McLinn et al v. Thomas County Sheriff's Department et al

Filing 81

MEMORANDUM AND ORDER. The Thomas County Defendants' (Cox, Nickols, Thomas County Sheriff's Department, and Thomas County Board of County Commissioners) motion to dismiss (Doc. 50 ) is GRANTED IN PART and DENIED IN PART. The motion is GRAN TED insofar as Count I alleges a § 1983 claim against Nickols for repossession of the F350, insofar as Count I alleges a claim against Nickols in his official capacity for the repossession, and insofar as Count I asserts a First Amendment retali ation claim against Nickols in his individual capacity; such claims are DISMISSED. The motion is also GRANTED as to the state law claims against these Defendants; Counts II, III, IV, V, and VI against the Thomas County Defendants are DISMISSED WITHOU T PREJUDICE for lack of jurisdiction under K.S.A. 12-105b(d). The Thomas County Sheriff's Department is DISMISSED as a party. The motion is otherwise DENIED. Defendants' Ryburn and Triple T Towing's motion to dismiss (Doc. 46 ) is GR ANTED IN PART and DENIED IN PART. The motion is GRANTED as to Count IV (improper repossession under the UCC), Count V (breach of contract), and Count VI (negligent and intentional infliction of emotional distress); the foregoing claims against Rybrun and Triple T Towing are DISMISSED. The motion is DENIED as to Count I (§ 1983 claim), Count II (trespass), Count III (conversion) against Ryburn and Triple T Towing, and as to these Defendants' request to dismiss for lack of jurisdiction. FSB's motion to dismiss (Doc. 52 ) is DENIED without prejudice to reassertion based on the parties' notice of settlement. Plaintiffs' motions for hearing (Doc. 71 ) and to file a surreply (Doc. 77 ) are DENIED. Signed by District Judge John W. Broomes on 4/26/2021. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KYLE McLINN; and
OUTLAW TOWING & RECOVERY INC.,
Plaintiffs,
v.

Case No. 20-2385-JWB

THOMAS COUNTY SHERIFF’S DEPARTMENT;
JOEL THOMAS NICKOLS, JR., Individually and
in his capacity as Thomas County Sheriff;
JACOB COX, Individually and in his capacity as
Deputy Thomas County Sheriff;
FIRST STATE BANK OF HEALY, also known
as First State Bank of Healey;
TRAVIS RYBURN; TRIPLE T TOWING; and
THOMAS COUNTY, KANSAS, BOARD OF
COMMISSIONERS,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the court on motions to dismiss by the Thomas County
Defendants1 (Doc. 50), Travis Ryburn and Triple T Towing (Doc. 46), and First State Bank of
Healy (“FSB”) (Doc. 52), as well as on Plaintiffs’ motions for a hearing (Doc. 71) and for leave to
file a surreply (Doc. 77.) The motions are fully briefed and the court is prepared to rule. (Docs.
47, 51, 58, 66, 72, 73, 75, 78, 79.) For the reasons stated herein, Plaintiffs’ motions for a hearing
and to file a surreply are DENIED; the motion to dismiss of FSB is DENIED without prejudice to

1

Jacob Cox (hereinafter “Cox”), Joel Thomas Nickols, Jr. (“Nickols”), the Thomas County Sheriff’s Department, and
the Thomas County Board of Commissioners (“Commissioners”). (See Doc. 35.) The Board of Commissioners is
not actually listed as a defendant in the motion (Doc. 50), although the court presumes based on prior filings and the
arguments raised in the instant motion that this is due to an oversight. (See Doc. 35).

refiling;2 and the motions to dismiss of the Thomas County Defendants (Doc. 50), Ryburn and
Triple T Towing (Doc. 46) are GRANTED IN PART and DENIED IN PART.
I. Preliminary Matters
A. Materials outside the pleadings. The claims in this case arise from the allegedly
unlawful repossession of Plaintiffs’ vehicle on August 10, 2018. The Thomas County Defendants’
motion to dismiss relies in part on a video (with audio) recording of the incident captured by
Deputy Cox’s law enforcement body camera (“body cam”). Defendants argue the court should
consider the body cam video because it is referenced in and relied on by Plaintiffs in the amended
complaint. (Doc. 51 at 2-3.) In response, Plaintiffs “do not object” to the court’s consideration of
the video, but only to the extent it does not conflict with the amended complaint, and they argue
that a number of factual inferences arise from the video. (Doc. 73 at 4-8.) Defendants dispute
those inferences, arguing in reply that the “video speaks for itself, and completely contradicts”
Plaintiffs’ allegations of (among other things) a threatening encounter. (Doc. 75 at 2.)
Courts considering videos attached to dispositive motions usually do so at the summary
judgment stage. Estate of Holmes by and through Couser v. Summers, 387 F. Supp. 3d 1233,
1243-44 (D. Kan. 2019). Given that summary judgment motions are designed to evaluate and
consider whether there is evidence to support the allegations in the complaint, that is hardly
surprising. After considering the particular arguments made by the parties, and the nature of the
video, the court declines to consider the video in connection with the Thomas County Defendants’
motion to dismiss the amended complaint under Rule 12(b)(6). Although the court has discretion
to consider materials outside the pleadings on a motion to dismiss (see Lowe v. Town of Fairland,
143 F.3d 1378, 1381 (10th Cir. 1998)), in this case additional evidence or testimony may be

2

A notice of settlement of the claims against FSB was filed after FSB filed its motion to dismiss. (Doc. 70.) The
notice indicates the parties will seek dismissal of these claims pursuant to the settlement.

2

necessary to establish whether the video shows all of the relevant events, and to explain events
depicted in the video. Under the circumstances, the court will limit its consideration to the
allegations in the amended complaint.
B. Motion for leave to file surreply. (Doc. 77.) Plaintiffs ask to file a surreply to address
what they characterize as several new issues raised by the Thomas County Defendants in their
reply. (Doc. 77 at 1.) Surreplies “are permitted only with leave of court and under ‘rare
circumstances’ after good cause is shown.” James v. Boyd Gaming Corp., No. 19-2260-DDC-JPO,
2021 WL 794899, at *5 (D. Kan. Mar. 2, 2021) (citations omitted). Much of Plaintiffs’ proposed
surreply deals with inferences from the body cam video. (Doc. 77-1 at 1-2.) Given that the court
has excluded the video from consideration, this provides no basis for a surreply. Plaintiffs also
seek to make additional legal arguments about breaches of the peace, qualified immunity, and the
requirements of the Kansas Tort Claims Act, but they fail to show these are necessary responses
to new issues, as opposed to attempts to have the last word on issues raised by the motion to
dismiss.

(Id. at 3-5.) Finally, Plaintiffs want to respond to what they say is Defendants’

“unwarranted Rule 11 accusation,” but the surreply fails to address the substance of the underlying
issue. See (Doc. 73 at 4) (Plaintiffs asserting that Defendants produced the body cam footage “but
deliberately produced no other relevant evidence….”) In any event, Defendants have asserted no
Rule 11 motion, so a surreply on that issue is unnecessary. The motion for leave to file a surreply
(Doc. 77) is therefore denied.
C. Motion for hearing. (Doc. 71.) Plaintiffs seek oral argument on the motions to dismiss
because “further explanation and arguments regarding certain actions … in the [body cam] footage
would be beneficial….”

