Opinion
Civil Action No. 01-2092-KHV.
May 10, 2002
MEMORANDUM AND ORDER
Plaintiff, a former candidate for political office, filed suit against the City of Merriam, Kansas and various other officials, alleging that they violated his right to equal protection by removing a political campaign sign from a municipal right of way and failing to later investigate the incident. This matter is before the Court on the City Of Merriam's Motion To Dismiss (Doc. #64), which the Court reinstated on April 10, 2002 and construes as a motion for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P. For reasons stated below, the Court sustains the City's motion but grants plaintiff leave to amend.
See Jacobsen v. Deseret Book Co., ___ F.3d ___, 2002 WL 652250, at *14 n. 2 (10th Cir. April 19, 2002) (if defendant makes motion to dismiss for failure to state a claim after filing answer, motion should generally be treated as motion for judgment on the pleadings under Rule 12(c)).
Factual Background
Plaintiff's complaint alleges the following facts: Plaintiff was a candidate for political office. On February 21, 2001, the City of Merriam removed one of plaintiff's campaign signs because it was in the city "right of way," i.e. the area immediately adjacent to the street. The City removed plaintiff's sign pursuant to a city sign ordinance, but it did not remove similarly situated campaign signs.
In a separate action filed with the Kansas Board of Tax Appeals, plaintiff claims that the City does not have a right of way on the particular parcel of residential property where plaintiff's sign was located.
On February 22, 2001, plaintiff attempted to complain to the Merriam Police Department, the Johnson County Kansas Election Board ("JCEB"), Paul Morrison (District Attorney of Johnson County) and Carla Stovall (Attorney General for the State of Kansas). Each of the agencies and individuals "failed to take a report and protect Mr. Scherer's property rights." Civil Complaint (Doc. #1) filed February 23, 2001 at 3.
Procedural Background
On February 23, 2001, plaintiff filed suit against the City of Merriam, the Johnson County Kansas Election Board ("JCEB"), Connie Schmidt (Johnson County Election Commissioner), Paul Morrison (District Attorney of Johnson County) and Carla Stovall (Attorney General for the State of Kansas). Plaintiff alleges that (1) his campaign sign should not have been removed pursuant to the City's sign ordinance because the City did not have a "right of way" on the particular parcel of property and (2) even if the City had a "right of way" on the property, his campaign sign did not violate the ordinance because it was more than six feet from the curb or one foot from the sidewalk. Liberally construing the complaint, plaintiff alleges that defendants violated his constitutional rights to equal protection, due process and free speech.
On June 29, 2001, the Court sustained the motion to dismiss of JCEB and Schmidt, on account of insufficient service of process and failure to state a claim. See Memorandum And Order (Doc. #38) at 4-7. In the same order, the Court sustained the motion to dismiss of Stovall and Morrison, on account of sovereign immunity and absolute prosecutorial immunity. See id. at 8-9. On September 5, 2001, the Court overruled plaintiff's motion to reconsider its order of dismissal. See Memorandum And Order (Doc. #57). The Court also sustained the City of Merriam's motion to dismiss, on account of insufficient service of process, but allowed plaintiff to re-serve the City by October 12, 2001. See id. at 5.
On September 13, 2001, plaintiff filed a notice of appeal of the order of September 5. On September 21, 2001, plaintiff notified the Court that he had served the City of Merriam as required by the order from which he had appealed. On October 2, 2001, the City of Merriam filed a motion to dismiss for failure to state a claim. See Motion To Dismiss (Doc. #64). On January 14, 2002, the Court directed the Clerk to administratively terminate the City's motion to dismiss pending a ruling by the Tenth Circuit Court of Appeals. See Order (Doc. #79). After the Tenth Circuit dismissed plaintiff's appeal for lack of jurisdiction, the Court reinstated the City's motion to dismiss. See Order (Doc. #83) filed April 10, 2002.
Standards For Motion To Dismiss For Failure To State A Claim
A motion to dismiss for failure to state a claim filed after an answer is construed as a Rule 12(c) motion for judgment on the pleadings but the governing standards are identical. See Jacobsen, 2002 WL 652250, at *14 n. 2. A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Assoc. Wholesale Grocers., Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). The issue in reviewing the sufficiency of plaintiff's complaint is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. Rehab. Servs., 871 F. Supp. 1331, 1333 (D.Kan. 1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). The Court may not assume the role of advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Analysis
The City of Merriam asks the Court to dismiss plaintiff's claims for failure to state a claim on which relief may be granted. The substance of the City's motion is essentially uncontested. Plaintiff argues only that the City is barred from filing a second motion to dismiss under "res judicata-issue preclusion" principles. See plaintiff's Reply To The City Of Merriam's Motion To Dismiss (Doc. #67) filed October 10, 2001 at 1. The Court disagrees. The City's first motion to dismiss, which the Court sustained, was based solely on plaintiff's failure to properly serve the City. Because the City's first motion to dismiss did not involve a challenge to the sufficiency of plaintiff's complaint, res judicata principles do not bar the instant motion. Moreover, pursuant to Rule 12(h)(2), a defense of failure to state a claim "may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits." Rule 12 does not prohibit a defendant from filing multiple motions for judgment on the pleadings based on different issues. In this case, because the City has already filed an answer, the Court construes the City's motion to dismiss for failure to state a claim as a Rule 12(c) motion for judgment on the pleadings. See Jacobsen, 2002 WL 652250, at *14 n. 2.
