Humes v. Cummings et al

Filing 44

MEMORANDUM AND ORDER granting 29 Motion to Dismiss Party. Signed by District Judge Daniel D. Crabtree on 4/15/2019. See order for additional information. (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, Individually;
DAVID LATHROP, Individually; MEGAN
MANCE, Individually; JASON D.
SLAUGHTER, Individually; ERIC J.
THORNE, Individually; ANDREW
DEDEKE, Individually; JOHN DOE
SHERIFF’S DEPUTIES 1-10; and
LEAVENWORTH COUNTY, KANSAS,
BOARD OF COMMISSIONERS,
Defendants.
______________________________________
MEMORANDUM AND ORDER

This four-count, civil rights action flows from deputies with the Leavenworth County

Sheriff’s Department (LCSD) arresting plaintiff Veronica Humes. Before the court is a Motion
to Dismiss filed by defendants Leavenworth County, Kansas, Board of Commissioners
(LCBOC) and Sheriff Andrew Dedeke. Doc. 29. In response to the Motion, Ms. Humes
concedes that her Amended Complaint fails to state a claim against the LCBOC and that aspects
of her three claims against Sheriff Dedeke also fail to state claims. But, Ms. Humes argues she
has pleaded sufficient facts to sustain claims of excessive force, unconstitutional seizure, and
malicious prosecution against Sheriff Dedeke. Ms. Humes also requests leave to file a second
amended complaint to raise, in part, a failure to train and supervise claim against Sheriff Dedeke.
The court accepts Ms. Humes’s concessions and, for reasons explained below, concludes that her
Amended Complaint fails to advance sufficient, particularized allegations against Sheriff

Dedeke. The court, thus, dismisses the claims against the LCBOC and Sheriff Dedeke. Also,
because Ms. Humes has not complied with the court’s local rules when requesting leave to file a
second amended complaint, the court denies her request.
I.

Procedural History & Factual Allegations in Amended Complaint
Ms. Humes initiated this action on March 14, 2018. Ms. Humes’s original Complaint

advanced excessive force claims, alleging First, Fourth, and Fourteenth Amendment violations;
an unreasonable seizure claim, alleging Fourth and Fourteenth Amendment violations; a
retaliation claim, alleging a First Amendment violation; a malicious prosecution claim, alleging
Fourth and Fourteenth Amendment violations; a municipal liability claim, alleging First, Fourth,
and Fourteenth Amendment violations based on policies and practices governing the LCSD; and
a state-law negligence claim. Doc. 1 at 11–20. The original Complaint named Edward T.
Cummings, David Lathrop, Megan Mance, Jason D. Slaughter, and Eric J. Thorne (the “LCSD
Deputies”) as defendants, suing them in their individual capacities. Doc. 1 at 2–3 (Compl. at
¶¶ 10–14). The original Complaint also named the LCSD and Sheriff Andrew Dedeke, suing
him in his official capacity as Leavenworth County Sheriff, as defendants. Id. (Compl. at ¶¶ 9,
15).
Defendants filed joint motions to dismiss the original Complaint under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). Docs. 14, 16. Pertinent to the Motion to Dismiss
currently pending before the court, the earlier Rule 12(b)(6) motion contended: (1) the LCSD
lacked the capacity to be sued; (2) Eleventh Amendment sovereign immunity barred the official
capacity claims against Sheriff Dedeke because he was a state official; (3) Ms. Humes could not
possibly prevail on an excessive force claim alleging a Fourteenth Amendment violation where
she was not a pretrial detainee at the time of the events alleged in support of her claims; and (4)

