J. v. Kansas City Board of Police Commissioners et al

Filing 92

ORDER denying 35 Defendants' Motion to Dismiss for Failure to State a Claim. Signed on 8/2/2016 by District Judge Fernando J. Gaitan, Jr. (Rosa, Patricia)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
Z.J. a minor, by and through
her next friend Je’tuan Jones,

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Plaintiff,
v.
KANSAS CITY, MISSOURI
BOARD OF POLICE
COMMISSIONERS, et. al.
Defendants.

ORDER
Currently pending before the court is Defendants’ Motion to Dismiss (Doc. No.
35).
I.

Background

Plaintiff Z. J. a minor child, by and through her next friend Je’taun Jones, brought
suit against Kansas City, Missouri Board of Police Commissioners members Alvin
Brooks, Michael Rader, Angela Wasson-Hunt, Sylvester James, Leland Shurin and
officers Jason Rusley, Michael Jones, Barbara Eckert, Caleb Lenz, William Nauyok,
Eric Enderlin, Charles Evans, Robert Jorgeonsen, Venasa Ray, and Robert McLaughlin
asserting a claim for excessive force in violation of the Fourth and Fourteenth
Amendments and a claim for deliberately indifferent policies, practices, customs,
training, and supervision in violation of the Fourth and Fourteenth Amendments.
On November 3, 2010, Detective Mike Jones applied for a search warrant for 11812
Bristol Avenue, Kansas City, Missouri for Lee Charles. It was thought that Lee Charles
lived at that address but he had not resided at that address for four months. On

November 3, 2010, at 3:00 p.m. the search warrant was issued. At 3:35 p.m. on that
same day, Lee Charles was arrested by the Kansas City Police Department by officer
Lantz. Defendant Eckert was contacted to sign the Investigation Arrest Approval Form
for Lee Charles.
At about 7:00 p.m., the search warrant was executed by the KCMO SWAT team
including Defendant Eckert. This was almost three and a half hours after Lee Charles
was arrested. At the time the SWAT team executed the search warrant, Je’taun and
Lemondray Jones (owners of the home) were at work. Plaintiff Z. J. was home and in
the care of her adult cousin, Carla Brown (hereinafter “Brown”). Two other adults were
in the home as well, Z.J’s grandmother, Laverne Charles (hereinafter “Charles”) who
was upstairs in a hospital bed, and Leona Smith (hereinafter Smith), who was caring for
Charles upstairs.
When the SWAT team arrived at the home, they made contact with Brown who had
looked out the window to see officers already attempting to open the outer door. The
house had two doors, an outer door and inner door. Brown shook the keys at officers to
signify that they did not need to break the door. At this time, the grandmother and her
caregiver were upstairs. Z.J. who was two at the time was playing alone in the
basement. Instead of waiting for Brown to open the door, the officers entered with
weapons drawn, and immediately threw a “flash bang grenade” into the living room area
of the residence igniting the drapes on fire. Officers placed Brown and Smith in
handcuffs, but their attempt to put hand cuffs on Charles failed because of her physical
limitations. Officers were told that Lee Charles did not live at the home and had not

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done so for four months, so they left. The Jones’ residence suffered damage and Z. J.
allegedly suffered physical and emotional damages as a result of the search.
II.

