Humes v. Cummings et al
Filing
26
MEMORANDUM AND ORDER granting in part and denying in part 14 Motion to Dismiss for Failure to State a Claim; granting 16 Motion to Dismiss Count 6 of plaintiff's complaint. The court dismiss plaintiff's KTCA claim without prejudice. IT IS FURTHER ORDERED THAT plaintiff must file an amended complaint that asserts liability against the proper defendant in Count 5 within 10 days of the date of this Order. Signed by District Judge Daniel D. Crabtree on 9/25/2018. (ydm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
VERONICA HUMES,
Plaintiff,
v.
Case No. 18-2123-DDC-GEB
EDWARD T. CUMMINGS, et al.,
Defendants.
___________________________________
MEMORANDUM AND ORDER
On March 16, 2016, deputy sheriffs from the Leavenworth County Sheriff’s Department
responded to a report that plaintiff Veronica Humes had fired two gunshots at her neighbor.
After plaintiff refused to comply with the deputies’ commands to get on the ground, the deputies
tased and arrested her. Plaintiff brings this lawsuit under 42 U.S.C. § 1983 against the
Leavenworth County Sheriff’s Department, Andrew Dedeke (the Leavenworth County Sheriff)
in his official capacity, and five deputy sheriffs from the Leavenworth County Sheriff’s
Department in their individual capacities. Plaintiff alleges that defendants violated her First,
Fourth, and Fourteenth Amendment rights. She also asserts a negligence claim under the Kansas
Tort Claims Act (“KTCA”).
This matter comes before the court on two motions. First, defendants have filed a Motion
to Dismiss plaintiff’s § 1983 claims under Federal Rule of Civil Procedure 12(b)(6) for failing to
state a claim. Doc. 14. Second, defendants have filed a Motion to Dismiss plaintiff’s KTCA
claim under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
Doc. 16. For reasons explained below, the court grants part of defendants’ Motion to Dismiss
plaintiff’s § 1983 claims and denies the remainder. Also, the court grants defendants’ Motion to
Dismiss plaintiff’s KTCA claim because, as plaintiff concedes, she has not provided written
notice of her claim as Kan. Stat. Ann. § 12-105b(d) requires. The court thus dismisses plaintiff’s
KTCA claim but without prejudice.
I.
Factual Background
The following facts are taken from plaintiff’s Complaint (Doc. 1) and viewed in the light
most favorable to her. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (“We accept as true
all well-pleaded factual allegations in the complaint and view them in the light most favorable to
the [plaintiff].” (citation and internal quotation marks omitted)).
Plaintiff owns at least two properties in Leavenworth County, Kansas. One of those
properties—located at 215 Broad Street, Easton, Leavenworth County—neighbors the home of
Danny Clark. Plaintiff and Mr. Clark have had a “long standing property dispute.” Doc. 1 at 5
(Compl. ¶ 28). The two have engaged in many spats, resulting in multiple calls to and visits
from local law enforcement officials during the last two years.
On March 16, 2016, plaintiff contacted the Leavenworth County Sheriff’s Department
(“LCSD”) to report that Mr. Clark had been trespassing on her property at 215 Broad Street.
LCSD Deputy Jason Slaughter responded to the call. When Deputy Slaughter arrived at
plaintiff’s property, Mr. Clark emerged from the neighboring house and charged at plaintiff,
screaming “You fucking crazy bitch.” Id. at 5 (Compl. ¶ 30). Deputy Slaughter refused to
subdue Mr. Clark. Also, he declined plaintiff’s offer to show him footage from her security
camera showing Mr. Clark’s trespass. Citing the impossibility of determining the actual property
line separating the feuding neighbors, Deputy Slaughter refused to file a police report and left the
property without resolving the dispute.
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A few hours later, plaintiff visited her other property at 31298 Cemetery Road, Easton,
Leavenworth County, Kansas. About 9:00 p.m., plaintiff began walking back to the 215 Broad
Street property. While walking in the road, plaintiff saw a light in the field to her right. She
called out, asking who was there. Suddenly, a large vehicle reversed out of Mr. Clark’s property.
It drove toward plaintiff with bright, white lights shining at her. Blinded by the light, plaintiff
could not identify the vehicle or the person driving it.
A few seconds later, the driver stepped out of the vehicle and ordered plaintiff to get on
the ground. Plaintiff later learned that the driver was LCSD Deputy Eric J. Thorne. In response,
plaintiff put her hands in the air and asked repeatedly what was going on. Deputy Thorne
refused to answer plaintiff’s question. Instead, he pulled a gun, pointed it at plaintiff, and
threatened to shoot her if she did not comply with his instruction. Plaintiff asserts that she was
terrified, confused, and unable to see.
Suddenly, LCSD deputies surrounded plaintiff, as Deputy Thorne continued to order
plaintiff to get on the ground. Plaintiff asserts that the deputies became irate, even though she
posed no threat and the bright light was blinding her. Then, without any warning, justification,
or provocation, defendants fired their tasers at plaintiff. Plaintiff fell to the pavement, and the
deputies jumped on her. They pinned plaintiff’s head against the ground, pulled her arms behind
her back, and handcuffed her. Once detained, deputies transported plaintiff to the LCSD’s office
and placed her under arrest. Law enforcement officers told plaintiff that they were investigating
her for attempted murder of her neighbor, Mr. Clark, who had reported that plaintiff fired two
gunshots at him earlier that night.
Plaintiff asserts that defendants conspired or acted in concert to falsify their reports.
Plaintiff contends that the reports contain many contradictions and glaring omissions. Plaintiff
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also asserts that defendants made these false reports to convince the Leavenworth County
prosecutor to bring charges against plaintiff.
On March 17, 2016, the Leavenworth County prosecutor charged plaintiff with
aggravated assault and attempted animal cruelty based on Mr. Clark’s report to law enforcement.
