413 F.Supp.3d 1087
D. Kan.2019 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK ARNOLD, )
)
Plaintiff, )
)
v. )
) Case No. 18-2703-CM-JPO
CITY OF OLATHE, KANSAS, et al., )
)
Defendant. )
)
MEMORANDUM AND ORDER
This case arises out of the tragic shooting death of Ciara Howard. Ms. Howard, who suffered
from mental health and addiction problems, had walked away from a residential center. Because she
was required to report to the center as a condition of her probation, an arrest warrant was issued.
When Olathe police officers and Johnson County deputies arrived at Ms. Howard’s boyfriend’s home
to serve the warrant, Ms. Howard refused to leave the house. Eventually, the officers entered the
house and shot and killed Ms. Howard. The Special Administrator of Ms. Howard’s Estate, Mark
Arnold, filed this action, bringing 42 U.S.C. § 1983 excessive force claims and state law tort claims for
assault/battery and survival/wrongful death against the officers, deputies, and their employers. Both
groups of defendants—those associated with the Olathe police department (the “Olathe defendants”)
and those associated with the Johnson County Sheriff’s Office (the “Johnson County defendants”)— filed motions to dismiss. (Docs. 37 & 47.) Plaintiff initially sought discovery before responding to the
motions, but the court denied that request and ordered plaintiff to respond. The motions are now ripe
and the court is ready to rule.
I. Factual Background
The following facts are taken from plaintiff’s complaint. Defendants have also submitted some
evidence that they claim is referenced in and central to the complaint. See Alcarado v. KOB-TV,
L.L.C., 493 F.3d 1210 , 1215 (10th Cir. 2007) (noting that a court may consider documents referred to
in the complaint if they are central to plaintiff’s claims and undisputed). Some of that evidence may be
considered (i.e., the Notice of Claim). Some of it may not (i.e., the affidavits that contradict the
allegations in the complaint). In any event, the court has discretion whether to consider such evidence.
Lowe v. Town of Fairland, Okla., 143 F.3d 1378 , 1381 (10th Cir. 1998). As necessary throughout this
opinion, the court will identify pieces of evidence that it has or has not considered, in accord with
governing standards.
With these standards in mind, the court now turns to the facts of the case—viewed in the light
most favorable to plaintiff. The most succinct way to explain the facts is through the following chart
of actors/defendants and timeline:
Name Employer Alleged Involvement
Sergeant Tim Sweany Olathe Police Led entry into the house with a riot shield. Broke down
Department the laundry room door. Was part of the group who
opened fire on Ms. Howard.
Sergeant Chad Olathe Police Entered the house and was part of the group who
Mellick Department opened fire on Ms. Howard.
Officer Jameson Olathe Police Entered the house with the group who opened fire on
Miller Department, Ms. Howard.
although
plaintiff
erroneously
identified him as
a deputy for
Johnson County
Deputy Nate Denton Johnson County Entered the house and was part of the group who
Sheriff’s Office opened fire on Ms. Howard.
Deputy Thomas Johnson County Entered the house with the group who opened fire on
Chaulk Sheriff’s Office Ms. Howard.
Officer Ian Mills Olathe Police Canine Officer. Entered the house with police dog.
Department
Deputy Tamara Johnson County Was present outside before officers entered the house.
Sparks Sheriff’s Office Discussed with others that if they left the scene, “word
would get out” and “they’re going to freakin’ barricade
up with a weapon, and we’re just going to keep walking
away.” Outside house when shots fired, but did not try
to prevent others from entering the house.
Sergeant Brian Olathe Police Was present outside before officers entered the house.
Wessling Department Convinced Ms. Howard’s boyfriend to act as negotiator.
Outside house when shots fired, but did not try to stop
others from entering the house.
Deputy Chief Michael Olathe Police “[P]ermitted and condoned the unlawful entry and . . .
Butaud Department participated in the siege by entering the house and
assisting the officers and deputies.”
Major Wade Lanphear Olathe Police “[P]ermitted and condoned the unlawful entry and . . .
Department participated in the siege by entering the house and
assisting the officers and deputies.”
Chief Steve Menke (in Olathe Police Supervisor. Not present at house.
both individual and Department
official capacities)
Sheriff Calvin Hayden Johnson County Supervisor. Not present at house.
(in both individual Sheriff’s Office
and official capacities)
Despite the varying levels of involvement identified above, plaintiff’s theory is that the
collective actions of all the officers, deputies, and supervisors led to Ms. Howard’s death. Plaintiff
alleges that the defendants knew that Ms. Howard was mentally ill and in crisis. According to
plaintiff, even those defendants who were not physically in the house during the shooting are
responsible because they collectively raised the level of confrontation from a non-lethal one to a lethal
one. They used Ms. Howard’s boyfriend as a negotiator when they should have used a trained
negotiator or mental health expert. And they did not attempt to stop Sergeant Sweany’s unsafe entry of
the house. Plaintiff claims that the following series of events led to “officer-created jeopardy,” when
there were other options that would not have resulted in Ms. Howard’s death.
Afternoon of August 23, 2017: Ms. Howard had walked away from her residential center and
was alone in her boyfriend, Larry Sumner’s, house at 112 S. Keeler St., Olathe, Johnson
County, Kansas.
3:00 p.m.: Johnson County Sheriff deputies and Olathe police officers arrived at Mr. Sumner’s
house to serve an arrest warrant for Ms. Howard. Mr. Sumner advised officers that Ms.
Howard had access to a .45-caliber handgun. Sergeant Sweany spoke to Ms. Howard from
outside the house, telling her that the house was surrounded, she could not get out, and that they
were going to be getting a warrant for the house to come in and drag her out. Sergeant Sweany
threatened that “there will most likely be a dog sent in which will result in you getting dog bit
and potentially other people getting hurt as well.” A county deputy and Sergeant Sweany
discussed whether to enter the house and the fact that Sheriff Hayden was “not on board” with
entering the house.
3:45 p.m.: Both agencies called for their respective special tactical units that specialize in
engaging with barricaded armed subjects, but the special tactical teams declined to come. The
tactical team commanders reasoned that it was not worth the life-and-death risk to go inside the
house with lethal force. Deputies discussed that if they left the scene, “word would get out”
and “they’re going to freakin’ barricade up with a weapon, and we’re just going to keep
walking away.”
4:15 p.m.: Sergeant Sweany and Sergeant Wessling convinced Mr. Sumner to negotiate with
Ms. Howard, although that action violated established protocol and policies. Negotiation was
unsuccessful. Ms. Howard became convinced that Mr. Sumner was conspiring with police.
Sergeant Sweany warned Ms. Howard that the longer it went on, the longer she would be in
jail. Ms. Howard, who was spotted hiding underneath a bed, rambled wildly: “I want to f—-in’
die. . . . I don’t want to live.” Defendants knew that advancing into the house would likely
result in “civil liability” for “suicide and/or homicide.”
After 4:15 p.m.: The officers and deputies became impatient. Some were overheard saying
“Jimmy John’s delivers”; “I’ve got a grill”; “Maybe some lawn chairs?” Meanwhile, Ms.
Howard shouted from inside the house “I’m not afraid to die” and “I’m ready!”
