DeWalt v. City of Overland Park

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge.

         Before 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.

         I. Factual Allegations

         The 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 lawyers.”).

         Mr. 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.

         In the 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).

         Mr. 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).

         In 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).

         In 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).

         Mr. 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 Street. Id.

         Mr. 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.

         The 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.

         Mr. 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.

         II. Standard of Review

         A court evaluates a Rule 12(c) motion under the same standard that governs a Rule 12(b)(6) motion to dismiss.^[1] 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).

         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.” 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).

         When 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 (citations omitted).

         For a 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).

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