Jordan et al v. Wyandotte County Unified Government et al
MEMORANDUM AND ORDER granting in part and denying in part 16 the Unified Government's Motion to Dismiss plaintiff's amended petition. Plaintiffs may file a second amended complaint consistent with both this memorandum and order and the court's January 6, 2015 order no later than Monday, February 2, 2015. Signed by District Judge John W. Lungstrum on 01/15/2015. (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. This matter is presently before the court on a
motion to dismiss filed by the Unified Government defendants.
Specifically, the Unified
Government defendants—Sheriff Don Ash; Deputy Charles Morris; Deputy Eric Freeman;
Deputy Rick Whitby; and the Unified Government—move to dismiss plaintiffs’ amended
petition for failure to state a claim upon which relief can be granted and for lack of subject
matter jurisdiction. As will be explained, the motion is granted in part and denied in part.
The Unified Government 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 wellpleaded 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
September 18, 2012 by more than 80 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
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. 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
In their amended petition, plaintiffs allege that the Unified Government and Sheriff Ash
failed to adequately train and supervise law enforcement personnel and adopted and
implemented policies, customs or practices permitting law enforcement personnel 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
Deputy Morris, Deputy Freeman, Deputy Whitby and other unidentified deputies of the
Wyandotte County Sheriff’s Department 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. The Unified Government defendants move
to dismiss all claims against them.
Failure to State a Claim
Deputies Morris, Freeman and Whitby seek dismissal of the amended petition on the
grounds that plaintiffs have not alleged plausible claims for relief under Twombly and Iqbal
against the deputies for any alleged constitutional violations. According to defendants, the
amended petition does not specifically assert what role, if any, the deputies had in connection
with the alleged constitutional violations. As defendants highlight, the amended petition is
devoid of any specific allegations whatsoever concerning the deputies who are named as
In fact, the amended petition does not even allege or suggest the
presence of these deputies at the Jordans’ residence on the date the writ was executed. Because
there are no allegations plausibly suggesting that Deputy Morris, Deputy Freeman or Deputy
Whitby committed any constitutional violations whatsoever, the claims as currently pled are
dismissed and plaintiffs must amend their petition to include individualized allegations as to the
specific involvement of these individuals in executing the writ, in detaining Mr. Jordan, and/or
in seizing plaintiffs’ property. See Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir.
2008) (to “nudge their claims across the line from conceivable to plausible” in the context of
claims subject to qualified immunity defenses, plaintiffs must allege facts sufficient to show,
assuming that they are true, that the defendants plausibly violated their constitutional rights).
Plaintiffs state first in their response that Rule 8 does not require any greater specificity at
this juncture of the proceedings and that the individual defendants were simply part of a “large
group of deputies and officers who descended on plaintiffs’ premises and committed the
unconstitutional acts set out in the amended petition.” This argument is rejected. The Circuit
has clearly held in this context that a plaintiff, to survive a motion to dismiss, must differentiate
in his or her complaint among individual defendants (rather than refer collectively to
“defendants”) by identifying what acts are attributable to whom so that individual defendants
may ascertain what particular unconstitutional acts they are alleged to have committed. Id. at
1250. Plaintiffs further contend in their response that Deputy Morris, Deputy Freeman and
Deputy Whitby were all present during the execution of the writ and failed to intervene to stop
the unconstitutional conduct of other officers present at the scene. These allegations do not
appear in the amended petition and are conclusory in any event. The court, however, will permit
plaintiffs to amend their petition to the extent they can allege facts plausibly asserting that these
deputies may be held liable under § 1983.
Sheriff Ash and the Unified Government also move to dismiss the amended petition on
the grounds that the petition fails to state a plausible claim against them. According to the
amended petition, Sheriff Ash is the final policymaker for the Wyandotte County Sheriff’s
Department. The petition alleges collectively that “these defendants” (including several Kansas
Department of Revenue 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 Sheriff Ash or the Unified
Government. See Brown v. Montoya, 662 F.3d 1152, 1165 (10th Cir. 2011) (complaint’s
collective reference to “defendants” not sufficient to show how particular defendant might be
individually liable for deprivations of plaintiff’s constitutional rights).