5:30 p.m.: Sergeant Sweany announced to Ms. Howard that her time was up and prepared a
squad of officers and deputies. The squad, which included Sweany, Mellick, Mills (and his
police dog), Denton, Miller, and Chaulk, used a battering ram to break through the front door of
the house. They swept the house for other occupancy and confirmed that Ms. Howard was
alone in a small laundry room in the back of the house. Supervising officers on the scene,
including Deputy Chief Butaud and Major Lanphear, permitted and condoned the entry, and
also entered the house and assisted the officers and deputies.
After Entry of House: The laundry room door was locked. Ms. Howard yelled that she was
only in her nightgown and that she would kill herself if they came into the laundry room.
Sergeant Sweany threatened to release the attack dog and had Officer Mills, the canine officer,
prod the dog to bark in a menacing manner. Ms. Howard opened the door slightly, talked to
and then barked back at the dog and said that the dog “started” it. Ms. Howard stated, “You’re
not even real cops.” And then, without warning, Sergeant Sweany broke open the laundry
room door and entered behind his riot shield.
After Entry of Laundry Room: For thirteen seconds, Ms. Howard stood shouting and trembling
in the laundry room, aimlessly waiving a gun in her hand while Sergeant Sweany screamed at
her to drop her gun. Mellick and Denton took cover behind Sweany’s riot shield and the door
and pointed their firearms at Ms. Howard. Ms. Howard did not drop the gun, and the officers
and deputy opened fire. Their bullets struck and killed Ms. Howard.
II. Legal Standards
Both groups of defendants—the Olathe defendants and the Johnson County defendants—ask
for dismissal pursuant to Rule 12(b)(6). The court will grant a 12(b)(6) motion to dismiss only when
the factual allegations fail to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544 , 570 (2007). Although the factual allegations need not be detailed, the claims
must set forth entitlement to relief “through more than labels, conclusions and a formulaic recitation of
the elements of a cause of action.” In re Motor Fuel Temperature Sales Practices Litig., 534 F. Supp.
2d 1214, 1216 (D. Kan. 2008). The allegations must contain facts sufficient to state a claim that is
plausible, rather than merely conceivable. Id. “All well-pleaded facts, as distinguished from
conclusory allegations, must be taken as true.” Swanson v. Bixler, 750 F.2d 810 , 813 (10th Cir. 1984);
see also Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009). The court construes any reasonable inferences
from these facts in favor of the plaintiff. Tal v. Hogan, 453 F.3d 1244 , 1252 (10th Cir. 2006).
The Olathe defendants labeled their motion as one alternatively for dismissal or for judgment
on the pleadings. These defendants filed an answer before filing their motion. Technically, it is
impermissible under the Federal Rules to submit an answer and thereafter file a Rule 12(b)(6) motion
to dismiss. See Fed. R. Civ. P. 12(b) (stating that a motion to dismiss under the rule “shall be made
before pleading if further pleading is permitted”). But Rule 12(h)(2) permits the court to consider “[a]
defense of failure to state a claim upon which relief can be granted” within a Rule 12(c) motion for
judgment on the pleadings. See Swearingen v. Honeywell, Inc., 189 F. Supp. 2d 1189 , 1193 (D. Kan.
2002). The distinction between the two rules is purely one of procedural formality and the court
employs the same standard that it uses to analyze a Rule 12(b)(6) motion to dismiss to evaluate a Rule
12(c) motion for judgment on the pleadings. Id. (citing Ramirez v. Dep’t of Corr., 222 F.3d 1238 ,
1240 (10th Cir. 2000)).
III. Discussion
Because many of the issues overlap, the court takes up both motions to dismiss together.
Where particular arguments only apply to certain defendants, the court will address those defendants
individually.
A. Standing/Real Party in Interest
The first issue the court addresses is one that both groups of defendants raise to varying degrees
within their motions: plaintiff’s standing. The Olathe defendants claim that plaintiff lacks standing to
bring any claim because he is not the real party in interest. They argue that the order appointing
plaintiff as Special Administrator of the Estate did not authorize him to bring the claims in this case.
Similarly, the Johnson County defendants argue that plaintiff lacks standing to bring the wrongful
death claim because he is not an “heir at law.”
Although the term “standing” is used loosely in many contexts to denote the party with a right
to bring a particular cause of action, technically “‘standing pertains to suits brought by individuals or
groups challenging governmental action which has allegedly prejudiced their interests. On the other
hand, the real party in interest question is raised in those much rarer instances between private parties
where a plaintiff’s interest is not easily discernible.’” Fed. Deposit Ins. Corp. v. Bachman, 894 F.2d
1233, 1235 (10th Cir. 1990) (citation omitted). The issue before the court here is more one of whether
plaintiff is a real party in interest than one of standing. But regardless of whether plaintiff is the real
party in interest, dismissal or judgment on the pleadings is not the appropriate remedy. Fed. R. Civ. P.
17(a)(3) states:
The court may not dismiss an action for failure to prosecute in the name of the real party
in interest until, after an objection, a reasonable time has been allowed for the real party
in interest to ratify, join, or be substituted into the action. After ratification, joinder, or
substitution, the action proceeds as if it had been originally commenced by the real party
in interest.
For § 1983 claims of a deceased party, the proper party is the estate of the victim. Berry v.
Muskogee, 900 F.2d 1489 , 1506–07 (10th Cir. 1990). It is a survival action, and like a state law
survival action, cannot be brought by the decedent’s heirs. See Cory v. Troth, 223 P.2d 1008 , 1010
(Kan. 1950) (stating who can bring a Kansas survival action). In contrast, a Kansas wrongful death
action “may be commenced by any one of the heirs at law of the deceased who has sustained a loss by
reason of the death.” Kan. Stat. Ann. § 60-1902.
Here, plaintiff is the Special Administrator of the Estate of Ciara Howard, appointed by the
Probate Division of the Johnson County District Court. The order appointing plaintiff authorized him
to:
File a wrongful death action in the District Court of Johnson County, Kansas on behalf
of decedent’s estate, and serve as Special Administrator of decedent’s estate throughout
the course of the wrongful death action to Final Judgment or throughout the course of an
appeal therefrom.
The question, then, is whether the order effectively limited plaintiff’s right to bring this case in
federal court. The court concludes that it did not. Allowing the order to dictate who may bring this
action would result in no party being qualified. The order does not authorize a § 1983 or survival
action at all. And it incorrectly authorizes plaintiff to bring a wrongful death action on behalf of the
estate (when a wrongful death action belongs to the heirs). Alternatively, if the order does effectively
limit plaintiff’s authority, then it is something that would be remedied by substitution or joinder—not
dismissal.
Plaintiff properly brings § 1983 claims as the representative of the estate. And although he is
not an heir-at-law capable of bringing a wrongful death action, it appears that the heirs in this case
have yet to be determined. Until that time, plaintiff is acting on behalf of the heirs. After they have
been determined, they may be added as parties if appropriate.
Plaintiff may continue to pursue relief in this case. Ultimately, he may not be the proper party
for all claims, but dismissal is not appropriate at this time.
B. Rule 8 and Collective Liability
The Olathe defendants claim that plaintiff’s attempt at collective liability does not meet the
pleading standards of Fed. R. Civ. P. 8. They argue that plaintiff uses the general term “defendants” to
identify who took actions, but does not specify which defendants took which actions.
