Jordan et al v. Wyandotte County Unified Government et al

Filing 55

MEMORANDUM AND ORDER granting in part and denying in part 46 the Unified Government Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint. It is further ordered that plaintiffs' claims against Sheriff Ash and the Unified Government are dismissed with prejudice Signed by District Judge John W. Lungstrum on 04/17/2015. (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;
Plaintiffs,
v.

Case No. 14-2539-JWL

Unified Government of Wyandotte County
and Kansas City, Kansas et al.,
Defendants.
MEMORANDUM & ORDER
Plaintiffs Emmett V. Jordan and Amy R. Jordan, individually and on behalf of their
minor child, filed a petition and then an amended petition 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. After an
initial motion to dismiss the amended petition was filed by the Unified Government
defendants—Sheriff Don Ash; Deputy Charles Morris; Deputy Eric Freeman; Deputy Rick
Whitby; and the Unified Government—the court permitted plaintiffs to file a second amended
complaint. This matter is presently before the court on the Unified Government defendants’

motion to dismiss plaintiffs’ second amended complaint. As will be explained, the motion is
granted in part and denied in part.

Background
The facts set forth here are drawn from the allegations in plaintiffs’ second amended
complaint and are taken as true when considering defendants’ motion to dismiss. On September
17, 2012, the clerk of the Wyandotte County District Court, at the request of 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 approximately
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 second amended complaint, 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 second amended complaint alleges that plaintiff
Emmett Jordan was forced to the floor so fast and hard that he hit his face on the floor and broke
a tooth. Plaintiffs further allege 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. When Mr. Jordan

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inquired of the officers whether he was under arrest, one officer responded that it was a “civil”
matter, but that they intended to detain Mr. Jordan.
Plaintiffs allege that Emmett Jordan was detained, still handcuffed, in the back of a police
car for about an hour and fifteen minutes. During his detention in the police car, Mr. Jordan was
able to observe Deputies Morris, Freeman and Whitby in the vicinity and he had a specific
conversation with Deputy Freeman, who presented Mr. Jordan with the tax warrant and was
issuing commands to other officers regarding their weapons. According to plaintiffs, at some
point while Mr. Jordan was detained in the vehicle, Deputy Morris was stationed at the
perimeter of the property in an effort to keep vehicular and pedestrian traffic away from the
property. During that time, Deputy Morris advised a concerned neighbor that “Emmett Jordan is
in custody” and that the neighbor would not be permitted to see him while he was detained.
When Mr. Jordan was released from the vehicle, he was forced to sit on a lawn chair,
with his back to his home so that he could not observe the execution of the writ. According to
plaintiffs, Mr. Jordan was restricted to that lawn chair for the duration of what ended up being a
9-hour ordeal, with officers “trashing” the premises and damaging property. Ultimately, agents
seized property that had a total value in excess of the Jordans’ tax liability. Moreover, the
property seized included personal property belonging to the Jordans’ minor son, plaintiff J.V.J.,
including a valuable coin collection, toys and collectibles. According to plaintiffs, by the time
the agents left the premises around 6:30pm, 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 contend that they
were still cleaning up and repairing the damage more than 30 days after the execution of the
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writ. Plaintiffs allege that the property belonging to their son was never returned and that they
never received an accounting of the items taken. 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 second amended complaint, plaintiffs allege in Count I that Deputy Morris,
Deputy Freeman and Deputy Whitby of the Wyandotte County Sheriff’s Department violated
their Fourth, Fifth and Fourteenth Amendment rights based on the use of excessive force with
respect to Emmett Jordan and the unlawful detention of Emmett Jordan. In Count II, plaintiffs
allege that the Unified Government, Sheriff Ash, and Deputies Morris, Freeman and Whitby
violated the Fourth, Fifth and Fourteenth Amendment rights of plaintiff J.V.J. by seizing and
selling plaintiff J.V.J.’s property without due process of law. Finally, in Count III, plaintiffs
seek an order “requiring the filing of returns pursuant to Kansas law.” Specifically, plaintiffs
seek an order requiring Sheriff Ash to return the writ of execution consistent with K.S.A. § 602401(c) and to file a return of sales consistent with K.S.A. § 60-2415. Plaintiffs allege that
Sheriff Ash’s failure to file these returns violated plaintiffs’ rights under the Fourth, Fifth and
Fourteenth Amendments and also violated Kansas law. The Unified Government defendants
move to dismiss all claims against them.

Excessive Force/False Arrest Claims
Deputies Morris, Freeman and Whitby seek dismissal of Count I of the second amended
complaint on the grounds that they are qualifiedly immune from plaintiffs’ § 1983 claims for
excessive force and false arrest.

