Campbell v. City of Concordia et al
ORDER AND OPINION (1) GRANTING DEFENDANT CONCORDIA POLICE DEPARTMENT'S MOTION TO DISMISS, (2) DENYING PLAINTIFF'S MOTION TO RECONSIDER, AND (3) DENYING PLAINTIFF'S MOTION TO ORDER INVESTIGATION INTO PENDING CRIMINAL CHARGES. Signed on 6/9/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea) 48 Order and 49 Judgment sent via regular and certified mail, 7012 3460 0001 7395 9313, return receipt requested to Brian Campbell, 668 NE 110 Road, Knob Noster, MO, 65336, on 6/9/17. Modified on 6/9/2017 (Crocker, Susan).
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CONCORDIA POLICE DEPARTMENT, )
Case No. 16-00671-CV-W-ODS
ORDER AND OPINION (1) GRANTING DEFENDANT CONCORDIA
POLICE DEPARTMENT’S MOTION TO DISMISS, (2) DENYING PLAINTIFF’S
MOTION TO RECONSIDER, AND (3) DENYING PLAINTIFF’S MOTION
TO ORDER INVESTIGATION INTO PENDING CRIMINAL CHARGES
Pending are Defendant Concordia Police Department’s (“CPD”) Motion to
Dismiss (Doc. #38); Plaintiff’s Restatement of Claim (Doc. #43), which the Court
construes as a motion to reconsider the Court’s dismissal of Plaintiff’s claims against
the City of Concordia (“City); and Plaintiff’s Reasons Against Dismissal and Motion to
Order Investigation into Pending Criminal Charges (Doc. #44). For the following
reasons, Defendant’s motion is granted, and Plaintiff’s motions are denied.
Plaintiff, proceeding pro se, initiated this matter with the filing of a motion for
leave to proceed in forma pauperis. Doc. #1. The Court initially deferred consideration
of Plaintiff’s motion, finding Plaintiff’s complaint did not contain sufficient facts to
demonstrate it was not barred by 28 U.S.C. § 1915(e)(2)(B). Doc. #2. The Court
directed Plaintiff to file an amended complaint. After considering Plaintiff’s response
(Doc. #3) to the Order, the Court denied Plaintiff’s motion for leave to proceed in forma
pauperis. Doc. #4. Plaintiff asked the Court to reconsider its decision. Doc. #6. The
Court denied Plaintiff’s request. Doc. #7. Plaintiff appealed the Court’s decision to the
Eighth Circuit Court of Appeals, which found Plaintiff’s claim that he was arrested
without probable cause established a basis for jurisdiction, and remanded the matter to
this Court. Doc. #11-1.
On January 23, 2017, the Court granted Plaintiff’s motion for leave to proceed in
forma pauperis, directed the Clerk of the Court to forward appropriate process forms to
Plaintiff, and instructed Plaintiff to return the completed process forms within twenty-one
days. Doc. #13. The Court informed Plaintiff the completed process forms would be
delivered to the United States Marshal for service upon Defendants. Id. The Court’s
Order and process forms were returned as undeliverable on February 14, 2017. Doc.
#16. On March 2, 2017, the Court received a change of address from Plaintiff, and the
Clerk of the Court resent the Court’s January 23, 2017 Order and process forms to
Plaintiff at his new address. Doc. #17. Plaintiff did not respond to the Court’s Order.
On March 27, 2017, the Court ordered Plaintiff to submit completed process
forms by April 14, 2017, or show cause why the matter should not be dismissed for
failure to serve Defendants. Doc. #18. On April 4, 2017, Plaintiff responded, stating he
“received unnecessary process forms,” and had “already served the defendants.” Doc.
#19. Nevertheless, Plaintiff returned a completed summons for the City, which was
delivered to the United States Marshal for service. Doc. #21.
On April 5, 2017, the Court directed Plaintiff to file proofs of service of the other
Defendants by April 19, 2017. Doc. #22.1 On April 13, 2017, Plaintiff filed what he titled
“proof of service” for the City, which appeared to be a signed receipt for certified mail
sent by Plaintiff to “Concordia City Hall.” Doc. #24. Plaintiff did not file proofs of service
of the other Defendants. On May 1, 2017, the Court again directed Plaintiff to file proofs
of service by May 15, 2017, for the other Defendants. Doc. #32. The Court informed
Plaintiff that the failure to file proofs of service “will result in the dismissal of Plaintiff’s
claims against these defendants without further notice.” Id.