2 

qualified immunity barred the claims advanced against the LCSD Deputies. Doc. 15 at 3–16. In
response, Ms. Humes conceded the first two arguments, did not contest the third, but did contest
the qualified immunity defense asserted by the LCSD Deputies. Doc. 26 at 8, 11–12.
This court dismissed the claims against Sheriff Dedeke and the LCSD. Id. at 26. The
court also dismissed Ms. Humes’s state-law negligence claim; her excessive force claim, to the
extent it was premised on a Fourteenth Amendment violation; and her retaliation claim. Id. But,
otherwise, the court rejected the LCSD Deputies’ qualified immunity defense to Ms. Humes’s
claims for excessive force, unreasonable seizure, and malicious prosecution. Id. Finally, the
court granted Ms. Humes 10 days to amend her Complaint on the municipal liability claim to
allow her to assert the claim against the “proper defendant.” Id. Ms. Humes timely filed an
Amended Complaint. Doc. 27.
In her Amended Complaint, Ms. Humes alleges that, on March 16, 2016, the five LCSD
deputies arrested her.1 Doc. 27 at 1, 7–8 (Am. Compl. at ¶¶ 2, 47, 49). The arrest followed a
report from Ms. Humes’s neighbor—her rival in an ongoing feud—that she had discharged a
firearm in his direction. Id. Ms. Humes alleges that, in the course of effectuating her arrest, the
LCSD deputies used excessive force by deploying their tasers and then pinning her to the
ground. Id. at 2–3, 7–8 (Am. Compl. at ¶¶ 3–4, 43–44, 49). Ms. Humes also alleges that, in an
effort to cover up the excessive force used when effectuating her arrest, the “[d]efendant deputies
and other deputies . . . conspired and/or acted in concert to have [Ms.] Humes falsely charged

1
Although the “Statement of Facts” section of Ms. Humes’s First Amended Complaint never
identifies the arresting deputies by name, Ms. Humes, when naming the defendants to this action,
identifies Mr. Cummings, Mr. Lathrop, Ms. Mance, Mr. Slaughter, and Mr. Thorne as sheriff deputies.
Doc. 27 at 3 (Am. Compl. at ¶¶ 10–14). Meanwhile, Ms. Humes identifies Andrew Dedeke as “the
Sheriff of Leavenworth County.” Id. (Am. Compl. at ¶ 15). Accordingly, when the court reads the
Amended Complaint on the whole, it follows that Mr. Cummings, Mr. Lathrop, Ms. Mance, Mr.
Slaughter, and Mr. Thorne are the law enforcement officers who, according to Ms. Humes, were on the
scene when she was arrested.
3 

and prosecuted for aggravated assault.” Id. at 7–8 (Am. Compl. at ¶ 48). And Ms. Humes
alleges that though the LCSD obtained a warrant to search her home, defendants exceeded the
scope of that warrant by seizing a digital video recording system from the home and accessing
files on the system. Id. at 8 (Am. Compl. at ¶¶ 51–53). Finally, Ms. Humes attributes the
alleged misconduct by the individual defendants to policies and practices adopted by the
LCBOC, as well as the LCBOC’s failure to sufficiently train and supervise deputies employed
by the LCSD sufficiently.2 Id. at 9–10 (Am. Compl. at ¶ 62).
Ms. Humes’s Amended Complaint asserts four causes of action. Count I makes an
excessive force claim against the LCSD Deputies and Sheriff Dedeke, violating Ms. Humes’s
First, Fourth, and Fourteenth Amendment rights. Id. at 11–13 (Am. Compl. at ¶¶ 71–89). Count
II alleges the LCSD Deputies and Sheriff Dedeke unconstitutionally seized Ms. Humes’s person,
violating the Fourth and Fourteenth Amendments. Id. at 13–14 (Am. Compl. at ¶¶ 90–93).
Count III, relying on the Fourth and Fourteenth Amendments, makes a malicious prosecution
claim against the LCSD Deputies and Sheriff Dedeke. Id. at 14–16 (Am. Compl. at ¶¶ 94–109).
Last, Count IV asserts First, Fourth, and Fourteenth Amendment violations by the LCBOC based
on its alleged policies governing the LCSD and deficiencies in its training and supervision of
deputies employed by the LCSD.3 Id. at 16–18 (Am. Compl. at ¶¶ 110–123).
On October 19, 2018, all seven named defendants filed a joint Answer to Ms. Humes’s
Amended Complaint. Doc. 28. Three days later, on October 22, 2018, Sheriff Dedeke and the

