McIlrath et al v. Kingman, Kansas, City of, The et al

Filing 26

MEMORANDUM AND ORDER. IT IS THEREFORE ORDERED BY THE COURT that Defendants' Motion for Judgment on the Pleadings (Doc. 17) is granted as to the federal claims. The Court declines to exercise supplemental jurisdiction over the remaining state l aw claim. The case shall be remanded to the Kingman County, Kansas District Court pursuant to 28 U.S.C. § 1447(c).IT IS FURTHER ORDERED that Plaintiffs first motion for leave to amend the complaint (Doc. 16) is denied as moot in light of the su bsequently filed motion for leave to amend. Plaintiffs' second motion for leave to amend (Doc. 23) is denied as futile to the extent it seeks to cure Plaintiffs' federal claims. Signed by District Judge Julie A. Robinson on 9/24/2012.Mailed to pro se party Clinton McIlrath, 123 Wallace, Kingman, KS 67068; and Serena McIlrath, 123 Wallace, Kingman, KS 67068 by regular mail. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CLINTON MCILRATH, and
SERENA MCILRATH,

)
)
)
Plaintiffs,
)
)
vs.
)
)
CITY OF KINGMAN, KANSAS,
)
MARK HOLLOWAY, TRAVIS SOWERS, )
and DAVID LUX,
)
)
Defendants. )
)

Case No. 12-1002-JAR-KMH

MEMORANDUM AND ORDER
This case was removed by Defendants on January 4, 2012, from Kingman County,
Kansas District Court. In the original petition that was filed pro se on December 27, 2011,
Plaintiffs alleged claims on behalf of their minor child, M.T., surrounding his arrest and
detention on October 18, 2010. Plaintiffs moved for leave to amend the complaint on June 26,
2012 (Doc. 16), to assert claims on their own behalf, and withdraw the claims on behalf of their
child. Defendants filed a Motion for Judgment on the Pleadings (Doc. 17) under Fed. R. Civ. P.
12(c), arguing for dismissal of the original petition and for a finding that the proposed amended
complaint is futile because it would be subject to dismissal. Plaintiffs responded and filed
another motion for leave to amend (Doc. 23), seeking to clarify their claims further and to amend
the monetary damages requested in the prayer for relief. These motions are now fully briefed
and the Court is prepared to rule. As described more fully below, the Court finds that Plaintiffs’
original petition is subject to dismissal and that the proposed second amended complaint must be
denied because the federal claims would be subject to dismissal under Rule 12(c). Accordingly,

Defendants’ motion for judgment on the pleadings is granted as to the federal claims; Plaintiffs’
first motion for leave to amend is denied as moot, and Plaintiffs’ second motion for leave to
amend is denied as futile. The Court declines to exercise jurisdiction over the remaining state
law claim for intentional infliction of emotional distress and remands this case back to the
Kingman County District Court.
I.

Standards
A.

Rule 12(c)

A motion for judgment on the pleadings under Rule 12(c) is reviewed under the same
standard as a motion to dismiss under Rule 12(b)(6).1 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.”2 Under this standard, “the complaint must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual support for these claims.”3 The
plausibility standard does not require a showing of probability that “a defendant has acted
unlawfully,”4 but requires more than “a sheer possibility.”5
The plausibility standard enunciated in Bell Atlantic v. Twombly,6 seeks a middle ground
between heightened fact pleading and “allowing complaints that are no more than ‘labels and

1

Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir. 2003).

2

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

3

Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original).

4

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

5

Id.

6

Twombly, 550 U.S. 544 (2007).

2

conclusions’ or ‘a formulaic recitation of the elements of a cause of action,’ which the Court
stated ‘will not do.’”7 Twombly does not change other principles, such as that a court must accept
all factual allegations as true and may not dismiss on the ground that it appears unlikely the
allegations can be proven.8
The Supreme Court has explained the analysis as a two-step process. For 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.’”9 Thus,
the Court must first determine if the allegations are factual and entitled to an assumption of truth,
or merely legal conclusions that are not entitled to an assumption of truth.10 Second, the Court
must determine whether the factual allegations, when assumed true, “plausibly give rise to an
entitlement to relief.”11 “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.”12
B.

Motion for Leave to Amend

Under Rule 15(a), leave to amend a complaint is freely given when justice so requires.13
A party is typically granted leave to amend under this rule unless there is “a showing of undue

7

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 555).

8

Id. (citing Twombly, 550 U.S. at 556).

9

Iqbal, 556 U.S. at 678.