The Court previously noted that the City's first motion to dismiss was actually a motion for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P. See Memorandum And Order (Doc. #38) at 4 n. 3.
I. Municipal Liability
The City argues that plaintiff has failed to state a claim for several alternative reasons, but the City's status as a municipality is dispositive. The City cannot be liable for the acts of its employees and agents under Section 1983 on a theory of vicarious liability or respondeat superior. See Monell v. Dep't Of Social Servs., 436 U.S. 658, 692 (1978); Sauers v. Salt Lake County, 1 F.3d 1122, 1129 (10th Cir. 1993). The City can be liable under Section 1983 only if an official custom or policy of the City caused a violation of plaintiff's constitutional rights, see Monell, 436 U.S. at 694; Kentucky v. Graham, 473 U.S. 159, 165-66 (1985), or an individual with final policymaking authority made the decision which violated his constitutional rights, see Pembaur v. City Of Cincinnati, 475 U.S. 469, 481-84 (1986) (holding that single decision by official responsible for establishing final policy may give rise to municipal liability); Jantz v. Muci, 976 F.2d 623, 630 (10th Cir. 1992) (same), cert. denied, 508 U.S. 952 (1993).
Plaintiff does not allege any failure to train by the City. Even if he did so, a municipality can be held liable only when its failure to train reflects a "deliberate or conscious choice" to ignore serious risks to a person's health and safety. City of Canton v. Harris, 489 U.S. 378, 388-89 (1989); see Myers v. Okla. County Bd. of County Commr's, 151 F.3d 1313, 1318 (10th Cir. 1998). Plaintiff has not alleged that (1) the City made a deliberate or conscious choice not to train or supervise its employees or (2) the City ignored serious risks to health and safety.
With respect to all of plaintiff's claims, the complaint does not identify any municipal custom or policy or decision by an individual with final policymaking authority. Indeed, plaintiff's claims are based primarily on the failure of City officials to follow the sign ordinance with respect to one of plaintiff's signs — the virtual antithesis of a "custom or practice." In addition, the complaint does not link any alleged custom, policy or decision to a violation of plaintiff's constitutional rights. The Court therefore sustains the City's motion to dismiss. Because plaintiff may be able to correct this pleading deficiency with respect to at least one of his claims, however, the Court briefly analyzes the merits of each claim.
II. Equal Protection/Selective Enforcement
Plaintiff alleges that the City of Merriam denied him equal protection of the law when it (1) took his campaign sign while leaving similarly situated signs and (2) failed to take a police report on the incident. As the Court previously noted, unless plaintiff alleges a violation of a fundamental right or discrimination against a suspect class, defendant only needs a rational justification for differential treatment. See Memorandum And Order (Doc. #38) filed June 29, 2001 at 7 (citing Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996)). Plaintiff does not allege the violation of a fundamental right nor does he allege status in a protected class. The City therefore needs only a rational basis for its actions. Plaintiff's complaint does not allege the lack of a rational basis.
With respect to plaintiff's claim that the City Police Department did not take a report, plaintiff also does not allege any differential treatment by the City and he therefore fails to plead the material elements of an equal protection claim. See Hall, 935 F.2d at 1110; Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998) ("[A]t the heart of any equal protection claim must be an allegation of being treated differently than those similarly situated."); see also Village Of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) ("class of one" must show that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment).
To the extent plaintiff alleges that City engaged in selective enforcement of the sign ordinance, he has not stated a claim because he has not alleged that the City singled him out by use of impermissible considerations "such as race, religion, or the desire to prevent the exercise of a constitutional right." Bryan v. City Of Madison, Miss., 213 F.3d 267, 277 (5th Cir. 2000); see Harlen Assocs. v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). In general, provided that an ordinance is rationally based, the failure to enforce it "with complete equality does not of itself infringe the constitutional principle of equal protection." D'Acquisto v. Washington, 640 F. Supp. 594, 625 (N.D.Ill. 1986). "Mere failure to prosecute other offenders is no basis for a finding of denial of equal protection." Cook v. City Of Price, Carbon County, Utah, 566 F.2d 699, 701 (10th Cir. 1977); see Oyler v. Boles, 368 U.S. 448, 456 (1962) ("[T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation").
For these reasons, plaintiff has failed to state a claim for violation of his rights to equal protection.
III. Due Process
Plaintiff claims that the City's actions violated his due process rights. He does not specify whether his claim is based on procedural or substantive due process, so the Court will analyze his claim under both potential theories.