(Doc. 71 at 1.)

Again, the court has excluded the video from

consideration, so argument is not merited on that point. Moreover, the court determines that oral

3

argument would not assist in deciding the issues presented. See D. Kan. R. 7.2 (court may allow
oral argument); Carter v. Spirit Aerosystems, Inc., 827 F. App’x 864, 870 (10th Cir. 2020) (denial
of oral argument reviewed for abuse of discretion).
II. Facts
The following allegations are taken from the amended complaint (Doc. 45) and are
assumed to be true for purposes of deciding the motions to dismiss.
Plaintiff McLinn is a resident of Oakley, Kansas. He is the sole shareholder and director
of Outlaw Towing & Recovery, Inc. (“Outlaw Towing”). Defendant Cox is a deputy sheriff for
Thomas County. Defendant Nickols is the Thomas County Sheriff. Defendant Triple T Towing
(“Triple T”) is a tow company located in Oakley and is operated by Defendant Ryburn. (Doc. 45
at 1-4.)
In February 2017, Plaintiffs purchased a 2006 Ford F350 (“the F350”) with a loan from
First State Bank of Healy, Kansas (“FSB”). The F350 was collateral for the loan. Payments on
the loan were due the third day of each month, and late charges became due if payments were ten
or more days late. (Id. at 6.) Plaintiffs’ payment “made in July 2018 was dishonored.” (Id.)
On August 10, 2018, sometime before 9 a.m., Ryburn/Triple T, acting under the direction
of FSB, arrived on Plaintiff McLinn’s property to repossess the F350. (Id.) Ryburn/Triple T were
Plaintiffs’ direct competitors. No notice of any kind was sent by FSB, nor did it obtain any court
order to authorize the repossession. The F350 was parked on land rented by McLinn and Outlaw
Towing, about a tenth of a mile from the nearest entrance to the property. (Id. at 7.) Deputy Cox
arrived at the same time as Ryburn/Triple T. Greg Jirak, a Trooper with the Kansas Highway
Patrol, also arrived at that time and remained by the highway near Plaintiffs’ property. The officers

4

arrived because Triple T/Ryburn had requested law enforcement presence to facilitate the
repossession. (Id. at 7-9.)
McLinn, who was inside the building on the premises, heard some noise and came outside
to investigate. Cox was near the door. McLinn informed Cox that Triple T/Ryburn had been told
they were not to come on McLinn’s property and that they were not welcome on the property.
McLinn demanded that Triple T/Ryburn and Cox leave the F350 alone and leave the property.
Cox nonetheless instructed McLinn not to resist and to allow the repossession to happen. McLinn
became agitated and yelled to demand that they leave the vehicle alone and leave the property. At
more than one point, Cox put his hand on his gun. (Id. at 11.) When McLinn asked Cox the
identity and purpose of the Highway Patrol Trooper, Cox informed him it was Greg Jirak and that
he was there as “backup.” (Id. at 8.)
McLinn attempted to retrieve his personal items from the F350. Cox imposed himself
between McLinn and the F350 and put his hand on his gun. Cox stood close to McLinn throughout
the encounter. When it became clear to McLinn that he could not stop the tow, he attempted to go
back inside to get dressed. Cox stopped him and demanded that McLinn confirm he was not going
back inside to get a weapon. (Id. at 12-13.)
McLinn was not given any paperwork justifying the repossession. He continued to protest
and demand that they leave, but Cox ignored his protests. The tow was completed and the F350
was removed from the property. Cox remained until the repossession was complete. (Id. at 13.)
According to the amended complaint, the towing insurance of Triple T/Ryburn had been
canceled as of June 30, 2018, and was not effective again until June 30, 2019, such that Triple
T/Ryburn was uninsured on August 10, 2018. (Id. at 14.)

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When McLinn first called the Thomas County Sheriff’s Office after the incident to
complain about the repossession, Sheriff Nickols allegedly laughed and said he saw nothing wrong
with what was done. (Id. at 15.)
On the same day the F350 was repossessed, the Thomas County Sheriff’s Office
represented to the Thomas County Attorney that Cox had been in possession of a court order
allowing the repossession. The Thomas County Attorney took the position with McLinn that
nothing wrong had been done because Cox was enforcing a valid court order in repossessing the
F350. (Id. at 15-16.)
The amended complaint alleges that over the course of the last two years, McLinn “has
repeatedly attempted to make and file a written complaint about the violation of his rights,”
including “speaking directly with Nickols [and] the County Attorney,” but “his requests were
denied.” (Id. at 16.)
The amended complaint also alleges that McLinn was “threatened with legal action for his
repeated and detailed complaints to the Thomas County Attorney, Nickols,” and others. (Id. at
17.) In McLinn’s calls to the Sheriff’s Department, Nickols allegedly told him that if he continued
to complain about the violation of his rights, they would charge him with harassment and
threatened to arrest him for phone harassment. (Id. at 17, 22, 24)
The amended complaint contains the following claims, which, except as otherwise noted,
are asserted against all Defendants. Count I asserts claims under 42 U.S.C. § 1983 for the
deprivation of First, Fourth, and Fourteenth Amendment rights under color of state law. Count II
alleges a state law trespass claim. Count III alleges a state law conversion claim. Count IV alleges
improper repossession under the Kansas Uniform Commercial Code (UCC). Count V asserts

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breach of contract against FSB “and to any extent relevant, its agents.” (Doc. 45 at 31.) Count VI
asserts a state law claim for intentional infliction of emotional distress.
The defenses raised by Defendants in their motions to dismiss include failure to state a
claim under Rule 12(b)(6), qualified immunity, and failure to satisfy the Kansas “notice of claim”
statute, K.S.A. 12-105b(d).
III. Standards
A. Rule 12(b)(6). In order to withstand a motion to dismiss for failure to state a claim, a
complaint must contain enough allegations of fact to state a claim for relief that is plausible on its
face. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). All well-pleaded facts and the reasonable inferences derived
from those facts are viewed in the light most favorable to Plaintiff. Archuleta v. Wagner, 523 F.3d
1278, 1283 (10th Cir. 2008). Conclusory allegations, however, have no bearing upon the court's
consideration. Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007). As the Tenth
Circuit observed:
Determining whether a complaint contains enough well-pleaded facts sufficient to
state a claim is a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense. The court must determine whether the
plaintiff has pleaded enough facts to state a claim for relief that is plausible on its
face, not just conceivable. Though a complaint need not provide detailed factual
allegations, it must give just enough factual detail to provide fair notice of what the
claim is and the grounds upon which it rests. Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements do not count as wellpleaded facts. If, in the end, a plaintiff's well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint fails to state a
claim.
Warnick v. Cooley, 895 F.3d 746, 751 (10th Cir. 2018) (citations and internal quotation marks
omitted.)
B. Qualified Immunity. “Individual defendants named in a § 1983 action may raise a
defense of qualified immunity.” Cillo v. City of Greenwood Vill., 739 F.3d 451, 460 (10th Cir.
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2013). Qualified immunity “shields public officials...from damages actions unless their conduct
was unreasonable in light of clearly established law.” Gann v. Cline, 519 F.3d 1090, 1092 (10th
Cir. 2008) (quotations omitted). “If the law at the time did not clearly establish that the officer's
conduct would violate the Constitution, the officer should not be subject to liability or, indeed,
even the burdens of litigation.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
When the defense of qualified immunity is asserted, a plaintiff must show: “(1) that the
defendant's actions violated a federal constitutional or statutory right, and … (2) that the right was
clearly established at the time of the defendant's unlawful conduct.” Cillo, 739 F.3d at 460. For a
right to be clearly established, the contours of that right must be “sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.” Ashcroft v. alKidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “It is
not enough that the rule is suggested by then-existing precedent.” Dist. of Columbia v. Wesby, 138
S. Ct. 577, 590 (2018). The rule at issue “must be ‘settled law’” dictated by controlling authority
or a “robust ‘consensus of cases of persuasive authority.’” Id. at 589-90 (citation omitted). This
does “not require a case directly on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting Ashcroft,
563 U.S. at 741 (2011)). “The precedent must be clear enough that every reasonable official would
interpret it to establish the particular rule the plaintiff seeks to apply.” Wesby, 138 S. Ct. at 590.
Moreover, the standard requires “that the legal principle clearly prohibit the officer's conduct in
the particular circumstances before him.” Id.
C. Kansas notice of claim requirement. Section 12-105b(d) provides in part that any person
having a claim against a municipality which could give rise to a claim under the Kansas Tort
Claims Act (KTCA) “shall file a written notice as provided in this subsection before commencing