Rule 8(a) requires that a claim for relief must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” The purpose of this rule is to give the opposing party
“fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 .
Plaintiff’s complaint meets this standard. While at times plaintiff groups defendants together,
at other times, plaintiff identifies particular defendants who took specific actions. Where possible, the
court will evaluate the actions of the defendants when considering whether they personally participated
in the alleged deprivations of constitutional rights. The court will not automatically accept that
because plaintiff used the collective term “defendants,” all defendants may be held responsible for the
actions of others. But the court will conduct this analysis when determining whether plaintiff has
adequately alleged personal participation—not in determining whether plaintiff has met the pleading
standards of Rule 8. The burden of Fed. R. Civ. P. 8 is light, and plaintiff has met its standard.
C. Fourth Amendment v. Fourteenth Amendment
Both groups of defendants argue that plaintiff has not stated a claim for violation of the
Fourteenth Amendment. Plaintiff did not address this argument and made no effort to distinguish the
Fourth Amendment claims from the Fourteenth Amendment claims. The court determines that the
Fourth Amendment is the proper avenue for plaintiff’s excessive force claims, and dismisses plaintiff’s
claims under the Fourteenth Amendment to the extent they are an attempt to raise independent due
process claims. See Estate of Booker v. Gomez, 745 F.3d 405 , 418–19 (10th Cir. 2014) (explaining the
difference of when an excessive force claims falls under the Fourth, Fifth, Eighth, or Fourteenth
Amendment).
D. Fourth Amendment Individual Capacity Claims
Next, all defendants sued for Fourth Amendment violations in their individual capacities argue
that they are entitled to qualified immunity. The doctrine of qualified immunity protects government
officials who perform discretionary government functions from liability for civil damages and the
obligation to defend the action. See Johnson v. Fankell, 520 U.S. 911 , 914 (1997); Harlow v.
Fitzgerald, 457 U.S. 800 , 818 (1982). This immunity is only applicable, however, if the official’s
conduct did not violate clearly established constitutional or statutory rights that would have been
known by a reasonable government official. See Harlow, 457 U.S. at 818 ; McFall v. Bednar, 407 F.3d
1081, 1087 (10th Cir. 2005). “In resolving a motion to dismiss based on qualified immunity, a court
must consider whether the facts that a plaintiff has alleged make out a violation of a constitutional
right, and whether the right at issue was clearly established at the time of defendant’s alleged
misconduct.” Brown v. Montoya, 662 F.3d 1152 , 1164 (10th Cir. 2011) (citing Leverington v. City of
Colo. Springs, 643 F.3d 719 , 732 (10th Cir. 2011)). Moreover, the inquiry is not whether the general
right to be free from excessive force is clearly established—because it is—the inquiry is whether
plaintiff had a clearly established right under the particular facts of this case. Long v. Fulmer, 545 F.
App’x 757, 760 (10th Cir. 2013).
1. Personal Participation
Before moving to the test for qualified immunity, the court must address another threshold
issue: whether plaintiff has adequately alleged personal participation by each of the defendants.
Plaintiff claims that he has done so in many instances by alleging that the collective actions of the
defendants resulted in the Fourth Amendment violation. Defendants maintain that plaintiff has failed
to adequately allege personal participation by many of them because they were not present at the time
of the shooting.
“Individual liability under § 1983 must be based on personal involvement in the alleged
constitutional violation.” Gallagher v. Shelton, 587 F.3d 1063 , 1069 (10th Cir. 2009) (quoting Foote
v. Spiegel, 118 F.3d 1416 , 1423 (10th Cir. 1997)). Liability under § 1983 cannot be based on
supervisory status alone; there must be “an affirmative link . . . between the constitutional deprivation
and either the supervisor’s personal participation, his exercise of control or direction, or his failure to
supervise.” Id. (quoting Green v. Branson, 108 F.3d 1296 , 1302 (10th Cir. 1997)); see also Dodds v.
Richardson, No. 09-6157, 2010 WL 3064002 , at *8–10 (10th Cir. Aug. 6, 2010) (reviewing standards
for § 1983 supervisory liability in light of Iqbal; holding stricter burden on plaintiff still requires
affirmative link; plaintiff must establish (1) the defendant promulgated, created, implemented or
possessed responsibility for the continued operation of a policy that (2) caused the complained of
constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional
deprivation); Butler v. City of Norman, 992 F.2d 1053 , 1055 (10th Cir. 1993) (holding that a supervisor
is not liable under § 1983 unless an “affirmative link” exists between the constitutional deprivation and
the supervisor’s personal participation).
“For liability under section 1983, direct participation is not necessary. Any official who
‘causes’ a citizen to be deprived of her constitutional rights can also be held liable.” Buck v. City of
Albuquerque, 549 F.3d 1269 , 1279 (10th Cir. 2008) (citing Snell v. Tunnell, 920 F.2d 673 , 700 (10th
Cir. 1990)). In terms of causation, the “requisite causal connection is satisfied if the defendant set in
motion a series of events that the defendant knew or reasonably should have known would cause others
to deprive the plaintiff of her constitutional rights.” Id. at 1279–80.
A defendant may also be found to personally participate for failure to intervene. See, e.g.,
Estate of Booker, 745 F.3d at 422–23; Fogarty v. Gallegos, 523 F.3d 1147 , 1152 (10th Cir. 2008);
Mick v. Brewer, 76 F.3d 1127 , 1136 (10th Cir. 1996); Reindl v. City of Leavenworth, 443 F. Supp. 2d
1222, 1229 (D. Kan. 2006). But to be held responsible for failing to intervene, there must be a
“realistic opportunity” to intervene and reason to know that excessive force would be used—which,
according to defendants, was absent here. Jones v. Norton, 809 F.3d 562 , 576 (10th Cir. 2015);
Vondrak v. City of Las Cruces, 535 F.3d 1198 , 1210 (10th Cir. 2008). And the constitutional
deprivation must occur in the defendant’s presence. Vondrak, 535 F.3d at 1210 .
a. Deputy Sparks
Deputy Sparks was not present in the house when the shooting occurred. Instead, she was
outside the house and plaintiff alleges that she did not take steps to stop officers from entering the
house in an unsafe manner or to assist in using less than lethal means. (Doc. 1, at 5 ¶ 24.) Although
plaintiff alleges that Deputy Sparks should have intervened, he does not adequately allege that Deputy
Sparks had the reasonable opportunity to intervene. He has not alleged facts suggesting that Deputy
Sparks was in a position to know that the officers would use lethal force; observe the lethal force; or
intervene before the force was used. The court therefore dismisses the § 1983 claim against defendant
Sparks.
b. Sergeant Wessling
Like Deputy Sparks, Sergeant Wessling was not present in the house. Plaintiff claims that
Sergeant Wessling was part of the team that convinced Mr. Sumner to act as a negotiator. While this
decision ultimately proved unsuccessful, plaintiff has not alleged how participating in that decision
directly or foreseeably led to the shooting of Ms. Howard. For the same reasons the court dismisses
Deputy Sparks, the § 1983 claim against Sergeant Wessling is also dismissed.
