Katekaru v. Egan et al

Filing 28

ORDER granting 16 Plaintiff's motion to alter judgment; denying Defendant's 20 Motion to Dismiss for Failure to State a Claim and 27 motion to strike. Plaintiff shall file an amended complaint within thirty (30) days. Signed on 9/23/14 by Chief District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
PAUL D. KATEKARU,
Plaintiff,
v.
CAMERON EGAN, et al.,
Defendants.

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Case No. 13-CV-00349-W-DGK

ORDER GRANTING PLAINTIFF’S MOTION TO REVISE THE COURT’S PRIOR
ORDER
This case arises from Lee’s Summit Police Officer Cameron Egan’s (“Officer Egan”)
arrest of Plaintiff Paul Katekaru (“Plaintiff”) for failure to follow Officer Egan’s directives.
Following Plaintiff’s arrest, temporary imprisonment, and eventual release, he filed suit in this
Court against Officer Egan, Lee’s Summit Police Sergeant Greg Bryant (“Officer Bryant”),
Lee’s Summit Municipal Court Prosecutor Terri Cipolla Round (“Prosecutor Round”), and the
City of Lee’s Summit, Missouri (the “City”). The three-count Complaint respectively alleged (1)
four claims under 42 U.S.C. § 1983 against Officer Egan in his individually capacity (“Count I”);
(2) one claim for malicious prosecution against Officer Egan, Officer Bryant, and Prosecutor
Round (“Count II”); and (3) one claim for municipality liability under 42 U.S.C. § 1983 against
the City (“Count III”).
The Court previously dismissed Counts I and II with prejudice, dismissed Count III
without prejudice, and granted Plaintiff leave to amend Count III (the “Dismissal Order”). Now
before the Court are Plaintiff’s motion to alter the judgment (Doc. 16), the City’s motion to
dismiss the second amended complaint for failure to state a claim (Doc. 20), and the City’s
motion to strike the third amended complaint (Doc. 27). Construing Plaintiff’s motion as a

motion pursuant to Federal Rule of Civil Procedure 54(b) and finding that the Court’s previous
order contained a significant error, the Court GRANTS Plaintiff’s motion (Doc. 16). Because
the Court also GRANTS Plaintiff leave to amend the Complaint to fix the deficiencies noted
below, the Court DENIES the City’s motions (Docs. 20, 27).
Factual and Procedural Background
I. The factual background of this dispute.
Plaintiff’s first amended complaint (Doc. 4) (the “Complaint”) and attached documents
alleged the following. On April 8, 2011, Plaintiff’s nephew, James Jenkins (“Jenkins”), who
lived with Plaintiff at the time, arrived at Plaintiff’s residence in Lee’s Summit in an intoxicated
state. When Plaintiff confronted Jenkins regarding his intoxication, Jenkins immediately became
belligerent.

Jenkins shouted at Plaintiff and destroyed several of Plaintiff’s possessions,

including his computer and microwave. Plaintiff called 911 to report the disturbance, which
further enraged Jenkins.

After hearing Jenkins’ outburst, Kevin Katekaru, Plaintiff’s other

nephew who also resided with him, attempted to intervene. An altercation then ensued between
the two nephews, resulting in Jenkins procuring a knife and threatening to harm himself and
Kevin Katekaru. As the altercation transitioned to the front lawn, Plaintiff wrestled the knife
away from Jenkins.
Immediately thereafter, Officer Egan arrived at Plaintiff’s residence with Lee’s Summit
Police Officer Jason Spaeth (“Officer Spaeth”), and the two ordered Plaintiff to drop the knife.
The two officers then confronted Jenkins, but he fled the scene. Officers Egan and Spaeth
proceeded to question Plaintiff about Jenkins. In response, Plaintiff stated that he was unsure
whether Jenkins was currently armed but that Jenkins had access to firearms inside the house.
Plaintiff then criticized Officer Egan and other members of the Lee’s Summit Police Department