8

such action.” Id. The notice “shall be filed with the clerk or governing body of the municipality”
and must contain specified information, including the factual basis of the claim, the name of any
public officer involved, a statement of the injury sustained, and a statement of the amount of
monetary damages requested. Id. “In the filing of a notice of claim, substantial compliance with
the provisions and requirements of this subsection shall constitute valid filing of a claim.” Id.
Once the notice is filed, “no action shall be commenced until after the claimant has received notice
from the municipality that it has denied the claim or until after 120 days has passed following the
filing of the notice of claim, whichever occurs first.” Id.
Kansas considers compliance with this provision jurisdictional in nature. “If the statutory
requirements are not met, the court cannot acquire jurisdiction over the municipality.” Myers v.
Bd. of Cty. Com’rs of Jackson Cty., 280 Kan. 869, 877, 127 P.3d 319, 325 (2006). See also Whaley
v. Sharp, 301 Kan. 192, 197, 343 P.3d 63, 67 (2014) (“Compliance with ... 12-105b(d) is required
before a court has subject matter jurisdiction over a tort claim against a municipality.”)
IV. Analysis
A. Thomas County Defendants
1. Count I – Fourth & Fourteenth amendment breach of peace and repossession allegations
against Cox. Defendants contend the amended complaint fails to allege facts showing a breach of
the peace and, for that reason, fails to state a viable constitutional claim against Cox arising from
the repossession. (Doc. 51 at 7-8.)
The Fourth Amendment protects individuals from “unreasonable … seizures” by the
federal government. U.S. CONST. amend. IV. By virtue of its “incorporation” in the Fourteenth
Amendment, the right also applies to seizures by state government actors. See Mapp v. Ohio, 367
U.S. 643, 655 (1961). A “seizure” occurs when “there is some meaningful interference with an

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individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113
(1984). Additionally, the Fourteenth Amendment protects against deprivations of property by state
actors without due process of law. U.S. CONST. amend. XIV, § 1. This right ordinarily requires
that an individual be given notice and an opportunity to be heard before a state seizure of property
occurs. See Fuentes v. Shevin, 407 U.S. 67, 81 (1972). The right protects against “unfair or
mistaken deprivations of property, a danger that is especially great when the State seizes goods
simply upon the application of and for the benefit of a private party.” Id.
These constitutional restrictions generally apply only to actions taken under color of state
or federal law, and for that reason they do not ordinarily apply to the repossession of a vehicle by
a private party. See Elliott v. Chrysler Fin., 149 F. App’x 766, 768 (10th Cir. 2005). As explained
in Marcus v. McCollum, 394 F.3d 813 (10th Cir. 2004), there is “an essential dichotomy” between
government and private action under the Fourteenth Amendment. Id. Insofar as police officer
involvement with a private party’s repossession of property is concerned, case law holds that
“officers are not state actors during a private repossession if they act only to keep the peace, but
they cross the line if they affirmatively intervene to aid the repossessor.” Id. at 818. Marcus said
the totality of the circumstances must be examined in making this distinction. It identified a
number of actions indicative of state action, such as an officer telling a debtor “don’t interfere with
this repossession” or “you know you’re not the rightful owner,” telling the debtor the seizure is
legal, telling the debtor to stop interfering or he will go to jail, or the fact that an officer arrived
with the repossessor. Id. at 819. Additional factors indicative of state action include intervening
at more than one step, failing to depart before completion of the repossession, and unreasonably
recognizing the documentation of one party over another. Id. “[T]he overarching lesson of case

10

law is that officers may act to diffuse a volatile situation, but may not aid the repossessor in such
a way that the repossession would not have occurred but for their assistance.” Id.
Most states (including Kansas) have adopted UCC provisions allowing secured creditors
to repossess property from a defaulting debtor without a judicial order if certain conditions are
met. One of those conditions allows the creditor to take possession “if it proceeds without a breach
of the peace.” K.S.A. 84-9-609(a)(1) & (b)(2). What constitutes a breach of the peace depends
upon state law. Cf. Marcus, 394 F.3d at 820 (examining Oklahoma law). Marcus indicated that
if there is a breach of the peace, and the repossession is thereby unlawful, an officer who aids the
repossession can be liable because “[i]t stands to reason that police should not weigh in on the side
of the repossessor and assist an illegal repossession.” Id. Marcus advised that officers “could
direct both parties to seek a judicial determination” in order to diffuse a volatile situation, but they
should avoid deciding who is entitled to possession in a “curbside courtroom.” Id.
Taking the allegations in the amended complaint as true, Plaintiffs have stated a plausible
claim for relief against Defendant Cox under the foregoing rule. The amended complaint
adequately alleges that Cox affirmatively intervened on the side of Triple T/Ryburn and aided
them in the repossession of the vehicle in the absence of any judicial order. Cox allegedly arrived
with the repossessor; arranged for a backup officer to be present; entered the premises with the
repossessor while McLinn was still inside a building on the property; ignored McLinn’s demands
that he and the repossessor leave his property; told McLinn he had to allow the repossession to
proceed; physically imposed himself between McLinn and the F350; and remained on the
premises until the repossession was complete. These allegations are sufficient to show state action
regardless of whether Cox also repeatedly tapped or touched his gun during the encounter, as