In the meantime, on April 21, 2017, the City filed a motion to dismiss, arguing
Plaintiff failed to state a claim upon which relief could be granted. Doc. #25. Plaintiff
opposed the motion. Doc. #34. On May 8, 2017, the Court granted the City’s motion,
finding the City could not be sued under 42 U.S.C. § 1983 for an injury inflicted solely by
its employees or agents. Doc. #36. The Court also determined Plaintiff did not allege
the City’s policies or customs inflicted injuries. Thus, Plaintiff failed to set forth a claim
against the City upon which relief could be granted.
The Court also denied Plaintiff’s request for a change of judge. Docs. #20, 22.
While the City’s motion to dismiss was pending, Plaintiff filed a “request for
default judgment” against all defendants, which the City opposed. Docs. #28-29. In
addition, shortly after the Court dismissed Plaintiff’s claims against the City, Plaintiff filed
a document entitled “Petition” with this Court and the Eighth Circuit asking the matter be
reopened, requesting a change of judge, and stating there was “new evidence.” Doc.
#41. On May 17, 2017, the Court dismissed Plaintiff’s claims against Rucker and Lynn
because Plaintiff failed to comply with Rule 4(m) of the Federal Rules of Civil
Procedure, denied Plaintiff’s request for default judgment, and denied the relief sought
in Plaintiff’s Petition. Doc. #42. The Court also reminded Plaintiff that his claims
against CPD remained pending but were subject to a motion to dismiss filed on May 10,
2017. Plaintiff was instructed to respond to the motion to dismiss by May 24, 2017, in
accordance with the Court’s Local Rules.
On May 19, 2017, Plaintiff filed a document entitled “Restatement of Claim.”
Doc. #43. The Court will liberally construe this filing as a motion to reconsider. On May
22, 2017, Plaintiff filed a document labeled “Reasons Against Dismissal” in which he
asked the Court to order an investigation into pending criminal charges. Doc. #44.
CPD filed a response to Plaintiff’s Reasons Against Dismissal. Doc. #45. Below, the
Court will address Plaintiff’s Restatement of Claim, CPD’s motion to dismiss, Plaintiff’s
Reasons Against Dismissal, and Plaintiff’s request for an investigation into pending
Plaintiff’s Restatement of Claim
Plaintiff filed a “Restatement of Claim” “to halt the trifling dismissal of my claim.”
Doc. #43, at 1. He stated the Concordia police officers “were acting under the color of
law. There is no proof necessary. The judge and the defendants have no defense and
have resorted to petty trifling points that are false.” He claimed the City is liable under
42 U.S.C. § 1983. The Court construes Plaintiff’s request as a motion to reconsider the
Court’s dismissal of Plaintiff’s claims against the City.
As explained in the Court’s Order granting the City’s motion to dismiss, the City
cannot be held liable under 42 U.S.C. § 1983 on a respondeat superior theory. Doc.
#36, at 2-4. Plaintiff alleged the City should be liable for the actions by and injuries
caused by its employees, which is a claim based upon respondeat superior. Because
the City could not be liable under such a theory, the Court granted the City’s motion to
dismiss. The Court also examined whether Plaintiff brought a claim alleging the City’s
policies or customs caused his injuries. Id. at 4. Plaintiff, however, made no such
claim. As such, the Court granted the City’s motion in this regard as well.
In his “Restatement of Claim,” Plaintiff failed to set forth any basis for the Court to
overturn its ruling on the City’s motion to dismiss. Plaintiff recited section 1983, and
argued constitutional infringements (i.e., unlawful stops, unwarranted searches,
harassment, and intentional false arrest) occurred. But, again, Plaintiff points to nothing
in his Complaint or Amended Complaint establishing a claim against the City for injuries
caused by a City policy or custom. Consequently, Plaintiff’s request to reconsider is
B. Defendant’s Motion to Dismiss and Plaintiff’s Reasons Against Dismissal
CPD seeks dismissal of Plaintiff’s claims against it because a police department
is not a separate suable entity. Docs. #38-39. In his Reasons Against Dismissal,
Plaintiff did not address CPD’s argument that it is not a suable entity. Doc. #44.
Instead, Plaintiff stated the following: “Obviously the Concordia police department is
liable under title 42 section 1983 of the United States code. Therefore I am entitled to
financial compensation for deprivation of my civil rights.” Id. Plaintiff also maintained
the individuals involved “should be held accountable,” their actions were criminal, and
he wants answers. Id.
The liberal pleading standard created by the Federal Rules of Civil Procedure
requires Aa short and plain statement of the claim showing that the pleader is entitled to
relief.@ Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Fed. R. Civ. P.