On July 19, 2017, a unanimous jury acquitted plaintiff of these charges.
II.
Legal Standard
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
“Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis
to exercise jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citation
omitted). Federal district courts have original jurisdiction over all civil actions arising under the
constitution, laws, or treaties of the United States or where there is diversity of citizenship. 28
U.S.C. § 1331–32. “A court lacking jurisdiction cannot render judgment but must dismiss the
cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.”
Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citation omitted). Since
federal courts are courts of limited jurisdiction, the party invoking federal jurisdiction bears the
burden to prove it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Generally, a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ.
P. 12(b)(1) takes one of two forms: a facial attack or a factual attack. Holt v. United States, 46
F.3d 1000, 1002 (10th Cir. 1995). “First, a facial attack on the complaint’s allegations as to
subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial
attack on the complaint, a district court must accept the allegations in the complaint as true.” Id.
(citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)).
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“Second, a party may go beyond allegations contained in the complaint and challenge the
facts upon which subject matter jurisdiction depends.” Id. at 1003. “When reviewing a factual
attack on subject matter jurisdiction, a district court may not presume the truthfulness of the
complaint’s factual allegations.” Id. A court has wide discretion to allow affidavits, other
documents, and [to conduct] a limited evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1).” Id. (internal citations omitted); Los Alamos Study Grp. v. United States
Dep’t of Energy, 692 F.3d 1057, 1063–64 (10th Cir. 2012).
B. Motion to Dismiss for Failure to State a Claim
Fed. R. Civ. P. 8(a)(2) provides that a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Although this Rule “does
not require ‘detailed factual allegations,’” it demands more than “[a] pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” which, as the
Supreme Court explained, “will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must
assume that the factual allegations in the complaint are true. Id. (citing Twombly, 550 U.S. at
555). But the court is “‘not bound to accept as true a legal conclusion couched as a factual
allegation.’” Id. (quoting Twombly, 550 U.S. at 555). “‘Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice’” to state a claim for
relief. Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at 678).
Also, the complaint’s “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (citations omitted).
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For a complaint to survive a motion to dismiss under Rule 12(b)(6), the pleading “must
contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on
its face.’” Iqbal, 556 U.S. at 679 (quoting Twombly, 550 U.S. at 570). “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.” Id. at 678 (citing Twombly,
550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly,
550 U.S. at 556); see also Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188,
1192 (10th Cir. 2009) (“The question is whether, if the allegations are true, it is plausible and not
merely possible that the plaintiff is entitled to relief under the relevant law.” (citation omitted)).
III.
Analysis
The court first addresses defendants’ Motion to Dismiss Count 6 (Doc. 16). It then turns
to defendants’ Motion to Dismiss plaintiff’s § 1983 claims (Doc. 14).
A. Motion to Dismiss Count 6
Defendants ask the court to dismiss Count 6 of plaintiff’s Complaint—i.e., her negligence
claim asserted under the Kansas Tort Claims Act (“KTCA”), Kan. Stat. Ann. § 75-6103.
Defendants assert that the court lacks subject matter jurisdiction over this claim because plaintiff
never provided written notice of her claim. Also, defendants argue, the two-year statute of
limitations bars plaintiff’s negligence claim because she never provided the requisite notice
during the limitations period. Defendants thus ask the court to dismiss this claim with prejudice.
Kan. Stat. Ann. § 12-105b(d) requires a plaintiff to given written notice to a Kansas
municipality—including a county—before bringing a tort suit against it. See Kan. Stat. Ann. §
12-105b(d); see also Cano v. Denning, No. 12-2217-KHV, 2013 WL 322112, at *8 (D. Kan. Jan.
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28, 2013); Miller v. Brungardt, 916 F. Supp. 1096, 1099 (D. Kan. 1996). “This notice
requirement is a condition precedent to suit against a municipality.” Cano, 2013 WL 322112, at
*8 (citing Tucking v. Bd. of Comm’rs, 796 P.2d 1055, 1057 (Kan. Ct. App. 1990)). And, under
Fed. R. Civ. P. 9(c), a plaintiff must allege in her Complaint that she has provided the requisite
notice. See Fed. R. Civ. P. 9(c) (explaining that a pleading must “allege generally that all
conditions precedent have occurred or been performed”). Thus, under Kansas law, a court lacks
subject matter jurisdiction over a plaintiff’s tort claims when plaintiff fails to plead that she has
complied with Kan. Stat. Ann. § 12-105b(d). See, e.g., United States ex rel. Coffman v. City of
Leavenworth, 303 F. Supp. 3d 1101, 1133 (D. Kan. 2018); Coffman v. Hutchison Cmty. Coll.,
No. 17-4070-SAC, 2017 WL 4222981, at *4 (D. Kan. Sept. 22, 2017); Wanjiku v. Johnson Cty.,
173 F. Supp. 3d 1217, 1236 (D. Kan. 2016).
Plaintiff shoulders the burden to establish jurisdiction. But her Complaint never alleges
that she provided the requisite notice under Kan. Stat. Ann. § 12-105b(d). Also, her response to
defendants’ motion “concedes that she did not allege notice in her Complaint.” Doc. 23 at 1.
Thus, the court must dismiss plaintiff’s Count 6 for lack of subject matter jurisdiction.
But plaintiff asks the court to dismiss this claim without prejudice because “‘where the
district court dismisses an action for lack of jurisdiction . . . the dismissal must be without
prejudice.’” Debbrecht v. City of Haysville, No. 10-1419-JAR, 2012 WL 1080923, at *1 (D.
Kan. Mar. 29, 2012) (dismissing plaintiff’s state law claims for lack of jurisdiction without
prejudice based on plaintiff’s failure to comply with Kan. Stat. Ann. § 12-105b(d)’s notice
requirements (quoting Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006))).
