United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge.
the court is a Motion to Dismiss and/or Motion for Judgment
on the Pleadings filed by defendant City of Overland Park,
Kansas (the “City”) (Doc. 10). Plaintiff Rodney
DeWalt, who is African-American, alleges that the City
detered the success of his entertainment establishment, an
establishment he geared toward an African-American clientele.
The City contends Mr. DeWalt failed to advance specific
allegations supporting the elements of his
claims-i.e., his Complaint does not satisfy Federal
Rule of Civil Procedure 8's pleading standard. In
response, Mr. DeWalt cites the statutes under which he brings
his claims and conclusory states that his claims should
survive the City's motion. Mr. DeWalt also requests leave
to amend his Complaint if the court concludes his Complaint
does not satisfy Rule 8. But, Mr. DeWalt has not filed a
motion for leave to amend or a proposed amended complaint.
The court concludes Mr. DeWalt's Complaint fails to
allege facts capable of supporting his claims but allows Mr.
DeWalt 10 days to move for leave to amend.
court derives the following factual allegations from Mr.
DeWalt's pro se Complaint (Doc. 1). And, the court
construes Mr. DeWalt's filings liberally because he
proceeds pro se. Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991) (“A pro se litigant's
pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by
DeWalt is an African-American business owner who leased a
building at 10635 Floyd Street, Overland Park, Kansas. Doc. 1
at 1-2 (Compl. ¶¶ 1, 12). Mr. DeWalt leased the
building to open Gossip, a live-entertainment establishment
featuring music and dancing. Id. at 1 (Compl. ¶
2). Mr. DeWalt designed Gossip with an African-American
clientele in mind. Id. The City initially rejected
Mr. DeWalt's proposed use for the building but later
granted Mr. DeWalt (1) a building permit to renovate the
building; and (2) a special use permit to address the absence
of off-street parking controlled by the building for its
occupancy capacity. Id. at 2-3 (Compl. ¶¶
15, 18-19). Mr. DeWalt commenced construction in May 2017.
months thereafter, Mr. DeWalt received threats from members
of the public, telling him that an African-American owned
business geared toward an African-American clientele was
unwanted in Overland Park, Kansas. Id. at 3 (Compl.
¶ 21); see also Id. at 4 (Compl. ¶ 30)
(alleging “hateful and racist calls” continuing
into 2018). And, on May 29, 2017, a porta-potty in front of
the building was set on fire, causing some damage to the
building. Id. (Compl. ¶ 22).
DeWalt completed renovations by the fall of 2017.
Id. (Compl. ¶¶ 23-25). The building
inspector initially refused to issue a certificate of
occupancy because two staircases did not comply with code.
Id. (Compl. ¶ 23). Mr. DeWalt addressed the
issue with the staircases, and he received a certificate of
occupancy on December 6, 2017. Id. (Compl. ¶
25). But, Mr. DeWalt contends the building inspector, when
issuing the certificate of occupancy, overlooked faulty
electrical wiring that was strung together using extension
cords. Id. (Compl. ¶ 24). And, Mr. DeWalt
alleges that the use of extension cords resulted in an
electrical fire within a week of the issuance of the
certificate of occupancy and, also, caused the lights in
Gossip to shut off while patrons occupied the building.
Id. at 3-5 (Compl. ¶¶ 26, 28, 44).
January 2018, Mr. DeWalt hired a different electrician who
altered and/or replaced several components of the electrical
system. Id. at 4 (Compl. ¶ 29). In March 2018,
Mr. DeWalt sought to renew his special use permit.
Id. (Compl. ¶ 32). While the City Planning
Commission granted the permit, it did so with the condition
that Mr. DeWalt employ five security guards during
Gossip's business hours and that Gossip's staff
undergo “active shooter” training. Id.
Also, a member of the City Planning Commission questioned
whether Mr. DeWalt thought about moving his business to a
different location given the “parking situation”
at 10635 Floyd Street. Id. (Compl. ¶ 33).
April 2018, Mr. DeWalt received a letter from one of the
City's code administrators recommending additional
repairs to the electrical system. Id. at 5 (Compl.
¶ 40). Sometime later, Mr. DeWalt decided to close
Gossip. Id. (Compl. ¶¶ 44-45). Mr. DeWalt
largely attributes Gossip's closure to the building
inspector approving the allegedly faulty electrical system at
final inspection and contends the inspector would not have
approved the electrical system if Mr. DeWalt was Caucasian
and/or Gossip was geared toward a Caucasian clientele.
See Id. (Compl. ¶¶ 43-44).
DeWalt also contends that a new business, which opened at
10635 Floyd Street, was not required to submit any drawings
when conducting renovations or acquire a special use permit
for parking. Id. (Compl. ¶ 45). Mr. DeWalt
attributes these purported differences in treatment to his
race, but he does not identify the race of the new lessee or
the specific type of business currently at 10635 Floyd
DeWalt's Complaint presents seven claims for relief.
