McLinn v. Thomas County Sheriff's DepartmentMcLinn v. Thomas County Sheriff's Department
MEMORANDUM AND ORDER
This matter comes before the court on motions to dismiss by the Thomas County Defendants1 (Doc. 50), Travis Ryburn and
I. Preliminary Matters
A. Materials outside the pleadings. The claims in this case arise from the allegedly unlawful repossession of Plaintiffs’ vehicle on August 10, 2018. The Thomas County Defendants’ motion to dismiss relies in part on a video (with audio) recording of the incident captured by Deputy Cox‘s law enforcement body camera (“body cam“). Defendants argue the court should consider the body cam video because it is referenced in and relied on by Plaintiffs in the amended complaint. (Doc. 51 at 2-3.) In response, Plaintiffs “do not object” to the court‘s consideration of the video, but only to the extent it does not conflict with the amended complaint, and they argue that a number of factual inferences arise from the video. (Doc. 73 at 4-8.) Defendants dispute those inferences, arguing in reply that the “video speaks for itself, and completely contradicts” Plaintiffs’ allegations of (among other things) a threatening encounter. (Doc. 75 at 2.)
Courts considering videos attached to dispositive motions usually do so at the summary judgment stage. Estate of Holmes by and through Couser v. Summers, 387 F. Supp. 3d 1233, 1243-44 (D. Kan. 2019). Given that summary judgment motions are designed to evaluate and consider whether there is evidence to support the allegations in the complaint, that is hardly surprising. After considering the particular arguments made by the parties, and the nature of the video, the court declines to consider the video in connection with the Thomas County Defendants’ motion to dismiss the amended complaint under
B. Motion for leave to file surreply. (Doc. 77.) Plaintiffs ask to file a surreply to address what they characterize as several new issues raised by the Thomas County Defendants in their reply. (Doc. 77 at 1.) Surreplies “are permitted only with leave of court and under ‘rare circumstances’ after good cause is shown.” James v. Boyd Gaming Corp., No. 19-2260-DDC-JPO, 2021 WL 794899, at *5 (D. Kan. Mar. 2, 2021) (citations omitted). Much of Plaintiffs’ proposed surreply deals with inferences from the body cam video. (Doc. 77-1 at 1-2.) Given that the court has excluded the video from consideration, this provides
C. Motion for hearing. (Doc. 71.) Plaintiffs seek oral argument on the motions to dismiss because “further explanation and arguments regarding certain actions ... in the [body cam] footage would be beneficial....” (Doc. 71 at 1.) Again, the court has excluded the video from consideration, so argument is not merited on that point. Moreover, the court determines that oral argument would not assist in deciding the issues presented. See D. Kan. R. 7.2 (court may allow oral argument); Carter v. Spirit Aerosystems, Inc., 827 F. App‘x 864, 870 (10th Cir. 2020) (denial of oral argument reviewed for abuse of discretion).
II. Facts
The following allegations are taken from the amended complaint (Doc. 45) and are assumed to be true for purposes of deciding the motions to dismiss.
Plaintiff McLinn is a resident of Oakley, Kansas. He is the sole shareholder and director of Outlaw Towing & Recovery, Inc. (“Outlaw Towing“). Defendant Cox is a deputy sheriff for Thomas County. Defendant Nickols is the Thomas County Sheriff. Defendant Triple T Towing (“Triple T“) is a tow company located in Oakley and is operated by Defendant Ryburn. (Doc. 45 at 1-4.)
In February 2017, Plaintiffs purchased a 2006 Ford F350 (“the F350“) with a loan from First State Bank of Healy, Kansas (“FSB“). The F350 was collateral for the loan. Payments on the loan were due the third day of each month, and late charges became due if payments were ten or more days late. (Id. at 6.) Plaintiffs’ payment “made in July 2018 was dishonored.” (Id.)