2
In this respect, Ms. Humes’s Amended Complaint identifies the LCBOC as the proper defendant
for the municipal liability claim raised in her original Complaint.
3

Although Ms. Humes’s factual allegations about seizure of her DVR system might support a
claim for the unconstitutional property seizure, no such claim appears in Ms. Humes’s Amended
Complaint. And, where Ms. Humes is represented by counsel, this court is not required to liberally
construe her Amended Complaint to read such a claim into her Amended Complaint.
4 

LCBOC moved to dismiss Ms. Humes’s claims against them, contending Ms. Humes failed to
state a claim under Federal Rule of Civil Procedure 12(b)(6). Doc. 29. The LCBOC’s Motion
argues that, under Kansas law, it lacks the authority to supervise, train, or establish policies
governing deputies employed by the LCSD. Doc. 30 at 7–9. Meanwhile, Sheriff Dedeke argues
the Amended Complaint fails to satisfy the pleading standard established by Federal Rule of
Civil Procedure 8(a) because the pleading does not make any specific allegations about his
conduct and involvement in Ms. Humes’s arrest and prosecution. Id. at 3–4. Sheriff Dedeke
also argues he is entitled to qualified immunity. Id. at 4–7. Finally, the LCBOC and Sheriff
Dedeke jointly argue: (1) the two-year statute of limitations for § 1983 actions in Kansas bars
the claims raised against them in the Amended Complaint; (2) the Fourteenth Amendment does
not apply to Ms. Humes’s claims and this court already has concluded as much when it ruled on
the earlier Rule 12(b)(6) Motion to Dismiss; and (3) this court already has dismissed Ms.
Humes’s claims alleging First Amendment violations. Id. at 9–15.
In her response, Ms. Humes concedes that the First and Fourteenth Amendments do not
provide a basis for relief. Doc. 38 at 11–12. Ms. Humes also concedes the LCBOC is not a
proper defendant for her Count IV claim. Id. at 9–10. But, Ms. Humes argues, Sheriff Dedeke is
a proper defendant for her Count IV claim and requests an opportunity to file a Second Amended
Complaint to substitute Sheriff Dedeke for the LCBOC. Id. at 12–13. Finally, on her claims in
Counts I–III against Sheriff Dedeke, Ms. Humes makes a pro forma argument that her Amended
Complaint satisfies the Federal Rule of Civil Procedure 8(a) pleading standard, an argument that
does not direct the court to any particular allegations against Sheriff Dedeke in her Amended
Complaint. Id. at 6–9. And, Ms. Humes argues that if her Amended Complaint satisfies Rule
8(a), the court should reject Sheriff Dedeke’s qualified immunity defense for the same reasons it

5 

rejected the LCSD Deputies’ qualified immunity defense when ruling on the earlier Rule
12(b)(6) Motion. Id. at 9. In reply, Sheriff Dedeke opposes Ms. Humes’s request to file a
Second Amended Complaint, arguing: (1) the request does not comply with District of Kansas
Local Rule 15.1 (“Local Rule 15.1”); (2) a second amended complaint would not relate back to
the original Complaint where Ms. Humes’s misidentification of the LCSD and then the LCBOC
as the Count IV-defendant resulted from a failure to conduct diligent research about the identity
of the proper defendant; and (3) Ms. Humes is trying to create a “moving target” by amending
her Complaint repeatedly. Doc. 39 at 2–10.
II.