Because the court lacks subject matter jurisdiction over plaintiff’s KTCA claim, the court
dismisses Count 6 without prejudice.
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B. Motion to Dismiss § 1983 claims
Defendants assert three arguments in their Motion to Dismiss. First, defendants argue,
the claims against LCSD fail as matter of law because the LCSD lacks the capacity to be sued.
Second, defendants contend, the Eleventh Amendment bars plaintiff’s official capacity claims
against Sheriff Dedeke. Finally, defendants assert that qualified immunity bars plaintiff’s § 1983
claims against the individual deputies.
In her response to defendants’ motion, plaintiff concedes that the LCSD lacks the
capacity to be sued. Also, she concedes that the Eleventh Amendment bars plaintiff’s claims
against Sheriff Dedeke in his official capacity. The court thus grants defendants’ Motion to
Dismiss plaintiff’s claims asserted against the LCSD and Sheriff Dedeke in his official capacity.
The court now turns to address the only remaining argument that it must decide: Does qualified
immunity bar plaintiff’s § 1983 claims?
A defendant is liable under § 1983 if, under color of state law, the defendant deprives a
person of a constitutional right. 42 U.S.C. § 1983. Here, plaintiff asserts five claims against
defendants for alleged constitutional violations under § 1983. Count 1 alleges that defendants
violated her rights under the Fourth and Fourteenth Amendments against the use of excessive
force by law enforcement. Doc. 1 at 11. Next, Count 2 alleges that defendants violated her
Fourth Amendment right against unreasonable seizures and her Fourteenth Amendment right to
due process. Id. at 13. Third, Count 3 alleges that defendants violated her First Amendment
right against retaliation for exercising protected speech. Id. at 14. Fourth, Count 4 alleges that
defendants violated her right under the Fourth and Fourteenth Amendments to be free from
malicious prosecution. Id. at 15. And last, Count 5 alleges that Sheriff Dedeke and the LCSD
developed and maintained policies, procedures, customs, or practices exhibiting deliberate
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indifference to the constitutional rights of citizens and that those practice were moving forces
behind and proximately caused violations of plaintiff’s constitutional rights. Id. at 17.
Defendants assert that qualified immunity bars all five claims. “The doctrine of qualified
immunity protects government officials ‘from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances two important interests—
the need to hold public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when they perform their duties
reasonably.” Id.
To establish a § 1983 claim against an individual defendant asserting the defense of
qualified immunity, plaintiff must allege facts that “make out a violation of a constitutional
right,” and demonstrate that “the right at issue was ‘clearly established’ at the time of
defendant’s alleged misconduct.” Id. at 232 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
A court has discretion to determine “which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular case at hand.” Id. at 236.
Addressing the clearly established question first “may avoid the risk of deciding a case
incorrectly given insufficient briefing on the constitutional violation question.” Weise v. Casper,
593 F.3d 1163, 1166–67 (10th Cir. 2010) (citing Pearson, 555 U.S. at 232).
A right is clearly established if “‘there [is] a Supreme Court or Tenth Circuit decision on
point, or the clearly established weight of authority from other courts found the law to be as the
plaintiff maintains.’” Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011) (quoting Stearns
v. Clarkson, 615 F.3d 1278, 1282 (10th Cir. 2010)). But the “plaintiff cannot simply identify a
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clearly established right in the abstract and allege that the defendant has violated it.” Herring v.
Keenan, 218 F.3d 1171, 1176 (10th Cir. 2000) (citation and internal quotation marks omitted)).
Instead, the court must determine “‘whether the violative nature of particular conduct is clearly
established.’” Ziglar v. Abbasi, __ U.S. __, 137 S. Ct. 1843, 1866 (2017) (quoting Mullenix v.
Luna, __ U.S. __, 136 S. Ct. 305, 308 (2015)).
Conversely, to hold a defendant liable under § 1983, it is not necessary that “‘the very
action in question has previously been held unlawful.’” Id. at 1866–67 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). Thus, the Supreme Court does not require a “reported
case directly on point” for qualified immunity to apply. Id. at 1867 (citation and internal
quotation marks omitted). Instead, the court must evaluate whether “the unlawfulness of the
officer’s conduct ‘[is] apparent’” “in the light of pre-existing law.” Id. (quoting Anderson, 483
U.S. at 640). This governing standard “‘gives government officials breathing room to make
reasonable but mistaken judgments about open legal questions.’” Lane v. Franks, __ U.S. __,
134 S. Ct. 2369, 2381 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). In short,
the doctrine of qualified immunity “protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Ziglar, 137 S. Ct. at 1867 (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986)).
Although courts typically resolve qualified immunity defenses at the summary judgment
stage, “district courts may grant motions to dismiss on the basis of qualified immunity.” Thomas
v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). Asserting a qualified immunity defense in a
Rule 12(b)(6) motion, however, “‘subjects the defendant to a more challenging standard of
review than would apply on summary judgment.’” Id. (quoting Peterson v. Jensen, 371 F.3d
1199, 1201 (10th Cir. 2004)). This is so because, at the motion to dismiss stage, the court
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scrutinizes defendants’ conduct as alleged in the complaint for “objective legal reasonableness.”
Behrens v. Pelletier, 516 U.S. 299, 309 (1996). But, on summary judgment, the plaintiff no
longer can rest on the pleadings, and the court must decide the qualified immunity questions
based on the summary judgment facts. Id.
The court now turns to address whether qualified immunity immunizes defendants from
the five constitutional violations asserted by the Complaint in this case.
