Lomax v. Pittsburg, Kansas, City of et al

Filing 29

MEMORANDUM AND ORDER granting 14 Motion to Dismiss; granting 16 Motion to Dismiss; granting 24 Motion to Dismiss; granting 27 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Julie A. Robinson on 2/14/17. Mailed to pro se party Vincent Lomax by regular and certified mail ; Certified Tracking Number: 7012 3460 0000 8262 5859. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
VINCENT LOMAX,
Plaintiff,
v.

Case No. 16-2737-JAR-JPO

CITY OF PITTSBURG, KANSAS, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Vincent Lomax, proceeding pro se and in forma pauperis, brought this action
against the City of Pittsburg, Kansas (“the City”) and the Southeast Kansas Community Action
Program, Inc. (“SEK-CAP”) under 42 U.S.C. § 1983, alleging violation of his “constitutional &
statutorily guaranteed civil rights.” The Amended Complaint also names Becky Gray, Deena
Hallacy, Amanda Roedel, Steve Lohr, and Timi Myers, individually and in their official capacity
as agents, officers, and employees of Defendants. Before the Court are Defendants’ respective
Motions to Dismiss Pursuant to Fed. R. 12(b)(6) (Docs. 14, 16, 24, 27). Plaintiff has failed to
respond to the motions and the time to do so has expired. The motions can therefore be granted
for failure to file a response. The motions can also be granted on the merits, as described more
fully below.
I.

Failure to Respond
Plaintiff failed to file a response to the motions to dismiss and the time to do so has

expired.1 Under D. Kan. Rule 7.4,
Absent a showing of excusable neglect, a party or attorney who
1

See D. Kan. R. 6.1(d)(2) (requiring a response to a dispositive motion to be filed within twenty-one days).

fails to file a responsive brief or memorandum within the time
specified in D. Kan. Rule 6.1(d) waives the right to later file such
brief or memorandum. If a responsive brief or memorandum is not
filed within the Rule 6.1(d) time requirements, the court will
consider and decide the motion as an uncontested motion.
Ordinarily, the court will grant the motion without further notice.
A pro se litigant is not excused from complying with the rules of the court, and is subject to the
consequences of noncompliance.2 As a result of Plaintiff’s failure to respond, the Court may
grant Defendants’ motions to dismiss as uncontested.
II.

Motion to Dismiss
Liberally construing Plaintiff’s pro se Amended Complaint, as it must,3 the Court also

finds that the Amended Complaint must be dismissed on the merits for the reasons identified in
Defendants’ respective motions to dismiss. First, with respect to the City and Defendants Gray,
Hallacy, and Roedel, who are or were employees of the City who worked in the Pittsburg
Housing Authority, Plaintiff’s Amended Complaint does not identify any constitutional
provision or constitutional right that was violated. Instead, his claim appears to be based entirely
upon statutory rights, including federal statutes concerning housing discrimination.4 But
Plaintiff does not plead any facts suggesting how the City or the individual Defendants acted
“jointly or collectively,” or even what the City or the individual Defendants allegedly did to
violate his rights. Plaintiff’s bare allegation of wrongdoing is insufficient for the Court to draw
“the reasonable inference that the defendant is liable for the misconduct alleged.”5
2

Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994) (insisting that pro se litigants follow procedural rules and citing various cases dismissing pro se
cases for failure to comply with the rules)).
3

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

4

Plaintiff cites or attaches 42 U.S.C. § 1437f (pertaining to low-income housing assistance); 42 U.S.C. §
3604 (concerning discrimination in the sale or rental of housing); 42 U.S.C. §§ 3610–3613 (concerning the filing of
complaints with the Secretary of the Department of Housing and Urban Development and related investigative
procedures).
5

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

2

Moreover, “[m]unicipalities may not be held liable under § 1983 on a respondeat
superior theory.”6 A municipality may only be held liable under § 1983 “if an official custom or
policy caused a violation of plaintiff’s constitutional rights,”7 or “if an individual with final
policymaking authority violated plaintiff’s constitutional rights.”8 Plaintiff fails to allege any
facts or allegations suggesting that an official custom or policy of the City, including the
Pittsburg Housing Authority, caused a violation of his rights. Instead, he alleges only that the
City engaged in “unlawful application of certain administrative policies, provisions, rules,
regulations and guidelines.” Thus, Plaintiff cannot make out a claim that any policy of the City
caused a violation of his rights.
Second, Plaintiff’s claims against SEK-CAP and Defendants Lohr and Myers, who serve
respectively as Executive Director and Housing and Homeless Coordinator for SEK-CAP, are
similarly insufficient. Plaintiff makes no effort to specify which of the cited statutes was
allegedly violated by SEK-CAP, nor does he specify how SEK-CAP or its employees violated
any statutes. While Plaintiff makes broad allegations regarding the violation of his constitutional
rights, he fails to specifically articulate what those rights are and how they have been violated.
“[A] pro se litigant bringing suit in forma pauperis is entitled to notice and an
opportunity to amend the complaint to overcome any deficiency unless it is clear that no
amendment can cure the defect.”9 Leave need not be granted if amendment would be futile.10
However, if the pro se plaintiff’s factual allegations are close to stating a claim but are missing
6

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978).

7

Dempsey v. City of Baldwin City, 333 F. Supp. 2d 1055, 1070 (D. Kan. 2004), aff’d sub nom., Dempsey v.
City of Baldwin, 143 F. App’x 976 (10th Cir. 2005) (citing Monell, 436 U.S. at 692).
8

Id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481–84 (1986)).

9

Denton v. Hernandez, 504 U.S. 25, 34 (1992).

10

See Gee v. Pacheco, 627 F.3d 1178, 1195 (10th Cir. 2010).

3

some important element, the Court should allow him leave to amend.11 The Court finds that
leave to amend would be futile. Plaintiff, who has previously been granted leave to amend his
Complaint, has not alleged facts that come close to stating a claim under § 1983 against any of
the Defendants. For all of these reasons, Plaintiff’s claims must be dismissed in their entirety.
IT IS THEREFORE ORDERD BY THE COURT that Defendant SEK-CAP’s Motion
to Dismiss (Doc. 14), Defendant City of Pittsburg’s Motion to Dismiss (Doc. 16), Defendants
Lohr and Myers’s Motion to Dismiss (Doc. 24), and Defendants Gray, Hallacy, and Roedel’s
Motion to Dismiss (Doc. 27) are granted.
IT IS SO ORDERED.
Dated: February 14, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

11

Id. (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).

4