Jordan et al v. Wyandotte County Unified Government et al
MEMORANDUM AND ORDER granting in part and denying in part 6 Motion to Dismiss for Failure to State a Claim. Plaintiffs may file a second amended petition 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
Emmett V. Jordan and Amy R. Jordan,
individually and as natural parents of
J.V.J., a minor;
Case No. 14-2539-JWL
Unified Government of Wyandotte County
and Kansas City, Kansas et al.,
MEMORANDUM & ORDER
Plaintiffs Emmett V. Jordan and Amy R. Jordan, individually and on behalf of their
minor child, filed suit in state court 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 the tax indebtedness of plaintiffs Emmett and
Amy Jordan, delinquent taxpayers.
The seizure was executed by agents of the Kansas
Department of Revenue (KDOR) and the Wyandotte County Sheriff’s Department. The KDOR
defendants removed this action to federal court and subsequently filed a motion to dismiss,
which is presently pending before the court. This matter is presently before the court on a
motion to dismiss filed by the KDOR defendants.1 Specifically, the KDOR defendants—KDOR
agents Carrie Purney-Crider, Carol Jackson and Heather Wilson; KDOR’s Secretary Nick
Jordan; KDOR’s Director of Taxation Steve Stott; and the Kansas Department of Revenue—
The Unified Government defendants have also filed a motion to dismiss but that motion is not
yet ripe for resolution and will be addressed in a subsequent memorandum and order.
move to dismiss plaintiffs’ amended petition for failure to state a claim upon which relief can be
granted.2 As will be explained, the motion is granted in part and denied in part.3
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 petition, are accepted as true for purposes of defendants’ motion.
On September 17, 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 writ was executed on
In their motion to dismiss, defendants Purney-Crider, Jackson and Wilson assert that the court
lacks personal jurisdiction over them because they have not been properly served with process.
Any argument about service is premature as the 120-day service period set forth in Federal Rule
of Civil Procedure 4(m) has not expired and plaintiffs have indicated that they are attempting to
obtain personal service on these defendants.
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.
September 18, 2012 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 armed with automatic weapons and
dressed in combat gear. According to the amended petition, Emmett Jordan and his brother
Gary Jordan were present inside the home when five “law enforcement officers” knocked down
the front door of the home and entered the home “shouting profane and largely unintelligible
orders” at Mr. Jordan and his brother. The amended petition alleges that plaintiff Emmett
Jordan was forced to the floor, face down, and that an unnamed officer had his or her knee on
plaintiff’s neck. Emmett Jordan alleges that one of his teeth was broken during this incident.
Emmett Jordan was then handcuffed behind his back while “automatic rifles were trained” on
his head. Plaintiff Emmett Jordan was then forcibly removed from his home over his protests
and his repeated requests for the identity of the officers and the purpose of their visit was
Plaintiffs allege that Emmett Jordan was detained, still handcuffed, in the back of a police
car for a substantial period of time and that, thereafter, he was restricted to a lawn chair outside
his house where officers denied him the use of a telephone. Despite the fact that Mr. Jordan
provided keys to all locks on the premises, the officers executing the writ utilized destructive
measures to access various areas of the Jordans’ property, including the breaking of windows
and the damaging of doors. Plaintiffs allege that officers remained on his property for nine
hours, during which time the officers unnecessarily destroyed and damaged plaintiffs’ property
and ultimately seized property worth far more than the tax liability owed by the Jordans.
Plaintiffs further allege that the officers seized property belonging solely to their minor son in
violation of the writ.
According to plaintiffs, the officers amused themselves by driving
plaintiffs’ dirt bikes and ATVs around the Jordans’ property and that no officer present made
any effort to curb this behavior.
The amended petition alleges that defendant Carrie Purney-Crider, an agent with the
KDOR, commanded Emmett Jordan to “sign some papers” during the execution of the writ and
that she “threw the papers in his face” when he refused to sign them. She advised Mr. Jordan
that she was going to make sure that he would be “criminally charged for holding vehicles that
belonged to someone else,” apparently referring to vehicles owned by Mr. Jordan’s adult
daughter. By the time the officers left the premises, the Jordans’ property had been “ransacked,”
with the contents of dresser drawers strewn about; broken glass scattered throughout the house;
and empty water bottles and food wrappers discarded on the grounds. Plaintiffs further allege
that the officers stole property owned by their minor son and that the officers destroyed Emmett
Jordan’s CPAP machine mask, rendering it impossible for Mr. Jordan to sleep. Plaintiffs
contend that they were still cleaning up and repairing the damages more than 30 days after the
execution of the writ.