To the extent Plaintiff’s Reasons Against Dismissal, discussed infra, also sought
reconsideration of the dismissal of Plaintiff’s claims against the City, the Court denies
that request for the same reasons.
8(a)(2)). ASpecific facts are not necessary; the statement need only >give the defendant
fair notice of what the…claim is and the grounds upon which it rests.=@ Id. (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In ruling on a motion to dismiss, the
Court Amust accept as true all of the complaint=s factual allegations and view them in the
light most favorable to the Plaintiff[ ].” Stodghill v. Wellston Sch. Dist., 512 F.3d 472,
476 (8th Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id.
Plaintiff alleged claims against the City, CPD, and two police officers. CPD, the
sole remaining defendant, argues Plaintiff has failed to state a claim against it because
it is not a suable entity. The capacity to be sued is set forth in Rule 17(b) of the Federal
Rules of Civil Procedure. Relevant here, the capacity to be sued is determined “by the
law of the state where the court is located.” Fed. R. Civ. P. 17(b)(3). Several courts
have held municipal departments, such as police departments, cannot be sued unless
statutory authorization to be sued has been given to the departments. See Catlett v.
Jefferson County, 299 F. Supp. 2d 967, 969 (E.D. Mo. 2004) (citing Am. Fire Alarm Co.
v. Bd. of Police Comm’rs of Kan. City, 227 S.W. 114, 116 (1920)); see also Ketchum v.
City of W. Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (finding the West Memphis
Police Department was not a suable entity); Akins v. City of Columbia, No. 15CV4096,
2016 WL 4126549, at *10 (W.D. Mo. Aug. 2, 2016) (stating the Columbia Police
Department was not a suable entity); Walker v. Kan. City Police Dep’t, No. 09CV583,
2010 WL 2720720, at *1 (W.D. Mo. July 6, 2010) (finding the Kansas City Missouri
Police Department was not a suable entity); Kern v. City of Gerald, No. 08CV713, 2008
WL 4831775, at *2 (E.D. Mo. Nov. 4, 2008) (dismissing the plaintiff’s claims against the
police department because it was not a suable entity); Estes v. Lederle, No. 07CV274,
2007 WL 2693823, at *2 (E.D. Mo. Sept. 10, 2007) (finding St. Ann Police Department
is not a suable entity).
Nothing in the record before the Court establishes, must less suggests, CPD is a
separate legal entity amenable to suit. As such, the Court must dismiss Plaintiff’s
claims against CPD.
C. Plaintiff’s Request for Criminal Investigation
In his Reasons Against Dismissal, Plaintiff requested the Court order an
investigation. Doc. #44. He stated the following:
I was burglarized shortly after the case was reopened. The only thing that
was stolen was the flash drive with the court papers on it. This is a much
fresher situation and is deserving of immediate investigation. This shows
some espionage was used. The police have never been willing to help me
with these stolen movie plots and even worse are working for them.
I need more than money for damages from the defendants. I want
answers. It is terrible the way people withhold the truth these days. I
abhor politics. I am more interested in the investigation. I want these
people to leave me alone. To[o] many people are acting. I am the only
real one it seems.
Motion to order investigation into pending criminal charges
I ask that the judge or anyone who reads this to find a worthy agent or
officer. I have had no luck in finding someone that’s trustworthy. These
battles cannot continue for the rest of my life. I have been battling these
people for over six years. The incident in Concordia is barely worth
mentioning in the lager [sic] scope of my problems. This incident in
Sedalia is more pressing.
Doc. #44, at 1. CPD opposed Plaintiff’s request, arguing Plaintiff does not have a
constitutional right to seek a criminal investigation. Doc. #45.
“[A] private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).
“There is no statutory or common law right, much less a constitutional right, to an
investigation.” Mitchell v. NcNeil, 487 F.3d 374, 378 (6th Cir. 2007) (citing Linda R.S.,
410 U.S. at 619; see also Corman v. Sullivan, No. 14CV32, 2015 WL 3676634, at *4 (D.
N.D. June 12, 2005) (denying a plaintiff’s request for criminal investigation and
prosecution) (citation omitted). Because Plaintiff does not have a right to a criminal
investigation, the Court must deny his request.
For the foregoing reasons, the Court denies Plaintiff’s request to reconsider the
Court’s dismissal of his claims against the City, grants CPD’s motion dismiss, and
denies Plaintiff’s request for an investigation into pending criminal charges. Because
the Court has disposed of all of Plaintiff’s claims against all Defendants, this matter is
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: June 9, 2017
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