Opinion
Civil Action No. 02-2264-KHV
November 7, 2002
MEMORANDUM AND ORDER
Byron Karl Canady filed suit against defendant under 42 U.S.C. § 1983, alleging assault by three officers of the Kansas City, Kansas Police Department. This matter is before the Court on defendant's Motion To Dismiss And Supporting Memorandum (Doc. #12) filed August 9, 2002. For reasons stated below, the Court sustains defendant's motion.
Standards For Motion To Dismiss For Failure To State A Claim
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). The issue in reviewing the sufficiency of plaintiff's complaint 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. Servs., 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); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). The Court may not assume the role of advocate for a pro se litigant. Hall, 935 F.2d at 1110.
Factual Background
Plaintiff's complaint alleges the following facts:
Three officers of the Kansas City, Kansas Police Department handcuffed plaintiff and beat, kicked and assaulted him. Plaintiff is still having medical problems as a result of the attack.
On June 18, 2001, plaintiff filed suit against the City of Kansas City, Kansas. See Canady v. City of Kansas City, Kan., No. 01-2302-CM. The Court construed plaintiff's complaint as a civil rights claim under 42 U.S.C. § 1983. See id., 2001 WL 1745269, at *2 (D.Kan. Dec. 12, 2001) On December 12, 2001, the Honorable Carlos Murguia dismissed plaintiff's complaint without prejudice for failure to state a claim upon which relief can be granted. See id.
On June 6, 2002, plaintiff re-filed his complaint against the Unified Government of Wyandotte County/Kansas City, Kansas ("Unified Government"). Plaintiff seeks $500,000 in actual damages and $500,000 in punitive damages.
Analysis
The Unified Government asks the Court to dismiss plaintiff's complaint for failure to state a claim on which relief may be granted. In his complaint and opposition brief, plaintiff provides no details regarding the alleged assault. The Unified Government cannot be liable for the acts of its employees and agents under Section 1983 on a theory of vicarious liability or respondeat superior. See Monell v. Dep't of Social Servs., 436 U.S. 658, 692 (1978); Sauers v. Salt Lake County, 1 F.3d 1122, 1129 (10th Cir. 1993). The Unified Government can be liable under Section 1983 only if an official custom or policy caused a violation of plaintiff's constitutional rights, see Monell, 436 U.S. at 694; Kentucky v. Graham, 473 U.S. 159, 165-66 (1985), or an individual with final policymaking authority made the decision which violated his constitutional rights, see Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84 (1986) (holding that single decision by official responsible for establishing final policy may give rise to municipal liability); Jantz v. Muci, 976 F.2d 623, 630 (10th Cir. 1992) (same), cert. denied, 508 U.S. 952 (1993).The complaint does not identify any municipal custom or any policy or decision by an individual with final policymaking authority. Indeed, the complaint is barren of factual circumstances surrounding the alleged assault. Moreover, the complaint does not contain allegations which suggest any link between a violation of plaintiff's constitutional rights and a custom, policy or decision of the Unified Government. The Court therefore sustains the Unified Government's motion to dismiss.
IT IS THEREFORE ORDERED that defendant's Motion To Dismiss And Supporting Memorandum (Doc. #12) filed August 9, 2002, be and hereby is SUSTAINED.