McHenry v. City of Ottawa et al

Filing 80

MEMORANDUM AND ORDER granting 64 Motion for Entry of Judgment. IT IS FURTHER ORDERED THAT judgment be entered in favor of defendants Doug Waterman, Bryce Hart, Hunter Dryden, Dwayne Woods, and Derek Butters on all claims asserted against them. Signed by District Judge Daniel D. Crabtree on 12/15/17. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHRIS MCHENRY,
Plaintiff,
v.
Case No. 16-2736-DDC-JPO
CITY OF OTTAWA, KANSAS, et al.,
Defendants.
____________________________________

MEMORANDUM AND ORDER
This matter comes before the court on plaintiff Chris McHenry’s Motion for Entry of
Final Judgment under Fed. R. Civ. P. 54(b), Doc. 64. The defendants have filed responses,
opposing the motion.1 For the reasons explained below, the court grants plaintiff’s motion.
I.

Background
Plaintiff Chris McHenry filed this lawsuit on behalf of Joseph Jennings as the

administrator of his estate and heir to recover for Mr. Jennings’s death. Briefly summarized, this
lawsuit arises from the shooting death of Mr. Jennings by Franklin County sheriff deputies and
Ottawa police officers on August 23, 2014. Defendants Abe Schmidt, Casey Gilmore, Justin
Bulcock, Jesse Vega, and Ricky Wilson (“the shooting officers”) allegedly shot Mr. Jennings.
Defendants Doug Waterman, Bryce Hart, Derek Butters, Hunter Dryden, and Dwayne Woods
(“the non-shooting officers”) allegedly were present but they did not fire their service weapons.
Plaintiff also sued the City of Ottawa (“Ottawa”) and Franklin County, Kansas by and through its
Board of County Commissioners (“Franklin County”).

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The court ordered that plaintiff should not file a reply. Doc. 67.

Only four claims matter to this motion. Count I of the Complaint alleges that the
shooting officers incurred liability under 42 U.S.C. § 1983 for violating Mr. Jennings’s
constitutional right to be free from excessive force. Count II alleges that the non-shooting
officers incurred liability under § 1983 for failing to intervene in the use of constitutionally
excessive force. Count IV alleges that Franklin County and Ottawa denied Mr. Jennings the
benefits of their law enforcement services, violating the Americans with Disabilities Act
(“ADA”) and the Rehabilitation Act. Count VI alleges that all defendants wrongfully caused Mr.
Jennings’s death by negligence.
One set of defendants filed a Motion to Dismiss. Doc. 29. Another filed a Motion for
Judgment on the Pleadings. Doc. 31. The court ruled both motions in a consolidated
Memorandum and Order (“Order”) dated September 26, 2017. See Doc. 46. It held that the
claim in Count II—asserting that the non-shooting officers were liable under § 1983 for failing to
intervene to prevent use of constitutionally excessive force—did not plead sufficient facts to
state a claim. This Order also held that Count VI failed to plead a plausible claim against the
non-shooting officers. Combined, these two rulings terminated all claims against the nonshooting officer defendants.
Defendants did not fare so well on other aspects of the motions. The Order declined to
dismiss Counts I and IV, leaving viable those claims against the shooting officer defendants,
Ottawa, and Franklin County. Those defendants now have appealed the court’s decision on
Count I as a matter of right because it declined to grant them qualified immunity. See Docs. 49,
55. These defendants also asked the court to certify its decision on Count IV for interlocutory
appeal, Docs. 47, 53, and the court granted their request. Doc. 70. This leaves the current
motion, Doc. 64. In it, plaintiff asks the court to enter final judgment in favor of the non-

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shooting officers under Fed. R. Civ. P. 54(b). He reasons that there is no just reason to delay
review of the court’s decision because it effectively concludes this matter as it pertains to the
non-shooting officer defendants.
II.