Standard

When deciding how the court should rule on a motion to dismiss, the court must
accept the factual allegations being made by the plaintiff as true and construe them in
the light most favorable to the plaintiff. Patterson Oil Co. v. VeriFone, Inc., No. 2:15-CV4089, 2015 WL 6149594, *3 (W.D. Mo. Oct. 19, 2015) (citing Schaaf v. Residential
Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008)).
Fed. R. Civ. P. 12(b)(6) provides that a claim can be dismissed upon the grounds of
“failure to state a claim upon which relief can be granted.” To avoid dismissal under
Rule 12(b)(6) a complaint must be pleaded properly. Fed. R. Civ. P. 8(a)(2) sates that a
pleading must contain a “short and plain statement of the claim showing that the pleader
is entitled to relief.” “The pleading standard Rule 8 announces does not require
"detailed factual allegations," but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 677-678, 129 S.Ct.
1937, 1949 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct.1955, 167 L.Ed.2d 929 (2007)). In order for a claim to 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. "” Ashcroft v. Iqbal, 556 U.S. 662,
677-678 (2009). A motion to dismiss under 12(b)(6) is generally disfavored by the
courts. In re Eugene L. Pieper, P.C., 202 B.R. 294, 297 (Bankr. D. Neb. 1996). The
court can treat a 12(b)(6) motion as a 12(c) motion for the judgment on the pleadings
“[a]fter the pleadings are closed—but early enough not to delay trial—a party may move
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for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “The distinction is purely formal,
because a Rule 12(c) motion for judgment on the pleadings is reviewed under the same
standard as a 12(b)(6) motion to dismiss.” Ixtepan v. Beelman Truck Co., No. 14-00142,
2015 WL 1061560, *3 (E.D. Mo. Mar. 11, 2015) (citing Clemons v. Crawford, 585 F.3d
1119, 1124 (8th Cir. 2009); see also NanoMech, Inc. v. Suresh, No. 13-3671, 777 F.3d
1020, 1023 (8th Cir. Feb. 6, 2015)).
III.

