Harland v. Kansas City, Kansas Police Department

Opinion

Appellate Case: 21-3207 Document: 010110711352 Date Filed: 07/15/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 15, 2022 _________________________________ Christopher M. Wolpert Clerk of Court IKEM HARLAND,

Plaintiff - Appellant,

v. No. 21-3207 (D.C. No. 2:21-CV-02060-EFM-JPO) KANSAS CITY, KANSAS POLICE (D. Kan.) DEPARTMENT,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, MURPHY, and EID, Circuit Judges.** _________________________________

Plaintiff-Appellant Ikem Harland filed suit in the District of Kansas against the

Kansas City, Kansas Police Department (“the Police Department”), alleging false

arrest and abuse while he was incarcerated. Harland struggled to comply with the

district court’s orders to file an amended complaint and provide sufficient

information to issue summonses. Ultimately, the Police Department moved to

dismiss the suit for failure to state a claim upon which relief can be granted, as

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. Appellate Case: 21-3207 Document: 010110711352 Date Filed: 07/15/2022 Page: 2

required by Fed. R. Civ. P. 12(b)(6). The district court granted the motion. Harland

now appeals the district court’s grant of the Police Department’s motion to dismiss.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

On February 3, 2021, Harland filed suit pro se against the Police Department

asserting that he was “[a]rrested on false charges and spent 7 month[s] in jail getting

abused.” R. at 9. Harland also requested appointment of counsel.

The court denied the motion for appointment of counsel and ordered Harland

to show “why this case should not be dismissed for lack of subject-matter

jurisdiction.” Id. at 13. In the order, the court noted that “[Harland] hasn’t offered

any basis for federal-court jurisdiction” and failed to state

when [he] was arrested, by which officer(s) he was arrested, for what he was supposedly arrested, what facts support [his] contention that he was arrested on false charges, what the status or outcome of those charges might be, or how, when, and by whom [he] allegedly was abused in jail after he was arrested.

Id. at 17–18.

To show cause, Harland filed a response with additional facts regarding his

May 2, 2019, arrest and complaints of abuse during imprisonment. Harland provided

the date of his arrest but failed to include dates accompanying his allegations and

failed to associate causes of action with these allegations. The court found these

facts sufficient to demonstrate Harland “may be stating a claim of civil rights

violations” under 42 U.S.C. § 1983 and did not dismiss his case. Id. at 22. The court

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then requested that Harland file a notice naming his defendants, and the specific

causes of action against them.

In response, Harland sent the court a list of police officers’ names designated

as defendants, alleging that they “made [a] fake video and sign[ed] the witness

statement.” Id. at 25. Harland also included a list of correctional officers’ names

designated as defendants, alleging that they had abused him by “feeding [him] a sack

lunch three times a day for a month and a half”; causing “[b]odily harm”; “using

psychological warfare tactics”; and “put[ting] a false charge of a stabbing self-

defense,” which placed Harland in isolation. Id. The court then directed Harland to

file an amended complaint that listed each defendant in the complaint’s caption,

pursuant to Fed. R. Civ. P. 15, and requested that Harland set forth what each named

defendant did that Harland contends gives rise to his claims.

Harland failed to file an amended complaint and instead sent the court a

“response” stating that he had subpoenaed a correctional officer but not yet received

an answer. Harland did not identify the correctional officer he allegedly subpoenaed.

The court extended Harland’s deadline to file the amended complaint to April 2,

2021, and requested that he designate any unidentified defendant as “John Doe” or

“Jane Doe” in the complaint’s caption, along with the unidentified defendants’

conduct that led to his claims. Id. at 29–30.

Harland filed an amended complaint, in which he listed thirteen paragraphs of

allegations against several John and Jane Does. The court then ordered Harland to

provide addresses for all defendants by April 20, 2021, in order to prepare the

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appropriate summonses, but Harland failed to respond with addresses for the John

and Jane Doe defendants by that date. As a result, the court did not add the

unidentified defendants as parties to the case and retained the Police Department as

the only defendant.

In response to Harland’s complaint, the Police Department filed a motion to

dismiss, arguing that, pursuant to Rule 12(b), (1) the district court lacked subject

matter jurisdiction; (2) Harland failed to state a claim upon which relief could be

granted; (3) Harland provided insufficient process; and (4) Harland provided

insufficient service of process. Harland responded to the motion by renewing his

allegations from previous filings and again included the list of individuals he

designated as defendants.

The court granted the Police Department’s motion and dismissed Harland’s

claims under Rule 12(b)(6) because his “pleadings [did] not assert the circumstances

surrounding the false charges or provide any factual basis tying the Police

Department or its employees to the misconduct,” and he failed to “provide any detail

regarding the dates or circumstances” of the alleged “tortious conduct by various

John and Jane Does.” Id. at 51.