1. Use of Excessive Force and Unreasonable Seizure Claims
(Counts 1 and 2)
The first two claims—Counts 1 and 2—assert that defendants violated her Fourth
Amendment right against unreasonable seizures and the use of excessive force by law
enforcement.1 Plaintiff’s Complaint also premises her § 1983 excessive force claim on the
Fourteenth Amendment. Doc. 1 at 11 (Compl. ¶ 75). As defendants correctly explain in their
motion, excessive force claims arising from force used “leading up to and including an arrest”
are properly analyzed under the Fourth Amendment. Estate of Booker v. Gomez, 745 F.3d 405,
419 (10th Cir. 2014) (citation and internal quotation marks omitted).
The Fourteenth Amendment applies to excessive force claims asserted by a “‘pretrial
detainee’—one who has had a ‘judicial determination of probable cause as a prerequisite to [the]
extended restraint of [his] liberty following arrest.’” Id. (quoting Bell v. Wolfish, 441 U.S. 520,
536 (1979)). Here, plaintiff was not a pretrial detainee when the deputies allegedly used
excessive force to arrest her. Indeed, plaintiff never responds to defendants’ argument that the
1
Plaintiff alleges in Count 2 that defendants violated her Fourth Amendment right against
unreasonable seizures because defendants detained and arrested her without just cause. Doc. 1 at 13
(Compl. ¶ 91). Defendants’ Motion to Dismiss doesn’t address this Fourth Amendment claim. Also,
defendants’ motion doesn’t address plaintiff’s Fourteenth Amendment Due Process Claim asserted in
Count 2. Thus, this Order just addresses plaintiff’s Fourth Amendment claim based on an unreasonable
seizure through the use of excessive force.
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Fourteenth Amendment does not apply to her excessive force claim. Instead, she makes her
arguments under the Fourth Amendment. See Doc. 22 at 6 (citing Graham v. Connor, 490 U.S.
386, 396 (1989)). Thus, to the extent plaintiff bases her § 1983 excessive force claim on the
Fourteenth Amendment, the court dismisses that claim.
The court now turns to defendants’ qualified immunity defense against plaintiff’s Fourth
Amendment excessive force claim. As discussed above, a plaintiff can assert a § 1983 claim
against a defendant alleging qualified immunity if she establishes “both (1) that the defendant
violated a constitutional right and (2) that the right had been clearly established by the time of
the violation.” Tenorio v. Pitzer, 802 F.3d 1160, 1164 (10th Cir. 2015). Here, the Complaint
alleges that defendants “violated the Fourth Amendment rights of Plaintiff” with their “actions
and use of force” that was “objectively unreasonable in light of the facts and circumstances
confronting them.” Doc. 1 at 12 (Compl. ¶ 77). Defendants respond, arguing that no reasonable
officer would know that his actions—as the Complaint alleges them, i.e., deploying a taser on an
attempted murder suspect who is refusing a basic law enforcement command to get on the
ground—violated a clearly established constitutional right. The court addresses each prong of
the qualified immunity test, in turn, below.
a. Did defendants violate plaintiff’s right against the use of
unconstitutionally excessive force?
Under the first prong of the qualified immunity test, plaintiff must plead facts capable of
supporting a finding or inference that defendants violated a constitutional right. A claim that law
enforcement officers used excessive force to effect a seizure is governed by the Fourth
Amendment’s “reasonableness” standard. Cty. of L.A. v. Mendez, __ U.S. __, 137 S. Ct. 1539,
1546 (2017). “Determining whether the force used to affect a particular seizure is ‘reasonable’
under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the
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intrusion on the individual’s Fourth Amendment interests’ against the countervailing
governmental interests at stake.’” Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting
Tennessee v. Garner, 471 U.S. 1, 8 (1985)). The court must pay “careful attention to the facts
and circumstances of each particular case, including the [(1)] severity of the crime at issue, [(2)]
whether the suspect poses an immediate threat to the safety of the officers or others, and [(3)]
whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. That an officer
made a mistake about the need for force does not decide the question conclusively; instead, the
court must analyze the situation as a reasonable officer would have analyzed it in the heat of that
moment. Id. at 396–97; see also Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir.
2010) (“We must take care to judge the situation ‘from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight.’” (quoting Graham, 490 U.S. at 396)).
Thus, “[t]he calculus of reasonableness must embody allowance for the fact that police officers
are often forced to make split-second judgments . . . about the amount of force that is necessary
in a particular situation.” Graham, 490 U.S. at 396–97.
Applying the Graham factors to the facts here, as viewed in the light most favorable to
plaintiff, the court concludes that they are capable of supporting a finding or inference that
defendants violated plaintiff’s constitutional rights. First, plaintiff concedes that the deputies
were responding to a call reporting a severe crime—an attempted murder. Defendants argue that
they came to the scene knowing that plaintiff allegedly had fired two gunshots at her neighbor
earlier that evening and that they had reason to believe plaintiff still was armed. But, plaintiff
argues, the LCSD deputies knew well that plaintiff and Mr. Clark had a long-standing dispute.
Plaintiff’s Complaint alleges that both parties had called the LCSD for various reasons over the
last two years. It also describes how Deputy Slaughter, earlier that same day, had responded to a
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call that plaintiff had made. Plaintiff alleges that, when Deputy Slaughter responded to the call,
he saw Mr. Clark engage in threatening and aggressive behavior toward plaintiff. She alleges
that Mr. Clark stormed out of the neighboring house, charged at her, and screamed, “You
fucking crazy bitch.” Doc. 1 at 5 (Comp. ¶ 31). Plaintiff asserts that, under the totality of the
circumstances, the deputies should have known that Mr. Clark—a person who had engaged in
violent behaviors before while in the presence of the LCSD—had called the LCSD simply to
retaliate against plaintiff for the report she had made against him earlier that day. Viewing these
facts in the light most favorable to plaintiff, the court finds this first factor of the Graham test a
neutral one.