Conversion of Rule 12(b)(6) Motion to Rule 12(c) Motion
Sheriff Dedeke and the LCBOC filed their Rule 12(b)(6) Motion to Dismiss after they

had filed an Answer to Ms. Humes’s Amended Complaint. A Rule 12(b)(6) motion, however,
“must be made before pleading if a responsive pleading is allowed.” Fed. R. Civ. P. 12(b)
(emphasis added). As such, the Rule 12(b)(6) Motion filed by Sheriff Dedeke and the LCBOC is
untimely. See In re XP Entm’t LLC, Nos. 09-30699 MER, 11-1650 MER, 2013 WL 542249, at
*2 & n.13 (D. Colo. Feb. 12, 2013) (collecting cases); see also Swearingen v. Honeywell, Inc.,
189 F. Supp. 2d 1189, 1193 (D. Kan. 2002) (“Technically, it is impermissible under the Federal
Rules to submit an answer and thereafter file a Rule 12(b)(6) motion to dismiss.”).
A court faced with a post-answer Rule 12(b)(6) motion, however, may exercise its
discretion and convert the motion into a Rule 12(c) motion for judgment on the pleadings if the
basis for the Rule 12(b)(6) motion is cognizable within a Rule 12(c) motion. Helm v. Kansas,
No. 08-2459-JAR, 2009 WL 2168886, at *1 (D. Kan. July 21, 2009); Swearingen, 189 F. Supp.
2d at 1193. Meanwhile, Federal Rule of Civil Procedure 12(h)(2) permits a party to raise a
failure to state a claim defense in a Rule 12(c) motion. Swearingen, 189 F. Supp. 2d at 1193.

6 

So, because Sheriff Dedeke and the LCBOC can raise the legal basis for their Motion to Dismiss
in a Rule 12(c) motion and because denying the Rule 12(b)(6) Motion as untimely almost
certainly would lead Sheriff Dedeke and the LCBOC simply to restyle and refile the pending
motion as a Rule 12(c) motion, this court exercises its discretion and converts the Rule 12(b)(6)
Motion into a Rule 12(c) Motion.
III.

Legal Standards
A.

Standard for Rule 12(c) Motions

A court evaluates a Rule 12(c) motion under the same standard that governs a Rule
12(b)(6) motion to dismiss. Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 528 (10th Cir. 1992).
The court will grant a motion for judgment on the pleadings if the factual allegations in the
complaint fail to “state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007), or if an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319,
326 (1989). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). To
satisfy the plausibility requirement, “the complaint must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red
Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
B.

Qualified Immunity Standard

“Qualified immunity ‘gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions.’” Lane v. Franks, 573 U.S. 228, 243 (2014)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). This doctrine “protects ‘all but the
plainly incompetent or those who knowingly violate the law.’” al-Kidd, 563 U.S. at 743

7 

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Qualified immunity shields a government
official from money damages in the official’s individual capacity “unless ‘the official violated a
statutory or constitutional right,’ and ‘the right was “clearly established” at the time of the
challenged conduct.’” Lane, 573 U.S. at 243 (quoting al-Kidd, 563 U.S. at 735). So, on a
motion to dismiss based on qualified immunity, a court must consider the following two
questions: (1) “whether the facts that a plaintiff has alleged make out a violation of a
constitutional right,” and (2) “whether the right at issue was clearly established at the time of
defendant’s alleged misconduct.” Leverington v. City of Colo. Springs, 643 F.3d 719, 732 (10th
Cir. 2011) (ellipsis omitted) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). Courts
faced with a qualified immunity defense have discretion to decide “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.” Pearson, 555 U.S. at 236.
“Although qualified immunity defenses are typically resolved 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). A defendant who asserts qualified immunity
before summary judgment, however, faces “a more challenging standard of review.” Id.
(quoting Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004)). This is so because, at this
stage, the court scrutinizes defendants’ alleged conduct for “objective legal reasonableness.”
Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819
(1982)).

8 

IV.

Analysis
A.