Harland timely appealed the order granting the Police Department’s motion to

dismiss.

II.

We review de novo a district court’s grant of a motion to dismiss for failure to

state a claim under Rule 12(b)(6). Albers v. Bd. Of Cty. Comm’rs of Jefferson Cty.,

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Colo., 771 F.3d 697, 700 (10th Cir. 2014). At the motion to dismiss stage, we accept

the non-movant’s well-pleaded allegations as true and view them in the light most

favorable to him. Warnick v. Cooley, 895 F.3d 743, 750–51 (10th Cir. 2018).

Although we construe Harland’s pro se pleadings liberally, “the court cannot take on

the responsibility of serving as the litigant’s attorney in constructing arguments and

searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840

(10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).

Pro se litigants must still “follow the same rules of procedure that govern other

litigants.” Id. (quoting Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)).

III.

On appeal, Harland contends that the district court erred in dismissing his

complaint because (1) the Police Department “[made] a fake video of someone in

[Harland’s] clothing running from the cops”; (2) the discovery “shows [the police]

blowing out [Harland’s] wheel tire on Minnesota [Street]” and without a back wheel,

he could not have been “able to make it [to] that house” where he was arrested; and

(3) the district court misapplied the law and should have taken notice of the “officer

misconduct” and “filling out a false statement” claims. Aplt. Br. at 3–4. Harland

also asserts on appeal that he “never got [his] day in court” and the district court’s

judgment was motivated by “trying to protect their own.” Id. at 4. Harland failed to

raise any of these arguments in response to the Police Department’s motion to

dismiss, and therefore they are not preserved for appellate review and are waived.

See Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1246 n.3 (10th Cir. 2012)

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(explaining that failure to raise issues in district court at the appropriate time waives

appellate review). Therefore, we will only review whether Harland successfully

stated a claim upon which relief can be granted pursuant to Rule 12(b)(6).

Despite liberally construing Harland’s filings and assuming he intended to

bring a § 1983 claim and a common law claim for false arrest under Kansas law, we

find that Harland has failed to state a claim. To survive a Rule 12(b)(6) motion to

dismiss, Harland’s “complaint must contain enough allegations of fact, taken as true,

‘to state a claim to relief that is plausible on its face.’” Khalik v. United Air Lines,

671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007)). Harland’s factual allegations “must be enough to raise a right

to relief above the speculative level” and he must frame the complaint “with enough

factual matter (taken as true) to suggest” that he is entitled to relief. Twombly, 550

U.S. at 555–56. He has not succeeded in doing so.

Harland’s complaint fails to recount the facts surrounding his alleged injury,

namely the “who, what, and when supporting his claims for relief.” Barnes v. N.M.

Dep’t of Corr., No. 21-2095, 2022 WL 2189548, at *2 (10th Cir. June 17, 2022)

(unpublished).1 In the Statement of the Claim section of the district court’s pro se

civil complaint form, Harland was instructed to “[s]tate what each defendant did that

violated the right(s) of the plaintiff, including dates and places of such conduct by the

defendant(s).” R. at 9. In this section, Harland simply wrote that he “was arrested on

1 Unpublished cases are not binding precedent, but we consider them for their persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 6 Appellate Case: 21-3207 Document: 010110711352 Date Filed: 07/15/2022 Page: 7

false charges and spent 7 months in jail getting abused.” Id. (cleaned up). Harland

failed to provide sufficient facts to tie specific individuals to his allegations that the

Police Department falsely charged him or that the correctional officers abused him

while imprisoned, and failed to provide any dates for these allegations.

In the Relief section, Harland wrote that he wanted “the cops to get in trouble

and money for [his] pain and suffery [sic].” Id. at 10. He also claimed actual

damages and punitive damages and was instructed to “state the amounts claimed and

the reasons you claim you are entitled to recover monetary damages,” but Harland

simply wrote “1 million dollars” and did not include any reasons he may be entitled

to recover that amount. Id. Even after multiple attempts by the court to assist

Harland in filing a sufficient complaint, he failed to set forth his claims.

Harland also asserts on appeal that the court failed to take notice of his claims

of “officer misconduct” and “filling out a false statement.” Aplt. Br. at 3–4. But the

court did take notice of these arguments, and it determined that Harland’s pleadings

did not “provide any factual basis tying the Police Department or its employees to the

misconduct in jail” and “do not assert circumstances surrounding the false charges.”

R. at 51. We agree.

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IV.

Because Harland failed to allege facts to state a claim for relief that is

plausible on its face, his complaint must be dismissed. Accordingly, we AFFIRM.

Entered for the Court

Allison H. Eid Circuit Judge