United States District Court, D. Kansas
ERIC S. CLARK, Plaintiff,
CITY OF WILLIAMSBURG, KANSAS, Defendant.
MEMORANDUM & ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
matter comes before the court upon plaintiff Eric Clark's
Motion to Amend Complaint (Doc. 33), defendant City of
Williamsburg's Motion to Dismiss (Doc. 17),
plaintiff's Motion for Preliminary Injunction (Doc. 15),
and plaintiff's Motion for Determination of Law (Doc.
38). First, because plaintiff proposes an amendment that
asserts a state law claim, the court must determine whether
it could exercise supplemental jurisdiction over that claim
were it to grant plaintiff leave to amend. Second, the court
will determine whether to grant plaintiff leave to amend his
Complaint in the manner he has proposed. Third, the court
will consider defendant's Motion to Dismiss. Lastly, the
court will address plaintiff's remaining motions.
Eric Clark, a pro se litigant, has brought a § 1983
action against defendant City of Williamsburg, Kansas.
Plaintiff's original Complaint alleges violations of his
rights under the First, Fourth, and Fifth Amendments. The
City of Williamsburg is the only named defendant. Plaintiff
seeks damages, injunctive relief, and just compensation for
an alleged taking.
following are relevant facts that the plaintiff alleges in
his Complaint (Doc. 1), which are identical to those alleged
in his proposed First Amended Complaint (Doc. 33-1). On
February 23, 2015, defendant sent plaintiff a notice of
violation (“the Notice”). The Notice stated that
plaintiff had violated Williamsburg Zoning Regulations by
leaving “three large barrels, several signs, and other
affixed objects” on defendant's “right of
way.” (Doc. 1 at 2.) The Notice further stated that
these objects were located within defendant's
“eighty foot easement and will need to be
removed.” (Id. at 2.) Plaintiff alleges that
the easement is actually sixty feet, and that the additional
twenty feet of easement claimed by defendant constitutes a
taking for which he is entitled to just compensation.
(Id. at 13.)
Notice also directed plaintiff to immediately contact
defendant by phone. (Id. at 2.) Plaintiff never did
so. (Id.) The Notice stated the possibility of a
citation, the objects being removed from the easement, and
“actions [that] will continue toward resolution.”
Plaintiff characterizes these statements as “obviously
referring to abatement action by the City.”
(Id.) Plaintiff never attempted to contact defendant
by phone. He also did not request a hearing with defendant,
as the zoning regulations allow within ten days of receiving
a violation notice. And plaintiff never removed the objects
from the area that defendant asserts is part of its right of
way. Defendant has not issued a citation against plaintiff or
removed any of the objects from its purported easement.
March 16, 2015, defendant's Code Enforcement Officer
(“the Officer”) “came onto
[plaintiff's] property and entered onto the curtilage of
[plaintiff's] property including walking behind
[plaintiff's] house.” (Id. at 4.) When
plaintiff discovered the Officer, plaintiff asked the Officer
to leave “several times.” (Id.) For an
unspecified time after that, the Officer remained on
plaintiff's property. (Id.) The Officer left
plaintiff's property after plaintiff told the Officer
that he was going to call the local Sheriff. (Id.)
Pleading under Rule 8 and Dismissal under Rule 12
the Federal Rules of Civil Procedure, a complaint that
“states a claim for relief must contain . . . a short
and plain statement of the claim showing that the pleader
is entitled to relief.” Fed.R.Civ.P. 8(a)(2)
(emphasis added). A party opposing a complaint may assert by
motion that the court should dismiss the complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To
“show that the [plaintiff] is entitled to
relief, ” and thus survive a 12(b)(6) dismissal, a
complaint must contain enough facts to make the
plaintiff's claim for relief “plausible on its
face, ” not just “speculative” or
conceivable. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007) (emphasis added); Ridge at Red Hawk,
L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007). While a court ruling on a motion to dismiss assumes
that all factual allegations in the complaint are true, a
plaintiff does not “show” that he or she
“is entitled to relief” simply by reciting legal
terms or offering conclusions without supportive facts.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Gee
v. Pacheco, 627 F.3d 1178, 1183 (10th Cir. 2010).
§1983 suits against municipalities, such as this case,
courts may not impose a “heightened pleading
standard” that is “more stringent than the usual
pleading requirements of Rule 8(a) [of the Federal Rules of
Civil Procedure].” Leatherman v. Tarrant Cty.
Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 165 (1993). Context is important to the determination of
whether a plaintiff has stated a plausible claim for relief,
and this is no different in the civil rights litigation
context. Iqbal, 556 U.S. at 679 (“Determining
whether a complaint states a plausible claim for
relief” is a “context-specific task.”);
Gee, 627 F.3d at 1185. As a result, the
determination of whether a § 1983 plaintiff states a
plausible claim for violation of his or her constitutional
rights “will vary with the constitutional provision at
issue.” Iqbal, 556 U.S. at 676.
Pro Se Litigants
must be construed so as to do justice.” Fed.R.Civ.P.
8(e). Accordingly, courts apply a “less stringent
standard” to pro se pleadings than they would to those
drafted by lawyers. Estelle v. Gamble, 429 U.S. 97,
106) (1976). It is especially important for courts to
consider the “liberal pleading standards” under
Rule 8(a)(2) “when [the plaintiff] has been proceeding,
from the litigation's outset, without counsel.”
Erikson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle, 429 U.S. at 106) (internal quotations
omitted). Despite these less stringent standards, however,
courts “cannot take on the responsibility of serving as
the [pro se] litigant's attorney in constructing
arguments and searching the record.” Garrett v.
Selby Connor Maddux & Janner, 425 F.3d 836, 840
(10th Cir. 2005).
Pleading Municipal Liability under § ...