Chadwell v. United States of America, The
MEMORANDUM AND ORDER granting in part and denying in part 47 Second Amended Motion for Leave to Amend Complaint. See Order for further details. Signed by Magistrate Judge Kenneth G. Gale on 7/29/2022. Mailed to pro se party Kurt Chadwell by regular mail. (tl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KURT CHADWELL, Individually and
as a Personal Representative of the
Estate of Decedent Earl Chadwell
UNITED STATES OF AMERICA,
Case No.: 6:20-1372-JWB-KGG
MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART
SECOND AMENDED MOTION FOR LEAVE TO AMEND COMPLAINT
Now before the Court is Plaintiff’s “Second Amended Motion for Leave to Amend
Complaint” (Doc. 47). Defendant opposes the motion. The Court finds that Plaintiff may
represent the estate pro se as the sole beneficiary and administrator of the estate. Further,
the Court finds that Plaintiff may amend to include his proposed medical malpractice
claims. However, amending to include Plaintiff’s claims for negligence in the use of
unreasonable force and negligent infliction of emotional distress would be futile. Having
reviewed the submissions of the parties, the Court GRANTS in part and DENIES in
part Plaintiff’s motion as set forth below.
The facts set forth herein are taken from Plaintiff’s proposed amended complaint.
Plaintiff is proceeding pro se, representing himself individually and Decedent’s estate as
its administrator. Plaintiff brings actions for medical malpractice, negligence in the use of
unreasonable force, and negligent infliction of emotional distress. These actions arise
under the Federal Tort Claims Act and Kansas law.
Decedent Earl Chadwell (“Decedent”) was living in the Transitional Living Center
(“TLC”) of the Veterans Affairs Medical Center (“VAMC”). (Doc. 47-1, at 1.) The TLC
is essentially a nursing home within the VAMC. (Id. at 7.) On February 11, 2014,
Decedent fell inside his room at the TLC. (Id.) Decedent was a known fall risk among the
nursing staff. (Id. at 7.) Further, Decedent’s wheelchair was equipped with a pressure
sensitive “chair alarm” prior to his fall. (Id. at 8.) This chair alarm would sound whenever
Decedent attempted to rise from his wheelchair and was “quite loud when activated.”
On the day of the fall, Decedent was able to walk with assistance to dinner. (Id. at
8.) After dinner, Decedent was returned to his room via his wheelchair by a VAMC
employee. He was later found on the floor inside of his bathroom. (Id. at 9.) Plaintiff
alleges that Decedent fell either because VAMC employees failed to properly activate the
wheelchair alarm when they returned Decedent to his wheelchair after dinner, VAMC
employees failed to ensure that the alarm was in proper working order, or VAMC
employees failed to timely respond to the alarm. (Id.) Plaintiff also alleges that the TLC
had a staffing shortage on the night of the fall. (Id. at 10.) The fall broke Decedent’s hip,
which necessitated a hip replacement surgery. (Id. at 9.)
Plaintiff also claims that on or about April 17th, 2014, or April 18th, 2014, a
VAMC officer used physical force against him which caused his wrist or arm to bleed
and bruise. (Id., at 25.) While Plaintiff does not provide any further factual allegations to
explain this confrontation, a letter attached to the Standard Form-95 (“SF-95”), (Doc. 472), from the VAMC Medical Center Director states that Plaintiff’s visitation privileges
were suspended based upon disruptive behavior. (Doc. 47-2, at 17.) This disruptive
behavior led VAMC police to escort Plaintiff off the VAMC campus. (Id.)
On February 10, 2016, Plaintiff submitted an administrative claim, via a SF-95 to
the Department of Veterans Affairs. (Doc. 47-1, at 6.) The SF-95 is partially redacted
because it contains “private, personal information.” (Id.) This SF-95 provides more detail
on the alleged injuries Decedent suffered at the VAMC than what was included in the
complaint as mentioned above. (Doc. 47-2 at 6-10.) Plaintiff has incorporated the factual
allegations contained in the SF-95 into the proposed amended complaint. (Doc. 47-1, at
Plaintiff’s original complaint included claims for medical malpractice, negligent
supervision, and outrage. (Doc. 1.) This original complaint was partially dismissed
without prejudice for failure to state a claim. (Doc. 33.) All claims brought on behalf of
Decedent’s estate were dismissed because Plaintiff could not appear pro se on behalf of
others, and Plaintiff’s brother (“Mark”) was also a beneficiary of Decedent’s estate.
