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Jason Weiss ran for mayor of the town of Elizabeth, and the police allegedly removed his campaign signs. So he sued the town. The town moved to dismiss for failure to state a claim, arguing Weiss hadn’t linked the removal of his campaign signs to a municipal policy or custom. The district court agreed and granted the town’s motion to dismiss. Weiss appealed.
According to the opinion, the town could incur liability only if Weiss’s injury had stemmed from a municipal policy or custom, citing the decision Monell v. Dep’t of Pub. Servs. Weiss needed to link the removal of his campaign signs to a municipal policy or custom.
In the amended complaint, Weiss alleged city officials had removed his campaign signs for failure to comply with Article XII of the town’s municipal code and Article XII is unconstitutional because it didn’t achieve a compelling state interest and isn’t the least restrictive alternative. But Weiss didn’t say how Article XII had caused his injury, the opinion noted.
The town urged dismissal, arguing the amended complaint had failed to identify the particular restrictions violating the constitution or say how these provisions had caused his injury.
Weiss responded, but didn’t say how Article XII had caused his injury, the opinion added. He instead argued a police officer should have provided notice if the signage had violated the municipal code. Given the continued failure to identify the problematic provisions in Article XII or say how they had caused the injury, the magistrate judge recommended dismissal.
Weiss objected. There he said — for the first time — the problematic provision was 16-12-70, which limited temporary signs on residential property. The district judge overruled the objection, reasoning Weiss hadn’t identified 16-12-70 in the amended complaint or in his response to the motion to dismiss and hadn’t said how the injury stemmed from a municipal policy.
On appeal, Weiss didn’t say what was wrong with the district court’s reasoning, the opinion added. He instead said Article XII is unconstitutional.
According to the opinion, given the failure to say why the district court was wrong, the 10th Circuit affirmed the dismissal, citing the decision Nixon v. City & Cnty. of Denver, which stated the appellant must explain how the district court erred.