Smith v. Wichita, Kansas, City of of et al
MEMORANDUM AND ORDER denying 4 Motion to Remand. Signed by District Judge J. Thomas Marten on 8/10/2017. (sz)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JEFF LLOYD SMITH,
Case No. 17-1114-JTM
CITY OF WICHITA, KANSAS,
MEMORANDUM AND ORDER
Plaintiff Jeff Lloyd Smith originally filed this action in the District Court of
Sedgwick County, Kansas, against defendants City of Wichita, Kansas (“City”) and
Wichita Police Department Police Chief Nelson Mosley (“Chief Mosley”).1 Plaintiff
alleges that two Wichita Police Department (“WPD”) officers engaged in conduct that
“amounted to excessive, indiscriminate, unreasonable, inhumane and unlawful use of
force.” (Dkt. 1-1, at 3). Defendant removed the action to this court pursuant to 28
U.S.C. §§ 1441, 1446, and D. Kan. Rule 81.1 under federal question jurisdiction, 28 U.S.C.
§ 1331. This matter is before the court on plaintiff’s motion for remand claiming this
court lacks subject matter jurisdiction (Dkt. 4). For the reasons provided below, the
court denies plaintiff’s motion.
On May 4, 2015, plaintiff was riding in the passenger seat in a vehicle driven by
another individual known as “Skip.” A police cruiser drove past Skip’s vehicle in the
Plaintiff’s claims against Chief Mosley were dismissed without prejudice by agreement of the parties. (Dkt. 13).
opposite direction. The cruiser turned around and began to follow Skip’s vehicle. Skip
accelerated to an excessive rate attempting to elude the police. Plaintiff repeatedly
asked Skip to stop. Skip eventually pulled into a warehouse area and jumped from the
car, but the car continued to roll forward. Plaintiff tried to stop the car by throwing his
left leg over the console to apply the brakes, however, plaintiff’s seat belt was fastened
and he remained in the passenger seat while trying to stop the vehicle.
Two unknown WPD officers ran to the vehicle with their firearms drawn, and
shot at plaintiff. Plaintiff suffered multiple gunshot wounds. The WPD officers then
pulled plaintiff from the passenger seat, across the driver’s seat, and out of the car. The
WPD officers pummeled plaintiff and handcuffed him. Plaintiff, who was unarmed
and alleges he committed no criminal offense, suffered permanent, life altering physical
injuries as a result of the WPD officers’ conduct.
“Federal courts are courts of limited jurisdiction; they must have a statutory
basis for their jurisdiction.” Dutcher v. Matheson, 733 F.3d 908, 984 (10th Cir. 2013)
(quoting Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1274 (10th Cir. 2012)).
A federal court has jurisdiction over a claim if it “aris[es] under the Constitution, laws,
or treaties of the United States.” 28 U.S.C. § 1331. Civil actions filed in state courts over
which federal district courts have original jurisdiction “may be removed by the
defendant . . . to the district court of the United States for the district and division
embracing the place where such action is pending.” 28 U.S.C. § 1441(a). “If at any time
before final judgment it appears that the district court lacks subject matter jurisdiction,
the case shall be remanded.” 28 U.S.C. § 1447(c).
The well-pleaded complaint rule usually governs whether a claim arises under
federal law. Sharp v. Wellmark, Inc., 744 F. Supp. 2d 1191, 1194 (D. Kan. 2010). “The rule
makes the plaintiff the master of his claim; he or she may avoid federal jurisdiction by
exclusive reliance on state law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
Even if a well-pleaded complaint does not specifically seek relief under federal law,
removal may still be proper under the substantial-federal-question doctrine. See Grable
& Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005). This doctrine
applies when “a state-law claim necessarily raise[s] a stated federal issue, actually
disputed and substantial, which a federal forum may entertain without disturbing any
congressionally approved balance of federal and state judicial responsibilities.” Id.
The party claiming jurisdiction has the burden to show jurisdiction by a
preponderance of the evidence. Karnes v. Boeing Co., 335 F.3d 1189, 1193 (10th Cir. 2003).
There is a presumption against finding federal jurisdiction, until the party invoking it
makes an adequate showing. Id. at 1194. “Doubtful cases must be resolved in favor of
remand.” Colbert v. Union Pac. R. R. Co., 485 F. Supp. 2d 1236, 1239 (D. Kan. 2007)
(quoting Thurkill v. The Menninger Clinic, Inc., 72 F. Supp. 2d 1232, 1234 (D. Kan. 1999)).
In his state petition, plaintiff claims that the WPD officers were acting in their
official capacity and under color of law when they stopped Skip’s vehicle and shot and
injured plaintiff. Plaintiff asserts that the shooting was an immediate arrest without
probable cause, thereby violating his Fourth and Fourteenth Amendment right to be
free of unreasonable seizures. He also claims that the shooting was cruel and unusual
punishment in violation of the Eighth Amendment.
Plaintiff claims that defendant is vicariously liable for Chief Mosley’s and the
WPD officers’ negligence under the doctrine of respondeat superior and/or other
doctrines recognized by law because the WPD officers used force that was reckless,
careless, and grossly negligent in violation of WPD policies/regulations. Plaintiff also
alleges that defendant is negligent for the hiring and retention of Chief Mosley and the
two WPD officers who shot and injured him. Plaintiff seeks actual and exemplary
damages and costs pursuant to the Kansas Tort Claims Act (“KTCA”), Kan. Stat. Ann.
