Cochran v. City of Wichita
| Decision Date | 26 September 2018 |
| Docket Number | Case No. 18-1132-JWB |
| Parties | MICHAEL T. COCHRAN, Plaintiff, v. CITY OF WICHITA, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
This case comes before the court on Defendants' motion to dismiss (Doc. 24). The motion has been fully briefed and is ripe for decision. (Docs. 26, 27, 30, 31.) Defendants' motion is GRANTED for the reasons stated herein.
Plaintiff is homeless and proceeding pro se in this action. Plaintiff brings this action pursuant to 42 U.S.C. § 1985. Plaintiff's complaint alleges that Defendants, members of the Wichita City Council and several Wichita Police Department officers, conspired to enact Chapter 5.20 of the City Code which prohibits camping on public property. Section 5.20.020 states in pertinent part:
The applicable camping code sections were enacted "to maintain streets, parks and other public property and areas within the City of Wichita in a clean, sanitary and accessible condition and to adequately protect the health, safety and public welfare of the community...." (Id. at 5.)1 Plaintiff has not been charged with a violation of Chapter 5.20.
Plaintiff alleges that he arrived in Wichita, Kansas, in June 2015. In August, Plaintiff set up a tent with his belongings on the City of Wichita's ("City") property located at 6919 E. Osie Cir. Plaintiff did not observe any signs that stated that the property belonged to the City. Plaintiff was never told by anyone that he was trespassing or that camping was illegal on the property. On February 15-17, 2016, Plaintiff observed a white van parked outside his tent with a license plate number that began with "CNR." On February 19, 2016, Plaintiff returned to his tent and discovered that all of his property was missing. Plaintiff was forced to go to a shelter as a result. (Doc. 1 at 4-5.)
On February 21, Plaintiff returned to the area where his campsite had been to look for evidence of who took his belongings. While at the E. Osie location, Plaintiff observed a tent with a "notice to vacate" sign that included a phone number for the Wichita Police Department's Homeless Outreach Team ("HOT Team"). Plaintiff returned to the winter shelter. On February 22, Plaintiff called the HOT Team line and spoke with Defendant Lisa Berg. Plaintiff asked if the HOT Team had taken his belongings. Berg asked Plaintiff where the belongings had been and then informed Plaintiff of the no camping ordinance. Berg allegedly told Plaintiff that they could take whatever they wanted from whomever they wanted to. Plaintiff told Berg that he didn't get a notice although there was a notice on another person's tent. Berg allegedly stated that if one person got notice then they all got notice. Berg then stated that she had no idea if theyhad removed any of his property. Plaintiff left his phone number with Berg so that she could check into his property claim but she did not call him back. (Doc. 1 at 5-7.)
Based on a liberal reading of Plaintiff's complaint, Plaintiff assumes, based on the presence of the white van and the notice to vacate sign on a different tent, that his tent and belongings were taken or disposed of by an unknown member of the HOT Team. Due to the removal or theft of Plaintiff's tent and belongings, Plaintiff alleges that he was "forcefully interned" at the over-flow shelter until March 31 and then "forcibly interned" at the Union Gospel Mission until May 27, 2016, both under cruel and unusual conditions. (Doc. 1 at 8.) On the evening of May 26, Plaintiff stayed at the shelter and parked his moped in the parking lot. On May 27, Plaintiff went to the parking lot and his moped was gone. Plaintiff reported the theft to the Wichita police. Plaintiff's complaint does not allege that an individual Defendant or City employee removed his moped. Plaintiff has not returned to the Mission. Plaintiff alleges that he lost his job due to the theft of his moped.2 (Doc. 1 at 8.)
On November 15, 2016, Defendant Nate Schwiethale, an officer with the HOT Team, was responding to a complaint about someone sleeping outside in an area in downtown Wichita. Schwiethale approached Plaintiff and questioned him regarding the complaint. Plaintiff accused Schwiethale of taking his property. Plaintiff alleges that Schwiethale stated that Plaintiff would not be arrested and that he was there to help Plaintiff. Schwiethale allegedly admitted to the use and possession of a white van for the HOT Team and stated that the police can take anything they want. (Doc. 1 at 9-10.)
On June 5, 2017, Plaintiff filed a lengthy complaint in this court asserting numerous claims against several defendants. (See Case No. 17-CV-1127, Doc. 1.) Plaintiff's complaintincluded claims against the same Defendants named in this action. Plaintiff also made similar allegations of a conspiracy in enacting the no camping ordinance and violations of his constitutional rights. (See id.) Magistrate Judge Birzer determined that Plaintiff's complaint failed to comply with Fed. R. Civ. P. 8 and ordered Plaintiff to file an amended complaint that complied with the rule or face dismissal. Plaintiff filed an amended complaint that was 207 pages long and raised the issues discussed herein in addition to other allegations and claims against several other government officials. (See Case No. 17-CV-1127, Doc. 15.) Judge Melgren dismissed Plaintiff's amended complaint, without prejudice, for failing to comply with Rule 8. (See Case No. 17-CV-1127, Doc. 21.)
Plaintiff's complaint in this case alleges a violation of 42 U.S.C. § 1985 due to Defendants' alleged conspiracy to enact the camping ordinance. Plaintiff further alleges that the camping ordinance deprives him of various rights under the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the Constitution. Plaintiff contends that he has a constitutional right to be homeless. Plaintiff alleges that all Defendants conspired to enact the ordinance, deprived him of his property and forcibly interned him at the shelter.
Defendants have now all moved to dismiss. Defendants contend that Plaintiff's claims are subject to dismissal under Rules 12(b)(1) and 12(b)(6).
"Different standards apply to a motion to dismiss based on lack of subject matter jurisdiction under Rule 12(b)(1) and a motion to dismiss for failure to state a claim under Rule 12(b)(6)." Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir. 2012). When the court is faced with motions for dismissal relying on both Rule 12(b)(1) and 12(b)(6), the court must first determine that it has subject matter jurisdiction over the controversy before reviewingthe merits of the case under Rule 12(b)(6). Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773 (1946). Because federal courts are courts of limited jurisdiction, a presumption exists against jurisdiction, and "the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673 (1994). Therefore, the court will first review the challenge to subject matter jurisdiction.
"Motions to dismiss for lack of subject matter jurisdiction generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based." City of Albuquerque v. U.S. Dep't of Interior, 379 F.3d 901, 906 (10th Cir. 2004) (internal citations omitted). If the motion challenges the sufficiency of the complaint's jurisdictional allegations, such as in this case, the court must accept all such allegations as true. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). If there is a challenge to the actual facts, the court has discretion to allow affidavits and other documents to resolve disputed facts. Id. at 1003. In this matter, the court has only considered the ordinance, which may be considered on a motion to dismiss as it is a municipal law and referenced in Plaintiff's complaint. See Zimomra, 111 F.3d at 1504.
In order to withstand a motion to dismiss for failure to state a claim, 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, 127 S. Ct. 1955, 1974 (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).
Article III of the Constitution limits federal courts' jurisdiction to certain cases and controversies. Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408, 133 S. Ct. 1138, 1146 (2013). Plaintiff must establish standing in order to invoke this court's jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136 (1992). A court reviews standing for claims that seek both retrospective relief and prospective relief. See Dias v. City & Cty. of Denver, 567 F.3d 1169, 1176-78 (10th Cir. 2009). To establish standing, there must be an "injury in fact"; Plaintiff must show a causal connection between the injury and the conduct complained of; and it must be likely that Plaintiff's injury will be ...
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