They allege that they have suffered continuous emotional distress;
impaired sleep; embarrassment in their neighborhood; and that Emmett Jordan’s children are
afraid to visit him and will not permit their children to visit on holidays.
In their amended petition, plaintiffs allege that the KDOR, defendant Nick Jordan and
defendant Steve Stotts failed to adequately train and supervise Ms. Purney-Crider, Ms. Jackson
and Ms. Wilson and adopted and implemented policies, customs or practices permitting DOR
employees to engage in the constitutional violations alleged in the amended petition, including
excessive force, false arrest and the deprivation of property without due process of law.
Plaintiffs further assert that Ms. Purney-Crider, Ms. Jackson and Ms. Wilson violated their
Fourth, Fifth and Fourteenth Amendment rights based on the detention of Emmett Jordan; the
use of excessive force with respect to Emmett Jordan; and the deprivation of plaintiffs’ property
without due process of law.
Plaintiffs’ amended petition also asserts a Kansas common law
claim for intentional infliction of emotional distress against all individual defendants and a claim
against Mr. Stotts for an accounting of all property seized. The KDOR defendants move to
dismiss all claims against them.
Subject Matter Jurisdiction
Plaintiffs have asserted claims against Mssrs. Stotts and Jordan in both their individual
and official capacities. In their motion to dismiss, defendants Stotts and Jordan assert that the
court must dismiss plaintiffs’ official capacity claims against them as the doctrine of sovereign
immunity bars such claims. Plaintiffs have not responded to the substance of this argument, but
dismissal of the official capacity claims is required in any event. See Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 (1989).4 Moreover, because the Eleventh Amendment clearly bars
plaintiffs’ claims for damages against the KDOR, plaintiffs’ claims against the agency itself are
dismissed. See Olson v. Kansas Dept. of Revenue, 555 Fed. Appx. 747, 748-49 (10th Cir. 2014)
(Eleventh Amendment “precludes not only actions in which the state is directly named as a
party, but also actions brought against a state agency or state officer where the action is
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
petition. Rather, plaintiffs seek only monetary damages in their amended petition.
essentially one for recovery of money from the state treasury.”); Lewis v. Kansas Dep’t of
Revenue, 181 Fed. Appx. 732, 733 (10th Cir. 2006) (“Section 1983 . . . does not provide a
federal forum for litigants who seek a remedy against . . . arms of the State for alleged
deprivation of civil liberties.”).
Plaintiffs also move to dismiss any claims based “directly” on the Fourth, Fifth and
Fourteenth Amendments to the United States Constitution on the grounds that any claims for
violations of the rights secured by these Amendments must be asserted under 42 U.S.C. § 1983.
In response, plaintiffs have clarified that they have asserted no claim directly under the
provisions of the United States Constitution and, based on the court’s own reading of the
amended petition, the court concludes that plaintiffs’ claims are appropriately asserted under 42
U.S.C. § 1983.
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 petition 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.
The KDOR defendants contend that dismissal of the amended petition 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, this quasi-judicial immunity “protects officials from being ‘called
upon to answer for the legality of decisions which they are powerless to control.’” Id. (quoting
Valdez v. City and County of Denver, 878 F.2d 1285, 1289 (10th Cir. 1989)). Moreover,
absolute immunity “does not apply” when officers are alleged to have exceeded the scope of the
writ. Id. In other words, the doctrine of quasi-judicial immunity is intended to protect officers
who are merely performing ministerial acts “intimately related to the judicial process.” Valdez,
878 F.2d at 1289. Here, plaintiffs are not challenging the writ itself or the fact that these officers
executed the writ. Rather, plaintiffs allege that the officers exceeded the scope of the writ and
that they engaged in conduct not authorized by the writ and entirely within their own control.
Defendants, then, have not shown that they are absolutely immune from liability for the acts
alleged in the amended petition.
Pleading Deficiencies Under Twombly and Iqbal
Defendants move to dismiss the claims in the amended petition 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 and Steve Stotts.
According to the amended petition, Mr. Jordan is the final policymaker for the KDOR and Mr.
