United States District Court, D. Kansas
Emmett V. Jordan and Amy R. Jordan, individually and as natural parents of J.V.J., a minor; Plaintiffs,
Unified Government of Wyandotte County and Kansas City, Kansas et al., Defendants.
MEMORANDUM & ORDER
JOHN W. LUNGSTRUM, District Judge.
Plaintiffs Emmett V. Jordan and Amy R. Jordan, individually and on behalf of their minor child, filed suit in state court under 42 U.S.C. § 1983 alleging that defendants violated their Fourth, Fifth and Fourteenth Amendment rights in connection with defendants' seizure and subsequent sale of plaintiffs' property to satisfy the tax indebtedness of plaintiffs Emmett and Amy Jordan, delinquent taxpayers. The seizure was executed by agents of the Kansas Department of Revenue (KDOR) and the Wyandotte County Sheriff's Department. The KDOR defendants removed this action to federal court and subsequently filed a motion to dismiss, which is presently pending before the court. This matter is presently before the court on a motion to dismiss filed by the KDOR defendants. Specifically, the KDOR defendants-KDOR agents Carrie Purney-Crider, Carol Jackson and Heather Wilson; KDOR's Secretary Nick Jordan; KDOR's Director of Taxation Steve Stott; and the Kansas Department of Revenue- move to dismiss plaintiffs' amended petition for failure to state a claim upon which relief can be granted. As will be explained, the motion is granted in part and denied in part.
The KDOR defendants' motion to dismiss is based primarily on Federal Rule of Civil Procedure 12(b)(6). In analyzing that motion, the court accepts as true "all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff." Burnett v. Mortgage Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citation omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). Consistent with this standard, the following well-pleaded allegations, taken from plaintiffs' amended petition, are accepted as true for purposes of defendants' motion.
On September 17, 2012, the Kansas Department of Revenue issued a writ of execution to seize property owned by Emmett Jordan and his spouse Amy Jordan at their residence in Kansas City, Kansas to satisfy the tax liabilities of Emmett and Amy Jordan. The writ was executed on September 18, 2012 by more than 80 agents, including defendant Carrie Purney-Crider and other unnamed agents of both the Kansas Department of Revenue and the Wyandotte County Sheriff's Department. Plaintiffs allege that the agents were armed with automatic weapons and dressed in combat gear. According to the amended petition, Emmett Jordan and his brother Gary Jordan were present inside the home when five "law enforcement officers" knocked down the front door of the home and entered the home "shouting profane and largely unintelligible orders" at Mr. Jordan and his brother. The amended petition alleges that plaintiff Emmett Jordan was forced to the floor, face down, and that an unnamed officer had his or her knee on plaintiff's neck. Emmett Jordan alleges that one of his teeth was broken during this incident. Emmett Jordan was then handcuffed behind his back while "automatic rifles were trained" on his head. Plaintiff Emmett Jordan was then forcibly removed from his home over his protests and his repeated requests for the identity of the officers and the purpose of their visit was ignored.
Plaintiffs allege that Emmett Jordan was detained, still handcuffed, in the back of a police car for a substantial period of time and that, thereafter, he was restricted to a lawn chair outside his house where officers denied him the use of a telephone. Despite the fact that Mr. Jordan provided keys to all locks on the premises, the officers executing the writ utilized destructive measures to access various areas of the Jordans' property, including the breaking of windows and the damaging of doors. Plaintiffs allege that officers remained on his property for nine hours, during which time the officers unnecessarily destroyed and damaged plaintiffs' property and ultimately seized property worth far more than the tax liability owed by the Jordans. Plaintiffs further allege that the officers seized property belonging solely to their minor son in violation of the writ. According to plaintiffs, the officers amused themselves by driving plaintiffs' dirt bikes and ATVs around the Jordans' property and that no officer present made any effort to curb this behavior.
