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Cruz v. City of Merriam

United States District Court, District of Kansas

May 14, 2014

Fabiola Cruz, Plaintiff,
City of Merriam, Kansas, et al., Defendants.



Fabiola Cruz worked as the Lead Clerk for the City of Merriam, Kansas Municipal Court until her termination. After her departure, the City began to investigate reports of funds missing from the court. City officials later referred the matter to the Merriam Police Department for additional investigation. Cruz was eventually charged with embezzlement, but the case was dismissed prior to trial. She then instituted the present action under 42 U.S.C. § 1983 against the City of Merriam, as well as various individual City officers. Cruz has advanced claims under 42 U.S.C. § 1983 for (1) unlawful arrest and detention, (2) denial of due process and malicious prosecution, (3) conspiracy, (4) violation of equal protection, and (5) unconstitutional policies and procedures. The defendants have moved to dismiss the claims advanced in Cruz’s First Amended Complaint as conclusory and insufficient under Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), as well as for additional specific rationales. For the reasons provided herein, the court grants in part and denies in part the defendants’ motion.

The Plaintiff’s Allegations

Cruz alleges in the First Amended Complaint that she began working for the City as a municipal court clerk in 2002. She became Lead Clerk of the Municipal Court in 2004. In this position, Cruz processed all incoming court payments, cash bonds and bond forfeitures. She also balanced and prepared deposits from court transactions. However, Cruz was not the only one in the office who handled such incoming funds. Before her termination on September 1, 2010, she received no negative employment evaluations.

Cruz alleges that she from time-to-time received “various negatively-tinged comments and statements” from unidentified “employees of The City of Merriam Municipal Court.” These comments and statements related to “the way in which she spoke and her international accent, ” as well as “the manner in which she dressed and her ability to afford so-called ‘fashionable’ or so-called ‘high-end’ clothing and other retail items.” (¶¶ 25, 26).

On September 1, 2010, Cruz was informed of allegations that she had not been actually performing work for an entire day. According to Cruz, she was told that she had until September 3, 2010, to provide proof she had been working full days. Cruz indicated that such proof would be hard to obtain, and was told she needed to supply such proof, or resign. Cruz resigned.

The Complaint alleges that no one else received such a notice, but it does not directly allege that any other specific individuals were similarly situated in their failure to work full days. Cruz generally claims that she was singled out by City Administrator Phil Lammers and Karen Kline, the City Human Resources Director, for allegedly keeping false time records. The City hired defendant Sheila Sheridan as Cruz’s replacement.

After her resignation, the defendants began to investigate money missing from the municipal court. The defendants reported Cruz had stolen money from the court, including court fees and bond payments. Cruz alleges that others had access to the computer system, and that she was not the only one who handled payments to the court. Nevertheless, Sheridan, Kline, and Lammers “purposely concealed” this information from the prosecutor. She also alleges that Lammers, Sheridan, and Kline “manufactured” evidence against her, including “calendars and spreadsheets.” Sheridan met with Lt. Mike Daniels of the Merriam Police Department about the missing funds in April, 2011. Daniels and Captain Tim Burnett spoke with Cruz at her home on June 16, 2011, and reported that she refused to speak with them about the missing cash. Daniels and Burnett obtained Cruz’s bank records by subpoena, and found a pattern of transactions which corroborated the alleged theft.

Daniels and Cruz found that the city court computer system was designed with a journal system, under which every transaction creates a receipt for the customer and also prints the information onto a journal register. They further found that certain cash-only transactions had been recorded but subsequently deleted, and the cash was not deposited in the City’s bank account.

The investigation further reflected that Cruz was the only one to handle the end-of-business process and prepare nightly deposits prior to April 2009, after which she handled the end-of-business process and nightly deposits on Tuesday and Thursday, municipal court days. The investigation also found that there was a pattern of deposits into Cruz’s bank account that was indicative of theft and that following her departure from the Clerk’s office there were no reported funds missing.

An affidavit containing the results of the investigation, and with information supplied by Daniels, Burnett, Lammers, Kline, and Sheridan, was submitted to the prosecutor.

Cruz alleges that the affidavit “purposefully omitted” exonerating information, such as the fact that as Lead Clerk she rarely handled individual transactions. She alleges that Daniels and Burnett failed to investigate to determine if any money actually was missing. She alleges that “a reasonable police officer” would have known that “no such pattern existed” in her bank records. She states that she was the only one investigated, even though it was possible for another employee to have taken the funds. She alleges that Daniels and Burnett falsely stated in their report that she refused to speak with them about the missing cash.

Cruz alleges that the defendants undertook their investigation without any proof that funds were actually missing, and that audits conducted for the years 2007-2010 detected no cash shortages. Cruz also faults the affidavit for failing to state that there were no witnesses to her taking any money.

According to Cruz, the only evidence produced to support the criminal charges “was the homemade calendar/journal entries which purportedly supported the contention that the sums were allegedly missing and statements from employees of The City of Merriam who described Ms. Cruz as living above her means.” Otherwise, there was no evidence of missing funds or that Cruz was responsible for any theft.

Cruz was charged with one count of felony theft on June 27, 2011. The complaint alleged that Cruz had stolen approximately $100, 000 from the City of Merriam. Cruz was held in court custody for two days, and subsequently placed on house arrest. Contemporary news reports quoted Lammers as ...

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