Moon v. Stineman et al
MEMORANDUM AND ORDER denying 11 Sedgwick County, Kansas, Board of Commissioners' Motion to Dismiss. Signed by District Judge John W. Broomes on 4/27/2021. (mam)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 21-1027-JWB
MATTHEW STINEMAN and
BOARD OF COUNTY COMMISSIONERS
OF SEDGWICK COUNTY, KANSAS,
MEMORANDUM AND ORDER
This matter is before the court on Defendant Sedgwick County, Kansas, Board of
Commissioners’ (“BOCC”) motion to dismiss. (Doc. 11.) Defendant’s time to file a reply brief
has expired making the motion, as briefed, ripe for decision. (Docs. 12, 14.) For the reasons set
forth herein, the motion to dismiss is DENIED.
Plaintiff asserts five claims: (1) constitutional violation of excessive force pursuant to §
1983; (2) negligent use of force; (3) battery; (4) intentional infliction of emotional distress; and (5)
negligent infliction of emotional distress. (Doc. 1 at 6-11.) The excessive force claim is brought
against Defendant Matthew Stineman, in his individual capacity, with the remaining tort claims
being alleged against Defendant Stineman and Defendant BOCC. In response, Defendant BOCC
asserts qualified immunity and moves for dismissal of the claims asserted against it.
Defendant BOCC’s motion to dismiss relies heavily upon the doctrine of qualified
immunity. See generally (Doc. 12.) “Individual defendants named in a § 1983 action may raise a
defense of qualified immunity.” Cillo v. City of Greenwood Vill., 739 F.3d 451, 460 (10th Cir.
2013). Defendant BOCC is not an individual but rather a municipal entity. Therefore, the defense
of qualified immunity is not applicable to it. See Starkey ex rel. A.B. v. Boulder County Social
Servs., 569 F.3d 1244, 1263 n. 4 (10th Cir. 2009) (“Qualified immunity, however, is available only
in suits against officials sued in their personal capacities, not in suits against governmental entities
or officials sued in their official capacities.”) Moreover, after reviewing Plaintiff’s complaint
(Doc. 1), Plaintiff has not asserted a claim against BOCC under § 1983. Plaintiff’s response
illustrates this issue in a footnote stating:
The only claims made against Defendant Sedgwick County are for its vicarious
liability of Defendant Stineman of the different theories of recovery found in
Counts II through V of Plaintiff’s complaint.
Plaintiff has not made claims against Defendant Sedgwick County under 42
U.S.C. § 1983, or Count I of the complaint. Those claims are made only against
Defendant Stineman in his individual capacity for the violation of Plaintiff’s
rights under the Due Process [sic] of the Fourteenth Amendment. See Kingsley
v. Hendrickson, 576 U.S. 389 (2015); Estate of Booker v. Gomez, 745 F.3d 405
(10th Cir. 2014). Plaintiff has made no municipal liability claims under 42
U.S.C. §1983. As a result, the arguments contained in Defendant Sedgwick
County’s motion regarding its ability to be sued under 42 U.S.C. § 1983 or its
defense of qualified immunity under that federal civil rights statute should be
(Doc. 14 at 2.)
The court agrees with Plaintiff’s reasoning. As stated above, BOCC cannot assert a
qualified immunity defense and the individual board members are not named as defendants in this
Further, Defendant BOCC argues that by statute it has no ability to supervise the sheriff’s
department personnel and thus cannot be held liable under a vicarious liability theory. As recently
noted by the Tenth Circuit, “a Kansas county bears respondeat superior liability for its sheriff’s
tortious acts under the Kansas Tort Claims Act (“KTCA”). Couser v. Gay, 959 F.3d 1018, 1027
(10th Cir. 2020) (citations omitted); see also Estate of Belden v. Brown Cty., 45 Kan.App.2d 247,
261 P.3d 943, 974 (2011) (holding that “for purposes of the KTCA, sheriff’s department personnel
are employees of the county”). Defendant BOCC makes no other arguments regarding the
plausibility of Plaintiff’s state law tort claims in counts II through V. Accordingly, Defendant
BOCC’s motion to dismiss is DENIED.
IT IS SO ORDERED this 27th day of April, 2021.
_s/ John W. Broomes______________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE
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