Hover et al v. Purney-Crider et al
MEMORANDUM AND ORDER granting in part and denying in part 5 Motion to Dismiss plaintiffs' amended complaint. Plaintiffs may file an amended complaint consistent with this memorandum and order no later than Monday, January 5, 2015. Signed by District Judge John W. Lungstrum on 12/16/2014. (ses)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Amy Hover; Brad Jordan; and
Case No. 14-2410-JWL
Unified Government of Wyandotte County
and Kansas City, Kansas et al.,
MEMORANDUM & ORDER
Plaintiffs Amy Hover, Brad Jordan and Gary Jordan filed suit under 42 U.S.C. § 1983
alleging that defendants violated their Fourth, Fifth and Fourteenth Amendment rights in
connection with defendants’ seizure and subsequent sale of plaintiffs’ property to satisfy tax
indebtedness of delinquent taxpayers.
The seizure was executed by agents of the Kansas
Department of Revenue (KDOR) and the Wyandotte County Sheriff’s Department. This matter
is presently before the court on a motion to dismiss filed by the KDOR defendants—KDOR
agent Carrie Purney-Crider; KDOR’s Secretary Nick Jordan; and KDOR’s Director of Taxation
Steve Stotts. Specifically, the KDOR defendants move to dismiss plaintiffs’ amended complaint
for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be
granted.1 As will be explained, the motion is granted in part and denied in part.2
In their motion to dismiss, the KDOR defendants assert that the court lacks personal
jurisdiction over them because they were never served with the amended complaint. Any
argument about service is premature as it was raised long before the expiration of the 120-day
service period set forth in Federal Rule of Civil Procedure 4(m). The KDOR defendants appear
to concede the issue, as they have failed to press it in their reply brief.
The KDOR defendants’ motion to dismiss is based primarily on Federal Rule of Civil
Procedure 12(b)(6). In analyzing that motion, the court accepts as true “all well-pleaded factual
allegations in the complaint and view[s] them in the light most favorable to the plaintiff.”
Burnett v. Mortgage Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citation
omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007))). Consistent with this standard, the following well-pleaded allegations, taken from
plaintiffs’ amended complaint, are accepted as true for purposes of defendants’ motion.
On September 18, 2012, the Kansas Department of Revenue issued a writ of execution to
seize property owned by Emmett Jordan and his spouse Amy Jordan at their residence in Kansas
City, Kansas to satisfy the tax liabilities of Emmett and Amy Jordan. The property to be seized
pursuant to the writ included 22 vehicles and any other real or personal property owned by
Emmett Jordan and Amy Jordan. The writ was executed by more than 80 agents, including
defendant Carrie Purney-Crider and other unnamed agents of both the Kansas Department of
Revenue and the Wyandotte County Sheriff’s Department. Plaintiffs allege that the agents were
all armed with automatic weapons and dressed in combat gear.
In connection with their motion to dismiss, the KDOR defendants seek an award of attorneys’
fees under 42 U.S.C. 1988 on the grounds that plaintiffs’ suit is vexatious, frivolous, or brought
to harass or embarrass the defendants.” The request is summarily denied.
Plaintiff Gary Jordan was present on Emmett Jordan’s property at the time the writ was
executed. The amended complaint does not allege the relationship, if any, between Gary Jordan
and Emmett or Amy Jordan. Plaintiff Gary Jordan, identified in the amended complaint as a
“man in his 60s” was allegedly “shoved to the ground by officers while they pointed automatic
weapons at him” and “was detained in a state car for more than two hours with no explanation of
why he was being held.” Plaintiffs Amy Hover and Brad Jordan were not present on the
property at the time the writ was executed and the amended complaint does not allege the
relationship between these plaintiffs and Emmett or Amy Jordan. According to the allegations
in the amended complaint, items of personal property belonging to plaintiffs were seized and
removed from Emmett Jordan’s residence despite the fact that such property was not identified
in the writ.
Upon learning that agents had seized their personal property, plaintiffs notified
“defendants” via phone calls and letters that they claimed ownership of certain property that had
been seized. Plaintiffs assert that they repeatedly requested that the Department of Revenue
return their personal property but that the KDOR refused to return the items wrongfully seized
and that a large portion of those items were sold at auction by the KDOR. On October 15, 2012,
plaintiffs provided written notice to Ms. Purney-Crider, including proof of ownership, that many
of the items seized in fact were owned by plaintiffs. Plaintiffs allege that the KDOR caused a
trailer owned by plaintiff Amy Hover to be titled in KDOR’s name despite notice that the trailer
was owned by Ms. Hover and had been titled in her name. After learning that the KDOR
intended to sell plaintiffs’ property at auction, plaintiffs again provided notice to Ms. PurneyCrider that some of the items intended to be sold at auction were owned by plaintiffs. Plaintiffs
allege that they received no response “from defendants” and the auction proceeded as scheduled.