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Plaintiffs allege. Cf. Marcus, 394 F.3d at 820 (“officers … may not aid the repossessor in such a
way that the repossession would not have occurred but for their assistance.”)
In view of the fact that due process generally requires notice and a right to be heard before
a state can deprive a person of property, Cox’s assistance appears sufficient, without more, to state
a claim for unlawful deprivation of property without due process. See Hyman v. Capital One Auto
Finance, 306 F. Supp. 3d 756, 770 (W.D. Penn. 2018) (plaintiff stated due process claim where
officer’s assistance in repossession caused taking of property without notice or opportunity to be
heard). It also might support a Fourth Amendment claim. Cf. Soldal v. Cook Cty. Ill., 506 U.S.
56, 71 (1992) (plaintiff stated claim for unreasonable seizure under the Fourth Amendment where
officers assisted repossessor of mobile home who acted without court order). At any rate, as
discussed below, Plaintiffs have plausibly alleged that there was a breach of the peace, such that a
factfinder could conclude the repossession was unlawful and lacking in due process for that reason.
The leading Kansas case on breach of the peace is Benschoter v. First Nat’l Bank of
Lawrence, 218 Kan. 144, 542 P.2d 1042 (1975), where a creditor was told by a defaulting debtor
that it could “come on out and get” the collateral. When the creditor arrived, the debtor was not
at home, and the creditor obtained the collateral by asking the debtor’s 17-year old son to open a
gate. The Kansas Supreme Court rejected an argument that this was a breach of the peace through
“stealth,” finding a debtor’s lack of knowledge of the repossession does not make a repossession
unlawful. Benschoter, 750 P.2d at 1050. The court applied a test for breach of the peace that
examined “whether there was entry by the creditor upon the debtor’s premises” and “whether the
debtor or one acting on his behalf consented to the entry and repossession.” Id. (citing J. White &
R. Summers, Handbook of the Law Under the Uniform Commercial Code at 966-75 (West 1972)).
A subsequent case, which also cited the White & Summers’ consent test, made clear that forced

12

entry of a building is a breach of the peace. Riley State Bank of Riley v. Spillman, 242 Kan. 696,
705, 750 P.2d 1024, 1030 (1988).
In another case, the Kansas Court of Appeals found no breach of the peace where a creditor
successfully repossessed a car from a debtor’s driveway at 2:00 a.m. Although the debtor had
previously threatened to use a firearm if the creditor tried to take the car, a month after that threat
the creditor was able to take the car before the debtor realized what had happened. Wade v. Ford
Motor Credit Co., 8 Kan. App. 2d 737, 739, 668 P.2d 183, 185, rev. denied, 234 Kan. 1078 (1983).
In finding there was no breach of the peace, the court downplayed the issue of consent – noting a
debtor’s consent was not required for a lawful repossession – and cited several cases examining
whether there was a confrontation between the creditor and debtor at the time of repossession. See
id., 668 P.2d at 187-189. The court stated that a breach of the peace “may be caused by an act
likely to produce violence,” but noted the repossession in that case was accomplished without
incident and with the debtor “totally unaware of the repossession until [the creditor] had
successfully left the premises with the car.” Id., 668 P.2d at 189.
The court concludes the allegations in the amended complaint plausibly allege a breach of
the peace under Kansas law. The amended complaint describes a confrontation between McLinn,
Cox, and Triple T/Ryburn in which the latter two entered upon Plaintiffs’ property without his
consent and after Ryburn had been told to stay off the property. McLinn confronted the individuals
when he discovered them on the property and demanded they leave; Cox and Ryburn ignored
McLinn’s demands that they cease the repossession and leave his property; McLinn was “agitated
and yelling” these demands; Cox instructed McLinn to allow the repossession to proceed; Cox
physically interposed himself between McLinn and the truck when McLinn attempted to retrieve
personal items; Cox stopped McLinn and demanded that he confirm he was not going to get a

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weapon; Cox touched or tapped his firearm during the tense exchange; and McLinn “continued to
protest” but Cox ignored his protests. In sum, the repossessor and the officer refused to leave
private property when instructed to do so by the tenant in possession; there was yelling, continued
protests, and physical intimidation between the parties involved, there was a directive by a law
enforcement officer to allow the repossession to proceed; and there were concerns about the
confrontation leading to the use of firearms. Plaintiffs have plausibly alleged that Cox improperly
intervened and assisted an unlawful repossession involving a breach of the peace under Kansas
law. Cf. K.S.A. 84-9-609, UCC Comment (3) (“This section does not authorize a secured party
who repossesses without judicial process to utilize the assistance of a law enforcement officer.”).
See also L. Anderson U.C.C. § 9-609:13 [Rev] (3d. ed.) (“a repossessing secured party may not
use a law enforcement officer in its effort to repossess the collateral without judicial process. The
debtor should not be forced to defy a police officer in order to assert its legal right to require a
judicial repossession.”); 4 White, Summers, & Hillman, Uniform Commercial Code § 34:18 (6th
ed.) (“The debtor's opposition, however slight and even if merely oral, normally makes any entry
or seizure a breach of the peace. We believe this is sound because the law should not make a debtor
physically confront a repossessor in order to sustain a claim of breach of the peace.”) (footnote
omitted); Darren Trucking Co. v. Paccar Fin. Corp., No. 18-3936-GJH, 2019 WL 3945103, *2
(D. Md. Aug. 20, 2019) (“the weight of state court authority holds that a repossession despite
‘unequivocal oral protest of the defaulting debtor’ constitutes a breach of the peace.”)
2. Count I - Deputy Cox – qualified immunity. Defendants argue “[i]t is not clear at all
that Deputy Cox breached the peace, which means that it is also not clearly established that Deputy
Cox’s conduct was unconstitutional.” (Doc. 51 at 14.) Although this presents a close question,

14

the court concludes Cox is not entitled to qualified immunity under the allegations in the amended
complaint.
The law in the Tenth Circuit was clearly established at the time of the incident that an
officer at a private repossession may act to keep the peace, but “they cross the line if they
affirmatively intervene to aid the repossessor.” Marcus, 394 F.3d at 818. See also Evers v. Bd. of
Comm’rs of Torrance Cty., 2008 WL 11451364, *14 (D. N.M. Sept. 30, 2008) (“The law was
unquestionably clear in March, 2004, that a police officer’s assistance in a private party’s seizure
of property violates the Fourth Amendment.”) Applying this rule, Marcus denied qualified
immunity to officers who “assumed, without good evidence, that [the repossessor] had a
repossessory right to the [vehicle] and, through physical action and verbal threats, dissuaded
plaintiffs from continuing their resistance to the repossession.” Marcus, 394 F.3d at 824. In PriceCornelison v. Brooks, 524 F.3d 1103, 1118 (10th Cir. 2008), the Tenth Circuit denied qualified
immunity to a sheriff who, confronted with a complainant’s allegation that her former domestic
partner was improperly removing property from her home, told the complainant the partner could
remove whatever property she wanted (because of community property laws) and threatened to
arrest the complainant if she returned to her home. The Tenth Circuit concluded, based on Marcus,
that the sheriff was “on notice … that he could be liable for assisting a private party’s unlawful
seizure of property at the time he threatened to arrest [the complainant].” Id.
Cox argues that the vague contours of a “breach of the peace” means he is entitled to
qualified immunity. It is true that the term lacks a clear or easily applied definition. See Riley
State Bank of Riley v. Spillman, 242 Kan. 696, 704, 750 P.2d 1024, 1030 (1988) (“The drafters of
the UCC did not define the term ‘breach of the peace,’ purposefully leaving such definition to the
courts…. There has been little caselaw in Kansas on what constitutes a breach of the peace; our