The amended petition alleges that defendant Carrie Purney-Crider, an agent with the KDOR, commanded Emmett Jordan to "sign some papers" during the execution of the writ and that she "threw the papers in his face" when he refused to sign them. She advised Mr. Jordan that she was going to make sure that he would be "criminally charged for holding vehicles that belonged to someone else, " apparently referring to vehicles owned by Mr. Jordan's adult daughter. By the time the officers left the premises, the Jordans' property had been "ransacked, " with the contents of dresser drawers strewn about; broken glass scattered throughout the house; and empty water bottles and food wrappers discarded on the grounds. Plaintiffs further allege that the officers stole property owned by their minor son and that the officers destroyed Emmett Jordan's CPAP machine mask, rendering it impossible for Mr. Jordan to sleep. Plaintiffs contend that they were still cleaning up and repairing the damages more than 30 days after the execution of the writ. They allege that they have suffered continuous emotional distress; impaired sleep; embarrassment in their neighborhood; and that Emmett Jordan's children are afraid to visit him and will not permit their children to visit on holidays.
In their amended petition, plaintiffs allege that the KDOR, defendant Nick Jordan and defendant Steve Stotts failed to adequately train and supervise Ms. Purney-Crider, Ms. Jackson and Ms. Wilson and adopted and implemented policies, customs or practices permitting DOR employees to engage in the constitutional violations alleged in the amended petition, including excessive force, false arrest and the deprivation of property without due process of law. Plaintiffs further assert that Ms. Purney-Crider, Ms. Jackson and Ms. Wilson violated their Fourth, Fifth and Fourteenth Amendment rights based on the detention of Emmett Jordan; the use of excessive force with respect to Emmett Jordan; and the deprivation of plaintiffs' property without due process of law. Plaintiffs' amended petition also asserts a Kansas common law claim for intentional infliction of emotional distress against all individual defendants and a claim against Mr. Stotts for an accounting of all property seized. The KDOR defendants move to dismiss all claims against them.
Subject Matter Jurisdiction
Plaintiffs have asserted claims against Mssrs. Stotts and Jordan in both their individual and official capacities. In their motion to dismiss, defendants Stotts and Jordan assert that the court must dismiss plaintiffs' official capacity claims against them as the doctrine of sovereign immunity bars such claims. Plaintiffs have not responded to the substance of this argument, but dismissal of the official capacity claims is required in any event. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Moreover, because the Eleventh Amendment clearly bars plaintiffs' claims for damages against the KDOR, plaintiffs' claims against the agency itself are dismissed. See Olson v. Kansas Dept. of Revenue, 555 Fed.Appx. 747, 748-49 (10th Cir. 2014) (Eleventh Amendment "precludes not only actions in which the state is directly named as a party, but also actions brought against a state agency or state officer where the action is essentially one for recovery of money from the state treasury."); Lewis v. Kansas Dep't of Revenue, 181 Fed.Appx. 732, 733 (10th Cir. 2006) ("Section 1983... does not provide a federal forum for litigants who seek a remedy against... arms of the State for alleged deprivation of civil liberties.").
Plaintiffs also move to dismiss any claims based "directly" on the Fourth, Fifth and Fourteenth Amendments to the United States Constitution on the grounds that any claims for violations of the rights secured by these Amendments must be asserted under 42 U.S.C. § 1983. In response, plaintiffs have clarified that they have asserted no claim directly under the provisions of the United States Constitution and, based on the court's own reading of the amended petition, the court concludes that plaintiffs' claims are appropriately asserted under 42 U.S.C. § 1983.
Failure to State a Claim
In addition to challenging this court's subject matter jurisdiction over plaintiffs' claims, defendants also seek dismissal of the amended petition for failure to state a claim. Specifically, defendants contend that they are absolutely immune from liability for money damages; that the claims as alleged do not satisfy the pleading requirements of Twombly and Iqbal; and that plaintiffs' allegations, even if true, simply do ...