The doctrine of qualified immunity shields government
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officials from liability when “their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). In resolving a motion to dismiss based on qualified immunity, a
court must consider “whether the facts that a plaintiff has alleged . . . make out a violation of a
constitutional right,” and “whether the right at issue was clearly established at the time of
defendant’s alleged misconduct.” Leverington v. City of Colorado Springs, 643 F.3d 719, 732
(10th Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
Turning first to the excessive force claim, defendants contend that the allegations in the
second amended complaint do not state a plausible claim for excessive force against Deputies
Morris, Freeman or Whitby and, thus, plaintiffs have not sufficiently alleged a constitutional
violation. The court agrees. Emmett Jordan’s excessive force claim is based on the single
incident when five officers (whom plaintiff admittedly did not recognize) broke into his home
and then one or more of the officers pushed him to the ground with such force that he hit his
face on the floor and broke a tooth. The second amended complaint does not allege that any of
the named deputies personally participated in this incident against plaintiff Emmett Jordan.
Plaintiffs concede as much in their response to the motion to dismiss, arguing that the named
deputies are liable in any event because they failed to intervene to stop the use of force against
Mr. Jordan. But plaintiffs’ failure-to-intervene theory fails to state a claim for excessive force
against the named deputies because the second amended complaint is devoid of any allegation
remotely suggesting that Deputies Morris, Freeman or Whitby witnessed the use of force at all,
let alone had a realistic opportunity to stop it. See Savannah v. Collins, 547 Fed. Appx. 874,
876-77 (10th Cir. 2013) (district court should have dismissed complaint’s failure-to-intervene
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theory for failure to state plausible claim). A fair reading of plaintiffs’ complaint indicates that
plaintiff Emmett Jordan had met Deputies Morris, Freeman and Whitby on prior occasions and
that he recognized those individuals when he saw them on his property during the execution of
the writ. Presumably, plaintiff is able to allege whether those named deputies were present
during the use of force against Mr. Jordan and whether, because of their presence, they had an
opportunity to stop the use of force.

Because Emmett Jordan has failed to make those

allegations—either in the second amended complaint or in his submissions—it is reasonable to
infer that none of the named deputies were present when other officers used force on Emmett
Jordan. For these reasons, Deputies Morris, Freeman and Whitby are entitled to qualified
immunity as to plaintiffs’ § 1983 excessive force claim.
Deputies Morris, Freeman and Whitby also assert the defense of qualified immunity as to
plaintiffs’ false arrest claim, asserting again that plaintiffs have not sufficiently alleged a
constitutional violation in the first instance. With respect to this claim, the court disagrees and
denies the motion to dismiss. The second amended complaint plausibly suggests that Emmett
Jordan was confined without his consent and without justification for 9 hours and that Deputies
Morris, Freeman and Whitby either personally participated in the detention of Mr. Jordan or
failed to intervene to stop the prolonged detention despite having a realistic opportunity and
sufficient time to do so. Toward that end, plaintiffs allege in the second amended complaint that
Emmett Jordan, at various times during his detention, could personally see all three named
deputies from his location and that all three deputies knew that Mr. Jordan was being detained.
While there are no allegations that any of these deputies personally placed Mr. Jordan in the
police car or personally held him on the lawn chair, there are allegations that the deputies had
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some level of authority over the execution of the writ, knew that officers were detaining Mr.
Jordan (e.g., plaintiffs allege that Depute Morris advised neighbors that Mr. Jordan was “in
custody” and that Deputy Freeman engaged Mr. Jordan in conversation during the detention),
and certainly had an opportunity to stop the detention during the 9-hour detention period and yet
failed to do so. Plaintiffs have stated a plausible constitutional violation against Deputies
Morris, Freeman and Whitby under Iqbal.
The deputies contend that they are entitled to qualified immunity in any event because
they did not violate any of Mr. Jordan’s “clearly established” constitutional rights. According to
the deputies, no reasonable officer would have known that Mr. Jordan’s detention amounted to a
constitutional violation. The deputies, at this juncture, have not shown they are entitled to
qualified immunity as to Emmett Jordan’s false arrest claim. Mr. Jordan alleges that he was
detained—without an arrest warrant—for a longer period of time than was reasonably necessary
for the officers to conduct a proper search of Mr. Jordan’s property for the purpose of seizing
property in accordance with the writ. At the time of the execution of the writ in September
2012, the Supreme Court had long since clearly established a Fourth Amendment right not to be
detained without a warrant for longer than necessary to accomplish legitimate law enforcement
objectives. See Michigan v. Summers, 452 U.S. 692, 701-05 (1981) (suspect may be detained in
his own home without probable cause for the time necessary to search the premises pursuant to a
valid warrant supported by probable cause). Moreover, at the time of the execution of the writ,
it was clearly established law that an officer may be liable for a constitutional violation if he had
the opportunity to intervene and failed to do so. See Lusby v. T.G. & Y. Stores, Inc., 749 F.2d
1423, 1433 (10th Cir. 1984) (“[A]lthough [officer] was not liable merely because he was present
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at the scene of a constitutional violation, ... he may be liable if he had the opportunity to
intervene but failed to do so.”). Thus, assuming that Emmett Jordan was detained longer than
was necessary to complete the search and seizure, no officer of reasonable competence could
have thought that such actions were lawful.1
While plaintiffs do not specifically identify Sheriff Ash as a defendant in Count I, other
allegations in the second amended complaint suggest that plaintiffs intend to assert a claim for
supervisory liability against Sheriff Ash with respect to the named deputies’ unlawful detention
of Emmett Jordan.2 Specifically, plaintiffs allege that Sheriff Ash is liable for the unlawful
detention of Emmett Jordan because he ratified the conduct of the named deputies by failing to
discipline or train the deputies after the unlawful detention. Plaintiffs do not allege that Sheriff
Ash declined to discipline the deputies in light of a policy of authorizing unlawful detentions;
rather, plaintiffs assert only that Sheriff Ash ratified the specific unlawful detention of Emmett
Jordan by failing to discipline the deputies for that one incident.

