LAKEDA DIXON, individually, and as The Next Friend and Mother of Jayleon and Kyla Dixon, and as Special Administrator of the Estate of Jerome Dixon, deceased, Plaintiff,
CITY OF WICHITA, KANSAS; CITY OF WICHITA POLICE DEPARTMENT OFFICERS MYKE BROWN, BADGE #C2207, a/k/a John Doe Officer #1, and KEVIN MCKENNA, #C2221, a/k/a/ John Doe Officer #2, Defendants.
MEMORANDUM AND ORDER
Richard D. Rogers, United States District Judge
Plaintiff brings this action against City of Wichita and two Wichita police officers for damages arising from the shooting of her husband, Jerome Dixon, by the officers on November 5, 2010. Plaintiff brings this action individually and as the next friend and mother of Jayleon Dixon and Kyla Dixon and as the special administrator of the estate of Jerome Dixon. This matter is presently before the court upon defendants' motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims."Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003). In determining whether a claim is facially plausible, the court must draw on its judicial experience and common sense. Iqbal, 556 U.S. at 678. All well-pleaded facts in the complaint are assumed to be true and are viewed in the light most favorable to the plaintiff. See Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). Allegations that merely state legal conclusions, however, need not be accepted as true. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
In her amended complaint, plaintiff alleges that two law enforcement officers shot and killed her husband as he stood in the doorway of their apartment. She asserts that the officers did so without warning and without valid reason to suspect that he had committed, or was committing, a crime at the time. She further alleges she and her daughters were then illegally detained at the police station for a lengthy period. The complaint contains eight counts.
The defendants challenge various aspects of six counts of plaintiff's amended complaint. The defendants contend that (1) Count 1 should be dismissed to the extent that it asserts a claim under the Fourteenth Amendment; (2) Counts 2 and 3 against the City of Wichita should be dismissed for failure to state a claim under 42 U.S.C. § 1983; (3) Count 5, which asserts a state law claim of false imprisonment, should be dismissed because it is barred by the statute of limitations; (4) plaintiff's claims against the individual officers in their official capacities should be dismissed as redundant; (5) Count 7 should be dismissed for failure to state a claim of negligent infliction of emotional distress; and (6) Count 8, which states in part a claim of intentional infliction of emotional distress based on the City's failure to release the identities of the officers, should be dismissed because it fails to state a claim. Finally, the City asserts that any claim made by the plaintiff against it for punitive damages must be dismissed.
Plaintiff has agreed with several of the arguments raised by the defendants. Plaintiff concurs that (1) her state law claim of false imprisonment is barred by the statute of limitations; (2) her claims against the officers in their official capacities should be dismissed as redundant; and (3) her claim of intentional infliction of emotional distress based upon the City's failure to identify the officers is now moot and should be dismissed. She further states that she had no intention of seeking punitive damages from the City. She notes that her amended complaint only seek punitive damages "as warranted" and she recognizes that municipalities are immune from the imposition of punitive damages under 42 U.S.C. § 1983.
With these concessions, the court shall grant defendants' motion in the following ways: (1) plaintiffs state law claim of false imprisonment is barred by the statute of limitations; (2) plaintiffs claims against the individual officers in their official capacities are dismissed; (3) plaintiffs claim of intentional infliction of emotional distress based upon the City's failure to identify the officers is dismissed; and (4) any claim of punitive damages against the City, to the extent that one was even asserted, is dismissed. The court will now consider the remaining issues raised by the defendants' motion.
The defendants contend that Count 1 of plaintiffs amended complaint must be dismissed to the extent that attempts to assert a claim under the Fourteenth Amendment. The defendants assert that since plaintiff has alleged that her husband was "seized"by the officers, then her claim must be analyzed under the Fourth Amendment. Plaintiff counters that she understands that the claim alleged in Count 1 of her amended complaint should be analyzed under the Fourth Amendment. However, she states that Count 1 included a reference to the Fourteenth Amendment only because the due process rights of the Fourteenth Amendment allow her to enforce the prohibitions found in the Fourth Amendment.
A. Count 1--Fourteenth Amendment
The court understands the arguments raised by the parties. There does not appear too much in dispute. Both sides appear to agree that Fourth Amendment legal standard governs plaintiff's excessive force claim. As such, the court sees no need to dismiss the allegation of the Fourteenth Amendment in Count 1. The Fourteenth Amendment governs both excessive force claims occurring during a "seizure"within the meaning of the Fourth Amendment, because the Fourth Amendment is incorporated against the states through the Fourteenth, see Wolf v. Colorado, 338 U.S. 25, 27-28 (1949), and excessive force claims that occur outside of the scope of a "seizure"effected by law enforcement, see County of Sacramento v. Lewis, 523 U.S. 833, 843-45 (1998); see also Graham v. Connor, 490 U.S. 386, 388 (1989)(the Fourth Amendment governs "claim[s] that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other 'seizure' of his person”). The parties agree that the Fourth Amendment standard, as incorporated against the states in the Fourteenth Amendment, governs plaintiff's claim because the plaintiff alleges that the officers were using intentional means to "seize"Mr. Jones' person. See Lewis, 523 U.S. at 844 ("[A] Fourth ...