Discussion

Defendants filed a motion to dismiss plaintiff’s lawsuit alleging that the complaint
failed to state a claim against the officers because alleging only that the police officers
used a “flash bang” device does not show that plaintiff’s right to be free from excessive
force was violated. The officers were executing a search warrant for evidence of a
stabbing and strangulation. Defendants also allege that the claim against the Board fails
to state a claim because it only alleges that the Board allows officers to use “flash bang”
devices in non-emergency situations and does not state a “policy or custom” because
there are no facts pled that it happened more than once.
Plaintiff Z.J. argues that defendants’ motion is untimely under Fed. R. Civ. P.
12(b)(6) because a motion to dismiss cannot be filed after the answer has been
submitted. She alleges that defendants submitted an answer to the Plaintiff’s First
Amended Complaint on February 23, 2016. (Doc. No. 25). Plaintiff alleges that on
March 9, 2016, defendants submitted their motion to dismiss. (Doc. No. 35). Plaintiff
alleges that since the answer to the complaint was submitted, the present motion is
inappropriate. Plaintiff also alleges that defendants’ motion states facts outside of the
pleading that should not be considered or the motion should be converted to one for
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summary judgment. Plaintiff argues that the First Amended Complaint states a claim
sufficient to comply with Iqbal and Twombly.
The court will rule on this motion to dismiss construing the facts in the light most
favorable to the plaintiff. The court must first determine if the timing of the Rule 12(b)(6)
motion to dismiss is proper.
A motion asserting a Fed. R. Civ. P. 12(b)(6) defense “must be made before
pleading if a responsive pleading is allowed.” Fed. R. Civ. P. 12(b). “[A] Rule 12(b)(6)
motion cannot be filed after an answer has been submitted.” Westcott v. Omaha, 901
F.2d 1486, 1488 (8th Cir. 1990). “Rule 12(h)(2) provides that "[a] defense of failure to
state a claim upon which relief can be granted" may be advanced in a motion for
judgment on the pleadings under Rule 12(c)….” Id. at 1488. (quoting St. Paul Ramsey
County Med. Ctr. v. Pennington County, 857 F.2d 1185, 1187 (8th Cir. 1988)). “[A]n
amended complaint supersedes an original complaint….” Bernard v. United States DOI,
674 F.3d 904, 909 (8th Cir. 2012) (citing In re Wireless Tel. Fed. Cost Recovery Fees
Litig., 396 F.3d 922, 928 (8th Cir. 2005)).
In this case, Defendants claim that they did not file an answer to the amended
complaint after Plaintiff filed her First Amended Complaint. However, Defendants fail to
disclose that the response they provided was titled “Answer and Affirmative Defenses of
Defendants to Plaintiff’s First Amended Complaint” on February 23, 2016. (Doc. No.
25). While the plaintiff did not submit their “First Amended Complaint” to the court until
February 24, 2016 (Doc. No. 27), a motion to amend the complaint was submitted to the
court on January 29, 2016. (Doc. No. 21). The motion to amend had a copy of the full
amended complaint attached to it. On February 23, 2016 the court granted plaintiff’s
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motion for leave to file the “First Amended Complaint.” (Doc. No. 26). The response the
Defendants submitted was to the amended complaint although the Defendants
submitted their response one day before plaintiff officially filed that same complaint with
the court. Therefore, the response that was submitted by defendants’ was to plaintiff’s
First Amended Complaint and will be viewed as such by the court.
Since an answer to the amended complaint was submitted, the court will look at
whether the court should convert Defendants’ 12(b)(6) motion into a Rule 12(c) motion
for judgment on the pleadings. The court finds that conversion of defendants’ motion
into a 12(c) motion is proper although the pleading stage has passed, as it is still early
enough in the judicial process that the court’s action would not delay a trial.
Next, the court addresses whether it may consider matters outside the pleadings
when ruling on this motion. “Although Rule 12(b) generally prohibits consideration of
matters outside of the pleadings on a motion to dismiss, the court may consider certain
matters outside of the pleadings without converting the motion into a motion for
summary judgment.” Int'l Motor Contest Ass'n v. Staley, 434 F. Supp. 2d 650, 657-658
(N.D. Iowa 2006). “For example, the court may consider documents outside of the
pleadings where ‘the plaintiffs' claims are based solely on the interpretation of the
documents [submitted] and the parties do not dispute the actual contents of the
documents.’” Id. at 657-658 (citing Jenisio v. Ozark Airlines, Inc., Retirement Plan, 187
F.3d 970, 972 n.3 (8th Cir. 1999) (citing Silver v. H & R Block, Inc., 105 F.3d 394, 397
(8th Cir. 1997))). A motion is not automatically converted to a summary judgment
motion “simply because one party submits additional matters in support of or opposition
to the motion,” because “some materials that are part of the public record or do not
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contradict the complaint may be considered by a court in deciding a Rule 12(b)(6)
motion to dismiss.” Int'l Motor Contest Ass'n, 434 F. Supp. 2d at 658 (quoting Missouri
ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1107 (8th Cir. 1999)). “[E]ven
where matters outside of the pleadings are presented to the court, a motion to dismiss
is not converted into a motion for summary judgment where the district court's order
makes clear that the judge ruled only on the motion to dismiss.” O'Neill v. Jesco Imps.,
Inc., No. 06-3017, 2006 WL 2623220 (W.D. Mo. Sept. 12, 2006) (quoting Inter. Motor
Contest Ass'n. Inc., 434 F.Supp.2d 650).
Since the court has chosen to convert defendants’ 12(b)(6) motion into a 12(c)
motion and analyze it as such, the court will still view the facts in the light most
favorable to the plaintiff. Plaintiff argues that factual challenges are not permitted in a
motion to dismiss for failure to state a claim and the trial court may only consider the
complaint and exhibits attached to the complaint. That argument is not accurate
because materials that are part of the public record or do not contradict the complaint
can be considered in ruling on this motion. The search warrant can be considered by
the court because it is a public record and does not contradict the complaint.
Paragraphs ¶¶ 19, 21-22 of the Complaint do not contradict the warrant. The Complaint
even states the “warrant allowed search and seizure of property, specifically cell phones
and cell phone chargers as described by the victim’s family, clothing, shoes, or knives
with trace evidence, items that could be used for strangulation with trace evidence, and
a set of keys as described by victim’s family.” Paragraph ¶ 22 (Doc. No. 27). All of this
information is in agreement with the actual search warrant application attached by the

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defendants’ in the property to be seized section of the search warrant application.
Therefore, the court can and will consider the search warrant.
Plaintiff alleges that the defendants’ motion contains a statement of facts that
contradicts the statement of facts contained in the plaintiff’s First Amended Complaint
however, that statement is not supported. Even though the Court may consider
information outside of the pleading, the district court can make it clear that it is only
ruling on the motion to dismiss. The court declines to convert defendants’ Motion to
Dismiss into a Motion for Summary Judgment and is simply analyzing the case as a
Fed.R.Civ.P. 12(c) motion for judgment on the pleadings.
Next, the court must consider whether to grant the motion for judgment on the
pleadings based on whether the facts alleged in the complaint and the search warrant
are enough to satisfy the Iqbal and Twombly pleading standard. In order for the
Excessive Force claim to be successful plaintiff must plead a successful 42 U.S.C. §
1983 claim. 42 U.S.C. § 1983 provides that:
Every person, who under color of any statute, ordinance, regulation,
custom or usage of any state or territory or the District of Columbia
subjects or causes to be subjected any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights,
privileges or immunities secured by the constitution and law shall be liable
to the party injured in an action at law, suit in equity, or other appropriate
proceeding for redress. . .
All claims of excessive force filed under 42 U.S.C. § 1983 claiming that officers
used excessive force are analyzed under the “objective reasonableness” test. Graham
v. Connor, 490 U.S. 386, 388, 109 S. Ct. 1865, 1867, 104 L. Ed. 2d 443, 450 (1989). In
order for force to be considered excessive, reasonableness depends on:

