Youngblood v. Qualls

Filing 15

MEMORANDUM AND ORDER granting in part and denying in part 4 Motion to Dismiss for Failure to State a Claim; denying 12 Motion to Amend Complaint. Signed by Chief District Judge Julie A Robinson on 12/01/2017. (tvn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GUY L. YOUNGBLOOD,
Plaintiff,
v.

Case No. 2:17-CV-02180-JAR-GEB

REX QUALLS,
Defendant.

MEMORANDUM & ORDER
Plaintiff Guy Youngblood brings this action against Defendant Rex Qualls, a former
police officer for the City of Baxter Springs, Kansas, in his personal capacity only, seeking
monetary damages pursuant to 42 U.S.C. § 1983 and the Kansas Tort Claims Act, K.S.A. § 756101, et seq., for Defendant’s alleged violation of Plaintiff’s First, Fourth, and Fourteenth
Amendment rights, as well as his rights under Articles 11 and 15 of the Kansas Bill of Rights.
Plaintiff contends that this Court has supplemental jurisdiction to hear his state-law claims
pursuant to 28 U.S.C. § 1367(b). Before the Court are two motions—Defendant’s Motion to
Dismiss for Failure to State a Claim (Doc. 4) and Plaintiff’s Motion to Amend Complaint (Doc.
12). Having considered the parties’ briefing, the Court is prepared to rule. For the reasons set
forth below, Defendant’s Motion to Dismiss is granted in part and denied in part, and Plaintiff’s
Motion to Amend is denied as futile.
I.

Factual and Procedural Background
Plaintiff Guy Youngblood alleges that on July 1, 2015, he was mowing his front lawn

when he was approached by Defendant Rex Qualls, who was then a police officer employed by
the City of Baxter Springs, Kansas. Plaintiff contends that Defendant’s presence at his home
was instigated by animosity between Plaintiff and Randall Trease, the mayor of Baxter Springs,

who lives across the street from Plaintiff. Plaintiff alleges that Defendant informed him that he
was violating a municipal ordinance by discharging grass clippings into the street. Plaintiff
states that in response to this comment, he turned toward the mayor’s residence and, “while in
the . . . close proximity of Defendant Qualls . . . . raise[d] his right arm, extend[ed] the middle
finger of his right hand and state[d] in a loud voice, ‘F*** that mother*****.’”1 Plaintiff alleges
that Defendant then “with no warning to Plaintiff, forcefully grasped Plaintiff and threw him
onto the street,”2 causing injuries to Plaintiff. Plaintiff states that Defendant then arrested him
for disorderly conduct and transported him to the Cherokee County Jail, where he was held prior
to posting bond and being released.
Plaintiff filed this action on March 29, 2017. His Complaint alleges four causes of action
against Defendant in his personal capacity: (1) unreasonable seizure in violation of rights
guaranteed under the Fourth and Fourteenth Amendments to the United States Constitution; (2)
unreasonable interference with and retaliation for protected speech and conduct in violation of
the First and Fourteenth Amendments; (3) unreasonable seizure in violation of rights guaranteed
under Section 15 of the Kansas Bill of Rights; and (4) unjustified interference with and
retaliation for Plaintiff’s right to free speech under Section 11 of the Kansas Bill of Rights.3
Plaintiff alleges that his federal claims arise under 42 U.S.C. § 1983, that his state-law claims
arise under the Kansas Bill of Rights and the Kansas Tort Claims Act (“KTCA”), and that this
Court has supplemental jurisdiction to hear his state-law claims pursuant to 28 U.S.C. § 1367.4

1

Doc. 2 ¶ 11.

2

Id. ¶ 12.

3

Id. ¶¶ 17–20.

4

Id. ¶¶ 2–3.

2

II.

Legal Standard
To survive a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), a complaint must

contain factual allegations that, assumed to be true, “raise a right to relief above the speculative
level” and must include “enough facts to state a claim for relief that is plausible on its face.”5
Under this standard, “the complaint must give the court reason to believe that this plaintiff has a
reasonable likelihood of mustering factual support for these claims.”6 The plausibility standard
does not require a showing of probability that “a defendant has acted unlawfully,” but requires
more than “a sheer possibility.”7 “[M]ere ‘labels and conclusions,’ and ‘a formulaic recitation of
the elements of a cause of action’ will not suffice; a plaintiff must offer specific factual
allegations to support each claim.”8 Finally, the court must accept the nonmoving party’s factual
allegations as true and may not dismiss on the ground that it appears unlikely the allegations can
be proven.9
The Supreme Court has explained the analysis as a two-step process. For the purposes of
a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but
is] ‘not bound to accept as true a legal conclusion couched as a factual allegation.’”10 Thus, the
court must first determine if the allegations are factual and entitled to an assumption of truth, or

5

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

6

Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original).

7

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

8

Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S. at

9

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

555).

10

Id. (citing Twombly, 550 U.S. at 555).

3

merely legal conclusions that are not entitled to an assumption of truth.11 Second, the court must
determine whether the factual allegations, when assumed true, “plausibly give rise to an
entitlement to relief.”12 “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”13
Plaintiff in this case filed a motion to amend his Complaint pursuant to Fed. R. Civ.
P. 15(a)(2) after Defendant had moved to dismiss under Rule 12(b)(6). Plaintiff seeks to amend
his Complaint to “allege service of notice of claim on the City of Baxter Springs, Kansas under
K.S.A. 12-105b.”14 Although Fed. R. Civ. P. 15 requires that leave to amend “be freely given
when justice so requires,” whether leave should be granted is within the trial court’s discretion.15
The factors the Court should consider in determining whether to allow amendment of a pleading
are undue delay, bad faith or dilatory motive, failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party, or futility of the amendment.16 To
justify denying leave to amend on the basis of futility, the proposed amendment must be clearly
futile. “If a proposed amendment is not clearly futile, then denial of leave to amend is
improper.”17 The court may deny a motion to amend as futile if the proposed amendment would

11

Id. at 678–679.

12

Id. at 679.

13

Id. at 678.

14

Doc. 12 at 1.

15

Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir. 1993) (citing Zenith Radio
Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971); Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992)).
16

Foman v. Davis, 371 U.S. 178, 182 (1962); Castleglen, 984 F.2d at 1585.

17

6 Charles Alan Wright, et al., Federal Practice & Procedures § 1487 (3d ed. 2017).

4

not withstand a motion to dismiss or otherwise fails to state a claim upon which relief may be
granted.18
Finally, Plaintiff contends that pursuant to 28 U.S.C. § 1367, the Court should
exercise supplemental jurisdiction to hear his state-law claims in addition to his federal claims
arising under 42 U.S.C. § 1983 and 28 U.SC. § 1331. “‘[F]ederal courts have no jurisdiction
without statutory authorization.’”19 However, § 1367(a) provides that:
Except as provided in subsections (b) and (c) or as
expressly provided otherwise by Federal statute, in any
civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to the
claims in the action within such original jurisdiction that
they form part of the same case or controversy under
Article III of the United States Constitution. . . .
Thus, district courts having original jurisdiction to hear federal claims also have discretion to
exercise supplemental jurisdiction over state-law claims where the plaintiff can demonstrate that
“the claims not within the original jurisdiction of the court form part of the same ‘case or
controversy under Article III’ as [his] federal claims.”20 Federal and state claims arise from the
same “case or controversy” where the “state and federal claims . . . derive from a common
nucleus of operative fact . . . .”21

18

Ketchum, 961 F.2d at 920; Schepp v. Fremont Cty., 900 F.2d 1448, 1451 (10th Cir. 1990).

