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Watkins v. City of Kalamazoo

United States District Court, W.D. Michigan, Southern Division

March 3, 2017



          RAY KENT United States Magistrate Judge.

         This matter is now before the Court on defendant City of Kalamazoo's motion to dismiss pro se plaintiff's amended complaint (docket no. 14). The motion is unopposed.

         I. Background

         Defendant moved to dismiss plaintiff's original complaint pursuant to Fed.R.Civ.P. 12(b)(5) and (6). The undersigned recommended that the motion be granted because plaintiff did not allege a cause of action against defendant City of Kalamazoo (“City”) and that the action be dismissed. See Report and Recommendation (R&R) (docket no. 8). While the motion was pending, plaintiff moved to amend the complaint. Among other things, plaintiff represented to the Court that in the “new amended complaint I will explain how the City of Kalamazoo (community planning and [development] and employee inspector nancy hess and housing official Bobn [sic] McNutt discriminated against me, ” that “he is in the process of retaining a law firm to represent him, ” and “that he intends to add Nancy Hess as a party to the lawsuit.” Order (docket no. 10). The Court granted plaintiff's motion to amend and denied the R&R as moot. Id.; Order (docket no. 12).

         Contrary to his representations made to the Court, plaintiff did not retain a law firm and the amended complaint did not add Nancy Hess as a party. As in his original complaint, plaintiff's handwritten amended complaint alleged that on June 12 or 13, 2013, Kalamazoo City Inspector Nancy Hess, with the backing of Robert McNutt, “took actions against my rental properties that I felt was in violations of my civil and personal right.” Amend. Compl. (docket no. 11, PageID.37). According to plaintiff, Ms. Hess received a complaint that plaintiff was renting rooms, showed up in a “day or so, ” found that to be true and condemned four of his properties within 24 to 48 hours. Id. When plaintiff informed Inspector Hess that she could not condemn 625 Elizabeth, she replied “we are the city and can do what ever we want.” Id.

         Based on these interactions, plaintiff alleged three claims:

         1) Discrimination, 2) Abuse of power and Authority, and 3) Providing legal advise without being a law person.

         Id. at PageID.38. With respect to the discrimination claim, plaintiff stated that Ms. Hess condemned his houses, filed 15 housing violations against him, filed 9 complaints against his business partner, and issued a warrant for plaintiff's arrest. Id. Plaintiff had to take a plea deal to 9 counts, and his partner had to plea to 5 counts to resolve the matter. Id. While plaintiff does not identify himself as a member of a particular suspect class, he indicates that this is a racial discrimination case, referring to different treatment received by “3 non african-americans landlords in the same area as one of my condemned houses. . . based on the race / [financial] status.” Id. at PageID.45. With respect to the abuse of authority claim, plaintiff alleged that Inspector Hess “went over city inspector Evon Wright['s] head and [condemned] 625 Elizabeth.” Id. at PageID.40. Finally, with respect to the legal advice claim (presumably, practicing law without a license), plaintiff alleged that:

During the condemnation investigation, Ms. Hess provided legal advise - she told all of my tenants to stop paying rent, take me to court and sue me for there deposits and all back rent.

Id. at PageID.41. Plaintiff seeks $1, 300, 000.00 from the City. Id. at PageID.42.

         II. Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)

         The City brings its motion pursuant to Fed.R.Civ.P. 12(b)(6), which seeks dismissal for failure to state a claim upon which relief can be granted.

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.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). In making this determination, the complaint must be construed in the light most favorable to the plaintiff, and its well-pleaded facts must be accepted as true. Morgan v. Churchs Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). “When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are ...

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