Count IV’s Claim Against the LCBOC

As Ms. Humes acknowledges, her Count IV claim about the policies governing deputies
employed by the LCSD and the training and supervision of those deputies is not cognizable
against the LCBOC. Doc. 38 at 9–10. She conceded this point because, under Kansas law, the
sheriff is an elected official tasked with the hiring, firing, and supervision of sheriff deputies.
Kan. Stat. Ann. §§ 19-801a, 19-805(a). As such, a board of county commissioners lacks the
authority to supervise or train sheriff deputies, and “the conduct of the sheriff and his
subordinates cannot be attributed to the county commissioners.” Lee v. Wyandotte Cty., Kan.,
586 F. Supp. 236, 238–39 (D. Kan. 1984); see Wilson v. Sedgwick Cty. Bd. of Cty. Comm’rs, No.
05-1210-MLB, 2006 WL 2850326, at *4 (D. Kan. Oct. 3, 2006) (“[O]nly the sheriff, not the
commissioners, has the power to set policy and train [deputies] under Kansas law.”). Therefore,
any claim premised on the policies governing LCSD deputies or the training and supervision of
those deputies must be brought against Sheriff Dedeke, not the LCBOC. The court, thus,
dismisses Count IV of Ms. Humes’s Amended Complaint and orders the Clerk to terminate the
LCBOC as a defendant in this action.4
B.

Claims in Counts I–III Against Sheriff Dedeke Alleging Fourteenth
Amendment Violations

In her Amended Complaint, Ms. Humes alleges her excessive force and unreasonable
seizure claims arise within the context of the Fourteenth Amendment. Doc. 27 at 12, 14 (Am.
Compl. at ¶¶ 75, 78, 91). Ms. Humes now concedes, however, the events surrounding her arrest
do not invoke any right protected by the Fourteenth Amendment. Doc. 38 at 11. Such a

4
In dismissing the Count IV claim based on the LCBOC being an improper party, the court finds it
unnecessary to address the LCBOC’s alternative argument that Ms. Humes’s Amended Complaint does
not relate back to her original Complaint such that any claim against the LCBOC is time-barred.
9 

concession is apt given this court’s earlier ruling on this very matter as it pertained to the
excessive force claim raised in Ms. Humes’s original Complaint. See Doc. 26 at 11–12 (citing
Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014), for proposition that Fourteenth
Amendment only provides right to be free from excessive force within context of pretrial
detention). Ms. Humes’s Amended Complaint also alleges her malicious prosecution claim
arises within the context of the Fourteenth Amendment. But, Ms. Humes now concedes the
Fourteenth Amendment does not provide a basis for relief because Kansas law provides an
adequate remedy for malicious prosecution claims. See Doc. 38 at 11 (citing Myers v. Koopman,
738 F.3d 1190, 1193 (10th Cir. 2013)). Consistent with Ms. Humes’s concessions, the court
dismisses Counts I, II, and III to the extent that they allege violations of Ms. Humes’s Fourteenth
Amendment rights.5
C.

Remaining Claims Against Sheriff Dedeke in Counts I–III

The court concludes Ms. Humes’s Amended Complaint, to the extent it raises claims
against Sheriff Dedeke, fails to satisfy the pleading standard set out by Federal Rule of Civil
Procedure 8(a) and case law applying that standard. And, by failing to allege any actions
engaged in by Sheriff Dedeke, Ms. Humes necessarily fails to sustain her burden under the first
prong of the qualified immunity analysis.
Rule 8 provides that a complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although Rule 8(a)(2)
“does not require ‘detailed factual allegations,’” it demands more than “‘[a] pleading that offers

5
Ms. Humes requests leave to amend her Amended Complaint to remove any reference to the
Fourteenth Amendment. Doc. 38 at 11. The court already has provided Ms. Humes an opportunity to
amend her complaint after its ruling that the Fourteenth Amendment did not provide a basis for her
excessive force claim. Also, dismissing Ms. Humes’s claims under the Fourteenth Amendment, in lieu of
another amended complaint, will expedite the court’s ability to reach the merits of her action. The court,
thus, denies Ms. Humes’s request to amend for this purpose.
10 

‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action’” which,
as the Supreme Court explained, “‘will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 555). Although the court must assume the truth of the factual allegations in the
complaint, it is “not bound to accept as true a legal conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678. “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). One purpose of Rule 8(a)’s pleading
standard is “to ‘give the defendant fair notice of what the claim is and the grounds upon which it
rests.’” Twombly, 550 U.S. at 555 (ellipsis omitted) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)).
“Without some factual allegations in the complaint, it is hard to see how a claimant could
satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also
‘grounds’ on which the claim rests.” Twombly, 550 U.S. at 555 n.3. As with a large percentage
of § 1983 complaints, Ms. Humes’s Amended Complaint raises claims against several
defendants in their individual capacities, as well as a government entity. In such situations, “it is
particularly important . . . that the complaint make clear exactly who is alleged to have done what
to whom, to provide each individual with fair notice [of] the basis of the claims against him or
her.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (citing Twombly, 550 U.S. at
591 n.10). In this sense, a complaint that “fails to isolate the allegedly unconstitutional acts of
each defendant . . . does not provide adequate notice as to the nature of the claims against each
defendant.” Id. And, this pleading deficiency is all the more fatal to a plaintiff’s complaint in
the face of a defendant asserting qualified immunity because, to “overcome a qualified immunity
defense, plaintiff[] ‘must establish that each defendant violated plaintiff[’s] clearly established

11 

constitutional rights’” rather than just showing “that ‘defendants,’ as a collective and
undifferentiated whole, were responsible for those violations.” Matthews v. Bergdorf, 889 F.3d
1136, 1145 (10th Cir. 2018) (emphasis added) (quoting Pahls v. Thomas, 718 F.3d 1210, 1228
(10th Cir. 2013)).
In accord with the threshold pleading requirements for a complaint and the principles
governing qualified immunity defenses, district courts frequently dismiss claims asserting
generalized allegations against a group of defendants where the allegations do not go on to
identify the actions taken by individual defendants. See Schwab v. Kansas, No. 16-CV-4033DDC-KGS, 2017 WL 2831508, at *11–12 (D. Kan. June 30, 2017) (dismissing claims where
complaint failed to advance individualized allegations against some defendants); Neighbors v.
Lawrence Police Dep’t, No. 15-CV-4921-DDC-KGS, 2016 WL 3685355, at *8 (D. Kan. July 12,
2016) (dismissing claims against defendants against whom complaint advanced no specific
allegations); Aurelio v. South, No. 15-cv-1540-WJM-CBS, 2016 WL 8542534, at *13 (D. Colo.
May 16, 2016) (concluding plaintiff neither had provided defendants fair notice nor otherwise
satisfied either prong of qualified immunity analysis where allegations were not defendantspecific); see also Moore v. The Climate Corp., No. 15-CV-4196-DDC-KGS, 2016 WL
4527991, at *3–5 (D. Kan. Aug. 30, 2016) (noting deficiency in pleading where complaint’s
allegations had failed to identify individual defendants).
The only allegation in Ms. Humes’s Amended Complaint specific to Sheriff Dedeke is
found in paragraph 15. It alleges: “At all relevant times hereto, Defendant Andrew Dedeke was
a citizen of the Unites States and a resident of the State of Kansas and was acting under color of
state law in his capacity as the Sheriff of Leavenworth County. Defendant Dedeke is sued in his
individual capacity.” Doc. 27 at 3 (Am. Compl. at ¶ 15). In contrast, neither the allegations

