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Elbert v. City of Kansas City Missouri

United States District Court, W.D. Missouri, Western Division

March 26, 2019

RICHARD M ELBERT, Plaintiff,
v.
CITY OF KANSAS CITY MISSOURI, et al., Defendants.

          ORDER

          ROSEANN A. KETCHMARK, UNITED STATES DISTRICT COURT JUDGE

         Before the Court is Defendants' Motion to Dismiss for Failure to State a Claim (“the Motion”). (Doc. 22.) The Motion is fully briefed. (Docs. 23, 25.) After careful consideration, the Motion is GRANTED as to Counts I through X against Defendant City of Kansas City and GRANTED as to Counts V through X against Defendants in their official capacity; those Counts are DISMISSED with prejudice. The Count DECLINES to assert supplemental jurisdiction over the remaining state law claims in Counts V through X against Defendants in their individual capacity; those Counts are DISMISSED without prejudice.

         Background

         Plaintiff's Complaint alleges that Defendants' actions during the installation of water services equipment and implementation of water billing procedures violated Plaintiff's Constitutional rights. Specifically, Plaintiff argues Defendants improperly installed water services equipment on Plaintiff's property, and the result of such faulty installation increased Plaintiff's water bills artificially. Plaintiff alleges that, after bringing this to Defendants' attention, Defendants improperly billed Plaintiff for inaccurate water usage. Plaintiff alleges the following causes of action in his Complaint:

- Count 1: “Negligent Training/Failure to Train or Supervise/Inadequate Training - Water Department Installation Personnel - in Violation of U.S. Const. Amend. V & XIV pursuant to 42 U.S.C. § 1983 against Defendant City of Kansas City;”
- Count II: “Negligent Training/Failure to Train or Supervise/Inadequate Training - Water Department Billing Personnel - in Violation of U.S. Const. Amend. V & XIV Pursuant to 42 U.S.C. § 1983 against Defendant City of Kansas City;”
- Count III: “Failure to Set Constitutionally Correct Policies and Procedures for Correct Installation of Water Service Equipment and Appropriation and Destruction of Private Property Owned by Plaintiff without Due Process against Defendant City of Kansas City; U.S. Const. Amend. V & XIV Pursuant to 42 U.S.C. § 1983;”
- Count IV: “Failure to Set Constitutionally Correct Policies and Procedures for Investigation of Complaints pertaining to Water Service and Retention of Plaintiff's Money due to Incorrect Billing Practices without Due Process against Defendant City of Kansas City, Missouri; U.S. Const. Amend. V & XIV Pursuant to 42 U.S.C. § 1983.”
- Count V-X: Negligence actions against Defendant City Kansas City in Counts V-X and against the following Defendants in both their official capacity and individual capacity: Count V Dequan Stone and John Doe 2; Count VI Issac Freeman and John Doe 4; Count VII Yvonne Deines; Count VIII Shanise Williams; Count IX Dawnetta Taylor; and Count X Shericka Slack.

         Defendants argue dismissal is proper on all counts pursuant to Fed.R.Civ.P. 12(b)(6) for Failure to State a Claim.

         Legal Standard

         To survive a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible where the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Wilson v. Arkansas Dept. of Human Serv., 850 F.3d 368, 371 (8th Cir. 2017) (internal quotation marks and citation omitted). When considering a motion to dismiss for failure to state a claim, the well-pled allegations in the complaint must be accepted as true and construed in the light most favorable to the nonmoving party. Kottschade v. City of Rochester, 319 F.3d 1038, 1040 (8th Cir. 2003).

         As this case involves a pro se plaintiff, this Court will only dismiss if it appears beyond doubt that the plaintiff “can prove no set of facts in support of his claim which would entitle him to relief.” Fortney v. Mullins, 2011 U.S. Dist. LEXIS 53550, at *8 (N.D. W.Va., Apr. 6, 2011) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)). Pro se status, however, “does not exempt a party from compliance with relevant rules of procedural and substantive law.” Lomax v. Aegis Funding Corp., 2010 U.S. Dist. LEXIS 39075, at *7 (E.D.N.Y. Apr. 19, 2010) (quoting Iwachiw v. N.Y. City Bd. of Educ., 194 F.Supp.2d 194, 202 (E.D.N.Y. 2002)). ...


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