They further contend that defendant Nick Jordan, the Secretary of the KDOR, adopted and
implemented policies, customs or practices that permitted employees to take property without
lawful justification from innocent parties and to do so using excessive force when other more
reasonable and less drastic methods are available. Plaintiffs further allege that Mr. Jordan failed
to adequately train or supervise Ms. Purney-Crider.
Other than a preliminary paragraph
identifying defendant Steve Stotts as the Director of Taxation for the KDOR, there are no
allegations in the amended complaint concerning Mr. Stotts.3
In their amended complaint, all plaintiffs allege that the KDOR defendants violated their
Fourth, Fifth and Fourteenth Amendment rights based on unlawful search and seizure and
deprivation of property without due process or just compensation. In addition, plaintiff Gary
Jordan asserts claims based on the use of excessive force and unlawful detention. The KDOR
defendants move to dismiss all claims against them.
Subject Matter Jurisdiction
In their motion to dismiss, the KDOR defendants assert that the Eleventh Amendment
prohibits this court from exercising subject matter jurisdiction over plaintiffs’ claims. 4 This
The court presumes that the absence of any substantive allegations concerning Mr. Stotts was
inadvertent, as plaintiffs have attached to their response a proposed second amended complaint
that sets forth the same allegations against Mr. Stotts as are alleged against defendant Nick
In their motion, defendants also contend that the Tax Injunction Act deprives this court of
subject matter jurisdiction over plaintiffs’ claim. Defendants have expressly abandoned this
argument in their reply brief.
argument is premised on defendants’ related argument that plaintiffs have sued each of the
KDOR defendants only in their official capacities such that dismissal is required in any event.
See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).5
In support of this
argument, defendants highlight that plaintiffs have expressly indicated that Mssrs. Jordan and
Stotts have been named in their official capacities and that the court should presume that Ms.
Purney-Crider is named in her official capacity. Plaintiffs, in response, seek permission to
amend their complaint to include individual capacity claims against Mssrs. Jordan and Stotts (in
addition to the official capacity claims) and to clarify, to the extent the court deems necessary,
that they are asserting claims against Ms. Purney-Crider only in her individual capacity.
The court concludes that plaintiffs may amend their complaint to assert claims against
defendants Jordan and Stotts in their individual capacities to the extent that such claims are
consistent with the remaining aspects of the court’s memorandum and order. In permitting that
amendment, the court rejects defendants’ contention that the amendment is barred by the statute
of limitations and does not relate back to the amended complaint. Significantly, defendants do
not dispute that the amendment arises out of the same occurrence as set forth in the amended
complaint. They do not contend that they will be prejudiced in any respect by having to defend
against individual-capacity claims. Finally, they do not dispute that they had sufficient notice of
potential individual-capacity claims—a fact evidenced by defendants’ assertion of a qualified
immunity defense as well as the amended complaint’s request for punitive damages. In other
While the Eleventh Amendment does not bar an action against an official in his or her official
capacity for prospective injunctive or declaratory relief, see Buchheir v. Green, 705 F.3d 1157,
1159 (10th Cir. 2012), it is undisputed that plaintiffs do not seek such relief in their amended
complaint. Rather, plaintiffs seek only monetary damages in their amended complaint.
words, Mssrs. Jordan and Stotts have been on notice at all times that plaintiffs likely intended to
assert claims against them in their individual capacities. See Sanders-Burns v. City of Plano,
594 F.3d 366, 377-78 (5th Cir. 2010) (amendment substituting individual capacity claim for
official capacity claim satisfied Rule 15(c)(1)(C) where defendant had sufficient notice that
claim would be brought in individual capacity and suffered no prejudice in preparing defense).
For these reasons, the court will permit the amendment consistent with other admonitions in this
memorandum and order. Because plaintiffs have not responded to the merits of defendants’
arguments concerning the dismissal of the official capacity claims against Mssrs. Jordan and
Stotts, those claims are dismissed.