On August 10, 2018, sometime before 9 a.m., Ryburn/Triple T, acting under the direction of FSB, arrived on Plaintiff McLinn‘s property to repossess the F350. (Id.) Ryburn/Triple T were Plaintiffs’ direct competitors. No notice of any kind was sent by FSB, nor did it obtain any court order to authorize the repossession. The F350 was parked on land rented by McLinn and Outlaw Towing, about a tenth of a mile from the nearest entrance to the property. (Id. at 7.) Deputy Cox arrived at the same time as Ryburn/Triple T. Greg Jirak, a Trooper with the Kansas Highway Patrol, also arrived at that time and remained by the highway near Plaintiffs’ property. The officers arrived because Triple T/Ryburn had requested law enforcement presence to facilitate the repossession. (Id. at 7-9.)
McLinn, who was inside the building on the premises, heard some noise and came outside to investigate. Cox was near the door. McLinn informed Cox that Triple T/Ryburn had been told they were not to come on McLinn‘s property and that they were not welcome on the property. McLinn demanded that Triple T/Ryburn and Cox leave the F350 alone and leave
McLinn attempted to retrieve his personal items from the F350. Cox imposed himself between McLinn and the F350 and put his hand on his gun. Cox stood close to McLinn throughout the encounter. When it became clear to McLinn that he could not stop the tow, he attempted to go back inside to get dressed. Cox stopped him and demanded that McLinn confirm he was not going back inside to get a weapon. (Id. at 12-13.)
McLinn was not given any paperwork justifying the repossession. He continued to protest and demand that they leave, but Cox ignored his protests. The tow was completed and the F350 was removed from the property. Cox remained until the repossession was complete. (Id. at 13.)
According to the amended complaint, the towing insurance of Triple T/Ryburn had been canceled as of June 30, 2018, and was not effective again until June 30, 2019, such that Triple T/Ryburn was uninsured on August 10, 2018. (Id. at 14.)
When McLinn first called the Thomas County Sheriff‘s Office after the incident to complain about the repossession, Sheriff Nickols allegedly laughed and said he saw nothing wrong with what was done. (Id. at 15.)
On the same day the F350 was repossessed, the Thomas County Sheriff‘s Office represented to the Thomas County Attorney that Cox had been in possession of a court order allowing the repossession. The Thomas County Attorney took the position with McLinn that nothing wrong had been done because Cox was enforcing a valid court order in repossessing the F350. (Id. at 15-16.)
The amended complaint alleges that over the course of the last two years, McLinn “has repeatedly attempted to make and file a written complaint about the violation of his rights,” including “speaking directly with Nickols [and] the County Attorney,” but “his requests were denied.” (Id. at 16.)
The amended complaint also alleges that McLinn was “threatened with legal action for his repeated and detailed complaints to the Thomas County Attorney, Nickols,” and others. (Id. at 17.) In McLinn‘s calls to the Sheriff‘s Department, Nickols allegedly told him that if he continued to complain about the violation of his rights, they would charge him with harassment and threatened to arrest him for phone harassment. (Id. at 17, 22, 24)
The amended complaint contains the following claims, which, except as otherwise noted, are asserted against all Defendants. Count I asserts claims under
The defenses raised by Defendants in their motions to dismiss include failure to state a claim under
III. Standards
A. Rule 12(b)(6). In order to withstand a motion to dismiss for failure to state a claim, a complaint must contain enough allegations of fact to state a claim for relief that is plausible on its face. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). All well-pleaded facts and the reasonable inferences derived from those facts are viewed in the light most favorable to Plaintiff. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations, however, have no bearing upon the court‘s consideration. Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007). As the Tenth Circuit observed:
Determining whether a complaint contains enough well-pleaded facts sufficient to state a claim is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. The court must determine whether the plaintiff has pleaded enough facts to state a claim for relief that is plausible on its face, not just conceivable. Though a complaint need not provide detailed factual allegations, it must give just enough factual detail to provide fair notice of what the claim is and the grounds upon which it rests. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not count as well-pleaded facts. If, in the end, a plaintiff‘s well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint fails to state a claim.
Warnick v. Cooley, 895 F.3d 746, 751 (10th Cir. 2018) (citations and internal quotation marks omitted.)