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[A] careful balancing of the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the countervailing
governmental interests at stake. … Because the test of reasonableness
under the Fourth Amendment is not capable of precise definition …its
proper application requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime
at issue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight (emphasis added).
Graham, 490 U.S. at 388. How best to conduct a search is generally left to officers;
while the use of flash grenades may not be “unreasonably destructive” “even valid
warrants must be executed in reasonable manner.” Cook v. Gibbons, 308 Fed. Appx.
24, 30 (8th Cir. 2009) (citing Hummel-Jones v. Strope, 25 F.3d 647, 650, 653 (8th Cir.
1994)). “The use of a "flash-bang" device in a house where innocent and unsuspecting
children sleep gives the appellate court great pause. …an appellate court could not
countenance the use of such a device as a routine matter…. it must review the agents'
actions from the perspective of reasonable agents on the scene who are legitimately
concerned with not only doing their job but with their own safety.” United States v.
Myers, 106 F.3d 936, 938 (10th Cir.), cert. denied, 520 U.S. 1270 (1997). In Cook, it
was considered reasonable for the officers to use flash grenades which broke two
windows and knocked down a door because the defendant was believed to be armed
and dangerous. Cook, 308 Fed. Appx. at 30.
Defendants’ argue that officers had a right to use the “flash bang” device
because the officers had probable cause to believe that someone on the premises had
knives or items that were used in the strangulation of the victim. (Doc. No. 27). First
Amended Complaint, Paragraph ¶ 22. Defendants’ argue that under those
circumstances, the use of the device was necessary to minimize the chance that the
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weapons would be used against the officers. Plaintiff argues that in each case cited by
the defendants, the suspect was in the residence being searched or was believed to be
present based on the information available to the officers at the time the raid was
conducted. Plaintiff argues that the Cook case is distinguishable from this case because
that case involved a high risk entry. Officers reasonably believed they were in danger.
Plaintiff argues that the search was excessive because officers made no distinction
between the criminal and innocent bystanders.
The court is persuaded by the plaintiff’s argument. In this case, officers were
carrying out a search warrant for a suspect that had been arrested almost four hours
earlier by the same Kansas City Police Department that carried out the raid. In fact,
officer Eckert (one of the named defendants) was contacted to sign the Investigation
Arrest Approval Form for the defendant and participated in the raid later on that same
day. At about 3:30 p.m. officer Eckert signed the arrest approval for suspect Lee
Charles. At about 7:00 p.m. officer Eckert participated in the raid of the residence that
was believed to be that of Lee Charles. While probable cause was present for the
search warrant and search, the officers should have known that Lee Charles was
already in custody. Searches have to be carried out in a reasonable manner. In this
case, the use of the “flash bang” device may be seen as unreasonable by a reasonable
officer who knew that the suspect was already in custody and could therefore be
considered excessive. Furthermore, after the officers were told that Lee Charles had not
lived at the residence for four months, they simply left.
The fact that Lee Charles was already in custody gives the court cause for
concern. There was a minor child, a babysitter, a sick elderly woman, and a caregiver in
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the home. The babysitter and caregiver were handcuffed. The only reason the elderly
woman was not handcuffed was because of physical limitations. The officers should not
have had cause for concern that the suspect was present because he was already in
their custody. While the court does not dispute the seriousness of the crime that was
committed, the force used may not have been reasonable based on the factual
circumstances. The officers were looking for cell phones, phone chargers, shoes,
clothing, knives with trace evidence, cords, wire or rope with trace evidence, and a
particular set of keys. The officers’ safety was not in any immediate danger because the
suspect was in jail.
Next, defendants’ argue that that plaintiff’s second claim (deliberately indifferent
policies, practices, customs, training, and supervision in violation of the Fourth and
Fourteenth Amendments) against the Board of Police Commissioners does not state a
policy or custom because there are no facts plead that it happened more than once.
Plaintiff and defendants address the Monell claim. There is a difference between a
Monell claim based on custom versus one based on policies. “[L]ocal governments, by
the very terms of the statute, may be sued for constitutional deprivations visited
pursuant to governmental custom even though such a custom has not received formal
approval through the body's official decision-making channels.” Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 660 (U.S. 1978). “[S]uch practices of state officials could well be
so permanent and well settled as to constitute a 'custom or usage' with the force of law."
Id. at 691. “Local governing bodies can be sued directly under § 1983 for monetary,
declaratory, or injunctive relief where the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision officially
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adopted and promulgated by that body's officers.” Id. at 660. Liability for an
unconstitutional custom or policy cannot arise from a single instance. McGautha v.
Jackson County, 36 F.3d 53, 57 (8th Cir. 1994), cert. denied, 515 U.S.1133 (1995)
(citing Wedemeier v. City of Ballwin, 931 F.2d 24, 26 (8th Cir. 1991)). Defendants’ cite a
plethora of cases to support that isolated incidents are not enough to prove that there
was an official policy or custom, however, the defendants do contend that “there is no
clear consensus as to how frequently such conduct must occur to impose Monell
liability, ‘except that it must be more than one instance.’” Thomas v. Cook Cty. Sheriff’s
Dep’t, 604 F.3d 293, 303 (7th Cir.), cert.denied, 562 U.S. 1061 (2010) (citing Cosby v.
Ward, 843 F.2d 967, 983 (7th Cir. 1988)). In Renno v. Bronner, No. 10-0587, 2010 WL
4386531 (W.D. Mo. Oct. 29, 2010), the Court found that alleging that a custom or policy
was a moving force behind plaintiff’s allegations was sufficient to withstand defendants’
motion to dismiss with respect to plaintiff’s §1983 claim. Id. at *1.
The Supreme Court invalidated heightened pleading requirements in
section 1983 suits against municipalities in Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S. Ct.
1160, 122 L. Ed. 2d 517 (1993). "When a complaint is filed, a plaintiff may
not be privy to the facts necessary to accurately describe or identify any
policies or customs which may have caused the deprivation of a
constitutional right. Moreover, such a holding would disregard the liberality
of Fed. R. Civ. P. 8(a)(2) which requires merely 'a short and plain
statement of the claim showing that the pleader is entitled to relief,' and
8(f), which states 'pleadings shall be so construed as to do substantial
justice.' . . . At a minimum, a complaint must allege facts which would
support the existence of an unconstitutional policy or custom." Doe ex rel.
Doe v. School Dist. of City of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003).