A. Procedural Due Process
Plaintiff's complaint is too vague and conclusory to state a claim for violation of his constitutional right to procedural due process. Plaintiff has a property interest in his own campaign sign, but he does not set forth any specific federal or constitutional procedural safeguards that the City allegedly violated. See Tonkovich, 159 F.3d at 519-20 (procedural due process claim must set forth procedures due under law). Plaintiff may be able to state a procedural due process claim based on the manner in which City officials removed his sign, but at this point, plaintiff's complaint only alleges that the City removed the sign in violation of his right to due process. Such conclusory allegations are insufficient to state a claim on which relief can be granted. See Hall, 935 F.2d at 1110 (pro se plaintiff must allege sufficient facts on which a recognized legal claim could be based; conclusory allegations without supporting factual averments are insufficient). The Court therefore sustains the City's motion to dismiss as to plaintiff's procedural due process claim but grants plaintiff leave to file an amended complaint on or before May 28, 2002.
B. Substantive Due Process
Plaintiff apparently attempts to assert a claim for violation of his substantive due process rights based on the City's removal of his campaign sign. "The touchstone of due process is protection of the individual against arbitrary action of government," Wolff v. McDonnell, 418 U.S. 539, 558 (1974), including the exercise of power without any reasonable justification in the service of a legitimate governmental objective, see, e.g., Daniels v. Williams, 474 U.S. 327, 331 (1986) (substantive due process protects against government power arbitrarily and oppressively exercised); County Of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). In cases of "abusive executive action," only the most egregious official conduct can be said to be "arbitrary in the constitutional sense." Id. at 849 (citing Collins v. City Of Harker Heights, 503 U.S. 115, 129 (1992)).
"[T]he standard for judging a substantive due process claim is whether the challenged government action would `shock the conscience of federal judges.'" Tonkovich, 159 F.3d at 528 (quoting Uhlrig v. Harder, 64 F.3d 567, 573 (10th Cir. 1995), cert. denied, 516 U.S. 1118 (1996)). To satisfy this standard, "a plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power." Id. at 574. Instead, a plaintiff "must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking." Id. Generally conscience shocking behavior falls on the far side of the culpability spectrum, requiring the plaintiff to show that the government actor performed with an intent to harm. In Radecki v. Barela, 146 F.3d 1227 (10th Cir. 1998), cert. denied, 525 U.S. 1103 (1999), the Tenth Circuit expanded this narrow reading. There, the court held that "[w]here the state actor has the luxury to truly deliberate about the decisions he or she is making, something less than unjustifiable intent to harm, such as calculated indifference, may suffice to shock the conscience." Id. at 1232.
The Court finds that removal of a single political campaign sign, even if the sign is technically on private property, does not "shock the conscience." At most, plaintiff has alleged that unidentified City officials misinterpreted or did not understand the municipal sign ordinance, certainly not conduct which can be considered as abusive or outrageous. Cf. Rochin v. California, 342 U.S. 165 (1952) (an invasion of one's body, such as pumping a suspect's stomach, will "shock the conscience"). Because the alleged conduct of the unidentified City officials is not so egregious as to "shock the conscience," the City's motion to dismiss plaintiff's substantive due process claim is sustained.
IV. First Amendment / Free Speech
Liberally construing plaintiff's complaint, plaintiff alleges that the City violated his First Amendment rights by removing his campaign sign. Plaintiff essentially claims that (1) his campaign sign should not have been removed pursuant to the City's sign ordinance because the City did not have a "right of way" on the particular parcel of property and (2) even if the City had a "right of way" on the property, his campaign sign did not violate the ordinance because it was more than six feet from the curb or one foot from the sidewalk. At the heart of both claims is an allegation that a City official misinterpreted or misunderstood the sign ordinance. Such an allegation, by itself, is insufficient to state a claim against a municipality. Plaintiff has not alleged that City official(s) misinterpreted the sign ordinance pursuant to a municipal custom or policy or that an individual with final policymaking authority misinterpreted the ordinance. See Hall, 935 F.2d at 1110 (pro se plaintiff must allege sufficient facts on which a recognized legal claim could be based; conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based). Accordingly, the Court sustains the City's motion to dismiss but grants plaintiff leave to file an amended complaint which adds factual allegations to support a claim that (1) City officials misinterpreted the sign ordinance pursuant to a municipal custom or policy or that an individual with final policymaking authority misinterpreted the ordinance and/or (2) the City's sign ordinance, either on its face or as applied, is unconstitutional. See id. (plaintiff whose factual allegations are close to stating a claim but are missing some important element that may not have occurred to him, should be allowed to amend complaint).
The Court does not construe plaintiff's complaint as a challenge to the sign ordinance itself. To the extent plaintiff desires to raise such a challenge, he may file an amended complaint on or before May 28, 2002.
It is not readily apparent that plaintiff can cure the pleading deficiencies identified above with respect to his equal protection and due process claims. To the extent plaintiff believes that those claims can be saved by amendment, he may also include them in his amended complaint to be filed on or before May 28, 2002.
IT IS THEREFORE ORDERED that the City Of Merriam's Motion To Dismiss (Doc. #64), which the Court reinstated on April 10, 2002 and construes as a motion for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P., be and hereby is SUSTAINED. On or before May 28, 2002, plaintiff may file an amended complaint.