Legal Standard
“When an action presents more than one claim for relief . . . the court may direct entry of

final judgment as to one or more, but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b). “The purpose of Rule
54(b) ‘is to avoid the possible injustice of a delay in entering judgment on a distinctly separate
claim or as to fewer than all of the parties until the final adjudication of the entire case by
making an immediate appeal available.’” Okla. Turnpike Auth. v. Bruner, 259 F.3d 1236, 1241
(10th Cir. 2001) (quoting 10 Charles A. Wright et al., Federal Practice and Procedure: Civil §
2654 (2d ed. 1982)). But the rule “ʻpreserves the historic federal policy against piecemeal
appeals . . . .’” Id. (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438 (1956)).
To certify a final judgment under this rule, the court must make two express
determinations: (1) “that the order [the court] is certifying is a final order” and (2) “that there is
no just reason to delay review of the final order until [the court] has conclusively ruled on all
claims presented by the parties to the case.” Id. at 1242 (citing Fed. R. Civ. P. 54(b); CurtissWright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7–8 (1980)).
III.

Discussion
A.

Final Order

An order is “final” under Fed. R. Civ. P. 54(b) when it is “ʻan ultimate disposition of an
individual claim entered in the course of a multiple claims action.’” Id. (quoting Curtiss-Wright
Corp., 446 U.S. at 7). In cases with multiple parties, a court enters a final judgment when it

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disposes of all claims against at least one—but not all—of the parties. See Caldwell-Baker Co.
v. S. Ill. Railcar Co., 209 F.R.D. 649, 650 (D. Kan. 2002) (concluding that the court had issued a
final judgment on claims against some of the defendants by dismissing all of plaintiff’s claims
against those defendants under Rule 12(b)(6) even if one defendant remained whose allegedly
wrongful conduct was related factually and legally to the claims already decided in favor of the
dismissed defendants); see also Jewler v. District of Columbia, 198 F. Supp. 3d 1, 3 (D.D.C.
2016) (concluding that the court had issued a final judgment on claims against some of the
defendants in a § 1983 case when the court dismissed all claims against those defendants,
“leaving no further basis for them to participate in the litigation”).
After the September 26 Memorandum and Order, there is “no further basis for [the nonshooting officers] to participate in the litigation.” Jewler, 198 F. Supp. 3d at 3. The court’s
rulings on the claims in Counts II and IV terminated all claims asserted against the non-shooting
officers. There is nothing for them to do except wait for the rest of the case to conclude and then
face any appeal (or cross-appeal) plaintiff elects to take of the rulings in Counts II and IV. The
court thus views its Order as a final order for the five non-shooting officer defendants.
While defendants come to the opposite conclusion, their reasoning is not persuasive.
They liken this case’s posture to two cases—Oklahoma Turnpike Authority v. Bruner, 259 F.3d
1236, and National Credit Union Administration Board v. Morgan Stanley & Co., Inc., No. 132418-JWL, 2015 WL 4463645 (D. Kan. July 21, 2015). In one of these cases, the Tenth Circuit
ruled that a district court had not entered a final order. See Bruner, 259 F.3d at 1243. In the
other, our court held that a partially dispositive order was not a final order. Morgan Stanley,
2015 WL 4463645, at *3. Defendants argue that the court should reach the same conclusion

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here. Careful examination reveals, however, material differences between this case and the two
relied on by defendants.
In the Tenth Circuit ruling, Bruner, the case’s substantive and procedural posture
consumes much of the Circuit’s eight-page opinion. See Bruner, 259 F.3d at 1239–41. It is too
intricate to repeat here. But the Circuit captured the gravamen of its holding reversing the
district court’s Rule 54(b) certification in two operative sentences:
Thus, a judgment is not final for the purposes of Rule 54(b) unless the claims
resolved are distinct and separable from the claims left unresolved.
***
[B]ecause the district court has only partially disposed of a class of claims that, as
the district court now understands them, are so factually related that they should
instead be disposed of together, we lack jurisdiction to hear this appeal.
259 F.3d at 1243. This reasoning will not fit the current case because the court’s Order has
decided all claims asserted against the non-shooting officers.
Morgan Stanley is similar. There, Judge Lungstrum dismissed 20 of plaintiff’s 21
securities claims on a Rule 12(b)(6) Motion to Dismiss. Morgan Stanley, 2015 WL 4463645, at
*1. Plaintiff asked him to certify his decision so they could take an immediate appeal. Id. He
declined. Id. at *3. That ruling emphasized that all 21 of plaintiff’s claims—both the 20
dismissed claims and the one viable claim—relied on predominantly identical misrepresentations
and omissions, all allegedly made by the same issuing company, and all relied on the same legal
theory. Id. Unsurprisingly, Judge Lungstrum declined to certify his ruling on the 20 claims for
an early piecemeal appeal. Id. The differences between those procedural facts and the ones in
this case are self-evident. Defendants’ reliance on Morgan Stanley is hardly persuasive.
Here, plaintiff pursues a different legal theory against the non-shooting officers compared
to the other defendants in this lawsuit. Namely, plaintiff alleges that the non-shooting officers
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failed to intervene when the shooting officers shot Mr. Jennings. While this theory pertains in
some measure to plaintiff’s claims against the shooting officer defendants, Franklin County, and
Ottawa, it is not identical to the other claims against these defendants nor does it involve similar
actions by the non-shooting officers. The court thus concludes it has issued a final order
dismissing all the claims asserted against the non-shooting officer defendants.
B.

