Aversman et al v. Nicholson et al

Filing 34

MEMORANDUM AND ORDER. IT IS THEREFORE ORDERED that defendant KBI's Motion to Dismiss (Doc. 14) is granted; defendant Nicholson's Motion to Dismiss (Doc. 16) is granted; and defendant Smith's Motion to Dismiss (Doc. 18) is granted. Signed by District Judge Carlos Murguia on 7/11/2017. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHELLY AVERSMAN and
MATTHEW AVERSMAN,
Plaintiffs,
Case No. 16-2779
v.
CHRISTOPHER M. NICHOLSON, in his
individual capacity, WILLIAM SMITH, in his
individual capacity, KANSAS BUREAU OF
INVESTIGATION, and JOHN DOES 1–10,
Defendants.

MEMORANDUM & ORDER
This matter comes before the court upon defendant Kansas Bureau of Investigation’s (“KBI”)
Motion to Dismiss (Doc. 14), defendant Special Agent Christopher M. Nicholson’s Motion to Dismiss
(Doc. 16), and defendant Special Agent William Smith’s Motion to Dismiss (Doc. 18).
I.

Factual Background

Plaintiffs filed this case asserting claims under 42 U.S.C. § 1983; § 1988; the Fourteenth
Amendment; and various state laws. The complaint’s allegations involve defendants’ investigation
into a report that plaintiff Shelly Aversman had unlawful sexual relations with a student at Atchison
High School while she was teaching there. Defendant Nicholson interviewed Ms. Aversman twice and
the student once, all on November 24, 2015. First, he interviewed Ms. Aversman; she admitted to
having a sexual relationship with the student but only after their student-teacher relationship ended,
after the student’s graduation. Next Defendant Nicholson interviewed the student; he also denied that
any sexual activity took place while he was a student at Atchison High. The student admitted that
sexual contact occurred in September 2012 when he had returned home from his college studies due to

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a medical issue. Later in the interview, defendant Nicholson asked the student to confirm “So some of
that contact [referring to sexual contact] was prior to you graduating and going to college.” (Doc. 6 at
4.) The student said “Yeah, like I said - ” but was cut off by defendant Nicholson before he completed
an answer. (Id.) Defendant Nicholson drew a timeline and asked the student to point out when the
contact occurred, but did not have him mark or sign the chart.
Defendant Nicholson then interviewed Ms. Aversman again, this time telling her that the
student had admitted that they had a sexual contact while he was a senior in high school. To this, Ms.
Aversman “responded with maybe, and then probably, but then clarified that [the student] had
expressed feelings for her during [his] senior year, but that she had rejected those feelings by telling
him that she saw him like a child.” (Id. at 5.) Defendant Nicholson then asked “‘Is there a time when
a mistake happened?’, to which Mrs. Aversman responded ‘Yea’ and clarified that ‘[i]t was closer to
his graduation time.’” (Id.) She “then clarified again that she had rejected [the student’s] advances
because of her life, her career, everything.” (Id.) Defendant Nicholson told Ms. Aversman that the
student guessed the sexual contact began in January of his senior year in high school. She responded
“‘Probably. I was thinking it was long after that,’ and followed up with ‘I guess so.’” (Id. at 6.) Ms.
Aversman described “the sexual contact that took place prior to September 2012” as
“fondling/touching.” (Id.)
Sometime after the November 24, 2015 interviews, defendant Nicholson listened to audio
recordings of the interviews and summarized their contents. Within fifteen days, by December 9,
2015, he prepared a probable cause affidavit for Ms. Aversman’s arrest based on the summaries. He
included in the probable cause affidavit that the student:
admitted that he and Aversman engaged in a sexual relationship at a time period
between January 2012 and August 2012, when he was still a student at Atchison High
School and Aversman was one of his teachers. . . . [Ms. Aversman admitted] that she
had engaged in lewd fondling of [the student] prior to his graduation from Atchison

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High School a time period in which Aversman was employed by Atchison High School
and was one of [his] teachers. Aversman stated the touching involved her touching
[his] genitals under his clothes and [his] touching her genitals under her clothes.
(Id. at 7.) Based on those statements, an arrest warrant issued and Ms. Aversman was arrested based
on charges of Unlawful Voluntary Sexual Relations in violation of K.S.A. § 21-5512(a)(9), the same
day. Ms. Aversman posted bond awaiting a preliminary hearing that was scheduled for March 2, 2016,
when the charges were dismissed. Ms. Aversman had been suspended from her job, and despite the
charges against her being dismissed, her employment was terminated.
II.