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by calling them incompetent and worthless. When Plaintiff proceeded towards his home, Officer
Egan forbade Plaintiff from doing so. Plaintiff ignored the order and walked toward the house.
Officer Egan then grabbed Plaintiff, placed him under arrest, and provided him with a written
citation for failure to obey an order of a police officer. Officer Spaeth and Lee’s Summit Police
Officer Phillip Stewart then entered Plaintiff’s home, purportedly to search for Jenkins.
Eventually, Officers Stephen Grubb and Scott McMillan of the Lee’s Summit Police
Department Canine Unit arrived at the scene. Following a brief search, these officers located
Jenkins hiding in the backyard of a nearby house. Sometime after Jenkins’ detainment, Officer
Egan transported Plaintiff to the police station, where he remained until he posted bond thirtyfour hours later. On July 29, 2011, Prosecutor Round dismissed the case against Plaintiff.
II. The procedural background of the case.
On April 8, 2013, proceeding pro se, Plaintiff filed a three-count lawsuit in this Court.
Count I alleged four separate violations of 42 U.S.C. § 1983 against Officer Egan individually,
including claims for false arrest, retaliatory arrest, an unconstitutional search of his home, and
conspiracy to violate his constitutional rights. Count II alleged a Missouri common law claim for
malicious prosecution against Officer Egan, Officer Bryant, and Prosecutor Round. Count III
alleged a violation of 42 U.S.C. § 1983 against the City and Prosecutor Round for failure to
properly train and supervise the Lee’s Summit police officers.
On January 31, 2014, the Court dismissed Counts I and II with prejudice and Count III
without prejudice, and it granted Plaintiff leave to amend Count III (Doc. 15). The Court
dismissed Counts I and II of the Complaint because it held that Plaintiff essentially pled himself
out his alleged claims. With respect to Count I, the Court found that the Complaint attempted to
allege four putative claims under 42 U.S.C. § 1983 for (1) false arrest, (2) retaliatory arrest, (3)

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warrantless home search, and (4) conspiracy to violate his constitutional rights. The Court held
that lack of probable cause was an integral element of the false and retaliatory arrest claims, and
the Complaint actually pled Officer Egan had probable cause to arrest Plaintiff for violating an
ordinance. In particular, the Court found that Officer Egan had probable cause to arrest Plaintiff
for violating Section 17-26(D) of the Lee’s Summit Municipal Code. This section makes it
unlawful for any individual to knowingly disobey or oppose a police officer’s command made
during an officer’s attempt to “execute and carry into effect any provision” within the municipal
code. Lee’s Summit, Mo., Municipal Code § 17-26(D) (1988). The Court ultimately found that
Officer Egan forbade Plaintiff from entering his home because he was attempting to carry into
effect Section 17-26(A)(2) of the Municipal Code, which the Court interpreted as proscribing an
individual’s threatened interference with an arrest, stop, or detention of an another individual.
Passages in the Complaint suggested that Officer Egan issued that command to aid his detention
of Jenkins, so the Court found that Officer Egan was attempting to carry into effect Section 1726(A)(2) when he commanded Plaintiff not to enter his home. Thus, because the Complaint
alleged that Plaintiff disobeyed this lawful command, the Court found that Officer Egan
possessed probable cause to arrest him for violating Section 17-26(D).
As for the warrantless home search claim against Officer Egan, the Court found the
Complaint actually pled that Officer Egan did not conduct the home search. On the conspiracy
to violate his constitutional rights claim, the Court found that the Complaint failed to allege
sufficient facts to state a claim because it did not plead that Officer Egan possessed the requisite
intent.

