Counce v. Wolting et al

Filing 127

MEMORANDUM AND ORDER ENTERED: Defendants' Motion to Dismiss 99 is granted in part and denied in part. Counts XII, XIII, XV and XVII are dismissed. Defendants Eric Sauer, Mark Bruce, Kirk Simone, and Darian Dernovish are dismissed from this case. All that remains, then, are plaintiff's individual-capacity claims for excessive force and denial of medical care. Plaintiff's motion for defendants to furnish Trooper Arnold's first and middle name 116 is granted and plain tiff's motion to file supplemental citation 120 is denied as moot. Counsel for KHP defendant shall file a report furnishing Trooper Arnold's first and middle name and his residential address, as well as Trooper Wolting's residential address to the court in camera. Alternatively, KHP Defendants may file waivers of service of summons pursuant to Rule 4(d).The clerk's office shall refer this matter to a magistrate to handle discovery and pretrial matters. Plaintiff shall not file any discovery requests until after the parties have a discovery conference with the magistrate judge. Signed by Chief Judge J. Thomas Marten on 02/17/17. Mailed to pro se party Kenneth Counce by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KENNETH COUNCE,
Plaintiff,
v.
Case No. 13-3199-JTM
RYAN WOLTING, ET AL.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff Kenneth Counce brings this pro se civil rights action under 42 U.S.C. § 1983,
alleging various claims, including excessive force during his October 2013 arrest, deliberate
indifference in the denial of medical care, and deprivation of property without due process.
Defendants Ryan Wolting, [fnu] Arnold, Eric Sauer, Mark Bruce, Kirk Simone, and Darian
Dernovish, all current or former employees of the Kansas Highway Patrol (collectively “KHP
Defendants”), seek dismissal of all claims against them on various grounds (Dkt. 99). 1 In
addition to filing a response opposing the motion (Dkt. 115), plaintiff filed a motion requesting
the court direct KHP’s records custodian to furnish Arnold’s first and middle name (Dkt. 116)
and a Motion for Leave to File Supplemental Citations (Dkt. 120). For the reasons stated below,
the court partially grants the motion to dismiss, grants the motion for Arnold’s first and middle
name, and denies the motion for leave to file the supplement.
I.

Factual Background
This court previously summarized plaintiff’s factual allegations in the screening order

(Dkt. 51) and will repeat only those necessary for resolution of these motions. On October 22,
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Plaintiff also brought similar claims against the Ellsworth County Sheriff, as wells as several deputies from the
Ellsworth County Sheriff’s Office (SO). The SO Defendants have not filed a motion to dismiss as of the date of this
order.

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2013, at the milepost 224 rest area on Interstate 70, KHP Trooper Wolting tasered plaintiff in the
groin area and assaulted him for “15 to 25 minutes or more,” resulting in a broken left jaw,
swollen left eye, and injuries to his shoulders, knees, and right wrist (Dkt. 48 at 3-A-B).2
Civilians John Doe 1 and 2 assisted Trooper Wolting by holding plaintiff down. Doe 1 also
allegedly struck plaintiff on the left side of his jaw with an unknown weapon, sat on him,
verbally assaulted him, called him the “N” word, and choked him. As to Doe 2, although he was
not as enthusiastic as Doe 1, he failed to intervene when Doe 1 choked and sat on plaintiff.
Trooper Wolting handcuffed plaintiff and refused plaintiff’s request to remove the right
handcuff, even though it was cutting deeper into the gash on his right wrist. He also denied the
EMT’s request to examine plaintiff’s shoulders and right wrist, telling them to “stay away from
the handcuff.” Plaintiff claims he only received superficial swabbing by EMS at milepost 224.
(Id. at 4-B).
Trooper Arnold arrived on scene and drove plaintiff to the Ellsworth County Jail (“ECJ”).
He too refused to remove the right handcuff or loosen the left handcuff despite plaintiff’s
repeated requests during the 25 or 35- minute ride to the jail.
Plaintiff alleges that upon his arrival at the jail, his physical injuries and distress were
obvious, yet Trooper Wolting, Trooper Arnold, Sheriff Ploutz, Deputy Chamberlain, Deputy Doe
3, and Deputy Doe 4, all with deliberate indifference, refused to take him to the hospital or give
him any meaningful treatment, including a sip of water. Plaintiff claims that his severe pain went
untreated during his interrogation, which was more than two hours long. (4-A-B).
The state charged plaintiff with battery of a law enforcement officer (LEO) in violation of
Kan. Stat. Ann. § 21-5413 on October 23, 2013. Plaintiff remained at ECJ while that charge was
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Plaintiff provided no facts regarding the circumstances that led to his stop and arrest. Plaintiff’s recitation of the
facts began with the physical attack against him. The court notes that plaintiff did not allege the arrest was unlawful.

