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Moore v. Summer

United States District Court, D. Kansas

March 31, 2015

ROBERT E. MOORE, SR. Plaintiff,
RYAN SUMMER, Defendant.


SAM A. CROW, Senior District Judge.

This pro se civil rights complaint was filed pursuant to 42 U.S.C. § 1983 by a Kansas prisoner. The matter is before the court upon defendant's Motion to Dismiss (Doc. 12). Having examined defendant's motion together with the Memorandum in Support, the First Amended Complaint, and the relevant legal authorities, the court finds that the First Amended Complaint states a plausible excessive force claim, but that any claim against defendant in his official capacity must be dismissed. Accordingly, defendant's motion is granted in part and denied in part.


The court takes judicial notice of State v. Moore, Case No. 10CR3055 (Jo.Co.Dist.Ct.).[1] Records from this state criminal case show that on December 14 and 15, 2010, Mr. Moore committed Attempted Robbery, 3 counts of Burglary, 2 counts of Theft, 2 counts of Aggravated Burglary, and Criminal Damage to Property. He was convicted of these crimes in Johnson County District Court on August 31, 2012, and is currently serving the resulting sentences.

In his First Amended Complaint (Doc. 7), Mr. Moore alleges the following facts. On the night of December 14, 2010, he "got left" in Desoto, Kansas. He was trying to get home and attempted "to flag people down for help."[2] "A woman called the police." "The police labeled it as suspicious behavior." By the time police got there, plaintiff "had been running to houses trying to get help, " and "in the process... caught a ton of charges."[3] The police were looking for him "for all kinds of charges" that he "wasn't sure of until (he) came into custody." Plaintiff was "banging on a residence's door trying to wake someone up, " but he started knocking when a police car pulled up. Thus, as officers "were approaching the house" plaintiff was "knocking on the front door" of a residence. The officers "pulled up to an unknown house that they seen (sic) (plaintiff) outside of." "The cops pulled in front of the house while (plaintiff) was standing in the yard "froze with his hands up." Defendant Corporal Ryan Summer jumped out of the patrol car and opened the back door releasing a police dog. The dog ran past Mr. Moore because he was not a threat. When Officer Summer saw that the dog had run past Moore, he called the dog back to him. As the dog was on its way back to Officer Summer, it saw plaintiff and started coming at plaintiff. Plaintiff panicked, went to the front door and started kicking the door. Then "the dog put (plaintiff) under arrest." The dog attacked plaintiff and injured his arm. Plaintiff was "bleeding everywhere." Plaintiff never came into contact with an officer, did not resist, never had a weapon or demanded anything from anyone, was not a threat or acting as one, and was just trying to get home. Officers were "right there" and took plaintiff to a squad car to pat him down.

Based on these allegations, Mr. Moore claims in his form complaint that defendant Summer violated his "constitutional rights" in that Summer "put a dog on" him without giving "a bite command" and deployed the dog for no lawful reason. He asserts that defendant's act of deploying the police dog without warning under the alleged circumstances amounted to excessive force that resulted in injury to plaintiff.

The court screened plaintiff's First Amended Complaint as required by 28 U.S.C. § 1915A(a), (b) and 28 U.S.C. § 1915(e)(2)(B); and dismissed his Eighth Amendment claim of denial of medical treatment as merely alleging a delay in treatment as well as his claims against three of the four defendants. The court found that a responsive pleading was required upon plaintiff's claim of excessive force incident to his arrest and ordered service of summons upon defendant Corporal Ryan Summer K-9 Officer, Lenexa Police Department.

Defendant Summer filed this Motion to Dismiss plaintiff's amended complaint. In his motion, defendant contends that Mr. Moore fails to state a federal constitutional claim, that Officer Summer is protected from this suit for damages by qualified immunity, and that plaintiff's claim is barred by Heck v. Humphrey . Plaintiff has not responded to defendant's motion.


A. Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "The court's function on a Rule 12(b)(6) motion is... 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)(citing Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)). "[F]or purposes of resolving a Rule 12(b)(6) motion, " a court must "accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff." Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)); Morse v. Regents of the Univ. of Colo., 154 F.3d 1124, 1126-27 (10th Cir. 1998). "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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, " which instead must be supported by facts. Iqbal, 556 U.S. at 678-79; Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012)(quoting id. ). In Iqbal, the Supreme Court set forth a two-prong analysis that begins with the court "identifying the allegations in the complaint that are not entitled to the assumption of truth, " that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Iqbal, 556 U.S. at 678-680; Khalik, 671 F.3d at 1188 ("Accordingly, in examining a complaint under Rule 12(b)(6), [the court] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable."). Second, the court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Id. at 678 (citing Twombly, 550 U.S. at 555). "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (citations omitted). If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.

The Tenth Circuit has explained plausibility as follows:

plausibility refers "to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

Khalik, 671 F.3d at 1191. "A claim has facial plausibility when the plaintiff pleads factual content that "allow(s) the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

B. Failure to State a Federal Constitutional Claim

The sufficiency of a complaint is a question of law. A complaint that was filed pro se must be liberally construed and the court must apply "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007); Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007)(citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Nevertheless, "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, " dismissal is appropriate. Twombly, 550 U.S. at 558. A pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991). A court may not assume that a ...

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