Tank v. Donovan et al
Filing
48
MEMORANDUM AND ORDER granting 42 Motion to Dismiss. Plaintiff's claims against defendants Shawn Donovan and Julie Tudor are dismissed pursuant to FRCP12(b)(6) for failure to state a claim upon which relief can be granted and for lack of subje ct matter jurisdiction pursuant to FRCP 12(b)(1). IT IS FURTHER ORDERED that the "John Doe" defendants be hereby dismissed without prejudice pursuant to FRCP 4(m). Signed by District Judge Richard D. Rogers on 4/11/2012.Mailed to pro se party John J. Tank by certified mail ; Certified Tracking Number: 70101060000094211134 (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN J. TANK,
Plaintiff,
vs.
Case No. 11-2439-RDR
SHAUN DONOVAN and
JULIE TUDOR,
Defendants,
MEMORANDUM AND ORDER
This matter is presently before the court upon the motion of
defendants
Shaun
Donovan,
Secretary
of
Housing
and
Urban
Development (HUD), and Julie Tudor, Public Housing Revitalization
Specialist in HUD’s Kansas City Regional Office, to dismiss or, in
the alternative, for summary judgment. Having carefully considered
the arguments of the parties, the court is now prepared to rule.
I.
On August 8, 2011 plaintiff, proceeding pro se, commenced this
action against the instant federal defendants, six other defendants
(non-federal defendants), and two “John Doe” defendants.
In his
complaint, plaintiff indicates that he is a former resident of
Plaza Towers in Kansas City, Kansas.
Plaintiff has alleged in his
complaint that Plaza Towers is managed by HUD.
Plaintiff raises
various complaints of actions that were taken by the defendants and
others during his residency.
The exact nature of the claims is
difficult to discern, but he has summarized them as follows:
“1.
The invasion of the plaintiff’s home without due process as
required by Kansas law and protected by federal law and the
Constitution Amendment IV. 2. No notices and abuse of notices. 3.
Invasion of confidential information and right of privacy.
Right to drink alcoholic drinks on property.”
“This
complaint
is
not
against
the
U.S.
4.
He further states:
Government
but
the
extortion and denial of rights granted by the United States
Constitution and the laws of the land.
people
in
positions
of
authority
going
This action is against
beyond
the
color
of
authority in their remands and actions to the point of abuse and
invasion of other’s rights and privacy.
This abuse has been in
form of blackmail and ‘it will be done as I demand or else.’”
The court dismissed plaintiff’s claims against the non-federal
defendants on January 25, 2012.
In the order, the court stated:
Plaintiff has asserted that he believes he was treated
unfairly on several occasions during his residency. He,
however, has failed to sufficiently state how that
treatment constitutes a violation of federal or state
law. Even the particulars of his alleged unfair treatment
are difficult to discern. Moreover, plaintiff has failed
to even assert any unfair or improper actions by some of
the defendants. In sum, the court finds it necessary to
grant defendants’ motion to dismiss. The court finds that
plaintiff has failed to state a claim against any of
these defendants upon which relief could be granted. Even
when viewed liberally, plaintiff’s complaint fails to
contain enough facts to state a claim to relief that is
plausible on its face.
II.
In the instant motion, the federal defendants seek dismissal
for failure to state a claim upon which relief can be granted and
2
lack of subject matter jurisdiction.
The federal defendants
initially argue that plaintiff’s constitutional claims should be
dismissed for lack of subject matter jurisdiction because they are
barred by sovereign immunity.
They further argue that plaintiff’s
constitutional claims, as well as his civil rights and privacy
claims, should be dismissed for failure to state a claim.
In the
alternative, they contend they are entitled to summary judgment on
them.
Finally, they contend that any claim asserted by plaintiff
under Kansas law should be dismissed for failure to state a claim
on which relief can be granted.
III.
In ruling on a motion to dismiss for failure to state a claim
under
Fed.R.Civ.P.
12(b)(6),
the
court
assumes
as
true
all
well-pleaded facts in plaintiff’s complaint and views them in a
light most favorable to plaintiff. See Zinermon v. Burch, 494 U.S.
113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th
1984).
Cir.
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must present factual allegations that “raise a right to
relief above the speculative level” and must contain “enough facts
to state a claim to relief that is plausible on its face.”
Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
The allegations must be
enough that, if assumed to be true, the plaintiff plausibly, not
merely speculatively, has a claim for relief. Robbins v. Oklahoma,
3
519 F.3d 1242, 1247-48 (10th Cir. 2008).
“‘Plausibility’ in this
context must refer to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of conduct,
much of it innocent, then the [plaintiff ‘has] not nudged [his]
claims across the line from conceivable to plausible.’”
Id.
(quoting Twombly, 550 U.S. at 570). Under this standard, “the mere
metaphysical possibility that some plaintiff could prove some set
of facts in support of the pleaded 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.”
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174,
1177 (10th Cir. 2007).
Because plaintiff is proceeding pro se, the court construes
his pleadings liberally and holds the pleadings to a less stringent
standard than formal pleadings drafted by lawyers.
Erickson v.
Pardus, 551 U.S. 89, 94 (2007); McBride v. Deer, 240 F.3d 1287,
1289 (10th Cir. 2001).
Liberal construction does not, however,
“‘relieve the plaintiff of the burden of alleging sufficient facts
on which a recognized legal claim could be based.’”
Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (quotation omitted).
The court need not accept as true those allegations that state only
legal conclusions.
See id.
IV.
The court has carefully reviewed plaintiff’s complaint.
4
We
have previously noted that plaintiff’s complaint is “virtually
impossible to decipher.”
determine.
The nature of his claims is difficult to
Plaintiff raises a variety of complaints, but does
little to demonstrate a violation of federal or state law.
He has
failed to adequately address the arguments asserted by the federal
defendants in the instant motion in his response.
Rather, he has
suggested that these defendants have not properly served him with
the instant motion or other documents. The court finds no merit to
this contention. The pleadings filed by plaintiff indicate that he
has received copies of the defendants’ motion and other pleadings.
He has suggested that the court should simply “proceed” to trial.
This we cannot do.
The court finds that the arguments offered by
the federal defendants have merit.
The constitutional claims
asserted by the plaintiff against the federal defendants are barred
by sovereign immunity. Atkinson v. O’Neill, 867 F.2d 583, 590 (10th
Cir. 1989).
The other claims–-whether asserted as civil rights
claims, privacy claims or claims under state law--fail to state a
claim
upon
which
relief
can
be
granted.
Even
when
viewed
liberally, plaintiff’s complaint fails to contain enough facts to
state a claim to relief against these defendants that is plausible
on its face.
In sum, the court finds it necessary to grant
defendants’ motion to dismiss.
V.
The court shall also dismiss, without prejudice, plaintiff’s
5
allegations against the “John Doe” defendants.
These defendants
remain unidentified and have yet to be served with a summons and
copy of the complaint.
Since more than 120 days have passed since
plaintiff filed the complaint, the court dismisses these defendants
without prejudice pursuant to Fed.R.Civ.P. 4(m).
IT IS THEREFORE ORDERED that defendants’ motion to dismiss
(Doc.
#
42)
be
hereby
granted.
Plaintiff’s
claims
against
defendants Shaun Donovan and Julie Tudor are dismissed pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief can be granted and for lack of subject matter jurisdiction
pursuant to Fed.R.Civ.P. 12(b)(1).
IT IS FURTHER ORDERED that the “John Doe” defendants be hereby
dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m).
IT IS SO ORDERED.
Dated this 11th day of April, 2012 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
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