                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                     TENTH CIRCUIT                          February 4, 2015

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
BENJAMIN CUSTINGER
            Plaintiff – Appellant,
                                                              No. 14-3196
v.                                               (D.C. No. 6:14-CV-01123-EFM-KMH)
CITY OF DERBY, KANSAS                                          (D. Kan.)

           Defendant – Appellee.


                              ORDER AND JUDGMENT*


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.



     The district court granted the City of Derby’s (“the City”) motion to dismiss

Benjamin Custinger’s pro se complaint under Federal Rule of Civil Procedure 12(b)(6)

for failure to state a claim upon which relief could be granted. Custinger appeals this

decision, arguing that the district court used false reasoning and failed to adequately

consider the denial of his constitutional rights. Although Custinger did not provide a

specific legal basis in support of his claim, he generally alleges that the City violated his

constitutional rights. We therefore consider his claim under 42 U.S.C. § 1983. See Hall v.

     *
    After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This 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 This order and judgment is not binding precedent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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“[I]f a court can reasonably read the [pro

se] pleadings to state a valid claim on which the plaintiff could prevail, it should do so

despite the plaintiff’s failure to cite proper legal authority . . . .”).


                              I.      Factual and Procedural Background

   Custinger alleges that, after being booked and released from a jail in the City of

Derby, he took a taxi back to his apartment. As the jail had kept his belongings, Custinger

arranged to pay the taxi fare the next morning.

   The following morning, an unidentified Derby police officer’s loud knock awakened

him. Before Custinger could get up to answer the door, the police officer entered the

apartment, drew his gun, and repeatedly yelled Custinger’s name. Custinger got out of

bed and went to speak with the officer. Upon seeing Custinger, the officer lowered his

weapon and told Custinger the taxi driver was outside waiting for the fare money. Once

Custinger paid the fare, the officer and taxi driver left.

   On April 28, 2014, Custinger filed this action against the City. He asserted that the

officer’s actions violated his constitutional rights. Custinger later attached as exhibits to

his Complaint filings from two earlier unrelated cases (from Derby Municipal Court and

Sedgwick County District Court), claiming that these cases were further instances in

which his rights were violated.

   The City moved to dismiss Custinger’s complaint for failure to state a claim upon

which relief could be granted. The district court granted this motion. Custinger now

appeals.

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                                    II.   The Motion to Dismiss

   “We review de novo the district court's granting of a motion to dismiss under Federal

Rule of Civil Procedure 12(b)(6).” Slater v. A.G. Edwards & Sons, Inc., 719 F.3d 1190,

1196 (10th Cir. 2013). Because Custinger is pro se, we afford his pleadings a liberal

construction. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991).

   Having reviewed Custinger’s brief, we conclude that the district court correctly

granted the City’s motion to dismiss. Although a municipality can be sued under § 1983,

it cannot be held liable “solely because it employs a tortfeasor.” Monnell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690 (1978). Rather, a municipality can only be liable under § 1983

if its unconstitutional policy or custom caused the plaintiff’s constitutional deprivation.

See id. at 690, 694. A plaintiff such as Custinger can prove that such a policy of custom

exists through evidence of (1) formal regulations; (2) widespread practice so permanent it

constitutes a custom; (3) decisions made by employees with final policymaking authority

that are relied upon by subordinates; or (4) a failure to train or supervise employees that

results from a deliberate indifference to the injuries caused. See Brammer-Hoelter v. Twin

Peaks Charter Academy, 602 F.3d 1175, 1188–89 (10th Cir. 2010).

   Custinger has failed to allege facts sufficient to survive a motion to dismiss. As noted

above, to do so his Complaint would need to allege facts sufficient for us to reasonably

infer “1) the existence of a municipal policy or custom and 2) a direct causal link between

the policy or custom and the injury alleged.” Graves v. Thomas, 450 F.3d 1215, 1218

(10th Cir. 2006). Even giving his pleadings the liberal reading they are due, we cannot

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reasonably make these inferences. Although Custinger’s allegations may state a plausible

§ 1983 claim against the officer in his individual capacity, Custinger has never asserted

that the officer’s actions resulted from any policy or custom of the City. Absent such an

allegation, he cannot obtain relief against the City under § 1983. We therefore affirm the

district court’s grant of the City’s motion to dismiss.


                                           ENTERED FOR THE COURT


                                           Gregory A. Phillips
                                           Circuit Judge




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