Opinion
Case No. 10-CV-2658-EFM.
June 8, 2011
MEMORANDUM AND ORDER
Plaintiff Carol A. Williams brings this action, pro se and in forma pauperis. Defendants include Clay County, Missouri, the Johnson County Police Department, and the Wyandotte County Police Department. Before the Court are all Defendants' Motions to Dismiss (Docs. 19, 21, 26). For the following reasons, Defendants' motions are granted.
I. Facts and Procedural Background
Plaintiff Carol A. Williams filed this action as a Form Complaint. She also attached several exhibits to the Form Complaint. In the complaint, she named "Clay County," "Johsonson (sic) County," and "Wdy (sic) County" as Defendants. Williams was then granted in forma pauperis status and ordered to provide the addresses of all named Defendants. When listing the addresses, Williams named the Defendants as "Clay County Police Department," "Johnson County Police Department," and "Wyandotte County Police Department."
Although Williams listed "Wyandotte County Police Department" as a Defendant (Doc. 7), the address she provided was for the Kansas City, Kansas Police Department headquarters. There exists a Wyandotte County Sheriff's Office, and a Kansas City, Kansas Police Department, but there is no "Wyandotte County Police Department." For purposes of this order, the named Defendant "Wyandotte County Police Department" will be treated as a subordinate governmental entity of the Unified Government of Wyandotte County.
In the Jurisdiction section of the Form Complaint, under diversity, Plaintiff partially filled in a response. The Form states, "Plaintiff is a citizen of the State of [blank]." Williams wrote "yes" in the blank, apparently m eaning Kansas. W illiams made no other notation in the section on diversity jurisdiction. On the federal question jurisdiction section, Williams wrote a response in the section captioned "Other grounds (specify and state any statute which gives rise to such grounds)." Her response was, "I'm a victim of Identity Theft," and she did not check the boxes indicating that the case arose under the Constitution or a federal statute.
On the Statement of Claim section of the Form, Williams wrote, "I'm a victim of identity theft I was robbed and I want my name clear and exspunged (sic)." Williams did not write anything in the section of the Form that asked for relief requested.
There are then three yes or no questions on the Form. The questions read, "Do you claim the wrongs alleged in your com plaint are continuing to occur at the present tim e? Do you claim actual damages for the acts alleged in your complaint? Do you claim punitive monetary damages?" Williams circled yes for all three questions.
The Form then stated, "[i]f you answered yes, state the amounts claimed and the reasons you claim you are entitled to recover m oney damages." Williams wrote, "Being a victim of Identity Theft the police department in Wdy County Clay County and Johson (sic) County has put me on Data Basic as resurt (sic) I lost the job had in 1995. Has of then look at Document #33 is exsupose (sic) of turning me down of Police Data Basic." Plaintiff did not provide any dollar am ount for damages.
Under the Administrative Procedures section of the Form, Williams circled no when asked if the claims in this civil action had been presented through any type of administrative procedure. When asked to indicate a reason why adm inistrative procedures had not been pursued, W illiams wrote, "I was a victim of Identity Theft and it was not handle right and I need my name clear."
The exhibits attached to the Form Complaint included a form letter from the U.S. Census Bureau. The letter noted that W illiams' application for temporary employment was "potentially flagged as disclosing information pertaining to aconviction, court martial, or pending charges." The letter further stated that there was a chance the record did not concern W illiams and provided instructions for her to dispute the identity of the arrest record in question.
Williams also provided orders of dismissal from Wyandotte County dated June 10, 1997, Johnson County dated June 27, 1997, and Clay County dated January 23, 2002. She then attached the second page of what might be a Motion to Dismiss or Motion for Directed Verdict dated June 27, 1997, and a letter from the Missouri State Public Defender System noting that the above case in Clay County had been dismissed. Finally, Williams included a photocopy of a Missouri driver's license listing "Williams, Carol A." Handwritten beneath the driver's license is a note stating, "Past 10 years this lady has stolen my identity. Police did not correct their mistake. I need redress."
Defendants filed Motions to D ismiss (Docs. 19, 21, 26). P laintiff subsequently filed a document entitled "Motion to Amend the Complaint." Williams also filed a Response meant to apparently address all Motions to Dismiss.
This document was designated as a Supplement (Doc. 24).
Doc. 31. This document was not timely filed as to any of the three Defendant's motions, nor does the response address Defendants' arguments for dismissal.
All Defendants assert that the court either lacks subject m atter jurisdiction or that the Defendant lacks the capacity to be sued. Two Defendants assert that Plaintiff fails to assert a claim Clay County, Missouri further asserts that the court lacks personal jurisdiction, and the complaint is filed in an improper venue. In addition, Wyandotte County Police Department filed a Motion to Quash asserting insufficiency of process and insufficiency of service of process.
II. Legal Standard
A. Lack of Capacity to be Sued
The capacity of a party to be sued infederal court is determined by state law. Under Kansas law, "subordinate governm ental agencies do not have the capacity to sue or be sued" absent a specific statute. In noting that K.S.A. § 75-6103 subjects a governmental entity to liability for damages caused by the negligent action or wrongful act or omission of its employees, the Kansas Supreme Court cited K.S.A. § 75-6102(c) defining governmental agencies as either the state or a municipality. A municipality is defined as "any county, township, city, school district or other political or taxing subdivi sion of the state, or any agency, authority, institution or other instrumentality thereof." No statute in Kansas gives a police department the capacity to sue or be sued.
