Meyer v. City of Russell

• Decision Date: 15 October 2012
• Docket Number: No. 12-1178-SAC,12-1178-SAC
• Parties: LOREN D. MEYER, Plaintiff, v. CITY OF RUSSELL, KANSAS POLICE DEPARTMENT; CITY OF RUSSELL, KANSAS; RUSSELL COUNTY, KANSAS DEPARTMENT OF CORRECTIONS; OFFICER ERIC LA LICKER; OFFICER RALPH KUHN; and OTHER UNKNOWN OFFICERS, Defendants.
• Court: U.S. District Court — District of Kansas

LOREN D. MEYER, Plaintiff, v. CITY OF RUSSELL, KANSAS POLICE DEPARTMENT; CITY OF RUSSELL KANSAS; RUSSELL COUNTY, KANSAS DEPARTMENT OF CORRECTIONS OFFICER ERIC LA LICKER; OFFICER RALPH KUHN; and OTHER UNKNOWN OFFICERS, Defendants.

No. 12-1178-SAC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Date: October 15, 2012

MEMORANDUM AND ORDER

Loren D. Meyer pro se filed a civil rights action pursuant to 42 U.S.C. § 1983 in the District Court of Russell County, Kansas, on April 30, 2012, alleging his constitutional rights in the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments were violated "during a routine traffic stop" on May 5, 2011. (Dk. 1-1, p. 1). The defendants timely removed the action to federal court and then jointly moved for a more definite statement. The magistrate judge ordered the plaintiff to file an amended complaint that contained "a more definite statement of his claims against each of the defendants," that "specif[ied] which claims he is asserting against each of the defendants," and that "identif[ied]—to the extent known—which defendant or defendants committed the acts or omissions alleged in thecomplaint." (Dk. 12, p. 3). After the plaintiff filed his amended complaint, (Dk. 14), the defendants then filed their motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Dks. 17, 25). While preparing this order, the court received the plaintiff's motion to file yet another amended complaint.¹ (Dk. 35).

PRO SE AMENDED COMPLAINT

The pro se complaint comprises two pages and lists twelve claims by title with an accompanying legal conclusion but with few, if any substantive, factual allegations. (Dk. 14). Here are three examples of the plaintiff's pleaded claims:

4. False or Wrongful arrest. Violation of KS-12-4212, Ks-22-2401, violation of Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution, as well as violation of 42 U.S.C. 1983, 42 U.S.C. 1985, 42 U.S.C. 1986

(a) This is alleged against Officer La Licker and Officer Kuhn and Other unknown officer that advised Officer and assisted Officer La Licker at initial traffic stop and subsequent arrest of Plaintiff.

5. False Imprisonment: violation of KS-8-1219, violation of Fourth, Fifth and Fourteenth Amendments to the U.S. Constitution, as well as violation of 42 U.S.C. 1983, 42 U.S.C. 1985, 42 U.S.C. 1986.

(b) This is alleged against Officer La Licker, Officer Kuhn and Other unknown officer, Russell County Dept. of Corrects/Russell County Sheriff's Dept., Russell, Kansas Police Dept.

. . . .

7. Illegal search of self and vehicle. Violation under US Constitution Amendment 4 and KS 22-2501, 42 U.S.C. 1985

(d) This is alleged against Officer La Licker and Unknown Officer who searched vehicle, City of Russell, Kansas Police Department, City of Russell, Kansas.

(Dk. 14, pp. 1-2). The plaintiff's remaining constitutional claims are: "6. Illegal impound of Vehicle resulting in Damage to vehicle," "8. Theft of property in vehicle," "9. Interrogated WITHOUT Miranda Rights being read," "10. Not allowed personal belongings from car like my glasses to see what papers I was signing, and phone numbers needed to call," "11. Was not brought immediately before judge," "12. REFUSED LEGAL COUNCIL," "13. Charged EXCESSIVE BOND AND EXHIBITED UNREASONABLE CONDUCT," "14. ABUSED-slammed into 4 x 4 drunk tank, made to sit ALL DAY. Leg cuffed-paraded around town. This caused public humiliation," "15. Called NON-CERTIFIED wrecker service." (Dk. 14, pp. 2-3).