19

Davis v. King, 560 F. App’x 756, 759 (10th Cir. 2014) (quoting Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 553 (2005)).
20

Oltremari by McDaniel v. Kan. Soc. & Rehab. Servs., 871 F. Supp. 1331, 1340 (D. Kan. 1994) (quoting
Fasco Indus., Inc. v. Mack, 843 F. Supp. 1252, 1256 (N.D. Ill. 1994)).
21

Id. at 1340 (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)).

5

III.

Analysis
On May 9, 2017, Defendant moved to dismiss this case pursuant to Fed. R. Civ. P.

12(b)(6), asserting that Plaintiff’s Complaint fails to state a claim in several respects. Defendant
first argues that Plaintiff’s Complaint does not comply with Fed. R. Civ. P. 8(a)—which requires
a short and plain statement of the claim showing that the pleader is entitled to relief—such that
Defendant cannot determine what types of claims Plaintiff is asserting against him. Defendant
contends that Plaintiff’s Complaint is internally inconsistent, alleging different types of claims in
the “Nature of Action and Jurisdiction” section compared with the “Causes of Action” section.
Specifically, Defendant notes that Plaintiff alleges that his arrest by Defendant was accomplished
through the use of “excessive and unreasonable force” in the early paragraphs of the Complaint,
but makes no claim for excessive use of force in the paragraphs that make up the “Causes of
Action” portion of the Complaint. Defendant also argues that Plaintiff alleges no state-law tort
claims under the Kansas Tort Claims Act in the “Causes of Action” section of his Complaint, but
merely refers to the Kansas Bill of Rights as the source of his state-law claims. Defendant
contends that these pleading inconsistencies result in a Complaint that “fails to give notice to
Defendant Qualls what claims are being raised,”22 and that this action must therefore be
dismissed.
Defendant also argues that Plaintiff’s claims against him must be dismissed because
Defendant is entitled to qualified immunity, the Kansas Bill of Rights does not create a private
right of action, and Plaintiff failed to comply with the KTCA’s notice requirement, K.S.A. § 12105b(d), prior to bringing suit for state-law tort claims. In his Response to Defendant’s motion
to dismiss, Plaintiff contends that qualified immunity is not available here, that he has cognizable

22

Doc. 5 at 4.

6

claims under the Kansas Constitution, and that because Defendant’s municipal employer is not a
named defendant, the notice requirements of K.S.A. § 12-105b do not apply and he was not
required to give notice to Defendant prior to filing suit. In his Motion to Amend, Plaintiff seeks
leave to amend his Complaint to allege that he did, in fact, serve notice of his claim on the City
of Baxter Springs on or about January 28, 2016. Defendant opposes Plaintiff’s Motion to
Amend on the basis that it would be futile because the Complaint, as amended, would still be
subject to dismissal.
A.

Federal Claims

Section 1983 provides a cause of action for the deprivation of federal rights by any
person acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory . . . .”23 Although the Court agrees with Defendant that Plaintiff’s Complaint could be
more clearly and logically structured, the Court cannot find that Plaintiff’s allegations fail to give
Defendant notice of the federal claims asserted against him pursuant to § 1983. Rule 8(a)
requires that Plaintiff provide a “short and plain statement of the claim showing that [he] is
entitled to relief.” To survive a motion to dismiss under Rule 12(b)(6), Plaintiff must “frame
[his] ‘complaint with enough factual matter (taken as true) to suggest’ that he . . . is entitled to
relief.”24 Plaintiff alleges that he shouted an obscenity directed toward his neighbor’s house
while in close proximity to Defendant, and that in response, Defendant “forcefully grasped
Plaintiff and threw him onto the street.”25 Plaintiff alleges that Defendant’s conduct caused
Plaintiff to suffer physical injuries, and that Defendant arrested him and transported him to the

23

42 U.S.C. § 1983.

24

Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 556).

25

Doc. 2 ¶¶ 11–12.

7

Cherokee County Jail.26 These allegations are set forth in “Facts” section of Plaintiff’s
Complaint and provide factual support for Plaintiff’s allegations in the “Nature of Action and
Jurisdiction” section that Defendant violated his constitutional rights through “wrongful seizure
and excessive use of force.”27 While it is true that Plaintiff asserts no separately delineated claim
for “excessive use of force” in the “Causes of Action” section of his Complaint, it is plain to the
Court that Plaintiff is alleging that his seizure by Defendant was “unreasonable” due to both lack
of constitutional justification and the amount of force used under the circumstances.28 The Court
finds that Plaintiff has satisfied Rule 8(a) with respect to his claims arising under § 1983.
Having found that Plaintiff’s allegations concerning his federal claims satisfy Rule 8(a),
the Court must now consider whether Defendant is entitled to qualified immunity from those
claims. Allowing a plaintiff to seek damages under § 1983 in an individual-capacity suit against
the offending party is a vital tool for vindicating cherished federal rights.29 In certain
circumstances, however, the individual offending party is entitled to qualified immunity from
damages liability under § 1983.30 “Qualified immunity gives government officials breathing
room to make reasonable but mistaken judgments about open legal questions.”31 To this end,
qualified immunity shields government officials from liability for money damages unless the
plaintiff shows that the official violated a federal statutory or constitutional right, and that the

26

Id. ¶¶ 12–13.

27

Id. ¶ 3.

28

Id. ¶¶ 17–18.

29

Gomez v. Toledo, 446 U.S. 635, 638–39 (1980) (citing Owen v. City of Independence, 445 U.S. 622, 651

30

Id. at 639.

31

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

(1980)).

8

right the official violated was “clearly established” at the time of the challenged conduct.32
Generally, for a right to be considered clearly established, “there must be a Supreme Court or
Tenth Circuit decision on point, or the clearly established weight of authority from other courts
must have found the law to be as the plaintiff maintains.”33
Qualified immunity is a defense that must be pleaded by the defendant,34 but once the
defendant raises it, the burden is on the plaintiff to “(1) com[e] forward with sufficient facts to
show that the defendant’s actions violated a federal constitutional or statutory right and (2)
demonstrat[e] that the right violated was clearly established at the time of the conduct at issue.”35
Unless the plaintiff provides specific, non-conclusory allegations of fact sufficient to establish
these elements, the official is entitled to qualified immunity.36 Courts have discretion to decide
which of the two prongs of the qualified immunity analysis to address first.37
1.

Claim for Unreasonable Seizure Under the Fourth and Fourteenth
Amendments

Plaintiff alleges that his arrest by Defendant constituted an unreasonable seizure under
the Fourth and Fourteenth Amendments,38 and also that Defendant’s conduct constituted an

32

Id. at 735 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Scott v. Hern, 216 F.3d 897,
910 (10th Cir. 2000) (quoting Greene v. Barrett, 174 F.3d 1136, 1142 (10th Cir. 1999)).
33

Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (quoting Zia Trust Co. ex rel. Causey v. Montoya,
597 F.3d 1150, 1155 (10th Cir. 2010)).
34

See Gomez, 446 U.S. at 640 (citing Fed. R. Civ. P. 8(c)).

