McCoy (ID 76894) v. Hienschmidt et al
Filing
82
MEMORANDUM AND ORDER granting in part and denying in part 67 Motion to Dismiss. See order for further details. Signed by District Judge Julie A. Robinson on 4/29/14. Mailed to pro se party DeRon McCoy by regular mail (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DERON MCCOY, JR.,
Plaintiff,
vs.
DAVID L. MILLER et. al.,
Defendants.
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Case No. 12-03050-JAR-KGS
MEMORANDUM AND ORDER
Plaintiff Deron McCoy, Jr. filed this suit against Defendants Michael Robinson, David
Miller, Chris Schultz, and Lee Campbell, in their individual and official capacities, for several
constitutional claims pursuant to 42 U.S.C. § 1983 and state law claims for false arrest and false
imprisonment, seeking monetary, compensatory, and punitive damages. Before the Court is
Defendants David Miller, Chris Schultz, and Lee Campbell’s Motion to Dismiss (Doc. 67). The
matter is fully briefed and the Court is prepared to rule. The Court grants in part and denies in
part Defendants’ motion to dismiss for the reasons set forth below.
I.
Factual Allegations
The following facts are alleged in the Second Amended Complaint and are construed in
the light most favorable to Plaintiff. Defendants Miller, Schultz and Campbell are police officers
for the Hutchinson Police Department. On October 19, 2010, Officers Miller, Schultz, and
Campbell arrived at Plaintiff’s residence in Hutchinson, Kansas, which he shared with his
girlfriend and infant daughter. Officers knocked on the door and requested entry into Plaintiff’s
residence but did not provide an explanation for why they wanted to gain entry. Not until
Plaintiff’s trial did Officer Campbell testify that the officers were dispatched to investigate a
“disturbance call.” Plaintiff and his girlfriend denied the request because the officers did not
have a search warrant. Plaintiff and his girlfriend further explained that no person from their
residence contacted the police department, and therefore, officers had no reason to search their
residence. Still, Officer Miller instructed Officer Schultz to kick open the back door of the
residence to gain access. After Officer Miller kicked open the door, the officers entered the
residence with their weapons drawn and pointed at Plaintiff and his girlfriend. Thereafter,
Plaintiff and his girlfriend were arrested for obstruction of justice.
Plaintiff was initially released on bond for several months and then later held in the Reno
County jail until completion of the proceedings in which Michael Robinson was the prosecutor.
Plaintiff alleged that the Kansas court acquitted him, reasoning that a person could not be
adjudged guilty of obstruction of justice while exercising his constitutional right to be free from
searches and seizures.
Plaintiff then filed this action, alleging claims under 42 U.S.C. § 1983 for violations of
his Eighth Amendment and Fourth Amendment rights and state law claims for false arrest and
false imprisonment. In an order of February 20, 2013, the Court dismissed Plaintiff’s Eighth
Amendment claim for failure to state a claim.1 Defendants now move for dismissal of Plaintiff’s
Fourth Amendment claim under Fed. R. Civ. P. 12(b)(1) and Plaintiff’s state law claims on the
ground that the statute of limitations has run.
II.
Legal Standard
Defendants move to dismiss the official and individual capacity claims under Fed. R.
Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted and because they are
1
The Court need not consider Plaintiff’s renewed Eighth Amendment claim, as it has already been
dismissed.
2
entitled to qualified immunity. The requirements underlying the legal sufficiency of a claim
stem from Rule 8(a), which requires “a short and plain statement of the claim showing that the
pleader is entitled to relief.”2 To survive a motion to dismiss, a complaint must present factual
allegations, assumed to be true, that “raise a right to relief above the speculative level,” and must
contain “enough facts to state a claim to relief that is plausible on its face.”3 “[T]he complaint
must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering
factual support for these claims.”4 The plausibility standard does not require a showing of
probability that a defendant has acted unlawfully, but requires more than “a sheer possibility.”5
“[M]ere ‘labels and conclusions,’ and ‘a formulaic recitation of the elements of a cause of
action’ will not suffice; a plaintiff must offer specific factual allegations to support each claim.”6
Finally, the Court must accept the nonmoving party’s factual allegations as true and may not
dismiss on the ground that it appears unlikely the allegations can be proven.7
The Supreme Court has explained the analysis as a two-step process. For the purposes of
a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but]
we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”8 Thus,
the court must first determine if the allegations are factual and entitled to an assumption of truth,
2
Fed. R. Civ. P. 8(a).
