Ronnie L. McCollum, Plaintiff,
West Elk School Board #282, et al., Defendants.
MEMORANDUM AND ORDER
J. THOMAS MARTEN, JUDGE
The court has before it defendant West Elk School Board #282’s Motion to Dismiss (Dkt. 8). After reviewing the motion and plaintiff McCollum’s response, the court grants the motion for the following reasons.
Plaintiff Ronnie McCallum, appearing pro-se, filed his Complaint on April 24, 2013. McCallum’s Complaint lists three defendants: (1) West Elk School Board #282 (hereinafter “School Board”), (2) United County Real Estate (“UCRE”), and (3) Daniel Arnold Hanson. It states that McCollum and School Board are Kansas residents and Hanson is a Texas resident; the Complaint does not allege what state UCRE is a resident of, but lists its address as 337 W. Kansas Ave, McPherson, KS 67460. Rather than alleging a violation of the U.S. Constitution or other federal law, the Complaint identifies “other grounds” as its basis, namely that “West Elk School Board #282 sold Severy Grade School #82 & Severy High School #7’s property wrongfully. The original deed was never undated by West Elk School Board #282.” Dkt. 1, pg. 3. In the State of Claim section of his Complaint, McCollum laid out his claim:
Defendant held a public auction of Plaintiffs’ property, held by United County Real Estate. They then signed property over to Daniel Arnold Hanson on April 25, 2011. The original deed is dated October 14, 1963.
Id. The Complaint alleges McCollum is entitled to $500, 000 in damages plus punitive damages.
On May 30, 2013, defendant School Board filed its motion asking the court to dismiss the case for several deficiencies: (1) the court does not have subject matter jurisdiction, (2) McCollum does not have standing, (3) the Complaint does not state a claim to relief that is plausible on its face, and (4) McCollum failed to file written notice with the municipality pursuant to Kan. Stat. Ann. 12-105b before filing this case.
II. Legal Standard: Motion to Dismiss
Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The complaint must give the defendant adequate notice of what the plaintiff’s claim is and the grounds of that claim. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
“In reviewing a motion to dismiss, this court must look for plausibility in the complaint . . . . Under this standard, a complaint must include ‘enough facts to state a claim to relief that is plausible on its face.’ “ Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223–24 (10th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (clarifying and affirming Twombly’s probability standard). “The issue in resolving a motion such as this is ‘not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.’ “ Bean v. Norman, No. 008-2422, 2010 WL 420057, at *2, (D. Kan. Jan. 29, 2010) (quoting Swierkiewicz, 534 U.S. at 511).
The court must construe pro se pleadings liberally, but “it need accept as true plaintiff’s well-pleaded contentions, not his conclusory allegations.” Loggins v. Cline, 568 F.Supp.2d 1265, 1268 (D. Kan. 2008). It is not “the proper function of the district court to assume the role of advocate for the pro se litigant, ” and the court should not “construct arguments or theories for the plaintiff” or “supply additional factual allegations to round out a plaintiff’s complaint.” Shelby v. Mercy Regional Hospital, 2009 WL 1067309, at *2 (D. Kan. April 21, 2009). Moreover, pro se litigants are subject to and must follow procedural rules governing all litigants. Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 2002). Even a pro se plaintiff bears the burden of alleging “enough facts to state a claim to relief that is plausible on its face.” Bafford v. Pokorski, 2008 WL 2783132, at *3 (D. Kan. July 17, 2008).
III. Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction. Pentco Corp. Ltd. P’ship-1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991). There is a presumption against the existence of subject matter jurisdiction, and the party invoking jurisdiction has the burden of proving it. Conclusory allegations are insufficient. Id. “Subject-matter jurisdiction is the first question in every case, and if the court concludes that it lacks jurisdiction it must proceed no further.” United States ex rel. Grynberg v. Praxair, Inc., 389 F.3d 1038, 1042 (10th Cir. 2004). When a federal court concludes that it lacks subject matter jurisdiction, it must dismiss the complaint in its entirety. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 ...