Procedural Background

Defendant KBI moves to dismiss itself from the case for lack of subject matter jurisdiction
under Fed. R. Civ. P. 12(b)(1) and because it lacks the capacity to sue or be sued under Fed. R. Civ. P.
17(b) (Doc. 14). Plaintiff does not oppose defendant KBI’s motion. It is therefore granted. Plaintiffs’
Count XVI is therefore dismissed.
Defendant Smith moves to dismiss the claims against him pursuant to Fed. R. Civ. P. 12(b)(6)
for failure to state a claim upon which relief can be granted (Doc 18). Plaintiffs do not oppose
defendant Smith’s motion to dismiss but ask that it be granted without prejudice in case plaintiffs
discover evidence during discovery that indicates defendant acted with deliberate indifference, opening
him to liability under § 1983. Therefore, defendant Smith’s motion to dismiss is granted.
The remaining motion before the court is defendant Nicholson’s Motion to Dismiss for failure
to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6) and because he claims
he is entitled to qualified immunity. (Doc. 16.)
III.

Legal Standards
A.

Motion to dismiss pursuant to 12(b)(6)

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Fed. R. Civ. P. 8(a)(2) requires complaints to contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” To survive a motion to dismiss for failure to state a
claim under Fed. R. Civ. P. 12(b)(6), the plaintiff must allege facts sufficient “to raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id.; Twombly, 550 U.S. at 555 (“[A] formulaic recitation of the elements of a cause of action will not
do.”). The allegations must be enough that, if assumed to be true, the plaintiff plausibly, not merely
speculatively, has a claim for relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247–48 (10th Cir. 2008).
In ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court
assumes as true all well-pleaded facts in plaintiff’s complaint and views them in a light most favorable
to plaintiff. See Zinermon v. Burch, 494 U.S. 113, 118 (1990); see also Fed. R. Civ. P. 8(a). Although
the court considers the complaint’s allegations to be true, it is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Iqbal, 556, U.S. at 678.
B.

Qualified immunity

“Government defendants sued under § 1983 in their individual capacities have qualified
immunity: government officials are not subject to damages liability for the performance of their
discretionary functions when their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Brown v. Montoya, 662 F.3d
1152, 1164 (10th Cir. 2011) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993)). It protects
“all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.
335, 341 (1986).

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On a motion to dismiss, plaintiffs “must allege sufficient facts that show—when taken as
true—the defendant plausibly violated [their] constitutional rights, which were clearly established at
the time of violation.” Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir, 2012). The court exercises its
discretion based on the facts of each case in deciding which prong to first address. Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
IV.

Discussion

The remaining defendants in this case are defendant Nicholson and John Does 1–10, who are
allegedly supervisory personnel with the KBI who would have had the responsibility to train, hire,
screen, instruct, supervise, and discipline defendant Nicholson. Plaintiffs’ three remaining federal
claims are brought pursuant to 42 U.S.C. § 1983. They are: (Count I) brought against defendant
Nicholson for violating Ms. Aversman’s Fourth and Fourteenth Amendment rights by misrepresenting
and omitting information from the probable cause affidavit that would have negated probable cause;
(Count II) brought against defendant Nicholson for false arrest and malicious prosecution; and (Count
IV) brought against defendants John Does 1–10 for supervisory liability.
“The elements necessary to establish a § 1983 . . . violation will vary with the constitutional
provision at issue. But common to all § 1983 claims is the requirement that liability be predicated on a
violation traceable to a defendant-official’s own individual actions.” Brown v. Univ. of Kan., 16 F.
Supp. 3d 1275, 1286–87 (D. Kan. 2014) (quoting Pahls v. Thomas, 718 F.2d 1210, 1225 (10th Cir.
2013)). In this case, plaintiffs challenge defendant Nicholson’s investigation of Ms. Aversman for
reported criminal activity.
Defendant Nicholson argues that he is entitled to qualified immunity because plaintiffs cannot
show either that he violated Ms. Aversman’s constitutional rights or that he violated clearly established
law.

Plaintiffs allege that defendant Nicholson violated Ms. Aversman’s rights because of the

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generally reckless nature of his investigation. They claim he should have established a clearer timeline
detailing when sexual contact started and what type of contact occurred, if any, while the student was
still in high school. They argue that defendant Nicholson made either knowingly false or reckless
misrepresentations in the probable cause affidavit.

Specifically, plaintiffs claim that defendant

Nicholson included a false statement: that the student admitted to sexual relations while he was a high
school student, and omitted statements that would have negated probable cause: both the student and
Ms. Aversman’s initial denials that sexual relations took place while the student was still in high
school. Additionally, plaintiffs argue that defendant Nicholson’s efforts to be concise in the probable
cause affidavit resulted in factual ambiguity.
All of plaintiffs’ claims require them to show that defendant Nicholson’s probable cause
affidavit, prompting the issuance of warrant for Ms. Aversman’s arrest, lacked probable cause. For the
reasons described below, the court finds that they do not, because the affidavit was supported by
probable cause.
The Fourth Amendment protects “the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A Fourth
Amendment violation occurs when an arrest warrant affiant “knowingly, or with reckless disregard for
the truth, include[s] false statements in the affidavit, or [] knowingly or recklessly omit[s] from the
affidavit information which, if included, would have vitiated probable cause.” Wolford v. Lasater, 78
F.3d 484, 489 (10th Cir. 1996) (quoting Franks v. Delaware, 438 U.S. 154, 155–56 (1978), Stewart v.
Donges, 915 F.2d 572, 581–83 (10th Cir. 1990)). In such circumstances, the court approaches the
probable cause inquiry by setting any allegedly false statements aside and reviewing the remaining
truthful facts. Kerns v. Bader, 663 F.3d 1173, 1188 (10th Cir. 2011) (quoting Wolford v. Lasater, 78
F.3d 484, 489 (10th Cir. 1996)). Likewise, where a party alleges that true information has been