3
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
4
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in the original).
5
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
6
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S. at
555).
7
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
8
Id.
3
or merely legal conclusions that are not entitled to an assumption of truth.9 Second, the court
must determine whether the factual allegations, when assumed true, “plausibly give rise to an
entitlement to relief.”10 “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.”11
Because Plaintiff pursues his action pro se, the Court must remain mindful of additional
considerations. A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than pleadings drafted by lawyers.12 Thus, if a pro se plaintiff’s complaint can
reasonably be read “to state a valid claim on which the plaintiff could prevail, [the court] should
do so despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.”13 However, it is not “the proper function of the district court to assume the role
of advocate for the pro se litigant.”14 For that reason, the court should not “construct arguments
or theories for the plaintiff in the absence of any discussion of those issues,”15 nor should it
“supply additional factual allegations to round out a plaintiff’s complaint or construct a legal
9
Id. at 679.
10
Id.
11
Id. at 678.
12
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21
13
Id.
14
Id.
15
Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
1972)).
4
theory on plaintiff’s behalf.”16
III.
Discussion
Pursuant to 42 U.S.C. § 1983, Plaintiff’s Complaint asserts claims for violations of his
Fourth and Eighth Amendment rights. “Section 1983 does not create any substantive rights, but
provides a recovery for the deprivation of federal rights.”17 The statute “imposes liability for
violations of rights protected by the constitution or laws of the United States, not for violations
of duties of care arising out of tort law.”18 “To state a claim under § 1983, a plaintiff must allege
the violation of a right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of state law.”19
Furthermore, plaintiff must allege a violation of his own rights, and not the rights of someone
else.20
A.
Fourth Amendment Claims
Plaintiff alleges that Defendants violated his Fourth Amendment rights by forcibly
entering his home without a warrant, consent, probable cause, or exigent circumstances. The
Fourth Amendment protects individuals from unreasonable government intrusion on the home.21
While there is a presumption that warrantless searches and seizures inside a home are
unreasonable, that presumption can be rebutted “[w]hen faced with special law enforcement
16
Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997).
17
Scothorn v. Kansas, 772 F. Supp. 556, 560 (D. Kan. 1991).
18
Archuleta v. McShan, 897 F.2d 495, 496 (10th Cir. 1990).
19
West v. Atkins, 487 U.S. 42, 48 (1988).
20
Archuleta, 897 F.2d at 497.
21
United States v. Najar, 451 F.3d 710, 712 (10th Cir. 2006).
5
needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found
that certain general, or individual, circumstances may render a warrantless search or seizure
reasonable.”22 “One important exception to the warrant requirement is the presence of exigent
circumstances, such as the presence of evanescent evidence or an emergency requiring the
officer’s aid.”23 In determining whether the risk of personal danger creates exigent
circumstances, courts must examine “whether (1) the officers have an objectively reasonable
basis to believe there is an immediate need to protect the lives or safety of themselves or others,
and (2) the manner and scope of the search is reasonable.”24
Defendants argue that Plaintiff’s allegations that Defendants entered the residence absent
exigent circumstances and probable cause are merely legal conclusions that offer no factual basis
for his Fourth Amendment claim. The Court disagrees. In support of his Fourth Amendment
claim, Plaintiff alleges that he and his girlfriend reported to Defendants that they did not contact
the police department and denied consent to enter their residence. Plaintiff further alleges that
Defendants did not explain why they wanted to gain entry before knocking down the door with
their guns drawn.