B. Qualified Immunity. “Individual defendants named in a
When the defense of qualified immunity is asserted, a plaintiff must show: “(1) that the defendant‘s actions violated a federal constitutional or statutory right, and (2) that the right was clearly established at the time of the defendant‘s unlawful conduct.” Cillo, 739 F.3d at 460. For a right to be clearly established, the contours of that right must be “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “It is not enough that the rule is suggested by then-existing precedent.” Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018). The rule at issue “must be ‘settled law’ dictated by controlling authority or a ‘robust consensus of cases of persuasive authority.‘” Id. at 589-90 (citation omitted). This does “not require a case directly on point, but existing precedent must have placed the statutory
C. Kansas notice of claim requirement. Section
Kansas considers compliance with this provision jurisdictional in nature. “If the statutory requirements are not met, the court cannot acquire jurisdiction over the municipality.” Myers v. Bd. of Cty. Com‘rs of Jackson Cty., 280 Kan. 869, 877, 127 P.3d 319, 325 (2006). See also Whaley v. Sharp, 301 Kan. 192, 197, 343 P.3d 63, 67 (2014) (“Compliance with
IV. Analysis
A. Thomas County Defendants
1. Count I - Fourth & Fourteenth amendment breach of peace and repossession allegations against Cox. Defendants contend the amended complaint fails to allege facts showing a breach of the peace and, for that reason, fails to state a viable constitutional claim against Cox arising from the repossession. (Doc. 51 at 7-8.)
The Fourth Amendment protects individuals from “unreasonable ... seizures” by the federal government.
These constitutional restrictions generally apply only to actions taken under color of state or federal law, and for
Most states (including Kansas) have adopted UCC provisions allowing secured creditors to repossess property from a defaulting debtor without a judicial order if certain conditions are met. One of those conditions allows the creditor to take possession “if it proceeds without a breach of the peace.”
Taking the allegations in the amended complaint as true, Plaintiffs have stated a plausible claim for relief against Defendant Cox under the foregoing rule. The amended complaint adequately alleges that Cox affirmatively intervened on the side of Triple T/Ryburn and aided them in the repossession of the vehicle in the absence of any judicial order. Cox allegedly arrived with the repossessor; arranged for a backup officer to be present; entered the premises with the repossessor while McLinn was still inside a building on the property; ignored McLinn‘s demands that he and the repossessor leave his property; told McLinn he had to allow the repossession to proceed; physically imposed himself between McLinn and the F350; and remained on the premises until the repossession was complete. These allegations are sufficient to show state action regardless of whether Cox also repeatedly tapped or touched his gun during the encounter, as Plaintiffs allege. Cf. Marcus, 394 F.3d at 820 (“officers may not aid the repossessor in such a way that the repossession would not have occurred but for their assistance.“)
In view of the fact that due process generally requires notice and a right to be heard before a state can deprive a person of property, Cox‘s assistance
The leading Kansas case on breach of the peace is Benschoter v. First Nat‘l Bank of Lawrence, 218 Kan. 144, 542 P.2d 1042 (1975), where a creditor was told by a defaulting debtor that it could “come on out and get” the collateral. When the creditor arrived, the debtor was not at home, and the creditor obtained the collateral by asking the debtor‘s 17-year old son to open a gate. The Kansas Supreme Court rejected an argument that this was a breach of the peace through “stealth,” finding a debtor‘s lack of knowledge of the repossession does not make a repossession unlawful. Benschoter, 750 P.2d at 1050. The court applied a test for breach of the peace that examined “whether there was entry by the creditor upon the debtor‘s premises” and “whether the debtor or one acting on his behalf consented to the entry and repossession.” Id. (citing J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code at 966-75 (West 1972)). A subsequent case, which also cited the White & Summers’ consent test, made clear that forced entry of a building is a breach of the peace. Riley State Bank of Riley v. Spillman, 242 Kan. 696, 705, 750 P.2d 1024, 1030 (1988).