1

Defendants rely on Bray v. Planned Parenthood Columbia-Willamette Inc., 746 F.3d 229 (6th
Cir. 2014) for the idea that whether the detention of a judgment debtor is permissible during the
execution of a writ was not clearly established law at the time officers in this case executed the
writ. That case is not binding on this court and, in any event, does not address the factual
allegations present here—the detention of the delinquent taxpayer beyond the time reasonably
necessary to conduct a proper search. Bray discussed only whether detention itself was
permissible—and held that the law was not clearly established as to that issue in the context of a
judgment debtor during the execution of a civil writ. See id. at 238-39. There were no
allegations in Bray that the detention extended far beyond the time necessary for a proper
search.
2
To the extent plaintiffs also seek to hold Sheriff Ash and the Unified Government liable for the
deputies’ alleged use of excessive force as to Emmett Jordan, those claims necessarily fail
because plaintiffs have failed to state a claim for relief regarding the underlying constitutional
violation. See Gray v. University of Colo. Hosp. Authority, 672 F.3d 909, 918 n.7 (10th Cir.
2012).
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Because plaintiffs do not allege in the second amended complaint that Sheriff Ash was
even aware of the detention of Emmett Jordan, plaintiffs cannot hold Sheriff Ash liable for that
detention under a ratification theory. See Bryson v. City of Oklahoma City, 627 F.3d 784, 790
(10th Cir. 2010). Moreover, even assuming that Sheriff Ash had knowledge of the detention, his
failure to discipline the deputies for that isolated detention is insufficient to state a claim for
supervisory liability under § 1983. See Cordova v. Aragon, 569 F.3d 1183, 1194 (10th Cir.
2009) (failure to discipline officer after violation cannot have “caused” constitutional violation
for purposes of 1983 liability under “basic principals [sic] of linear time”); Frodge v. City of
Newport, 501 Fed. Appx. 519, 532-33 (6th Cir. 2012) (supervisor’s failure to discipline officer
for unconstitutional conduct insufficient for supervisory liability; supervisory liability requires
“active constitutional behavior” rather than allegation that supervisor played a passive role);
Milam v. City of San Antonio, 113 Fed. Appx. 622, 628 (5th Cir. 2004) (supervisor’s failure to
discipline officer for illegal arrest was not actionable “ratification” but failure to discipline,
when combined with other evidence, could tend to support inference that there was a preexisting de facto policy of making illegal arrests).

The court, then, dismisses plaintiffs’

supervisory liability claim against Sheriff Ash for the deputies’ alleged unlawful detention of
Emmett Jordan.3

3

Plaintiffs contend in their submissions that Sheriff Ash has ratified the conduct of the deputies
by utilizing the same counsel as the deputies and by arguing in this litigation that the deputies
“did nothing wrong.” Nothing in Sheriff Ash’s defense against plaintiffs’ lawsuit can be
deemed to have caused an underlying constitutional violation in this case. See Cordova, 569
F.3d at 1194 (conduct that occurs after constitutional violation cannot cause that violation).
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Seizure and Sale of Property Claims
As noted earlier, Count II of the second amended complaint asserts violations of the
Fourth, Fifth and Fourteenth Amendments based on the seizure of plaintiff J.V.J.’s property and
the subsequent sale of that property. All of the Unified Government defendants move to dismiss
this count. Deputies Morris, Freeman and Whitby move to dismiss Count II for failure to state a
claim for a violation of plaintiff J.V.J.’s constitutional rights. Specifically, these defendants
contend that the second amended complaint contains no allegations plausibly suggesting that the
named deputies seized J.V.J.’s property, sold J.V.J.’s property, or that the named deputies were
even aware that these acts occurred. With respect to the sale of J.V.J.’s property, the court
agrees. The second amended complaint contains no allegations concerning any link between the
named deputies and the sale of J.V.J.’s property. There is no allegation that the deputies had
any knowledge of what happened to any of the seized property after the execution of the writ
and no allegation that plaintiffs had any contact with any of the deputies after the execution of
the writ. Because the complaint does not contain allegations sufficient to state a plausible claim
that the deputies were involved in any respect in the sale of J.V.J.’s property, this claim is
dismissed.
With respect to the seizure of J.V.J.’s property, however, the second amended complaint
contains allegations sufficient to permit a plausible inference that the deputies violated J.V.J.’s
constitutional rights.