§§ 75-6101 to 75-6115, and state common law.
Plaintiff claims that he did not refer to 42 U.S.C. § 1983, and asserts that his only
theory of liability is negligence. Plaintiff states that he is raising a “negligence per se”
claim when he was arrested without probable cause and shot by the WPD officers.
(Dkt. 6, at 4). Plaintiff recognizes that he alleged the officers’ conduct violated the
Fourth and Eighth Amendments, but argues that these claims do not convert his case
into a § 1983 case—it merely emphasizes that the violations are clearly negligent.
Defendant is correct in that the court only considers plaintiff’s state petition. See
Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375, 1380 (10th Cir. 1978) (“[I]n
determining the existence of the ‘federal question’ jurisdiction under [28 U.S.C. §
1331(a)] justifying removability from a state court to a federal court one must look
solely at the plaintiff’s complaint rather than to any subsequent pleading or the petition
Plaintiff’s negligence per se claim is not in his initial pleading;
consequently, it cannot be used as a basis to defeat removal. Furthermore, the presence
of § 1983 claim does not foreclose relief under separate Kansas tort theories. See, e.g.,
Clark v. Thomas, 505 F. Supp. 2d 884, 887 (D. Kan. 2007) (the plaintiff alleged that the
defendant police officer used excessive force in pursuing and arresting him and
asserted tort claims sounding in negligence and battery as well as a § 1983 claim).
Having carefully reviewed plaintiff’s petition, the court finds that removal to
federal court is proper.
Plaintiff’s petition refers to violations of the United States
Constitution—as opposed to “constitution” or “Kansas constitution” and require
resolution of a substantial question of federal rights. Specifically, plaintiff alleges that
he was subjected to excessive use of force and illegally seized by WPD officers in
violation of the Fourth, Eighth, and Fourteenth Amendments. Plaintiff pleads that these
officers were acting in their official capacity and under color of law. See 42 U.S.C. § 1983
(“Every person who, under color of [law] . . . subjects, or causes to be subjected, any
citizen of the United States . . . the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at
law . . . .”). Plaintiff also requests exemplary damages from defendant, however, such
recovery is not available under the KTCA. Kan. Stat. Ann. § 75-6105(c).
The court recognizes that “a defendant cannot, merely by injecting a federal
question into an action that asserts what is plainly a state-law claim, transform the
action into one arising under federal law . . . . If a defendant could do so, the plaintiff
would be master of nothing.” Caterpillar Inc., 482 U.S. at 399. But that is not the case
here. The court has reviewed several cases addressing motions to remand with similar
facts, and the outcome generally hinges on whether the plaintiff cited any federal
provision. See, e.g., Cevallos v. Silva, 541 F. App’x 390, 392 (5th Cir. 2013) (“Cevallos’
Original Petition does not allege any specific claim under § 1983 or a violation of the
United States Constitution; thus, the allegations in Cevallos’ petition were too
ambiguous to establish federal question jurisdiction definitively.”); Broaden v. City of
Montgomery, No. 2:14-CV-234-WKW, 2014 WL 1572586, at *1 (M.D. Ala. Apr. 17, 2014)
(“There is no reference in the Complaint to § 1983 or any other federal statute, and there
is no mention of the Fourth Amendment or any other federal constitutional
provision.”); LaBarbera v. Arizona, No. CV12-1740-PHX-DGC, 2012 WL 5328653, at *2
(D. Ariz. Oct. 29, 2012) (“Plaintiff’s Complaint does not refer to § 1983 or federal law.”);
Shockley v. City of Waurika, No. CIV-10-517-D, 2010 WL 3081528, at *3 (W.D. Okla. Aug.
6, 2010) (“Although Plaintiffs allege that his conduct was in violation of ‘the constitution
and state law,’ they do not expressly cite a federal constitutional provision.”); Turner v.
Rodriguez, No. 108CV00789OWWSMSPC, 2008 WL 5046054, at *2 (E.D. Cal. Nov. 21,
2008), report and recommendation adopted, No. 1:08CV789-IEG(CAB), 2009 WL 33419 (E.D.
Cal. Jan. 5, 2009) (“Nowhere in the complaint does plaintiff specifically refer to the
Constitution, Section 1983, federal civil rights, the Eighth Amendment, or any other
federal law.”); Pigott v. Ostulano, No. CIVA 2;07CV90, 2007 WL 1448718, at *3 (E.D. Va.
May 9, 2007) (“Significantly, the complaint never cites § 1983 or any other federal
statute or constitutional provision.”).
Unlike the cases referenced above, plaintiff claims the WPD officers violated
federal constitutional rights—the Fourth Amendment right against unreasonable
seizures and the Eighth Amendment right against cruel and unusual punishment.
Plaintiff alleges claims that, in substance, raise a § 1983 cause of action. As such, the
court has subject matter jurisdiction over these claims. Furthermore, because plaintiff’s
state negligence claims arise from the same controversy, the court has supplemental
jurisdiction over those claims pursuant to 28 U.S.C. § 1367(a).
IT IS THEREFORE ORDERED this 10th day of August, 2017, that plaintiff’s
motion for remand to state court (Dkt. 4) is DENIED.
s/ J. Thomas Marten
J. Thomas Marten, Judge
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