c. Sergeant Mellick
Sergeant Mellick submitted an affidavit stating that he was not present in the house at the time
of the shooting. But this affidavit is controverted by the allegations in plaintiff’s complaint, and
Sergeant Mellick has conceded that it may be ignored. (Doc. 66, at 5 n.3.) Plaintiff alleges that
Sergeant Mellick was part of the team who shot Ms. Howard. Accepting this as true, plaintiff has
adequately alleged his personal participation.
d. Deputy Chief Butaud and Major Lanphear
Plaintiff alleges that Deputy Chief Butaud and Major Lanphear, as supervisors on the scene,
entered the house and failed to intervene with the shooting. She also claims that they “participated in
the siege by entering the house and assisting the officers and deputies.” (Doc. 1, at 5 ¶ 20.) But
plaintiff does not allege that these supervising defendants were near the laundry room, observed the
use of lethal force, or had a realistic opportunity to intervene while in the house. Plaintiff alleges that
after Sergeant Sweany broke down the laundry room door, thirteen seconds passed before the officers
opened fire. Her allegations do not support an inference that Deputy Chief Butaud or Major Lanphear
could have done anything to stop the shots during the thirteen seconds. Plaintiff’s allegations against
Deputy Chief Butaud and Major Lanphear are insufficient to allege personal participation.
e. Chief Menke and Sheriff Hayden
Neither Chief Menke nor Sheriff Hayden was present at the time of the events. Chief Menke
did arrive after the events had concluded. And at one point, Sheriff Hayden was consulted, as the
complaint affirmatively alleges that Sheriff Hayden was “not on board” with the officers entering the
house. (Doc. 1, at 4 ¶ 17, 5 ¶ 24.)
Plaintiff alleges that these two figures are responsible for the actions of their subordinates
because they:
improperly and recklessly supervised their officers and deputies, resulting in the death of
Ms. Howard. In fact, they recklessly and needlessly escalated the situation and failed to
provide proper leadership and supervision consistent with the police department’s
policies and Sheriff’s Office policies and nationally recognized law enforcement
standards. Defendant Menke and Defendant Hayden failed to provide Defendants with
adequate training and supervision, directly resulting in Ms. Howard’s injuries and death.
(Doc. 1, at 9 ¶ 47.)
Chief Menke and Sheriff Hayden’s supervisory positions alone are not sufficient to allege
personal participation in their individual capacities. Gallagher, 587 F.3d at 1069 . “[T]he defendant’s
role must be more than one of abstract authority over individuals who actually committed a
constitutional violation.” Fogarty, 523 F.3d at 1162 . Plaintiff has not adequately alleged direct
personal responsibility for excessive force on the part of either of these two defendants. The court
determines that the § 1983 claims against these defendants in their individual capacities should be
dismissed.
2. Constitutional Violation
The above personal participation analysis leaves six remaining individual defendants: Sergeant
Mellick, Sergeant Sweany, Officer Mills, Officer Miller, Deputy Denton, and Deputy Chaulk. At this
stage of the proceedings, the court considers the actions inside the house of these parties jointly.
Plaintiff has alleged that they entered the house together and all were present during the shooting. The
complaint does not allege who the shooters were, but plaintiff has alleged that they all were present
and in a position to intervene. The court will therefore consider qualified immunity collectively with
respect to these defendants. See Pauly v. White, 874 F.3d 1197 , 1214 (10th Cir. 2017) (observing that
“when appropriate,” courts consider qualified immunity in the aggregate, foregoing individualized
qualified immunity analysis for each defendant).
To be liable under § 1983, a defendant must engage in a deliberate deprivation of constitutional
rights—not a negligent deprivation. Woodward v. Worland, 977 F.2d 1392 , 1399 (10th Cir. 1992);
Moore v. Bd. of Cty. Comm’rs, 470 F. Supp. 2d 1237 , 1246 (D. Kan. 2007). Officers are afforded
some “breathing room” to make reasonable mistakes while making quick decisions in “tense, uncertain
and rapidly evolving situations.” Graham v. Connor, 490 U.S. 386 , 397 (1989). The constitution
requires reasonable means—not the least intrusive means. Fisher v. City of Las Cruces, 584 F.3d 888 ,
894 (10th Cir. 2009); Jiron v. City of Lakewood, 392 F.3d 410 , 414 (10th Cir. 2004). And officers may
take protective action without waiting for the “glint of steel.” Estate of Larsen v. Murr, 511 F.3d 1255 ,
1260 (10th Cir. 2008). An officer would be justified in using more force than necessary if he
reasonably (but mistakenly) believed that a subject was likely to fight back. Id.
In resolving an excessive force question in the context of qualified immunity on a motion to
dismiss, courts consider and balance three factors: “(1) the severity of the crime at issue, (2) whether
the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is
actively resisting arrest or attempting to flee.” Long, 545 F. App’x at 760 (citing Morris v. Noe, 672
F.3d 1185, 1195 (10th Cir. 2012), and Graham, 490 U.S. at 396 ). Moreover, a subject’s mental illness
or disturbed condition is relevant to the reasonableness determination. Giannetti v. City of Stillwater,
216 F. App’x 756 , 764 (10th Cir. 2007); Allen v. Muskogee, Okla., 119 F.3d 837 , 840, 842 (10th Cir.
1997); Sevier v. City of Lawrence, Kan., 60 F.3d 695 , 699, 701, n.10 (10th Cir. 1995).
Applying these factors to the facts of the case, the pleaded facts indicate that the crime was not
particularly severe. While Ms. Howard may have had a felony arrest warrant, the warrant was for
walking away from a residential center while on probation. And whether Ms. Howard represented an
immediate threat to the safety of the officers is debatable. Certainly, when they broke into the laundry
room, Ms. Howard was waving a gun in the air. But she was waving it aimlessly, according to the
complaint. And she only became a danger to the officers when they broke into the laundry room.
Before that time, she was a threat only to herself. As for the third factor, Ms. Howard arguably was
actively resisting arrest, but she was not attempting to flee. To the contrary, her refusal to leave the
house for hours led to the officers’ breach of the house and laundry room.
Defendants claim that their actions were justified based on the four factors of Estate of Larsen
v. Murr. In that case, the Tenth Circuit identified four non-exclusive factors for evaluating the threat
facing officers:
(1) Whether the officers ordered the suspect to drop his weapon, and the suspect’s
compliance with police commands; (2) whether any hostile motions were made with
the weapon towards the officers; (3) the distance separating the officers and the
suspect; and (4) the manifest intentions of the suspect.
Estate of Larsen, 511 F.3d at 1260 . “[I]n the end, the inquiry is always whether, from the perspective
of a reasonable officer on the scene, the totality of circumstances justified the use of force.” Id.
Applied in a vacuum to the thirteen seconds before Ms. Howard was shot, these factors weigh
fairly evenly for and against finding the use of lethal force reasonable. Certainly, they create a
question for the jury if the evidence ultimately supports the complaint’s allegations. Defendants
ordered Ms. Howard to drop her weapon and she did not. She did not make hostile motions, but was
waving the gun aimlessly. The distance was short, but the stated intentions of the suspect were self- harm—not harm of the officers and deputies. But when the bigger picture of the circumstances
immediately preceding the last thirteen seconds are considered, it becomes even more certain that there
is a triable issue whether lethal force was reasonable. The officers and deputies themselves created the
situation where there was a very short distance separating them from Ms. Howard. They were not
subject to a threat of harm until after they entered the house and, ultimately, the laundry room.