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Regarding Count II, the Court found that Plaintiff’s state common law claim for
malicious prosecution failed because he pled probable cause existed and he failed to plead
malice. Finally, the Court dismissed Count III for failure to state a claim for municipal liability.
After entry of the Dismissal Order, Plaintiff filed a motion to alter the Court’s judgment
and a second amended complaint containing a sole claim for municipal liability. The City then
moved to dismiss the second amended complaint for failure to state a claim, and then Plaintiff,
without obtaining leave from the Court, filed a third amended complaint to rectify perceived
deficiencies in the second amended complaint. All motions are now ripe for review.
Standard
Plaintiff brings his challenge pursuant to Federal Rule of Civil Procedure 59(e). The
rule’s express language, however, only empowers a court to alter or amend a judgment. Fed. R.
Civ. P. 59(e). Here, there is no judgment to amend or alter. Although the Court dismissed all
claims, it also granted Plaintiff leave to amend Count III, so the Court never entered a final
judgment. See Auto Servs. Co. v. KPMG, LLP, 537 F.3d 853, 856 (8th Cir. 2008) (“Here, the
District Court’s December 12, 2006, order dismissing ASC’s claims against Deloitte entities was
not a final judgment because it dismissed fewer than all of the claims asserted in ASC’s
lawsuit.”).

Based upon the lack of a final judgment, Defendants urge the Court to deny

Plaintiff’s motion out of hand. The Court declines this invitation because doing so would elevate
form over substance.
Rather, the Court construes Plaintiff’s motion as one brought pursuant to Rule 54(b). See
K.C.1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009, 1017 (8th Cir. 2007) (construing a party’s
motion initially brought under Rule 59(e) as a motion pursuant to Rule 54(b)). This rule allows
the Court to revise any order—whether final or not—prior to entry of judgment. Fed. R. Civ. P.

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54(b); see Auto Servs. Co., 537 F.3d at 857 (citing Rule 54(b) in support of the proposition that a
district court possesses the authority to revise a non-final order). While Rule 54(b) clearly
entitles a party to seek voidance of an interlocutory order, the showing he must make to obtain
this relief is rather opaque. Some circuit caselaw suggests that the standards governing motions
pursuant to Federal Rule of Civil Procedure 60(b) may apply. See Elder-Keep v. Aksamit, 460
F.3d 979, 984 (8th Cir. 2006). But numerous district courts, including this one, have applied a
less exacting standard to motions challenging non-final, interlocutory orders. See Halloran v.
Houlihan’s Rests., Inc., NO. 11-cv-01028-DGK, 2013 WL 544011, at *1 (W.D. Mo. Feb. 12,
2013); Ideal Instruments, Inc. v. Rivard Instruments, Inc., 434 F. Supp. 2d 640, 647 (N.D. Iowa
2006). This lesser standard, however, still requires a movant to demonstrate: (1) that he did not
have a fair opportunity to argue the matter previously, and (2) granting the motion is necessary to
correct a significant error. Halloran, 2013 WL 544011, at *2.
Discussion
Plaintiff raises a two-pronged challenge to the Court’s previous order. Although his
argument is unclear and inconsistent at times, he essentially contends that the Court made both a
legal and factual misstep in finding that he pled Officer Egan had probable cause to arrest him.
As for his legal argument, Plaintiff contends that Section 17-26(A)—the provision Officer Egan
was purportedly attempting to carry into effect—only prohibits an individual from interfering
with an arrest of another, not the mere detention of another. On the factual front, Plaintiff posits
that the Court erroneously found that Officer Egan was attempting to arrest Jenkins, although the
Complaint only supports an inference that the officers may have been trying to detain him.
According to Plaintiff, these errors in combination led the Court to the erroneous conclusion that

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Officer Egan had probable cause to arrest Plaintiff when he disobeyed Officer Egan’s command
not to enter the residence. The Court addresses each contention separately.
I. Section 17-26(A) prohibits individuals from interfering with arrests, stops, or
detentions.
The Court summarily rejects Plaintiff’s first argument for two reasons. First, Plaintiff
could have raised this argument in response to Defendants’ initial motion to dismiss, but he
failed to do so. See Halloran, 2013 WL 544011, at *2. In any event, even assuming he was
precluded from raising this argument previously, the Court finds that it did not make a significant
error in determining that the ordinance applies to interfering with arrests, stops, and detentions.
Accordingly, the Court rejects Plaintiff’s legal argument.
II. When construed liberally, the Complaint pleads lack of probable cause.
Broadly construing Plaintiff’s factual argument, he appears to present a twofold
contention. First, he argues that the Court erroneously found that the Complaint stated Officer
Egan was in the process of arresting Jenkins. Second, Plaintiff asserts that the Complaint
adequately pled lack of probable cause. Because both arguments are based upon findings and
conclusions from the Dismissal Order, Plaintiff did not have a previous opportunity to raise these
arguments. See Halloran, 2013 WL 544011, at *2. Thus, the Court addresses the merits of each
below.
Plaintiff’s first argument is factually inaccurate. To support his theory that the Court
incorrectly found that Officer Egan was in the process of arresting Jenkins, Plaintiff cites to the
Court’s summary of Officer Egan’s motion to dismiss argument. In the order dismissing the
claims, the Court restated Officer Egan’s argument as, “Essentially, Officer Egan contends that
he was in the process of locating and detaining Jenkins.” (Doc. 15 at 5). This clearly identifies
that Officer Egan was attempting to detain Jenkins. In the next sentence, however, the Court

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continued the summary by stating, “In order to prevent Plaintiff’s interference with the arrest,
Officer Egan forbade Plaintiff from entering his residence because there was a possibility
Jenkins had reentered Plaintiff’s home.”

(Id. (emphasis added)). Plaintiff asserts that the

Court’s use of the term “arrest” in its summary of Officer Egan’s argument is a manifest factual
error.
Although the Court inadvertently stated “arrest,” it is clear from its analysis section that it
found that the Complaint, at most, supported the inference that Officer Egan was in the process
of detaining Jenkins. The linchpin sentence in the Court’s analysis stated, “When considered
together, the allegations in this passage imply that Plaintiff’s physical presence in the home
would have obstructed or hindered the attempted detention of Jenkins.” (Doc. 15 at 6) (emphasis
added). This unequivocal statement in the analysis section clears up any confusion raised by the
Court’s use of the term “arrest” in the summary section of the argument. Accordingly, Plaintiff’s
first contention lacks merit.
The Court cannot say the same for Plaintiff’s second argument. Plaintiff argues that
contrary to the Court’s previous conclusion, he pled lack of probable cause, which is an element
of the false arrest and retaliatory arrest claims in Count I. Much like his response to the motion
to dismiss, however, Plaintiff fails to direct the Court to specific allegations in the Complaint that
support this assertion. Despite the lackluster briefing, the Court must liberally construe a pro se
complaint, such as this one, to determine whether the essence of an allegation is discernible from
the pleadings and attached documents. See Topchian v. JPMorgan Chase Bank, N.A., —F.3d—,
No. 13-2128, 2014 WL 3703995, at *9 (8th Cir. July 28, 2014) (holding that the plaintiff stated a
claim of breach of contract because the essence of the claim was apparent from the complaint
and attached document despite the fact that the plaintiff never raised such an argument at the

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district court level). Upon further review of the Complaint, the Court finds that the Complaint
and attached documents support an inference that Officer Egan lacked probable cause in making
the arrest.
In the Dismissal Order, the Court found that Officer Egan had probable cause to arrest
Plaintiff for violating 17-26(D). Again, for criminal liability to attach under this section, a police
officer must be “executing or attempting to execute and carry into effect any provision of the
Code….” Lee’s Summit, Mo., Municipal Code § 17-26(D) (1988). The Court ultimately found
that the Complaint implied that Officer Egan was attempting to carry into effect Section 1726(A)(2) when he commanded Plaintiff not to enter his residence, which Plaintiff ignored. The
Court based this conclusion upon the following sentences from the Complaint: “Plaintiff’s
presence in his residence would have impeded the residence search and imposed a perceived
safety threat to the police with respects to that residence search…The purpose of the warrantless
search was to exclude the possibility that plaintiff’s nephew, James C. Jenkins had returned back
to the residence.” (Doc. 4 at 13).
To be fair, one reasonable inference from these sentences is that Plaintiff’s presence
would have interfered with the search for Jenkins.