15

definition of the term is thus largely incomplete.”) But Marcus found the law was clearly
established and denied qualified immunity under similar circumstances, focusing on the officers’
unfounded assumption that the repossessor was entitled to possession of the vehicle and their use
of police authority to aid the repossessor. See Marcus, 394 F.3d at 824 (citing Abbott v. Latshaw,
164 F.3d 141, 149 (3d Cir. 1998) for the proposition that “reasonable police officers should know
from established precedent ‘that their role is not to be participants in property deprivations without
notice and an opportunity to be heard.’”) This case is materially indistinguishable from Marcus.
Cox argues that differences between the Oklahoma UCC at issue in Marcus and the Kansas UCC
applicable here means the law governing Cox’s conduct was not clearly established. (Doc. 51 at
10-11.) But the Kansas UCC, like the Oklahoma UCC, “does not authorize a secured party who
repossesses without judicial process to utilize the assistance of a law enforcement officer.” K.S.A.
84-9-609, UCC Comment (3).
Taking Plaintiffs’ allegations as true and viewing them in the light most favorable to
Plaintiffs, they show that Cox, contrary to clearly established law, affirmatively intervened to aid
the repossessor and asserted his authority to overcome McLinn’s objections, all in the absence of
any court order, and thereby allowed Triple T/Ryburn to accomplish an unlawful repossession.
Similar to Marcus, Cox assumed without a court order that Ryburn had a right to take the F350.
Cox prevented McLinn from halting the repossession and deterred him from continuing to object
by ignoring his demands to leave the property, by interposing himself physically near McLinn,
and by directing McLinn to allow the repossession to proceed. A reasonable officer in those
circumstances would understand that intervening on the side of the repossessor in this manner was
contrary to the rule set forth in Marcus.

16

3. Count I - Sheriff Nickols – individual liability for repossession. Nickols argues the
amended complaint fails to state a claim against him in his personal capacity for the allegedly
unlawful repossession. (Doc. 51 at 15.)

Plaintiffs fail to contest this argument. (See Doc. 73.)

The court accordingly grants the motion as uncontested.
4. Count I - Sheriff Nickols – deprivation of First Amendment rights. Count I includes
allegations that Nickols deprived McLinn of First Amendment rights by threatening to “arrest him
for phone harassment for attempting to petition” and by threatening to charge him criminally “if
[McLinn] continued to attempt to redress his grievances against them….” (Doc. 45 at 22, 24.)
Nickols argues, among other things, that the allegations fail to state a viable First
Amendment claim because they do not allege that McLinn was unable to petition the County
Defendants. (Doc. 51 at 17-18.) Additionally, Nickols argues he is entitled to qualified immunity
insofar as the claim is asserted against him in his individual capacity because there is no binding
precedent indicating his conduct violated the First Amendment. (Id.at 18.) As discussed below,
the court rejects the former argument but agrees with the latter argument, and therefore grants the
motion to dismiss the First Amendment claim only insofar as it is asserted against Nickols in his
individual capacity.
The First Amendment provides in part that “Congress shall make no law … abridging …
the right of the people … to petition the Government for a redress of grievances.” U.S. CONST.
amend. I. The First Amendment bars government officials from retaliating against individuals for
engaging in protected speech. Crawford–El v. Britton, 523 U.S. 574, 592 (1998). To make out a
claim for unlawful retaliation by government officials in response to a plaintiff’s exercise of his
First Amendment right to petition for a redress of grievances, the plaintiff must show: 1) that he
was engaged in constitutionally protected activity; 2) the defendant’s actions caused the plaintiff

17

to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that
activity; and 3) the defendant’s adverse action was substantially motivated as a response to the
plaintiff’s exercise of constitutionally protected conduct. Van Deelen v. Johnson, 497 F. 3d 1151,
1155-56 (10th Cir. 2007). “Any form of official retaliation for exercising one's freedom of speech,
including prosecution, threatened prosecution, bad faith investigation, and legal harassment,
constitutes an infringement of that freedom.” Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir. 2001)
(citation omitted).
Nickols argues Plaintiffs have failed to allege an injury sufficient to state a claim because
the alleged threat to arrest McLinn “was not realistic” and did not stop McLinn from complaining.
(Doc. 75 at 9.)

Assuming a threat to prosecute or arrest must be realistic in order to satisfy the

second element of Van Deelen (see Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th Cir. 2004) (a
realistic threat of arrest is enough to chill First Amendment rights)), Nickols has not shown an
entitlement to dismissal on that basis. At the pleading stage, all well-pleaded facts and the
reasonable inferences therefrom are viewed in Plaintiffs’ favor. Nothing in the amended complaint
shows the alleged threats to arrest McLinn or to charge him with harassment could not plausibly
be considered realistic. Moreover, the mere fact that McLinn may have continued to complain
even after the alleged threats does not preclude a claim for retaliation as a matter of law. Cf. Smith
v. Plati, 258 F.3d 1167, 1177 (10th Cir. 2001) (“The focus … is upon whether a person of ordinary
firmness would be chilled, rather than whether the particular plaintiff is chilled.”) (italics in
original); Jiron v. Roth, ___F. Supp. 3d ___, 2021 WL 601833, *19 (D. N. M. Feb. 16, 2021)
(“The Supreme Court has held that ‘the threat of invoking legal sanctions and other means of
coercion, persuasion, and intimidation’ curtails the freedom of speech just as effectively as an
actual sanction.”) (citations omitted.)

18

Nevertheless, Plaintiffs have not shown that Nickols’ alleged conduct violated clearly
established law.

In arguing otherwise, Plaintiffs rely on Van Deelen for the premise that

“intimidating a citizen with an idle threat” is sufficient to deny qualified immunity, as Van Deelen
explained that “the right at issue – to petition the government for the redress of tax grievances –
has been with us and clearly established since the Sons of Liberty visited Griffin’s Wharf in
Boston.” [i.e., the “Boston tea party”] (Doc. 73 at 26) (quoting Van Deelen, 497 F.3d at 1158.)
But the amended complaint in this case indicates McLinn complained to Nickols about the
repossession since at least August 10, 2018, and that he did so repeatedly over the course of two
years by calling the Thomas County Sheriff’s Office on the phone. (Doc. 45 at 15-17.) First
Amendment rights co-exist with harassment laws that conceivably limit the manner in which
citizens can lawfully convey complaints to government officials. See e.g., United States v. Waggy,
936 F.3d 1014, 1018-20 (9th Cir. 2019) (discussing cases dealing with intersection between First
Amendment rights and harassment laws.) The fact that the right to petition government officials
is well established does not suffice to show that Nickols should have known that his conduct in
these particular circumstances was unlawful. See Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590
(2018) (“The ‘clearly established’ standard also requires that the legal principle clearly prohibit
the officer’s conduct in the particular circumstances before him.”) Plaintiffs have not cited case
law showing that an official in Nickols’ place could not have reasonably believed, even if perhaps
mistakenly, that the manner in which McLinn was asserting his complaints – by making repeated
phone calls to the Sheriff’s Office over the course of two years – made an arrest or a charge of
harassment lawful. Cf. State v. Farmer, 197 P.3d 904 (Table), 2008 WL 5401338, *4 (Kan. Ct.
App. Dec. 19, 2008) (Kansas statute punishes conduct in utilizing the phone with intent to harass,
not the use of speech); State v. Thompson, 237 Kan. 562, 568, 701 P.2d 694, 699 (1985) (upholding