Defendants, however, maintain that the court should look at the actions of the officers and
deputies (and Ms. Howard) at the time of the shooting—and only at the time of the shooting. In
support, defendants cite Tenth Circuit law stating that courts “scrutinize only the seizure itself, not
events leading to the seizure, for reasonableness under the Fourth Amendment.” Bella v. Chamberlain,
24 F.3d 1251 , 1256 (10th Cir. 1993) (citation and internal quotations omitted). They claim that the
proper focus is on whether the officers were in danger at the precise moment of the threat of force. See
Medina v. Cram, 252 F.3d 1124 , 1132 (10th Cir. 2001); Bella, 24 F.3d at 1256 . Defendants argue that
a recent Supreme Court case, County of Los Angeles, California v. Mendez, 137 S. Ct. 1539 (2017),
precludes plaintiff’s arguments that the officers and deputies “provoked an unnecessary and deadly
confrontation.” (Doc. 1, at 2 ¶ 1.) And finally, defendants argue that for the court to consider conduct
undertaken before the suspect threatens force, such conduct must be “immediately connected” to the
seizure and threat of force. See Allen, 119 F.3d at 840 ; Hastings v. Barnes, 252 F. App’x 197 , 203
(10th Cir. 2007) (noting that only reckless and deliberate conduct that is “immediately connected to the
seizure will be considered”) (citing Medina, 252 F.3d at 1132 ). According to defendants, there were
no actions in this case immediately connected to the seizure and threat of force. The entire series of
discrete events was drawn out over the course of the afternoon.
In Mendez, the Supreme Court held, “All we hold today is that once a use of force is deemed
reasonable under Graham, it may not be found unreasonable by reference to some separate
constitutional violation.” 137 S. Ct. at 1547 n*. The court did not decide the propriety of considering
“unreasonable police conduct prior to the use of force that foreseeably created the need to use it.” Id.
For this reason, Mendez is distinguishable from the case before the court, as well as from two other
Tenth Circuit cases that guide this court: Allen and Sevier. These cases remain the law of the circuit.
Pauly, 874 F.3d at 1219 n.7 (“Sevier and Allen remain good law in this circuit.”); see also Ceballos ex
rel. Estate of Ceballos v. Husk, 919 F.3d 1204 , 1214 n.2 (10th Cir. 2019) (“We recently affirmed this
longstanding Tenth Circuit law, notwithstanding County of Los Angeles v. Mendez.”); Clark v. Colbert,
895 F.3d 1258 , 1264 (10th Cir. 2018) (“[P]olice officers can incur liability for ‘reckless’ conduct that
begets a deadly confrontation.”) (citing Allen, 119 F.3d at 841 ).
Both Allen and Sevier held that the court may, in appropriate circumstances, consider events
leading up to the seizure to determine whether the use of force was reasonable. See Allen, 119 F.3d at
840 (“The excessive force inquiry includes not only the officers’ actions at the moment that the threat
was presented, but also may include their actions in the moments leading up to the suspect’s threat of
force.”); Sevier, 60 F.3d at 699 (“The reasonableness of Defendants’ actions depends both on whether
the officers were in danger at the precise moment that they used force and on whether Defendants’
own reckless or deliberate conduct during the seizure unreasonably created the need to use such
force.”); see also Pauly, 874 F.3d at 1219–20 (“Our precedent recognizes that ‘[t]he reasonableness of
force depends not only on whether the officers were in danger at the precise moment that they used
force, but also on whether the officers’ own “reckless or deliberate conduct during the seizure
unreasonably created the need to use such force.”’”) (quoting Jiron, 392 F.3d at 415 (quoting Sevier,
60 F.3d at 699 )); Hasting v. Barnes, 252 F. App’x 197 , 203 (10th Cir. 2007) (“The reasonableness of
the use of force depends not only on whether the officers were in danger at the precise moment they
used force but also on whether the officers’ own conduct during the seizure unreasonably created the
need to use such force.”); Medina, 252 F.3d at 1132 (“An officer’s conduct before the suspect
threatens force is therefore relevant provided it is ‘immediately connected’ to the seizure and the threat
of force.”); Bella, 24 F.3d at 1256 n.7 (“Obviously, events immediately connected with the actual
seizure are taken into account in determining whether the seizure is reasonable.”).
As the cases above demonstrate, the law in this circuit is that the court may consider events
leading up to the seizure—at least if those events are immediately connected to the seizure and threat
of force. While in this case, that conduct may not include every action of the officers over the course
of the afternoon, plaintiff has at least alleged facts suggesting that the forced entry into the house and
the laundry room are immediately connected. Considering the actions of the officers and deputies
during that time, the court determines that plaintiff has adequately alleged a constitutional violation
with respect to the defendants who survived the personal participation inquiry. In considering the
totality of the circumstances, the court observes the following allegations in plaintiff’s complaint: (1)
while defendants remained outside the house, there was no immediate danger to them or to the public;
(2) defendants were aware of Ms. Howard’s mental instability; (3) defendants knew Ms. Howard had
access to a gun; (4) defendants elected to forcibly enter both the house and the laundry room with a
barking police dog, shouting commands and threats; and (5) Ms. Howard did not level her gun at the
officers—instead waiving it aimlessly in the air after repeatedly threatening suicide. Considering not
only the moment the officers and deputies shot Ms. Howard, but also those immediately preceding the
incident, plaintiff has stated a constitutional violation.
3. Clearly Established
The next step in the qualified immunity analysis is to decide whether the law was clearly
established at the time of the constitutional violation (or alleged constitutional violation). To show that
a law is “clearly established,” a plaintiff must identify pre-existing precedent that places the
“constitutional question beyond debate.” Yeasin v. Durham, 719 F. App’x 844 , 850 (10th Cir. 2018)
(quoting Mullenix v. Luna, 136 S. Ct. 305 , 308 (2015)). A plaintiff must identify “a Supreme Court or
Tenth Circuit decision on point, or the clearly established weight of authority from other circuits must
have found the law to be as the plaintiff maintains.” Cortez v. McCauley, 478 F.3d 1108 , 1114–15
(10th Cir. 2007) (citation omitted). The relevant precedent need not be directly on point, but the
plaintiff “must do more than cite case law announcing a legal rule ‘at a high level of generality.’”
Yeasin, 719 F. App’x at 850 . The precedent must be particularized to the facts of this case, id., making
it sufficiently clear such that every reasonable official would have known that the defendant’s actions
would violate the plaintiff’s rights, Reichle v. Howards, 566 U.S. 658 , 664 (2012). But the Tenth
Circuit has counseled that “[w]e cannot find qualified immunity wherever we have a new fact pattern.”
Casey v. City of Fed. Heights, 509 F.3d 1278 , 1284 (10th Cir. 2007). Casey applied a “sliding scale”
concept to evaluating whether a right is clearly established—the more egregious the conduct, the less
specificity is required from prior case law. This sliding scale test has been called into question
recently, see McCoy v. Meyers, 887 F.3d 1034 , 1053 n.22 (10th Cir. 2018), but the Tenth Circuit has
not yet decided that it conflicts with Supreme Court authority. If force is clearly unjustified based on
the Graham factors, then the court may conclude that a right is clearly established, even in the absence
of similar prior cases. Morris, 672 F.3d at 1197–98.