12 

within Counts I–III nor the allegations incorporated into those Counts make any substantive
mention of Sheriff Dedeke. Rather, when one reads the Amended Complaint as a whole,
plaintiff makes the allegations relevant to Counts I–III only against the LCSD Deputies.
Relevant to Count I, Ms. Humes alleges five deputies were on the scene of and
effectuated her arrest. Id. at 8 (Am. Compl. at ¶¶ 49–50). She also alleges her arresters “were
acting under the color of state law in their capacity as Leavenworth County Sheriff’s Department
deputies.” Id. at 12 (Am. Compl. at ¶ 73) (emphasis added). And, Ms. Humes alleges:
None of the individual Defendants took reasonable steps to protect Plaintiff from
the objectively unreasonable and conscience shocking excessive force of other
Defendant deputies or from the excessive force of later responding officers despite
being in position to do so. They are therefore liable for the injuries and damages
resulting from the objectively unreasonable and conscience shocking force of each
other deputy.
Id. at 12–13 (Am. Compl. at ¶ 81) (emphasis added). The court reads Ms. Humes’s Amended
Complaint to assert only that the five LCSD Deputies effectuated her arrest but that Sheriff
Dedeke was not present. In fact, not only does Ms. Humes fail to make specific allegations
against Sheriff Dedeke, but the allegations in her Amended Complaint also negate any nebulous
suggestion that Sheriff Dedeke could be held liable for alleged excessive force used by LCSD
Deputies while effectuating Ms. Humes’s arrest. See Serna v. Colo. Dep’t of Corrs., 455 F.3d
1146, 1151 (10th Cir. 2006) (“Supervisors are only liable under § 1983 for their own culpable
involvement in the violation of a person’s constitutional rights. To establish supervisor liability
under § 1983, ‘it is not enough for a plaintiff merely to show a defendant was in charge of other
state actors who actually committed the violation.’” (quoting Jenkins v. Wood, 81 F.3d 988, 994–
95 (10th Cir. 1996))).
Count II, similar to Count I, stems entirely from the propriety of Ms. Humes’s arrest. See
Doc. 27 at 14 (Am. Compl. at ¶ 91) (“The actions of the individual Defendants alleged in this
13 

Complaint which resulted in the detention and arrest of Plaintiff without just cause violated her
rights under the Fourth Amendment . . . to be secure in her person against unreasonable
seizure[.]”). Yet, as discussed relative to Count I, Ms. Humes’s Amended Complaint precludes
the conclusion that Sheriff Dedeke was present at the scene of Ms. Humes’s arrest. And, Ms.
Humes never alleges that Sheriff Dedeke instructed or specifically authorized the LCSD
Deputies to arrest Ms. Humes.
Finally, with respect to Count III, Ms. Humes once again focuses her allegations on
actions taken by the LCSD Deputies without tying her malicious prosecution claim to any action
by Sheriff Dedeke. Specifically, Ms. Humes alleges: “All individual Defendants to this claim,
at all times relevant hereto, were acting under the color of state law in their capacity as
Leavenworth County Sheriff’s Department deputies and their acts and omissions were conducted
within the scope of their official duties or employment.” Id. at 14 (Am. Compl. at ¶ 96)
(emphasis added). Thus, like with Counts I and II, the allegations supporting Count III focus
exclusively on the conduct of the LCSD Deputies and fail to provide Sheriff Dedeke fair notice
about his conduct underlying Ms. Humes’s malicious prosecution claim.
In summation, Ms. Humes fails to advance any allegations about Sheriff Dedeke’s
conduct under Counts I–III or sustain her burden in response to Sheriff Dedeke’s assertion of
qualified immunity. And his supervisory role over the LCSD Deputies is insufficient, on its
own, to sustain Ms. Humes’s Count I–III claims as against Sheriff Dedeke. The court, thus,
grants the Motion to Dismiss the claims against Sheriff Dedeke and orders the Clerk to terminate
Sheriff Dedeke as a defendant in this action.

14 

D.