10

Id. at 679.

11

Id.

12

Id. 678.

13

Fed. R. Civ. P. 15(a)(2).

3

delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendment previously allowed, or futility of amendment.”14 A proposed
amendment is futile if the amended complaint would be subject to dismissal.15
II.

Summary of Complaint and Proposed Amendments
Because Plaintiffs are pro se litigants, the court must construe their pleadings liberally

and apply a less stringent standard than that which is applicable to attorneys.16 However, the
court may not provide additional factual allegations “to round out a plaintiff’s complaint or
construct a legal theory on a plaintiff’s behalf.”17 The court need only accept as true the
plaintiff’s “well-pleaded factual contentions, not his conclusory allegations.”18 Additionally, a
pro se litigant is not excused from complying with the rules of the court and is subject to the
consequences of noncompliance.19
The following facts are alleged in the petition and proposed amendments and assumed to
be true for purposes of deciding the instant motions. On October 18, 2010, Kingman Police
Officer Travis Sowers called Plaintiff Serena McIlrath (“Serena”) and told her that her elevenyear-old son, M.T., had been arrested and was in custody for “at least” battery. When Serena
arrived at the police station, Officer Sowers informed her that an intake worker must arrive

14

Duncan v. Manager, Dept. of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005).

15

Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1288 (10th Cir. 2008).

16

Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997).

17

Id.

18

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citation omitted).

19

Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994)(insisting that pro se litigants follow procedural rules and citing various cases dismissing pro se
cases for failure to comply with the rules)).

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before they could determine whether M.T. could return home with his parents.
Serena left and returned with her husband, Plaintiff Clinton McIlrath. Officer Sowers
told Plaintiffs that there were three victims involved in a three or four minute altercation, that the
three victims had not been together and were all telling officers the same story, and commented
on the marks on one of the victims’ neck. Plaintiffs agreed to allow police officers to question
M.T. without an attorney. Officer Sowers told Plaintiffs that Captain David Lux would assist
with the interview, which was recorded. The officers threatened M.T. during the interview with
statements such as “you are going to ‘kiddie prison’ for kidnapping and rape,” and “you will
never see your parents again except through a glass window until you are 21.” Plaintiffs
objected to these questions, but were motioned to be quiet by Captain Lux. Defendant Sowers
told M.T. that he would not be able to leave the youth facility until he had a court appearance
and that he would go into foster care, “or worse.” The statements caused M.T. great distress and
fear.
Eventually, the officers told Plaintiffs that M.T. would be charged with three counts of
felony kidnapping, two counts of felony indecent liberties with a child, and three counts of
battery. When Plaintiffs expressed surprise at the kidnapping charges, Captain Lux found a
dictionary and read to them the definition of kidnapping. Though Plaintiffs pleaded that M.T. be
allowed to return home, Captain Lux refused and proceeded to make an offensive comment
about M.T. to them. Officer Sowers told them that the mother of one of the victims was taking
her child to the emergency room and made other malicious comments to Plaintiffs.
When the intake worker eventually arrived, she told Plaintiffs that the police must
determine whether M.T. could return home. Plaintiffs were extremely emotionally agitated by

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this information because it contradicted what Officer Sowers told Serena when she arrived at the
police station.
Officer Sowers and Captain Lux transported M.T. to Bob Johnson’s Youth Facility.
Before leaving, Defendants allowed Plaintiffs to say goodbye to M.T., who was trembling with
fear. Plaintiffs were scared for M.T.’s safety because of his age. Plaintiffs were in a state of
distress upon leaving the police station.
The next day, Plaintiffs contacted the County Attorney. After reviewing the police
report, the County Attorney’s office called Plaintiffs and told them they could pick up M.T. at
the youth facility. Plaintiffs were emotionally agitated when they picked him up because there
was confusion about M.T.’s release orders. Plaintiffs were also fearful that police officers may
arrest M.T. based on the felony charges filed against him, so Serena took off time from work to
stay home with M.T.
Plaintiffs ultimately obtained the police reports in the case, including statements
Defendants made during the interview that contradicted statements Defendants made to Plaintiffs
about the underlying facts of the case. M.T.’s version of these events also contradicted what the
officers told Plaintiffs. The charges against M.T. were reduced and then dismissed after M.T.
agreed to complete community service and an anger management class.
The original petition alleges claims on behalf of M.T. for false arrest and false
imprisonment against Defendants Sowers and Lux in their individual and official capacities,
intentional infliction of emotional distress under State and Federal law against all Defendants in
their individual and official capacities, and a claim under the Kansas Tort Claims Act against the
City of Kingman (“City”). They requested $50,000 in damages.