35

Schroeder v. Kochanowski, 311 F. Supp. 2d 1241, 1250 (D. Kan. 2004) (citing Baptiste v. J.C. Penney
Co., 147 F.3d 1252, 1255 (10th Cir. 1998)); see also Libretti v. Courtney, 633 F. App’x 698, 699 (10th Cir. 2016).
36

See al-Kidd, 563 U.S. at 735.

37

Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

38

The Fourth Amendment’s guarantee that “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized,” is “enforceable against the States through the Fourteenth Amendment.” Camara

9

unreasonable interference with and retaliation for expression of protected speech in violation of
the First and Fourteenth Amendments.39 Starting first with Plaintiff’s claim for unreasonable
seizure, Tenth Circuit case law is settled that a warrantless arrest is not constitutionally valid
under the Fourth Amendment unless “an officer has probable cause to believe that the arrestee
committed a crime.”40 Thus, in determining whether Defendant violated Plaintiff’s Fourth
Amendment right, the Court must consider whether Defendant had probable cause to arrest
Plaintiff on July 1, 2015. “‘When a warrantless arrest is the subject of a § 1983 action, the
defendant is entitled to qualified immunity if a reasonable officer could have believed that
probable cause existed to arrest or detain the plaintiff.’”41
“Probable cause exists where the facts and circumstances
within the officer[’s] knowledge, and of which [he has]
reasonably trustworthy information, are sufficient in
themselves to warrant a man of reasonable caution in the
belief that an offense has been or is being committed.”
This determination must be made “in light of the
circumstances as they would have appeared to a prudent,
cautious, trained police officer.”42
When analyzing the events that led to Plaintiff’s arrest for disorderly conduct, the Fourth
and First Amendment issues in this case become inextricably intertwined because in order to find
that Defendant had probable cause to arrest Plaintiff, the Court must also find that Plaintiff
engaged in “fighting words,” which constitute disorderly conduct per Kansas statute and which
v. Mun. Court of City and Cty. of San Francisco, 387 U.S. 523, 528 (1967) (citing Ker v. California, 374 U.S. 23, 30
(1963)).
39

The First Amendment is likewise made applicable to the states through the Fourteenth Amendment. See
Schneider v. New Jersey, 308 U.S. 147, 160 (1939).
40

Stearns v. Clarkson, 615 F.3d 1278, 1282 (10th Cir. 2010) (citing Oliver v. Woods, 209 F.3d 1179, 1186
(10th Cir. 2000)).
41

Id. (quoting York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)).

42

Berry v. City of Phillipsburg, 796 F. Supp. 1400, 1405–06 (D. Kan. 1992) (quoting United States v.
Maher, 919 F.2d 1482, 1485–86 (10th Cir.1990)).

10

are not protected by the First Amendment.43 Defendant arrested Plaintiff for his loud use of
obscene words and an obscene hand gesture. Under Kansas law,
(a) Disorderly conduct is one or more of the following acts
that the person knows or should know will alarm, anger
or disturb others or provoke an assault or other breach
of the peace:
(1) Brawling or fighting;
(2) Disturbing an assembly, meeting or procession, not
unlawful in its character; or
(3) Using fighting words or engaging in noisy conduct
tending reasonably to arouse alarm, anger or
resentment in others.
...
(c) As used in this section, “fighting words” means words
that by their very utterance inflict injury or tend to
incite the listener to an immediate breach of the peace.44
This statute is construed narrowly, and requires more than words that are merely
“offensive or anger[] others.”45 Rather, Kansas law requires “words that would provoke the
average person to retaliate under the circumstances.”46 Similarly, First Amendment
jurisprudence defines “fighting words” as “those personally abusive epithets which, when
addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to

43

See State v. Huffman, 612 P.2d 630, 634, 636 (Kan. 1980) (citing Chaplinksy v. New Hampshire, 315
U.S. 568 (1942), and holding that K.S.A. § 21-4101—a predecessor to Kansas’s current disorderly conduct statute—
must be narrowly construed to apply only to “fighting words” within the meaning of fundamental First Amendment
principles). Kansas’s current disorderly conduct statute, K.S.A. § 21-6203, has been in effect since 2011 and
expressly states that it applies to “fighting words.”
44

K.S.A. § 21-6203(a), (c).

45

United States v. McKinney, 9 F. App’x 887, 889 (10th Cir. 2001) (quoting State v. Heiskell, 666 P.2d
207, 211 (Kan. Ct. App. 1983)).
46

Id.

11

provoke a violent reaction.”47 Although police officers can be victim to fighting words, the
“First Amendment protects a significant amount of verbal criticism and challenge directed at
police officers.”48 “Thus, ‘it is [not] objectively reasonable to arrest someone for . . . criticizing
the police,’ and ‘not every epithet directed at a police officer constitutes ‘disorderly conduct.’”49
As another judge of this Court has explained,
The fighting words doctrine has an even narrower
application where, as here, an individual’s speech offends a
police officer. This is because a properly trained police
officer may reasonably be expected to exercise a higher
degree of restraint than the average citizen, and thus be less
likely to respond belligerently to fighting words.50
In United States v. McKinney, the Tenth Circuit reversed the conviction of a defendant
for disorderly conduct, where the defendant had aggressively maneuvered her car toward a
military police officer and then repeatedly told him to “go f*** himself” when asked to identify
herself.51 The Tenth Circuit found that while “tasteless and undoubtedly offensive to many, [the
defendant’s] words would not provoke the average person to retaliate under the circumstances”
because she did not threaten or offer to fight the officer.52 Rather, her words were “the R-rated
equivalent of other commonly used phrases, such as ‘buzz off,’ ‘go away,’ ‘leave me alone,’ and

47

McCormick v. City of Lawrence, 325 F. Supp. 2d 1191, 1200 (D. Kan. 2004) (quoting Cohen v.
California, 403 U.S. 15, 20 (1971)).
48

Houston v. Hill, 482 U.S. 451, 461 (1987).

49

Stearns v. Clarkson, 615 F.3d 1278, 1283 (10th Cir. 2010) (quoting Elbrader v. Blevins, 757 F. Supp.
1174, 1181, 1182 (D. Kan. 1991)).
50

McCormick v. City of Lawrence, No. 02-2135-JWL, 2008 WL 1793143, at *18 (D. Kan. Apr. 18, 2008)
(citing Chaplinsky, 315 U.S. at 571–72).
51

McKinney, 9 F. App’x at 889.

52

Id.