Ms. Humes’s Request for Leave to Amend

Within her response to the Rule 12(b)(6) Motion to Dismiss filed by Sheriff Dedeke and
the LCBOC, Ms. Humes requests leave to file a second amended complaint. Local Rule 15.1
governs requests for leave to amend and states, in pertinent part:
(a) Requirements of Motion. A party filing a motion to amend or a motion for
leave to file a pleading or other document that may not be filed as a matter of
right must:
(1) set forth a concise statement of the amendment or leave sought;
(2) attach the proposed pleading or other document;
and
(3) comply with the other requirements of D. Kan. Rules 7.1 through 7.6
(emphasis added). But, Ms. Humes fails to attach a proposed second amended complaint to her
filing. Thus, her request does not comply with Local Rule 15.1(a)(2). And, the court finds it
particularly prudent to enforce Local Rule 15.1(a)’s requirements here because: (1) Ms.
Humes’s Amended Complaint continues to advance claims and legal theories already rejected by
this court; and (2) this year-old litigation has yet to proceed to discovery.
Ms. Humes’s failure to comply with Local Rule 15.1(a) serves as a sufficient and
independent basis for denying her request to amend. But, in addition to Ms. Humes’s failure to
comply with Local Rule 15.1(a), it is not apparent that it is appropriate for the court to grant
leave to amend. Without doubt, the standard for securing leave to amend is not high; as Federal
Rule of Civil Procedure 15(a)(2) provides, “[t]he court should freely give leave when justice so
requires.” But, under this standard, a court should deny leave upon “a showing of undue delay,
undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies
by amendments previously allowed, or futility of amendment.” Duncan v. Manager, Dep’t of
Safety, City & Cty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005) (quoting Frank v. U.S. W.,
Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)). “Furthermore, ‘where the party seeking amendment

15 

knows or should have known of the facts upon which the proposed amendment is based but fails
to include them in the original complaint, the motion to amend is subject to denial.’” Frank, 3
F.3d at 1366 (quoting Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185
(10th Cir. 1990)). Likewise, “denial of leave to amend is appropriate ‘when the party filing the
motion has no adequate explanation for the delay.’” Minter v. Prime Equip. Co., 451 F.3d 1196,
1206 (10th Cir. 2006) (quoting Frank, 3 F.3d at 1365–66).
This court already has provided Ms. Humes an opportunity to amend her Complaint to
name a proper defendant for the municipal liability claim she raises in Count IV of her Amended
Complaint. Doc. 26 at 26. Also, when she initiated this action a year ago, Ms. Humes possessed
all the facts necessary to advance Count IV’s claim against Sheriff Dedeke, including his identity
as the Leavenworth County Sheriff. Doc. 1 at 3 (Compl. at ¶ 15). But, as a result of her failure
to research the governing law adequately, Ms. Humes’s Amended Complaint named a second
party who is not a viable defendant. And, Ms. Humes’s failure to advance Count IV’s claim
properly in her Amended Complaint is all the more problematic where other aspects of her
Amended Complaint raise claims previously rejected by this court. Another round of leave to
amend, and another round of motions to dismiss, will compound the delay already imposed on
this case. The court, thus, denies Ms. Humes’s request for leave to amend Count IV of her
Amended Complaint.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants Andrew
Dedeke’s and the Leavenworth County, Kansas, Board of Commissioners’ Rule 12(b)(6) Motion
to Dismiss (Doc. 29) is converted into a Rule 12(c) Motion for Judgment on the Pleadings and
that motion is granted.

16 

IT IS FURTHER ORDERED THAT Ms. Humes’s Count I, II, and III claims against
Andrew Dedeke are dismissed without prejudice for failure to state a claim.
IT IS FURTHER ORDERED THAT Ms. Humes’s Count IV claim against the
Leavenworth County, Kansas, Board of Commissioners is dismissed with prejudice for failure to
state a claim.
IT IS FURTHER ORDERED THAT the Clerk shall terminate Andrew Dedeke and the
Leavenworth County, Kansas, Board of Commissioners as defendants in this action.
IT IS FURTHER ORDERED THAT Ms. Humes’s request for leave to amend is
denied.
IT IS SO ORDERED.
Dated this 15th day of April, 2019, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

17