Id. at 5-9 (Compl. ¶¶ 46-82). Count One
makes a claim under 42 U.S.C. § 1981 for race
discrimination, alleging “gross disparity” in the
treatment of Caucasian and African-American business owners
and the selective enforcement of regulations by the City.
Id. at 5-6 (Compl. ¶¶ 46-53). And, in his
response to the City's motion, Mr. DeWalt elaborates; he
asserts that his Count One claim arises under §
1981's protection for the making and enforcement of
contracts, identifying his lease for the building at 10635
Floyd Street as the contract impaired by the City's
actions. Doc. 14 at 5. Count Two asserts a claim under 42
U.S.C. § 1983 for a procedural due process violation of
his Fourteenth Amendment liberty interest to engage in his
chosen occupation. Doc. 1 at 6-7 (Compl. ¶¶ 54-58).
Count Three makes a § 1983 claim for a Fourteenth
Amendment procedural due process violation in the
infringement of Mr. DeWalt's property interest in the use
of the building at 10635 Floyd Street. Id. at 7
(Compl. ¶¶ 59-64). Count Four advances a §
1983 claim for violation of Mr. DeWalt's Fourteenth
Amendment right to equal protection of the laws. Id.
at 7-8 (Compl. ¶¶ 65-70). And, Count Five raises a
§ 1983 claim for a violation of Mr. DeWalt's First
Amendment freedom of association right, alleging that the
City's actions prevented him from associating with his
African-American clientele and from operating an
establishment where African-Americans could congregate for
social purposes. Id. at 8 (Compl. ¶¶
71-75). Finally, Counts Six and Seven assert state common law
claims-one claiming intentional interference with economic
relations and the other asserting an intentional infliction
of emotional distress claim. Id. at 9 (Compl.
¶¶ 76-82). Mr. DeWalt prays for $6 million in
compensatory damages and $6 million in punitive damages.
Id. at 10.
City filed an Answer to Mr. DeWalt's Complaint. Doc. 5.
The City then moved to dismiss Mr. DeWalt's Complaint or,
in the alternative, for judgment on the pleadings. Doc. 10.
In support of its motion, the City contends Mr. DeWalt's
Complaint fails to advance specific factual allegations
supporting every element of each claim. The City also argues
that Mr. DeWalt (1) fails to identify the city policy,
custom, or practice responsible for the alleged violations;
(2) relies on interests not protected by the Constitution
when advancing his § 1983 claims; and (3) decided to
close Gossip on his own accord. Doc. 11 at 5-17. The City
also seeks to recover its attorney fees under 42 U.S.C.
§ 1988. Id. at 17.
Dewalt's Response to this motion recites the text of the
statutes upon which his claims rely and focuses his claims on
the building inspector's decision to approve the
electrical work despite the use of extension cords. But, Mr.
DeWalt's Response largely fails to confront the arguments
advanced by the City or identify what allegations in his
Complaint allege facts supporting the elements of his claims.
Mr. DeWalt does, however, request leave to amend his
Complaint if the court determines his Complaint does not
satisfy the pleading standard set forth by Federal Rule of
Civil Procedure 8.
Standard of Review
evaluates a Rule 12(c) motion under the same standard that
governs a Rule 12(b)(6) motion to dismiss. Mock v. T.G.
& Y. Stores Co., 971 F.2d 522, 528 (10th Cir. 1992).
The court will grant a motion for judgment on the pleadings
if the factual allegations in the complaint fail to
“state a claim to relief that is plausible on its face,
” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007), or if an issue of law is dispositive, Neitzke
v. Williams, 490 U.S. 319, 326 (1989).
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.”
Although this Rule “does not require ‘detailed
factual allegations, '” it demands more than
“[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action'” which, as the
Supreme Court explained, “will not do.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555).
considering a motion to dismiss under Rule 12(b)(6), the
court must assume that the factual allegations in the
complaint are true. Id. But the court is “not
bound to accept as true a legal conclusion couched as a
factual allegation.” Id. (quoting
Twombly, 550 U.S. at 555). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice” to state a
claim for relief. Bixler v. Foster, 596 F.3d 751,
756 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at
678). Also, the complaint's “[f]actual allegations
must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
complaint to survive a motion to dismiss under Rule 12(b)(6),
the pleading “must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 679 (quoting Twombly, 550 U.S. at 570). “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.” Id. at 678 (citing Twombly,
550 U.S. at 556). “The plausibility standard is not
akin to a ‘probability requirement,' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556); see also Christy Sports, LLC v. Deer
Valley Resort Co., Ltd., 555 F.3d 1188, 1192 (10th Cir.
2009) (“The question is whether, if the allegations are
true, it is plausible and not merely possible that the
plaintiff is entitled to relief under the relevant
law.” (citation omitted)). To satisfy the plausibility
requirement, “the complaint must give the court reason
to believe that this plaintiff has a reasonable
likelihood of mustering factual support for these
claims.” Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).