When a claim is brought on behalf of an estate, that claim is brought on behalf of all of its
heirs. Therefore, Plaintiff could not represent the estate while appearing pro se, as
representing the estate would require him to represent Mark. Plaintiff’s claims for
negligent supervision and outrage were dismissed for failure to allege sufficient facts to
support his legal conclusions.
Following the dismissal, Mark filed a disclaimer of interest in Decedent’s Estate.
Plaintiff then obtained an order from the state probate court which declared Mark’s
disclaimer as timely, valid, and effective. (Doc. 47-5, at 1.) Further, the probate court
found that Plaintiff is the sole beneficiary and court-appointed administrator of
Decedent’s estate. (Doc. 47-5, at 6-7.)
Plaintiff now seeks to amend his complaint. On behalf of himself, Plaintiff brings
a wrongful death claim under the Kansas Wrongful Death Act (K.S.A. § 60-1801-06) and
claims for negligence in the use of unreasonable force and negligent infliction of
emotional distress. As the administrator of Decedent’s estate, Plaintiff then brings claims
under the Kansas Survival Act (K.S.A. § 60-1801-03) for medical malpractice and
negligent infliction of emotional distress.
Plaintiff filed this Second Amended Motion for Leave to Amend on July 7th,
2022. Defendant then filed its response (Doc. 49), arguing that the proposed amendments
would be futile. Following Defendant’s response to Plaintiff’s first Amended Motion for
Leave to Amend, Plaintiff chose to file this second amended motion instead of replying
to Defendant’s response. Plaintiff has had ample opportunity to address Defendant’s
arguments in the numerous previous pleadings. Therefore, the Court has precluded
Plaintiff from filing a reply to Defendant’s response and considers the briefing on this
Federal Rule of Civil Procedure 15(a)(2) provides that “a party may amend its
pleading only with the opposing party’s consent or the court’s leave.” Fed. R. Civ. P.
15(a)(2). The Rule further provides that the court should freely give leave when justice so
requires. (Id.) The grant of leave to amend the pleadings is within the discretion of the
trial court and should be liberally construed. Minter v. Prime Equipment Co., 451 F.3d
1196, 1204 (10th Cir. 2006).
Typically, leave to amend a pleading should be freely given unless there is undue
delay, a bad faith motive, or undue prejudice. (Id.) (citing Foman v. Davis, 731 U.S. 178,
182 (1962)). A court is also justified in denying a motion to amend as futile if the
proposed amendment could not withstand a motion to dismiss or otherwise fails to state a
claim. Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992). Therefore, the proposed
pleading is analyzed using the same standard as a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6). Couser v. Somers, No. 18-1221-JWB-GEB, 2020 WL
6742790, at *8 (D. Kan. Nov. 17, 2020), report and recommendation adopted in part sub
nom. Est. of Holmes by & through Couser v. Somers, No. 18-1221-JWB, 2021 WL
236080 (D. Kan. Jan. 25, 2021). “[T]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Williamson v. United Parcel Service, Inc., No. 19-cv-2506-KHVTJJ, 2020 WL 1638063, at *2 (D. Kan. Apr. 2, 2020) (citation omitted). Additionally, the
opposing party bears the burden of showing how the proposed amendments are futile.
Layne Christenson Co. v. Bro-Tech Corp., No. 9-cv-2381-JWL-GLR, 2011 WL
3847076, at *5 (D. Kan. Aug. 29, 2011).
A. Claims on Behalf of the Estate
When granting Defendant’s partial motion to dismiss, the district court found that
Plaintiff could not bring claims on behalf of Decedent’s estate while appearing pro se
because the estate held multiple heirs—the Plaintiff and his brother. When bringing a
claim on behalf of an estate, that claim is brought on behalf of all its heirs. Draughon v.