12

get lost.’”53 Similarly, in Stearns v. Clarkson, the Tenth Circuit found no probable cause for the
arrest of a man who, on the day previous to his arrest, had been “loud, belligerent, smelled of
alcohol, and pointed his finger at [the officer] while using profanity.”54 Specifically, the plaintiff
in Stearns had referred to an officer as “probably the mother f***** that shot my dad.”55 In
analyzing the defendant’s qualified immunity defense, the Tenth Circuit found that “at the time
[the defendant] ordered the arrest . . . it was well-settled that profanity, especially toward police
officers, does not amount to a violation of the disorderly conduct statute unless it constitutes
‘fighting words.’”56 Where the plaintiff made no threat against the defendant, the defendant had
no probable cause to arrest the plaintiff for disorderly conduct.57
The Court must consider the totality of the circumstances surrounding Plaintiff’s conduct
and remarks when analyzing whether Defendant had probable cause to arrest him for disorderly
conduct.58 Plaintiff alleges that he directed obscene words and an obscene gesture toward his
neighbor, who was not present, rather than toward Defendant, a trained police officer. Although
Plaintiff concedes that he was “loud” and in “close proximity” to Defendant when shouting
toward his neighbor’s house, there is no allegation that Plaintiff said more than “F*** that,
mother*****,” words very similar to those used in McKinney and Stearns. While Plaintiff’s
behavior was certainly distasteful, the Court cannot find that Defendant could have reasonably
believed—based on clearly established law at the time—that he had probable cause to arrest

53

Id.

54

Stearns, 615 F.3d at 1283.

55

Id. at 1280.

56

Id. at 1283.

57

Id. at 1284.

58

McKinney, 9 F. App’x at 888 (citing State v. Beck, 682 P.2d 137, 140 (Kan. Ct. App. 1984)).

13

Plaintiff for disorderly conduct. Defendant is therefore not entitled to qualified immunity from
Plaintiff’s claim for unreasonable seizure under the Fourth and Fourteenth Amendments.59
2.

First Amendment Retaliation Claim

For essentially the same reasons discussed above with respect to Plaintiff’s unreasonable
seizure claim, Defendant is not entitled to qualified immunity from Plaintiff’s claim that
Defendant retaliated against him for exercising his First Amendment right of free speech. Where
the government defendant is not the plaintiff’s employer, First Amendment retaliation claims are
analyzed according to the standard set forth in Worrell v. Henry.60 This standard requires proof
of the following elements:
(1) that the plaintiff “was engaged in constitutionally
protected activity”; (2) that the defendant’s actions caused
the plaintiff “to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that
activity”; and (3) that the “defendant’s adverse action was

59

Defendant argues that he is entitled to qualified immunity because “although [Plaintiff’s] conviction was
later overturned, at minimum, the Municipal Court Judge felt there were facts sufficient to convict Plaintiff of
‘disorderly conduct.’” Doc. 5 at 8. Although not cited by Defendant, the Court acknowledges decisions of other
judges of this Court finding that under Kansas law, “the conviction of the accused by a magistrate or trial court,
although reversed by an appellate tribunal, conclusively establishes the existence of probable cause” for the
purposes of qualified immunity. Elbrader v. Blevins, 757 F. Supp. 1174, 1178 (D. Kan. 1991) (citing Restatement
(Second) of Torts § 667(1) (1977)); see also Mason v. Stock, 955 F. Supp. 1293, 1307 (D. Kan. 1997). The Court
declines to follow these cases in light of precedent from the Supreme Court and the Tenth Circuit finding that a
§1983 suit challenging the validity of an arrest may proceed where “the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of habeas corpus . . . .” Heck v.
Humphrey, 512 U.S. 477, 486–87 (1994); see also Martinez v. City of Albuquerque, 184 F.3d 1123, 1125–27 (10th
Cir. 1999) (finding that federal § 1983 suit was barred to the extent it challenged the lawfulness of arrest and
conviction where conviction was on appeal and had not been overturned); Rogers v. Carter, 133 F.3d 1114, 1117
(8th Cir. 1998) (“We . . . reject appellee’s specious argument that the conviction of [appellant] in municipal court is
a complete defense to [appellant’s] Fourth Amendment unlawful arrest claim . . . [where] the initial ‘conviction’ was
subsequently overturned upon a finding of innocence following a trial on the merits in a court of competent
jurisdiction.”) (internal citations omitted); McCoy v. Meyers, No. 12-3160-SAC, 2012 WL 4903366, at *3 (D. Kan.
Oct. 16, 2012) (“[A] claim for damages is not cognizable under § 1983 where a judgment in plaintiff’s favor would
necessarily imply the invalidity of his conviction or sentence, unless the prisoner can show that the prior conviction
had previously been invalidated.”) (citing Heck, 512 U.S. at 486–87). Allowing Plaintiff to proceed with his § 1983
claims in this case would not render a prior sentence or conviction invalid, as Plaintiff was ultimately found not
guilty following a bench trial before the Cherokee County District Court. See Doc. 2 ¶¶ 14–15.
60

Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000).

14

substantially motivated as a response to the plaintiff’s
exercise of constitutionally protected conduct.”61
Under the qualified immunity framework discussed above, the Court must examine “first,
whether plaintiff has established a constitutional violation under the three-part Worrell standard
and, second, whether the law was clearly established such that a reasonable [officer] would have
understood that what he or she was doing amounted to a violation of [Plaintiff’s] constitutional
rights.”62
As to the first element of the Worrell test, the Court finds that Plaintiff’s speech is
protected by the First Amendment because it did not constitute fighting words. “As the Supreme
Court observed in Hill, speech is often provocative and challenging, but it is nevertheless
protected unless it is shown likely to produce a ‘clear and present danger or a serious substantive
evil that rises far above public inconvenience, annoyance, or unrest.’”63 Thus, fighting words are
limited to “epithets (1) directed at the person of the hearer, (2) inherently likely to cause a violent
reaction, and (3) playing no role in the expression of ideas.”64 In fact, “[t]he freedom of
individuals verbally to oppose or challenge police action without thereby risking arrest is one of
the principal characteristics by which we distinguish a free nation from a police state.”65
Although Defendant points to the case of McCormick v. City of Lawrence to support his
argument that Plaintiff engaged in fighting words, that case is distinguishable because it involved

61

Id. at 1212 (quoting Lackey v. Cty. of Bernalillo, No. 97-2265, 1999 WL 2461, at *3 (10th Cir. Jan. 5,
1999) (unpublished)).
62

McCormick, 2008 WL 1793143, at *18.

63

Id. (quoting Hill, 315 U.S. at 461).

64

Id. (citing Burns v. Bd. of Cty. Comm’rs, 330 F.3d 1275, 1285 (10th Cir. 2003)).

65

Id. (quoting Hill, 315 U.S. at 462–63); see also McKinney, 9 F. App’x at 889 (noting that plaintiff “has a
constitutional right to voice her objections to [an] officer’s inquiries”).