Second, when viewed in plaintiff’s favor, the facts support a finding or inference that
plaintiff did not pose an immediate threat to the safety of officers or others. Although officers
believed plaintiff was armed with a weapon, plaintiff alleges that she was walking alone in the
middle of the road. So, she could not have posed a threat to any bystanders. Plaintiff also
alleges that she responded to the officers’ commands by raising her hands “deferentially” in the
air and asking what was going on. Doc. 1 at 6 (Compl. ¶ 37). Plaintiff asserts that the deputies
refused to respond to her question and, instead, threatened to shoot her if she did not comply.
Importantly, defendants never identified themselves to plaintiff or explained that they were
attempting to arrest her. Instead, the officers approached plaintiff at night, driving vehicles from
Mr. Clark’s property and with lights shining brightly in plaintiff’s eyes. Also, plaintiff never
made any verbal or physical threats to the officers. Viewing all these facts in plaintiff’s favor,
the second Graham factor favors plaintiff. The court concludes that the Complaint plausibly
alleges a factual basis that can support a finding that defendants used excessive force. See
Cavanaugh, 625 F.3d at 665 (holding that the second Graham factor favored plaintiff because
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she never acted aggressively or threatened officers, “[h]er clearly visible hands contained no
knife or other weapon,” and the officer never warned her before tasing her).
Finally, viewed in plaintiff’s favor, the facts fail to show that plaintiff actively resisted
arrest or tried to evade arrest by flight. Although plaintiff concedes that she never complied with
the command to get on the ground, the deputies never identified themselves as law enforcement
officers or explained that they were trying to effectuate her arrest. Also, plaintiff never made any
threating or aggressive movements that could support a finding that she was trying to resist arrest
or flee. To the contrary, plaintiff alleges that she had stopped walking in the road and raised her
hands in the air deferentially to the officers. These facts favor the conclusion that plaintiff has
made a plausible claim that defendants used excessive force when they arrested her.
After considering all of the Graham factors, the court finds that plaintiff has alleged facts
sufficient to assert a plausible claim that defendants violated her Fourth Amendment right
against use of unreasonable force during arrest. In reaching this conclusion, the court is mindful
that it must not “second guess on-the-ground decisions with the benefit of 20/20 hindsight.”
Cavanaugh, 625 F.3d at 665. The court recognizes that the deputies had received information
reporting that plaintiff had fired a gun earlier that evening, and thus they had reason to believe
plaintiff still was armed. Although the court must consider the situation as a reasonable officer
would analyze it in the heat of the moment, Graham, 490 U.S. at 396–97, the court’s “inquiry is
an objective one and does not focus on his subjective state of mind.” Cavanaugh, 625 F.3d at
666 (“[T]he proper question is ‘whether the officers’ actions are “objectively reasonable” . . .
without regard to their underlying intent or motivation.’” (quoting Graham, 490 U.S. at 397)).
But on a motion to dismiss, the court must accept the facts alleged in the Complaint’s version of
the facts and view those facts in plaintiff’s favor, and then determine whether they can support a
15
finding or inference that defendants’ use of force was objectively unreasonable. See id. (holding
that “regardless of the information [the officer] had previously received[,]” “[i]t is not
objectively reasonable to ignore specific facts as they develop (which contradict the need for this
amount of force), in favor of prior general information about a suspect.”). Here, viewing the
facts alleged in their totality and in plaintiff’s favor, the court finds that they suffice to allege that
defendants used excessive force against plaintiff when they tased and arrested her on March 16,
2016.
b. Was the constitutional right clearly established?
Defendants next assert that even if they used force unreasonably under the circumstances,
defendants still are entitled to qualified immunity under the second prong of the analysis because
the law was not sufficiently clear that their conduct was unconstitutional. The court disagrees.
Defendants frame the issue differently than plaintiff does. Defendants assert that “[u]sing
a taser on someone who is suspected of attempted murder with a firearm and is refusing to
comply” with officers’ commands did not violate a clearly established constitutional right. Doc.
24 at 3. But defendants’ characterization of the right omits several important facts that plaintiff
alleges about her interaction with the deputies.
Here, plaintiff asserts defendants violated her clearly established right to be free from
excessive force by using a taser to arrest her when the officers never identified themselves or
warned her that they were attempting to arrest her; plaintiff never threatened or acted
aggressively toward officers; and plaintiff never attempted to resist arrest or evade arrest by
fleeing. Our Circuit has held, in cases with similar facts, that an individual had a clearly
established right to be free from excessive force under those circumstances. See, e.g., White v.
Martin, 425 F. App’x 736, 745 (10th Cir. 2011) (holding that plaintiff’s Fourth Amendment right
16
against excessive force was clearly established when the summary judgment evidence allowed
inferences that officers choked plaintiff when not resisting, plaintiff was neither a threat nor
attempting to flee, and plaintiff was seeking assistance from another officer); Cavanaugh v.
Woods Cross City, 625 F.3d 625, 667 (10th Cir. 2010) (holding “it was clearly established on
December 8, 2006 that [the defendant officer] could not use his Taser on a nonviolent
misdemeanant who did not pose a threat and was not resisting or evading arrest without first
giving a warning”); Casey v. City of Fed. Heights, 509 F.3d 1278, 1286 (10th Cir. 2007) (holding
that “it is excessive to use a Taser to control a target without having any reason to believe that a
lesser amount of force—or a verbal command—could not exact compliance” and concluding that
it was clearly established law that “use of a Taser immediately and without warning against a
misdemeanant” violated the Fourth Amendment).
Because the Complaint alleges a constitutional violation of clearly established law, the
court concludes that plaintiff has stated a plausible § 1983 claim for Fourth Amendment
violations based on an unreasonable seizure and the use of excessive force.
