Gietzen v. Wichita, Kansas, City of et al

Filing 20

MEMORANDUM AND ORDER granting 10 Motion to Dismiss for Failure to State a Claim; granting 12 Motion to Dismiss; finding as moot 15 Motion for Order; finding as moot 15 Motion for Hearing. Signed by District Judge Monti L. Belot on 2/6/2012.Mailed to pro se party Mark S. Gietzen by regular mail. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARK GIETZEN,

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Plaintiff,
v.
CITY OF WICHITA, et al.,
Defendants.

CIVIL ACTION
No.

12-1006-MLB

MEMORANDUM AND ORDER
This case comes before the court on defendants’ motions to
dismiss (Docs. 10, 12) and plaintiff’s motion for a stay of execution
(Doc. 15).
decision.

The motions have been fully briefed and are ripe for
(Docs. 11, 13, 17, 18, 19).

Defendants’ motions are

granted and plaintiff’s motion is denied for the reasons herein.
Facts and Procedural History1

I.

Plaintiff is a citizen of Wichita, Kansas, and resides at 5575
South Mosley Street.
defendant

Dondlinger

In 2000, defendant City of Wichita (city) hired
&

Sons

Construction

Co.

(Dondlinger)

to

reconstruct a bridge near 55th Street South and Mosley Street.
Dondlinger performed the bridge work using pile-driving equipment.
This equipment allegedly caused significant damages to plaintiff’s
home.

Plaintiff contacted then-mayor Bob Knight about the damages.

Plaintiff was informed that the city would repair any damages to

1

The facts are taken from plaintiff’s allegations and viewed in
the light most favorable to plaintiff and in consideration of his pro
se status.
Plaintiff should not misconstrue them as judicial
findings, e.g. that his home has been damaged or that there has been
any agreement by anyone to repair the damages.

plaintiff’s home. Plaintiff’s home suffered approximately $97,000 in
damages.

The city and Dondlinger, however, have refused to pay for

plaintiff’s damages.
In 2008, plaintiff’s lender instigated foreclosure proceedings
on his home in state court.

In 2009, plaintiff addressed the Wichita

City Council meeting and presented his claim for damages due under the
alleged verbal agreement.

The city responded by letter on December

31, 2009, and denied any obligation to address the damages.

In March

2010, plaintiff again distributed information to the Wichita City
Council.

In December 2011, plaintiff met with two City Council

members and Knight.

The meeting ended with no action being taken by

the city. Plaintiff filed his complaint against defendants on January
5, 2012.

(Doc. 1).

Plaintiff’s home is set for a foreclosure auction on February
8.

Plaintiff has moved for a stay of the foreclosure proceedings.

(Doc. 15).

Defendants have moved to dismiss plaintiff’s complaint on

the basis that the claims are barred by the statute of limitations and
that he has failed to state a claim.
this

court

issued

an

order

After receiving all motions,

requiring

plaintiff

to

respond

to

defendants’ motions by February 22 and address the concern of a lack
of subject matter jurisdiction.
response to the court.
II.

(Doc. 16).

Plaintiff has filed a

(Doc. 17).

Motion to Dismiss Standards: FRCP 12(b)(1)
Federal courts are courts of limited jurisdiction, available to

exercise their power only when specifically authorized to do so.
2

The court expedited the briefing schedule in this case due to
plaintiff’s emergency motion concerning the sale of his home.
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Lindstrom v. United States, 510 F.3d 1191, 1193 (10th Cir. 2007).
Pursuant to the Federal Rules of Civil Procedure, a party may move for
dismissal based upon a court’s “lack of jurisdiction over the subject
matter.”

Fed. R. Civ. P. 12(b)(1).

The Tenth Circuit has noted that

Rule 12(b)(1) motions may take on two forms, either a “facial” attack
or a “factual” attack.

Paper, Allied-Indust., Chemical & Energy

Workers Int’l Union v. Continental Carbon Co., 428 F.3d 1285, 1292
(10th Cir. 2005).

A “facial” attack questions the sufficiency of the

complaint whereas a “factual” challenge contests those facts upon
which the subject matter rests.

Id.

III. Motion to Dismiss Standards: FRCP 12(b)(6)
The standards this court must utilize upon a motion to dismiss
are well known. To withstand a motion to dismiss for failure to state
a claim, a complaint must contain enough allegations of fact to state
a claim to relief that is plausible on its face. Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007)).

All well-

pleaded facts and the reasonable inferences derived from those facts
are viewed in the light most favorable to plaintiff.

Archuleta v.

Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations,
however, have no bearing upon this court’s consideration.
City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).

