Cochran v. City of Wichita, Kansas ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 28, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MICHAEL T. COCHRAN,
Plaintiff - Appellant,
v. No. 18-3222
(D.C. No. 6:18-CV-01132-JWB-
CITY OF WICHITA, KANSAS; KGG)
LAVONTA WILLIAMS, City of (D. Kan.)
Wichita, City Council Person;
Council Member District I; PETE
MEITZNER, City of Wichita, City
Council; Council Member District
II; JAMES CLENDENIN, City of
Wichita, City Council; Council
Member District III; JEFF
BLUBAUGH, City of Wichita, City
Council; Council Member District
IV; BRYAN FRYE, City of Wichita,
City Council; Council Member
District V; JANET MILLER, City of
Wichita, City Council and Vice
Mayor; Council Member, District
VI; JEFF LONGWELL, City of
Wichita, City Mayor; NATE
SCHIETHALE, City of Wichita
Police Department HOT Team
Officer; SGT. BRETT STULL, City
of Wichita Police Department HOT
Team Officer; LISA BERG, City of
Wichita Police Department HOT
Team Officer; DAVE NEINSTEDT,
City of Wichita Police Department
HOT Team Officer,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BRISCOE, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
Mr. Michael Cochran, the plaintiff, camped on the City of Wichita’s
property. He was apparently unaware that in 2013, the city had enacted an
ordinance that prohibited camping on public property unless the camper
had a temporary permit or was homeless and unable to sleep in an
appropriate shelter. Wichita City Code § 5.20.020. Mr. Cochran invoked
42 U.S.C. § 1985, suing the mayor, the city, the members of the city
council, and four city police officers. The district court dismissed the
action for failure to state a valid claim, and we affirm.
1. The Alleged Conspiracy to Violate Mr. Cochran’s Civil Rights
The city council enacted the ordinance in 2013. Mr. Cochran alleges
that
 in 2016 he slept in a tent on city property and
*
Oral argument would not materially help us to decide this appeal. We
have therefore decided the appeal based on the briefs. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
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 all of his belongings were taken.
He then allegedly tried to find out if the city had taken the property. He
first contacted a police officer, Lisa Berg. She allegedly denied knowing
whether the city had taken the property and promised to check. But Mr.
Cochran alleges that she never called him back.
Without his property, Mr. Cochran was allegedly forced to sleep at
an overflow shelter. While Mr. Cochran stayed there, someone stole his
moped. He reported this theft to the Wichita Police Department but did not
receive a response.
Roughly six months after the theft of his moped, Mr. Cochran was
allegedly questioned by a second city police officer, Nate Schiethale.
Officer Schiethale did not arrest Mr. Cochran.
2. Standard of Review
We engage in de novo review of the dismissal. Casanova v. Ulibarri,
595 F.3d 1120, 1124 (10th Cir. 2010). In applying de novo review, we
consider whether the factual allegations in the complaint create a facially
plausible claim. Id.
3. Failure to State a Valid Claim Under § 1985
Mr. Cochran relies solely on 42 U.S.C. § 1985, 1 which provides a
cause of action for conspiracy to violate civil rights. The § 1985 claim is
1
Because Mr. Cochran is pro se, the district court liberally construed
the complaint to include claims under 42 U.S.C. § 1983. But in district
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based on the city council members’ enactment of the ordinance 2 and
Mr. Cochran’s interactions with two city police officers after his
belongings were taken.
We begin with Mr. Cochran’s conspiracy allegations against the
police officers. On this part of the claim, Mr. Cochran needed to allege
facts creating a plausible inference of an agreement and concerted action.
See Brever v. Rockwell Int’l Corp., 40 F.3d 1119, 1126 (10th Cir. 1994);
Langley v. Adams Cty., 987 F.2d 1473, 1482 (10th Cir. 1993). Mr. Cochran
alleged an agreement
 among the police officers or
 between the officers and the city council members.
