Wesley v. Don Stein Buick, Inc.
| Decision Date | 26 February 1998 |
| Docket Number | No. 97-2271-JWL.,97-2271-JWL. |
| Citation | 996 F.Supp. 1299 |
| Parties | Rhonda Sue WESLEY, Plaintiff, v. DON STEIN BUICK, INC.; Don Stein; Jerry Kaplan; Multiple Unnamed Sales Agents of Don Stein Buick-Isuzu, Inc.; American Isuzu Motors, Inc.; General Motors Corporation; T.A. Stovall; One Unnamed Desk Clerk of Overland Park, Kansas Police Department; John M. Douglass, Overland Park Chief of Police; City of Overland Park; and Ed Eilert, Mayor of Overland Park, Defendants. |
| Court | U.S. District Court — District of Kansas |
Rhonda Sue Wesley, Kansas City, MO, pro se.
Lawrence L. Ferree, III, Kirk Thomas Ridgway, Ferree, Bunn & O'Grady, Chtd., Overland Park, KS, for Don Stein Buick, Inc., Don Stein, Shareholder, Jerry Kaplan, Shareholder, Multiple Unnamed Sales Agents, of Don Stein Buick-Isuzu, Inc., American Isuzu Motors, Inc.
Robert J. Harrop, David C. Vogel, Yvonne M. Warlen, Lathrop & Gage L.C., Kansas City, MO, for General Motors Corp.
Michael R. Santos, City of Overland Park Legal Dept., Overland Park, KS, Daniel B. Denk, Michael M. Shultz, McAnany, Van Cleave & Phillips, P.A., for T. A. Stovall, One Unnamed Desk Clerk, of Overland Park, Kansas, Police Dept., John M. Douglass, Chief of Police, City of Overland Park Police Dept., City of Overland Park, Kansas.
Janice M. Karlin, Office of U.S. Atty., Kansas City, KS, for Frederick S. Hillman, Special Agent of FBI, William M. Chornyak, Supervisory Special Agent of F.B.I., Louis J. Freeh, Director of F.B.I., Unnamed Agent, from the Office of The U.S. Postal Inspector, U.S.P.S., Marvin Runyon, Postmaster General U.S.P.S.
This case arises out of an incident which occurred at the Don Stein Buick, Inc. premises in Overland Park, Kansas, and as a result of the subsequent efforts of plaintiff to have the matter investigated and charges prosecuted by various authorities. By memorandum and order of November 20, 1997, the court, inter alia, dismissed multiple claims and granted plaintiff leave to amend her complaint to supplement certain other claims. Wesley v. Don Stein Buick, Inc., 985 F.Supp. 1288 (D.Kan.1997). The matter now comes before the court on six separate motions. Defendants T.A. Stovall, John M. Douglass, Ed Eilert, the unnamed desk clerk, and the City of Overland Park (collectively the "Overland Park Defendants") move to dismiss plaintiff's claims on substantive grounds (Doc. 103), and qualified immunity grounds (Doc. 65). Defendant American Isuzu Motors, Inc. ("AIMI") moves for summary judgment (Doc. 109). Defendant General Motors Corporation ("GM") moves to strike plaintiff's second amended complaint (Doc. 89). Former defendants Moneca Mills and the United States Postal Service move the court to amend its November 20, 1997 memorandum and order (Doc. 100). Finally, plaintiff moves the court to order AIMI to pay the costs associated with effecting service of process (Doc. 79).
For the reasons set forth below, the Overland Park Defendants' motion to dismiss on substantive grounds is granted in part and denied in part. The Overland Park Defendants' motion to dismiss on qualified immunity grounds is granted in part and denied in part. AIMI's motion for summary judgment is granted. GM's motion to strike is denied as moot. The motion to alter or amend by defendants Mills and the United States Postal Service is granted in part. Plaintiff's motion for costs is denied.
Plaintiff, an African-American female, alleges she went shopping for a car at Don Stein Buick, Inc. ("Don Stein"), but sales agents there ignored her when she refused to disclose what she felt was "irrelevant personal information." Despite the sales agents' efforts to ignore her, plaintiff persisted in trying to obtain sales assistance. The agents eventually chased her off the lot, wielding pens and threatening her and her property with menacing gestures and voices.
