535 F.Supp.3d 1087
D. Kan.2021Background
- On Aug. 10, 2018, Triple T Towing (Ryburn), at the direction of First State Bank of Healy (FSB), repossessed a Ford F-350 from property rented by Kyle McLinn/Outlaw Towing without prior notice or a court order. Deputy Jacob Cox arrived with the repossessor.
- McLinn confronted the repossession, told Ryburn to leave, and attempted to retrieve personal items; Cox allegedly interposed between McLinn and the truck, touched his gun, told McLinn not to resist, and remained until the tow was complete. McLinn alleges this forced, nonjudicial repossession involved a breach of the peace.
- Sheriff Joel Nickols allegedly laughed when McLinn complained and later told the county attorney Cox had a court order authorizing the repossession; McLinn alleges repeated unsuccessful attempts to lodge formal complaints.
- Plaintiffs sued under 42 U.S.C. § 1983 (First, Fourth, Fourteenth Amendments) and asserted state-law claims (trespass, conversion, UCC improper repossession, breach of contract, IIED). Defendants moved to dismiss.
- The court declined to consider body-cam video for the Rule 12(b)(6) motions, denied plaintiffs’ request to file a surreply and for oral argument, and resolved multiple motions: it allowed § 1983 claims to proceed against Deputy Cox and against Ryburn/Triple T (based on alleged joint action), denied qualified immunity for Cox, dismissed certain claims against Nickols, and dismissed all state-law claims against the county defendants for failure to comply with K.S.A. 12-105b(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Deputy Cox’s conduct transformed a private repossession into state action (§ 1983) by aiding repossessor / breach of the peace | Cox affirmatively intervened (arrived with repossessor, told McLinn to allow repossession, physically interposed, stayed until completion), so state action and due-process/ Fourth Amendment seizure claim stated | Cox was only keeping the peace; repossession was private and lawful under UCC absent a breach of the peace | Court: Allegations plausibly show Cox aided an unlawful repossession and alleged breach of the peace; § 1983 claim against Cox survives |
| Qualified immunity for Deputy Cox | Marcus and related precedent put officers on notice that assisting a repossessor crosses the line; no immunity | Breach-of-peace contours are vague so immunity should apply | Court: Denied qualified immunity to Cox—law was clearly established that officers may not aid an unlawful repossession |
| § 1983 liability of Ryburn/Triple T (private actor acting under color of law) | Ryburn coordinated with Cox, requested law enforcement presence, and received significant aid—willful joint action under § 1983 | Private towing company cannot be a state actor; McLinn allegedly lacked title/standing | Court: Allegations of joint action/significant aid are sufficient to plead state action; § 1983 claim vs. Ryburn/Triple T survives; McLinn has standing at pleading stage |
| First Amendment retaliation claim vs. Sheriff Nickols (individual capacity) | Nickols threatened arrest/harassment prosecutions to deter McLinn’s complaints—retaliation for petitioning government | Threats were not realistic; even if threatened, conduct was not clearly established as unconstitutional here; qualified immunity | Court: Claim plausibly alleged but Nickols entitled to qualified immunity in his individual capacity—First Amendment claim dismissed as to him individually; some official-capacity/policymaker Monell theory survives |
| State-law claims against county defendants and notice-of-claim compliance | Plaintiffs contend they substantially complied by calling the Sheriff’s Office and repeatedly complaining | Defendants: Plaintiffs failed to file the written notice with the county clerk/board as required by K.S.A. 12-105b(d), which is jurisdictional | Court: Dismissed state-law claims against Thomas County defendants without prejudice for failure to comply with K.S.A. 12-105b(d) (no substantial compliance shown) |
Key Cases Cited
- Marcus v. McCollum, 394 F.3d 813 (10th Cir. 2004) (officers are not state actors when keeping the peace but cross the line if they affirmatively aid a repossessor)
- Soldal v. Cook Cty. Ill., 506 U.S. 56 (1992) (assistance by officers in property seizures can constitute a Fourth Amendment seizure)
- Fuentes v. Shevin, 407 U.S. 67 (1972) (procedural due process requires notice and opportunity to be heard before state seizure of property in many contexts)
- Mapp v. Ohio, 367 U.S. 643 (1961) (incorporation of certain federal protections against state actors)
- Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978) (municipal liability requires an official policy, custom, final policymaker decision, or deliberate indifference)
- Myers v. Bd. of Cty. Comm’rs of Jackson Cty., 280 Kan. 869 (2006) (K.S.A. 12-105b(d) mandatory; serving notice on county officials other than clerk/board does not satisfy the statute)
- Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) (officer denial of a complainant’s rights and threats to arrest can defeat qualified immunity under Marcus)
- Dist. of Columbia v. Wesby, 138 S. Ct. 577 (2018) (qualified-immunity analysis requires that the unlawfulness be clearly established in the particularized sense)