Plaintiffs specifically allege that the named deputies “assisted the

Department of Revenue in seizing the property of plaintiffs” and that the deputies and the
KDOR engaged in a “joint enterprise” to accomplish the execution of the writ. Moreover, these
allegations, coupled with plaintiffs’ allegations that the named deputies were present for the
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entirely of the 9-hour ordeal and that Mr. Jordan, on numerous occasions, protested the seizure
of J.V.J.’s property, is sufficient at this juncture to plausibly suggest that the deputies had a
reasonable opportunity to intervene to stop the seizure of J.V.J.’s property but failed to do so.
See Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996) (law enforcement officer has a duty to
intercede on behalf of a citizen whose constitutional rights are being violated in his presence by
other officers).4
With respect to Sheriff Ash and the Unified Government, plaintiffs allege that they are
liable for the seizure and sale of J.V.J.’s property because they ratified the conduct of the named
deputies by failing to discipline or train the deputies after the seizure and sale of J.V.J.’s
property. Because plaintiffs have failed to state a claim for relief regarding the underlying
constitutional violation, their claims for supervisory or municipal liability necessarily fail. See
Gray v. University of Colo. Hosp. Authority, 672 F.3d 909, 918 n.7 (10th Cir. 2012). Count II,
then, is properly dismissed as to Sheriff Ash and the Unified Government.

Failure to Return Service on Writ and Confirmation of Sale
Count III of plaintiffs’ second amended complaint is asserted, at least with respect to the
Unified Government defendants, only against Sheriff Ash. In that count, plaintiffs seek an order
requiring Sheriff Ash to return the writ of execution consistent with K.S.A. § 60- 2401(c) and to
file a return of sales consistent with K.S.A. § 60-2415. Plaintiffs allege that Sheriff Ash’s
4

The named deputies contend, in the alternative, that they are entitled to absolute quasi-judicial
immunity as to this claim. This argument is denied, as absolute immunity does not apply when
officers are alleged to have exceeded the scope of the writ. See Wilcox v. Magill, 468 Fed.
Appx. 849, 852-53 (10th Cir. 2012). Plaintiffs have alleged that defendants exceeded the
permissible scope of the writ by seizing property that belonged to J.V.J.
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failure to file these returns violated plaintiffs’ rights under the Fourth, Fifth and Fourteenth
Amendments and also violated Kansas law. The claim is dismissed. To the extent plaintiffs
purport to assert a claim for relief under federal law, plaintiffs have alleged no deprivation of a
constitutional right caused by Sheriff Ash’s alleged failure to return the writ after the execution
of it and his purported failure to file a return of sales. Plaintiffs have alleged no constitutional
deprivation caused by the Sheriff’s purported failures beyond that which already occurred in
connection with the seizure and sale of J.V.J.’s property.

While they contend in their

submissions that Sheriff Ash’s “failure to follow the statutory procedure for carrying out and
serving writs of execution” caused a “direct violation of plaintiffs’ due process rights,” they
wholly fail to articulate how that failure deprived plaintiffs of any property right for purposes of
a due process analysis. In a related vein, plaintiffs do not allege what damages they might have
sustained in light of Sheriff Ash’s failure to file the requisite returns. For these reasons, any
federal claim asserted in Count III is dismissed.
To the extent plaintiffs purport to assert a claim for relief under state law, the claim is
also dismissed. Even assuming that the statutory scheme identified by plaintiffs contemplates a
private right of action for a violation, plaintiffs have not alleged that they suffered any damages
as a result of Sheriff Ash’s failure to return the writ or to file a return on the sale of the items
seized.

IT IS THEREFORE ORDERED BY THE COURT THAT the Unified Government
defendants’ motion to dismiss plaintiffs’ second amended complaint (doc. 46) is granted in part
and denied in part.
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IT IS FURTHER ORDERED BY THE COURT THAT plaintiffs’ claims against
Sheriff Ash and the Unified Government are dismissed with prejudice.

IT IS SO ORDERED.

Dated this 17th day of April, 2015, at Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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