19

Kansas telephone harassment law against First Amendment challenge). Nickols is accordingly
entitled to dismissal of the claim against him in his individual capacity on the basis of qualified
immunity.
5. Count I - against Nickols in his official capacity. Defendants argue the amended
complaint contains only conclusory allegations that official policies or customs of Sheriff Nickols
caused a deprivation of Plaintiffs’ rights, such that the official capacity claims against Nickols
should be dismissed.3 (Doc. 51 at 22.) Plaintiffs respond that this “is a red herring” because
Nickols is the final policymaker for the county, such that his actions represent established policies
of the sheriff’s department. (Doc. 73 at 26-27.)
A local government may be liable under § 1983 only “when execution of a government’s
policy or custom, whether made by its lawmakers or those whose edicts or act may fairly be said
to represent official policy, inflicts the injury.” Monell v. Dep’t of Soc. Servs. of City of New York,
436 U.S. 658, 694 (1978). The Tenth Circuit has recognized that:
A municipal policy or custom may take the form of (1) a formal regulation or policy
statement; (2) an informal custom amounting to a widespread practice that ... is so
permanent and well settled as to constitute a custom or 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.
Crittenden v. City of Tahlequah, 786 F. App’x 795, 800 (10th Cir. 2019) (citing Bryson v. City of
Okla. City, 627 F.3d 784, 788 (10th Cir. 2010)). Kansas law generally vests county sheriffs with

3
Defendants also argue the Thomas County Sheriff’s Department should be dismissed as a party because it is not an
entity that can be sued under state law. (Doc. 51 at 19 n.3.) Plaintiffs did not respond to this argument. (Doc. 73.)
The court finds the motion to dismiss the Thomas County Sheriff’s Department should be granted. See Walker v.
Douglas Cty. Sheriff’s Office, 2020 WL 5513618, *2 (D. Kan. Sept. 14, 2020) (Douglas County Sheriff’s Office is
not an entity which may be sued under the laws of Kansas; all suits against a county must be brought against the board
of county commissioners).

20

authority over law enforcement decisions, making sheriffs the final policymakers for the county
on law enforcement matters. See Dechant v. Grayson, No. 20-2183-HLT, 2021 WL 62380, *3 (D.
Kan. Jan. 7, 2021). It is not enough, however, for a § 1983 plaintiff merely to identify conduct
attributable to a local government; a plaintiff must also “show that the municipal action was taken
with the requisite degree of culpability and must demonstrate a causal link between the municipal
action and the deprivation of federal rights.” Bd. of Cty. Comm’rs of Bryan Cty., Okla. v. Brown,
520 U.S. 397, 404 (1997).
Plaintiffs’ response argues that three actions by Nickols constitute policies that support
Monell claims. First, Plaintiffs assert that Nickols’ actions “permitting deputies to help private
actors ensure successful repossession of others’ property without a court order” support a claim.
(Doc. 73 at 27.) But the amended complaint fails to allege facts showing the existence of such a
policy. It does not allege that Nickols was involved in the repossession of Plaintiffs’ truck, and it
only vaguely alludes to “other claims based on similar facts being brought against other members
of the Thomas County’s Sheriff’s Department.” (Doc. 45 at 21.) Conclusory allegations of
unspecified other claims are insufficient to state a plausible claim for relief under Monell.4
Moreover, assuming this claim relies on a theory that Nickols subsequently ratified Cox’s actions
during the repossession, that would not aid Plaintiffs because any after-the-fact ratification could
not have been the cause of the deprivation claimed by Plaintiffs. See e.g., Feliciano v. City of
Cleveland, 988 F.2d 649, 656 n.6 (6th Cir. 1993) (“even if it were shown that the municipality
subsequently ratified the decision, the plaintiffs would then have to prove that the ratification was

4
Also insufficient are the amended complaint’s conclusory allegations of an official policy by Nickols “of
inadequately training and instructing deputies on the proper process for repossessing property….” (Doc. 45 at 21.)
That allegation is unsupported by any specific facts except Cox’s repossession of the F350, which the court concludes
is not sufficient to state a plausible claim. See City of Canton v. Harris, 489 U.S. 378, 390-91 (1989) (“That a particular
officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer’s shortcomings
may have resulted from factors other than a faulty training program.”)

21

a ‘moving force’ in causing the constitutional violation.”) Second, Plaintiffs assert a policy based
on Nickols’ actions in “retaliating against citizens who complain.” (Doc. 73 at 27.) Again, no
other instances of retaliation are identified in the amended complaint. But insofar as the amended
complaint alleges that Nickols himself threatened to arrest or to charge McLinn, such a decision
by the county’s final policymaker on law enforcement matters could qualify as an official policy
of the county for purposes of a Monell claim. As to that claim, the court rejects Defendants’
argument that Plaintiffs have failed to plausibly allege a policy or facts showing the policy caused
a constitutional deprivation. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (“If the
decision to adopt [a] particular course of action is properly made by that government’s authorized
decisionmakers, it surely represents an act of official government ‘policy’ as that term is
commonly understood.”) Finally, Plaintiffs assert a Monell claim based on Nickols’ actions in
“lying to hide an officer’s unconstitutional actions.” (Doc. 73 at 27.) The court concludes this
assertion fails to support any Monell claim. Even assuming the truth of the allegation that Nickols
lied when he said Cox had a court order authorizing the repossession, Plaintiffs fail to articulate
how such an action caused them to be deprived of a constitutional right. Accordingly, Nickols’
motion to dismiss the official capacity claims against him is granted in part and denied in part.
6. State law claims – notice-of-claim. The Thomas County Defendants argue the state
law claims should be dismissed for lack of jurisdiction because Plaintiffs did not provide notice of
the claims as required by K.S.A. 12-105b(d). (Doc. 51.) In response, Plaintiffs argue they
substantially complied with the statute “by calling the Sheriff’s Department to file a complaint.”
(Doc. 73 at 27.) The court rejects Plaintiffs’ substantial compliance argument and finds that the
state law claims must be dismissed for failure to satisfy K.S.A. 12-105b(d).

22

Section 12-105b(d) provides in part that any person having a claim against a municipality
or an employee of a municipality which could give rise to a claim under the Kansas Tort Claims
Act (KTCA) must file the notice required by that section before commencing an action in court.
The term “municipality” includes a county. K.S.A. 12-105a(a). The notice “shall be filed with
the clerk or governing body of the municipality” and shall contain specified information, including
a statement of the amount of damages sought. K.S.A. 12-105b(d). A party’s “substantial
compliance” with the statutory requirements “shall constitute a valid filing of a claim.” Id. “It is
… well-established that compliance with the requirements of § 12–105b is mandatory under
Kansas law.” Lara v. Unified Sch. Dist. #501, 350 F. App'x 280, 284 (10th Cir. 2009) (citing Myers
v. Bd. of County Comm'rs of Jackson County, 280 Kan. 869, 127 P.3d 319, 325 (2006)).
“Compliance with …. 12-105b(d) is required before a court has subject matter jurisdiction over a
tort claim against a municipality.” Whaley, 343 P.3d at 67 (2014).
In Myers, the Kansas Supreme Court rejected an argument that sending a claim letter to a
county counselor constituted substantial compliance under section 12-105b(d):
If the statutory requirements are not met, the court cannot acquire jurisdiction over
the municipality. Allowing a claimant to serve notice on a county counselor or
anyone else who is not the ‘clerk or governing body of the municipality’ as
specified in [the statute] would violate the clear language in [K.S.A. 12-105b]. The
‘substantial compliance’ language does not authorize the court to create new
methods of serving notice of claim.
Myers, 127 P.3d at 325. Under this rule, Plaintiffs’ purported attempts to serve notice of his claims
upon the Thomas County Sheriff did not constitute substantial compliance. For a county, the term
“governing body” means the board of county commissioners. K.S.A. 12-105a(b). Plaintiffs do
not allege that they made any attempt to timely serve notice of their claims on the board of county

