Dart v. Anthony, Kansas, City of, Board of City Commissioners et al
Filing
40
MEMORANDUM AND ORDER denying without prejudice 18 Plaintiff's Motion to Amend Complaint. Plaintiff shall refile his motion to amend, consistent with this opinion by 4/12/2013. See order for further details. Signed by Magistrate Judge Karen M. Humphreys on 4/2/2013. (sj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BLAKELY ADAM DART,
)
)
Plaintiff,
)
)
v.
)
)
BOARD OF CITY COMMISSIONERS OF )
THE CITY OF ANTHONY, KANSAS,
)
and/or THE CITY OF ANTHONY,
)
KANSAS; DANIEL LEVENS; THE
)
BOARD OF COUNTY COMMISSIONERS )
OF HARPER COUNTY and/or HARPER )
COUNTY KANSAS; SCOTT McCANN
)
and TAMARA CRAWLEY,
)
)
Defendants,
)
)
)
Case No. 12-1261-JWL
MEMORANDUM AND ORDER
This matter is before the court on plaintiff’s motion for leave to amend his complaint
to add Count III which is titled “state law excessive force and assault and battery.” (Doc.
18). Defendants oppose the motion. For the reasons set forth below, the motion to amend
shall be DENIED WITHOUT PREJUDICE.
Background
Highly summarized, plaintiff alleges that Deputy Scott McCann violated the First,
Fourth, Fifth, Sixth, and Eighth Amendments and 42 U.S.C. § 1983 by using pepper spray
and a taser on him while he was in custody in the Harper County jail booking area. Plaintiff
contends that Officer Daniel Levens and Deputy Tamara Crawley violated his rights because
they were in a position to stop McCann’s unlawful actions but failed to intervene. Deputies
McCann and Crawley are employed by the Harper County Sheriff’s Department and Officer
Levens is employed by the City of Anthony. Plaintiff also named the county and city as
defendants, alleging that the actions of the individual defendants were “taken pursuant to
official and explicit policy, practice, and procedure.”
Motion To Amend
The standard for permitting a party to amend his pleading is well established. Without
an opposing party's consent, a party may amend his pleading only by leave of the court. Fed.
R. Civ. P. 15(a).1 Although such leave to amend “shall be freely given when justice so
requires,” whether to grant leave is within the court's discretion. Panis v. Mission Hills
Bank, 60 F.3d 1486, 1494 (10th Cir. 1995)(citing Woolsey v. Marion Labs., Inc., 934 F. 2d
1452, 1462 (10th Cir. 1991)). In exercising its discretion, the court must be “mindful of the
spirit of the federal rules of civil procedure to encourage decisions on the merits rather than
on mere technicalities.” Koch v. Koch Industries, 127 F.R.D. 206, 209 (D. Kan. 1989). The
court considers a number of factors in deciding whether to allow an amendment, including
1
A party may amend its pleading once as a matter of course before a responsive
pleading is filed. The time for amending “as a matter of course” is long past.
-2-
timeliness, prejudice to the other party, bad faith, and futility of amendment. Hom v. Squire,
81 F.3d 969, 973 (10th Cir. 1996). “Untimeliness alone may be a sufficient basis for denial
of leave to amend.” Las Vegas Ice & Storage Co. v. Far West Bank, 893 F.2d 1182, 1185
(10th Circuit, 1990). “Where the party seeking amendment knows or should have known of
the facts upon which the proposed amendment is based but fails to include them in the
original complaint, the motion to amend is subject to denial.” Id., (quoting State Distributors,
Inc. v. Glenmore Distilleries Co., 738 F.2d 405 (10th Cir. 1984).
The “City Defendants” oppose the motion to amend, arguing that plaintiff’s counsel
agreed to withdraw the motion “insofar as it applies to” the City of Anthony and Daniel
Levens. (Doc. 27-1).2 The court recognized this agreement in a March 12, 2013 text order.
(Doc. 33).
The “County Defendants” oppose the motion to amend, arguing that the amendment
is futile.3 Specifically, the County Defendants argue that plaintiff’s motion was not timely
filed under the Kansas Tort Claims Act (the “KCTA”) and that plaintiff’s state tort claim is
barred by the one-year statute of limitations for assault and battery. K.S.A. § 60-514b(d).
