Opinion
CIVIL ACTION No. 01-2302-CM
December 12, 2001
MEMORANDUM AND ORDER
Magistrate Judge David J. Waxse issued a notice and order to show cause (Doc. 4) on September 5, 2001., directing pro se plaintiff Byron Karl Canady to show good cause why this case should not be dismissed in its entirety for failing to state a claim upon which relief can be granted. Plaintiff filed a response to the court's order on September 28, 2001. Having reviewed plaintiff's response, the file in this matter, and relevant law, the court finds that plaintiff has failed to state a claim upon which relief can be granted.
I. Background
In his original complaint, plaintiff, utilizing a preprinted complaint form, indicated that he was filing a complaint under Title VII of the Civil Rights Act of 1964 for employment discrimination. However, plaintiff set forth no facts to support his claim. Accordingly, the Magistrate Judge — in conjunction with his consideration of the plaintiff's request for leave to file the action without payment of fees, costs, or security — ordered plaintiff to show cause in writing to the undersigned judge why his case should not be dismissed in its entirety for failing to state a claim upon which relief can be granted.
In his response, plaintiff asserted that his filing of an employment discrimination claim was error and requested the "court to discard" his claim. Specifically, plaintiff's response states that "the filing of Employment discrimination was filed in error (sic). Respectfully request the court to discard." Plaintiff then asserted that he "will show good cause in this matter with documentation and eyewitness accounts [that:]
1. Plaintiff was handcuffed beaten and kicked about the head and facial area which has caused Plaintiff to be out-of-work, under Doctors (sic) care for physically (sic) and emotional issues because of this Assault.
2. This is not a frivolous or malicious suit, but one in which Plaintiff is seeking justice. Plaintiff suffered damages due to the violation of Civil Rights.
3. Plaintiff will or can at this point provide documentation supporting this claim."
(Plaintiff's Response, Doc. 5).
II. Pro Se Litigant
The court is mindful that plaintiff in this action appears pro se. A pro se litigant's pleadings are to be construed liberally and are held to a less stringent standard than formal pleadings drafted by lawyers.See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Tenth Circuit has stated, "We believe that this rule means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Id. The court may not, however, assume the role of advocate for the pro se litigant. See Van Deelen v. City of Eudora, Ks., 53 F. Supp.2d 1223, 1227 (D. Kan. 1999). Moreover, the court "will not supply additional factual allegations to round out a plaintiffs complaint or construct a legal theory on a plaintiff's behalf." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citingHall, 935 F.2d at 1110).
III. Analysis
Given the allegations set forth in his response, the court construes plaintiff's claim as seeking to state a civil rights claim under 42 U.S.C. § 1983 against the defendant municipality. Complaints alleging municipal liability under § 1983 are evaluated under the usual pleading requirements of Fed.R.Civ.P. 8(a). Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168-69 (1993). Rule 8(a) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). Plaintiff's complaint must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."Conley v. Gibson, 355 U.S. 41, 47 (1957).
A municipality may be subjected to liability under § 1983 only where the action alleged to be a violation of constitutional or federal law executes or implements a governmental policy or custom. Monell v. New York City Dep't of Soc, Servs., 436 U.S. 658, 690-91 (1978). A municipality is not subject to liability under § 1983 on the theory of respondeat superior. Id. at 691; Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997) (noting a municipality "may not be held liable under § 1983 solely because it employs a tortfeasor"). Instead, a plaintiff "seeking to impose liability on a municipality under § 1983 [must] identify a municipal 'policy' or 'custom" that caused the plaintiffs injury." Brown, 520 U.S. at 403 (citing Monell 436 U.S. at 694).
Therefore, even if the court assumes that it is an employee of the city who carried out the actions set forth by plaintiff in his response, it cannot impute those actions to the defendant municipality unless plaintiff alleges that the individual acted pursuant to a municipal policy or custom. See id.; Monell, 436 U.S. 690-91. Because plaintiff's allegations do not reference the existence of any policy or custom, his complaint, even if modified to include the allegations listed above, fails to state a claim for municipal liability pursuant to § 1983.
IV. Conclusion
IT IS THEREFORE ORDERED that plaintiff has not demonstrated good cause sufficient to prevent the dismissal of his case in its entirety for failing to state a claim upon which relief can be granted. Accordingly, plaintiff's complaint is dismissed in its entirety, without prejudice.
IT IS SO ORDERED.