Plaintiff identifies two Tenth Circuit cases that allegedly put defendants on notice that their
conduct would violate a clearly established right: Allen and Hastings. The court examines the facts of
those cases to determine whether plaintiff is correct.
a. Allen (Man threatening suicide in car with gun)
Officers in Allen had been advised that Mr. Allen was armed, was involved in an altercation
with his wife and children, had threatened family members, and had threatened suicide. 119 F.3d at
839. When they arrived on the scene, Mr. Allen was in a vehicle, sitting in the driver’s seat with one
foot out of the vehicle. Id. He held a gun on the console between the seats. Id.
Officers cleared the area of bystanders, and there was some testimony indicating that Lt. Smith
ran screaming to Mr. Allen’s car and shouting at Mr. Allen to get out of the car. Id. at 839, 841.
Within the next ninety seconds, Lt. Smith repeatedly told Mr. Allen to drop his gun. Id. at 839.
Another officer arrived at the car and held Mr. Allen’s left arm while Lt. Smith tried to grab the gun.
Id. A third officer tried to open the passenger door. Id. Mr. Allen pointed the gun at the third officer,
then swung it to the two officers at the driver’s door, and shots were exchanged. Id. Ultimately, Mr.
Allen was killed. Id. The court held that “a reasonable jury could conclude on the basis of some of the
testimony presented that the officers’ actions were reckless and precipitated the need to use deadly
force.” Allen, 119 F.3d at 841 .
b. Hastings (Man in house, cornered with sword)
Hastings, while an unpublished opinion, may still be used to decide whether the law is clearly
established. Ceballos, 919 F.3d at 1217 n.3. In this case, Mr. Hastings called Family and Children
Services, seeking counseling and expressing suicidal thoughts. Hastings, 252 F. App’x at 198 . He
planned to asphyxiate himself but gave permission to the call-taker to contact Community Outreach
Psychiatric Emergency Services, which then called 911. Id. Officers were told that Mr. Hastings was
contemplating suicide by asphyxiation, was non-violent, and not known to be armed. Id. at 199.
When police knocked on the door, they began talking with Mr. Hastings and asked him to step
out on the porch to talk with them. Id. Mr. Hastings appeared nervous and evasive, and one officer
believed that he was going to shut the door and retreat into the house. Id. He put his foot in the
doorway, and, as suspected, Mr. Hastings slammed the door and ran into a bedroom. Id. Officers
followed and one saw Mr. Hastings pick up a Samurai sword. Id. That officer drew his weapon and
yelled “knife” to the other officers. Id. Four officers positioned themselves in the door, weapons
drawn, within eight to ten feet away from Mr. Hastings. Id. at 199–200.
Mr. Hastings held the sword in a defensive manner, but did not comply when the officers told
him to put it down. Id. at 200. At one point, Mr. Hastings turned it on himself, but then grabbed the
telephone and said something into the receiver like “help me” or “they are coming to get me.” Id. One
officer pepper-sprayed Mr. Hastings, but it had no impact. Id. Mr. Hastings turned the sword toward
the officers and began moving toward them. Id. The doorway was too crowded for retreat, so the
officers shot Mr. Hastings, who died at the scene. Id. The incident lasted less than four minutes. Id.
In reviewing the record, the Tenth Circuit concluded not only that there was triable issue for the
jury about whether the use of deadly force was reasonable, but also that the law was clearly
established:
Allen and Sevier provided Barnes and Davis the requisite fair warning that their conduct
in this case was unlawful. They clearly establish that an officer acts unreasonably when
he aggressively confronts an armed and suicidal/emotionally disturbed individual without
gaining additional information or by approaching him in a threatening manner (i.e.,
running and screaming at him). That is exactly what Barnes and Davis did in this case.
Rather than attempt to talk to Todd and calm him, they cornered him in his bedroom,
issued loud and forceful commands at him and pepper-sprayed him, thereby further
upsetting Todd and precipitating the need to use deadly force.
Id. at 206.
c. Application to This Case
Both Allen and Hastings put the officers and deputies on notice that the shooting of Ms.
Howard, under the circumstances they faced, would be a violation of her Fourth Amendment right to
be free of unreasonable seizure. Taking the facts in the light most favorable to plaintiff, the officers
and deputies who entered the house and laundry room recklessly escalated a confrontation with a
mentally and emotionally distressed woman who was alone in a house threatening suicide. It was
clearly established that their actions, as pleaded, were unconstitutional. The officers and deputies are
not entitled to qualified immunity.
E. Official Capacity Claim Against Sheriff Hayden
Sheriff Hayden moves to dismiss the claims against him in his official capacity on the basis of
Eleventh Amendment immunity. The Eleventh Amendment provides immunity to unconsenting states
and those acting on their behalf from federal suits for money damages. U.S. Const. amend. XI;
Edelman v. Jordan, 415 U.S. 651 , 663 (1974). It does not, however, extend immunity to counties,
municipalities, or other local government entities. Steadfast Ins. Co. v. Agric. In. Co., 507 F.3d 1250 ,
1253 (10th Cir. 2007) (citation omitted). In determining whether a particular entity receives Eleventh
Amendment immunity, the court considers whether the entity is an “arm of the state.” Mt. Healthy
City Sch. Dist. v. Doyle, 429 U.S. 274 , 280 (1977).
The Tenth Circuit and a number of judges in the District of Kansas have held that Kansas
sheriffs act on behalf of the state and are therefore immune from suit in federal court. See Hunter v.
Young, 238 F. App’x 336 , 338 (10th Cir. 2007); Kellogg v. Coleman, No. 18-1061-JTM, 2019 WL
2207954, at *11 (D. Kan. May 22, 2019); Broyles v. Marks, No. 18-3030-SAC, 2018 WL 2321822 , at
*4 (D. Kan. May 22, 2018); Self v. Cty. of Greenwood, No. 12-1317-JTM, 2013 WL 615652 , at *2 (D.
Kan. Feb. 19, 2013); Brown v. Kochanowski, No. 07-3062-SAC, 2012 WL 4127959 , at *9 n.3 (D. Kan.
Sept. 19, 2012), aff’d 513 F. App’x 715 (10th Cir. 2013). The undersigned judge recently found the
same in Myers v. Brewer, No. 17-2682, 2018 WL 3145401 , at *6 (D. Kan. June 27, 2018). But other
District of Kansas judges have found that sheriffs are not entitled to immunity in Kansas. See, e.g.,
Manley v. Bellendir, No. 18-1220-EFM, 2019 WL 3430563 , at *4 (D. Kan. July 30, 2019); Estate of
Holmes v. Somers, No. 18-1221-JWB, 2019 WL 1670796 , at *17 (D. Kan. Apr. 17, 2019); Trujillo v.
City of Newton, No. 12-2380-JAR, 2013 WL 535747 , at *10 (D. Kan. Feb. 12, 2013); Reyes v. Bd. of
Cty. Comm’rs of Sedgwick Cty., No. 07-2193-KHV, 2008 WL 2704160 , at *7–9 (D. Kan. July 3,
2008).
At this time, the court sees no reason to depart from its recent analysis in Myers. Despite the
growing disagreement in Kansas about whether sheriffs are arms of the state when acting in a law
enforcement capacity, this court stands by its analysis in Myers and incorporates it here by reference.
