action. For one,
as the Goddard Defendants argue, Plaintiffs simply assume that every Defendant is acting in
concert but does not allege any facts to demonstrate that they are part of “an enterprise.” (Doc. 69
at 9-10.) A review of the complaint confirms that Plaintiffs have merely recited generic statutory
language. (Doc. 37 at 18.)
Furthermore, Plaintiffs have failed to adequately allege any racketeering activity by the
Goddard Defendants. Racketeering activity “consists of the criminal offenses listed in 18 U.S.C.
§ 1961(1)” and for the activity to constitute a pattern, there must be “at least two racketeering acts
committed within ten years of each other.” Johnson v. Heath, 56 F.4th 851, 858 (10th Cir. 2022).
It is not clear how blocking someone from a Facebook page constitutes criminal activity under 18
U.S.C. § 1961(1), and Plaintiffs decline to tell the court. (Doc. 37 at 19.) Plaintiffs’ complaint
simply cites the Retaliation Against a Witness statute, 18 U.S.C. § 1513, and lists the Facebook
blocking with scant detail. (Doc. 37 at 19.)
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 13 of 20

14
Plaintiffs’ response to Defendants’ motion to dismiss is of little help either. It simply lists
shorthand elements of the RICO statute and then lists various predicate acts with no explanation
or factual detail. 	(Doc. 71 at 4.) 	The bald rebuttal that “Defendants’ argument that ‘blocking
access to a Facebook page’ doesn’t constitute enterprise activity ignores that the blocking was part
of coordinate suppression documented in Exhibit A”, (Id), is short on details. The court has already
explained Exhibit A above, it will not repeat itself here. But to put it mildly, Exhibit A does not
plausibly demonstrate that any of the predicate acts necessary to support a RICO Act claim have
been pled here. As a result, Plaintiffs’ claims of a RICO violation are insufficiently pled and must
be dismissed as to the Goddard Defendants.
B. 	Entries of Default
Plaintiffs have filed three applications for entry of default. 	First, they have filed an
application for entry of default against unnamed Defendant Jane Doe #2. (Doc. 59.) Second, they
have filed applications for entry of default against their former landlord SG Communities and its
agent Megan Baugh (“Leasing Defendants”). (Docs. 63, 64.) The court addresses each in turn.
1. 	Unnamed Defendant Jane Doe #2
Plaintiff moves for entry of default against Jane Doe #2 (Community Corrections Officer
present on April 2, 2025) “for failure to plead or otherwise defend this action.” (Doc. 59 at 1.)
This application is puzzling because neither Plaintiffs nor the court know Defendant Jane Doe’s
identity. 	As a result, it is impossible that this Defendant has been properly served. 	Moreover,
Plaintiffs attempt to effect service on Jane Doe #2 via certified mail is deficient under Rule 4(e).
Rule 4(e) provides for several different methods of service. Fed R. Civ. P. 4(e). Delivering
a copy of the summons and complaint to an individual’s place of employment is not one of them.
Id. Rule 4 does provide that effective service can be made if service complies with a method of
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 14 of 20

15
proper service authorized by the law of the state where the judicial district sits. 	Id. at (e)(1).
Kansas law does not permit service by certified mail to an individual’s place of employment.
K.S.A. § 60-303. Plaintiffs attempted to serve Jane Doe #2 at her place of employment, the jail.
(Doc. 48.) She was not served personally, as indicated by the signature of “Agent” on the return
receipt. (Doc. 48 at 2.) Therefore, the application for clerk’s entry of default against Jane Doe #2
is denied.1
2. 	SG Communities and Megan Baugh
Plaintiffs move for entry of default under Rule 55(a) against the Leasing Defendants on the
basis of Rule 12(a)(1)(A)(i)’s admonition that a “defendant must serve an answer within 21 days
after being served with the summons and complaint.” (Docs. 63, 64.) Plaintiffs claim that these
Defendants were both properly served on August 26, 2025. (Docs. 55, 56.) This would place the
Leasing Defendants’ answer deadline on September 16, 2025. 	(Id.) 	The Leasing Defendants’
answer was filed thirteen days after this deadline on September 29, 2025. 	(Doc. 75.) 	This,
according to Plaintiffs, entitles them to entry of default.
The Leasing Defendants, and this court, disagree. 	The Leasing Defendants filed an
opposition to the entry of default (Doc. 76) and a response (Doc. 83) to Plaintiffs’ motion to strike
their answer. (Doc. 77.) The Leasing Defendants argue that service still has not been properly
achieved. (Docs. 76, 83.) The attempts to achieve service in this case are extremely messy. The
court will assume that service has been properly made upon both defendants. In any event, their
1 The court notes here that it strongly suspects Plaintiffs are using artificial intelligence (“AI”) programs to formulate
their briefing. While the use of AI is not prohibited in this court, filers are strictly liable for the content of what they
file, regardless of whether AI originally generated the factual and legal contentions therein. Plaintiffs’ application for
entry of default against Jane Doe #2, (Doc. 59), contained multiple phantom citations, including one to a nonexistent
case and a second to a case that has no bearing on the proposition for which it is cited. Plaintiffs are warned to validate
the information contained in their briefs or they may violate the duty of candor they owe to the court. Further violations
of this duty may lead to sanctions.
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 15 of 20

