996 F.Supp. 1312 (D.Kan. 1998), 97-2271, Wesley v. Don Stein Buick, Inc.

Docket Nº:97-2271-JWL.
Citation:996 F.Supp. 1312
Party Name:Rhonda Sue WESLEY, Plaintiff, v. DON STEIN BUICK, INC., et. al., Defendants.
Case Date:April 17, 1998
Court:United States District Courts, 10th Circuit, District of Kansas

Page 1312

996 F.Supp. 1312 (D.Kan. 1998)

Rhonda Sue WESLEY, Plaintiff,


DON STEIN BUICK, INC., et. al., Defendants.

No. 97-2271-JWL.

United States District Court, D. Kansas.

April 17, 1998

Page 1313

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, Jerry Kaplan, Multiple Unnamed Sales Agents and American Isuzu.

Robert J. Harrop, David C. Vogel, Lathrop & Gage L.C., Kansas City, MO, Yvonne M. Warlen, Shank, Laue & Hamilton, P.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., Kansas City, KS, for T.A. Stovall, One Unnamed Desk Clerk, John M. Douglass, City of Overland Park Police Dept. and City of Overland Park.

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Janice M. Karlin, Office of U.S. Attorney, Kansas City, KS, for Frederick S. Hillman, F.B.I. Supervisory Special Agent William M. Chornyak, F.B.I., F.B.I., Director Louis J. Freeh, U.S. Postal Service and U.S. Postal Service Postmaster General, Marvin Runyon.


LUNGSTRUM, District Judge.

This case arises out of an incident that occurred while plaintiff was shopping for a car at Don Stein Buick, Inc. ("Don Stein Buick") in Overland Park, Kansas and plaintiff's later attempts to file charges through various authorities. Plaintiff alleges that employees of Don Stein Buick assaulted her. She also brings a claim against Don Stein Buick under 42 U.S.C. § 13981, the Federal Violence Against Women Act. In plaintiffs later attempts to have this incident investigated and to have charges filed through various authorities, plaintiff claims her civil rights were violated under 42 U.S.C.§§ 1981, 1983, 1985 and 1986. Plaintiff brings claims against multiple defendants including Don Stein Buick and General Motors Corporation ("GMC"), whose automobiles are sold on Don Stein Buick's lot. In two prior memorandum and orders, the court dismissed some of plaintiff's claims and left others intact. Wesley v. Don Stein Buick, Inc., 996 F.Supp. 1299 (D.Kan.1998); Wesley v. Don Stein Buick, Inc., 985 F.Supp. 1288 (D.Kan.1997).

The matter is now before the court on defendant GMC's motion to dismiss plaintiff's section 1983, 1985 and 1986 claims and for summary judgment on all claims. (Doc. 118) Plaintiff bases her claims against GMC on the doctrine of vicarious liability, or respondeat superior. For the reasons set forth below, the court grants GMC's motion.

I. Motion to dismiss plaintiff's section 1983, 1985 and 1986 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).

Plaintiff asserts a section 1983 claim against defendant GMC. A private defendant may be liable under section 1983 when it acts "under color of state law," that is, when its conduct is "fairly attributable to the state." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). This can occur when a private defendant conspires with a state actor to deprive an individual of a federally protected right. See Dixon v. City of Lawton, 898 F.2d 1443, 1449 n. 6 (10th Cir.1990). A claimant seeking to hold a private defendant liable under this theory "must specifically present facts tending to show agreement and concerted action." Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983).

Defendant GMC moves to dismiss plaintiff's section 1983 claims because it believes she has failed to allege that GMC conspired with any state actor to deprive her of her rights. Plaintiff does not allege that GMC acted under color of state law, See § 1983, nor does she allege that GMC conspired with any state actor. The only basis for plaintiff's section 1983 claim is GMC's alleged respondeat superior relationship with Don Stein Buick, whom plaintiff alleges conspired with government authorities to deprive her of federal rights. GMC cannot be held liable under 42 U.S.C. § 1983 on the basis of respondeat superior alone. See DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 723 (10th Cir.1988)

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(citing Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982)). GMC's motion to dismiss plaintiff's 1983 claims is granted.

Plaintiff also asserts a claim against GMC under 42 U.S.C. § 1985. Section 1985 has three subsections. Section 1985(1) is not at issue here. Section 1985(2) provides a remedy when, inter alia, "two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws." Wright v. No Skiter, Inc., 774 F.2d 422, 425 (10th...

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