In another case, the Kansas Court of Appeals found no breach of the peace where a creditor successfully repossessed a car from a debtor‘s driveway at 2:00 a.m. Although the debtor had previously threatened to use a firearm if the creditor tried to take the car, a month after that threat the creditor was able to take the car before the debtor realized what had happened. Wade v. Ford Motor Credit Co., 8 Kan. App. 2d 737, 739, 668 P.2d 183, 185 (1983), rev. denied, 234 Kan. 1078 (1983). In finding there was no breach of the peace, the court downplayed the issue of consent – noting a debtor‘s consent was not required for a lawful repossession – and cited several cases examining whether there was a confrontation between the creditor and debtor at the time of repossession. See id., 668 P.2d at 187-189. The court stated that a breach of the peace “may be caused by an act likely to produce violence,” but noted the repossession in that case was accomplished without incident and with the debtor “totally unaware of the repossession until [the creditor] had successfully left the premises with the car.” Id., 668 P.2d at 189.
The court concludes the allegations in the amended complaint plausibly allege a breach of the peace under Kansas law. The amended complaint describes a confrontation between McLinn, Cox, and Triple T/Ryburn in which the latter two entered upon Plaintiffs’ property without his consent and after Ryburn had been told to stay off the property. McLinn confronted the individuals when he discovered them on the property and demanded they leave; Cox and Ryburn ignored McLinn‘s demands that they cease the repossession and leave his property; McLinn was “agitated and yelling” these demands; Cox instructed
2. Count I - Deputy Cox – qualified immunity. Defendants argue “[i]t is not clear at all that Deputy Cox breached the peace, which means that it is also not clearly established that Deputy Cox‘s conduct was unconstitutional.” (Doc. 51 at 14.) Although this presents a close question, the court concludes Cox is not entitled to qualified immunity under the allegations in the amended complaint.
The law in the Tenth Circuit was clearly established at the time of the incident that an officer at a private repossession may act to keep the peace, but “they cross the line if they affirmatively intervene to aid the repossessor.” Marcus, 394 F.3d at 818. See also Evers v. Bd. of Comm‘rs of Torrance Cty., 2008 WL 11451364, *14 (D. N.M. Sept. 30, 2008) (“The law was unquestionably clear in March, 2004, that a police officer‘s assistance in a private party‘s seizure of property violates the Fourth Amendment.“) Applying this rule, Marcus denied qualified immunity to officers who “assumed, without good evidence, that [the repossessor] had a repossessory right to the [vehicle] and, through physical action and verbal threats, dissuaded plaintiffs from continuing their resistance to the repossession.” Marcus, 394 F.3d at 824. In Price-Cornelison v. Brooks, 524 F.3d 1103, 1118 (10th Cir. 2008), the Tenth Circuit denied qualified immunity to a sheriff who, confronted with a complainant‘s allegation that her former domestic partner was improperly removing property from her home, told the complainant the partner could remove whatever property she wanted (because of community property laws) and threatened to arrest the complainant if she returned to her home. The Tenth Circuit concluded, based on Marcus, that the
Cox argues that the vague contours of a “breach of the peace” means he is entitled to qualified immunity. It is true that the term lacks a clear or easily applied definition. See Riley State Bank of Riley v. Spillman, 242 Kan. 696, 704, 750 P.2d 1024, 1030 (1988) (“The drafters of the UCC did not define the term ‘breach of the peace,’ purposefully leaving such definition to the courts.... There has been little caselaw in Kansas on what constitutes a breach of the peace; our definition of the term is thus largely incomplete.“) But Marcus found the law was clearly established and denied qualified immunity under similar circumstances, focusing on the officers’ unfounded assumption that the repossessor was entitled to possession of the vehicle and their use of police authority to aid the repossessor. See Marcus, 394 F.3d at 824 (citing Abbott v. Latshaw, 164 F.3d 141, 149 (3d Cir. 1998) for the proposition that “reasonable police officers should know from established precedent ‘that their role is not to be participants in property deprivations without notice and an opportunity to be heard.‘“) This case is materially indistinguishable from Marcus. Cox argues that differences between the Oklahoma UCC at issue in Marcus and the Kansas UCC applicable here means the law governing Cox‘s conduct was not clearly established. (Doc. 51 at 10-11.) But the Kansas UCC, like the Oklahoma UCC, “does not authorize a secured party who repossesses without judicial process to utilize the assistance of a law enforcement officer.”