2. First Amendment Retaliation Claim (Count 3)
Count 3 of the Complaint asserts another § 1983 claim based on defendants’ alleged
retaliation against plaintiff for exercising her First Amendment rights. Specifically, it alleges
that defendants retaliated against plaintiff by using excessive force in response to her questions
to the LCSD deputies about who they were and what was happening to her. Doc. 1 at 14
(Compl. ¶ 100). To state a plausible First Amendment retaliation claim, a plaintiff must plead
facts capable of supporting a finding or inference: “(1) that she was engaged in a constitutionally
protected activity; (2) that a defendant’s action caused her to suffer an injury that would chill a
person of ordinary firmness from continuing to engage in that activity; and (3) that a defendant’s
17
action was substantially motivated as a response to her exercise of her First Amendment speech
rights.” Becker v. Kroll, 494 F.3d 904, 926 (10th Cir. 2007) (citing Worrell v. Henry, 219 F.3d
1197, 1212 (10th Cir. 2000)).
For purposes of their Motion to Dismiss, defendants assume that plaintiff sufficiently has
pleaded the first two elements. But defendants argue that plaintiff’s Complaint fails to allege
facts sufficient to demonstrate the third element—i.e., that the deputies’ action was substantially
motivated as a response to plaintiff’s First Amendment exercise. Plaintiff’s Complaint asserts
that defendants’ use of excessive force—i.e., deploying a taser—was substantially motivated as a
response to plaintiff’s First Amendment right to question the officers about who they were and
what was going on. Doc. 1 at 14 (Compl. ¶ 100). But defendants assert that the deputy deployed
a taser not in response to plaintiff’s questioning but, instead, in response to plaintiff’s failure to
comply with the officers’ commands to get on the ground. Although the Complaint alleges that
the deputies ordered plaintiff to get on the ground, it never asserts that the deputies used the taser
in response to plaintiff’s failure to comply with their commands. For the court to draw that
inference, it would have to construe plaintiff’s allegations against her. And as the governing
legal standard makes clear, the court is not permitted to do that on a motion to dismiss. Instead,
the court must view the facts in plaintiff’s favor. Here, the Complaint alleges that defendants
retaliated against her by using excessive force in response to her exercise of her First
Amendment rights. The court thus concludes that plaintiff has pleaded facts sufficient to allege a
First Amendment retaliation claim.
Plaintiff has satisfied the first prong of the qualified immunity test. She has alleged facts
sufficient to establish that defendants violated a constitutional right. This conclusion leads to the
second prong, one requiring plaintiff to show that the constitutional right abridged was a clearly
18
established one. Plaintiff’s Complaint asserts that she “had the clearly established constitutional
right to be free from retaliation . . . for the exercise of protected speech.” Doc. 1 at 14 (Compl. ¶
97). But this assertion, “simply identif[ies] a clearly established right in the abstract and
allege[s] that the defendant has violated it”—which will not suffice to establish a § 1983 claim
that will survive a qualified immunity defense. Herring v. Keenan, 218 F.3d 1171, 1176 (10th
Cir. 2000) (citation and internal quotation marks omitted)). Instead, the court must determine
“‘whether the violative nature of particular conduct is clearly established.’” Ziglar v. Abbasi, __
U.S. __, 137 S. Ct. 1843, 1866 (2017) (quoting Mullenix v. Luna, __ U.S. __, 136 S. Ct. 305, 308
(2015)).
More precisely, plaintiff alleges that defendants violated her constitutional rights by using
excessive force in response to her exercising her First Amendment right to question the deputies
about who they were and what was going on. But plaintiff never cites any case holding that an
individual has a First Amendment right to be free from retaliation by law enforcement officers
(even unidentified law enforcement) when responding to their commands with questions in lieu
of complying with them. Indeed, defendants argue, if the court finds that plaintiff has alleged a
clearly established violation here, then “every arrestee who refuse[s] to comply with officers
would be rewarded with a First Amendment claim for refusing to comply during their arrest.”
Doc. 24 at 4.
Plaintiff shoulders the burden to establish both prongs of the qualified immunity test to
assert a viable § 1983 claim against a defendant asserting a qualified immunity defense. Tenorio
v. Pitzer, 802 F.3d 1160, 1164 (10th Cir. 2015). Because plaintiff has not cited any case law
showing that the alleged constitutional violation here was clearly established, plaintiff has failed
to establish that her First Amendment retaliation claim is not barred by qualified immunity.
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Defendants thus are entitled to qualified immunity against the claim, and the court thus dismisses
Count 3’s § 1983 claim based on First Amendment retaliation.
3. Malicious Prosecution Claim (Count 4)
Count 4 of the Complaint asserts a § 1983 claim alleging violations of plaintiff’s Fourth
and Fourteenth Amendment rights to be free from malicious prosecution without probable cause
and without due process. Plaintiff alleges that defendants worked in concert to secure false
charges against her—charges that a unanimous jury acquitted her of committing. In response,
defendants assert that plaintiff’s Complaint fails to include factual allegations supporting the
elements of a malicious prosecution claim. For reasons explained below, the court disagrees.
Although a malicious prosecution claim is a common law tort action, it can support a
§ 1983 claim when a plaintiff alleges an actionable constitutional violation. Becker v. Kroll, 494
F.3d 904, 914 (10th Cir. 2007) (“The core inquiry under any § 1983 action, regardless of the
analogous common law tort, is whether the plaintiff has alleged an actionable constitutional
violation.”). A plaintiff can assert a malicious prosecution claim based on the Fourth
Amendment right to be free from unreasonable seizure as well as the Fourteenth Amendment
right to due process. See Novitsky v. City of Aurora, 491 F.3d 1244, 1258 (10th Cir. 2007)
(noting that the Tenth Circuit “look[s] to both the Fourth and Fourteenth Amendments” when
analyzing § 1983 malicious prosecution claims); see also Pierce v. Gilchrist, 359 F.3d 1279,
1285–86 (10th Cir. 2004) (“The initial seizure is governed by the Fourth Amendment, but at
some point after arrest, and certainly by the time of trial, constitutional analysis shifts to the Due
Process Clause.”).