6

In their proposed first and second amended complaints, Plaintiffs assert claims on their
own behalf rather than on behalf of M.T. They assert State and Federal claims for intentional
infliction of emotional distress against all Defendants in their individual and official capacities,
and a KTCA claim against the City. In the proposed second amended complaint, Plaintiffs
allege claims under 42 U.S.C. § 1983 based on violations of their Fourth and Ninth Amendment
rights.
III.

Discussion
A.

Representative Claims

Defendants move for dismissal of the original petition because Plaintiffs submitted their
claims pro se on behalf of their minor child. It is clearly established law that a parent cannot
bring suit on behalf of their minor child if they are not represented by an attorney.20 To the
extent claims in the original petition are brought pro se as representatives of their minor child,
they must be dismissed.
B.

Direct Claims

Having determined that the claims made on behalf of M.T. in the original petition must
be dismissed, the Court proceeds to determine whether Plaintiffs assert plausible claims for relief
in their own right, or whether, as Defendants argue, the allegations, including the proposed
amendments, are subject to dismissal.
1.

Claims under 42 U.S.C. § 1983

Plaintiffs label Count 1 in both proposed amended complaints as a claim for intentional
infliction of emotional distress under both “Federal and State law.” But they include under this

20

Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986).

7

heading allegations relevant to the state law tort claim as well as allegations in the proposed
second amended complaint that Defendants violated their Fourth and Ninth Amendment rights.
Plaintiffs cannot redress a violation of state law alone under § 1983; there must be an alleged
violation of federal law.21 Under the liberal construction standard that applies to pro se
pleadings, the Court will construe the proposed second amended complaint as alleging claims
under 42 U.S.C. § 1983 for violations of Plaintiffs’ Fourth and Ninth Amendment rights.
Plaintiffs explicitly withdrew the false arrest and false imprisonment claim that was
alleged in the original petition. Of course, such a claim based on the arrest and detention of M.T.
would be foreclosed in this case because Plaintiffs lack standing to pursue such a claim.22
Instead, Plaintiffs contend that their § 1983 claim is premised on their own seizure—that they
did not feel free to leave the police station while their child was being interviewed. Plaintiffs
rely on the fact that their child was subjected to threats and that Captain Lux silenced them when
they attempted to object to these threats, in order to establish that they were subjected to a Fourth
Amendment seizure.
Not all interactions between police officers and citizens constitute seizures under the
Fourth Amendment.23 A seizure occurs for purposes of the Fourth Amendment when an officer
“by means of physical force or show of authority, terminates or restrains [a person’s] freedom of
movement, through means intentionally applied.”24 In circumstances where the police officers’
21

Jones v. City & Cnty. of Denver, Colo., 854 F.2d 1206, 1207 (10th Cir. 1988); Dunegan v. City of Council
Grove, Kan. Water Dep’t, 77 F. Supp. 2d 1192, 1207 (D. Kan. 1999).
22

See, e.g., Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir. 1982) (explaining that a claim under § 1983
does not accrue to a relative).
23

See Florida v. Bostick, 501 U.S. 429, 434 (1991).

24

Brendlin v. California, 551 U.S. 249, 254 (2007) (quotations and citations omitted) (emphasis in original).

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authority “takes the form of passive acquiescence, . . . a seizure occurs if in view of all of the
circumstances surrounding the incident, a reasonable person would have believed that he was not
free to leave.”25 The Court finds that the facts alleged in the proposed amended complaints fail
to give rise to a plausible claim that Plaintiffs’ were subjected to a seizure under the Fourth
Amendment. Assuming the alleged facts to be true, Plaintiffs voluntarily appeared at the
Kingman police station after being notified that their son had been arrested. The facts also
establish that Serena left for a period of time and returned, voluntarily, with Clinton. There are
no allegations that Plaintiffs were arrested, detained, or even interviewed. The fact that Plaintiffs
did not want to leave their child alone during the police interview is not sufficient to establish
that they were not free to leave.26 There are no facts alleged that Plaintiffs were personally
threatened, or that the police officers, through a show of authority, suggested they could not
leave. Therefore, the Court finds that Plaintiffs’ factual allegations do not state a plausible claim
that their Fourth Amendment rights were violated.
The proposed second amended complaint also alleges that Defendants violated Plaintiffs’
Ninth Amendment rights based on their extreme and outrageous conduct. The Ninth
Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.”27 The Ninth Amendment is a rule

25

Id. (quotations and citations omitted).

