Sommerville v. Kansas, State of

Filing 27

MEMORANDUM AND ORDER finding as moot 8 Motion for Review; granting 18 Motion to Dismiss for Lack of Jurisdiction; and granting 20 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Richard D. Rogers on 12/27/2011. Mailed to pro se party Raymond E. Sommerville by certified mail (Certified Tracking Number: 70082810000136784496) (bt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RAYMOND E. SOMMERVILLE,
Plaintiff,
vs.

Case No. 11-4105-RDR

STATE OF KANSAS and CITY
OF MAHASKA, KANSAS,
Defendants.
MEMORANDUM AND ORDER
This matter is presently before the court upon the motions to
dismiss of defendants State of Kansas and City of Mahaska, Kansas.
Plaintiff has failed to timely respond to the defendants’ motions.
Having carefully reviewed the defendants’ motions as well as the
materials that plaintiff has submitted to this court, the court is
now prepared to rule.
I.
Plaintiff, proceeding pro se, filed a complaint and a motion
to proceed in forma pauperis on September 9, 2011.

The magistrate

ultimately allowed plaintiff to proceed in forma pauperis on
October 13, 2011.

Defendant State of Kansas filed a motion to

review the magistrate’s order.

All defendants filed the instant

motions on November 21, 2011.
The nature of plaintiff’s complaint is uncertain.

He is a

resident of Mahaska, Kansas, and he apparently has a variety of
complaints with certain actions taken by the City of Mahaska and

its officials.

He has failed to cite any federal causes of action

or allege jurisdiction under any statute. He complains that he has
(1)

been

threatened

“threatened”
by

council

in

“open

member

council

Cal

meetings;”

Livingston

in

(2)

been

plaintiff’s

driveway; (3) been told that it would cost $10 per hour to see
certain records; (4) been forced to pay for trash/garbage pickup
when he does not use the service;

and (5) been threatened with

water shutoff for nonpayment of his trash/garbage bill.

He also

alleges that the “City of Mahaska violates state and federal laws
and nothing is ever done to them.”

Plaintiff asserts that the

“State of Kansas needs to investigate each and all complaints
regardless how small or large that complaint is.”
following

relief:

(1)

declare

unconstitutional

He requests the
the

law

that

requires him to “pay for a service that is not wanted or needed;”
(2) a judgment “stopping cities from violation of the laws they are
suppose to uphold;” (3) require the State of Kansas to stop the
abuse of power by its cities; and (4) conduct the investigations
that are necessary.

He seeks $10,000,000 in damages.
II.

In its motion, the State of Kansas seeks dismissal pursuant to
Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. The
State argues that it should be dismissed because it is not a proper
defendant based upon Eleventh Amendment immunity.

In its motion,

the City of Mahaska seeks dismissal under Fed.R.Civ.P. 12(b)(6) for

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failure to state a claim upon which relief can be granted.

The

City contends that plaintiff has failed to state a claim under
either 42 U.S.C. § 1983 or state law.

It further asserts that

plaintiff cannot maintain a claim for punitive damages under either
§ 1983 or the Kansas Tort Claims Act.
III.
The court may exercise jurisdiction only when specifically
authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580 (10th
Cir. 1994), and must “dismiss the cause at any stage of the
proceeding in which it becomes apparent that jurisdiction is
lacking.”

Scheideman v. Shawnee County Bd. of County Comm’rs, 895

F.Supp. 279, 281 (D.Kan. 1995)(quoting Basso v. Utah Power & Light
Co., 495 F.2d 906, 909 (10th Cir. 1974)); see also Fed.R.Civ.P.
12(h)(3). The party who seeks to invoke federal jurisdiction bears
the burden of establishing that such jurisdiction is proper.
Basso, 495 F.2d at 909.

See

When federal jurisdiction is challenged,

plaintiff bears the burden of showing why the case should not be
dismissed.