Fugate v. Unified Gov't of Wyandotte Cnty./Kansas City, Kan., 161 F. Supp. 2d 1261, 1266 (D. Kan. 2001) (citing Hopkins v. State, 237 Kan. 601, 606, 702 P.2d 311, 316 (1985)).
Hopkins, 237 Kan. at 606, 702 P.2d at 316-317.
Pfuetze v. Kansas, 2010 WL 3892243, at *5 (D. Kan. 2010).
B. Rule 12(b)(1) Standard
District courts have "original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States." "A case arises under federal law if its `well pl eaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'" District courts also have "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states." Municipal subdivisions of the state, such as counties, cities, towns or school districts, having separate corporate entities, are citizens for the purposes of diversity. Plaintiff is responsible for showing the court by a preponderance of the evidence that jurisdiction is proper. Mere allegations of jurisdiction are not enough.
28 U.S.C. § 1331.
Nicodemus v. Union Pac. Corp., 440 F.3d 1227, 1232 (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983)).
28 U.S.C. § 1332.
Oklahoma ex. rel. Williams v. Okla. Natural Gas Corp., 83 F.2d 986, 988 (10th Cir. 1936).
United States v. Rockwell Int'l Corp., 282 F.3d 787, 797 (10th Cir. 2002).
Id. at 798.
Federal courts are courts of lim ited jurisdiction and, as such, m ust have a statutory or constitutional basis to exercise jurisdiction. The law imposes a presumption against jurisdiction, and plaintiff bears the burden of showing that jurisdiction is proper.
Lindstrom v. United States, 510 F.3d 1191, 1193 (10th Cir. 2007).
See, e.g., Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005).
C. Rule 12(b)(6) Standard
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim for relief that is plausible on its face.'" "[T]he m ere metaphysical possibility that som e plaintiff could prove som e set of facts in support of the plea ded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally suficient to state a claim for which relief may be granted."
Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003).
In determining whether a claim is facially plausible, the court m ust draw on its judicial experience and common sense. All well pleaded facts in the complaint are assumed to be true and are viewed in the light m ost favorable to the plaintif f. Allegations that m erely state legal conclusions, however, need not be accepted as true.
Iqbal, 129 S. Ct. at 1950.
See Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984).
See 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." However, "it is not the proper function of the district court to assume the role ofadvocate for the pro se litigant." "[T]he court will not construct arguments or theories for the plaintiff in the abse nce of any discussion of those issues." Furthermore, when a party proceeds in forma pauperis, the court shall dismiss the case at any time if the court determ ines that the action is "(i) f rivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief."
Hall, 935 F.2d at 1110.
Id.
Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
28 U.S.C. § 1915(e)(2)(B) (i-iii).
III. Analysis
Both the Johnson County Police Department and the Wyandotte County Police Department assert that they lack the capacity to be sued. It is well established that under Kansas law, police departments lack the capacity to be sued. Because no Kansas statute gives a police department the capacity to sue or be sued, both the Johnson County Police Departm ent and the W yandotte County Police Department must be dismissed.Clay County, Missouri asserts that the Court lacks subject m atter jurisdiction because the complaint does not meet the requirements for diversity. While Williams is a citizen of Kansas, she never indicated what relief was sought further than circling "yes" on the Form Complaint when asked i f she was seeking actual and punitive dam ages. Because the Plaintiff m ust show that jurisdiction is proper, and Williams has failed to show that the sum or value in controversy meets the requirements for diversity, this Court cannot exercise jurisdiction under 28 U.S.C. § 1332. In addition, Plaintiff does notprovide any basis for federal question jurisdiction. Because the Court cannot discern any federal claim, or the amount in controversy, Williams fails to establish that the Court has subject matter jurisdiction, and all Defendants must be dismissed.
Plaintiff originally named "Clay County" as a Defendant in her Form Complaint, then named "Clay County Police Department" and provided the address for the Clay County Sheriff's Department Doc. 7. Because Defendant was originally named as Clay County, and has proceeded as Clay County, Missouri, the Court considers the named Defendant to be Clay County, Missouri.
Although Johnson County Police Department surmises that Plaintiff might be alleging a 42 U.S.C. § 1983 violation, the Court cannot act as a pro se litigant's advocate, and the allegations are much too cursory for the Court to presume what, if any, federal statute was violated. As such, the Court does not treat this claim as a § 1983 violation. The Court notes that if this were a § 1983 violation, and if the claim's accrued from the date of dism issal for the respective cases, the statute of lim itations would have expired in Kansas two years after the cases in the respective counties were dismissed ( Johnson v. Johnson Cnty. Comm'n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991) (citing K.S.A. § 60-513(a)(4)), or would have expired in Missouri five years after the case in Clay County was dismissed. ( Lohman v. Kempker, 2002 WL 992330, at *1 (8th Cir. 2002) (citing Mo. Rev. Stat. § 516.120(4) (2000)).
IT IS ACCORDINGLY ORDERED that all Defendants' Motions to Dismiss (Docs. 19, 21, 26) are hereby GRANTED.