With respect to the failure-to-train allegation, plaintiffs do not allege that any violation
committed by any deputy of the Sheriff’s Department 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 the Unified
Government and Sheriff Ash’s failure to train and supervise is evident from the conduct of the
deputies 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 the Unified Government and Sheriff Ash 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 the Unified Government and Sheriff Ash adopted policies permitting criminal
damage to property, aggravated assault with deadly weapons, false imprisonment, theft,
vandalism and “outrageous conduct,” but there is no individualized allegation in the amended
petition that any deputies or employees of the Sheriff’s Department engaged in any such
Similarly, plaintiffs suggest that the Unified Government and Sheriff Ash
implemented policies permitting the deprivation of property without due process, but there are
no specific allegations concerning what role any deputies 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 the Unified Government and Sheriff Ash. The court, however, will permit
plaintiffs to amend their petition to the extent they are able to connect the Unified Government
and Sheriff Ash to the alleged constitutional violations committed by deputies of the Sheriff’s
Department.1 Plaintiffs, of course, are cautioned that they may not group together a number of
defendants in a single allegation and they must isolate the allegedly unconstitutional acts of each
specific defendant. See Brown, 662 F.3d at 1165.
Finally, plaintiffs have asserted claims against Sheriff Ash in both his individual and
official capacities. In their motion to dismiss, the Unified Government defendants assert that the
court must dismiss plaintiffs’ official capacity claims against Sheriff Ash as such claims are
unnecessary and redundant in light of plaintiffs’ claims against the Unified Government.
Plaintiffs have not responded to the substance of this argument, but dismissal of the official
capacity claims is warranted. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (an official
capacity suit is simply a suit against the entity or county).
Lack of Subject Matter Jurisdiction
Plaintiffs assert a claim for intentional infliction of emotional distress (or outrage) under
Kansas law against defendants Sheriff Ash, Deputy Morris, Deputy Freeman and Deputy
Whitby. Defendants move to dismiss the outrage claim on the grounds that the court lacks
subject matter jurisdiction over the claims because plaintiffs failed to give notice of the claims
as required by K.S.A. § 12-105b(d) and King v. Pimental, 20 Kan. App. 2d 579, 590 (1995)
Plaintiffs contend in their response that Sheriff Ash failed to a file a return of execution of the
writ and failed to perform other duties required by statute. These asserted failures do not appear
in the amended petition and the court need not consider whether those allegations are sufficient
to state a claim for relief against Sheriff Ash.
(written notice of claim required by statute and is a prerequisite for bringing action under KTCA
against municipal employees who cause injury of damages to another while acting within the
scope of their employment). Although plaintiffs concede that they did not provide notice of the
claim and apparently concede dismissal of their outrage claims, defendants have notified the
court in their reply brief that the Kansas Supreme Court, after the filing of defendants’ motion to
dismiss, overruled King and held that notice is not required for claims against municipal
employees. See Whaley v. Sharp, ___ P.3d ___, 2014 WL 7331586, at *7 (Kan. Dec. 24, 2014).
Defendants, then, raise new arguments for dismissal of the outrage claims in their reply brief
based on Rule 12(b)(6). Because plaintiffs have not had an opportunity to respond to these new
arguments, the court will not address them at this juncture. If plaintiffs choose to reassert their
outrage claims in their second amended complaint, then defendants may challenge those claims
under Rule 12(b)(6) at that time.
IT IS THEREFORE ORDERED BY THE COURT THAT the Unified Government’s
motion to dismiss plaintiffs’ amended petition (doc. 16) is granted in part and denied in part.
Plaintiffs may file a second amended complaint consistent with both this memorandum and
order and the court’s January 6, 2015 order no later than Monday, February 2, 2015.
IT IS SO ORDERED.
Dated this 15th day of January, 2015, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?