Stotts is “responsible for administration and compliance of Kansas taxes.” The petition alleges
that “these defendants” (including Unified Government defendants) had policies and procedures
in place which operated to deprive plaintiffs of their constitutional rights. The petition further
alleges that “the defendants” failed to train and supervise their agents, resulting in the violations
alleged. There are no other substantive allegations in the amended petition concerning Mr.
Jordan or Mr. Stotts. With respect to the failure-to-train allegation, plaintiffs do not allege that
any violation committed by Ms. Purney-Crider, Ms. Jackson or Ms. Wilson was the result of any
deficiency in their 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 failure-to-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 Mssrs. Jordan and Stotts’ failure to train and supervise is “evident” from the
conduct of the officers and agents during the execution of the writ. 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 Fed. 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 petition, the court would still
dismiss the claim.
Similarly, the allegation that Mr. Jordan and Mr. Stotts adopted and implemented
policies, customs or practices which operated to deprive plaintiffs of their constitutional rights
fails to state a plausible claim for relief under Twombly in the absence of any factual allegations
suggesting that the specific constitutional violations alleged by plaintiffs resulted from the
adoption or implementation of such policies. Plaintiffs allege in conclusory fashion that Mssrs.
Jordan and Stotts adopted policies permitting criminal damage to property, aggravated assault
with deadly weapons, false imprisonment, theft, vandalism and “outrageous conduct,” but there
is no allegation in the amended petition that any DOR employees engaged in any such conduct.
Similarly, plaintiffs allege that Mssrs. Jordan and Stotts implemented policies permitting the
deprivation of property without due process, but there are no specific allegations concerning
what role Ms. Purney-Crider, Ms. Jackson or Ms. Wilson had in the seizure of plaintiffs’
property. For these reasons, the allegations in the amended petition fail to state a plausible claim
for relief against Mssrs. Jordan and Stotts. The court, however, will permit plaintiffs to amend
their petition to the extent they are able to connect Mssrs. Jordan and Stotts to the alleged
constitutional violations committed by agents of the DOR.
Defendants next assert that the amended petition fails to state a plausible claim for relief
against Ms. Purney-Crider, Ms. Jackson or Ms. Wilson for any alleged constitutional violations.
According to defendants, the amended petition does not specifically assert what role, if any, Ms.
Purney-Crider had in executing the writ, detaining Emmett Jordan, seizing and retaining
plaintiffs’ property or selling plaintiffs’ property. Moreover, the amended petition is devoid of
any allegations whatsoever concerning the role played by Ms. Jackson and Ms. Wilson. The
court agrees that plaintiffs must amend their petition to include specific allegations as to the
involvement of these individuals in executing the writ and in seizing plaintiffs’ property. The
allegations in the amended petition do not plausibly suggest that Ms. Purney-Crider unlawfully
detained Emmett Jordan or that she personally used any force with respect to Mr. Jordan. There
are no specific facts alleged about Ms. Jackson or Ms. Wilson. Thus, the court dismisses the
false arrest, excessive force and deprivation of property claims asserted against these
individuals.5 Plaintiffs state in their response that Ms. Purney-Crider, Ms. Jackson and Ms.
Wilson were all present during the execution of the writ, failed to intervene to stop the
unconstitutional conduct of other officers present at the scene, and “directed and encouraged”
the nine-hour raid. These allegations, however, do not appear in the amended petition and are
conclusory in any event. The court, then, will permit plaintiffs to amend their petition to the
extent they can allege facts plausibly asserting that Ms. Purney-Crider, Ms. Jackson and Ms.
Wilson witnessed the events and had the opportunity to intervene. While defendants suggest in
their reply brief that these individuals had no responsibility in law or in fact to intervene to stop
Because the court is dismissing plaintiffs’ excessive force claim as currently pled, the court
need not address defendants’ alternative argument that the excessive force claim should be
dismissed for failure to allege actual injury.
the alleged violations, they may assert this challenge, if appropriate, in response to plaintiffs’
second amended petition.6
Claims Based on Seizure of Plaintiffs’ Property
Apart from their Twombly arguments, defendants further contend that plaintiffs’ amended
petition 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. In response, plaintiffs assert that their claims stem not from the lawful seizure of
property to satisfy the tax warrant, but from the seizure of property beyond what was necessary
to satisfy the warrant and the wrongful seizure of property from their minor child. Defendants
do not meaningfully respond to this argument in their reply brief and the court rejects the motion
to dismiss on this basis.