Taking Plaintiffs’ allegations as true and viewing them in the light most favorable to Plaintiffs, they show that Cox, contrary to clearly established law, affirmatively intervened to aid the repossessor and asserted his authority to overcome McLinn‘s objections, all in the absence of any court order, and thereby allowed Triple T/Ryburn to accomplish an unlawful repossession. Similar to Marcus, Cox assumed without a court order that Ryburn had a right to take the F350. Cox prevented McLinn from halting the repossession and deterred him from continuing to object by ignoring his demands to leave the property, by interposing himself physically near McLinn, and by directing McLinn to allow the repossession to proceed. A reasonable officer in those circumstances would understand that intervening on the side of the repossessor in this manner was contrary to the rule set forth in Marcus.
3. Count I - Sheriff Nickols – individual liability for repossession. Nickols argues the amended complaint fails to state a claim against him in his personal capacity for the allegedly unlawful repossession. (Doc. 51 at 15.) Plaintiffs fail to contest this argument. (See Doc. 73.) The court accordingly grants the motion as uncontested.
4. Count I - Sheriff Nickols – deprivation of First Amendment rights. Count I includes allegations that Nickols deprived McLinn of First Amendment rights by threatening to “arrest him for phone harassment for attempting to petition” and by threatening to charge him criminally “if [McLinn] continued to attempt to redress his grievances against them....” (Doc. 45 at 22, 24.)
Nickols argues, among other things, that the allegations fail to state a viable First Amendment claim because they do not allege that McLinn was unable to petition the County Defendants. (Doc. 51 at 17-18.) Additionally, Nickols argues he is entitled to qualified immunity insofar as the claim
The First Amendment provides in part that “Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances.”
Nickols argues Plaintiffs have failed to allege an injury sufficient to state a claim because the alleged threat to arrest McLinn “was not realistic” and did not stop McLinn from complaining. (Doc. 75 at 9.) Assuming a threat to prosecute or arrest must be realistic in order to satisfy the second element of Van Deelen (see Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th Cir. 2004) (a realistic threat of arrest is enough to chill First Amendment rights)), Nickols has not shown an entitlement to dismissal on that basis. At the pleading stage, all well-pleaded facts and the reasonable inferences therefrom are viewed in Plaintiffs’ favor. Nothing in the amended complaint shows the alleged threats to arrest McLinn or to charge him with harassment could not plausibly be considered realistic. Moreover, the mere fact that McLinn may have continued to complain even after the alleged threats does not preclude a claim for retaliation as a matter of law. Cf. Smith v. Plati, 258 F.3d 1167, 1177 (10th Cir. 2001) (“The focus is upon whether a person of ordinary firmness would be chilled, rather than whether the particular plaintiff is chilled.“) (italics in original); Jiron v. Roth, ___ F. Supp. 3d ___, 2021 WL 601833, *19 (D. N. M. Feb. 16, 2021) (“The Supreme Court has held that ‘the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation’ curtails the freedom of speech just as effectively as an actual sanction.“) (citations omitted.)
Nevertheless, Plaintiffs have not shown that Nickols’ alleged conduct violated clearly established law. In arguing otherwise, Plaintiffs rely on Van Deelen for the premise that “intimidating a citizen with an idle threat” is sufficient to deny qualified immunity, as Van Deelen explained that “the right at issue – to petition the government for the redress of tax grievances – has been with us and clearly established since the Sons of Liberty visited Griffin‘s Wharf in Boston.” [i.e., the
5. Count I - against Nickols in his official capacity. Defendants argue the amended complaint contains only conclusory allegations that official policies or customs of Sheriff Nickols caused a deprivation of Plaintiffs’ rights, such that the official capacity claims against Nickols should be dismissed.3 (Doc. 51 at 22.) Plaintiffs respond that this “is a red herring” because Nickols is the final policymaker for the county, such that his actions represent established policies of the sheriff‘s department. (Doc. 73 at 26-27.)