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unlawfully omitted from an affidavit, the court includes that information and determines whether the
affidavit would still have given rise to probable cause. Id.
“Probable cause does not require proof beyond a reasonable doubt or even a preponderance of
the evidence.” Hopper v. Fenton, 665 F. App’x 685, 686 (10th Cir. 2016). “Instead, the relevant
question is whether a substantial probability existed that the suspect committed the crime, requiring
something more than a bare suspicion.” Id. (quoting Kerns v. Bader, 663 F.3d 1173, 1188 (10th Cir.
2011)).
Defendant Nicholson’s probable cause affidavit declared that Ms. Aversman violated—and she
was ultimately arrested and charged with violating—K.S.A. § 21-5512(a)(9), which provides that:
Unlawful sexual relations is engaging in consensual sexual intercourse, lewd fondling
or touching, or sodomy with a person who is not married to the offender if . . . the
offender is a teacher or other person in a position of authority and the person with
whom the offender is engaging in consensual sexual intercourse, lewd fondling or
touching, or sodomy is a person 16 years of age or older who is a student enrolled at the
school where the offender is employed.
Omitting the student’s allegedly false admission and including the fact that both the student and
Ms. Aversman initially denied the existence of sexual interactions prior to the student’s high school
graduation, the affidavit was still supported by probable cause. The court notes that it was not
provided a copy of the probable cause affidavit and proceeds based solely on plaintiffs’ allegations.
Even so, taking the facts in the light most favorable to plaintiffs, when told that the student admitted
that sexual relations occurred while he was a high school student, Ms. Aversman responded “maybe”
and “probably” and admitted that a “mistake occurred” “closer to his graduation time.” (Doc. 6 at 6.)
When told that the student estimated that sexual activity occurred as early as January 2012, Ms.
Aversman said “‘Probably. I was thinking it was long after that,’ and followed up with ‘I guess so.’”
(Id. at 6.) She then went on to describe the sexual contact that occurred before September 2012 as

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fondling or touching, although specific dates were not confirmed. Omitting the student’s allegedly
false admission, the probable cause affidavit still accurately included:
[Ms. Aversman admitted] that she had engaged in lewd fondling of [the student] prior to
his graduation from Atchison High School a time period in which Aversman was
employed by Atchison High School and was one of [his] teachers. Aversman stated the
touching involved her touching [his] genitals under his clothes and [his] touching her
genitals under her clothes.
(Id. at 7.) Although both the student and Ms. Aversman initially denied that any sexual interactions
took place while the student was in high school, they both admitted that a sexual relationship existed
after he graduated. Even adding in their initial denials that sexual interactions occurred prior to the
student’s graduation would not negate probable cause that Ms. Aversman engaged in criminal activity,
because she apparently agreed with defendant Nicholson when he informed her that the student
estimated that the sexual activity began in January 2012, the second half of his senior year in high
school. There does not seem to be any dispute that the student was enrolled at Atchison High School
and Ms. Aversman was employed there through May 2012. Whether or not defendant Nicholson lied
when he told Ms. Aversman that the student estimated that sexual relations began in January 2012, Ms.
Aversman responded that they probably did and she guessed so. She then described sexual activity
criminalized by the statute—lewd fondling or touching.
The court finds that these statements and the circumstances surrounding the investigation
created a substantial probability that Ms. Aversman committed the crime—establishing probable cause
for her arrest.

Defendant Nicholson is entitled to qualified immunity because plaintiff has not

established a violation of a constitutional right. Additionally, because plaintiffs’ remaining federal
claims rely either on the court finding a constitutional violation or no probable cause, all remaining
federal claims are dismissed. This includes the remaining federal claim against the Doe defendants for

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supervisory liability. The court declines to exercise supplemental jurisdiction over the remaining state
claims.
IT IS THEREFORE ORDERED that defendant KBI’s Motion to Dismiss (Doc. 14) is
granted.
IT IS FURTHER ORDERED that defendant Nicholson’s Motion to Dismiss (Doc. 16) is
granted.
IT IS FURTHER ORDERED that defendant Smith’s Motion to Dismiss (Doc. 18) is granted.
This case is closed.
Dated July 11, 2017, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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