Similarly, the court will permit plaintiffs to clarify that the claims asserted against
defendant Purney-Crider are asserted only in her individual capacity, which should come as no
surprise to Ms. Purney-Crider. She has asserted qualified immunity as a defense to the claims
(indicating an awareness that she had been sued in her individual capacity) and the amended
complaint seeks punitive damages based in part on her alleged conduct. Moreover, the amended
complaint as it relates to Ms. Purney-Crider reads like an individual capacity suit. See id. While
defendants urge that the claim should be deemed an official capacity claim because Ms. PurneyCrider was not served individually but only through the Kansas Department of Revenue, the
court—regardless of how and whether Ms. Purney-Crider was served—will permit the
clarification as indicated. In other words, even if the court were to conclude that plaintiffs have
asserted only an official capacity suit against Ms. Purney-Crider, the court would nonetheless
permit plaintiffs to amend their complaint at this juncture. Thus, regardless of whether the court
permits a “clarification” or an “amendment,” plaintiffs may pursue claims against Ms. Purney6
Crider in her individual capacity and may file an amended complaint to the extent it is consistent
with the additional admonitions in this memorandum and order.
For the foregoing reasons, the court dismisses any official capacity claims against the
KDOR defendants and will permit plaintiffs to clarify or amend their complaint to assert
individual capacity claims against the KDOR defendants.
Failure to State a Claim
In addition to challenging this court’s subject matter jurisdiction over plaintiffs’ claims,
defendants also seek dismissal of the amended complaint for failure to state a claim.
Specifically, defendants contend that they are absolutely immune from liability for money
damages; that the claims as alleged do not satisfy the pleading requirements of Twombly and
Iqbal; and that plaintiffs’ allegations, even if true, simply do not state claims for the
constitutional violations alleged. The court addresses each of these arguments in turn.
Next, the KDOR defendants contend that dismissal of the amended complaint is required
because, having acted pursuant to a judicially-issued warrant, they are absolutely immune from
liability for money damages. This argument, premised solely on the Tenth Circuit’s decision in
Wilcox v. Magill, 468 Fed. Appx. 849 (10th Cir. 2012), is rejected. Defendants are correct that
“officials charged with the duty of executing a facially valid court order enjoy absolute
immunity from liability for damages in a suit challenging conduct prescribed by that order.” Id.
at 852-53. Consistent with that principle, the Circuit in Wilcox found that to the extent that state
officers acted pursuant to a writ of execution, they were entitled to immunity. See id. at 852-53.
As the Circuit noted however, absolute immunity “does not apply” when officers are alleged to
have exceeded the scope of the writ—which is what plaintiffs have alleged in their amended
complaint. According to plaintiffs, the writ did not authorize defendants to seize property not
covered in the writ. Moreover, plaintiffs here alleged constitutional violations stemming from
conduct occurring after the execution of the writ, including defendants’ refusal to return
plaintiffs’ property after plaintiffs notified defendants about their claim of ownership in the
property and defendants’ subsequent sale of the property at auction without any attempt to
resolve the ownership claims.
Defendants, then, have not shown that they are absolutely
immune from liability for the acts alleged in the amended complaint.
Pleading Deficiencies Under Twombly and Iqbal
Defendants move to dismiss the claims in the amended complaint on the grounds that
plaintiffs have not alleged plausible claims for relief under Twombly and Iqbal. The court
begins its analysis with those claims asserted against defendant Nick Jordan. According to the
amended complaint, Mr. Jordan failed to adequately train and supervise Ms. Purney-Crider and
he adopted and implemented policies, customs or practices permitting DOR employees to take
property without lawful justification from innocent parties and to use excessive force when other
more reasonable and less drastic methods are available.
There are no other substantive
allegations in the amended complaint concerning Mr. Jordan. With respect to the failure-to-train
allegation, plaintiffs do not allege that any violation committed by Ms. Purney-Crider was the
result of any deficiency in her training or supervision. This claim, then, is subject to dismissal.
See Dodds v. Richardson, 614 F.3d 1185, 1212-13 (10th Cir. 2010) (failure-to-train and failureto-supervise theories of liability require showing that injury resulted from failure); Fogarty v.
Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (plaintiff must establish an affirmative link
between supervisor’s failure to supervise and constitutional deprivation). Plaintiffs contend in
their response that the alleged conduct by the DOR—the decision to send a “military-style
presence to collect delinquent taxes; to seize the property of innocent individuals; and to sell that
property despite competing claims of ownership without providing an opportunity to be heard—
is so unconscionable as to establish a failure to train and supervise. Under Tenth Circuit law,
plaintiffs may not rely solely on the constitutional violation to establish a failure-to-train or
failure-to-supervise theory of liability. See Lewis v. McKinley County Bd. of County Commr’s,
425 F.ed Appx. 723, 726 (10th Cir. 2011) (allegation that officer was “obviously ill-trained” in
light of alleged violation did not state a claim against municipality); Hook v. Regents of Univ. of
California, 394 Fed. Appx. 522, 536 (10th Cir. 2010) (to establish supervisor’s liability under
1983, plaintiff must show more than constitutional violation by supervisor’s subordinate). Thus,
even if plaintiffs had included this allegation in their amended complaint, the court would still
dismiss the claim.
