McCoy (ID 76894) v. Meyers et al
Filing
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MEMORANDUM AND ORDER Denying 35 Motion to Dismiss for Failure to State a Claim; Denying 29 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Carlos Murguia on 02/20/2015. Mailed to pro se party DeRon McCoy by regular mail. (sv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DERON McCOY,
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Plaintiff,
v.
TYSON MYERS, et al.,
Defendants.
Case No. 12-3160-CM
MEMORANDUM AND ORDER
Plaintiff Deron McCoy filed a pro se complaint pursuant to 42 U.S.C. § 1983 alleging that
members of the Hutchinson Police Department, individually and in their official capacity, violated
his constitutional rights when they used excessive force during his arrest. (Doc. 1.) Plaintiff was
granted leave to amend his complaint and named the following five individuals as Hutchinson police
officers: Tyson Meyers, Darrin Pickering, Brice Burlie, Jeramy Hedges, and Corey Graber. (Doc. 15.)
Hedges and Graber assert that they are not Hutchinson police officers but are, rather, Reno County
sheriff’s deputies. This matter is before the court on Hedges and Graber’s Motion to Dismiss (Doc.
29) and Meyers, Pickering, and Burlie’s Motion to Dismiss (Doc. 35).
Plaintiff’s lawsuit arises from events that transpired when plaintiff was arrested at a hotel in
Hutchinson, Kansas on March 22, 2011. In his Second Amended Complaint, plaintiff set forth his
account of what happened during the arrest, alleging that the officers twice beat and choked him into
unconsciousness. (Doc. 15 at 4.) Plaintiff claims this force was excessive in violation of his Fourth
Amendment rights.
I.
Legal Standards
A. Motion to Dismiss
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The court will grant a 12(b)(6) motion to dismiss only when the factual allegations fail to “state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Although the factual allegations need not be detailed, the claims must set forth entitlement to relief
“through more than labels, conclusions and a formulaic recitation of the elements of a cause of action.”
In re Motor Fuel Temperature Sales Practices Litig., 534 F. Supp. 2d 1214, 1216 (D. Kan. 2008). The
allegations must contain facts sufficient to state a claim that is plausible, rather than merely
conceivable. Id. “All well-pleaded facts, as distinguished from conclusory allegations, must be taken
as true.” Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The court construes any reasonable inferences from these facts in favor of the
plaintiff. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006).
B. Judicial Notice
In his Second Amended Complaint, plaintiff referenced the fact that he went to trial in Reno
County District Court “for the criminal charges that arose from the events that happen [sic] on March
22, 2011” and was found guilty “of several charges which included several counts of aggravated
assault of a [law enforcement officer].” (Doc. 15 at 5.) Defendants ask the court to take judicial notice
of plaintiff’s state criminal proceeding, attaching certified copies of the following court documents
from plaintiff’s criminal trial: the completed verdict form, plaintiff’s motion to dismiss, the state
court’s opinion denying plaintiff’s motion to dismiss (“the Opinion”), and the sentencing journal entry.
(Docs. 30-1–30-5.)
In evaluating a motion to dismiss, the court is limited to assessing the legal sufficiency of the
allegations contained within the four corners of the complaint. Archuleta v. Wagner, 523 F.3d 1278,
1281 (10th Cir. 2008). However, a court may take judicial notice of facts that are a matter of public
record and of state court documents. Tal, 453 F.3d at 1264 n.24 (10th Cir. 2006); Pace v. Swerdlow,
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519 F.3d 1067, 1072 (10th Cir. 2008). “[F]ederal courts, in appropriate circumstances, may take
notice of proceedings in other courts, both within and without the federal judicial system, if those
proceedings have a direct relation to matters at issue.” St. Louis Baptist Temple, Inc. v. Fed. Deposit
Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (citations omitted). The court does so without
converting a motion to dismiss into a motion for summary judgment. Grynberg v. Koch Gateway
Pipeline Co., 390 F.3d 1276, 1278 n.1 (10th Cir. 2004) (citations omitted).
As pleaded in his Second Amended Complaint, plaintiff’s state criminal proceeding is directly
related to the instant lawsuit because that proceeding arose from the events that occurred during
plaintiff’s arrest, which is the incident about which plaintiff complains here. The court therefore takes
judicial notice of the certified state court documents provided by defendants.