Moreover, Plaintiff’s claim does not suggest that there was a risk of personal danger to
create exigent circumstances. Defendants came to Plaintiff’s residence in response to a
“disturbance call.” Several courts have recognized the importance of a 911 call in assessing
22
Id.
23
United States v. Martinez, 686 F. Supp. 2d 1161, 1181 (D.N.M. 2009) (citing Kirk v. Louisiana, 536 U.S.
635, 638 (2002)).
24
United States v. Gordon, 741 F.3d 64, 70 (10th Cir. 2014).
6
whether there was an immediate need to protect the lives or safety of others.25 However, in these
cases, the 911 call was either placed by someone in the home or there were facts in addition to
the phone call to suggest that someone was in danger.26 In the instant case, Plaintiff and his
girlfriend reported that they did not contact the police department and Plaintiff has not alleged
additional facts that suggest someone in the home was at risk. Although Defendants have
characterized it as a “disturbance call,” at this early stage, it is unclear what kind of disturbance
was allegedly reported, what circumstances surrounded the call, the identity of the caller, the
reliability of the caller, or whether the call was made to 911 or a non-emergency hotline.
Without more, the Court declines to reach the conclusion that, based upon the facts alleged, a
risk of personal danger created exigent circumstances. Accordingly, the Court finds that
Plaintiff has stated a plausible claim for a violation of his Fourth Amendment rights.
B.
Qualified Immunity
Upon Defendants’ assertion of a qualified immunity defense, Plaintiff has a two-part
burden. “Qualified immunity gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions.”27 To this end, qualified immunity shields
government officials from liability for money damages unless the plaintiff shows (1) that the
25
Najar, 451 F.3d at 719–20 (10th Cir. 2006) (collecting cases and finding that exigent circumstances
existed where officers tried to make contact with someone in the home for thirty minutes after the dispatcher
reported a 911 call from inside the residence, occupant refused to answer the telephone or door, and gunshots and
arguing were reported at appellant's address); United States v. Holloway, 290 F.3d 1331, 1338 (11th Cir. 2002)
(holding that exigent circumstances existed where the dispatcher reported two anonymous phone calls to officers
relaying a report of gunshots and arguing at appellant’s address and arrived to see appellant and his wife on the
porch of the home); see also United States v. Richardson, 208 F.3d 626, 631 (7th Cir. 2000) (explaining “we do not
exclude the possibility of a case in which it would be objectively unreasonable for a police officer to rely on a 911
call [] because of additional information available to the officer”).
26
Id.
27
Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2085 (2011).
7
official violated a statutory or constitutional law, and (2) that the right the official violated was
“clearly established” at the time of the challenged conduct.28 Qualified immunity is a defense
that must be pleaded by the defendant, but once the defendant raises it, the burden of proof is on
the plaintiff.29 Unless the plaintiff proves both prongs, the official is entitled to qualified
immunity.30 Courts have discretion to decide which of the two prongs of the analysis to address
first.31
The disturbance call standing alone, without further detail surrounding the circumstances
of the call, and Plaintiff’s denial of entry after explaining that an individual from his residence
did not make the call, do not show reasonable conduct by the officers that would warrant
qualified immunity on the basis that they did not violate a constitutional right that was clearly
established at that time. Defendants have raised several facts outside of the Complaint in support
of their qualified immunity analysis, which the Court cannot consider at this stage. Thus the
Court finds that Plaintiff has alleged sufficient facts showing that Defendants’ conduct likely
violated his Fourth Amendment rights. The Court cannot conclude at this stage that Defendants
acted reasonably. Although Defendants argue that exigent circumstances were present as an
exception to the Fourth Amendment warrant requirement, the Complaint does not clearly support
that argument. Accordingly, the Court finds that Defendants are not entitled to dismissal of
Plaintiff’s Fourth Amendment claims based on qualified immunity.
28
Id. at 2080.
29
Gomez, 446 U.S. at 640.