16
untimely answer is excusable neglect. 	See Fed R. Civ. P. 6(b)(1)(B). 	The Supreme Court has
articulated a test for determining whether circumstances show excusable neglect. 	See Pioneer
Invest. Serv. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380 (1993). The non-exhaustive factors that
the Supreme Court directs courts to consider when making an “at bottom [] equitable decision”
include: “[1] the danger of prejudice to the [nonmoving party], [2] the length of the delay and its
potential impact on judicial proceedings, [3] the reason for the delay, including whether it was
within the reasonable control of the movant, and [4] whether the movant acted in good faith.”
United States v. Torres, 372 F.3d 1159, 1162 (10th Cir. 2004) (citing Pioneer Investment Serv.,
507 U.S. at 395) (modifications in original).
The court agrees with the Leasing Defendants that the excusable neglect test favors them.
There is virtually no danger of prejudice to Plaintiffs as they have been attempting service, and
after six months of litigation, this case is still at the motion to dismiss/answer stage. See (Doc. 1.)
Second, the length of the delay was only thirteen days; such a short delay incurs only a de minimis
impact on the schedule of this case. Third, the Leasing Defendants assert that the reason for the
delay is “legitimate confusion about service requirements given Plaintiffs’ own September 17
admission that ‘Defendant Baugh has not been personally served’ and that the attempt to serve
Defendant [SG Communities] was through Defendant Baugh.” (Doc. 83 at 4-5) (quoting Doc. 66
at 1). 	The court can sympathize with this confusion given the large number of Defendants and
repeated service attempts listed on the docket. See (Docs. 37, 40-48, 51-53, 55-57, 60, 65.) Fourth,
the short time span between the deadline (and the applications for entry of default) and the answer
indicates good faith on behalf of the Leasing Defendants.
Additional principles counsel this result. The Leasing Defendants failure to file an answer
was not due to “inadvertence, ignorance of the rules, or mistakes construing the rules” which
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 16 of 20

17
ordinarily do not constitute excusable neglect. Torres, 372 F.3d at 1163 (citing Pioneer, 507 U.S.
at 392). “Default judgments are generally disfavored in light of the policy that cases should be
tried upon their merits whenever reasonably possible.” Tabb v. Mentor Protection Serv. L.L.C.,
No. CIV-17-1130, 2018 WL 3213622 at *1 (W.D. Okla. Jun. 29, 2018) (citing In re Rains, 946
F.2d 731, 732 (10th Cir. 1991) (calling default judgments “a harsh sanction.”).
As a result of the foregoing, Plaintiffs’ applications for default against Defendant Baugh
and Defendant SG Communities are denied. Because Ms. Baugh has now answered in the case,
the court also denies as moot Plaintiffs’ motion for alternative service upon Defendant Baugh.
(Doc. 66.)
C. 	Motion to Strike the Answer
For the reasons described in the preceding section, the court denies the portions of
Plaintiffs’ motion to strike the Leasing Defendants answer related to timeliness. 	The court
considers the rest of the motion below.
1. 	Affirmative Defenses
Plaintiffs first attack several of the Leasing Defendants affirmative defenses listed in their
answer. 	(Doc. 77 at 2-7.) 	They construe these affirmative defenses as “false statements.” 	Id.
While the FRCP do provide for motions to strike affirmative defenses to an answer, see Fed. R.
Civ. P. 12, this function is limited to “insufficient defense[s]” or “redundant, immaterial,
impertinent, or scandalous matter[s].” 	Rule 12(f) is an efficiency tool, to “minimize delay,
prejudice, and confusion by narrowing the issues for discovery and trial.” Resolution Trust Corp.
v. Schonacher, 844 F. Supp. 689, 691 (D. Kan. 1994). Resolution of pleadings on motions to strike
is “not favored.” See Martinez v. Naranjo, 328 F.R.D. 581, 591–92 (D.N.M. 2018) (“Striking a
pleading or part of a pleading is a drastic remedy and because a motion to strike may often be
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 17 of 20