26

See P.C. v. Conn. Dep’t of Children & Families, 662 F. Supp. 2d 218, 232 (D. Conn. 2009); Tenenbaum
v. Williams, 862 F. Supp. 962, 974 (E.D.N.Y. 1994) (“the Court is not aware—based on its own research and the
submissions of counsel—of any federal decision which has held that a parent may legitimately assert an individual,
as distinct from a representative, Fourth Amendment claim based upon the seizure of a child.”), affirmed in part and
reversed in part on other grounds, 193 F.3d 581 (2d Cir. 1999); cf. Dohaish v. Tooley, 670 F.2d 934, 937 (10th Cir.
1982) (“To be sure, as a practical matter, a father is closely related to the son and, thus, he feels the injury to a
tremendous extent when his son suffers death. However, he does not have a civil right to pursue such an action.”).
27

Const. amend. IX.

9

of construction, not an independent source of constitutional rights, so it cannot form the basis of
a civil rights claim under § 1983.28 Accordingly, Plaintiffs’ proposed § 1983 claim premised on
a Ninth Amendment violation is futile.
2.

Supplemental Jurisdiction

Plaintiffs’ remaining claim is brought under Kansas state tort law for intentional
infliction of emotional distress, or outrage. Under the removal statute, “[i]f at any time before
final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.”29 Under 28 U.S.C. § 1367(c), the Court may decline to exercise supplemental
jurisdiction if it has “dismissed all claims over which it has original jurisdiction.”30 The Court
considers “the nature and extent of pretrial proceedings, judicial economy, convenience, and
[whether] fairness would be served by retaining jurisdiction.”31 Defendants ask the Court to
exercise supplemental jurisdiction and proceed to dismiss the state law claims and find the
proposed amendments futile on the merits. Plaintiffs ask that the case be remanded to state
court.
“[I]n the usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy,
28

See Griswold v. Connecticut, 381 U.S. 479, 492 (1965); Onyiuke v. N.J. State Sup. Ct., 242 F. App’x 794,
794 (3d Cir. 2007); Mays v. Wyandotte Cnty. Sheriff’s Dep’t, No. 09-3127-SAC, 2009 WL 2485390, at *2 (Aug. 11,
2009).
29

28 U.S.C. § 1447(c).

30

28 U.S.C. § 1367(c)(3); see Estate of Harshman v. Jackson Hole Mountain Resort, 379 F.3d 1161, 1164
(10th Cir. 2004) (“Seeking to vindicate values of economy, convenience, fairness, and comity underlying the
judicially-created doctrine of pendent jurisdiction, Congress granted statutory authority to district courts to hear
claims that form ‘part of the same case or controversy’ as the claims on which original federal jurisdiction is
based.”).
31
Anglemyer v. Hamilton Cnty. Hosp., 58 F.3d 533, 541 (10th Cir.1995) (quoting Thatcher Enter. v. Cache
Cnty. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990)).

10

convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the
remaining state-law claims.”32 “Notions of comity and federalism demand that a state court try
its own lawsuits, absent compelling reasons to the contrary.”33 Plaintiffs’ remaining claim
against these Defendants involves a matter of state law between non-diverse parties. The state
court is the appropriate forum for determining Defendants’ arguments for dismissal of this claim:
whether notice under the KTCA was sufficient, whether the statute of limitations bars Plaintiffs’
claim, and whether Plaintiffs have alleged sufficient facts to establish the requisite elements of
the cause of action. This case is in the pleading stage, and no formal discovery has been done to
date. The Court finds that this is the usual case in which principles of judicial economy,
convenience, fairness, and comity all point in favor remanding the remaining Kansas law claim
so that Plaintiffs may continue their action in state court.
IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion for
Judgment on the Pleadings (Doc. 17) is granted as to the federal claims. The Court declines to
exercise supplemental jurisdiction over the remaining state law claim. The case shall be
remanded to the Kingman County, Kansas District Court pursuant to 28 U.S.C. § 1447(c).
IT IS FURTHER ORDERED that Plaintiffs first motion for leave to amend the
complaint (Doc. 16) is denied as moot in light of the subsequently filed motion for leave to
amend. Plaintiffs’ second motion for leave to amend (Doc. 23) is denied as futile to the extent it
seeks to cure Plaintiffs’ federal claims.
IT IS SO ORDERED.

32

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988).

33

Thatcher Enters., 902 F.2d at 1478.

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Dated: September 24, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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