Davis v. Olin

Citation886 F. Supp. 804
Decision Date20 April 1995
Docket NumberNo. 94-4016-SAC.,94-4016-SAC.
PartiesDavid DAVIS, Plaintiff, v. Ron OLIN, Mile Wildgen, Michael O. Hall, Kevin Harmon, and City of Lawrence, Defendants.
CourtU.S. District Court — District of Kansas

COPYRIGHT MATERIAL OMITTED

Donald G. Strole, Sally G. Kelsey, Law Office of Donald G. Strole, Lawrence, KS, Kevin L. Diehl, Eugene B. Ralston & Assoc., P.A., Topeka, KS, for plaintiff.

Gerald L. Cooley, Randall F. Larkin, Allen, Cooley & Allen, Lawrence, KS, for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

On September 9, 1994, the plaintiff, David Davis, filed his third amended complaint. Davis, a fifteen-year employee of the Lawrence Police Department, alleges, inter alia, that he was wrongfully terminated from his position with the City of Lawrence Police Department. The third amended complaint seeks damages "pursuant to the United States Constitution and 42 U.S.C. § 1983 resulting from deprivations, under color of law, of plaintiff's rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution, for tortious conduct under Kansas Law and for breach of contract under Kansas Law."

This case comes before the court upon the defendants' motion pursuant to Fed.R.Civ.P. 12(c) for partial judgment on the pleadings (Dk. 43) on certain portions of the plaintiff's third amended complaint.1 The defendants acknowledge that the plaintiff's third amended complaint has corrected some of "the defects that plagued his original complaint and were the focus of the defendants' initial and supplemental motions to dismiss." Despite these corrections, the defendants contend that several of the same fatal defects are perpetuated in the plaintiff's third amended complaint. The plaintiff has filed a response which concedes certain arguments advanced by the defendants and opposes others. The defendants have filed a reply.

Having considered the briefs of counsel, the plaintiff's third amended complaint, and the applicable law, the court is now prepared to rule.

Legal Standards

Fed.R.Civ.P. 12(c) states in pertinent part:

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.

"A motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) is treated as a motion to dismiss under Fed.R.Civ.P. 12(b)(6)." Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 528 (10th Cir.1992) (citing McHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir. 1991), cert. denied, 502 U.S. 894, 112 S.Ct. 263, 116 L.Ed.2d 217 (1991)).

A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993); see Hospice of Metro Denver v. Group Health Ins., 944 F.2d 752, 753 (10th Cir.1991) ("Dismissal of a case pursuant to Fed.R.Civ.P. 12(b)(6) requires the legal determination that the plaintiff can prove no set of facts in support of his claim to entitle him to relief.") (citations omitted); Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472 (10th Cir.1990) ("Under Rule 12(b)(6), dismissal is inappropriate unless plaintiff can prove no set of facts in support of his claim to entitle him to relief.").

A court judges the sufficiency of the complaint accepting as true the well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiff. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987).2 It is not the court's function "to weigh potential evidence that the parties might present at trial." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983) (footnote omitted). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th Cir. 1989).

Fed.R.Civ.P. 8(a)

Rule 8(a) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The statement need not be factually detailed but it "must give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 85, 78 S.Ct. at 175. If the complaint is "too general," then it will not provide fair notice to the defendant. Boston & Maine Corp. v. Town of Hampton, 987 F.2d 855, 865 (1st Cir.1993). Similarly, "allegations of conclusions or opinions are not sufficient when no facts are alleged by way of the statement of the claim." Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 (10th Cir.1977); see Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). A plaintiff is not required to state precisely each element of the claim. 5 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1216 at 154-59 (1990). Nonetheless, a plaintiff must "set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Gooley v. Mobil Oil Co., 851 F.2d 513, 515 (1st Cir.1988). In short, Rule 8(a) relieves a plaintiff from pleading technicalities and from alleging detailed facts that establish her right to judgment. Trevino v. Union Pacific R. Co., 916 F.2d 1230, 1234 (7th Cir.1990). But, it still requires minimal factual allegations on those material elements that must be proved to recover. See Hall v. Bellmon, 935 F.2d at 1110.

In Leatherman v. Tarrant Co. Narcotics Intelligence & Coordination Unit, ___ U.S. ___, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), the Supreme Court held that a federal court may not apply a "heightened pleading standard" — a standard more stringent than the usual pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure — in § 1983 cases alleging municipal liability. Fed.R.Civ.P. 8(a)(2) requires that a complaint include only "a short and plain statement of the claim showing that the pleader is entitled to relief." ___ U.S. at ___, 113 S.Ct. at 1161, 122 L.Ed.2d at 524. In short,

the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is `a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.

Id. (quoting Conley v. Gibson 355 U.S. 41, 47, 78 S.Ct. 99, 102-03, 2 L.Ed.2d 80 (1957) (footnote omitted)).

42 U.S.C. § 1983

42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Section 1983 does not create any substantive rights. Dixon v. City of Lawton, Okl., 898 F.2d 1443, 1447 (10th Cir.1990). A § 1983 claim generally describes a substantive violation of a right secured by the Constitution or law. Id.

Under 42 U.S.C. § 1983, the plaintiff must establish (1) that the actions complained of were done by a person acting under color of state law, and (2) that these actions deprived the plaintiffs of rights, privileges or immunities secured by the Constitution or laws of the United States. Greco v. Guss, 775 F.2d 161, 164 (7th Cir.1985); see Ruark v. Solano, 928 F.2d 947, 949 (10th Cir.1991); Dixon, 898 F.2d at 1447. Whether a person is subject to a § 1983 suit turns upon the ultimate question of whether the alleged infringement of federal rights is fairly attributable to the state. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769-70, 73 L.Ed.2d 418 (1982); Tarabishi v. McAlester Regional Hosp., 827 F.2d 648, 651 (10th Cir.1987).

Count I

In Count I, the plaintiff appears to assert both Due Process and Equal Protection claims. The defendants seek to dismiss the plaintiff's Equal Protection claims, arguing that the plaintiff does not allege that he belonged to a class singled-out for invidious class-based discrimination. The defendants concede that based upon a liberal reading of Count I of the plaintiff's third amended complaint, he states a viable due process claim.

In full, the plaintiff responds:

1. The defendants concede that part of Count I, if construed as a due process claim, states a valid cause of action if the allegations are construed as being true. The defendants argue that if taken as an equal protection claim that it does not state a valid cause of action. On this point, the plaintiff agrees. Count I was not intended to be an equal protection claim, but rather, a claim stating that Detective Davis' liberty and
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