MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
The issues in this case arise from an incident where the police officer-defendant allegedly "stomped" on plaintiff's leg while placing him under arrest, breaking plaintiff's tibia and fibula. Plaintiff was granted leave to amend his complaint to include claims of negligent use of force and negligent infliction of emotional distress. Notably, plaintiff did not include a battery claim in his pleadings-presumably because it would have been time-barred by the applicable statute of limitations. The case is now before the court on defendants' motion to dismiss the negligence claims and review the magistrate judge's order granting leave to amend the complaint (Doc. 42).
I. FACTUAL BACKGROUND
This case arises from events of September 2, 2010, when plaintiff Lennon Price ("Price") alleges defendant Officer Mark McKee ("McKee") of the Wichita Police Department arrested him for a misdemeanor traffic warrant at approximately 12:30 a.m. (Doc. 41 at ¶ 12.) Price alleges he did not resist arrest, and that McKee "stomped" on Price's leg, breaking the tibia and fibula. ( Id. at ¶¶ 15, 18.) Price contends that "[g]reat force is required to break both the tibia and fibula bones." ( Id. at ¶ 19.) He also alleges that his wife asked McKee why he broke Price's leg, and McKee responded that Price "tried to run so he hit him with his billy club." ( Id. at ¶ 20.) The amended complaint also states that Price required two surgeries to repair his leg, which involved approximately eleven screws and a metal plate. ( Id. at ¶ 22.)
In Count 2 of the amended complaint, Price contends that McKee negligently used excessive or unreasonable force while placing him under arrest. ( Id. at ¶ 30.) In his response to the motion to dismiss, Price clarifies that McKee did not commit battery against Price because he lacked intent to injure; rather, Price asserts that McKee intended only to "trip" Price in order to gain control and effectuate the arrest. (Doc. 20 at 20.) Price suggests that McKee's actions could have been negligent because he may have "accidentally injure[d] Mr. Price by using an unreasonable amount of force." ( Id. ) But these allegations are not contained in the amended complaint itself, and the court therefore does not consider the allegations contained in Price's brief instead of his complaint.
In Count 7 of the amended complaint, Price alleges that McKee negligently inflicted emotional distress upon Price. (Doc. 41 at ¶ 35.) Price contends that the visual image of his broken leg caused him "emotional distress and mental pain, " and that he "suffered injuries" as a direct result of McKee's actions. ( Id. at ¶¶ 35, 37.)
Price filed his Original Complaint in Sedgwick County District Court on August 31, 2012. Magistrate Judge Waxse found that Price's amended complaint-filed February 22, 2013-related back to the Original Complaint's filing date under Federal Rule of Civil Procedure 15(c). (Doc. 35 at 9.) The Original Complaint's filing date is within two years of the date of the incident, and Judge Waxse acknowledged that "plaintiff has pled all the elements of a negligence claim" in the amended complaint. ( Id. at 6.) The magistrate judge therefore found that the negligence claims included in the amended complaint were not barred under Kan. Stat. Ann. § 60-513(a)(4), which provides a two-year statute of limitations for negligence claims. Defendants did not contest the inclusion of the negligent infliction of emotional distress claim at the time Price sought leave to amend his complaint. ( Id. at 1.)
Defendants now ask the court to dismiss the negligence claims in Price's amended complaint and/or review the magistrate judge's order permitting Price leave to amend his complaint. Defendants contend that these negligence claims are in substance battery claims, and are therefore subject to a one-year statute of limitations instead of a two-year statute.
II. MOTION TO DISMISS
A. Standard of Review
Under Federal Rule of Civil Procedure 12(b)(6), a complaint must allege sufficient facts- viewed in a light most favorable to the plaintiff-to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Recounting a cause of action's elements in a conclusory legal nature is insufficient. Id. A complaint that does not state a plausible claim upon which the plaintiff may recover should be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
B. Negligent Use of Force Claim
First, the court reviews Price's claim for negligent use of force. In form, Price pleads all elements required of a negligence claim. Price alleges: (1) McKee owed him a duty; (2) McKee's breach of this duty was the cause of Price's harm; and (3) the damage resulting to Price's leg was the result of McKee's negligence. But Price's technical pleading does not matter if Kansas does not recognize the tort of negligent use of force. Kansas courts look to the substance of a claim rather than the manner in which the claim is pleaded. Baska v. Scherzer, 156 P.3d 617, 622 (Kan. 2007). A court is "not bound by the claims as set forth in the petition, " but looks to the substance of the claims to determine the manner in which to adjudicate them. Id. at 622. In other words, alleging "negligence does not turn an intentional tort into negligent conduct." Benavidez v. United States, 177 F.3d 927, 931 (10th Cir. 1999). If, in fact, Price's claim is a battery claim in disguise, then it is barred by the one-year statute of limitations and must be dismissed. The court therefore turns to this question.
Battery is an intentional act. Specifically, the Kansas pattern jury instructions define battery as "the unprivileged touching or striking of one person by another, done with the intent of bringing about either a contact or an apprehension of contact, that is harmful or offensive." PIK Civ. 3d 127.02. In contrast, a claim of negligence requires the plaintiff to show: (1) defendant was under a duty to act; (2) a causal connection between the duty breached by defendant and plaintiff's injury; and (3) damage resulted from defendant's negligence. Woodruff v. City of Ottawa, 951 P.2d 953, 954 (Kan. 1997). The principle distinction ...