UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

BENJAMIN CUSTINGER 

Plaintiff – Appellant, 

v. 

CITY OF DERBY, KANSAS 

Defendant – Appellee. 

No. 14-3196 

(D.C. No. 6:14-CV-01123-EFM-KMH) 

(D. Kan.) 

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 This order and judgment is not binding precedent 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 4, 2015

Elisabeth A. Shumaker 

Clerk of Court

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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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