23

commissioners, nor do they allege facts showing they could not reasonably have done so.5 The
court thus finds it lacks subject matter jurisdiction over the state law claims against the Thomas
County Defendants.
B. Defendants Ryburn/Triple T. Towing
1. Count I - Section 1983 claim against Ryburn/Triple T - repossession. Defendants argue
the amended complaint fails to state a claim against Ryburn6 under section 1983 because Ryburn
was not a state actor at the time of the repossession. Defendants additionally argue McLinn lacks
standing to assert a § 1983 claim because, according to Defendants, Outlaw Towing rather than
McLinn owned the F350. (Doc. 47 at 1-2.)
“[T]o hold a private individual liable under § 1983, it must be shown that the private person
was jointly engaged with state officials in the challenged action, or has obtained significant aid
from state officials, or that the private individual's conduct is in some other way chargeable to the
State.” Counce v. Wolting, 760 F. App'x 575, 580 (10th Cir. 2019) (quoting Pino v. Higgs, 75 F.3d
1461, 1465 (10th Cir. 1996) (internal quotation marks omitted)). The individual must be a “willful
participant in joint action with the State or its agents.” Beedle v. Wilson, 422 F.3d 1059, 1071
(10th Cir. 2005).
The court rejects the contention that Ryburn’s status as a private individual means he
cannot be liable on the § 1983 claim. Plaintiffs allege that Cox came to the scene at the request of
Ryburn; that the two coordinated their arrival; that they discussed a plan for the repossession; that

5

Plaintiffs’ brief intimates that Nickols’ alleged threats to arrest or charge McLinn with phone harassment somehow
excused Plaintiffs’ failure to comply with K.S.A. 12-105b(d). (Doc. 73 at 27.) But Plaintiffs allege nothing to show
that they refrained from sending a written notice of claim to the board of county commissioners because they feared
doing so might expose them to an arrest or a criminal charge.
6
The amended complaint alleges that Triple T Towing is a sole proprietorship operated by Ryburn, and that the actions
of each of these Defendants is the action of the other. (Doc. 45 at 4-5.) For purposes of the instant motion, the parties
have treated the two collectively and the court has done so as well. For purposes of this ruling, references to Ryburn
thus apply equally to Triple T Towing.

24

Cox aided Ryburn by positioning himself near McLinn, by ignoring McLinn’s demands to leave
the property, and by instructing McLinn that he had to let the repossession go through; and that
Cox remained on the scene near McLinn until the repossession was complete. These allegations
are sufficient to plausibly show joint engagement between Ryburn and Cox and/or that Ryburn
obtained significant aid from Cox, in what was essentially a joint venture to seize the vehicle
without a court order. Plaintiffs have adequately alleged that Ryburn acted under color of state
law. Dennis v. Sparks, 449 U.S. 24, 27 (1980) (“[T]o act ‘under color of’ state law for § 1983
purposes does not require that the defendant be an officer of the State. It is enough that he is a
willful participant in joint action with the State or its agents.”)
With respect to Defendants’ argument that McLinn lacks standing to assert a § 1983 claim
because he did not own the F350, the court rejects this argument, at least for now, based on the
allegations in the amended complaint. According to the amended complaint, “Plaintiffs purchased
[the] … Ford F350….” (Doc. 45 at 6.) Assuming that allegation is true, McLinn has standing to
assert a claim that he had an ownership interest and was unlawfully deprived of the F350.
2. Jurisdiction over state law claims. Defendants argue that if the court dismisses the §
1983 claim, it should dismiss the state law claims for lack of jurisdiction. (Doc. 47 at 9.) The
court has denied the motions to dismiss the § 1983 claim, however, and finds supplemental
jurisdiction over the state law claims is properly exercised. 28 U.S.C. § 1367(a) (where federal
court has original jurisdiction over one claim, it has supplemental jurisdiction over other claims
that are part of the same controversy).
3. Trespass and conversion. Defendants argue Ryburn did not commit a trespass or
conversion because he was authorized to enter the property to repossess the F350 pursuant to
K.S.A. 84-9-609. (Doc. 47 at 11.) Defendants also contend there was no trespass or conversion

25

because Plaintiffs consented to the repossession through the loan agreement. (Id. at 13.) The court
rejects these arguments.
Defendants’ contention that K.S.A. 84-9-609 authorized the entry and repossession is
premised on the assumption that there was no breach of the peace in connection with the
repossession. (Doc. 47 at 12-13.) For reasons previously stated, however, the court finds Plaintiffs
have sufficiently alleged a breach of the peace. Moreover, Kansas law makes clear that K.S.A.
84-9-609 “does not authorize a secured party who repossesses without judicial process to utilize
the assistance of a law enforcement officer.” Id., UCC Comment (3). That assistance is precisely
what Plaintiffs have alleged in this case.
Plaintiffs’ purported consent in the security agreement likewise does not preclude a claim
for trespass or conversion. As Plaintiffs point out, Kansas law provides that a debtor may not
waive the provisions of K.S.A. 84-9-609 “to the extent that it imposes upon a secured party that
takes possession of collateral without judicial process the duty to do so without a breach of the
peace.” K.S.A. 84-9-602(6). Moreover, even assuming the loan agreement included some form
of consent, any such consent was revoked by McLinn when he demanded that Ryburn leave the
F350 and get off the property. See e.g., James v. Ford Motor Credit Co., 842 F. Supp. 1202, 1208
(D. Minn. 1994), aff'd, 47 F.3d 961 (8th Cir. 1995) (“It is reasonably clear that Minnesota follows
the majority view of U.C.C. § 9–503: when debtors specifically object to repossession, they revoke
any implied right previously granted to the creditors to enter the debtor's property without
consent.”)
4. Improper repossession under the UCC. Count IV alleges that the repossession was
unlawful under the requirements of K.S.A. 84-9-609, and that Triple T/Ryburn “as the agent of
FSB, [is] responsible for the unauthorized repossession.” (Doc. 45 at 31.) Defendants argue the