Claims Based on Deprivation of 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
In their motion to dismiss, defendants purport to assert the defense of qualified immunity but
they have moved to dismiss on that basis only the false arrest claim of a plaintiff in a related
case—the claim of Emmett Jordan’s brother, Gary Jordan. It appears that defendants, in
“cutting and pasting” from their brief in the related case, have inadvertently omitted any
argument concerning qualified immunity as to the specific claims alleged in this lawsuit. The
court, then, declines to address the qualified immunity argument.
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 deprivation of 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.
State Law Claims
Plaintiffs assert two state law claims in their amended petition—a claim for intentional
infliction of emotional distress (or outrage) under Kansas law and a claim against Mr. Stotts for
an accounting relating to the disposition of plaintiffs’ property. Defendants move to dismiss the
outrage claim on the grounds that they are immune from liability pursuant to the tax collection
exception to the Kansas Tort Claims Act and on the grounds that the amended petition fails to
state a claim for outrage under Kansas law. Because the amended petition fails to state a claim
of outrage against the KDOR defendants under Kansas law, the court dismisses the claim and
declines to address defendants’ KTCA argument. To prevail on a claim of intentionally causing
emotional distress, a plaintiff must prove four elements: (1) The conduct of the defendant was
intentional or in reckless disregard of the plaintiff; (2) the conduct was extreme and outrageous;
(3) there was a causal connection between the defendant’s conduct and the plaintiff’s mental
distress; and (4) the plaintiff’s mental distress was extreme and severe. Valadez v. Emmis
Communications, 290 Kan. 472, 476 (2010) (citing Taiwo v. Vu, 249 Kan. 585, 592 (1991)).
Plaintiffs’ outrage claim is based solely on conduct allegedly committed during the
execution of the writ, including the swat-style entry of the Jordan residence by “masked
gunmen,” the brandishing of automatic weapons, the detention of Mr. Jordan, the excessive
force allegedly used with Mr. Jordan, the destruction of plaintiffs’ property and the theft of
plaintiffs’ property. As noted earlier in this memorandum and order, however, the amended
petition contains no factual allegations plausibly suggesting that any of the KDOR defendants
engaged in any of the conduct alleged by plaintiffs as outrageous. There is no suggestion that
any KDOR defendant directly participated in the use of force against or the detention of Mr.
Jordan; that any KDOR defendant brandished a weapon or wore a mask; or that any KDOR
defendant destroyed or stole plaintiffs’ property. Moreover, even assuming the truth of the
allegations contained in plaintiffs’ response to the motion to dismiss—that Mssrs. PurneyCrider, Jackson and Wilson were present during the execution of the writ and failed to intervene
to stop the conduct of other officers—such conduct does not meet the high standard required to
support this cause of action, particularly in the absence of any suggestion that the failure to
intervene caused plaintiffs’ alleged mental distress. See P.S. ex rel. Nelson v. The Farm, Inc.,
658 F. Supp. 2d 1281, 1305 (D. Kan. 2009). This claim is dismissed.
Defendant Steve Stotts moves to dismiss plaintiffs’ claim for an accounting of the
property seized and sold. According to Mr. Stotts, the claim is subject to dismissal because it
does not comply with the Kansas Judicial Review Act, K.S.A. § 77-601 et seq. The Kansas
Judicial Review Act by its own terms applies only to “proceedings for judicial review and civil
enforcement of agency actions.” K.S.A. § 77-603. Plaintiffs do not seek review of any KDOR
action or order and defendants have not demonstrated how the KJRA might apply to plaintiffs’
Moreover, as the court reads plaintiffs’ amended petition, their “claim” for an
accounting is not a separate cause of action but an equitable remedy based on the underlying
violations of law alleged by plaintiffs elsewhere in their petition. To the extent, then, that
plaintiffs have stated a claim for underlying violations of law, they may seek equitable relief in
the form of an accounting. This aspect of defendants’ motion, then, is denied.
IT IS THEREFORE ORDERED BY THE COURT THAT the KDOR defendants’
motion to dismiss plaintiffs’ amended petition (doc. 6) is granted in part and denied in part.
Plaintiffs may file a second amended petition 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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