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Ward v. Lenexa, Kansas Police Department

United States District Court, Tenth Circuit

November 18, 2013

KEVIN WARD, et al., Plaintiffs,
v.
LENEXA, KANSAS POLICE DEPARTMENT, et al., Defendants.

MEMORANDUM AND ORDER

Kathryn H. Vratil United States District Judge

Kevin Ward and Desta Yilala bring suit pro se against the Police Department of Lenexa, Kansas and Marcus Hefley, Nicholas Vajen and James Befort, all Lenexa police officers, for violation of constitutional rights. This matter comes before the Court on Ward’s Motion To Sever (Doc. #64) filed October 24, 2013, which the Court also construes as a motion to supplement the pretrial order. For reasons stated below, the Court sustains the motion in part.

I. Procedural Background

On January 13, 2012, plaintiffs filed their complaint in this case. See Doc. #1. Plaintiffs allege as follows: Plaintiffs are both black men who were employed by Ray’s Breakfast and Burgers (“Ray’s Breakfast”), 7820 Quivira Road, Lenexa, Kansas.[1] Id. at 1. On several visits to the establishment, Officers Hefley and Befort informed Ward that a nearby resident – who was known to make false reports to police – had complained about loud noise coming from the restaurant/night club. Id. at 2. In investigating the complaints, defendants ignored the Lenexa municipal code regarding noise limitations. Id. Defendants used discriminatory tactics to shut down Ray’s Breakfast and to cause Ward to almost lose his security guard license. Id. Specifically, defendants arrested Ward and charged him with disturbing the peace when they knew that he did not own the restaurant and that unless he did, he could not be held accountable for the allegations. Befort made racially inflammatory statements to Ward by stating that the complainant was “a mature white resident of Lenexa [who] should not have to hear your boom-boom music coming through her window at night.” Id. at 3. Defendants frequently visited the establishment and continually harassed plaintiffs and patrons. Id. at 5. Defendants’ actions caused Yilala to lose his business, both plaintiffs to lose their place of employment, and Ward to go through a municipal adjudication that was premised on prejudice. Id. at 5-7. As a result of the ticket which Ward received for disturbing the peace, Ward lost his employment at Ray’s Breakfast. Id. at 6-7. Defendants’ actions violated plaintiffs’ constitutional rights under the Fourteenth Amendment to equal protection and due process. Id. at 9. Plaintiffs seek compensatory and punitive damages. Id. at 10-11.

On October 7, 2013, the Court entered a pretrial order (Doc. #62), which describes the nature of the case as follows:

Plaintiffs bring this action pursuant to 42 U.S.C. § 1983, alleging violation of their equal protection rights under the Fourteenth Amendment of the United States Constitution. Plaintiffs’ complaint is premised upon events that occurred at the business located at 7820 Quivira Road in Lenexa, Kansas, between 2009 and December 2011, when plaintiffs were working at that location. Specifically, plaintiffs contend the business was searched several times without a warrant and that the business was closed by officers before the end of business hours, which ultimately resulted in them being forced to close the business.

Pretrial Order (Doc. #62) at 1-2.[2]

Regarding plaintiffs’ factual contentions, the pretrial order largely tracks the allegations set forth in the complaint. In a footnote, the pretrial order states as follows:

During the pretrial conference, there was considerable discussion about whether the claims plaintiffs proposed to include in this pretrial order went beyond what they alleged in their complaint (doc. 1) and thus beyond what defendants inquired about when they deposed plaintiffs (see also paragraph 12 below).[3]Accordingly, in paragraph 5(a) of this pretrial order, the court has simply stated, with very minor editing for the sake of clarity, the allegations as they appear in plaintiffs’ complaint.
It should also be noted here that, after the pretrial conference (as is customary), Judge O‘Hara circulated a revised form of [the] pretrial order to the pro se plaintiffs and defense counsel. In response to that revised document, plaintiff Yilala sent a letter to the court but it did not make any sense. Plaintiff Ward, though, did timely suggest that the crux of his factual contentions be summarized as follows:
Plaintiff Kevin Ward asserts that the actions of Officer Marcus Hefley and James Befort was [sic] in direct violation of Mr. Ward’s Constitutional Rights under the Fourteenth Amendment. That equal protection of the law forbids discrimination or unequal treatment of the law that is unjustified.
On April 17th 2011, Officers were dispatched from the Lenexa Kansas Police Department to investigate a noise complaint. Private Officer Kevin Ward was one of two Security Agents on duty that night. Both Mr. Ward, and the other Security Agent were commissioned with security certificates signed by the Chief of Police. That authorized them to perform as armed, uniformed, security officers, specifically assigned to that location at 7820 Quivira Road.
These Officers denied and refused Mr. Ward the same and equal treatment that was extended to and afforded the opposing party of that complaint, before filing an arrest report, entering Mr. Ward into the National Crime Information Center Data base (NCIC) and charging him with the crime of Disturbing the Peace for the music coming out of the night club. The actions of these Officers also caused the Kansas City Mo. Police Department Private Officers ...

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