A pro se litigant's pleadings are construed liberally and judged against a less stringent standard than pleadings drawn by attorneys. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court is to "make some allowances for 'the pro se plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.'" Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall, 935 F. 2d at 1110). However, "it is not the proper function of the district court to assume the role of advocate for the pro se litigant." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). The court is not to "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). The court does not assume the responsibility of "searching the record" in favor of the plaintiff. Garrett, 425 F.3d at 840. Moreover, a pro se litigant is expected to "follow the same rules of procedure that govern other litigants." Hall v. Witteman, 584 F.3d 859, 864 (10th Cir. 2009) (internal quotation marks and citation omitted).

FED. R. CIV. P. 12(B)(6) STANDARDS

In deciding a Rule 12(b)(6), a court accepts as true "all well-pleaded factual allegations in a complaint and view[s] these allegations in the light most favorable to the plaintiff." Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009), cert. denied, 130 S. Ct. 1142 (2010). This duty to accept a complaint's allegations as true is tempered by the principle that "mere labels and conclusions,' and 'a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim." Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). As recently clarified by the Supreme Court, the standard under 12(b)(6) is that to withstand a motion to dismiss, "a complaint contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face.'" Al-Owhali v. Holder, 687 F.3d 1236, 1239 (10th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Thus, "a plaintiff must offer sufficient factual allegations to 'raise a right to relief above the speculative level.'" Kansas Penn Gaming, 656 F.3dat 1214 (quoting Twombly, 550 U.S. at 555). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). It follows then that if the "complaint pleads facts that are 'merely consistent with' a defendant's liability it 'stops short of the line between possibility and plausibility of "entitlement to relief."'" Id. "'A claim has facial plausibility when the [pleaded] factual content . . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1178 (10th Cir. 2012). "Thus, in ruling on a motion to dismiss, a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable." Kansas Penn Gaming, 656 F.3d at 1214.

Because the defendants have supported their motions with three exhibits, (Dks. 18-1, 18-2, 18-3), the court must review the rules governing its consideration of and reliance on these exhibits. The general rule and exceptions are here stated:

Generally, the sufficiency of a complaint must rest on its contents alone. See, e.g., Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010) ("The district court's disposition of the complaint was irregular. Although it characterized its action as a dismissal for failure to state a claim, the court did not restrict itself to looking at the complaint."). There are exceptions to this restriction on what the court can consider, but they are quite limited: (1) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights,Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007); Oxendine [v. Kaplan], 241 F.3d [1272] at 1275 [(10th Cir. 2001)] (documents attached as exhibits to the complaint); (2) "documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity," Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.2002); and (3) "matters of which a court may take judicial notice," Tellabs, Inc., 551 U.S. at 322, 127 S.Ct. 2499.

Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). In its discretion, a court may "take judicial notice of publicly filed records in . . . other courts concerning matters that bear directly upon the disposition of the case at hand." United States v. Ahidley, 486 F.3d 1184, 1192 (10th Cir.) (citation omitted), cert. denied, 552 U.S. 969 (2007); see Tal v. Hogan, 453 F.3d 1244, 1265 n. 24 (10th Cir. 2006), cert. denied, 549 U.S. 1209 (2007); Stone v. Whitman, 324 Fed. Appx. 726, 728 (10th Cir. 2009) (On a motion to dismiss in a 42 U.S.C. § 1983 action, court properly "took judicial notice of records from the proceedings in small claims court.") "However, '[t]he documents may only be considered to show their contents, not to prove the truth of matters asserted therein.'" Tal, 453 F.3d at 1254 n. 24 (quoting Oxford Asset Management, Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002), cert. denied, 540 U.S. 872 (2003)).

Finally, case law recognizes that the 12(b)(6) plausibility standards "will vary based on context." Kansas Penn Gaming, 656 F.3d at 1215 (citation omitted). With § 1983 actions against public officials sued for damages in their personal capacities and entitled to qualified immunity,"[t]he Twombly standard may have a greater bite in such contexts, appropriately reflecting the special interest in resolving the affirmative defense of qualified immunity at the earliest possible stage of litigation." Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008) (internal quotation marks and citations omitted). This is a particularly true with § 1983 actions involving "complex claims against multiple defendants." Smith v. United States, 561 F.3d at 1104. The panel in Robbins explained:

We

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