United States, 103 F. Supp. 3d 1266, 1284 (D. Kan. 2015) (citing Jones v. Corr. Med.
Serv., Inc., 401 F.3d 950, 951-52 (8th Cir. 2005)). Therefore, Plaintiff cannot proceed
pro se when there are other beneficiaries of the estate, because the right to appear pro se
only applies to the “appearance for one’s self.” (Id.) However, Mark has executed a
disclaimer of interest in Decedent’s estate. (Doc. 47-1, at 3.)
Defendant poses that Mark’s disclaimer of interest fails to cure Plaintiff’s inability
to represent the estate pro se. (Doc. 49, at 5.) This notion is incorrect. Not only has Mark
executed a disclaimer, but Plaintiff has also been named the sole beneficiary and
administrator of Decedent’s estate by a probate court order. (Doc. 47-5, at 6-7). Under
Kansas law, a survival action must be brought by the personal representative or
administrator of the decedent on behalf of the estate. Howe v. Mohl, 214 P.2d 298, 301
(Kan. 1950). Additionally, the administrator of the estate may bring the survival claim
pro se when they are the sole beneficiary. Draughon, 103 F. Supp. 3d at 1284; Guest v.
Hansen, 603 F.3d 15, 21 (2nd Cir. 2010) (“We hold that the administrator and sole
beneficiary of an estate with no creditors may appear pro se on behalf of the estate”). As
the administrator and sole beneficiary, Plaintiff may bring the survival claims while
proceeding pro se.
Defendant first argues against Plaintiff’s ability to represent the estate by stating
that it is unclear whether Mark’s disclaimer of interest was timely under K.S.A. § 592292(a) because Plaintiff failed to articulate how the disclaimer is timely. (Id.) However,
the Defendant bears the burden of proving that an amended complaint is futile. Defendant
must demonstrate how the disclaimer of interest was untimely, not simply speculate that
it might be. Following Defendant’s reasoning would require the burden to be shifted onto
Defendant next argues that, even if Mark’s disclaimer of interest is valid and
timely, his disclaimer does not rectify Plaintiff’s inability to represent the estate and that
the estate still holds multiple heirs. To support this argument, Defendant cites Matter of
Estate of Estes, 718 P.2d 298, 301-02 (Kan. 1986) which states that “a disclaimer is a
renunciation of a property right, not a change of status or relationship.” However, the
probate court’s order has not only named Plaintiff as the sole beneficiary to the estate but
has also assigned and distributed the survival action to Plaintiff exclusively. (Doc. 47-5,
at 6-7.) Additionally, an administrator who is the sole beneficiary of the estate may
proceed pro se, as stated above. Given the probate court’s ruling and Plaintiff’s status as
the administrator and sole beneficiary, Defendant’s argument fails.
In the alternative, Defendant argues that Plaintiff’s status as the sole heir precludes
him from bringing claims on behalf of the estate, relying on White v. City of Topeka, 489
F. Supp. 3d 1209, 1221 (D. Kan. 2020) (“[A] survival action must be maintained by the
personal representative of the decedent, and cannot be brought by the decedent’s heirs”)
and Estate of Smart v. City of Wichita, No. 14-2111-EFM, 2018 WL 534335, at *2 (D.
Kan. Jan. 24, 2018) (“Under Kansas law, survival claims must be maintained by an
administrator of the decedent’s estate, and cannot be brought by the decedent’s heirs.”).
Defendants wish to place emphasis on the later part of the two quoted statements.
However, White and Estate of Smart share a different context from this case.
In this case, the sole beneficiary of the estate, Plaintiff, is also the administrator of
the estate. In White and Estate of Smart, the beneficiaries and the administrators of the
estates are separate entities. White and Estate of Smart preclude beneficiaries from
bringing survival claims as beneficiaries, but, here, Plaintiff is bringing the survival
claim pro se as the appointed administrator of the estate, irrespective of his status as a
beneficiary. White and Estate of Smart only prevent non-administrator beneficiaries
from bringing a survival claim on behalf the estate. Holding otherwise would bar any
estate that has an administrator who is also a beneficiary from bringing survival claims.
