Farris v. Garden City, Kansas, City of

Filing 41

MEMORANDUM AND ORDER granting 24 Motion for Judgment. Please see order for details. Signed by District Judge Monti L. Belot on 06/29/2015. Mailed to pro se party Lonnie Farris by regular mail. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LONNIE FARRIS,

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Plaintiff,
v.
GARDEN CITY, KANSAS,
Defendant.

CIVIL ACTION
No.

15-1078-MLB

MEMORANDUM AND ORDER
This case comes before the court on defendant’s motion for
judgment on the pleadings.

(Doc. 24).

briefed and is ripe for decision.

The motion has been fully

(Docs. 25, 33, 37).

Defendant’s

motion is granted for the reasons herein.
I.

Facts
On February 12, 2015, plaintiff filed a complaint in the

district court of Finney County, Kansas.
removed to this court.

(Doc. 1).

Plaintiff’s complaint was

Plaintiff alleges that he is on

social security disability and has been discriminated against while
operating

an

“other

powered

driven

mobility

device”

(OPDMD).

Plaintiff was cited and convicted, presumably by officers employed by
defendant, on multiple occasions for driving with a suspended license
while operating an OPDMD, specifically a motor operated bicycle and
a riding lawn mower.

Plaintiff filed a supplement to his complaint

in which he states that he has recently been diagnosed with multiple
sclerosis.

(Doc. 9).

Plaintiff also attached his social security

records and criminal records from Garden City to the supplement.
(Doc. 9).
Defendant moves to dismiss on the basis that plaintiff has not

alleged sufficient facts to state a claim.
II.

Motion to Dismiss Standards: FRCP 12(c)
The standards this court must utilize upon a motion for judgment

on the pleadings mirrors the standard for analyzing motions to dismiss
under Rule 12(b)(6).

Nelson v. State Farm Mut. Auto. Ins. Co., 419

F.3d 1117, 1119 (10th Cir. 2005).

To withstand a motion to dismiss,

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
Archuleta v. Wagner, 523 F.3d

the light most favorable to plaintiff.
1278, 1283 (10th Cir. 2008).

Conclusory allegations, however, have

no bearing upon this court’s consideration.

Shero v. City of Grove,

Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).

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).
III. Legal Standard for Pro Se Litigants
It has long been the rule that pro se pleadings, including
complaints and pleadings, must be liberally construed.
Bellmon,

935

F.2d

1106,

1110

&

n.3

(10th

Cir.

See Hall v.

1991);

Hill

v.

Corrections Corp. of America, 14 F. Supp.2d 1235, 1237 (D. Kan. 1998).
This rule requires the court to look beyond a failure to cite proper
legal authority, confusion of legal theories, and poor syntax or
sentence

construction.

See

Hall,

935

F.2d

at

1110.

Liberal

construction does not, however, require this court to assume the role
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of advocate for the pro se litigant.

See id.

Plaintiff is expected

to construct his own arguments or theories and adhere to the same
rules of procedure that govern any other litigant in this district.
See id.; Hill, 14 F. Supp.2d at 1237.

Additionally, the court need

not accept as true plaintiff’s conclusory allegations because no
special legal training is required to recount the facts surrounding
alleged injuries.

See Hill, 14 F. Supp.2d at 1237.

Thus, the court

is required to accept as true only plaintiff’s well-pleaded and
supported factual contentions.
IV.

See id.

Analysis
A.

ADA Discrimination

The ADA contains three titles which address discrimination
against

persons

with

disabilities

in

three

contexts.

Briefly

summarized, Title I bars employment discrimination, 42 U.S.C. § 12112,
Title II bars discrimination in services offered by public entities,
42 U.S.C. § 12132, and Title III bars discrimination by public
accommodations engaged in interstate commerce, such as restaurants,
hotels, and transportation carriers.

42 U.S.C. §§ 12182, 12184.

Plaintiff’s complaint cites to Title III.
applies

to

entities.

discrimination

in

public

Title III, however,

accommodations

by

private

See Gaona v. Town & Country Credit, 324 F.3d 1050, 1056

(8th Cir. 2003) (“Title III of the ADA prohibits discrimination on the
basis of disability in public accommodations, while section 504 of the
Rehabilitation Act (and Title II of the ADA) prohibit discrimination
on the basis of disability by public entities.”); Sandison v. Michigan
High School Athletic Ass'n, Inc., 64 F.3d 1026, 1036 (6th Cir. 1995)
(Title III “prohibits discrimination on the basis of disability in
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public accommodations operated by private entities.”)

Therefore, to

the extent plaintiff alleges defendant has violated Title III of the
ADA, 42 U.S.C. §§ 12181–12189, plaintiff’s claim under Title III is
dismissed with prejudice.
In plaintiff’s exhibits to his supplement, he attached portions
of Title II.

Therefore, the court liberally construes plaintiff’s

complaint as making a claim under Title II.

Title II of the ADA

provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132.

To make out a prima facie case under Title II of

the ADA, a plaintiff must establish that “(1) he is a qualified
individual

with

a

disability;

(2)

he

was

either

excluded

from

participation in or denied the benefits of some public entity's
services, programs, or activities, or was otherwise discriminated
against by the public entity; and (3) such exclusion, denial of
benefits,

or

discrimination

was

by

reason

of

his

disability.”