This inference, however, does not

definitively show that Officer Egan’s command was made while carrying out Section 1726(A)(2), because there is no indication that presence would have interfered with the detention of
Jenkins. Moreover, there are other allegations that Officer Egan was not carrying into effect any
ordinance provision, and that he told him not enter the residence because it would have posed a
safety threat to the police. This latter allegation is even bolstered by Officer Egan’s report
attached to the Complaint in which he states, “We did not know if Jenkins was able to make it
back to the house so I did not want Paul going back into the house for safety reasons. Paul

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ignored my commands and I grabbed onto him as he headed towards the front door.” (Doc. 4 at
36). Both this excerpt and the Complaint allegations to the same effect suggest a secondary
reason for Officer Egan’s command. And neither party addresses whether protecting a citizen
from potential harm would constitute “executing or attempting to execute and carry into effect
any provision of this Code,” within the meaning of Section 17-26(D). Giving Plaintiff the
benefit of all reasonable inferences from the Complaint, Smithrud v. City of St. Paul, 746 F.3d
391, 395 (8th Cir. 2014), the Court cannot say this necessary element was satisfied. The Court
thus cannot conclude, based solely on the allegations, that Officer Egan had probable cause to
make an arrest under Section 17-26(D).
Liberally construing the Complaint and attached documents, the Court concludes that
they arguably allege lack of probable cause. Thus, the dismissal with prejudice was a significant
error.1 See Halloran, 2013 WL 544011, at *2. Accordingly, the Court converts the dismissal to
one without prejudice, which means that Plaintiff may amend his Count I allegations to fix the
other deficiencies discussed in the Dismissal Order. However, in any new amended complaint,
Plaintiff shall separate his various Section 1983 claims into distinct counts.
III. The Court converts dismissal of Count II to without prejudice.
In its prior order, the Court dismissed Count II with prejudice because lack of probable
cause was an element of malicious prosecution. The Court now converts that dismissal to one
without prejudice due to the above findings. Plaintiff may refile an amended complaint that
addresses the other Count II deficiency noted in the Dismissal Order.

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The Court does not reach today’s decision lightly. Indeed, the Court is mindful that this type of relief is quite rare.
Nevertheless, the unique circumstances of this case, including Plaintiff’s pro se status and inartful pleading,
contributed to its decision to revise its prior judgment.

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IV. The Court denies the City’s motions as moot.
The City filed a motion to dismiss Plaintiff’s second amended complaint which raises a
sole claim for municipal liability under 42 U.S.C. § 1983 (Doc. 20). In response, Plaintiff filed a
third amended complaint to fix deficiencies that he perceived to exist after reviewing the City’s
motion. The City then moved to strike this complaint for failure to seek leave of court prior to
filing (Doc. 27).
In his second and third amended complaints, Plaintiff reformulated his municipal liability
theory to accommodate for the Court’s prior finding that Officer Egan possessed probable cause
to make the arrest. Since the Court reverses that finding, the claims in the second and third
amended complaints—and the City’s protestations against those claims—are now moot.
Accordingly, the City’s motions (Docs. 20, 27) are DENIED AS MOOT and Plaintiff may
include an amended claim for municipal liability along with his other claims.
Conclusion
For the foregoing reasons, the Court GRANTS Plaintiff’s motion (Doc. 16) and it
DENIES the City’s motions (Docs. 20, 27). Plaintiff shall file an amended complaint that
complies with this Order within thirty (30) days.
IT IS SO ORDERED.
Date: September 23, 2014

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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