A local government may be liable under
A municipal policy or custom may take the form of (1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that ... 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; (4)
the ratification by such final policymakers of the decisions—and the basis for them—of subordinates to whom authority was delegated subject to these policymakers’ review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.
Crittenden v. City of Tahlequah, 786 F. App‘x 795, 800 (10th Cir. 2019) (citing Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010)). Kansas law generally vests county sheriffs with
authority over law enforcement decisions, making sheriffs the final policymakers for the county on law enforcement matters. See Dechant v. Grayson, No. 20-2183-HLT, 2021 WL 62380, *3 (D. Kan. Jan. 7, 2021). It is not enough, however, for a
Plaintiffs’ response argues that three actions by Nickols constitute policies that support Monell claims. First, Plaintiffs assert that Nickols’ actions “permitting deputies to help private actors ensure successful repossession of others’ property without a court order” support a claim. (Doc. 73 at 27.) But the amended complaint fails to allege facts showing the existence of such a policy. It does not allege that Nickols was involved in the repossession of Plaintiffs’ truck, and it only vaguely alludes to “other claims based on similar facts being brought against other members of the Thomas County‘s Sheriff‘s Department.” (Doc. 45 at 21.) Conclusory allegations of unspecified other claims are insufficient to state a plausible claim for relief under Monell.4 Moreover, assuming this claim relies on a theory that Nickols subsequently ratified Cox‘s actions during the repossession, that would not aid Plaintiffs because any after-the-fact ratification could not have been the cause of the deprivation claimed by Plaintiffs. See e.g., Feliciano v. City of Cleveland, 988 F.2d 649, 656 n.6 (6th Cir. 1993) (“even if it were shown that the municipality subsequently ratified the decision, the plaintiffs would then have to prove that the ratification was
a ‘moving force’ in causing the constitutional violation.“) Second, Plaintiffs assert a policy based on Nickols’ actions in “retaliating against citizens who complain.” (Doc. 73 at 27.) Again, no other instances of retaliation are identified in the amended complaint. But insofar as the amended complaint alleges that Nickols himself threatened to arrest or to charge McLinn, such a decision by the county‘s final policymaker on law enforcement matters could qualify as an official policy of the county for purposes of a Monell claim. As to that claim, the court rejects Defendants’ argument that Plaintiffs have failed to plausibly allege a policy or facts showing the policy caused a constitutional deprivation. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (“If the decision to adopt [a] particular course of action is properly made by that government‘s authorized decisionmakers, it surely represents an act of official government ‘policy’ as that term is commonly understood.“) Finally, Plaintiffs assert a Monell claim based on Nickols’ actions in “lying to hide an officer‘s unconstitutional actions.” (Doc. 73 at 27.) The court concludes this assertion fails to support any Monell claim. Even assuming the truth of the allegation that Nickols lied when he said Cox had a court order authorizing the repossession, Plaintiffs fail to articulate how such an action caused them to be deprived of a constitutional right. Accordingly, Nickols’ motion to dismiss the official capacity claims against him is granted in part and denied in part.
6. State law claims – notice-of-claim. The Thomas County Defendants argue the state law claims should be dismissed for lack of jurisdiction because Plaintiffs did not provide notice of the claims as required by
In Myers, the Kansas Supreme Court rejected an argument that sending a claim letter to a county counselor constituted substantial compliance under
If the statutory requirements are not met, the court cannot acquire jurisdiction over the municipality. Allowing a claimant to serve notice on a county counselor or anyone else who is not the ‘clerk or governing body of the municipality’ as specified in [the statute] would violate the clear language in [
K.S.A. 12-105b ]. The ‘substantial compliance’ language does not authorize the court to create new methods of serving notice of claim.