The Tenth Circuit uses the common law elements as a starting point for analyzing a
§ 1983 malicious prosecution claim. Novitsky, 491 F.3d at 1257 (citing Taylor v. Meacham, 82
20
F.3d 1556, 1561 (10th Cir. 1996)). But still, “the ultimate question” is whether plaintiff has
alleged “the deprivation of a constitutional right.” Id. (citing Taylor, 82 F.3d at 1561). Starting
with the common law elements, a malicious prosecution claim in Kansas requires a plaintiff to
plead the following elements: “(1) the defendant initiated, continued, or procured the proceeding
of which the complaint is made; (2) the defendant in doing so acted without probable cause; (3)
the defendant acted with malice; (4) the proceedings terminated in favor of plaintiff; and (5)
plaintiff sustained damages. Good v. Bd. of Cty. Comm’rs, 331 F. Supp. 2d 1315, 1328 (D. Kan.
2004) (citing Lindenman v. Umscheid, 875 P.2d 964, 974 (Kan. 1994)). Here, the Complaint
viewed in plaintiff’s favor alleges facts sufficient to support all five elements of a Kansas
malicious prosecution claim.
First, plaintiff alleges that defendants procured her prosecution for attempted murder and
animal cruelty. The Complaint alleges that they did so by conspiring or acting in concert to
falsify their reports to convince the Leavenworth County prosecutor to bring charges against
plaintiff. Plaintiff asserts that defendants’ false reports contain many contradictions and
omissions. Also, she alleges, defendants falsely stated that she was “mental” on the night of her
arrest and that the five deputies could not subdue her without using weapons. Doc. 1 at 7
(Compl. ¶ 50). Plaintiff contends that the Leavenworth County prosecutor brought the charges
against her based on false information defendants had provided. These allegations, if true, would
establish the “initiated, continued, or procured” requirement.
Second, plaintiff alleges that defendants acted without probable cause by filing false
reports, conducting an inadequate investigation, and destroying exculpatory evidence. Plaintiff
asserts that defendants confiscated a digital recording system connected to four cameras on the
outside of her property at 215 Broad Street. Plaintiff alleges that this system would have
21
recorded Mr. Clark’s aggressive behavior toward her when LCSD Deputy Jason Slaughter
responded to her call on March 16, 2016. Also, presumably, the officers could have reviewed
the recording to see if it captured any footage supporting Mr. Clark’s report that plaintiff had
fired two gunshots at him. Plaintiff alleges that when defendants returned the digital recording
system, the digital files were erased. Plaintiff also asserts that defendants took gunshot residue
swabs from plaintiff’s hands, but they never tested them to determine if she had fired a weapon
on the day Mr. Clark accused her of doing so. These allegations satisfy the “without probable
cause” element.
Third, plaintiff alleges that defendants acted with malice by conspiring to provide false
information to the prosecutor so that the prosecutor would charge and prosecute plaintiff. Doc. 1
at 16 (Compl. ¶¶ 117, 118). Plaintiff alleges that defendants provided the false information “[i]n
an attempt to divert from liability for and cover up their unprovoked attacked on a defenseless
middle-age woman.” Id. at 7 (Compl. ¶ 48). This act, if true, would establish malice.
Fourth, plaintiff has alleged that the proceeding terminated in her favor. The Complaint
asserts that a unanimous jury acquitted her of the charges procured by the conspiring parties.
And last, plaintiff alleges that she sustained damages. See, e.g., id. at 17 (Compl. ¶ 122).
This allegation satisfies the fifth element of the Kansas formulation for malicious prosecution.
Defendants argue in response that the Complaint asserts no facts to support the first
element of a malicious prosecution claim—i.e., that defendants procured plaintiff’s prosecution.
Defendants assert that only the prosecutor can institute a probable cause hearing—not
defendants. And so, they argue, they never initiated or procured the prosecution against plaintiff
for attempted murder and animal cruelty. But, the Tenth Circuit has explained that this element
of malicious prosecution doesn’t require that the defendant actually be the person who filed the
22
charges at issue. Instead, the actions of one who “prevaricates and distorts evidence to convince
the prosecuting authorities to press charges” also can cause the prosecution. Pierce, 359 F.3d at
1293. Here, plaintiff alleges that defendants conspired to falsify evidence. And she alleges that
they did so to convince the Leavenworth County prosecutor to bring the criminal charges against
her. These allegations suffice to allege that defendants distorted evidence to convince the
prosecuting authorities to press charges. In short, defendants’ argument on this score is
inconsistent with binding precedent. Plaintiff thus has pleaded sufficient facts to support the first
element of her malicious prosecution claim.
For plaintiff to assert a § 1983 malicious prosecution claim that will survive defendants’
qualified immunity defense, plaintiff must establish that: (1) defendants violated a constitutional
right, and (2) the right was clearly established. As explained above, plaintiff had satisfied the
first prong of this test. She has alleged facts supporting each element of a malicious prosecution
claim under Kansas common law. After using common law elements as a starting point, our
Circuit has held that allegations that a defendant “maliciously withheld exculpatory evidence and
fabricated inculpatory evidence” sufficiently pleaded violations of both the Fourth and
Fourteenth Amendments. Pierce, 359 F.3d at 1293–94. Plaintiff’s allegations satisfy that
standard here.
This moves the analysis to the second issue—whether the right was clearly established.