18
made as a dilatory tactic, motions to strike under Rule 12(f) generally are disfavored.”) (internal
quotation marks and citation omitted). 	Such motions should “be denied unless the challenged
allegations have no possible relation or logical connection to the controversy.” Id. at 591 (quoting
5C C. Wright and A. Miller, Federal Practice & Procedure § 1382, at 433–36 (3d ed. 2004)
(internal quotation marks omitted)).
Here Plaintiffs do not claim that the affirmative defenses they challenge bear “no possible
relation or logical connection to the controversy.” Id. Rather, they attack the affirmative defenses
as “false statements” and offer evidence to support their “contradictions” of the false statements.
(Doc. 77 at 2-7.) This cannot support a motion to strike under the standard as articulated in the
preceding paragraph. 	The proper time to attack affirmative defenses on the merits is after
discovery. 	Therefore, Plaintiffs’ motion to strike certain affirmative defenses from the Leasing
Defendants answer is denied.
2. 	Duty of Candor
Plaintiffs next contend that these “false statements” they have identified by the Leasing
Defendants is a violation of their duty of candor to the court. 	(Doc. 77 at 7-8.) 	Therefore,
Plaintiffs’ assert, the Leasing Defendants should be subject to FRCP Rule 11 sanctions. (Id. at 9.)
Parties owe a duty of candor to the federal courts. See Fed. R. Civ. P. 11(b). When a party presents
pleadings, motions, or “other papers” they must certify that: (1) “it is not being presented for an
improper purpose”; (2) the claims asserted are warranted by existing law or nonfrivolous
arguments modifying the law; (3) “the factual contentions have evidentiary support”; and (4) the
denials of factual contentions are warranted on evidence or lack of information. Id. The standard
is “reasonableness under the circumstances.” Burkhart Through Meeks v. Kinsley Bank, 804 F.2d
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 18 of 20

19
588, 589 (10th Cir. 1986) (quoting Notes of Advisory Committee on Rules to 1983 Amendments
to Fed. R. Civ. P. 11).
Plaintiffs’ request for sanctions is undermined however by the fact that their motion is not
standalone, as required by the federal rules. Quarrie v. Wells, No. 17-350, 2019 WL 2107281 at
*1 (D.N.M. May 14, 2019) (citing Fed. R. Civ. P. 11(c)(2)). Here, Plaintiffs make their move for
sanctions within a motion to strike, which is not permitted. (Doc. 77 at 9.) Accordingly, with the
added warning that their Rule 11 claims likely lack merit, the court denies the motion for sanctions
contained within the motion to strike.
3. 	Request for Judicial Notice
Lastly, Plaintiffs request that the court take judicial notice of “the material contradictions
between Defendants’ Answer and documentary evidence”, a Kansas Supreme Court decision, and
“the federal overlay of disability rights law on this landlord-tenant dispute.” (Id.) The court will
decline to take judicial notice. 	The request for judicial notice of “the material contradictions”
Plaintiffs surmise exist is denied because parties are required to admit or deny allegations in a
complaint. 	Fed. R. Civ. P. 8(b)(1)(A)-(B). 	A court will not determine at the pleadings stage
whether Plaintiffs’ unauthenticated evidence contradicts denials or admissions in an answer. Id.
Regarding the request for judicial notice of a Kansas Supreme Court case and federal disability
rights law, the court notes that it need not take judicial notice to apply the law to a particular case.
“It is emphatically the province and duty of the judicial department to say what the law is.”
Marbury v. Madison, 5 U.S. 137, 177 (1803). Accordingly, Plaintiffs’ request for judicial notice
is denied.
D. 	Motion for Leave to File Conventional Exhibits
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 19 of 20

20
Lastly, the court will deny Plaintiffs’ motion for leave to file conventional exhibits in which
they seek to submit a flash drive containing police bodycam footage. (Doc. 78.) Plaintiffs seek to
file these exhibits to supplement the contentions in their motion to strike. (Doc. 77.) A motion to
strike is an improper procedural mechanism to present evidence. The discovery rules govern the
presentation of evidence in the case. See e.g., Fed. R. Civ. P. 26. This case has not yet reached
discovery. Plaintiffs’ motion is denied.
IV. 	Conclusion
For the foregoing reasons, the Goddard Defendants’ motion to dismiss (Doc. 68) is
GRANTED. The Goddard Defendants’ motion to strike Plaintiffs’ surreply (Doc. 82) is DENIED
as moot. The court also DENIES Plaintiffs’ applications for entry of default (Docs. 59, 63, 64),
its motion for alternative service on Megan Baugh (Doc. 66), its motion to strike the Leasing
Defendants’ answer (Doc. 77), and its motion for leave to file conventional exhibits (Doc. 78).
The court also notes that Plaintiffs filed a motion for a temporary restraining order (“TRO”)
and preliminary injunction back in June of this year. (Doc. 32.) The court notified parties that it
would not rule on those motions until all Defendants had been served. (Doc. 35.) However, the
date of the alleged harm prompting the motion was June 26, 2025. (Doc. 32 at 1.) That date has
come and gone. Therefore, Defendants’ motion for a TRO and preliminary injunction (Doc. 32),
is DENIED as moot without prejudice. Defendant is free to file another request for TRO should
legitimate grounds arise.
IT IS SO ORDERED. Dated this 11th day of December, 2025.
s/ John W. Broomes
JOHN W. BROOMES
CHIEF 	UNITED 	STATES 	DISTRICT
JUDGE
Case 5:25-cv-04036-JWB-BGS Document 84 Filed 12/11/25 Page 20 of 20