See Jensen v. Johnson Co. Youth Baseball League, 838

F.Supp. 1437, 1439–40 (D.Kan. 1993).
In ruling on a motion to dismiss for failure to state a claim
under Rule 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

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Cir. 1984).

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).
assumed

to

be

The allegations must be enough that, if

true,

the

plaintiff

plausibly,

not

merely

speculatively, has a claim for relief.

Robbins v. Oklahoma, 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).
the

complaint,

the

In addition to the allegations contained in
court

may

consider

attached

exhibits

and

documents incorporated into the complaint, so long as the parties
do not dispute the documents’ authenticity.

Kerber v. Qwest Group

Life Ins. Plan, 647 F.3d 951, 959 (10th Cir. 2011).

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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 shall initially respond to the motion to dismiss
filed by the State of Kansas. The Eleventh Amendment to the United
States Constitution restricts federal jurisdiction over “any suit
in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” U.S. Const. amend. XI.

Although by its

language the Eleventh Amendment might appear to apply only to cases
against states relying on federal diversity jurisdiction, the
Supreme Court has long interpreted it to extend to suits arising
under the federal constitution or federal law.

See Seminole Tribe

of Florida v. Florida, 517 U.S. 44, 54 (1996) (citing Hans v.
Louisiana, 134 U.S. 1, 11-14 (1890)).
the

proper

vehicle

for

asserting

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A Rule 12(b)(1) motion is

Eleventh

Amendment

immunity

because the Eleventh Amendment is a jurisdictional bar which
deprives federal courts of subject matter jurisdiction.
The law is well-settled that plaintiff’s purported claims
against the State of Kansas are barred by the Eleventh Amendment.
Consequently, this court lacks subject matter jurisdiction over
plaintiff’s claims against the State of Kansas.

Accordingly, the

court shall grant the State’s motion to dismiss for lack of subject
matter jurisdiction.
The court shall now consider the City of Mahaska’s motion to
dismiss.

As noted previously, plaintiff has failed to allege any

federal cause of action in his complaint.

The court shall assume

that plaintiff is attempting to assert a claim under 42 U.S.C. §
1983.

In order to support a cause of action under § 1983,

plaintiff must show that (1) he suffered a deprivation of rights,
privileges or immunities secured by the Constitution and laws of
the

United

States;

and

(2)

the

act

or

omission

causing

the

deprivation was committed by a person acting under color of law.
West v. Atkins, 487 U.S. 42, 48 (1988).

The vague allegations

contained in plaintiff’s complaint are simply inadequate to state
a claim under § 1983.
fail

to

allege

a

The various complaints noted by plaintiff

violation

of

any

right

Constitution or the laws of the United States.

protected

by

the

Accordingly, the

City of Mahaska is entitled to dismissal of plaintiff’s complaint
for failure to state a claim upon which relief can be granted.

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With this decision, the court need not consider the State’s
motion

for

review

of

the

magistrate’s

decision

that

granted

plaintiff leave to proceed in forma pauperis.
To the extent that plaintiff has asserted any state law claims
against the City such as defamation or assault, the court shall
decline to exercise supplemental jurisdiction over these claims in
the absence of any viable claim under § 1983.

See 28 U.S.C. §

1367(c)(3); Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d 1228,
1236 (10th Cir. 1998).
IT IS THEREFORE ORDERED that the State of Kansas’ motion to
dismiss (Doc. # 18) be hereby granted.

Plaintiff’s claims against

the State of Kansas are dismissed for lack of subject matter
jurisdiction.
IT IS FURTHER ORDERED that the State of Kansas’ motion for
review of magistrate’s order (Doc. # 8) be hereby denied as moot.
IT IS FURTHER ORDERED that the City of Mahaska’s motion to
dismiss (Doc. # 20) be hereby granted.

Plaintiff’s claims against

the City of Mahaska are denied for failure to state a claim upon
which relief can be granted.
IT IS SO ORDERED.
Dated this 27th day of December, 2011 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge

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