United States District Court, W.D. Missouri, Western Division
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
D. SMITH, SENIOR JUDGE.
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.
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.
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
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.
April 5, 2017, the Court directed Plaintiff to file proofs of
service of the other Defendants by April 19, 2017. Doc.
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.
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 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.
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
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
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 ...