30
See al-Kidd, 131 S.Ct. at 2080.
31
Id. (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
8
C.
Official Capacity Claims
Plaintiff brings suit against Defendants in their individual and official capacities. “A suit
against a city official in his official capacity is no different from a suit against the City itself.”32
The City of Hutchinson may not be held liable under § 1983 simply because it employs a person
who is liable under § 1983.33 Instead, to hold a city liable under § 1983 for acts of its employees,
a plaintiff must establish that the municipality has a policy or custom that directly caused the
constitutional deprivation of rights.34
While Plaintiff has stated a plausible claim for deprivation of constitutional rights, he has
not alleged sufficient facts to establish that Hutchinson has a policy or custom that directly
caused such a deprivation. In fact, Plaintiff states “If during discovery (which has already
commenced) it comes to light that there has been a failure to adequately train or discipline the
defendnts (sic), the official office of the defendants would be liable.”35 The Supreme Court has
explained:
[I]nadequacy of police training may serve as the basis for § 1983
liability only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come
into contact . . . . Only where a failure to train reflects a
“deliberate” or “conscious” choice by a municipality—a “policy”
as defined by our prior cases—can a city be liable for such a
failure under § 1983.36
32
Thompson v. City of Lawrence, Kan., 58 F.3d 1511, 1517 (10th Cir. 1995).
33
Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 694 (10th Cir. 1978).
34
City of Canton v. Harris, 489 U.S. 378, 385 (1989); Hinton v. City of Elwood, 997 F.2d 774, 782 (10th
Cir. 1993).
35
Doc. 71 at 4.
36
Canton, 489 U.S. at 388–89.
9
Plaintiff’s statement that discovery could reveal a failure to adequately train or discipline is not
indicative of a deliberate or conscious choice by the city to fail to train Defendants. Outside of
legal conclusions, Plaintiff does not allege that any specific policies or customs by Hutchinson
led to a constitutional deprivation. Plaintiff must state factual allegations, not factual
possibilities. Accordingly, Plaintiff’s Fourth Amendment claims against Defendants in their
official capacities are dismissed.
D.
State Law Claims
Although Plaintiff conflates his Fourth Amendment and Eighth Amendment claims
(which were previously dismissed) with state law claims for false arrest and false imprisonment,
to the extent that Plaintiff asserts separate state law claims for false arrest and false
imprisonment, the Court finds that they are barred by the statute of limitations.
Plaintiff argues that the statute of limitations has not run on his false arrest and false
imprisonment claims, urging that a two-year statute of limitations applies. In Kansas, a one-year
statute of limitations governs claims arising out of conduct by law enforcement officers that
results in false arrest or imprisonment.37 Plaintiff alleges that Defendants arrested him and
subsequently falsely imprisoned him on October 19, 2010. Therefore, the statute of limitations
expired on October 19, 2011. However, Plaintiff did not file his claim until February 22, 2012,
four months after the statute of limitations expired. Therefore, the Court finds that Plaintiff’s
claims for false arrest and false imprisonment are barred by the applicable statute of limitations
and are hereby dismissed.
IT IS THEREFORE ORDERED BY THE COURT that Defendants David Miller,
37
K.S.A. § 60-514(b); Brown v. Kansas, 927 P.2d 938, 944 (Kan. 1996).
10
Chris Schultz, and Lee Campbell’s Motion to Dismiss (Doc. 67) is granted in part and denied in
part. Defendants’ motion to dismiss is granted with respect to the following claims which are
hereby dismissed in their entirety: Fourth Amendment claims against Defendants Michael
Robinson, David Miller, Chris Schultz and Lee Campbell in their official capacities are
dismissed; and the state law claim for false imprisonment, and state law claim for false arrest are
dismissed. Defendants’ motion to dismiss is denied with respect to Plaintiff’s Fourth
Amendment claims against Defendants Michael Robinson, David Miller, Chris Schultz, and Lee
Campbell in their individual capacities.
Dated: April 29, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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