Wesley v. Don Stein Buick, Inc.

Citation985 F.Supp. 1288
Decision Date20 November 1997
Docket NumberNo. 97-2271-JWL.,97-2271-JWL.
PartiesRhonda 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; Overland Park, Kansas Police Department; City of Overland Park; Ed Eilert, Mayor of Overland Park; Frederick S. Hillman; William M. Chornyak; Federal Bureau of Investigation; Louis J. Freeh, FBI Director; One Unnamed Agent from the Office of the United States Postal Inspector; United States Postal Service; and Marvin Runyon, United States Postmaster General, Defendants.
CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. 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, Lathrop & Gage L.C., Kansas City, MO, 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. Attorney, 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.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

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. Plaintiff's ensuing pro se federal civil rights and state common law claims come before the court on ten separate motions. Defendants T.A. Stovall, John M. Douglass, Overland Park Police Department, City of Overland Park, Ed Eilert, and the unnamed desk clerk of Overland Park Police Department (collectively the "Overland Park Defendants") (Doc 17); defendants Don Stein Buick, Inc., Don Stein, Jerry Kaplan, and multiple unnamed sales agents of Don Stein Buick-Isuzu, Inc. (collectively the "Don Stein Defendants") (Doc. 19); and defendant American Isuzu Motors, Inc. ("Isuzu") (Doc. 53) each move to dismiss for failure to state a claim upon which relief may be granted. Defendant Frederick S. Hillman, William M. Chornyak, Federal Bureau of Investigation, Louis J. Freeh, United States Postal Service, and Marvin Runyon (collectively the "Federal Defendants") move to dismiss for failure to state a claim upon which relief may be granted or in the alternative for summary judgment (Doc. 57). The individual Overland Park Defendants move to dismiss on qualified immunity grounds. (Doc. 65). The Overland Park Defendants (Doc. 83), the Don Stein Defendants (Doc. 85), and the Federal Defendants (Doc. 88) move to strike plaintiff's second amended complaint as untimely. Finally, the plaintiff moves the court to compel an answer from Isuzu (Doc. 78), and from the Don Stein Defendants (Doc. 80).

For the reasons set forth below, the motion to dismiss of the Overland Park Defendants, the motion to dismiss of the Don Stein Defendants, and the motion to dismiss of Isuzu are granted in part and denied in part. The motion to dismiss or in the alternative for summary judgment of the Federal Defendants is granted. The motion to dismiss of the individual Overland Park Defendants on qualified immunity grounds is retained under advisement. The motions to compel plaintiff to disclose whether she is an attorney are denied. The motions to strike plaintiff's second amended complaint are granted. Plaintiff's motions to compel answers are denied as moot.

I. Plaintiff's First Amended Complaint1

Plaintiff, an African-American female, alleges she went shopping for a car at Don Stein Buick, Inc, but sales agents there ignored her when she refused to disclose what she felt was "irrelevant personal information." Nevertheless, plaintiff persisted in trying to obtain sales assistance. The agents, one of whom was a member of Don Stein Buick, Inc.'s management team, chased her off the lot wielding pens and threatening her with menacing gestures and voices.

Plaintiff telephoned the defendant Overland Park Police Department ("OPPD") to report the incident. Officer T.A. Stovall arrived and plaintiff gave the officer a written statement. A few days later, she went to the OPPD and requested a copy of her statement. A desk clerk there refused her request. After complaining to various police officials, plaintiff obtained the statement about two and a half months later. She learned that the OPPD and the Johnson County District Attorney's Office did not intend to press criminal charges.

Being unsatisfied, plaintiff contacted the United States Attorney's office. Her complaint was apparently forwarded to the FBI. She spoke with defendant 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 against the Don Stein Defendants under 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 13981. She also claims the Don Stein Defendants assaulted her and interfered with her prospective business expectations. She alleges a conspiracy between the Don Stein Defendants and the OPPD to violate her civil rights. Plaintiff sues the Overland Park Defendants under 42 U.S.C. §§ 1981, 1983, 1985, and 1986. She sues the Federal Defendants under 42 U.S.C. §§ 1981, 1983, and 1985(3), and under the Privacy Act of 1974, 5 U.S.C. § 552a. Plaintiff is not represented by counsel in this suit.2

II. Motions to Dismiss
A. Standard

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, 101-02, 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, 1832, 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, 1686, 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).

B. Section 1981 Claims

Plaintiff asserts 42 U.S.C. § 1981 claims against the Don Stein Defendants, GM, Isuzu, and the Overland Park Defendants. Only Isuzu and the Don Stein Defendants move for dismissal. Section 1981 proscribes public or private racial discrimination in the formation of contracts. Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1262 (10th Cir.1995). To state a claim under section 1981, a plaintiff must allege intentional discrimination. Id. (citing General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 390-92, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982)). Discrimination may be proven by direct or circumstantial evidence. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 251-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

Plaintiff has alleged that she is an African-American and that she was the only customer of Don Stein Buick, Inc. who was refused service and treated with threatening conduct. Isuzu and the Don Stein Defendants contend, however, that plaintiff has failed to state a claim because she failed to allege intentional discrimination. See Lowe v. Letsinger, 772 F.2d 308, 311 (7th Cir.1985) (mere allegation that plaintiff is black is insufficient to state claim under section 1981).

The court agrees with defendants. Nevertheless, because plaintiff has made allegations which seem to fall just short of making out a prima facie case, the court will permit plaintiff until December 5, 1997 to amend her...

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8 cases
  • Wesley v. Don Stein Buick, Inc., 97-2271-JWL.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • March 10, 1999
    ...Buick, Inc., 996 F.Supp. 1312 (D.Kan.1998); 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). Two groups of defendants remain parties in this action — the "Don Stein Defendants," including Don Stein Buick, Inc.; ......
  • Sims v. Unified Government of Wyandotte County, 99-2406-WL.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • August 14, 2000
    ...two employees of the same enterprise can constitute a conspiracy for § 1985 purposes. See id. See also, Wesley v. Don Stein Buick, Inc., 985 F.Supp. 1288, 1298 (D.Kan.1997) (refusing to apply intracorporate conspiracy doctrine to § 1985(2) & (3) claims); Butler v. City of Prairie Village, 9......
  • Brzonkala v. Virginia Polytechnic Institute and State University, s. 96-1814
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • March 5, 1999
    ...to dismiss. See, e.g., Kuhn v. Kuhn, No. 98 C 2395, 1998 WL 673629 (N.D.Ill. Sept. 16, 1998); see also Wesley v. Don Stein Buick, Inc., 985 F.Supp. 1288, 1300-01 (D.Kan.1997) (permitting plaintiff to amend her complaint to state a claim under Subtitle C without reaching the constitutional q......
  • Wesley v. Don Stein Buick, Inc., 97-2271-JWL.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • February 26, 1998
    ...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 Eiler......
  • Request a trial to view additional results
1 books & journal articles
  • In defense of ghostwriting.
    • United States
    • Fordham Urban Law Journal Vol. 29 No. 3, February 2002
    • February 1, 2002
    ...Inc. v. Kimball, 168 F.R.D. 69 (M.D. Fla. 1996). (42.) Id. at 72. (43.) Id. (44.) Id. (45.) Wesley v. Don Stein Buick, Inc., 985 F. Supp. 1288 (D. Kan. (46.) Defendants pointed out that the plaintiff had signed her pleadings with the suffix "esq.," and that "her papers ... display[ed] a bet......

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