Petitt v. Campbell et al
MEMORANDUM AND ORDER granting 15 Partial Motion to Dismiss. See Order for details. Signed by Chief District Judge Julie A Robinson on 10/5/17. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMIE KAY PETITT,
Case No. 17-2366-JAR-KGG
CITY OF VALLEY FALLS, KANSAS, et al.,
MEMORANDUM AND ORDER
Plaintiff Jamie Petitt brought this action against the City of Valley Falls, Kansas (“the
City”), Chief of Police Bronson Campbell, and the City Council members and Mayor under 42
U.S.C. § 1983, alleging violation of her First Amendment rights by “instigating and inducing”
the County Attorney to file charges against Petitt arising out of a complaint she made to the City
about Defendant Chief Campbell. Plaintiff also claims Defendants violated her rights under the
Fourth Amendment for her malicious prosecution. Before the Court is the Partial Motion to
Dismiss filed by Defendants Charlie Stutesman, Andy Dinger, Michael Trower, Betsy
Doughramaji, John Thomas, Lucy Thomas and Michael Hahn (collectively the “Governing
Body”) pursuant to Fed. R. 12(b)(6) and 12(c) (Docs. 15). Plaintiff has failed to respond to the
motions and the time to do so has expired. The motion can therefore be granted for failure to file
a response. The motion can also be granted on the merits, as described more fully below.
Failure to Respond
Plaintiff failed to file a response to the motions to dismiss and the time to do so has
expired.1 Under D. Kan. Rule 7.4,
See D. Kan. R. 6.1(d)(2) (requiring a response to a dispositive motion to be filed within twenty-one days).
Absent a showing of excusable neglect, a party or attorney who
fails to file a responsive brief or memorandum within the time
specified in D. Kan. Rule 6.1(d) waives the right to later file such
brief or memorandum. If a responsive brief or memorandum is not
filed within the Rule 6.1(d) time requirements, the court will
consider and decide the motion as an uncontested motion.
Ordinarily, the court will grant the motion without further notice.
As a result of Plaintiff’s failure to respond, the Court may grant Defendants’ motions to dismiss
Motion to Dismiss
The Court also finds that the Complaint must be dismissed as to the Governing Body
Defendants on the merits for the reasons identified in Defendants’ partial motion to dismiss. As
set forth in Plaintiff’s Complaint, at the time of the alleged events, Defendants Stutesman,
Dinger, Trower, Doughramaji, Thomas, and Hahn were elected officials of the City Council;
Stutesman was Mayor. On or about October 9, 2015, Chief Campbell prepared a sworn affidavit
in which he stated that Plaintiff had committed or planned to commit a crime of harassment of
another person by telecommunication device. Chief Campbell sent that affidavit to the County
Attorney of Jefferson County, Kansas. Plaintiff claims that Chief Campbell knew or had reason
to know that the statements in the affidavit were false. Plaintiff claims she was arrested as a
result of the false affidavit.
Later, Plaintiff and other residents of the City organized a Facebook chatroom in which
the issue of Chief Campbell’s alleged unconstitutional activities, including his arrest of residents
without probable cause, posting arrestees’ mugshots on Facebook, calling arrestees’ employers
and landlords to discuss information about crimes arrestees were charged with, and urging
employers to fire arrestees and landlords to evict arrestees, were discussed. Defendant Dinger
joined the Facebook chatroom and encouraged participants who had complaints concerning
Chief Campbell to voice their complaint at a City Council meeting or file a formal complaint
with the City. On November 4, 2016, Plaintiff filed a written complaint against Chief Campbell
with the City Clerk. On January 4, 2017, the Governing Body held an executive session to
discuss Plaintiff’s complaint, then returned to open session and unanimously voted that the
complaint was not warranted and to send information to the County Attorney “for possible
prosecution.” The County Attorney subsequently filed charges against Plaintiff for interfering
with law enforcement by falsely reporting information. An arrest warrant was issued and
Plaintiff was arrested on those same charges, which were ultimately dismissed. Plaintiff alleges
that her arrest was without probable cause and was instigated by the Governing Body members
and Mayor. She claims her rights under the First and Fourth Amendment were violated.
First, to the extent they are sued in their individual capacities, it appears that the
Governing Body Defendants enjoy legislative immunity, which attaches to all actions taken in
the sphere of legitimate legislative activity.2 The Supreme Court has held city council members’
act of voting for an ordinance were “quintessentially legislative,” and thus protected by
legislative immunity.3 Because Plaintiff’s allegations stem from a vote to refer the matter of her
complaint to the County Attorney in retaliation for her making the complaint, the individual
Governing Body members enjoy absolute immunity. 4
Second, even assuming Plaintiff has a viable First or Fourth Amendment claim, the
Governing Body Defendants are entitled to qualified immunity. Government officials
performing discretionary duties are afforded qualified immunity shielding them from civil
Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998).
Id. at 55.
See Sable v. Myers, 563 F.3d 1120, 1126 (10th Cir. 2009) (applying Bogan in finding legislative immunity
applied to commencement of condemnation action allegedly in retaliation for landowners’ successful quiet-title
action against the City).
damages liability.5 Qualified immunity shields an individual government official so long as the
official’s conduct does not violate clearly established statutory or constitutional rights of which a
reasonable officer would have known.6 “Qualified immunity balances two important interests—
the need to hold public officials accountable when they exercise power irresponsibly and the
need to shield public officials from harassment, distraction, and liability when they perform their
duties reasonably.”7 Whether an official is protected by qualified immunity turns upon the
objective legal reasonableness of the official’s actions considered in light of the legal rules that
were clearly established at the time the official acted.8
Courts use a two-step analytical framework for analyzing claims of qualified immunity.
The court must determine whether a plaintiff has demonstrated both 1) that the defendant’s
actions violated the plaintiff’s constitutional or statutory rights; and 2) that the right was clearly
established at the time the conduct occurred.9 The court has discretion to address either step
first.10 Here, there is no robust case law suggesting that, under the facts alleged, the law was
clearly established at the time the Governing Body voted to refer the matter to the County
Attorney, that their actions violated Plaintiff’s First or Fourth Amendment rights.
Anderson v. Creighton, 483 U.S. 635, 638 (1987).
See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818
Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012).
Siegert v. Gilley, 500 U.S. 226, 231 (1991).
Weise v. Casper, 593 F.3d 1163, 1167 (10th Cir. 2010).
Finally, to the extent Plaintiff brings claims against Defendants in their official capacity,
the claims are subject to dismissal because Plaintiff has also sued the City, and therefore the
claims are redundant and should be dismissed.11
IT IS THEREFORE ORDERD BY THE COURT that Defendant Stutesman, Dinger,
Trower, Doughramaji, Thomas and Hahn’s Partial Motion to Dismiss (Doc. 15) is granted.
IT IS SO ORDERED.
Dated: October 5, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
Burns v. City Bd. Cnty. Comm. of the Cnty. of Jackson, 197 F. Supp. 2d 1278, 1296–97 (D. Kan. 2002);
Sims v. Unified Gov’t of Wyandotte Cnty./Kansas City, Kan., 120 F. Supp. 2d 938, 944 (D. Kan. 2000).
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