Lipsey v. Wichita Police Dep't

1

DREMETRA LIPSEY, Plaintiff, v. WICHITA POLICE DEPARTMENT, WENDELL NICHOLSON, in his individual and official capacity, HUSAM A. SHOURBAJI, in his individual and official capacity, ROBERT LAYTON, city manager, in his individual and official capacity, CHRIS BEZRUKI, in his individual and official capacity, M. PEREZ, in his individual and official capacity, and D.J. HICKS, in his individual and official capacity. Defendants.

No. 23-1012-EFM-GEB

United States District Court, D. Kansas

April 14, 2023

MEMORANDUM & ORDER ON MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES AND REPORT AND RECOMMENDATION FOR DISMISSAL

GWYNNE E. BIRZER, U.S. MAGISTRATE JUDGE.

Plaintiff filed her federal court Complaint (ECF No 1) on January 30, 2023, and simultaneously filed a Motion to Proceed without Prepayment of Fees (ECF No 3, sealed). Plaintiff then filed an Amended Complaint (ECF No. 9) on February 28, 2023, and a Second Amended Complaint (ECF No. 12) on March 30, 2023. For the reasons set forth herein, the Court GRANTS Plaintiff's Motion to Proceed Without Prepayment of Fees (ECF No. 3, sealed) but recommends dismissal of Plaintiff's case for failure to state a cause of action and directs service be stayed pending review of the Report and Recommendation.

I. Procedural Background^[1]

Plaintiff filed her initial Complaint naming the Wichita Police Department and several individuals as Defendants. The Complaint alleged violations of her civil rights based upon 42 U.S.C. § 1983 and “Amendments 1, 4, 5, & 14.” The Court was unable to discern the factual nature of Plaintiff's cause of action and, on February 7, 2023, entered an order for Plaintiff to appear and show cause.^[2] Plaintiff then filed an Amended Complaint on February 28, 2023, which reduced the number of individual Defendants and somewhat clarified the facts giving rise to her claims.^[3]

On March 6, 2023, the Plaintiff appeared for the show cause hearing, and the Court inquired about the underlying facts of Plaintiff's claims. At that time, Plaintiff clarified Defendant Boyd is not employed by the City of Wichita, rather he is the father of one of Plaintiff's children. Unfortunately, Plaintiff was only able to give the Court limited further insight into the facts of her case. Plaintiff indicated the actions of Defendants first began in 2015, which include Plaintiff's belief she was “wrongfully pulled over” by unknown officers and later by Defendant Perez with the Wichita Police Department, unknown individuals broke her windows and reprogrammed her key FOB, Defendant Hicks refused to enforce a Protection from Abuse Order, and Defendant Shourbaji refused to serve a Protection from Abuse Order. As a result of the show cause hearing, the Court gave Plaintiff until March 31, 2023, to file a second amended complaint.^[4]

On March 30, 2023, Plaintiff filed her Second Amended Complaint.^[5] Plaintiff now names as Defendants: 1) Wichita Police Department, 2) Captain Wendell Nicholson, formerly of the Wichita Police Department, 3) Husam A. Shourbaji, of the Wichita Police Department, 4) Robert Layton, Wichita City Manager, 5) Chris Bezruki, former human resources director, 6) Wichita police officer M. Perez, and 7) Wichita police officer D.J. Hicks.^[6] Plaintiff's claims are brought pursuant to: 1) 42 U.S.C. §§ 1981, 1983, and 1985, based upon rights secured by the “First, Fourth, Fifth and Fourteenth Amendments” and 2) “federal law.”^[7] Plaintiff also alleges state law claims of defamation, “outrageous conduct,” civil conspiracy, tortious interference with employment, and violation of the Kansas Bill of Rights, §§ 1, 3, and 11.^[8]

Plaintiff states she is an African-American woman living in Wichita, Kansas.^[9] She makes very few specific factual allegations against the individual Defendants and does not allege any of the actions were due to her race or gender.^[10] Other than identifying Defendant Nicholson as a retired captain of the Wichita Police Department, Plaintiff does not make any factual allegations against him.^[11] Similarly, Plaintiff does not list Kevin Kochenderfer in her caption as a Defendant, but identifies him in her Complaint as a Defendant and prior captain for the Wichita Police Department.^[12] No other factual allegations are made against Mr. Kochenderfer.