Shero v.
In the

end, the issue is not whether plaintiff will ultimately prevail, but
whether he is entitled to offer evidence to support his claims.
Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005).
IV.

Analysis
A.

Subject Matter Jurisdiction
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Initially, this court must ensure that it has subject matter
jurisdiction

over

plaintiff’s

independent

obligation

to

claims.

Federal

determine

courts

whether

“have

an

subject-matter

jurisdiction exists, even in the absence of a challenge from any
party,” and thus a court may sua sponte raise the question of whether
there is subject matter jurisdiction “at any stage in the litigation.”
1mage Software, Inc. v. Reynolds and Reynolds Co., 459 F.3d 1044, 1048
(10th Cir. 2006).
Plaintiff’s complaint alleges that it is brought pursuant to 28
U.S.C. § 1343(3).

To establish subject matter jurisdiction under §

1343, plaintiff must show that defendants acted “under color of any
state law.”

See 28 U.S.C. § 1343(3).

To satisfy the state action

requirement, “the party charged with the deprivation must be a person
who may fairly be said to be a state actor ... because he is a state
official,

because

he

has

acted

together

with

or

has

obtained

significant aid from state officials, or because his conduct is
otherwise chargeable to the State.” Lugar v. Edmondson Oil Co., Inc.,
457 U.S. 922, 937, 102 S. Ct. 2744 (1982) (holding that a private
party did not act under color of state law in a prejudgment attachment
of the debtor's property if the creditor acted contrary to state
policy); Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S. Ct.
449 (1974) (explaining that private action supports a § 1983 claim
only if it “may be fairly treated as that of the State itself”); Pino
v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (noting that private
action must be “fairly attributable to the state”).
Plaintiff’s allegations do not set forth any basis to support a
finding that Dondlinger is a state actor.
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Dondlinger was awarded a

construction contract by the city and performed that contract.

A

private company is not transformed into a state actor because of a
construction contract.

Gallagher v. Neil Young Freedom Concert, 49

F.3d 1442, 1453 (10th Cir. 1995).

In response to the court’s order

seeking additional briefing concerning subject matter jurisdiction,
plaintiff asserts that he believes jurisdiction is proper because: 1)
there is a large file on this matter and “key items related to subject
matter jurisdiction have not yet been explored;” 2) the city’s law
department has engaged in unethical behavior; 3) the Eighteenth
Judicial District Court denied equal protection to plaintiff by
assisting “in an unethical scam;” 4) the only “place a US citizen can
turn for his Constitutional protection is The United States District
Court;” 5) the information packet distributed by the clerk’s office
is valuable and extremely helpful; and 6) the Internet confirmed that
this case falls under the jurisdiction of this court.

(Doc. 17 at 3-

6).
Plaintiff’s contentions are not supported by authority and are
without merit.

At no point does plaintiff discuss any alleged

constitutional violation by Dondlinger in his response to the court’s
order and/or address why Dondlinger should be considered a state
actor.

Therefore, Dondlinger must be dismissed from this action as

the court lacks subject matter against it.
The city, however, is a municipality and, as such, a state actor.
Therefore, plaintiff may bring allegations of violations of his civil
rights against the city.

Plaintiff’s allegations assert a violation

of the Equal Protection clause and the Fourth and Fifth Amendments.
The city, however, has not moved to dismiss on the basis of lack of
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subject matter jurisdiction.

Because plaintiff is pro se and this

court is instructed to view his complaint liberally, the court finds
that

plaintiff’s

allegations,

when

construed

in

the

light

most

favorable to plaintiff and read very broadly, are sufficient to invoke
this court’s jurisdiction over the claims.

Therefore, the court will

now turn to the city’s motion to dismiss.
B.

The City’s Motion to Dismiss (Doc. 10)

Plaintiff’s complaint states that his cause of action has three
parts: 1) Dondlinger damaged plaintiff’s home during the bridge
reconstruction; 2) the city failed to pay plaintiff for his damages;
and 3) the failure to pay the damages has caused plaintiff extreme
hardship.

(Doc.

1

at

9-10).

After

construing

the

complaint

liberally, the court has identified claims of breach of contract,
fraud, and violations of plaintiff’s civil rights.

The city asserts

that all of these claims are barred by the statute of limitations.
1.

Breach of Contract

The majority of plaintiff’s complaint discusses an alleged oral
contract between plaintiff and Knight which was formed in the year
2000.

Plaintiff asserts that this oral contract was a promise from

the city to pay for damages that occurred as a result of the bridge
reconstruction.

An action for breach of contract, without a written

agreement, is three years.

K.S.A. 60-512; Chilson v. Capital Bank of

Miami, 237 Kan. 442, 446, 701 P.2d 903 (1985). Plaintiff asserts that
this statute is not applicable in this case because the action
concerns real property.