Sheriff Hayden is entitled to Eleventh Amendment immunity for the claims against him in his official
capacity. The claims against him in his official capacity—including state law claims—are dismissed
without prejudice. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 , 121 (1984)
(“[N]either pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh
Amendment.”).
F. Monell and Official Capacity Claim Against Chief Menke
Defendants move to dismiss the Monell claims against Johnson County, the Board of
Commissioners of Johnson County, and the City of Olathe. They also move to dismiss the official
capacity claim against Chief Menke as duplicative of the claim against the City of Olathe. In these
claims (contained in Count II of the Complaint), plaintiff seeks to hold these county and municipal
parties liable for the actions of their employees because they have policies, customs, and practices of
failing to properly train and supervise their deputies and officers. (Doc. 1, at 9–10 ¶ 52.) Plaintiff also
claims that they have inadequate policies on the use of deadly force, practices or customs of inadequate
investigations, and practices or customs of not following policies and insubordination. (Id.)
Defendants ask for dismissal, arguing that (1) the official capacity claim against Chief Menke is
duplicative of the claim against the City of Olathe; (2) Johnson County is not a proper defendant; (3)
the Board of County Commissioners is not responsible for the policies, customs, and practices of the
Sheriff’s Office; and (4) municipal liability against the City of Olathe is not warranted based on the
conclusory allegations of the complaint. The court addressed each of these arguments in turn.
First: Chief Menke in his official capacity. Defendants argue that the claims against Chief
Menke in his official capacity are duplicative of the claims against the City of Olathe and should be
dismissed. See Kentucky v. Graham, 473 U.S. 159 , 167 n.14 (1985). “As long as the government
entity receives notice and an opportunity to respond, an official capacity suit is, in all respects other
than name, to be treated as a suit against the entity.” Id. at 166. The court agrees and dismisses the
official capacity claims against Chief Menke.
Second: Johnson County. Kan. Stat. Ann. § 19-105 provides in relevant part, “In all suits
proceeding by or against a county, the name in which the county shall sue or be sued shall be ‘The
board of the county commissioner of the county of _____’.” This statute indicates that the county is
named by suing the Board of County Commissioners—which plaintiff has done. The court therefore
dismisses Johnson County as an improper and duplicative party. Barngrover v. Cty. of Shawnee, No.
02-4021-JAR, 2002 WL 1758914 , at *1 (D. Kan. June 10, 2002).
Third: The Board of County Commissioners. In theory, the Board would be the proper party to
sue for the policies of the Sheriff’s Department. But plaintiff has alleged that Sheriff Hayden, in his
official capacity, is responsible for the policies of his department. (Doc. 1, at 9 ¶ 49.) Plaintiff claims
that those policies, along with established practices and customs, resulted in the deprivation of Ms.
Howard’s constitutional rights. Plaintiff does not allege that the Board participated in any alleged
violations of Ms. Howard’s rights.
Under Kansas law, it is the Sheriff—not the Board of County Commissioners—who is
responsible for serving and executing arrest warrants and keeping the peace. See Kan. Stat. Ann. §§
19-812 and 19-813. And the Board of County Commissioners does not oversee the Sheriff’s acts. See
Lee v. Wyandotte Cty., 586 F. Supp. 236 , 238–39 (D. Kan. 1984); Bd. of Cty. Comm’rs of Lincoln v.
Nielander, 62 P.3d 247 , 251 (Kan. 2003) (“The sheriff is not a subordinate of the board of county
commissioners . . . . Rather, the sheriff is a state officer whose duties, powers, and obligations derive
directly from the legislature and are coextensive with the county board.”). Plaintiff has not separately
stated valid claims against the Board of County Commissioners, and the court dismisses the claims against
them.
Fourth: The City of Olathe. Defendants claim that plaintiff fails to state a Monell claim against
the City of Olathe because his allegations are conclusory and boilerplate, and fail to reference any
well-pleaded facts that would make the claims plausible.
In Monell, the United States Supreme Court held that a municipality can be liable under § 1983
for violations of civil rights if the violation is the result of a “policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body’s officers.” 436 U.S. at 690 . This “official
policy” requirement distinguishes the act of the municipality from acts of the employees of the
municipality, as municipality liability cannot derive from a theory of respondeat superior. See
Pembaur v. City of Cincinnati, 475 U.S. 469 , 479–80 (1986). A government, therefore, cannot be sued
under § 1983 for injuries caused by its employees; rather, liability only attaches “when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflict the injury.” Monell, 436 U.S. at 694 ; City of St. Louis
v. Praprotnik, 485 U.S. 112 , 123 (1988) (holding that Monell liability attaches only “for acts for which
the municipality itself is actually responsible, ‘that is, acts which the municipality has officially
sanctioned or ordered.’”). Only municipal officials who have “final policymaking authority” are
subject to Monell liability, and the challenged action “must have been taken pursuant to a policy
adopted by the official or officials responsible under state law for making policy . . . .” Id.
To establish liability under Monell, a plaintiff must show “(1) the existence of a municipal
custom or policy and (2) a direct casual link between the custom or policy and the violation alleged.”
Hollingsworth v. Hill, 110 F.3d 733 , 742 (1997). Municipal liability can be based on (1) a formal
regulation or policy statement, (2) an informal custom that amounts to a “widespread practice that,
although not authorized or written by law or express municipal policy, is ‘so permanent and well
settled as to constitute a ‘custom or usage’ with the force of law,’” (3) the decisions of employees with
final policymaking authority, or (4) “the ratification by such final policymakers of the decision—and
the basis for them—of subordinates to whom authority was delegated subject to these policymakers’
review and approval.” Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175 , 1189 (10th Cir.
2010) (citing Praprotnik, 485 U.S. at 123–27; Monell, 436 U.S. at 690–91; Pembaur, 475 U.S. at 480– 81).
Additionally, the Supreme Court has held that “there are limited circumstances in which an
allegation of a ‘failure to train’ can be the basis for liability under § 1983.” City of Canton, Ohio v.
Harris, 489 U.S. 378 , 387 (1989) (rejecting the contention that only unconstitutional policies are
actionable under § 1983). Municipal liability may be based on a failure to train or failure to supervise
employees, but only if that failure results from “deliberate indifference” to the injuries that may be
caused. Brammer-Hoelter, 602 F.3d at 1189 . There is a four-part test for evaluating whether a
municipality may be liable based on inadequate police training in the use of force:
(1) the officers exceeded their constitutional limitations on the use of force; (2) the use of
force arose under circumstances that constitute an usual and recurring situation with
which police officers must deal; (3) the inadequate training demonstrates a deliberate
indifference on the part of the city toward person with who the police officers come into
contact; and (4) there is a direct causal link between the constitutional deprivation and
the inadequate training.
Allen, 119 F.3d at 841–42.
Here, plaintiff makes a number of allegations against the City of Olathe (and others) under
Monell. These allegations (along with a few other paragraphs surrounding them) track the required
elements for Monell claims. They do not contain as many facts as are contained elsewhere in the
complaint. But plaintiff has not yet been granted discovery into the policies, practices, and customs
that may have resulted in the officers’ actions. As this point in the litigation, the court determines that
plaintiff has alleged a plausible Monell claim against the City of Olathe. The facts of the case may not
eventually support that claim, but the allegations at this point are sufficient to allow the claim to
proceed.
