United States District Court, D. Kansas
MICHAEL T. COCHRAN, Plaintiff,
CITY OF WICHITA, et al., Defendants.
MEMORANDUM AND ORDER
W. BROOMES, UNITED STATES DISTRICT JUDGE
case comes before the court on Defendants' motions to
dismiss (Docs. 49, 51.) The motions have been fully briefed
and are ripe for decision. (Docs. 50, 52, 70, 71.)
Defendants' motions are GRANTED for the reasons stated
Facts and Procedural History
January 8, 2018, Plaintiff filed this action against current
and prior Wichita City Council Members in both their official
and personal capacity. Plaintiff also filed claims against
Deputy Police Chief Troy Livingston and City of Wichita Mayor
Jeff Longwell. Plaintiff alleges that he had filed a previous
action against Defendants alleging constitutional violations
for Wichita City Ordinance 11.44.050 (panhandling) and
5.48.040 (begging), in No. 17-1127. In that action, Plaintiff
challenged those ordinances for violating his right to free
speech. No. 17-1127 was dismissed in May 2018 by Judge
Melgren due to Plaintiff's failure to comply with
December 12, 2017, the Wichita City Council proposed
ordinances 50-642 (Regarding Pedestrian Activities) and
5.50.010 (Harassing and Aggressive Conduct). Those ordinances
were enacted on December 19, 2017, and, as a result, other
ordinances were repealed, including ordinance 11.44.050.
Plaintiff alleges that the ordinances were enacted due to
Defendants' concerns that the homeless and/or panhandlers
would embarrass the City during the NCAA tournament in March
2018 and not because of “public safety” concerns.
(Doc. 1 at 3.)
original complaint was ten pages long and set forth
allegations that Defendants conspired with each other in
violation of federal law to enact the ordinances and deprive
Plaintiff of his First Amendment rights, including his right
to free speech, free exercise of his religion, and right to
peaceably assemble. Defendants moved to dismiss
Plaintiff's original complaint. On August 9, 2018, this
court found that Plaintiff's complaint failed to
establish that this court had subject matter jurisdiction
over his claims. (Doc. 45 at 7.) The court held that
Plaintiff failed to allege that he has suffered an injury due
to a chilling effect on his speech and failed to allege that
his speech was being limited by Defendants' conduct.
(Id.) The court gave Plaintiff an opportunity to
amend in order to cure this deficiency.
August 22, 2018, Plaintiff filed an amended complaint.
Plaintiff's amended complaint spans 70 pages and includes
additional claims not included in Plaintiff's original
complaint, such as a failure to “prevent or aid to
prevent the enforcement of the hostile takeover of the City
of Wichita Municipal Court under City of Wichita Charter
Ordinance 223…” (Doc. 46 at 52.) Plaintiff's
amended complaint also makes conclusory statements such as
the ordinance violates his rights under “Amendments: I,
IV, V, VI, VIII, IX, X, and XIV, Section1.” (Doc. 46 at
have moved to dismiss Plaintiff's amended complaint.
Defendants assert that Plaintiff's amended complaint
fails to comply with Rule 8(a)(2) and also should be
dismissed under Rule 12(b)(6).
Rule of Civil Procedure 8(a) provides a complaint must
contain “a short and plain statement of the grounds for
the court's jurisdiction” and “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” “Each allegation must be
simple, concise, and direct.” Rule 8(d)(1).
Significantly, Rule 8(a) does not establish a floor but
“a ceiling (the complaint must be no more than ‘a
short and plain statement').” Frazier v.
Ortiz, No. 06-1286, 2007 WL 10765, at *2 (10th Cir. Jan.
3, 2007) (citing New Home Appliance Ctr., Inc. v.
Thompson, 250 F.2d 881, 883 (10th Cir. 1957)). Only a
“generalized statement of the facts” is
“permissible.” Id. Failure to comply
with these pleading requirements can result in dismissal sua
sponte. Nasious v. Two Unknown B.I.C.E. Agents, 492
F.3d 1158, 1161 and n. 2 (2007) (“And, to be sure, a
failure to satisfy Rule 8 can supply a basis for dismissal:
Rule 41(b) specifically authorizes a district court to
dismiss an action for failing to comply with any aspect of
the Federal Rules of Civil Procedure.”). While pro se
pleadings are construed liberally, a pro se Plaintiff must
follow the federal rules of civil procedure, including Rule
8. Windsor v. Colorado Dep't of Corr., 9
Fed.Appx. 967, 969 (10th Cir. 2001) (citing Ogden v. San
Juan County, 32 F.3d 452, 455 (10th Cir. 1994),
cert. denied, 513 U.S. 1090 (1995)).
complaint has two purposes: to provide the opposing parties
fair notice of the claims against them and to allow a court
to determine whether a plaintiff is entitled to relief.
Monument Builders of Greater Kan. City, Inc. v. Am.
Cemetery Ass'n of Kan., 891 F.2d 1473, 1480 (10th
Cir. 1989). These purposes are thwarted when a complaint is
unnecessarily long and includes a “a morass of
irrelevancies.” Baker v. City of Loveland, 686
Fed.Appx. 619, 620 (10th Cir. 2017). This court plainly
directed Plaintiff to amend his complaint in order to avoid
dismissal. The court's instruction was to add allegations
regarding his First Amendment claim which would support this
court's subject matter jurisdiction. This court's
order specifically identified the problems with
Plaintiff's 10-page complaint.
of merely amending his complaint to add those allegations,
however, Plaintiff's amended complaint ballooned to more
than five times the original complaint. Plaintiff's
“extended discussion of his claims cloud, rather than
illuminate, whatever facts and law may support his right to
recovery.” Frazier, 2007 WL 10765, at *2.
Plaintiff's claims are essentially a long, convoluted and
rambling narrative rather than a short and plain statement.
In addition to raising claims in his original complaint,
Plaintiff has also asserted facts regarding the alleged
unconstitutionality of the Wichita Municipal Court. Plaintiff
asserts that the City of Wichita has utilized the Home Rule
Clause in the Kansas Constitution to effectuate a
“hostile takeover” of the Municipal Court. (Doc.
46 at 27.) Plaintiff spends pages discussing the Municipal
Court. Moreover, Plaintiff's amended complaint squanders
“dozens of pages on repetitive information.”
Frazier, 2007 WL 10765, at *2 (dismissing an amended
complaint in part because of the repetitive information
included). Instead of specifying what each named Defendant
actually did, Plaintiff appears to have copied and pasted
large sections into claims against each Defendant. It is not
the job of the Court or Defendants to “search through
the Complaint and its voluminous exhibits to glean a clear
and succinct statement of each claim for relief.”
Windsor, 9 Fed.Appx. at 968 (quoting magistrate
judge's order); see also Mann v. Boatright, 477
F.3d 1140, 1148 (10th Cir. 2007) (“It was not the
district court's job to stitch together cognizable claims
for relief from the wholly deficient pleading that
amended complaint fails to sufficiently and succinctly
identify his claims and facts alleged against each Defendant.
Rather, it is a long-winded recitation of facts, conclusory
allegations, and various legal quotations. Even construing
Plaintiff's pro-se pleading liberally, the Court finds
Plaintiff's amended complaint fails to comply with the
“short and plain statement” requirements of Rule
Defendants seek dismissal with prejudice, the court will
dismiss this action without prejudice. Should Plaintiff seek
to refile any of his claims, Plaintiff must set forth a short
and plain statement of his claims. Failure to comply with