Plaintiff telephoned the Overland Park Police Department to report the incident. Officer T.A. Stovall arrived and plaintiff gave the officer a written statement. The police instructed the plaintiff to wait outside on the Don Stein lot while certain officers went inside the showroom to speak with Don Stein sales agents. When the officers left the showroom, Officer Stovall told plaintiff she could obtain a copy of her statement by requesting it at the Overland Park Police Department on October 14, 1996.
On the designated day, plaintiff went to the police department to request a copy of her statement. The desk clerk in charge of such matters was waiting on white patrons when plaintiff arrived. Plaintiff saw and heard the desk clerk transact with "similarly-situated white individuals" regarding criminal incidents that had occurred the same weekend as plaintiff's alleged incident. The clerk made copies for these white patrons in return for a nominal charge. When plaintiff's turn in line came, the desk clerk apparently pulled plaintiff's file, read something in it, and then refused to provide plaintiff with a copy of her written statement. Plaintiff received a copy approximately two and a half months later after she had complained to various police officials. The Overland Park Police Department took no further action concerning plaintiff's problems with Don Stein.
Unsatisfied with local progress in the matter, plaintiff contacted the United States Attorney's office. Her complaint was apparently forwarded to the FBI. She spoke with Agent Frederick S. Hillman, who eventually asked her to provide her street address. She refused, stating that the post office box number she had already provided was sufficient. Plaintiff later learned that an agent of the United States Postal Inspector instructed a postal employee at her post office to pull her box registration card and reveal her street address, which was conveyed to Agent Hillman.
Plaintiff brings this action pro se against the Overland Park Defendants under 42 U.S.C. §§ 1981, 1983, 1985, and 1986. In its prior order (Doc. 95), the court dismissed with prejudice plaintiff's section 1983 and 1985 claims against the City of Overland Park, Chief Douglass, and Mayor Eilert.2 The court found plaintiff's section 1983 conspiracy claims and her section 1985 claims against the remaining Overland Park Defendants deficient but nevertheless granted plaintiff leave to amend these claims. Plaintiff did not amend her section 1983 conspiracy claim and it is therefore dismissed pursuant to the court's prior order.3 The Overland Park Defendants now move to dismiss plaintiff's remaining claims.
Dismissal of a cause of action for failure to state a claim is appropriate only where it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle her to relief, Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Fuller v. Norton, 86 F.3d 1016, 1020 (10th Cir.1996), or where an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The pleadings are liberally construed, and all reasonable inferences are viewed in favor of the plaintiff. Fed.R.Civ.P. 8(a); Fuller, 86 F.3d at 1020. All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true. Jojola v. Chavez, 55 F.3d 488, 494 n. 8 (10th Cir.1995) (citing Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984)). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether she is entitled to offer evidence to support her claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
When a plaintiff appears pro se, the court construes her pleadings liberally and judges them against a less stringent standard than pleadings drawn by attorneys. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). If a pro se plaintiff's complaint can reasonably be read to state a claim upon which the plaintiff could prevail, the court should deny a motion to dismiss despite the plaintiff's failure to cite proper authority, confusion of various legal theories, or unfamiliarity with pleading requirements. Id. However, the court should not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues," Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991), nor should it "supply additional factual allegations to round out a plaintiff's complaint." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997).
The Overland Park Defendants move to dismiss plaintiff's section 1981 claims against them. Section 1981 provides:
(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens ....
(b) For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
The Overland Park Defendants contend that plaintiff's section 1981 claim must fail for two reasons: (1) she has failed to allege that the Overland Park Defendants deprived her of any right to make or enforce a contract, and (2) she has failed to allege that the Overland Park Defendants engaged in racial discrimination.
The court concludes that dismissal is not warranted as to Officer Stovall or the unnamed desk clerk because it does not believe the Overland Park Defendants' motion papers address the possibility that plaintiff's section 1981 claims fall within the provisions of section 1981 that do not relate to contracts. See § 1981(a) (...
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