II.
Analysis
According to plaintiff, on March 22, 2011, he occupied a hotel room with his sister and his
seven-month-old infant when police were dispatched “for a possible child custody dispute.” (Doc. 15
at 2.) Plaintiff describes that the police officers attempted to contact plaintiff inside the room and,
when they were unsuccessful, the officers cut off electrical power for a one-block radius. (Id. at 4.)
Plaintiff claims that defendants then entered the hotel with weapons drawn and that, once in the room,
defendants twice beat and choked him—once when he was face down on the floor with his hands
behind his back, and then again after his feet were zip-tied and he was placed in a chair. (Id.) Plaintiff
alleges that he did not fight the officers or otherwise attempt to resist arrest. (Id.)
Ultimately, plaintiff was convicted by a Reno County jury of kidnapping, aggravated assault,
aggravated endangerment of a child, drug possession, and criminal possession of a firearm. Plaintiff
also was convicted of five counts of aggravated assault on a law enforcement officer in violation of
Kan. Stat. Ann. § 21-3410 against the following five individuals: defendants Pickering, Graber, and
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Burlie, Deputy Matt Tatro, and Sergeant Brian Hirt.1 (Doc. 30-4.) Plaintiff is currently serving his
sentence for these crimes.
A. Official Capacity Claims
Defendants argue that plaintiff fails to state a claim against them in their official capacities.
Plaintiff concedes he has failed to set forth allegations that these defendants are liable in their official
capacities and withdraws any such clams. (Doc. 33 at 2; Doc. 37 at 2.) Accordingly, to the extent
plaintiff has sued these defendants in their official capacities, those claims are dismissed.
B. Heck v. Humphrey
Defendants argue that plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994).
In Heck, the Court held:
[W]hen a state prisoner seeks damages in a § 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it would,
the complaint must be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.
Heck, 512 U.S. at 487. Defendants maintain that plaintiff’s claims of excessive force must be
dismissed because a judgment in his favor would invalidate his convictions for aggravated assault on
law enforcement officers.
In Cook v. Olathe Medical Center., Inc,—a case not mentioned by defendants— the plaintiff
was convicted in state court of driving under the influence and battery on a law enforcement officer.
773 F. Supp. 2d 990, 997 (D. Kan. 2011). In her § 1983 case, the plaintiff claimed the defendants used
excessive force while 1) she was being transported by ambulance to the hospital2 and 2) while she was
1
Deputy Matt Tatro and Sergeant Brian Hirt are not named in this lawsuit.
The plaintiff claimed that, while she was compliant, handcuffed, and strapped to a stretcher, officers started feeling
around, checking her pockets and pinching, squeezing and holding her down, choking her, and that she suffered bruises on
her arms as a result of their actions. Cook, 773 F. Supp. 2d at 1099.
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at the hospital.3 The defendant police officers argued that a judgment in favor of the plaintiff on her
§ 1983 claim would necessarily imply that her battery conviction was invalid.
The Cook court rejected this blanket argument and instead looked to the evidence presented in
the plaintiff’s underlying criminal trial. Id. The court concluded that the record was unclear as to
when the acts of battery against the officers occurred in relation to when the alleged excessive force
occurred. Id. This was important because, to the extent the plaintiff’s conviction for battery on a law
enforcement officer was based on evidence that she battered the officers while struggling against them
in the ambulance, Heck would bar plaintiff’s claim that defendants used excessive force against her in
the ambulance, but not necessarily her claims that defendants used excessive force at the hospital. Id.
at 1015–16 (citing Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996); Bush v. Strain, 513 F.3d 492,
498 (5th Cir. 2008); Pratt v. Giroir, No. 07-1529, 2008 WL 975052, at *5 (E.D. La. April 8, 2008)).
As the court explained: “[I]f the jury convicted plaintiff based on her conduct in the ambulance, a
finding in this action that the officers used excessive force against her at the hospital would not
necessarily imply that her conviction is invalid.” Id. (citing Bush, 513 F.3d at 498). In the end, the
court could not determine on the record which facts comprised the basis for the jury’s conviction for
battery of a law enforcement officer and, as a result, denied summary judgment. Id.; see also Robbins
v. Chronister, No. 97-3489-JWL, 2000 WL 1389616, at *4 (D. Kan. July 28, 2000) (“[T]he court
believes that there is simply nothing inherently inconsistent between plaintiff’s conviction for
attempted aggravated assault of [] a law enforcement officer, and plaintiff’s contention that, prior to
the conduct for which he was convicted, [the officer] utilized unlawful force in an attempt to effect an
otherwise lawful arrest.”).
3
The plaintiff claimed the officers used excessive force at the hospital when they held her down for blood and urine draws.
Id.
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In this case, there is little record evidence related to the circumstances of plaintiff’s aggravated
assault on law enforcement officers convictions and, as such, the court cannot determine on what facts
the jury relied in convicting plaintiff. For example, the court does not have the benefit of the trial
transcript, jury instructions, or any evidence establishing when plaintiff committed the aggravated
assault on the law enforcement officers in relation to when the alleged excessive force occurred.4 The
court has only plaintiff’s allegation that his aggravated assault convictions were based on his actions in
refusing to come out of the hotel room—not on his actions during the time he was being placed under
arrest. (Doc. 15 at 5.) Therefore, on this record, the court cannot say as a matter of law that a finding
the officers used excessive force during plaintiff’s arrest would necessarily invalidate plaintiff’s
conviction for aggravated assault against law enforcement officers—the excessive force may have
occurred after the aggravated assault was over. See Pratt, 2008 WL 975052 at *5 (concluding that
Heck does not preclude excessive force claim temporally and conceptually distinct from factual basis
for conviction). This especially applies to defendants Meyers and Hedges because plaintiff was not
convicted of assaulting these two officers, so there is no basis for the court to conclude that a
successful § 1983 action against Meyers and Hedges would invalidate any of plaintiff’s aggravated
assault convictions.
The court cannot determine which facts comprised the basis for the jury’s convictions for
aggravated assault on a law enforcement officer. As a result, the court cannot conclude that a
successful resolution of plaintiff’s § 1983 excessive force claim would necessarily invalidate his state
court assault convictions. Accordingly, the court denies defendants’ motions to dismiss on the basis of
Heck. See Cook, 773 F. Supp. 2d at 1015.
C. Issue Preclusion
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Indeed, the court generally would not expect such evidence on a motion to dismiss.
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Defendants also argue that plaintiff’s § 1983 claim is barred by the doctrine of issue preclusion
because, they claim, the issue of the officers’ excessive force already has been adjudicated. In his state
court case, plaintiff filed a pretrial motion to dismiss on the basis that the police officers’ conduct was
“so extreme and violent that [his] rights to Due Process were violated.” (Doc. 30-2.) After a hearing
on the matter, the state court judge issued the Opinion, stating that “the actions of the Hutchinson
Police Department in effectuating the arrest of the Defendant [were] justified and reasonable under the
circumstances. The police conduct was not extreme and violent and does not offend or shock the
conscience of the Court.” (Doc. 30-3 at 1.) Defendants maintain that, because the state court judge
decided the issue of excessive force, plaintiff is barred from re-litigating the issue.
Under the full faith and credit statute,5 “federal courts generally must give the same preclusive
effect to a state court judgment that the judgment would have received in the courts of that state.”
Carter v. City of Emporia, Kan., 815 F.2d 617, 619 (10th Cir. 1987). In Kansas, “[i]ssue preclusion
prevents a second litigation of the same issue between the same parties, even when raised in a different
claim or cause of action.” In re Application of Fleet for Relief from a Tax Grievance in Shawnee
Cnty., 272 P.3d 583, 589 (Kan. 2012). Three elements are required for issue preclusion: 1) a prior
judgment on the merits that determined the parties’ rights and liabilities on the issue based upon
ultimate facts as disclosed by the pleadings and judgment; 2) the same parties or parties in privity; and
3) the issue litigated must have been determined and necessary to support the judgment. Id.
In this case, the court cannot say as a matter of law that plaintiff’s excessive force claim has
been fully litigated. The court recognizes the state court’s finding of justification and reasonableness,
but at that time plaintiff’s attorney was arguing that plaintiff’s substantive due process rights under the
Fourteenth Amendment were violated, claiming that the police methods “shock the conscience or
offend the collective sense of the justice of this court.” (Doc. 30-1 at 1.) In this lawsuit, plaintiff is
5
28 U.S.C. § 1738.
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arguing that his Fourth Amendment rights were violated, and those claims are analyzed using an
objective reasonableness standard. Medina v. Cram, 252 F.3d 1124, 1131 (10th Cir. 2001)
(citing Graham v. Connor, 490 U.S. 386, 395 (1989)). This distinction is important because the test
for excessive force under the Fourth Amendment (objective reasonableness) is significantly different
than the test under the Fourteenth Amendment (shocks the conscience). Arnold v. Curtis, 359 F.
App’x 43, 49 (10th Cir. 2009) (comparing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)
with Graham, 490 U.S. at 397). Because the level of egregiousness needed to establish a violation of
plaintiff’s substantive due process is much higher, it is possible to find an officer’s actions did not
shock the conscience but were nonetheless objectively unreasonable. Arnold, 359 F. App’x at 49 (10th
Cir. 2009) (citing Bangert Bros. Constr. Co. v. Kiewit W. Co., 310 F.3d 1278, 1290 (10th Cir. 2002)).
The court cannot determine on this record whether plaintiff had a full and fair opportunity to
litigate the issue of excessive force under the Fourth Amendment’s standards. The court does not have
a transcript of the pretrial hearing, so the court does not know what evidence was presented or what
arguments were made by counsel. The documents provided by defendants do not disclose whether the
trial judge considered issues and evidence related to objective reasonableness—as opposed to shocks
the conscience—and the court cannot determine on what ultimate facts the trial judge relied in issuing
the Opinion. Lacking a full record, the court cannot say that plaintiff is precluded from litigating the
issue of objective reasonableness. The court concludes that issue preclusion does not bar plaintiff’s
Fourth Amendment excessive force claim.6
D. Qualified Immunity
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This is especially true with regard to defendants Hedges and Graber, who are Reno County Sheriff’s deputies. In the
Opinion, the state court trial judge made written findings only with respect to “the actions of the Hutchinson Police
Department.” (Doc. 30-3 at 1.) The state court trial judge never mentioned in the Opinion the Reno County Sheriff’s
Department or its deputies. Thus, the court cannot determine whether the state court trial judge actually considered the
conduct of all the officers allegedly present during plaintiff’s arrest (both Hutchinson police officers and Reno County
deputies) and simply failed to appreciate that some of the arresting officers were not Hutchinson police officers, or whether
the state court trial judge was presented with evidence only related to the conduct of the Hutchinson police officers. To the
extent the latter is the case, there would be no issue preclusion as to defendants Hedges and Graber.
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Defendants argue that they are entitled to qualified immunity. The doctrine of qualified
immunity protects government officials who perform discretionary government functions from liability
for civil damages and the obligation to defend the action. See Johnson v. Fankell, 520 U.S. 911, 914
(1997); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This immunity is only applicable, however, if
the official’s conduct did not violate clearly established constitutional or statutory rights that would
have been known by a reasonable government official. See Harlow, 457 U.S. at 818; McFall v.
Bednar, 407 F.3d 1081, 1087 (10th Cir. 2005). “In resolving a motion to dismiss based on qualified
immunity, a court must consider whether the facts that a plaintiff has alleged make out a violation of a
constitutional right, and whether the right at issue was clearly established at the time of defendant’s
alleged misconduct.” Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011) (citing Leverington v.
City of Colo. Springs, 643 F.3d 719, 732 (10th Cir. 2011)). Moreover, the inquiry is not whether the
general right to be free from excessive force is clearly established—because it is—the inquiry is
whether plaintiff had a clearly established right under the particular facts of this case. Long v. Fulmer,
545 F. App’x 757, 760 (10th Cir. 2013).
In resolving an excessive force question in the context of qualified immunity on a motion to
dismiss, courts consider and balance three factors: “(1) the severity of the crime at issue, (2) whether
the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is
actively resisting arrest or attempting to flee.” Id. (citing Morris v. Noe, 672 F.3d 1185, 1195 (10th
Cir. 2012), and Graham, 490 U.S. at 396).