No Just Reason to Delay Review

Having concluded the court’s order is a final order, the court must determine whether
there is any just reason to delay appeal. Relevant factors for the court to consider in making this
determination include “ʻwhether the claims under review are separable from the others remaining
to be adjudicated and whether the nature of the claims already determined is such that no
appellate court would have to decide the same issues more than once even if there were
subsequent appeals.’” New Mexico v. Trujillo, 813 F.3d 1308, 1316 (10th Cir. 2016) (quoting
Curtiss-Wright Corp., 446 U.S. at 8)).
Here, there is no just reason to delay an appeal on the claims against the non-shooting
officers. While plaintiff’s claims against the non-shooting officers and the shooting officers
come from a common collection of operative facts, the shooting officers already have appealed
the court’s decision finding that the Complaint sufficiently alleged that the shooting officers
violated Mr. Jennings’s constitutional rights. Docs. 49, 55. This relieves a considerable equity
against certifying judgment—namely the interconnectivity of plaintiff’s excessive force and
failure to intervene claims. See Jones v. Norton, 809 F.3d 564, 576 (10th Cir. 2015) (“ʻ[I]n order
for there to be a failure to intervene, it logically follows that there must exist an underlying
constitutional violation.’” (quoting Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005))).

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Likewise, there is no threat that the appellate court would have to decide the same issues
more than once. If the other defendants had not appealed the court’s ruling on Count I, the court
would have reservations about entering a final judgment. That situation would force the Tenth
Circuit to decide whether plaintiff’s Complaint sufficiently alleges that the shooting officers
violated Mr. Jennings’s constitutional rights—which is exactly what Count I alleges. See id. But
the Tenth Circuit already has the court’s ruling on Count I before it. Docs. 49, 55. Thus, the
Tenth Circuit already must decide a subsidiary issue embedded in Count II’s claim against the
non-shooting officers—whether the shooting officers violated Mr. Jennings’s constitutional
rights.
Indeed, the court’s delay in entering judgment would prejudice plaintiff significantly.
Defendants delayed this case’s progress by taking interlocutory appeals seeking review of the
court’s Order. That was their right. It will take some time for the Circuit to decide those issues.
If the Circuit affirms the court’s order, defendants may move for summary judgment after the
close of discovery. If defendants were to lose such a motion, defendants properly could appeal
again. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (holding that a defendant asserting
qualified immunity may appeal immediately a decision denying summary judgment on a
qualified immunity defense). Again, this appeal will take time. Because it could take years to
resolve all the issues in this case, and given that plaintiff’s claims against the non-shooting
officers are distinct from any claim still pending before this court, the court finds that there is no
just reason to delay appeal.
IV.

Conclusion
For the reasons stated above, the court grants plaintiff’s Motion for Entry of Final

Judgment in favor of defendants Waterman, Hart, Butters, Dryden, and Woods (“the non-

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shooting officers”). The court finds that the Order (Doc. 46) was a final order dismissing all
claims asserted against those five defendants identified as the non-shooting officers and there is
no just reason to delay an appeal of that decision.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s Motion for
Entry of Final Judgment (Doc. 64) is granted.
IT IS FURTHER ORDERED THAT judgment be entered in favor of defendants Doug
Waterman, Bryce Hart, Hunter Dryden, Dwayne Woods, and Derek Butters on all claims
asserted against them.
IT IS SO ORDERED.
Dated this 15th day of December 2017, at Topeka, Kansas.

s/ Daniel D. Crabtree______
Daniel D. Crabtree
United States District Judge

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