As such, Plaintiff may bring claims on behalf of the estate while proceeding pro se.
B. Count I: Medical Malpractice Claims
Plaintiff has brought medical malpractice claims on behalf of himself and as the
administrator of Decedent’s estate. (Doc 47-1, at 37.) He brings his own claims under the
Kansas Wrongful Death Act (K.S.A. § 60-1901-06) and the estate’s claims under the
Kansas Survival Act (K.S.A. § 60-1801-03). (Id.) Defendant does not contest Plaintiff’s
right to bring a wrongful death claim. Additionally, Defendant makes no further
arguments against the estate’s medical malpractice claims beyond Plaintiff’s ability to
represent the estate. As stated above, Plaintiff may bring the estate’s survival claims as its
administrator and sole beneficiary. Therefore, this portion of Plaintiff’s motion is
C. Count II: Negligence in the Use of Unreasonable Force Claims
Plaintiff brings a claim on behalf of himself for negligence in the use of
unreasonable force. (Doc. 47-1, at 49.) He alleges that VAMC officers caused his wrist or
arm to bleed and bruise. (Id., at 50.) This occurred during an altercation that led to
Plaintiff being escorted from the VAMC on April 17th or 18th, 2014. (Doc. 47-2, at 17.)
He further alleges that this altercation caused mental pain, injury, nervousness, indignity,
fright, humiliation, and embarrassment. (Doc. 47-1, at 51.)
Defendant poses that this new claim would be futile for several reasons. The
Defendant first argues that this claim lacks factual allegations on what the officer actually
did to Plaintiff. (Doc. 47, at 6.) This argument fails because, while the complaint may not
go into extensive detail on the altercation, the claims do allege enough information to be
plausible. Plaintiff describes that there was an interaction between him and a VAMC
officer, the officer owed him a duty, the officer breached that duty, the date the
interaction occurred, and the injury that resulted from that interaction. (Doc. 47-1, at 50.)
Further, the letter attached to the SF-95 details that this interaction involved an officer
escorting Plaintiff out of the building. (Doc. 47-2, at 17.) Considering all of these details,
Plaintiff alleges enough facts to bring a plausible claim.
Defendant next argues that this new claim is futile because Plaintiff fails to show
how the VAMC officer breached a duty owed to Plaintiff. (Doc. 49, at 6.) A police
officer owes a special duty to an individual when that officer performs an affirmative act
that causes injury. Clark v. Thomas, 505 F. Supp. 2d 884, 890 (10th Cir. 2007) (citing
Dauffenbach v. City of Wichita, 667 P.2d 380, 385 (Kan. 1983)). Plaintiff alleges he was
owed a duty when the VAMC officer performed the affirmative act of escorting him out
of the building. He then further alleges that the VAMC officer breached that duty by
using unreasonable force while escorting Plaintiff from the building. (Doc. 47-1, at 50.)
The Defendant then argues that even if the officer owed a special duty to Plaintiff,
the officer was reasonable in their use of force. (Doc. 49 at 8.) Granted, an officer is
justified in using reasonable force, and has the discretion to determine the degree of force
that is necessary under the circumstances. Clark v. Thomas, 505 F. Supp. 2d 884, 890
(10th Cir. 2007) (citing Dauffenbach, 667 P.2d at 385). However, the reasonableness of
the force used by an officer is a question for the trier of fact. (Id.) As such, Plaintiff has
properly alleged a breach of duty.
The Defendant next argues that the negligence claim is a repackaging of Plaintiff’s
intentional tort claims from the original complaint and the SF-95. (Doc. 49, at 9.) Since
§ 2680(h) of the Federal Tort Claims Act bars any claim that arises out of an assault or
battery committed by a law enforcement officer, the Defendant argues that this claim
should be dismissed as futile. (Id.) A plaintiff cannot avoid the restrictions in § 2680(h)
by framing their complaint as a negligence claim. United States v. Shearer, 473 U.S. 52,
53 (1985). This is because “2680(h) does not merely bar claims for assault or
battery . . . it excludes any claim arising out of assault or battery.” (Id.) While Plaintiff
does not use the word battery in his amended complaint, his brief description of the event
details a battery. (See Doc. 47-1, at 50.) Additionally, when describing the event in the
SF-95, the Plaintiff explicitly calls the incident a battery. (Doc. 47-2, at 10.)