Similarly, the allegation that Mr. Jordan adopted and implemented policies, customs or
practices permitting DOR employees to take property without lawful justification from innocent
parties fails to state a plausible claim for relief under Twombly in the absence of any factual
allegations that the constitutional violations resulted from the adoption or implementation of
such policies.6 Moreover, plaintiffs assert throughout their response that they do not intend to
allege any constitutional violations based on the seizure of property at the time of the execution
of the writ but that the violations occurred when the DOR refused to return plaintiffs’ property
and then sold the property without providing due process to plaintiffs.
concerning Mr. Jordan’s implementation of policies permitting the seizure of property without
justification, then, seem to have no bearing on the claims that plaintiffs intend to pursue. In any
event, plaintiffs do not address their policy-or-practice claim in their response and assert only
that they notified Mr. Jordan directly about Ms. Purney-Crider’s failure to return their property.
It appears, then, that plaintiffs intend to pursue their claims against Mr. Jordan on a theory that is
distinct from the theory asserted in the amended complaint. Thus, while the allegations in the
amended complaint fail to state a plausible claim for relief for the reasons set forth above, the
court will permit plaintiffs to amend their complaint to the extent they are able to connect Mr.
Jordan to the alleged due process violations committed by the DOR.
While the amended complaint contains no substantive allegations aimed at defendant
Steve Stotts, plaintiffs have attached to their response a proposed second amended complaint
that asserts against Mr. Stotts the same allegations as asserted against Mr. Jordan. For the same
reasons as explained in connection with the claims against Mr. Jordan, then, the court would
dismiss the allegations against Mr. Stotts even if they had been made in the amended complaint.
The court also dismisses the claim that Mr. Jordan adopted and implemented policies
permitting DOR employees to use excessive force as there is no allegation in the amended
complaint (or in plaintiffs’ response) that any DOR employee used excessive force against any
plaintiffs or, more specifically, that Ms. Purney-Crider participated in any respect in the conduct
underlying Gary Jordan’s excessive force claim.
In their response, plaintiffs contend that Mr. Stotts was notified by plaintiffs about Ms. PurneyCrider’s refusal to return their property and about their ownership interests in the property but
that Mr. Stotts took no action to ensure that his department provided plaintiffs an opportunity to
be heard on their ownership claims. Through their response, then, plaintiffs have indicated that
they desire to pursue claims against Mr. Stotts on a different theory than alleged in their
proposed second amended complaint. The court will permit plaintiffs to amend their complaint
to include substantive claims against Mr. Stotts in his individual capacity to the extent they are
able to assert factual allegations that plausibly link Mr. Stotts to the constitutional violations
allegedly committed by the DOR.
Defendants next assert that the amended complaint fails to state a plausible claim for
relief against Ms. Purney-Crider based on the seizure and sale of plaintiffs’ property. According
to defendants, the amended complaint does not specifically assert what role Ms. Purney-Crider
had in executing the writ, in refusing to return plaintiffs’ property or in selling plaintiffs’
The court agrees that plaintiffs must amend their complaint to include specific
allegations as to Ms. Purney-Crider’s involvement in the constitutional violations alleged.
While plaintiffs’ amended complaint includes certain allegations directed toward Ms. PurneyCrider (for example, that plaintiffs provided written notice to Ms. Purney-Crider on October 15,
2012 that some of the items seized belonged to plaintiffs), the amended complaint is too
speculative as to other allegations that might be related to Ms. Purney-Crider (for example, the
allegation that plaintiffs “immediately notified Defendants via phone calls” that they owned
property seized during the execution of the writ). Moreover, in response to the motion to
dismiss, plaintiffs have set forth allegations not included in their amended complaint. Plaintiffs
allege, for example, Ms. Purney-Crider “signed the property-custody receipt” for the seizure of a
vehicle owned by plaintiff Amy Hover and for other items not listed in the writ. Plaintiffs also
allege in their submissions that Ms. Purney-Crider was directly responsible for allowing a car
owned by Ms. Hover to be registered to the Department of Revenue. Clearly, then, plaintiffs
have additional facts regarding Ms. Purney-Crider’s involvement in the alleged constitutional
violations that have not been included in the amended complaint. Plaintiffs, who must file a
second amended complaint in any event as indicated in other portions of this memorandum and
order, shall clarify what role Ms. Purney-Crider played in the seizure, retention and sale of
Defendants also contend that the amended complaint fails to state a plausible claim for
relief against Ms. Purney-Crider based on excessive force or false arrest. The court agrees and
those claims, as currently pled, are dismissed against Ms. Purney-Crider.