15

a plaintiff who persistently goaded and personally insulted police officers while they were in the
process of conducting investigations.66 Unlike the speech considered in McCormick, the speech
at issue here does not rise to the level at which a reasonable officer would be provoked to a
violent reaction. This matter is more akin to a second case involving the same plaintiff as in
McCormick, where Judge Lungstrum of this Court found material issues of fact precluding
summary judgment on qualified immunity grounds where the plaintiff called the defendant
officer a “cognitively impotent pig.”67 Judge Lungstrum found it unlikely that the plaintiff’s
“chiding posed such a clear and present danger that it was inherently likely to produce a violent
reaction from [the officer], whose professional duty is to uphold the peace.”68
Defendant also relies on the case of Leverington v. City of Colorado Springs,69 in which
the Tenth Circuit affirmed the district court’s dismissal of the plaintiff’s First Amendment
retaliation claim against a city police officer on the basis of qualified immunity. In Leverington,
the defendant officer stopped the plaintiff—a cardiac nurse—for speeding, and their interactions
during the traffic stop became hostile. When the defendant gave the plaintiff a traffic citation,
she told him that she hoped “she never had him as a patient.”70 The defendant reported the
plaintiff’s threat to her employer, and the plaintiff was fired from her job as a result.71 The Tenth
Circuit held that because it was “debatable whether a reasonable officer in [the defendant’s]
66

McCormick, 325 F. Supp. 2d at 1196-99, 1201 (finding that plaintiff had engaged in “fighting words”
where he repeatedly taunted officers while they were working on police matters unrelated to plaintiff, calling them,
among other things, “f***ing pigs,” “oppressive, sick a**holes,” “jack-booted thugs,” “Gestapo,” and “pieces of
sh*t.”).
67

McCormick, 2008 WL 1793143, at *19.

68

Id.

69

643 F.3d 719 (10th Cir. 2011).

70

Id. at 722.

71

Id.

16

position would have considered [the plaintiff’s] statement to be a threat” unprotected by the First
Amendment, the plaintiff’s free speech rights were not clearly established under the
circumstances at issue and the defendant was entitled to qualified immunity.72 In this case,
Plaintiff’s foul words and gesture directed toward his neighbor were not a threat of future bodily
harm toward Defendant as in Leverington, nor were they the type of epithets that would
inherently invoke a violent reaction in a trained police officer. The cases cited by Defendant do
not convince the Court that Plaintiff’s speech lacked First Amendment protection.
Regarding the second Worrell element, the Court finds that Defendant’s alleged
actions—injuring Plaintiff by forcefully grasping him and throwing him onto the street, and then
arresting him—would be sufficient to chill a person of ordinary firmness from continuing to
express protected speech. The Court also finds that the third Worrell element is met because
Defendant’s actions were motivated by Plaintiff’s exercise of his free speech rights, given that no
time elapsed and no other conduct occurred between Plaintiff’s words and gesture and Defendant
throwing him onto the street. Plaintiff has established a constitutional violation with respect to
his First Amendment retaliation claim. Finally, based on the precedent discussed above
concerning the meaning of “fighting words,” the Court finds that at the time in question, the law
was clearly established such that Defendant should have known that his retaliatory actions would
violate Plaintiff’s rights.73 Accordingly, Defendant is not entitled to qualified immunity from
Plaintiff’s First Amendment retaliation claim.

72

Id. at 733.

73

See Hill, 482 U.S. at 461–62; McKinney, 9 F. App’x at 889; Stearns, 615 F.3d at 1283; McCormick, 2008
WL 1793143, at *23.

17

3.

Excessive Use of Force

Plaintiff alleges that Defendant used excessive force in arresting him in violation of the
Fourth and Fourteenth Amendments.74 In Graham v. Connor, the United States Supreme Court
held that claims that a police officer has used excessive force in the course of an arrest must be
analyzed under the Fourth Amendment’s “objective reasonableness” standard.75 Using that
standard—and keeping in mind that “that police officers are often forced to make split-second
judgments . . . about the amount of force that is necessary in a particular situation”—the Court
examines “whether the officer’s actions [were] objectively reasonable in light of the facts and
circumstances confronting [him], without regard to [his] underlying intent or motivation.”76 This
inquiry must be undertaken from “the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.”77 The Supreme Court has identified three factors to be
examined by courts analyzing claims of excessive force during an arrest: (1) “the severity of the
crime at issue,” (2) “whether the suspect pose[d] an immediate threat to the safety of the officer[]
or others; and (3) whether [the suspect was] actively resisting arrest or attempting to evade arrest
by flight.”78

74

Under Tenth Circuit law, “in cases involving claims of both unlawful arrest and excessive force arising
from a single encounter, it is necessary to consider both the justification the officers had for the arrest and the degree
of force they used to effect it. If the plaintiff can prove that the officers lacked probable cause, he is entitled to
damages for the unlawful arrest, which includes damages resulting from any force reasonably employed in effecting
the arrest. If the plaintiff can prove that the officers used greater force than would have been reasonably necessary
to effect a lawful arrest, he is entitled to damages resulting from that excessive force. These two inquiries are
separate and independent, though the evidence may overlap. The plaintiff might succeed in proving the unlawful
arrest claim, the excessive force claim, both, or neither.” Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir.
2007).
75

Graham v. Connor, 490 U.S. 386, 388, 394–95 (1989).

76

Id. at 397.

77

Id. at 396.

78

Id.

18

In this case, Plaintiff alleges that he was arrested by Defendant for the misdemeanor
offense of disorderly conduct after he made an obscene hand gesture and shouted obscenities
toward his neighbor’s house. The first Graham factor favors Plaintiff, given that disorderly
conduct is not a serious crime, but a Class C misdemeanor under Kansas law.79 The Court finds
that the second Graham factor also favors Plaintiff—although Plaintiff concedes that he was
“loud” and “in close proximity” to Defendant, he alleges that his words and gestures were not
directed toward Defendant, but toward his neighbor.80 There is no allegation that Plaintiff
verbally or physically threatened Defendant. Finally, the third Graham factor favors Plaintiff,
who alleges that in response to his obscene words and gestures, Defendant “with no prior
warning to Plaintiff, forcefully grasped Plaintiff and threw him onto the street. Plaintiff offered
no resistance to Defendant Qualls’ seizure.”81 Thus, taking Plaintiff’s allegations as true,
Plaintiff was neither actively resisting arrest nor was he attempting to flee. In fact, Plaintiff had
no warning prior to being thrown to the ground. Analyzing the circumstances of this case
according to the framework of the Graham factors, the Court finds that Plaintiff has alleged facts
sufficient to establish a violation of his Fourth and Fourteenth Amendment right against the use
of unreasonable force during arrest.
Having found that Plaintiff has sufficiently alleged a violation of his right to be free from
the use of excessive force, the Court must next examine whether that right was clearly
established under existing case law at the time in question, meaning that Defendant’s conduct
violated Plaintiff’s right under circumstances where “it would be clear to a reasonable officer

79

K.S.A. § 21-6203(b).

80

Doc. 2 ¶ 11.

81

Id. ¶ 12.