The district court regarded these allegations as conclusory, and we agree. 3
See Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983) (per
court, Mr. Cochran expressly disavowed an intent to rely on § 1983. See R.
at 134 (the plaintiff’s heading, “Plaintiff Has Not Brought Any Allegations
Pursuant to 42 U.S.C. § 1983”). Though the district court needed to
liberally construe the complaint, the court could not act as an advocate for
Mr. Cochran. E.g., Ford v. Pryor, 552 F.3d 1174, 1177 (10th Cir. 2008).
And on appeal, Mr. Cochran has continued to rely solely on § 1985. We
thus decline to consider whether the complaint contained an adequately
pleaded claim under § 1983.
2
In district court, Mr. Cochran consented to dismissal of his claims
against the city and his claims against the other defendants in their official
capacities.
3
Mr. Cochran argues that the district court failed to liberally construe
his arguments, but courts cannot relieve plaintiffs of their burden to allege
“sufficient facts on which a recognized legal claim could be based.”
4
curiam) (concluding that the allegations in the complaint did not show an
agreement or concerted action).
In the complaint, Mr. Cochran did not even mention any acts by two
of the police officers named as defendants (Brett Stull and Dave
Nienstadt). Mr. Cochran alleged that he had talked to Lisa Berg and Nate
Schiethale but did not allege any facts suggesting that they had
 participated in taking Mr. Cochran’s property or
 entered into any agreement to do so.
Furthermore, the officers’ alleged failure to help Mr. Cochran recover his
property would not have violated Mr. Cochran’s constitutional rights. See
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196-97
(1989). Mr. Cochran has thus failed to state a valid conspiracy claim
against any of the police officers.
Mr. Cochran also alleges a conspiracy between the city council
members resulting in passage of the city ordinance in 2013. The district
court ruled that a two-year period of limitations exists, and Mr. Cochran
does not argue to the contrary. See Kan. Stat. Ann. § 60-513. He also
Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018) (internal
quotation marks omitted), cert. denied, 139 S. Ct. 800 (2019). Mr. Cochran
also blames a magistrate judge in an earlier case, who told him that he
didn’t need to present supporting evidence at the pleading stage. The
magistrate judge was correct. In a complaint the plaintiff need not present
evidence, but he or she must plead facts and cannot rely on conclusory
allegations. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006).
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acknowledges that he sued more than two years after the city had enacted
the ordinance. 4 Given the dates in the complaint, the district court could
order dismissal if these dates showed that the limitations period had
expired. See Chance v. Zinke, 898 F.3d 1025, 1034 (10th Cir. 2018)
(“Although timeliness is an affirmative defense, if the allegations show
that relief is barred by the applicable statute of limitations, the complaint
is subject to dismissal for failure to state a claim.” (citation, ellipsis, &
internal quotation marks omitted)).
Mr. Cochran’s complaint shows that it was filed more than two years
after enactment of the ordinance. But Mr. Cochran argues that the theft of
his moped and the removal of his campsite were overt acts continuing the
conspiracy into 2016. 5 But Mr. Cochran has failed to plausibly allege
 any acts by the city council members after 2013 or
 the police officers’ entry into a conspiracy with any city
council members.
4
This lawsuit began in 2018. Mr. Cochran had filed another suit in
2017, which the district court dismissed without prejudice for failing to
comply with Fed. R. Civ. P. 8. Under some circumstances, the filing of a
prior suit might extend the time to sue under Kansas’s statute of
limitations. Kan. Stat. Ann. § 60-518. Here, though, the earlier suit was
also filed more than two years after enactment of the ordinance in 2013.
5
Because this is Mr. Cochran’s only argument on timeliness, we need
not address the viability of other possible arguments.
6
The officers’ alleged acts in 2016 thus cannot extend the limitations
period. So Mr. Cochran has not presented a basis to disturb the district
court’s determination on timeless as to the claims against the city council
members.
* * *
A conspiracy to enact the ordinance is not actionable because Mr.
Cochran has not shown on appeal that the limitations period was extended
by an ongoing conspiracy . And Mr. Cochran’s other conspiracy allegations
against the police officers are conclusory. We thus conclude that the
district court did not err in dismissing the claims under § 1985.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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