26

UCC provisions do not place any duty on Triple T/Ryburn because they are not creditors. (Doc.
47 at 14.)
Plaintiffs cite no authority showing a right to damages against Triple T/Ryburn for any
violation of the UCC. Instead, Plaintiffs simply argue the court “should not give countenance” to
Defendants’ arguments. (Doc. 58 at 24.) But Plaintiffs have identified no provision of the Kansas
UCC or Kansas law authorizing a claim for damages against the agent of a secured creditor in
these circumstances. The provision allegedly violated, K.S.A. 84-9-609, provides that “a secured
party … may proceed without judicial process, if it proceeds without a breach of the peace.”
(emphasis added.) Similarly, insofar as Article 9 invokes a duty of care with respect to collateral,
it states that “a secured party shall use reasonable care” for collateral in its possession. K.S.A. 849-207(a) (emphasis added). The Article 9 provision authorizing damages states in part that “a
person is liable for damages in the amount of any loss caused by a failure to comply with this
article.” K.S.A. 84-9-625. Taken together, the provisions show there is a duty on the part of “the
secured party” to proceed without a breach of the peace and that the secured party is liable in
damages in the event it “fail[s] to comply with this article.” Because Triple T/Ryburn is not a
secured party, the motion to dismiss this claim against them is granted.
5. Breach of contract. Defendants next argue the amended complaint fails to state a valid
claim for breach of contract against Ryburn/Triple T because they were not a party to any contract
with Plaintiffs. (Doc. 47 at 15.) Plaintiffs’ response again invokes the same UCC provisions cited
above. (Doc. 58 at 25.) Plaintiffs also assert arguments that appear to have nothing to do with the
existing contract between FSB and Plaintiffs. See id. (“The fact that Triple T held itself out as a
professional towing enterprise seems particularly inconsistent with the notion it should not have
been expected to complete its performance in a workmanlike and legal manner.”)

27

A claim for breach of contract in Kansas requires, among other things, a showing of “the
existence of a contract between the parties.” Stechschulte v. Jennings, 297 Kan. 2, 298 P.3d 1083
(2013). Plaintiffs have not alleged there was any contract between them and Ryburn/Triple T.
The motion to dismiss the breach of contract claim against Ryburn/Triple T is granted.
6. Negligent and intentional infliction of emotional distress. Defendants argue Count VI
fails to state a claim for intentional or negligent infliction of emotional distress because it does not
allege the type of “extreme and outrageous” facts or the “extreme and severe” emotional distress
required for a claim in Kansas. (Doc. 47 at 16.) They additionally contend the allegations fail to
state a claim for negligent infliction of emotional distress because Plaintiffs fail to allege a physical
injury associated with the distress. (Id. at 17.) The court agrees and concludes the claim must be
dismissed.
A claim for intentional infliction of emotional distress – or “outrage” – under Kansas law
requires proof of four elements: (1) The conduct of the defendant was intentional or in reckless
disregard of the plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal
connection between the defendant's conduct and the plaintiff's mental distress; and (4) the
plaintiff's mental distress was extreme and severe. Valadez v. Emmis Commc'ns, 290 Kan. 472,
476, 229 P.3d 389 (2010). There are two threshold requirements that must be met: (1) whether
“[D]efendant's conduct may reasonably be regarded as so extreme and outrageous as to permit
recovery,” and (2) whether “the emotional distress suffered by Plaintiff is in such extreme degree
the law must intervene because the distress inflicted is so severe that no reasonable person should
be expected to endure it.” Id. at 477, 229 P.3d 389. Kansas also permits recovery for the negligent
infliction of emotional distress, but courts have “long held that a plaintiff cannot recover for
emotional distress caused by the defendant's negligence unless that emotional distress is

28

accompanied by or results in physical injury to the plaintiff.” Majors v. Hillebrand, 51 Kan. App.
2d 625, 628, 349 P.3d 1283, 1285 (2015) (citing Hoard v. Shawnee Mission Med. Ctr., 233 Kan.
267, 274, 662 P.2d 1214 (1983)). “The qualifying physical injury ‘must directly result from the
emotional distress allegedly caused by the defendant's negligence and must appear within a short
span of time after the emotional disturbance.’” Id. (citing Hoard, 233 Kan at 279, 662 P.2d at
1222).
Plaintiffs rely principally on the allegations of an unauthorized and unlawful repossession
to support the claims for infliction of emotional distress. (Doc. 45 at 36.) Additionally, they allege
that Ryburn “posted at least one photograph of [the F350] on … SnapChat,” “told several members
of the community about the repossession” and about McLinn’s payment history, and “shout[ed]
names at McLinn on a public street” after the repossession. (Doc. 45 at 18-19.) These allegations
are insufficient under Kansas law to support a claim for intentional or negligent infliction of
emotional distress. “In order to provide a sufficient basis … conduct must be outrageous to the
point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society.”
Valadez, 229 P.3d at 394 (citation omitted.) “Conduct that rises to the level of tortious outrage
must transcend a certain amount of criticism, rough language, and occasional acts and words that
are inconsiderate and unkind. The law will not intervene where someone's feelings merely are
hurt.” Id. Defendants’ alleged actions, even if improper, do not come close to the level of “extreme
and outrageous” conduct that Kansas courts find necessary to support a claim. See e.g., Neufeldt
v. L.R. Foy Const. Co. Inc., 236 Kan 664, 668, 693 P.2d 1194, 1198 (1985) (knowingly and falsely
telling a woman who recently suffered a miscarriage that the sheriff was coming to get her husband
over a bad check was not sufficient); W-V Enter., Inc. v. Fed. Sav. & Loan Ins. Corp., 234 Kan
354, 673 P.2d 1112 (1983) (although defendant's conduct was “fraudulent and deceptive” it did

29

not meet the definition of outrageous). Additionally, Plaintiffs’ allegations fail to show a physical
injury directly resulting from the emotional distress within a short time after the emotional
disturbance. Plaintiffs merely allege that distress caused by Defendants “has and continues to
exacerbate a back injury McLinn sustained when a debtor fractured one of his vertebrae during a
repossession.” (Doc. 45 at 19.)
V. Conclusion
The Thomas County Defendants’ (Cox, Nickols, Thomas County Sheriff’s Department,
and Thomas County Board of County Commissioners) motion to dismiss (Doc. 50) is GRANTED
IN PART and DENIED IN PART. The motion is GRANTED insofar as Count I alleges a § 1983
claim against Nickols for repossession of the F350, insofar as Count I alleges a claim against
Nickols in his official capacity for the repossession, and insofar as Count I asserts a First
Amendment retaliation claim against Nickols in his individual capacity; such claims are
DISMISSED. The motion is also GRANTED as to the state law claims against these Defendants;
Counts II, III, IV, V, and VI against the Thomas County Defendants are DISMISSED WITHOUT
PREJUDICE for lack of jurisdiction under K.S.A. 12-105b(d). The Thomas County Sheriff’s
Department is DISMISSED as a party. The motion is otherwise DENIED.
Defendants’ Ryburn and Triple T Towing’s motion to dismiss (Doc. 46) is GRANTED IN
PART and DENIED IN PART. The motion is GRANTED as to Count IV (improper repossession
under the UCC), Count V (breach of contract), and Count VI (negligent and intentional infliction
of emotional distress); the foregoing claims against Rybrun and Triple T Towing are DISMISSED.
The motion is DENIED as to Count 1 (§ 1983 claim), Count II (trespass), Count III (conversion)
against Ryburn and Triple T Towing, and as to these Defendants’ request to dismiss for lack of
jurisdiction.

30

FSB’s motion to dismiss (Doc. 52) is DENIED without prejudice to reassertion based on
the parties’ notice of settlement.
Plaintiffs’ motions for hearing (Doc. 71) and to file a surreply (Doc. 77) are DENIED.
IT IS SO ORDERED this 26th day of April, 2021.

_____s/ John W. Broomes__________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

31