complaint is devoid of any allegations suggesting that Ms. Purney-Crider (or any other KDOR
defendant) directly participated in the use of force against or detention of plaintiff Gary Jordan.
Plaintiff concede as much in their response, but insist that Ms. Purney-Crider may nonetheless
be held liable based on her failure to intervene to stop or prevent the use of excessive force by
non-KDOR officers or agents and to stop or prevent the detention.
This allegation is
conclusory. Thus, while the court will permit plaintiffs to amend their complaint to the extent
they can allege facts plausibly asserting that Ms. Purney-Crider witnessed the events and had the
opportunity to intervene, they may not assert only that Ms. Purney-Crider failed to intercede on
Mr. Jordan’s behalf. Finally, while defendants suggest in their reply brief that Ms. Purney-
Crider had no responsibility in law or in fact to intervene to stop the alleged violations, they may
assert this challenge, if appropriate, in response to plaintiffs’ second amended complaint.7
Claims Based on Seizure of Plaintiffs’ Property
Apart from their Twombly arguments, defendants further contend that plaintiffs’ amended
complaint does not allege a Fourth or Fourteenth Amendment violation that is actionable under
42 U.S.C. § 1983 because any seizure of plaintiffs’ property was done pursuant to a valid writ of
execution regardless of whether officers seized property not covered by the writ or not owned by
the delinquent taxpayers. In response, plaintiffs seem to suggest both that they have asserted a
valid Fourth Amendment claim because the writ was not valid and, in the same breath, that they
do not intend to assert a Fourth Amendment claim based on the seizure of their property on the
date that the writ was executed. Rather, they suggest that defendants’ failure to return their
property constituted an unreasonable seizure in violation of the Fourth Amendment (regardless
of the legality of the initial seizure) and a violation of their due process rights secured by the
Because there is obviously some confusion over the contours of
plaintiffs’ claims, plaintiffs should amend their complaint to reflect the nature of their claims
and defendants, if appropriate, may direct any further challenges on this issue to the second
In their motion to dismiss, defendants assert the defense of qualified immunity only as to
plaintiffs’ false arrest claim. In addition, defendants contend that the excessive force claim is
subject to dismissal because the amended complaint fails to allege actual injury. Because the
court is dismissing these claims on other grounds, the court need not address these arguments.
Claims Based on Failure to Return Plaintiffs’ Property
Defendants move to dismiss plaintiffs’ claims that they were deprived of their property
without due process on the grounds that adequate alternative state remedies exist for plaintiffs’
loss of property. See McKinney v. Revell, 364 Fed. Appx. 430, 432 n.2 (10th Cir. 2010) (no due
process violation occurs if there is an adequate alternative state remedy). The rule relied upon
by defendants, however, applies only when the plaintiff pleads negligent deprivation of property
by a state employee or pleads intentional but random and unauthorized deprivation of property
by a rogue state employee. See Wolfenbarger v. Williams, 774 F.2d 358, 363-64 (10th Cir.
1985) (citing Hudson v. Palmer, 468 U.S. 517 (1984)). The availability of state remedies is not
relevant to and does not bar a claim based on a deprivation resulting from an established or de
facto policy, procedure or custom. Abbott v. McCotter, 13 F.3d 1439, 1442 n.3 (10th Cir. 1994).
Plaintiffs’ allegations concerning the DOR’s refusal to return their property cannot, at this stage,
be categorized as the type of unforeseeable, random property deprivation addressed in Hudson.
The court, then, denies defendants’ motion on this issue and declines to address the new
arguments asserted by defendants in their reply brief. United States v. Watson, 766 F.3d 1219,
1230 n.8 (10th Cir. 2014).
IT IS THEREFORE ORDERED BY THE COURT THAT the KDOR defendants’
motion to dismiss plaintiffs’ amended complaint (doc. 5) is granted in part and denied in part.
Plaintiffs may file an amended complaint consistent with this memorandum and order no later
than Monday, January 5, 2015.
IT IS SO ORDERED.
Dated this 16th day of December, 2014, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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