Myers, 127 P.3d at 325. Under this rule, Plaintiffs’ purported attempts to serve notice of his claims upon the Thomas County Sheriff did not constitute substantial compliance. For a county, the term “governing body” means the board of county commissioners.
commissioners, nor do they allege facts showing they could not reasonably
B. Defendants Ryburn/Triple T. Towing
1. Count I - Section 1983 claim against Ryburn/Triple T - repossession. Defendants argue the amended complaint fails to state a claim against Ryburn6 under
“[T]o hold a private individual liable under
§ 1983 , it must be shown that the private person was jointly engaged with state officials in the challenged action, or has obtained significant aid from state officials, or that the private individual‘s conduct is in some other way chargeable to the State.” Counce v. Wolting, 760 F. App‘x 575, 580 (10th Cir. 2019) (quoting Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (internal quotation marks omitted)). The individual must be a “willful participant in joint action with the State or its agents.” Beedle v. Wilson, 422 F.3d 1059, 1071 (10th Cir. 2005).
The court rejects the contention that Ryburn‘s status as a private individual means he cannot be liable on the
Cox aided Ryburn by positioning himself near McLinn, by ignoring McLinn‘s demands to leave the property, and by instructing McLinn that he had to let the repossession go through; and that Cox remained on the scene near McLinn until the repossession was complete. These allegations are sufficient to plausibly show joint engagement between Ryburn and Cox and/or that Ryburn obtained significant aid from Cox, in what was essentially a joint venture to seize the vehicle without a court order. Plaintiffs have adequately alleged that Ryburn acted under color of state law. Dennis v. Sparks, 449 U.S. 24, 27 (1980) (“[T]o act ‘under color of state law for
With respect to Defendants’ argument that McLinn lacks standing to assert a
3. Trespass and conversion. Defendants argue Ryburn did not commit a trespass or conversion because he was authorized to enter the property to repossess the F350 pursuant to
because Plaintiffs consented to the repossession through the loan agreement. (Id. at 13.) The court rejects these arguments.
Defendants’ contention that
Plaintiffs’ purported consent in the security agreement likewise does not preclude a claim for trespass or conversion. As Plaintiffs point out, Kansas law provides that a debtor may not waive the provisions of
4. Improper repossession under the UCC. Count IV alleges that the repossession was unlawful under the requirements of
UCC provisions do not place any duty on Triple T/Ryburn because they are not creditors. (Doc. 47 at 14.)
Plaintiffs cite no authority showing a right to damages against Triple T/Ryburn for any violation of the UCC. Instead, Plaintiffs simply argue the court “should not give countenance” to Defendants’ arguments. (Doc. 58 at 24.) But Plaintiffs have identified no provision of the Kansas UCC or Kansas law authorizing a claim for damages against the agent of a secured creditor in these circumstances. The provision allegedly violated,
5. Breach of contract. Defendants next argue the amended complaint fails to state a valid claim for breach of contract against Ryburn/Triple T because they were not a party to any contract with Plaintiffs. (Doc. 47 at 15.) Plaintiffs’ response again invokes the same UCC provisions cited above. (Doc. 58 at 25.) Plaintiffs also assert arguments that appear to have nothing to do with the existing contract between FSB and Plaintiffs. See id. (“The fact that Triple T held itself out as a professional towing enterprise seems particularly inconsistent with the notion it should not have been expected to complete its performance in a workmanlike and legal manner.“)
A claim for breach of contract in Kansas requires, among other things, a showing of “the existence of a contract between the parties.” Stechschulte v. Jennings, 297 Kan. 2, 298 P.3d 1083 (2013). Plaintiffs have not alleged there was any contract between them and Ryburn/Triple T. The motion to dismiss the breach of contract claim against Ryburn/Triple T is granted.
6. Negligent and intentional infliction of emotional distress. Defendants argue Count VI fails to state a claim for intentional or negligent infliction of emotional distress because it does not allege the type of “extreme and outrageous” facts or the “extreme and severe” emotional distress required for a claim in Kansas. (Doc. 47 at 16.) They additionally contend the allegations fail to state a claim for negligent infliction of emotional distress because Plaintiffs fail to allege a physical injury associated with the distress. (Id. at 17.) The court agrees and concludes the claim must be dismissed.