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pending. On November 20, 2013, plaintiff pled guilty to said charge. Plaintiff filed a motion to
withdraw his plea and a notice of appeal on November 26, 2013. The clerk’s office docketed the
notice, but failed to forward it to the chief district judge for assignment. ECJ remanded custody
of plaintiff to the State of Texas on December 2, 2013 due to a detainer. The chief district judge
became aware of the notice of appeal sometime after October 24, 2014, and ordered the County
Attorney to clarify all that had transpired in the case. On January 7, 2015, the state district court
informed the prosecution that if the prosecution failed to arrange for the return of Mr. Counce
from Texas custody to stand trial within 180 days, then the matter would be dismissed with
prejudice. Id. at 4. On September 24, 2015, the state court dismissed the criminal case with
prejudice. The county attorney has appealed that dismissal, arguing that plaintiff bore the burden
under the Interstate Agreement on Detainers to initiate his return to Kansas for a trial de novo.
That appeal appears to be pending.
During his 40-day incarceration at ECJ, plaintiff claims that he was never provided with
proper medical treatment because Sheriff Ploutz either rebuffed or ignored his requests for nonover-the-counter pain medication and treatment at a hospital.
On October 29, 2013, Sheriff Ploutz told plaintiff that he had turned over plaintiff’s cash
to the KHP on Friday, October 25, 2013. Plaintiff alleges that Sheriff Ploutz and Trooper
Wolting had intended to steal his money, but Sheriff Ploutz became nervous and confessed that
he gave it to Trooper Wolting, without a court order or a receipt.
After his arrest, plaintiff wrote several letters to Darian P. Dernovish, KHP’s legal
counsel, and Kirk E. Simone, KHP’s Asset Forfeiture Coordinator, to request the return of his
money and minivan. He claimed that they ignored his complaints and never returned his cash.
(Dkt. 46 at 38). Plaintiff alleged that their requirement that he fill out IRS Form W-9 request was

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unreasonable (because he could not recall his tax identification number) and tantamount to
covering up the theft of his money. (Dkt. 48 at 2-O). In a letter dated September 11, 2014,
Simone advised plaintiff that because the social security number listed on his Form W-9 was not
recognized as belonging to him, and pursuant to Kan. Stat. Ann. § 22-2512, the money was
transferred in plaintiff’s name to the Unclaimed Property Division of the State of Kansas.
Plaintiff claimed that $ 8,400 was turned over to the state treasurer’s office and that KHP still
owed him $ 520. (Dkt. 46 at 38).
II.

Analysis
A. Motion to Dismiss
KHP Defendants contend that Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and

12(b)(6) require dismissal of plaintiff’s claims against them. They invoke Rule 12(b)(1),
contending the court lacks subject matter jurisdiction to hear plaintiff’s claims against them in
their official capacities (“official-capacity claims”). They invoke Rule 12(b)(5), contending
plaintiff did not properly serve process on them. They invoke Rule 12(b)(6), contending plaintiff
failed to state a claim against them in their individual capacities (“individual-capacity claims”).
The court considers each argument below.
1.

Rule 12(b)(1) and Official-Capacity Claims

KHP Defendants argue that asserting claims against them in their official capacities is a
runaround way of suing KHP, which Kansas law and the Eleventh Amendment bars. Dkt. 100 at
7. The court agrees. State officials acting in their official capacities are immune from suit under
§ 1983. When a suit is brought against state officials in their official capacities, the real party in
interest is the state entity. Kentucky v. Graham, 473 U.S. 159, 166-67 (1985); Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 71 (1989) (“[N]either a State nor its officials acting in their official

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capacities are ‘persons’ under § 1983.”). The Eleventh Amendment bars actions against a state in
federal court, even by its own citizens, unless the state waives that immunity. U.S. Const. amend.
XI; Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000). Because Kansas has not
waived immunity and plaintiff does not seek prospective relief capable of supporting an
exception to defendants’ Eleventh Amendment immunity, the court dismisses plaintiff’s officialcapacity claims.
2.

Rule 12(b)(5) and Service of Process

“Before a federal court may exercise personal jurisdiction over a defendant, the
procedural requirement of service of summons must be satisfied.” Omni Capital Int’l v. Rudolf
Wolff & Co., Ltd., 484 U.S. 97, 104 (1987); Fed. R. Civ. P. 4 (service of process rule). Defendant
argues that the court lacks personal jurisdiction over KHP Defendants because: 1) the Kansas
Attorney General was not served with process as required for claims against state actors in their
official capacity; 2) each KHP defendant was not served at his individual dwelling as required
for individual-capacity claims; and 3) an earlier dated Complaint with every other page missing
was served with the summons, rather than the Final Amended Complaint. Dkt. 100 at 5-6. The
court disagrees. The court’s decision to dismiss the official-capacities claims renders the failure
to serve the Kansas Attorney General moot. The latter two shortcomings in service do not
warrant dismissal of plaintiff’s claims.
By virtue of Rule 4(c)(3) and 28 U.S.C. § 1915(d), a party proceeding in forma pauperis,
as is the case here, is entitled to rely on the United States Marshal and officers of the court for
service of the summons and complaint. If the necessary information has been provided, the
plaintiff will not be penalized with dismissal of the case when service fails because the Marshal
or clerk’s office does not perform the duties specified by rule and statute. See, e.g., Lee v.

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Armontrout, 991 F.2d 487, 489 (8th Cir.), cert. denied, 114 S.Ct. 209 (1993); Puett v. Blandford,
912 F.2d 270, 273-75 (9th Cir.1990). Consequently, even if these arguments have merit, KHP
Defendants are not entitled to the requested dismissal. These arguments present, at most, an
opportunity to correct a mistake for which the plaintiff is not accountable.
Under these circumstances, the court simply will order KHP Defendants’ counsel to
provide the court with each individual KHP defendant’s residential address and then instruct the
clerk’s office and U.S. Marshal to correct the defects in service upon receipt of said addresses.
Alternatively, KHP Defendants may waive this argument and agree to waiver of service of
summons pursuant to Rule 4(d).
3.

Rule 12(b)(6) and the Individual-Capacity Claims

KHP Defendants argue that plaintiff did not assert individual-capacity claims against
them as evidenced by his failure to personally serve them at their dwelling. The court rejects this
argument because plaintiff relied upon court officers for service of process. By asking for
compensatory and/or punitive damages against certain named defendants, “each and
individually,” plaintiff has asserted individual-capacity claims against KHP Defendants. Dkt. 48,
Final Amended Complaint at 59.
KHP Defendants contend that plaintiff’s individual-capacity claims are subject to
dismissal under Rule 12(b)(6) for various reasons: 1) they are entitled to qualified immunity on
both the excessive force and denial of medical care claims; 2) the claim for damages for unlawful
seizure of plaintiff’s cash is barred by the availability of an adequate remedy under state law;
3) plaintiff lacks standing to assert an interest in the seized vehicle; 4) plaintiff’s conspiracy
claim fails to allege facts showing an agreement and concerted action among the defendants;
5) plaintiff pled no facts showing any retaliatory conduct that would support his First

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Amendment claim; and 6) the excessive force against Troopers Wolting and Arnold are barred
by the statute of limitations.
a) Excessive Force Claim (Counts I, II, and VII)
(i)

Statute of Limitations

The court rejects KHP Defendants’ statute of limitations argument because it advocates
applying a state statute to determine when a federal action commenced. “[When the underlying
cause of action is based on federal law and the absence of an express federal statute of
limitations makes it necessary to borrow a limitations period from another statute, the action is
not barred if it has been “commenced” in compliance with Rule 3 [of the Federal Rules of Civil
Procedure] within the borrowed period.” West v. Conrail, 481 U.S. 35, 39 (1987); Green v.
McKeen, Case No. 12-3158-RDR, 2013 WL 1309002, at *2 (D. Kan. Mar. 29, 2013) (collecting
cases). Rule 3 states “[a] civil action is commenced by filing a complaint with the court.” Contra
Kan. Stat. Ann. § 60-203 (action is commenced upon the date of filing unless service is not made
within 90 days of the filing date or 120 days if the court grants an extension of time to make
service upon a showing of good cause ). Section 1983 actions in Kansas must be filed within two
years of when the act giving rise to the cause of action first causes substantial injury. Kan. Stat.
Ann. § 60-513(a)(4) and (b). Here, plaintiff filed a complaint with this court on November 12,
2013, which was within two years of the date of the alleged events in the complaint (October 23,
2013). Thus, this case is timely.
(ii)

Qualified Immunity and Excessive Force

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 applicable only if the official’s conduct did not violate clearly
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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)).
The right to make an arrest or investigatory stop necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, 392 U.S. 1, 2227 (1968). “Excessive force claims are governed by the Fourth Amendment’s ‘objective
reasonableness’ standard.” Cavanaugh v. Woods Cross City, 625 F.3d 661, 664 (10th Cir. 2010).
Were the officers’ actions “objectively reasonable” in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation? See Graham v.
Connor, 490 U.S. 386, 397 (1989). 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.” Morris
v. Noe, 672 F.3d 1185, 1195 (10th Cir. 2012) (citing Graham, 490 U.S. at 396).
KHP Defendants claim that under the circumstances as described in the Final Amended
Complaint (“FAC”), their actions were objectively reasonable. The court disagrees. Even though
plaintiff did not describe the circumstances leading up to the altercation, accepting as true all
well-pleaded facts and viewing all reasonable inferences in plaintiff’s favor, the court cannot say
on this record that plaintiff was an immediate threat to the safety of the officers or others and that

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he was actively resisting arrest or attempting to flee. Plaintiff alleged that Wolting had performed
a pat-down search for weapons and found none, that Wolting assaulted him for “15 to 25 minutes
or more,” and that plaintiff “couldn’t offer any kind of resistance” during Wolting’s attack on his
shoulders and knees. Dkt. 48 at 3-A. Although the development of the facts of this arrest may
reveal otherwise, for purposes of the motion to dismiss, the court concludes that plaintiff has
pleaded enough facts to plausibly suggest that the amount of force used by defendants was not
objectively reasonable. With the current record, the court cannot conclude that defendants are
entitled to qualified immunity. Dismissal of the excessive force claims is therefore not proper at
this time.
b) Denial of Medical Care (Counts II, III, IV, and XII)
Likewise, the court cannot conclude on this record that KHP Defendants are entitled to
qualified immunity as to plaintiff’s denial of medical care claims. KHP Defendants argue that
self-diagnosed injuries are insufficient to prove deliberate indifference to serious medical needs.
Dkt. 100 at 12. The FAC, however, contains references to diagnoses by Drs. Fernando Cesani,
Matthew Ditzler, and Glenn Garcia. Dkt. 48, FAC at 2, 2-E. The FAC also references an expert
orthodontist from the Texas University Medical Branch and x-rays that show a broken jaw. Id. at
2-K, 4-D. Dismissal of the denial of medical care claims is therefore not proper at this time.
c) Wrongful Deprivation of Personal Property (Counts XII, XIII, and XVII)
Count XII is a wrongful deprivation of property claim against Trooper Wolting; Count
XIII is a wrongful deprivation of property against Sheriff Ploutz; and Count XVII is a wrongful
deprivation of property against Dernovish and Simone. Because the facts in Count XII and XIII
are interrelated, the court includes Count XIII in this analysis even though it is a claim against
Sheriff Ploutz, who has not filed a motion to dismiss.

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KHP Defendants seek dismissal of Counts XII and XVII on three grounds: 1) an adequate
post-deprivation remedy under state law was available, thus these claims are barred; 2) plaintiff
has failed to allege facts that he owned the seized vehicle; and 3) plaintiff failed to allege specific
facts showing an agreement and concerted action among the defendants. Dkt. 100 at 13-15.
Plaintiff insists that he never received a hearing or notification regarding the confiscation of his
money, nor given a chance to object to the seizure. Dkt. 115-1 at 10. Plaintiff’s response misses
the point.
“The fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(internal quotations and citation omitted). When a plaintiff alleges deprivation of a property
interest occurring as a result of the negligent or the unauthorized, intentional acts of a state
employee, the Fourteenth Amendment’s due process requirement is satisfied if the state provides
an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v. Taylor,
451 U.S. 527 (1981). In other words, a meaningful hearing before the deprivation takes place is
not required. The Supreme Court explained why as follows:
It is difficult to conceive of how the State could provide a meaningful hearing
before the deprivation takes place. The loss of property, although attributable to
the State as action under ‘color of law,’ is in almost all cases beyond the control
of the State. Indeed, in most cases it is not only impracticable, but impossible, to
provide a meaningful hearing before the deprivation.” Id. . . . [W]here an
individual has been negligently deprived of property by a state employee, the
state’s action is not complete unless or until the state fails to provide an adequate
postdeprivation remedy for the property loss.
Parratt, 451 U.S. at 541-42.
Here, plaintiff’s cash and minivan were seized incident to his arrest. Plaintiff knew of this
seizure. He principally takes issue with Sheriff Ploutz turning over the money to Trooper
Wolting within a few days of the arrest. He alleges that Wolting and Ploutz conspired to steal
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plaintiff’s cash (Dkt. 48, FAC at 4-X). Kan. Stat. Ann. § 22-2512 provides that property seized
shall be safely kept by the officer seizing the same unless otherwise directed by the magistrate.
As the arresting officer, Trooper Wolting was responsible for keeping the cash safe. And while
Trooper Wolting allegedly failed to leave a receipt for plaintiff, he apparently submitted the cash
to the KHP asset coordinator, Kirk Simone, who later turned it over to the Kansas Treasurer’s
Office. Id. at 4-Z; Kan. Stat. Ann. § 22-2512(c)(3) (unclaimed property shall be paid to the state
treasurer). Upon plaintiff’s request for the return of his money, Simone sent plaintiff paperwork
to fill out. Dkt. 48, FAC at 4-W. Plaintiff, however, did not provide KHP with his social security
number, so defendants did not return the money to him. Plaintiff blames his failure to provide his
social security number on defendants’ seizure of his minivan, which contained all of his personal
effects, including his social security card. Plaintiff would have the court infer that requiring him
to provide his social security number without access to his card was unreasonable. That inference
is not plausible.
Moreover, the court agrees with defendants that: 1) plaintiff’s allegations of conspiracy
and lack of procedures are conclusory, and 2) plaintiff failed to allege facts that he was the
registered owner of the minivan. To establish a conspiracy claim under § 1983, a plaintiff must
allege “specific facts showing an agreement and concerted action among the defendants.”
Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998). The allegations must
evidence a “specific goal to violate the plaintiff’s constitutional rights by engaging in a particular
course of action.” Gallagher, 49 F.3d at 1455. Plaintiff states that defendants Dernovish and
Simone had a meeting of the minds to deny him his cash and mini-van. Dkt. 48, FAC at 4-W.
However, this is a conclusory statement and plaintiff does not allege any specific facts that
support it.

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Because the state of Kansas provided an adequate post-deprivation remedy via Kan. Stat.
Ann. § 22-2512, the court finds plaintiff’s wrongful deprivation of property claims barred by
Hudson and Parratt. Accordingly, the court dismisses Counts XII, XIII, and XVII.
d) First Amendment Claim (Count XV)
Count XV alleges that defendants Bruce and Sauer violated plaintiff’s rights to file a
complaint against defendants Wolting and Arnold by refusing to send plaintiff the requested
form complaints and instead, sent plaintiff a letter that threatened him with an obstruction
charge. Defendants urge dismissal of this claim because plaintiff failed to plead violation of a
clearly established right under the First Amendment. Dkt. 100 at 16. Plaintiff filed this suit
against defendants Wolting and Arnold; thus, the court finds plaintiff has failed to state a claim
against defendants Bruce and Sauer. The court dismisses Count XV.
B.

Motion to Furnish Trooper Arnold’s First and Middle Name (Dkt. 116)
Defendants filed no response to this motion. Accordingly, the court grants it as

uncontested.
C. Motion to File Supplemental Citation (Dkt. 120)
In this motion, plaintiff seeks leave to file supplemental citations in support of his
opposition to the motion to dismiss. He urges the court to consider the United States Supreme
Court decision Luis v. United States, 136 S.Ct. 1083 (March 30, 2016) in determining whether
defendants deprived him of his money and minivan without due process of law. Dkt. 120. Luis
was decided approximately six months before plaintiff filed his response on October 3, 2016
(Dkt 115), thus it is not supplemental authority. And even if the court considered Luis as
supplemental authority, it does not provide a basis for concluding that Counts XII, XIII, and
XVII state a plausible claim for deprivation of property under § 1983. In Luis, the federal

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government obtained a court order freezing assets belonging to defendant and that was untainted
by the crime pursuant to 18 U.S.C. § 1345. Because Luis did not involve the loss of property by
unauthorized acts of state employees, Luis does not apply to this case. The court therefore denies
the motion as moot.
IT IS THEREFORE ORDERED that defendants’ Motion to Dismiss (Dkt. 99) is
GRANTED IN PART and DENIED IN PART. Counts XII, XIII, XV, and XVII are dismissed.
Defendants Eric Sauer, Mark Bruce, Kirk Simone, and Darian Dernovish are dismissed from this
case. All that remains, then, are plaintiff’s individual-capacity claims for excessive force and
denial of medical care.
IT IS FURTHER ORDERED that plaintiff’s motion for defendants to furnish Trooper
Arnold’s first and middle name (Dkt. 116) is GRANTED and that plaintiff’s motion to file
supplemental citation (Dkt. 120) is DENIED as moot. Counsel for KHP defendant shall file a
report furnishing Trooper Arnold’s first and middle name and his residential address, as well as
Trooper Wolting’s residential address to the court in camera. Alternatively, KHP Defendants
may file waivers of service of summons pursuant to Rule 4(d).
IT IS FURTHER ORDERED that the clerk’s office refer this matter to a magistrate to
handle discovery and pretrial matters. Plaintiff shall not file any discovery requests until after the
parties have a discovery conference with the magistrate judge.
IT IS SO ORDERED this 17th day of February, 2017.

s/ J. Thomas Marten
Chief United States District Judge

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