19

that his conduct was unlawful in the situation he confronted.”82 In determining whether
Plaintiff’s right was clearly established at the time in question, “a factually identical case is not
required, but ‘it must still be apparent to a reasonable officer in light of pre-existing law that his
conduct was unlawful.’”83 As the Tenth Circuit has explained,
Although the general factors outlined in Graham are
insufficiently specific to render every novel use of force
unreasonable, “[w]e cannot find qualified immunity
wherever we have a new fact pattern.” Thus, our circuit
uses a sliding scale to determine when law is clearly
established. Under this approach, “[t]he more obviously
egregious the conduct in light of prevailing constitutional
principles, the less specificity is required from prior case
law to establish the violation.” Relevant here, “Graham
establishes that force is least justified against nonviolent
misdemeanants who do not flee or actively resist arrest.”84
Although there does not appear to be a factually identical case from the Tenth Circuit,
there are Tenth Circuit cases finding that an officer’s use of force was justified based on factors
that are not present here, such as a warning to the plaintiff that he was under arrest,85 the plaintiff
actively resisting arrest,86 the plaintiff threatening the officer with physical assault,87 and the

82

Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S.
223, 235–37 (2009).
83

White v. Martin, 425 F. App’x 736, 744 (10th Cir. 2011) (quoting Thomas v. Durastanti, 607 F.3d 655,
669 (10th Cir. 2010)); see also Cavanaugh v. Woods Cross City, 625 F.3d 661, 666 (10th Cir. 2010) (noting that
“the qualified immunity analysis involves more than ‘a scavenger hunt for prior cases with precisely the same facts.’
In certain circumstances, law can be ‘clearly established’ even ‘without a body of relevant case law,’ and ‘even in
novel factual circumstances.’”) (internal citations omitted).
84

Fogarty v. Gallegos, 523 F.3d 1147, 1161 (10th Cir. 2008) (quoting Casey v. City of Fed. Heights, 509
F.3d 1278, 1284–85 (10th Cir. 2007)) (internal citations omitted).
85

Hinton v. City of Elwood, 997 F.2d 774, 781–82 (10th Cir. 1993).

86

Id.

87

Cruz v. Gutierrez, Nos. 99-2358, 99-2364, 2000 WL 1786743, at *4 (10th Cir. 2000) (unpublished).

20

officer using only a mild amount of force to accomplish the arrest.88 The facts here are in some
respects similar to the case of Cavanaugh v. Woods Cross City, in which the Tenth Circuit
affirmed the district court’s denial of the defendant’s motion for summary judgment on the §
1983 plaintiff’s claim for excessive use of force.89 In that case, officers responded to a nonemergency call from a man seeking help finding his wife, who had stormed out of their home
following a domestic dispute. Although the husband informed police that his wife had left home
with a kitchen knife, she was, in fact, unarmed. As one officer observed the woman walking
back toward the house, he began to follow her. When she veered away from him, the officer
discharged his taser into her back, causing her to fall and strike her head.90 The Tenth Circuit
affirmed the district court’s denial of summary judgment, finding that the officer’s use of force
was not objectively reasonable.91 Although the use of a taser is almost certainly more extreme
than the use of bodily force at issue here (i.e., forcefully grasping Plaintiff and throwing him
onto the ground), both can be said to “‘seize’ the victim in an abrupt and violent manner.”92
Further, the Tenth Circuit noted that like Plaintiff in this case, the plaintiff in Cavanaugh was not
actively fleeing or resisting arrest and, in fact, had no reason to suspect that she was under arrest
and no chance to comply with the officer’s demands.93 The court noted that “[t]he absence of

88

Bryner v. Utah, 429 F. App’x 739, 745–47 (10th Cir. 2011) (unpublished).

89

Cavanaugh, 625 F.3d at 665–66.

90

Id. at 662–63.

91

Id. at 666.

92

Id. at 665.

93

Id.

21

any warning—or of facts making clear that no warning was necessary—makes the circumstances
of this case especially troubling.”94
Likewise, Plaintiff in this case was unarmed, made no attempt to flee or resist arrest, and
had no verbal warning that he was being arrested and no chance to comply before Defendant
grabbed him and threw him to the ground. The Court finds that under these circumstances, the
“nature and quality of the intrusion into the interests of [Plaintiff] protected by the Fourth
Amendment was quite severe.”95 Plaintiff’s right to be free from aggressive physical force
without a prior warning and when not resisting arrest was settled at the time in question and
Defendant’s use of force was objectively unreasonable under clearly established law.96 Plaintiff
has alleged sufficient facts to survive Defendant’s motion to dismiss with respect to excessive
use of force.
B.

State-Law Claims

The Court finds that it has supplemental jurisdiction to hear Plaintiff’s state-law
constitutional claims, which arise from the same nucleus of fact as—and are parallel to—his
federal constitutional claims. All of Plaintiff’s claims arise out of the same incident on July 1,

94

Id. at 665 (quoting Casey, 509 Fd.3d at 1285).

95

Id. (internal quotation marks omitted).

96

Cases from other courts support a finding that Defendant should have known that his conduct was
unlawful based on established law at the time. See, e.g., Brown v. Lewis, 779 F.3d 401, 419 (6th Cir. 2015) (finding
that “pulling compliant detainee out of car and throwing her to ground in process of handcuffing her is clearly
established excessive force”); Small v. McCrystal, 708 F.3d 997, 1005–06 (8th Cir. 2013) (finding officer was not
entitled to summary judgment based on qualified immunity where he had not advised plaintiff that he was under
arrest, plaintiff did not resist arrest, and officer tackled plaintiff from behind without prior warning); Johnson v.
Carroll, 658 F.3d 819, 827 (8th Circuit 2011) (finding material issue of fact precluding summary judgment in favor
of officers on qualified immunity grounds where officers threw the plaintiff to the ground without warning, then
used mace, when she repeatedly interfered with their attempt to arrest her nephew but made no physical threat
toward officers); Bauer v. Norris, 713 F.2d 408, 412–13 (8th Cir. 1983) (finding even minor use of force supported
jury verdict of excessive use of force where plaintiffs were arrested for misdemeanor crime of disorderly conduct
and did not resist arrest or threaten officer, even where one plaintiff was “argumentative, vituperative, and
threatened legal action” because “such verbal abuse alone does not justify the use of any force.”).

22

2015, during which Defendant allegedly violated Plaintiff’s rights to free speech and to be free
from unreasonable seizure. Having exercised its discretion to hear these state-law claims,
however, the Court finds that they must be dismissed under Rule 12(b)(6) because Plaintiff’s
Complaint sets forth no “plausible [state-law] claim . . . to survive a motion to dismiss.”97
Further, Plaintiff’s Motion to Amend his Complaint is denied as futile for the reasons set forth
below.
Plaintiff alleges that Defendant violated his right to free speech and his right to be free
from unreasonable seizure under Sections 11 and 15 of the Kansas Bill of Rights, respectively,
and that these “causes of action are authorized and his damages compensable . . . under state law
by the Kansas Tort Claims Act, K.S.A. 75-6101, et seq.”98 Plaintiff cites no particular provision
of the KTCA as the source of his claims, and seeks monetary damages rather than injunctive or
declaratory relief. While § 1983 is a federal statute expressly authorizing a private right of
action for state deprivations of federal rights, “an alleged violation of a state constitution cannot
form the basis of a § 1983 claim. That section provides remedies only for deprivation of rights
secured by the United States Constitution.”99 Plaintiff’s state-law causes of action are not
cognizable because Kansas law does not permit a claim for monetary damages brought directly
under the Kansas Constitution.100 Plaintiff has not identified any Kansas statute analogous to §

97

Morman v. Campbell Cty. Mem’l Hosp., 632 F. App’x 927, 932 (10th Cir. 2015) (citing Ashcroft v. Iqbal,
556 U.S. 662, 678–79 (2009) (unpublished)).
98

Doc. 2 ¶ 5.