Parsons v. McCann, 138 F.Supp. 3d 1086, 1099 (D. Neb. 2015).

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Plaintiff’s First Amended Complaint pleads that official policies of the Board such
as letting officers use “flash bangs” in non-emergency situations or within their
discretion is a violation of the 42 U.S.C. § 1983 because it led to a use of excessive
force. Plaintiff argues that the policies by the Board are lacking when it comes to
protecting innocent people such as children and elderly in situations where search
warrants are carried out at residential homes to collect property. Plaintiff argues that
while more than one instance is needed to prove a custom or policy, the standard of
proof is applicable at trial, not at the pleading stage. The plaintiff is correct. At the
pleading stage, the plaintiff may not have all the necessary information to plead multiple
instances of violations or the exact policy in place. The plaintiff provided facts which
could support a §1983 claim. The court is persuaded that the plaintiff has met her
burden at the pleading stage giving defendants notice of a Monell claim. To meet the
Iqbal and Twombly standard, the plaintiff can merely allege that there was a custom or
policy violated and plead enough to prove that the custom or policy was the driving
force behind that violation. The plaintiff can plead facts that could support the violation
which is enough to survive a motion to dismiss. While plaintiff stated nothing more than
a single instance the plaintiff met the minimum burden of alleging facts which could
support the existence of an unconstitutional policy or custom.
IV.

Conclusion

Accordingly, for the reasons stated above, the Defendants’ Motion to Dismiss (Doc.
No. 35) is hereby DENIED.

Date: August 2, 2016
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge
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