While Plaintiff may state that he is not alleging a battery in his proposed, amended
complaint, this new negligence claim is simply a repurposing of that original battery
claim from the SF-95. A mere allegation of negligence does not turn an intentional tort
into negligent conduct. Benavidez v. United States, 177 F.3d 927, 931 (10th Cir. 1999).
Plaintiff’s negligence claim is arising out of the alleged battery from the VAMC officer
and is barred by § 2680(h) of the Federal Tort Claims Act. Therefore, this portion of
Plaintiff’s motion is DENIED.
D. Count III: Negligent Infliction of Emotional Distress
Plaintiff also brings new claims for negligent infliction of emotional distress
(“NIED”) on behalf of himself and the estate. (Doc. 47-1, at 51.) Starting with the claims
brought on behalf of himself, Plaintiff alleges that Defendant’s failure to protect Plaintiff
from reprisal is in violation of 38 C.F.R. § 17.33. (Id.) This failure allegedly caused
Plaintiff’s extreme emotional distress. (Id., at 53.) Furthermore, he alleges that the
conduct of one or more of VAMC’s employees was extreme and outrageous. (Id.) In
order to succeed on an NIED claim, a plaintiff must demonstrate that the extreme and
outrageous conduct resulted in direct and proximate physical injury in addition to any
emotional discomforts. Price v. City of Wichita, No. 12-1432-CM, 2013 WL 6081103, at
*5 (D. Kan. 2013) (citing Reynolds v. Highland Manor, Inc., 953 P.3d 11, 13 (Kan. Ct.
While Plaintiff does allege that he suffered several injuries due to Defendant’s
conduct, such as humiliation, emotional distress, and loss of sleep, he does not allege that
these injuries resulted in direct or proximate physical injury. Furthermore, “Kansas courts
have refused to entertain claims for NIED where the physical effects resulting from the
emotional distress manifested in headaches, nausea, insomnia, and other general physical
and emotional discomforts.” Lee v. Kan. State Univ., No. 12-cv-2638-JAR-DJW, 2013
WL 2476702, at *10 (D. Kan. June 7, 2013). Given this, Plaintiff has failed to plead a
plausible claim for NIED.
Moving to the NIED claim brought on behalf of the estate, amending to include
this claim would also be futile. As with Plaintiff’s claim, the proposed amended
complaint fails to point to any direct or proximate physical injury that caused Decedent’s
emotional distress. Plaintiff does point to a physical injury, Decedent’s broken hip, but he
fails to explain how this is direct or proximate to Decedent’s distress. Rather, the
proposed amended complaint points to the TLC’s alleged inadequate medical care and
the banning of Plaintiff from the VAMC as the cause of Decedent’s emotional distress.
As such, the estate lacks a plausible claim for NIED and amending to include either the
Plaintiff’s or the estate’s claim would be futile. Therefore, this portion of Plaintiff’s
motion is DENIED.
The Court finds that Plaintiff may bring the estate’s survival claims as its
administrator and sole beneficiary. Plaintiff may amend to include both his own and the
estate’s medical malpractice claims (Count I). Therefore, this portion of Plaintiff’s
motion is GRANTED. However, the Court also finds that Defendants have established
the futility of Plaintiff’s proposed unreasonable force claim (Count II) and proposed
NIED claims (Count III) brought on behalf of himself and the estate. As such, these
portions of Plaintiff’s motion are DENIED.
IT IS THEREFORE ORDERED that Plaintiff’s Second Amended Motion for Leave to
Amend Complaint (Doc. 47) is GRANTED in part and DENIED in part as set forth
IT IS FURTHER ORDERED that Plaintiff shall revise his Amended Complaint
accordingly and file it within 14 days after receiving this Order.
IT IS SO ORDERED
Dated at Wichita, Kansas, on this 29th day of July 2022.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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