In his Second Amended Complaint, plaintiff included a lengthy narrative setting forth his view
of the events that transpired when he was placed under arrest, specifically alleging the following:
Pickering choked plaintiff until he was unconscious and stopped breathing;
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Meyers, Pickering, Burlie, Hedges, and Graber severely beat plaintiff while he was
face-down on the ground, being held down, and not resisting arrest or fighting;
Meyers choked plaintiff while he was handcuffed with his hands behind his back and
ankles zip-tied; and
Meyers, Pickering, Burlie, Hedges, and Graber beat plaintiff while he was in a chair
handcuffed with his hands behind his back and ankles zip-tied.
(Doc. 15 at 6–7).7
In considering the first factor, the court views crimes such as kidnapping, aggravated child
endangerment, and aggravated assault to be severe crimes. Accordingly, the court concludes that the
severity of the crimes plaintiff committed weighs against plaintiff’s claim that he was subjected to
excessive force.
However, with regard to the second factor, the record before the court is inconclusive regarding
the extent to which plaintiff posed an immediate threat to the safety of the officers or others. For
instance, in the Opinion, the state court trial judge stated that, when the officers tried to take plaintiff
into custody, plaintiff attempted to grab one of the arresting officer’s weapon. (Doc. 30-3 at 1.) In
response, plaintiff points to the fact that the Opinion was issued before the trial commenced, and
plaintiff claims that the allegation—that he attempted to grab an officer’s gun—was proven untruthful
at trial. (Doc. 33 at 8; Doc. 37 at 7.) On a motion to dismiss, and without the benefit of the trial
transcript, the court cannot determine whether this allegation was in fact disproven at trial.
Similarly, plaintiff maintains (over and over) that he never threatened the officers, resisted
arrest, or otherwise tried to flee, and he claims that defendants admitted this fact at trial. (Doc. 15 at
5.) Accepting as true all well-pleaded facts and viewing all reasonable inferences in plaintiff’s favor,
7
Defendants erroneously argue that plaintiff failed to adequately plead their individual conduct.
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the court cannot say on this record that plaintiff was resisting arrest or attempting to flee during the
time he was allegedly beaten. Accordingly, for purposes of these motions to dismiss, the court
determines that plaintiff has pleaded enough facts to plausibly suggest that the amount of force used by
the defendants was not objectively reasonable. As such, plaintiff has properly alleged an excessive
force violation for purposes of the first step of the qualified immunity analysis.
With regard to the second step, plaintiff alleges that he was twice beaten into unconsciousness
without resistance or provocation. If believed by the jury, the events plaintiff describes are sufficient
to support a claim of a violation of clearly established law. See Rhoads v. Miller, 352 F. App’x 289,
292 (10th Cir. 2009) (citing Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993) (holding
that plaintiff’s testimony that officers beat him with flashlights, kneed him in the groin, and shoved
him face-first into a wall supported excessive-force claim and showed a genuine issue of material fact
precluding summary judgment on qualified immunity); Frohmader v. Wayne, 958 F.2d 1024, 1026
(10th Cir. 1992) (holding that assaultive behavior against an arrestee by an officer could not be
determined to be objectively reasonable as a matter of law); Austin v. Hamilton, 945 F.2d 1155, 1157–
58 (10th Cir. 1991) (holding that, under arrestees’ version of the facts alleging repeated assaults
without provocation, no reasonable officer could have believed such treatment to be constitutionally
permissible), abrogated on other grounds by Johnson v. Jones, 515 U.S. 304, 309 (1995); Dixon v.
Richer, 922 F.2d 1456, 1463 (10th Cir. 1991) (holding that it was not objectively reasonable for an
officer to choke and beat a detainee where the detainee was not threatening the officer)).
The court concludes that application of the qualified immunity doctrine is not appropriate at
this stage in the litigation. The parties should present the court with a record that includes welldeveloped facts so the court can properly determine whether defendants are qualifiedly immune.
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Without such a record, the court cannot conclude that defendants are entitled to qualified immunity.
Dismissal is therefore not proper in these circumstances.
IT IS THEREFORE ORDERED that defendants’ motions to dismiss (Docs. 29 and 35) are
denied.
Dated this 20th day of February, 2015, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge
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