Spurlock v. Simmons, 88 F. Supp. 2d 1189, 1195 (D. Kan. 2000) (citing
Gohier v. Enright, 186 F.3d 1216, 1219 (10th Cir. 1999)).
Defendant contends that plaintiff has not satisfied a prima facie
case of discrimination because he failed to allege that he is a
qualified individual with a disability.

42 U.S.C. § 12102(2)(A)

(2006) provides in relevant part that a disability is a “physical or
mental impairment that substantially limits one or more of the major
life activities of [an] individual.”

The Tenth Circuit has held that

an analysis under this statute requires a three-step process: (1)
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determining whether the plaintiff's condition is an impairment, (2)
identifying the life activity upon which she relies and determining
whether it constitutes a major life activity under the ADA, and (3)
determining whether the impairment substantially limited the major
life activity. MacKenzie v. City and County of Denver, 414 F.3d 1266,
1275 (10th Cir. 2005).
Plaintiff’s complaint wholly fails to identify his condition and
what major life activity is limited by his condition.
complaint

merely

disability.

states

that

plaintiff

is

on

Rather, the

social

security

This allegation is not sufficient to establish that

plaintiff is a qualified individual with a disability under the ADA.
Weigel v. Target Stores, 122 F.3d 461, 467 (7th Cir. 1997)(“Because
the ADA's determination of disability and a determination under the
Social Security disability system diverge significantly in their
respective legal standards and statutory intent, determinations made
by the Social Security Administration concerning disability are not
dispositive findings for claims arising under the ADA.”)
Nevertheless, the court finds that plaintiff has failed to allege
intentional discrimination under the ADA.

A plaintiff claiming a

violation of Title II of the ADA must show that he was discriminated
against “solely by reason of disability.” Doe v. Bd. of County Com'rs
of Payne County, Okla., No. 14-6187,

2015 WL 3500019, 2 (10th Cir.

June 4, 2015) (citing Fitzgerald v. Corrections Corp. of Am., 403 F.3d
1134, 1144 (10th Cir. 2005)).

Plaintiff alleges that he has “been

wrongfully convicted of driving while suspended when a drivers license
is not needed on my O.P.D.M.D.”

(Doc. 1).

Plaintiff’s allegations are insufficient to state a claim of
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discrimination under Title II of the ADA.

Plaintiff admits that he

did not have a valid driver’s license while operating a riding lawn
mower on the street.1

Plaintiff’s complaint wholly fails to allege

that the citations he received were issued because of his disability,
whatever that disability may be.

Therefore, defendant’s motion to

dismiss plaintiff’s ADA claim is granted.
B.

Conspiracy

In

plaintiff’s

motion

to

amend,

conspired to discriminate against him.2

he

alleges

that

defendant

Civil conspiracy has five

elements: “(1) two or more persons; (2) an object to be accomplished;
(3) a meeting of the minds in the object or course of action; (4) one
or more unlawful overt acts; and (5) damages as the proximate result
thereof.”

State ex rel. Mays v. Ridenhour, 248 Kan. 919, 927, 811

P.2d 1220 (1991).
Plaintiff has failed to satisfy elements 1 and 3.

Plaintiff did

not sufficiently identify the persons involved in the conspiracy and
the agreement they entered into.

Therefore, defendant’s motion to

dismiss plaintiff’s conspiracy claim is granted.
C.

Criminal Violation

1

Kansas law provides that a driver’s license is required to
operate a motorized bicycle and a motorized vehicle. K.S.A. 8-235.
A motorized vehicle is defined as a vehicle which is self-propelled.
K.S.A. 8-1437. And, a vehicle is defined as a device which a person
may be transported upon a highway, except a device which is moved by
human power. K.S.A. 8-1485. Therefore, a riding lawn mower is a
motor vehicle under Kansas law and plaintiff was required to have a
license in order to operate the riding lawn mower on a street.
2

On March 3, 2015, the state court judge granted plaintiff’s
motion to amend. (Doc. 1). No amended complaint has been filed. The
court will review the merits of the claim out of an abundance of
caution.
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Plaintiff’s motion to amend also alleges a violation of 18 U.S.C.
§ 2385.

This is a criminal statue, which does not provide for a

private cause of action. See Clements v. Chapman, 189 Fed. Appx. 688,
692 (10th Cir. 2006) (“[N]one of the federal criminal statutes cited
... provide for a private cause of action.”); Diamond v. Charles, 476
U.S. 54, 64–65, 106 S. Ct. 1697 (1986) (noting that private citizens
cannot compel enforcement of criminal law).
V.

Conclusion
Defendant’s motion to dismiss is granted.

(Doc. 24).

Plaintiff is on notice that this order terminates his case.
Plaintiff may not deliver voluminous stacks of documents to the
clerk’s office for filing. This court is not a depository. Plaintiff
may only file pleadings which are in compliance with this court’s
rules.

The court will not accept a document unless it is a proper

motion with a supporting memorandum or a notice of appeal.

The

clerk’s office is instructed to return all of plaintiff’s documents
to plaintiff by mail.
A motion for reconsideration of this order is not encouraged.
Any such motion shall not exceed 5 double-spaced pages and shall
strictly comply with the standards enunciated by this court in Comeau
v. Rupp, 810 F. Supp. 1172, 1174 (1992).

The response to any motion

for reconsideration shall not exceed 5 double-spaced pages.

No reply

shall be filed.
IT IS SO ORDERED.
Dated this 29th

day of June 2015, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE
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