99

Jackson v. City of Overland Park, No. 11-2527-CM-DJW, 2012 WL 1231848, at *6 (D. Kan. Apr. 11,

2012).
100

Prager v. Kan. Dept. of Revenue, 20 P.3d 39, 64 (Kan. 2001) (“[Plaintiff] has failed to cite any Kansas
case permitting a private person or entity to be found liable for money damages for interfering with someone’s right
of free speech under either the United States or Kansas Constitutions. In those cases where the issue has arisen,
Kansas has so far rejected Bivens-type actions . . . for damages based directly under the Constitution without

23

1983 that would allow a damages action for the violation of the State’s constitution, nor has he
established that Kansas would permit the equivalent of a Bivens suit, which is an action for
damages in federal court permitted directly under the Fourth Amendment without a federal
authorizing statute.101, 102
Plaintiff cites three cases from the Supreme Court of Kansas—one from 1917 and two
from 1974—to support his contention that he “has a remedy for an unreasonable seizure under
the state constitution.”103 Plaintiff does not, however, meaningfully explain how these cases
support a claim for monetary damages arising directly under the Kansas Bill of Rights. Plaintiff

implementing legislation.”) (citing Goldbarth v. Kan. State Bd. of Regents, 9 P.3d 1251 (Kan. 2000); Gross v.
Capital Elec. Line Builders, Inc., 861 P.2d 1326 (Kan. 1993); Sharp v. State 783 P.2d 343 (Kan. 1989), cert denied
498 U.S. 822 (1990)).
101

Id.; Brooks v. Sauceda, 85 F. Supp. 2d 1115, 1128 (D. Kan. 2000) (“Plaintiff provides no authority . . .
that Kansas would allow plaintiff to bring a state-based analogy to a Bivens suit, i.e., a claim for monetary damages
brought directly under the Kansas Constitution.”) (citing Sharp v. State, 783 P.2d at 347; Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)).
102

The rule is the same in many other states. See, e.g., McMillion-Tolliver v. Kowalski, Civil Action No.
2:13-cv-29533, 2014 WL 1329790, at *2 (S.D.W.V. Apr. 1, 2014) (finding that “[w]ithout an independent statute
authorizing money damages for violations of the West Virginia Constitution, the plaintiff’s claims must fail.”);
Corbett v. Transp. Sec. Admin., 968 F. Supp. 2d 1171, 1191 (S.D. Fla. 2012) (stating that in Florida, there is no
cause of action for money damages for violation of a state constitutional right); Kitko v. Young, Civil Action No.
3:10-189, 2012 WL 399981, at *6 (W.D. Pa. Feb. 7, 2012) (noting that “neither federal courts nor Pennsylvania state
courts have recognized a cause of action for monetary damages for violations of the Pennsylvania Constitution”);
Mata-Cuellar v. Tenn. Dept. of Safety, No. 3:10-0619, 2010 WL 3122635, at *2 (M.D. Tenn. Aug. 6, 2010) (“It is
well settled that there is no viable cause of action for money damages for violations of the Tennessee
Constitution.”); Bradford v. Bracken Cty., Civil Action No. 09-115-DLB, 2010 WL 11520681, at *5 (E.D. Ky. Feb.
1, 2010) (“[A]bsent some directive from the legislature or the Kentucky Supreme Court, this Court is not at liberty
to create a cause of action where one does not exist. There exists no statute under which private litigants are
authorized to pursue a cause of action against government officials for the violation of their rights under the
Kentucky Constitution, and there is not a Kentucky decision expressly holding that such a right exists.”); Fowler v.
U.S. Bank Nat’l Ass’n, No. C07-5589RBL, 2007 WL 4562900, at *2 (W.D. Wash. Dec. 20, 2007) (noting that
Washington courts have rejected invitations to establish a cause of action for damages based upon violations of
state constitution in the absence of legislation permitting such actions); but see Faulks v. City of Hartford, Civil
Action No. 3:08-cv-270 (VLB), 2010 WL 259076, at *8–9 (D. Conn. Jan. 19, 2010) (recognizing that while the
Connecticut Supreme Court is reluctant to create causes of action for money damages under the Connecticut
Constitution, whether to allow a Bivens-type suit for violation of the state constitution is determined on a case-bycase basis based on the constitutional provision at issue and the nature of the alleged unconstitutional conduct)
(citing Binette v. Sabo, 710 A.2d 688 (1998)).
103

Doc. 10 at 10.

24

first cites the 100-year-old case of State v. Wilson,104 in which a retail agent appealed his
conviction for violating a state statute that forbid the provision of “trading stamps” (i.e., coupons
redeemable in cash or merchandise) to customers without the payment of a license fee. Wilson
claimed that his conviction was invalid because the statute violated the Kansas Constitution’s
due process and equal protection provisions.105 The Supreme Court of Kansas found that the
statute did not violate the Kansas Constitution, and that the state legislature had the power to
require the payment of a license fee when permitting a practice that could be injurious to the
public.106 Plaintiff does not explain how this case supports his claim for monetary damages
under the Kansas Bill or Rights other than to say that the court “found an enforceable right to
suppression of evidence under the state constitution.”107 The Court does not read State v. Wilson
to say what Plaintiff claims, but even if the case was as Plaintiff describes, it still would not
support his legal theory here.
Similarly, the cases of Manzanares v. Bell108 and Henry v. Bauder109 do not support
Plaintiff’s argument. In both of those cases, the Supreme Court of Kansas examined the
constitutionality—under the United States and Kansas Constitutions—of state statutes relating to
automobile insurance coverage and liability, rather than the viability of a claim for money
damages arising directly under the Kansas Constitution. In Manzanares, the court considered
and rejected due process and equal protection challenges to Kansas’s no-fault automobile

104

168 P. 679 (Kan. 1917).

105

Id. at 680, 682.

106

Id. at 682–84.

107

Doc. 10 at 10.

108

522 P.2d 1291 (Kan. 1974).

109

518 P.2d 362 (Kan. 1974).

25

insurance act.110 In Henry, the Supreme Court of Kansas found that the Kansas automobile guest
statute was unconstitutional and void on equal protection grounds.111 Neither of these cases
supports Plaintiff’s contention that Kansas permits claims for monetary damages brought directly
under the Kansas Constitution.
Plaintiff also points to K.S.A. § 21-5227 (formerly K.S.A. § 21-3215(1)) to support his
state-law constitutional claims. In relevant part, this statute provides that an officer is “justified
in the use of any force which such officer reasonably believes to be necessary to effect the arrest
and the use of any force which such officer reasonably believes to be necessary to defend the
officer's self or another from bodily harm while making the arrest.”112 The Supreme Court of
Kansas has explained:
As we view [this statute], it follows the majority rule
concerning arrests of misdemeanants. It allows a law
enforcement officer to use any force he or she believes
necessary to effect an arrest, but prohibits the use of force
which is likely to cause death or great bodily harm except
to prevent death or great bodily harm to the officer or
another person. . . . The purpose of the statute is to set
limits for law enforcement officers, and if the limits are
observed an officer has a defense in a criminal action. We
see no reason why the civil liability of a law enforcement
officer should not be coextensive with his or her criminal
liability.113
Thus, while K.S.A. § 21-5227 guides the determination of an officer’s criminal or civil liability
for use of force, cases in which this statute is invoked deal with state-law tort claims such as

110

Manzanares, 522 P.2d at 1295.

111

Henry, 518 P.2d at 363.

112

K.S.A. § 21-5227(a).

113

Dauffenbach v. City of Wichita, 667 P.2d 380, 387 (Kan. 1983).

26

false imprisonment, assault, battery, negligence, and wrongful death.114 Plaintiff has not cited,
and the Court has not found, any case in which K.S.A. § 21-5227 has been held to authorize a
claim for monetary damages brought directly under the Kansas Bill of Rights.
Plaintiff’s attempt to bring such claims under the umbrella of the KTCA is likewise
unavailing. Although Plaintiff broadly asserts that he brings his state-law constitutional claims
pursuant to the KTCA, “[t]he KTCA creates no new cause of action beyond what is already
available under Kansas law, and there can be no greater liability under the KTCA than a private
person would have under Kansas law.”115 Rather than creating new causes of action, the KTCA
was enacted “to transform the approach to governmental liability by waiving the sovereign
immunity of the state and imposing on governmental entities within the state liability for the torts
of their employees in the same manner as a private employer.”116 As the Kansas Supreme Court
has explained when analyzing damages claims for alleged violations of free speech rights
asserted under the United States and Kansas Constitutions:
[T]he KTCA provided only for liability where the
governmental entity, if a private person, would be liable
under the laws of this state. Because there is no statutory
or common-law cause of action in Kansas by which a
private person may be liable for damages for
deprivation of a person’s constitutional rights, neither

114

See, e.g., Simpson v. Kansas, 593 F. App’x 790, 798 (10th Cir. 2014) (false imprisonment claim under
KTCA); Fry ex rel. Estate of Fry v. City of Galena, 450 F. Supp. 2d 1236, 1246 (D. Kan. 2006) (wrongful death
claim premised on either battery or negligence under Kansas law); Sudac v. Hoang, 378 F. Supp. 2d 1298, 1311 (D.
Kan. 2005) (wrongful death claim based on alleged negligent, wanton, or willful use of force); Berry v. City of
Phillipsburg, 796 F. Supp. 1400, 1408–09 (D. Kan. 1992) (assault and battery).
115

Prager v. Kan. Dept. of Revenue, 20 P.3d 39, 62 (Kan. 2001) (citing K.S.A. § 75-6103; McAllister &
Robinson, The Potential Civil Liability of Law Enforcement Officers and Agencies, 67 J.K.B.A. 14, 16 (Sept.
1998)).
116

William E. Westerbeke, The Immunity Provisions in the Kansas Tort Claims Act: The First TwentyFive Years, 52 U. Kan. L. Rev. 939, 944 (2004).

27

the [State nor the State’s employee] could be liable for
[the plaintiff’s] claims under the KTCA.117
Thus, the Kansas Legislature did not create a cause of action for a “constitutional tort” in
enacting the KTCA,118 and Plaintiff fails to state a claim for monetary damages either directly
under the Kansas Constitution or under the KTCA.
C.

Motion to Amend

Because Plaintiff’s state-law causes of action are dismissed for failure to state a claim, his
Motion to Amend must be denied as futile. Defendant argues that this Court lacks subject matter
jurisdiction to hear Plaintiff’s state-law claims because Plaintiff has failed to allege compliance
with K.S.A. § 12-105b(d), which provides that “[a]ny person having a claim against a
municipality or against an employee of a municipality which could give rise to an action brought
under the Kansas tort claims act shall file a written notice as provided in this subsection before
commencing such action. . . .” Although Plaintiff argues in his opposition to Defendant’s motion
to dismiss that such notice is not required where the party sued is a municipal employee rather
than the municipality itself, he nonetheless seeks leave to amend his Complaint by adding the
allegation that “[p]ursuant to K.S.A. § 12-105b the City of Baxter Springs, Kansas was served a
notice of this claim on or about January 28, 2016.”119 Defendant contends that Plaintiff’s motion
to amend should be denied as futile because Plaintiff’s amended complaint would allege only
that he provided notice of claims against the City of Baxter Springs, rather than against
Defendant Qualls, and that his state-law claims would still be subject to dismissal for lack of
jurisdiction due to Plaintiff’s failure to provide the required statutory notice.

117

Prager, 20 P.3d at 61 (emphasis added).

118

Id. at 62.

119

Doc. 12 at 4.

28

The Court agrees with Defendant that compliance with K.S.A. § 12-105b(d) “is required
before a court has subject matter over a tort claim against a municipality.”120 The Court also
agrees with Defendant that Plaintiff’s proposed amendment is futile, but not for the reason that
Defendant asserts. Rather, Plaintiff is correct that he was not required to provide statutory notice
for a lawsuit only against a municipal employee as opposed to the municipality itself.121 The
case that Plaintiff relies upon, King v. Pimentel,122 was expressly overruled by the Supreme
Court of Kansas in the 2014 case of Whaley v. Sharp, in which that court held that “the
jurisdictional bar . . . unambiguously applies only to lawsuits against municipalities. Failure to
comply with the statute does not deprive a district court of jurisdiction over a lawsuit against a
municipal employee.”123 Thus, if Plaintiff had asserted viable state-law claims against
Defendant Qualls, his failure to provide statutory notice of those claims—either to Defendant
Qualls or to the City of Baxter Springs—would not have doomed his claims. However, as set
forth above, Plaintiff has not asserted viable state-law claims and, therefore, the proposed
amendment to his Complaint would be futile. Plaintiff’s Motion to Amend is denied.124
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion to
Dismiss for Failure to State a Claim (Doc. 4) is denied as to Plaintiff’s federal claims arising

120

Whaley v. Sharp, 343 P.3d 63, 67 (Kan. 2014).

121

Id. at 69.

122

King v. Pimentel, 890 P.2d 1217 (Kan. 1995), overruled by Whaley, 343 P.3d at 69.

123

Whaley, 343 P.3d at 69.

124

The KTCA does provide that subject to certain limitations, exceptions, and time restrictions, a municipal
employee may request that his employer provide for the defense of a civil action against him in his official capacity,
individual capacity, or both, where he “could be subject to civil liability on account of a noncriminal act or omission
which is within the scope of the employee’s employment and which allegedly violates the civil rights laws of the
United States or of the State of Kansas . . . .” K.S.A. § 75-6116(a); K.S.A. § 75-6108. These provisions do not
convert an action against an employee into an action against a municipality with respect to the notice required, nor
do they establish a cause of action for monetary damages based on alleged violations of the Kansas Constitution.

29

under 42 U.S.C. § 1983, but granted as to Plaintiff’s state-law claims purportedly arising under
Sections 11 and 15 of the Kansas Bill of Rights and the Kansas Tort Claims Act. Plaintiff’s
Motion to Amend Complaint (Doc. 12) is denied as futile.
IT IS SO ORDERED.
Dated: December 1, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

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