Sommerville v. State of Kansas

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 13, 2012
Elisabeth A. Shumaker
Clerk of Court
RAYMOND E. SOMMERVILLE,
Plaintiff-Appellant,
v. No. 12-3015
(D.C. No. 5:11-CV-04105-RDR-KGS)
STATE OF KANSAS; CITY OF (D. Kan.)
MAHASKA, KANSAS,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.
Plaintiff Raymond E. Sommerville, proceeding pro se and in forma pauperis,
challenges dismissal of his complaint for lack of subject matter jurisdiction and
failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
As the district court noted, “[t]he nature of [P]laintiff’s complaint is
uncertain.” Aplt. App. at 48. Mr. Sommerville sued Defendants State of Kansas and
the City of Mahaska, alleging the following complaints, as summarized by the district
court: “(1) [Mr. Sommerville has] been threatened in open council meetings;
(2) [Mr. Sommerville has] been threatened by [a certain] council member []
in [Mr. Sommerville’s] driveway; (3) [Mr. Sommerville has] been told that it
would cost $10 per hour to see certain records; (4) [Mr. Sommerville has] been
forced to pay for trash/garbage pickup when he does not use the service; and
(5) [Mr. Sommerville has] been threatened with water shutoff for nonpayment of his
trash/garbage bill.” Id. at 49 (internal quotation marks omitted). He sought the
following relief: “(1) declare unconstitutional the law that requires him to pay for a
service that is not wanted or needed; (2) a judgment stopping cities from violation of
the laws they are suppose[d] to uphold; (3) require the State of Kansas to stop the
abuse of power by its cities; and (4) conduct the investigations that are necessary.”
Id. (internal quotation marks omitted). He also sought $10,000,000 in damages.
Defendant State of Kansas sought dismissal pursuant to Fed. R. Civ. P.
12(b)(1) for lack of subject matter jurisdiction based on Eleventh Amendment
immunity. Defendant City of Mahaska moved for dismissal pursuant to
Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.
The district court granted Defendants’ motions and dismissed the complaint. Mr.
Sommerville appealed. In his appellate brief, Mr. Sommerville included new
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complaints that Defendants twice violated his voting rights by closing polls early and
moving poll locations.
We review de novo a district court’s dismissal pursuant to Rule 12(b)(1) for
lack of jurisdiction based on Eleventh Amendment immunity. See Elephant Butte
Irrigation Dist. of N.M. v. Dep’t of Interior, 160 F.3d 602, 607 (10th Cir. 1998). We
review a district court’s dismissal of a § 1983 complaint for failure to state a claim
de novo.1 See Riddle v. Mondragon, 83 F.3d 1197, 1201 (10th Cir. 1996). “If the
plaintiff proceeds pro se, the court should construe his pleadings liberally and hold
the pleadings to a less stringent standard than formal pleadings drafted by lawyers.”
Riddle, 83 F.3d at 1202. “However, the broad reading of the plaintiff’s complaint
does not relieve the plaintiff of the burden of alleging sufficient facts on which a
recognized legal claim could be based. . . . [C]onclusory allegations without
supporting factual averments are insufficient to state a claim on which relief can be
based.” Id. (alterations and internal quotation marks omitted). In his appellate brief,
Mr. Sommerville has failed to offer any basis on which to question the correctness of
the district court’s rulings.2
1
The district court assumed that Mr. Sommerville was asserting a claim under
42 U.S.C. § 1983.
2
We will not address the issues Mr. Sommerville raises for the first time on
appeal. See McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002).
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We accordingly AFFIRM the district court’s dismissal of Mr. Sommerville’s
claims for substantially the same reasons given by the district court.3
Entered for the Court
Jerome A. Holmes
Circuit Judge
3
The magistrate judge granted Mr. Sommerville’s request for in forma pauperis
status. Defendant State of Kansas sought review of that order in the district court on
the grounds that the magistrate did not first screen Mr. Sommerville’s claim, as
required by 28 U.S.C. § 1915(e)(2)(B). The district court held Defendant’s motion
for review of the magistrate’s order was moot in light of the Rule 12(b)(1) dismissal.
While it is true that the court must “dismiss the case at any time if the court
determines that . . . the action . . . is frivolous or malicious . . . [or] fails to state a
claim on which relief may be granted[,]” we agree with the district court that the
issue was moot in light of the Rule 12(b)(1) dismissal. 28 U.S.C. § 1915(e)(2)(B).
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