Plaintiff counters that the County Defendants misinterpret the nature of his amended claim
2
For purposes of this opinion only, the court reluctantly adopts defense counsel’s
reference to their clients.
3
The “County Defendants” are “the Board of County Commissioners of Harper
County and/or Harper County, Kansas, Scott, McCann and Tamara Crawley.”
Defendants contend that the KTCA applies to both claims against the municipality and
claims against the municipality’s employees arising out of the course and scope of their
employment. (Doc. 28, p. 3).
-3-
and he is asserting a “state law excessive force claim” based on negligence; thus, a two-year
statute of limitations applies and the amendment is not futile. Plaintiff also “clarifies” in his
reply brief that “the individual Anthony and Harper County officers have already been
properly and timely sued for state law assault and battery (Original Complaint paragraphs
19-31) because they were individually named in the original complaint.” (Reply Brief, Doc.
34, p. 16).
The problem with plaintiff’s motion is that the original and proposed amended
complaints are poorly drafted and do not match the “clarifications” and “explanations”
provided in his reply brief. For example, as mentioned above, plaintiff asserts in his reply
brief that the individual defendants were “timely sued” for state law assault and battery in
the original complaint. (Doc. 34, p. 4). The court does not agree. Counts I and II of the
original complaint unequivocally allege that the individually named defendants violated
plaintiff’s civil rights under the United States Constitution. Counts I and II do not seek relief
from the individually named defendants or their employers based on state tort law.
Plaintiff’s proposed amended Count III contains a number of ambiguities. Although
plaintiff contends he is alleging a state tort claim for excessive force based on negligence,
nowhere in Count III does the amended complaint reference negligence or breach of a duty
-4-
of care owed to plaintiff.4 Instead, he alleges a claim based on “the Kansas State Tort of
application of excessive force and/or assault and battery.” (Doc. 18-1, paragraph 47). Under
the circumstances, the County Defendants’ belief that plaintiff was pursuing a tort governed
by the assault and battery statute of limitations is understandable.
Plaintiff also alleges in his proposed Count III that “defendants Scott McCann and
others described herein, committed the Kansas State Law Tort of . . . .” (Emphasis added).
The term “and others described herein” is inherently ambiguous because it is unclear whether
“herein” refers to the entire complaint or a more narrow portion of the complaint.
Summary
The proposed amended complaint attached to plaintiff’s motion is inadequate because
it does not reflect plaintiff’s agreement to withdraw his amended allegations against the City
Defendants.
Equally important, the proposed amended complaint does not contain
allegations against the County Defendants that match the arguments raised in his reply brief.
4
Plaintiff argued in his four-paragraph motion to amend that he was asserting “the
state law tort claim of excessive force applied by law enforcement officers and assault
and battery.” Citing Nemecheck v. City of Garden City, 233 P. 3d 314 (Table), 2010 WL
2720668 (Kan. App. Ct., July 2, 2010).” Nemecheck is an “unpublished” Kansas Court
of Appeals opinion and plaintiff’s counsel in that case is plaintiff’s counsel in this case.
Nemecheck holds: “in Kansas, no tort of ‘excessive force’ exists; a plaintiff must instead
bring tort claims that are recognized under Kansas law, like battery, outrage, and
negligence.” Id. at *3. Plaintiff’s brief reference to Nemecheck does not shed light on
whether plaintiff in this case is seeking to recover based on negligence, battery, or some
other recognized Kansas tort. Equally importantly, Nemecheck illustrates legal errors
that can occur at the trial court level when the nature of the underlying tort is not clearly
defined.
-5-
Under the circumstances, the motion to amend shall be DENIED WITHOUT PREJUDICE
and plaintiff is granted leave to refile his motion to amend. Any proposed amended
complaint shall set out plaintiff’s theories of recovery separately and defendants shall be
linked to his theories of recovery by name. General references to “defendants” in the
proposed amended complaint are unacceptable.
IT IS THEREFORE ORDERED that plaintiff’s motion to amend (Doc. 18) is
DENIED WITHOUT PREJUDICE. Plaintiff shall refile his motion to amend, consistent
with the above rulings by April 12, 2013.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 2nd day of April 2013.
S/ Karen M. Humphreys
_______________________
KAREN M. HUMPHREYS
United States Magistrate Judge
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?