G. State Law Claims
1. Assault and Battery – Against Defendants Sweany, Mellick, Mills, Denton, Miller,
and Chaulk
Defendants initially made three arguments for dismissal of the assault and battery claims: that
plaintiff lacks standing; that the claims are barred by the statute of limitations; and that defendants’
actions were privileged under Kan. Stat. Ann. § 21-5227(a). After the court’s prior rulings in this
order and a concession by defendants that the claims are not untimely, only the privilege issue under §
21-5227(a) remains for disposition.
Kan. Stat. Ann. § 21-5227(a) provides:
Such officer is justified in the use of any force which such officer reasonably believes to
be necessary to effect the arrest and the use of any force which such officer reasonably
believes to be necessary to defend the officer’s self or another from bodily harm while
making the arrest. However, such officer is justified in using deadly force only when
such officer reasonably believes that such force is necessary to prevent death or great
bodily harm to such officer or another person, . . . .
This statutory provision does not provide any protection from liability for a law enforcement officer’s
unreasonable use of force. And as discussed above, plaintiff has plausibly alleged facts suggesting that
defendants acted unreasonably. Section 21-5227(a) does not protect defendants, and the court denies
their motions to dismiss on this issue.
2. Survival Claim – Against All Defendants
As for the survival claim, defendants again raise standing, as well as an argument that the claim
was not included in plaintiff’s Notice of Claim. Because the court has already addressed standing, the
only question remaining is the sufficiency of the Notice of Claim.
Kansas requires plaintiffs to file proper notice under Kan. Stat. Ann. § 12-105b(d) before filing
suit against a municipality. Gessner v. Phillips Cnty. Com’rs, 11 P.3d 1131 , 1134 (Kan. 2000);
Talavera v. Sw. Med. Ctr., No. 09-2572-JWL, 2010 WL 3001723 , at *1 (D. Kan. July 28, 2010).
Notice of claims under the Kansas statute is a jurisdictional prerequisite to bringing suit against a
municipality. Christopher v. State ex rel. Kan. Juvenile Justice Auth., 143 P.3d 685 , 691 (Kan. Ct.
App. 2006). But the jurisdictional bar applies only to lawsuits against municipalities. Failure to
comply with the statute does not deprive a court of jurisdiction over a case against a municipal
employee. Whaley v. Sharp, 343 P.3d 63 , 69 (Kan. 2014) (overruling King v. Pimentel, 890 P.2d 1217
(Kan. App. 1995)). Moreover, substantial compliance is allowed. Kan. Stat. Ann. § 12-105b(d).
“Substantial compliance” means “compliance in respect to the essential matters necessary to assure
every reasonable objective of the statute.” Orr v. Heiman, 12 P.3d 387 , 389 (Kan. 2000) (internal
quotation marks omitted. The purposes of the notice requirement are to “sufficiently advise the proper
municipality . . . of the time and place of the injury and give the municipality an opportunity to
ascertain the character and extent of the injury sustained.” Bell v. Kan. City, Kan., Housing Auth., 992
P.2d 1233, 1235 (Kan. 1999) (citations omitted). The statute requires that the Notice contain the
following five elements:
(1) The name and address of the claimant and the name and address of the claimant’s
attorney, if any; (2) a concise statement of the factual basis of the claim, including the
date, time, place and circumstances of the act, omission or event complained of; (3) the
name and address of any public officer or employee involved, if known; (4) a concise
statement of the nature and the extent of the injury claimed to have been suffered; and (5)
a statement of the amount of monetary damages that is being requested.
Kan. Stat. Ann. § 12-105b(d). Defendants claim that plaintiff’s Notice fails to mention a survival
claim, fails to identity the correct name and address of the claimant, and underrepresents the amount of
damages sought.
Upon reviewing the Notice (which the court takes judicial notice of, although it is not attached
to the complaint), the court determines that it substantially complies with the statutory requirements.
The statute requires a factual basis for the claim—which is included for a survival claim, although the
term “survival claim” is not mentioned specifically. Although the Notice does not specifically identify
Mark Arnold as the Special Administrator or his address, it does list Ms. Howard and her heirs and list
the attorney’s address. See Sleeth v. Sedan City Hosp., 317 P.3d 782 , 791 (Kan. 2014) (agreeing that
the the plaintiffs’ failure to add their personal addresses to the notice of claim was “inconsequential”
and would have “added nothing because counsel’s contact information was included.”). And the
Notice of Claim seeks damages in excess of $1,000,000. In this case, plaintiff seeks excess of
$1,000,000 (specifically, $4,000,000). These claims are consistent. In Continental Western Ins. Co. v.
Schultz, the Kansas Supreme Court held that a Notice of Claim was not deficient when the eventual
damages sought in court were eleven times the amount listed in the Notice of Claim. 304 P.3d 1239 ,
1244 (Kan. 2013). As in Schultz, plaintiff’s damages calculation in the Notice of Claim was sufficient
to allow the parties to begin a “full investigation and understanding of the merits of the claims
advanced.” Id. at 1244.
None of defendants’ arguments about the Notice of Claim merit dismissal. Plaintiff adequately
met the requirements of Kan. Stat. Ann. 12-105b(d).
3. Wrongful Death Claim – Against All Defendants
With respect to the wrongful death claim, defendants argue that it must be brought by the heir- at-law (which, again, the court has already addressed). Defendants also raise privilege under § 21- 5227(a) again, as well as immunity under the Kansas Tort Claims Act (“KTCA”). For the same reason
identified above, § 21-5227(a) does not help defendants. And the same logic applies to the invocation
of the discretionary function exception found in Kan. Stat. Ann. § 65-6104(e). See Hopkins v. State,
702 P.2d 311 , 319 (Kan. 1985) (“A law enforcement officer is obligated to use reasonable and ordinary
care and diligence in the exercise of his duties, to use his best judgment, and to exercise that reasonable
degree of learning, skill and experience which is ordinarily possessed by other law enforcement
officers in the same or similar locations. A law enforcement officer who acts maliciously or wantonly
fails to exercise the reasonable and ordinary care and diligence required of a law enforcement officer
and acts outside the protection afforded by the act.”); see also Dauffenbach v. City of Wichita, 667
P.2d 380, 386 (Kan. 1983) (“The officer may not, however, use an unreasonable amount of force or
wantonly or maliciously injure a suspect.”). Based on the well-pleaded allegations in the complaint,
the court denies defendants’ motion on this claim. The facts “could support a reasonable inference of
willful and wanton disregard of [Ms. Howard’s] rights and safety.” Ceballos, 919 F.3d at 1223 .
IT IS THEREFORE ORDERED that defendants’ motions to dismiss (Docs. 37 and 47) are
granted in part and denied in part. The following claims are dismissed, but all other claims may
proceed at this time:
Any independent Fourteenth Amendment due process claim;
The § 1983 individual capacity claims against defendants Sparks, Wessling, Mellick,
Butaud, Lanphear, Menke, and Hayden;
The § 1983 official capacity claims against defendant Menke;
All claims against defendant Hayden in his official capacity;
All claims against defendant Johnson County and the Johnson County Board of
Commissioners. These two parties are dismissed from the case.
Dated this 10th day of September, 2019, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge