Dixon v. Wichita, Kansas, City of et al

Filing 29

MEMORANDUM AND ORDER granting in part and denying in part 23 Motion to Dismiss for Failure to State a Claim. The following claims are hereby dismissed for the reasons stated in this memorandum: (1) State law claim of false imprionment in Count4; ( 2) claims against the individual officers in their official capacities; (3) intentional infliction of emotional distress based upon the city's failure to identify the officers in Count 8; (4) claims against the City of Wichita in Count 2; (5) the claim in Count 3; and (6) any claim of punitive damages against the City. The remainder of the defendants' motion is denied. Signed by District Judge Richard D. Rogers on 5/31/13. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAKEDA DIXON, individually, and
as The Next Friend and Mother
of Jayleon and Kyla Dixon, and
as Special Administrator of the
Estate of Jerome Dixon, deceased,
Plaintiff,
v.
CITY OF WICHITA, KANSAS;
CITY OF WICHITA POLICE
DEPARTMENT OFFICERS MYKE BROWN,
BADGE #C2207, a/k/a John Doe
Officer #1, and KEVIN MCKENNA,
#C2221, a/k/a/ John Doe Officer
#2,
Defendants.

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Case No. 13-1033-RDR

MEMORANDUM AND ORDER
Plaintiff brings this action against City of Wichita and two
Wichita police officers for damages arising from the shooting of her
husband, Jerome Dixon, by the officers on November 5, 2010.
Plaintiff brings this action individually and as the next friend and
mother

of

Jayleon

Dixon

and

Kyla

Dixon

and

administrator of the estate of Jerome Dixon.

as

the

special

This matter is

presently before the court upon defendants= motion to dismiss for
failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).
I.
"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to >state a claim for
relief that is plausible on its face.=@

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570

(2007)).

A[T]he

mere

metaphysical

possibility

that

some

plaintiff could prove some set of facts in support of the pleaded
claims is insufficient; the complaint must give the court reason to
believe that this plaintiff has a reasonable likelihood of mustering
factual support for these claims.@

Ridge at Red Hawk, L.L.C. v.

Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

"The court=s

function on a Rule 12(b)(6) motion is not to weigh potential evidence
that the parties might present at trial, but to assess whether the
plaintiff=s complaint alone is legally sufficient to state a claim
for which relief may be granted."

Dubbs v. Head Start, Inc., 336

F.3d 1194, 1201 (10th Cir. 2003). In determining whether a claim is
facially plausible, the court must draw on its judicial experience
and common sense.

Iqbal, 556 U.S. at 678.

All well-pleaded facts

in the complaint are assumed to be true and are viewed in the light
most favorable to the plaintiff.

See Zinermon v. Burch, 494 U.S.

113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.
1984). Allegations that merely state legal conclusions, however,
need not be accepted as true.

See Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991).
II.
In her amended complaint, plaintiff alleges that two law
enforcement officers shot and killed her husband as he stood in the
doorway of their apartment.

She asserts that the officers did so
2

without warning and without valid reason to suspect that he had
committed, or was committing, a crime at the time.

She further

alleges she and her daughters were then illegally detained at the
police station for a lengthy period.

The complaint contains eight

counts.
The defendants challenge various aspects of six counts of
plaintiff=s amended complaint.

The defendants contend that (1) Count

1 should be dismissed to the extent that it asserts a claim under
the Fourteenth Amendment; (2) Counts 2 and 3 against the City of
Wichita should be dismissed for failure to state a claim under 42
U.S.C. ' 1983; (3) Count 5, which asserts a state law claim of false
imprisonment, should be dismissed because it is barred by the statute
of limitations; (4) plaintiff=s claims against the individual
officers in their official capacities should be dismissed as
redundant; (5) Count 7 should be dismissed for failure to state a
claim of negligent infliction of emotional distress; and (6) Count
8, which states in part a claim of intentional infliction of emotional
distress based on the City=s failure to release the identities of the
officers, should be dismissed because it fails to state a claim.
Finally, the City asserts that any claim made by the plaintiff against
it for punitive damages must be dismissed.
Plaintiff has agreed with several of the arguments raised by
the defendants.

Plaintiff concurs that (1) her state law claim of
3

false imprisonment is barred by the statute of limitations; (2) her
claims against the officers in their official capacities should be
dismissed as redundant; and (3) her claim of intentional infliction
of emotional distress based upon the City=s failure to identify the
officers is now moot and should be dismissed.

She further states

that she had no intention of seeking punitive damages from the City.
She notes that her amended complaint only seek punitive damages Aas
warranted@ and she recognizes that municipalities are immune from the
imposition of punitive damages under 42 U.S.C. ' 1983.
With these concessions, the court shall grant defendants= motion
in the following ways: (1) plaintiff=s state law claim of false
imprisonment is barred by the statute of limitations; (2) plaintiff=s
claims against the individual officers in their official capacities
are dismissed; (3) plaintiff=s claim of intentional infliction of
emotional distress based upon the City=s failure to identify the
officers is dismissed; and (4) any claim of punitive damages against
the City, to the extent that one was even asserted, is dismissed.
The court will now consider the remaining issues raised by the
defendants= motion.
III.
The defendants contend that Count 1 of plaintiff=s amended
complaint must be dismissed to the extent that attempts to assert
a claim under the Fourteenth Amendment.
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The defendants assert that

since plaintiff has alleged that her husband was Aseized@ by the
officers, then her claim must be analyzed under the Fourth Amendment.
Plaintiff counters that she understands that the claim alleged in
Count 1 of her amended complaint should be analyzed under the Fourth
Amendment.

However, she states that Count 1 included a reference

to the Fourteenth Amendment only because the due process rights of
the Fourteenth Amendment allow her to enforce the prohibitions found
in the Fourth Amendment.
A.

Count 1B-Fourteenth Amendment
The court understands the arguments raised by the parties.

There does not appear too much in dispute.

Both sides appear to agree

that Fourth Amendment legal standard governs plaintiff=s excessive
force claim.

As such, the court sees no need to dismiss the

allegation of the Fourteenth Amendment in Count 1.

The Fourteenth

Amendment governs both excessive force claims occurring during a
Aseizure@ within the meaning of the Fourth Amendment, because the
Fourth Amendment is incorporated against the states through the
Fourteenth, see Wolf v. Colorado, 338 U.S. 25, 27B28 (1949), and
excessive force claims that occur outside of the scope of a Aseizure@
effected by law enforcement, see County of Sacramento v. Lewis, 523
U.S. 833, 843B45 (1998); see also Graham v. Connor, 490 U.S. 386, 388
(1989)(the Fourth Amendment governs Aclaim[s] that law enforcement
officials used excessive force in the course of making an arrest,
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investigatory stop, or other >seizure= of his person@).

The parties

agree that the Fourth Amendment standard, as incorporated against
the states in the Fourteenth Amendment, governs plaintiff=s claim
because

the

plaintiff

alleges

that

the

officers

intentional means to Aseize@ Mr. Jones= person.

were

using

See Lewis, 523 U.S.

at 844 (A[A] Fourth Amendment seizure. . .occur[s]. . .only when there
is a governmental termination of freedom of movement through means
intentionally applied.”)(quotation omitted). Accordingly, the court
sees no need at this time to dismiss the Fourteenth Amendment
allegation contained in Count 1.
B.

Counts 2 and 3BLiability of City of Wichita under 42 U.S.C. ' 1983
The City next contends that plaintiff=s claims against it under

42 U.S.C. ' 1983 in Counts 2 and 3 should be dismissed for failure
to allege sufficient facts that the City acted pursuant to a policy
or custom.

The City suggests that plaintiff has failed to adequately

allege in Count 2 that the officers acted pursuant to a policy or
custom Ato detain innocent witnesses for hours at a time under the
cloak of authority of its officers.@

The City also argues that

plaintiff has failed to sufficiently allege in Count 3 that (1) the
officers acted pursuant to a de facto policy of deadly force; and
(2) the City failed to adequately train the officers in the use of
force.

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Section 1983 states, in relevant part, that A[e]very person who,
under color of [law], subjects, or causes to be subjected, any
citizen. . .to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to
the party injured.@

42 U.S.C. ' 1983.

as a Aperson@ under ' 1983.

A municipality may be sued

Monell v. Dept. of Soc. Services of City

of New York, 436 U.S. 658, 690 (1978).

A municipality, however, will

not be held liable merely for the actions of its employees.

Smith

v. City of Oklahoma City, 696 F.2d 784, 786 (10th Cir. 1983)(citing
Monell, 436 U.S. at 690B91).

A plaintiff must establish that it was

the municipality=s policy or custom that caused the constitutional
deprivation.

Id.

A plaintiff may show that such policy or custom

exists through (1) formal regulations; (2) widespread practice so
permanent that it constitutes a custom; (3) decisions made by
employees with final policymaking authority that are relied upon by
subordinates; or (4) a failure to train or supervise employees that
results from a deliberate indifference to the injuries caused.
BrammerBHoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1188B89
(10th Cir. 2010).
Plaintiff has implicitly agreed in her response that she has
failed to adequately assert claims against the City in Counts 2 and
3.

She has made no argument that her claims against the City

sufficiently allege a policy or custom for the purposes of ' 1983.
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Rather, she suggests that (1) she should be allowed to conduct
discovery on these claims to Abetter establish@ them or, in the
alternative, (2) they should be dismissed without prejudice so they
may be re-filed at a later date Aif additional evidence becomes
available that will allow [her] to better pursue those claims.@
The court finds that the claims asserted by the plaintiff in
Counts 2 and 3 of the amended complaint fail to state a claim against
the City under ' 1983.

The amended complaint fails to state a

plausible claim of municipal liability.

In Count 2, plaintiff

alleges only a conclusory allegation that a formal policy of the City
existed to Adetain innocent witnesses for hours at a time under the
cloak of authority of its officers.@

In Count 3, plaintiff fails to

allege support for her conclusory allegation that a Ade facto policy
of shoot first and ask questions later@ existed.
prior incidents involving similar conduct.
shall

at

this

time

dismiss

these

She points to no

Accordingly, the court

claims

without

prejudice.

Plaintiff may re-assert them in the future if discovery reveals some
support for them.
C.

Count 7B-Negligent Infliction of Emotional Distress
The defendants contend that plaintiff has failed to state a

claim for negligent infliction of emotional distress in Count 7 of
her amended complaint.

Specifically, the defendants argue that

plaintiff has made an insufficient allegation of physical injury.
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Under Kansas law Athere can be no recovery for emotional distress
suffered by the plaintiff which is caused by the negligence of the
defendant unless it is accompanied by or results in physical injury
to the plaintiff.@

Hoard v. Shawnee Mission Med. Ctr., 233 Kan. 267,

662 P.2d 1214, 1219B20 (1983).
The court finds that plaintiff has adequately stated a claim
of negligent infliction of emotional distress.

Plaintiff has

alleged that she and her children suffered Amental pain, fear,
nervousness, uncertainty and humiliation.@

It is plausible that

such claims encompass Aphysical injury.@

The cases cited by

defendants are unpersuasive because they involved claims in which
the plaintiff made no showing of physical injury at summary judgment.
See Anderson v. Scheffler, 242 Kan. 857, 752 P.2d 667 (1988) and
Reynolds v. Highland Manor Inc., 24 Kan.App.2d 859, 954 P.2d 11
(1998).

While this claim may not survive summary judgment, the court

is persuaded that a plausible claim has been stated at this stage
of the litigation.
IT IS THEREFORE ORDERED that defendants= motion to dismiss be
hereby granted in part and denied in part.

The following claims are

hereby dismissed for the reasons stated in this memorandum:

(1)

state law claim of false imprisonment in Count 5; (2) claims against
the

individual

officers

in

their

official

capacities;

(3)

intentional infliction of emotional distress based upon the City=s
9

failure to identify the officers in Count 8; (4) claim against the
City of Wichita in Count 2; (5) the claim in Count 3; and (6) any
claim of punitive damages against the City.

The remainder of the

defendants= motion to dismiss is denied.
IT IS SO ORDERED.
Dated this 31st day of May, 2013, at Topeka, Kansas.

s/Richard D. Rogers
United States District Judge

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