She has alleged facts from which the court can draw a reasonable inference that defendants
conspired and engaged in concerted action to falsify and withhold evidence and to maliciously
prosecute plaintiff for attempted murder and animal cruelty. Under Pierce, plaintiff’s right to be
free from falsified evidence was clearly established when defendants allegedly committed their
conspiratorial acts. See Pierce, 359 F.3d at 1299 (holding that an official . . . in 1986 had ‘fair
23
warning’ that the deliberate or reckless falsification or omission of evidence was a constitutional
violation”); see also Stewart v. Donges, 915 F.2d 572, 582–83 (10th Cir. 1990) (holding that
defendant was not entitled to qualified immunity because “at the time defendant submitted his
affidavit and arrested plaintiff, it was a clearly established violation of plaintiff’s Fourth and
Fourteenth Amendment rights to knowingly or recklessly omit from an arrest affidavit
information which, if included, would have vitiated probable cause”). These authorities from our
Circuit clearly established the Constitutional right that plaintiff alleges defendants took from her.
They did so well before 2016, when plaintiff was charged. Plaintiff thus has carried her burden
on prong two, meaning, defendants are not entitled to qualified immunity against plaintiff’s §
1983 malicious prosecution claim at the motion to dismiss stage.
4. Municipal Liability (Count 5)
Finally, Count 5 of the Complaint asserts a § 1983 claim against Sheriff Dedeke and the
LCSD based on alleged deliberately indifferent policies, practices, customs, training, and
supervision. Doc. 1 at 17 (Count 5). The case law recognizing this theory provides that a
municipality is not liable under § 1983 simply because it employs a person who has inflicted a §
1983 injury. Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978). Instead, to assert a §
1983 claim against a municipality based on acts by one or more of its employees, a plaintiff must
allege facts capable of supporting an inference that the municipality has a policy or custom that
directly caused the deprivation of a constitutional right. City of Canton v. Harris, 489 U.S. 378,
385 (1989); Patel v. Hall, 849 F.3d 970, 978 (10th Cir. 2017). A plaintiff may plead such a
policy in at least five distinct ways: (1) “a formal regulation or policy statement;” (2) an
informal custom “amoun[ting] to ‘a widespread practice that, although not authorized by written
law or express municipal policy, is so permanent and well settled as to constitute a custom or
24
usage with the force of law;’” (3) “the decisions of employees with final policymaking
authority;” (4) “the ratification by such final policymakers of the decisions—and the basis for
them—of subordinates to whom authority was delegated subject to these policymakers’ review
and approval;” or (5) the “failure to adequately train or supervise employees, so long as that
failure results from ‘deliberate indifference’ to the injuries that may be caused.” BrammerHoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189 (10th Cir. 2010) (citations and
internal quotation marks omitted).
Plaintiff explains that she bases her municipal liability claim here on the fifth type of
policy—a failure to train LSCD officers adequately. Doc. 22 at 16. Specifically, the Complaint
alleges that the Sheriff Dedeke and LCSD failed to train its officers adequately about the use of
excessive force. Doc. 1 at 10 (Compl. ¶¶ 62–63). It also alleges that Sheriff Dedeke and LCSD
failed to investigate the officers’ accounts of their interaction with plaintiff properly, thus
acquiescing in the malicious prosecution of citizens. Id. (Compl. ¶ 66).
The only defendants named in plaintiff’s municipal liability claim are Sheriff Dedeke
(who plaintiff sues in his official capacity only) and the LCSD. Doc. 1 at 17; see also id. at 1
(asserting only an official capacity claim against Sheriff Dedeke). But plaintiff has conceded
that her claims against these two defendants are not actionable. Thus, the court has dismissed
these defendants from the lawsuit. See supra Part III.B. As a consequence, plaintiff’s municipal
liability claim, as pleaded, is not viable because she asserts it against parties who are not subject
to suit. The court thus dismisses this claim. But it also grants plaintiff leave to file an amended
complaint that amends the named defendants in Count 5 to include a defendant who is a
defendant properly subject to suit on a municipal liability claim. If plaintiff chooses to pursue
such a claim, she must file her amended complaint within 10 days of the date of this Order.
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IV.
Conclusion
For reasons explained, the court grants defendants’ Motion to Dismiss plaintiff’s § 1983
claims (Doc. 14) in part and denies it in part. The court dismisses:
Plaintiff’s claims against the LCSD because this entity lacks the capacity to be
sued;
Plaintiff’s claims against Sheriff Dedeke in his official capacity because the
Eleventh Amendment bars those claims;
Plaintiff’s § 1983 excessive force claim to the extent she bases the claim on a
Fourteenth Amendment violation;
Plaintiff’s § 1983 claim for First Amendment retaliation (Count 3) because
qualified immunity bars her claim; and
Plaintiff’s municipal liability claim (Count 5) because plaintiff asserts the claim
against parties not subject to suit. But the court grants plaintiff leave to file an
amended complaint—one that amends Count 5 (plaintiff’s § 1983 claim asserting
municipal liability) to assert a claim against the proper defendant. Plaintiff must
file her Amended Complaint within 10 days of the date of this Order.
The court denies defendants’ Motion to Dismiss in all other respects.
Also, the court grants defendants’ Motion to Dismiss Count 6 of plaintiff’s Complaint
(Doc. 16). Plaintiff has failed to provide the statutory notice of her KTCA claim as Kan. Stat.
Ann. § 12-105b(d) requires. The court thus lacks subject matter jurisdiction over this claim.
And the court dismisses plaintiff’s Count 6 without prejudice.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ Motion to
Dismiss (Doc. 14) is granted in part and denied in part.
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IT IS FURTHER ORDERED THAT defendants’ Motion to Dismiss Count 6 of
plaintiff’s Complaint (Doc. 16) is granted. The court dismiss plaintiff’s KTCA claim without
prejudice.
IT IS FURTHER ORDERED THAT plaintiff must file an amended complaint that
asserts liability against the proper defendant in Count 5 within 10 days of the date of this
Order.
IT IS SO ORDERED.
Dated this 25th day of September, 2018, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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