Opinion
CIVIL ACTION No. 03-2181-KHV
September 5, 2003
MEMORANDUM AND ORDER
Aaron Mabon filed suit against his employer, the Board of Public Utilities for the City of Kansas City, Kansas ("BPU"), various officers of the BPU, and the Unified Government of Wyandotte County/Kansas City, Kansas ("Unified Government"), alleging discrimination based on race and age in violation of Title VH of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. This matter is before the Court on defendants' Motion To Dismiss For Failure To State A Claim Upon Which Relief Can Be Granted (Doc. #9) filed June 25, 2003. For reasons set forth below, the Court sustains defendants' motion.
Standards For Motions To Dismiss Under Rule 12(b)(6)
A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Associated Wholesale Grocers. Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez., 819 F.2d 965, 968 (10th Cir. 1987). In reviewing the sufficiency of plaintiff s complaint, the issue is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. Rehab. Serv., 871 F. Supp. 1331, 1333 (D. Kan. 1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Greeny. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). The Court may not assume the role of advocate for a pro se litigant See Hall, 935 F.2d at 1110.
Factual Background
Plaintiffs complaint alleges the following facts:
Plaintiff is a current employee of the BPU. Plaintiff alleges that the BPU denied him certain work opportunities and foiled to promote him due to his race, national origin, age and retaliation for prior protected activity. Plaintiff filed suit under Title VII and the ADEA against the BPU, its board members, one of its employees and the Unified Government.
Analysis
All defendants except the Unified Government seek dismissal because they are not proper party defendants. Plaintiff has not responded to defendants' argument, but asks the Court to postpone ruling on defendant's motion until he can obtain counsel. See plaintiffs Reply In Support Of Plaintiff s Motion To Not Have Claim Dismissed (Doc. #17) filed Augusts, 2003; plaintiffs Response To Defendant's Motion To Dismiss For Failure To State A Claim Upon Which Relief Can Be Granted (Doc. #10) filed July 11, 2003. Plaintiff has been unable to obtain counsel and he has not shown that he likely will be able to do so in the near future. As explained above, pro se litigants must follow the same procedural rules as other litigants. See Hughes, 449 U.S. at 9. Plaintiff had an opportunity to respond to defendant's motion on the merits, but he chose not to do so. In any event, defendant's motion is well taken on the merits.
Plaintiff has had ample opportunity to search for counsel since May 1, 2002 — the date he filed charges with the EEOC.
The BPU cannot be sued because it is a subordinate governmental agency.See Fuguate v. Unified Gov't of Wyandotte County/Kansas City. Kan., 161 F. Supp.2d 1261, 1266 (D. Kan. 2001) (absent specific statute, subordinate governmental agencies lack capacity to sue or be sued). The BPU can only be sued in the name ofthe Unified Government.See Section 13(j) ofCharter Ordinance ("The [BPU] may sue and be sued but only in the name and on behalf of the Unified Government"), attached as Exhibit A to defendant's Motion To Dismiss For Failure To State A Claim Upon Which Relief Can Be Granted (Doc. #9). The Court therefore dismisses plaintiffs claims against the BPU.
As to the individual defendants in their official capacities, a suit against a municipal official in an official capacity is no different than a suit directly against the municipality. See Watson v. City of Kansas City, 857 F.2d 690, 695 (10th Cir. 1988); see also Starrett v. Wadley, 876 F.2d 808, 813 (10th Cir. 1989) (municipality and supervisory official sued in official capacity are "essentially the same entity"). Because plaintiff also has named the Unified Government, his suit against municipal officers in their official capacities is redundant and unnecessary. See Gallardo v. Bd. of County Comm'rs, 1995 WL 106366, at *2 (D. Kan. Jan. 11, 1995). Dismissal of the official capacity suit would promote judicial economy and efficiency, prevent juror confusion, and streamline the pleadings.See id. The Court therefore sustains defendant's motion to dismiss plaintiffs official capacity claims. See Hogan v. City of Independence. Kan., 2003 WL 21685907, at *1 n.l (D. Kan. July 11, 2003); Smith v. Bd. of County Comm'rs of County of Lyon, 216 F. Supp.2d 1209, 1220 (D. Kan. 2002); Bums v. Bd. of County Comm'rs of Jackson County. Kan., 197 F. Supp.2d 1278, 1296-97 (D. Kan. 2002);Sims v. Unified Gov't of Wyandotte County/Kansas City. Kan., 120 F. Supp.2d 938, 944 (D. Kan. 2000); White v. Midwest Office Tech., Inc., 979 F. Supp. 1354, 1356 (D. Kan. 1997);Gallardo, 1995 WL 106366, at *2.
As to the individual defendants in their individual capacities, Title VII and the ADEA do not permit such claims. See Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993) (Title VII);Ledbetter v. City of Topeka. Kan., 112 F. Supp.2d 1239, 1244 (D. Kan. 2000) (ADEA).
IT IS THEREFORE ORDERED that defendants' Motion To Dismiss For Failure To State A Claim Upon WhichRelief Can Be Granted (Doc. #9) filed June 25, 2003 be and hereby is SUSTAINED. Plaintiff's claims against the Unified Government ofWyandotte County/Kansas City, Kansas remain in this case.