She alleges all Defendants refused to investigate criminal complaints she made, and Defendants Layton and Bezruki, specifically, lied “about their knowledge of unlawful incidents” and “took action to protect and/or conceal incidents.”^[13]

Plaintiff avers Defendant Shourbaji, on the one hand, helped her recover her child and protected she and her child from abuse, while also alleging Defendant Shourbaji refused to investigate Plaintiff's criminal complaints.^[14] Similarly, Plaintiff alleges Defendant Hicks refused to arrest an individual who was violating an order of protection by pretending to live with her neighbor.^[15]

With regard to Defendant Perez, Plaintiff alleges he wrongfully pulled her over during the summer of 2022.^[16]

Plaintiff makes multiple other factual allegations, without identifying whether any of the Defendants took action against her or even alleging the individual taking the action against her worked for the City of Wichita or Wichita Police Department.^[17] Finally, Plaintiff makes general allegations and conclusions regarding all Defendants harassing her, retaliating against her, defaming her, violating her freedom of speech, and her rights under the First, Fourth Fifth, and Fourteenth Amendments.

Plaintiff also filed a motion to proceed without prepayment of fees in conjunction with her lawsuit.^[18]

II. Motion for Leave to Proceed In Forma Pauperis

Pursuant to 28 U.S.C. § 1915(a), the Court has discretion^[19] to authorize filing of a civil case “without prepayment of fees or security thereof, by a person who submits an affidavit that . . . the person is unable to pay such fees or give security thereof.” “Proceeding in forma pauperis in a civil case ‘is a privilege, not a right-fundamental or otherwise.'”^[20]To determine whether a party is eligible to file without prepayment of the fee, the Court reviews the party's financial affidavit and compares his or her monthly expenses with the monthly income disclosed therein.^[21]

The Tenth Circuit Court of Appeals and this Court have liberal policies toward permitting proceedings in forma pauperis.^[22] After careful review of Plaintiff's financial resources (ECF No. 3, sealed), comparison of Plaintiff's monthly income, and listed monthly expenses, the Court finds she is unable to pay the filing fee.

III. Recommendation of Dismissal

When a party seeks to proceed without the prepayment of fees, the in forma pauperis statute, 28 U.S.C. § 1915, requires the court to screen the party's complaint. Under § 1915, sua sponte dismissal of this case is required if the court determines the action 1) is frivolous or malicious, 2) fails to state a claim upon which relief may be granted, or 3) seeks relief from a defendant who is immune from suit. The purpose of § 1915(e) is “the prevention of abusive or capricious litigation.”^[23] After application of these standards, the undersigned Magistrate Judge recommends dismissal.

After a thorough review of the record, the Court finds Plaintiff's Complaint is subject to dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Fed.R.Civ.P. 8(a)(2) requires that a complaint include a “short and plain statement of the claim showing that the pleader is entitled to relief.” This requires the complaint state more than “labels and conclusions” and “[f]actual allegations must be enough to raise a right to relief above the speculative level.”^[24] Because Plaintiff proceeds pro se, her pleadings must be liberally construed.^[25] However, she still bears the burden to allege “sufficient facts on which a recognized legal claim could be based”^[26] and the Court cannot “take on the responsibility of serving as [her] attorney in constructing arguments and searching the record.”^[27] Finally, Fed.R.Civ.P. 8 “demands more than naked assertions.”^[28]

Under Fed.R.Civ.P. 8(a), every complaint must contain three minimal pieces of information: 1) the pleading should contain a short and plain statement of the claim showing Plaintiff is entitled to relief; 2) a short and plain statement of the grounds for the Court's jurisdiction; and 3) a statement of the relief requested. If any of these requirements are absent, even after providing a liberal construction to Plaintiff's Complaint, the court “is compelled to recommend that the action be dismissed.”^[29] Mere “allegations of conclusions or opinions are not sufficient when no facts are alleged by way of the statement of the claim.”^[30]

A. Analysis

The Court first considers Wichita Police Department and whether it is a proper party to this case. Wichita Police Department is a subunit of the City of Wichita, and not a separate entity that is subject to suit.^[31] As determined by Kansas cases, the general rule is “subordinate government agencies do not have the capacity to sue or be sued without authorization by a specific statute.”^[32] Tenth Circuit courts have previously held city police departments are subunits of city government, thus, are not governmental entities subject to suit.^[33] As such, the undersigned recommends dismissal of all claims against the Wichita Police Department.

The Court also considers the claims against Defendant Nicholson and Kevin Kochenderfer. Other than identifying these individuals as retired captains of the Wichita Police Department, Plaintiff does not make any factual allegations against them.^[34] The undersigned also recommends dismissal of all claims against Defendants Nicholson and Kochenderfer.

The Court...