Plaintiff contends that the applicable

statute is K.S.A. 60-507.
K.S.A. 60-507 states that “no action shall be maintained for the
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recovery of real property or for the determination of any adverse
claim or interest therein, not provided for in this article, after
fifteen (15) years from the time the cause of action accrued.”
Plaintiff’s position is that any action concerning real property would
be subject to the fifteen year statute of limitations.
reading of the statute is incorrect.

Plaintiff’s

“The mere fact that an action

pertains to real estate does not necessarily constitute it an action
for the recovery of real estate.”

Sutton v. Sutton, 34 Kan. App.2d

357, 359-60, 118 P.3d 700, 702 (2005).

Throughout the time period

alleged in the complaint, plaintiff has always been in possession of
the property.

Currently, there is a foreclosure action proceeding

against plaintiff but the city is not the party who has instigated the
proceedings.

As such, this action is simply one for damages.

City

of Attica v. Mull Drilling Co., Inc., 9 Kan. App.2d 325, 328, 676 P.2d
769, 773 (1984).
The statute of limitations period for plaintiff’s claim of breach
of contract is therefore three years. Because plaintiff contends that
the agreement occurred in 2000, plaintiff’s claim is barred by the
statute of limitations.
2.

Civil Rights Claims

The city also moves for dismissal of plaintiff’s civil rights
claims

on

the

limitations.

basis

that

they

are

barred

by

the

statute

of

It is well established that civil rights claims are

subject to the statute of limitations for personal injury in effect
in the state where the alleged violations occurred.

See Garcia v.

Wilson, 731 F.2d 640, 642-43, 651 (10th Cir.), aff'd, 471 U.S. 261,
105

S.

Ct.

1938

(1985).

In

Kansas,
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the

applicable

period

of

limitation is two years. K.S.A. 60-513(a)(4).

Because plaintiff’s

complaint, filed in January 2012, arose from damages alleged to have
occurred at least ten years ago3, and because he fails to address this
issue in a meaningful way, his claims are time-barred.
3.

Fraud

Finally, plaintiff’s complaint asserts that a letter written by
the current mayor, Carl Brewer, on December 31, 2009, is fraudulent
because it contains false information about the bridge reconstruction
project.

The city contends that this fraud claim is barred by the

statute of limitations and is also deficient under Fed. R. Civ. P.
9(b).

Under Kansas law, this claim is governed by a two-year statute

of limitations.

K.S.A. 60-513(a)(3)-(4).

Plaintiff does not contend

that a different statute applies to this claim.

Instead, plaintiff

asserts that the production of the letter in the state lawsuit somehow
extends the statute.

(Doc. 18 at 5-6).

Plaintiff, however, does not

assert that he had no knowledge of the letter on December 31, 2009.
Plaintiff’s complaint alleges that he received the letter on December
31, 2009, and knew that its contents were false on that date.
Therefore, plaintiff’s fraud claim expired on December 31, 2011, and
3

Plaintiff also alleges that the city treats wealthy citizens
differently than those who are poor. Plaintiff’s complaint discusses
a city improvement that occurred in 2005.
The court does not
understand the significance of the allegation because plaintiff has
not tied this allegation to his claim for damages and relief. In
plaintiff’s response to the city’s motion, plaintiff states that this
allegation was just an “example,” and that the city continues to
violate the Equal Protection clause on an on-going basis. Plaintiff,
however, did not set forth any other alleged violations in his
complaint and has not sought any relief due to the alleged Equal
Protection violation. In any event, the city’s actions contained in
the complaint occurred in 2005, more than six years prior to the
filing of plaintiff’s complaint. Therefore, the claim is barred by
the statute of limitations.
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is barred by the statute.4
V.

Conclusion
Defendants’ motions to dismiss are accordingly granted.

10, 12).
moot.

(Docs.

Plaintiff’s motion for a stay of execution is denied as

(Doc. 17).
A motion for reconsideration of this order pursuant to this

court's Rule 7.3 is not encouraged.

Any such motion shall not exceed

three pages and shall strictly comply with the standards enunciated
by this court in Comeau v. Rupp.

The response to any motion for

reconsideration shall not exceed three pages.

No reply shall be

filed.

IT IS SO ORDERED.
Dated this

6th

day of February 2012, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

4

Plaintiff’s fraud claim could also be dismissed for failure to
state a claim. Plaintiff’s damages set forth in the complaint are the
result of the bridge reconstruction. Plaintiff has not identified any
additional damages as a result of the alleged fraudulent letter of
December 31, 2009.
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