A claim for intentional infliction of emotional distress – or “outrage” – under Kansas law requires proof of four elements: (1) The conduct of the defendant was intentional or in reckless disregard of the plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the defendant‘s conduct and the plaintiff‘s mental distress; and (4) the plaintiff‘s mental distress was extreme and severe. Valadez v. Emmis Commc‘ns, 290 Kan. 472, 476, 229 P.3d 389 (2010). There are two threshold requirements that must be met: (1) whether “[D]efendant‘s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery,” and (2) whether “the emotional distress suffered by Plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it.” Id. at 477, 229 P.3d 389. Kansas also permits recovery for the negligent infliction of emotional distress, but courts have “long held that a plaintiff cannot recover for emotional distress caused by the defendant‘s negligence unless that emotional distress is
accompanied by or results in physical injury to the plaintiff.” Majors v. Hillebrand, 51 Kan. App. 2d 625, 628, 349 P.3d 1283, 1285 (2015) (citing Hoard v. Shawnee Mission Med. Ctr., 233 Kan. 267, 274, 662 P.2d 1214 (1983)). “The qualifying physical injury ‘must directly result from the emotional distress allegedly caused by the defendant‘s
Plaintiffs rely principally on the allegations of an unauthorized and unlawful repossession to support the claims for infliction of emotional distress. (Doc. 45 at 36.) Additionally, they allege that Ryburn “posted at least one photograph of [the F350] on SnapChat,” “told several members of the community about the repossession” and about McLinn‘s payment history, and “shout[ed] names at McLinn on a public street” after the repossession. (Doc. 45 at 18-19.) These allegations are insufficient under Kansas law to support a claim for intentional or negligent infliction of emotional distress. “In order to provide a sufficient basis ... conduct must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society.” Valadez, 229 P.3d at 394 (citation omitted.) “Conduct that rises to the level of tortious outrage must transcend a certain amount of criticism, rough language, and occasional acts and words that are inconsiderate and unkind. The law will not intervene where someone‘s feelings merely are hurt.” Id. Defendants’ alleged actions, even if improper, do not come close to the level of “extreme and outrageous” conduct that Kansas courts find necessary to support a claim. See e.g., Neufeldt v. L.R. Foy Const. Co. Inc., 236 Kan 664, 668, 693 P.2d 1194, 1198 (1985) (knowingly and falsely telling a woman who recently suffered a miscarriage that the sheriff was coming to get her husband over a bad check was not sufficient); W-V Enter., Inc. v. Fed. Sav. & Loan Ins. Corp., 234 Kan 354, 673 P.2d 1112 (1983) (although defendant‘s conduct was “fraudulent and deceptive” it did
not meet the definition of outrageous). Additionally, Plaintiffs’ allegations fail to show a physical injury directly resulting from the emotional distress within a short time after the emotional disturbance. Plaintiffs merely allege that distress caused by Defendants “has and continues to exacerbate a back injury McLinn sustained when a debtor fractured one of his vertebrae during a repossession.” (Doc. 45 at 19.)
V. Conclusion
The Thomas County Defendants’ (Cox, Nickols, Thomas County Sheriff‘s Department, and Thomas County Board of County Commissioners) motion to dismiss (Doc. 50) is GRANTED IN PART and DENIED IN PART. The motion is GRANTED insofar as Count I alleges a
Defendants’ Ryburn and Triple T Towing‘s motion to dismiss (Doc. 46) is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to Count IV (improper repossession under the UCC), Count V (breach of contract), and Count VI (negligent and intentional infliction of emotional distress); the foregoing claims against Ryburn and Triple T Towing are DISMISSED. The motion is DENIED as to Count I (
FSB‘s motion to dismiss (Doc. 52) is DENIED without prejudice to reassertion based on the parties’ notice of settlement.
Plaintiffs’ motions for hearing (Doc. 71) and to file a surreply (Doc. 77) are DENIED.
IT IS SO ORDERED this 26th day of April, 2021.
s/ John W. Broomes
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE