United States District Court, D. Kansas
MEMORANDUM & ORDER
JOHN W. LUNGSTRUM, District Judge.
Plaintiffs Amy Hover, Brad Jordan and Gary Jordan filed suit 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 tax indebtedness of delinquent taxpayers. As described in the second amended complaint, the seizure was executed by agents of the Kansas Department of Revenue (KDOR) and the Wyandotte County Sheriff's Department. After an initial motion to dismiss the amended complaint filed by the KDOR defendants-KDOR agent Carrie Purney-Crider; KDOR's Secretary Nick Jordan; and KDOR's Director of Taxation Steve Stotts-the court permitted plaintiffs to file a second amended complaint. This matter is now before the court on the KDOR defendants' motion to dismiss plaintiffs' second amended complaint. 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' second amended complaint, are accepted as true for purposes of defendants' motion.
On September 18, 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 property to be seized pursuant to the writ included 22 vehicles and any other real or personal property owned by Emmett Jordan and Amy Jordan. The writ was executed by numerous law enforcement 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.
Plaintiff Gary Jordan, Emmett Jordan's brother, was present on Emmett Jordan's property at the time the writ was executed. Plaintiff Gary Jordan, identified in the amended complaint as a "man in his 60s" was allegedly "shoved to the ground by officers while they pointed automatic weapons at him" and "was detained in a state car for more than two hours with no explanation of why he was being held." Plaintiffs Amy Hover and Brad Jordan (two of Emmett Jordan's adult children) were not present on the property at the time the writ was executed. According to the allegations in the second amended complaint, items of personal property belonging to plaintiffs were seized and removed from Emmett Jordan's residence despite the fact that such property was not identified in the writ.
Upon learning that agents had seized their personal property, plaintiffs notified defendant Purney-Crider and defendant Stotts via letters on October 15, 2012 that they claimed ownership of certain property that had been seized. With respect to defendant Purney-Crider, plaintiffs further allege that they provided proof of ownership for the items that were wrongfully seized. According to plaintiffs, in a November 2012 telephone conversation between plaintiff Amy Hover and defendant Purney-Crider, defendant Purney-Crider stated that she did not believe that plaintiffs' proof of ownership was authentic and advised that plaintiff Amy Hover "could not stop the sale of the items." According to plaintiffs, defendant Purney-Crider refused to provide an opportunity to be heard as to their ownership claims in the property. Ultimately, plaintiffs' property was sold.
There are four counts in the second amended complaint arguably directed toward the KDOR defendants. In Count I, plaintiffs assert a claim against all "defendants" (which would include the Wyandotte County Sheriff as well as unidentified deputies in the Sheriff's department) based on violations of the Fourth and Fourteenth Amendments for unlawful search and seizure; deprivation of property without due process; the taking of property without just compensation; and excessive force and false arrest. Plaintiffs allege in Count II that the KDOR defendants violated their constitutional rights by depriving them of their property without due process of law. In Count IV, plaintiffs allege that defendants Stotts and Jordan failed to implement appropriate policies, customs and practices for the Department and that they failed to train and supervise adequately Department employees. Finally, plaintiffs purport to assert a claim against defendants Stotts and Jordan in Count VIII for an accounting relating to the disposition of plaintiffs' property. The KDOR defendants move to dismiss all claims against them.
Count I of the Second Amended Complaint
In Count I, plaintiffs assert "general allegations" against all "defendants" for various constitutional violations. The court dismisses this count against the KDOR defendants for several reasons. First, the Tenth Circuit has clearly held in this context that a plaintiff, to survive a motion to dismiss, must differentiate in his or her complaint among individual defendants (rather than refer collectively to "defendants") by identifying what acts are attributable to whom so that individual defendants may ascertain what particular unconstitutional acts they are alleged to have committed. See Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008). Count I fails to differentiate among any of the defendants and, in fact, does not differentiate among plaintiffs when, for example, only plaintiff Gary Jordan could possibly assert an excessive force or false arrest claim, as neither Amy Hover nor Brad Jordan were present during the execution of the writ. Moreover, to the extent plaintiffs purport to assert a claim against the KDOR defendants for unlawful search and seizure, they have expressly disavowed any such claim in their submissions, repeatedly asserting that they are making no claim against these defendants based on the seizure of their property on the date of the execution of the writ. To the extent plaintiffs purport to assert a deprivation of property claim against the KDOR defendants, that claim is specifically alleged in Count II of the second amended complaint such that it supersedes any general allegations regarding the same conduct in Count I.
Finally, the second amended complaint fails to state a viable claim for excessive force or false arrest against the KDOR defendants. The complaint is devoid of any allegations concerning any link whatsoever between Gary Jordan's excessive force or false arrest claims and defendants Stotts or Jordan. Plaintiffs do not allege that defendants Stotts or Jordan personally participated in the use of excessive force or the false arrest of Gary Jordan and, in fact, plaintiffs do not allege the presence of these defendants at any time during the execution of the writ. To establish liability, then, plaintiffs would need to show some other affirmative link between the constitutional violation alleged and defendants Stotts or Jordan-presumably through defendants Stotts' or Jordan's failure to train or supervise an employee; through their implementation of policies or customs that led to the constitutional violation; or through their exercise of control or direction over the conduct that constitutes the violation. See Dodds v. Richardson, 614 F.3d 1185, 1212-13 (10th Cir. 2010). But these avenues are closed to plaintiff Gary Jordan because, as explained below, he has not alleged a plausible claim for the underlying constitutional violation against defendant Purney-Crider, the only KDOR employee alleged to have been present during the execution of the writ. See Dodds, 614 F.3d at 1212-13 (failure-to-train and failure-to-supervise theories of liability require showing that injury resulted from failure); Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (plaintiff must establish an affirmative link between supervisor's failure to supervise and constitutional deprivation).
With respect to plaintiff Gary Jordan's claims for excessive force and false arrest against defendant Purney-Crider, the second amended complaint states only that "Agent Purney-Crider was present when Plaintiff Gary Jordan was thrown to the ground and detained, but did not intercede." The court specifically advised plaintiffs in resolving the initial motion to dismiss that plaintiffs could amend their complaint to include this failure-to-intercede theory but that plaintiffs could not allege only that defendant Purney-Crider was "present" and failed to intervene. That is exactly what plaintiffs have done in amending their complaint. Moreover, a fair reading of plaintiffs' second amended complaint suggests only that defendant Purney-Crider was "present" in the sense that she was physically on the Jordan property during the use of force and subsequent detention of Gary Jordan. There is no specific allegation to suggest that defendant Purney-Crider observed the use of force against or the detention of Gary Jordan or that she otherwise was in proximity to such conduct. In fact, plaintiffs contend in their submissions that defendant Purney-Crider's involvement in the "unconstitutional action" began when she signed a property receipt to seize a vehicle registered to plaintiff Amy Hover-an event that occurred, by the chronology in the second amended complaint, after the use of force against and detention of Gary Jordan. In the absence of specific allegations placing defendant Purney-Crider at or near the use of force against or detention of Gary Jordan, it is not plausible to infer that defendant Purney-Crider had a realistic opportunity to intervene to stop the use of force or the detention. See Gruenwald v. Maddox, 274 Fed.Appx. 667, 674 (10th Cir. 2008) (affirming dismissal of failure-to-intervene claims where plaintiff failed to allege in complaint that the defendant witnessed the use of force against the plaintiff and did not specify defendant's "whereabouts" during the use of force; rule applies only to an officer who "watches" and does nothing). Any claim for excessive force or false arrest against defendant Purney-Crider is dismissed.
Count II of the Second Amended Complaint
In their second amended complaint, plaintiffs assert a claim against the KDOR defendants for deprivation of property without due process of law. As alleged in their complaint, the claim is limited to the failure to return and subsequent sale of plaintiffs' property after plaintiffs notified defendants of their ownership interest in the property. According to plaintiffs, defendants, after the seizure of the property and after notification from plaintiffs of their ownership claims in the property, deprived plaintiffs of the opportunity to be heard as to their ownership claims in the property prior to selling the property. Plaintiffs expressly reaffirm in their submissions that they are not asserting a claim based on defendants' initial seizure of the property on the date the writ was executed. Defendants first move to dismiss plaintiffs' deprivation of property claim on the grounds that "no cause of action exists for the failure to return property." The cases relied upon by defendants, however, hold only that the failure to return seized property does not give rise to a Fourth Amendment violation because the failure to return property does not constitute an additional seizure beyond the original seizure. See, e.g., Malapanis v. Regan, 335 F.Supp.2d 285, 291 (D. Conn. 2004, aff'd, 147 Fed.Appx. 219 (2nd Cir. 2005). Plaintiffs do not dispute this interpretation of the Fourth Amendment in their submissions and they do not suggest that the claim for the failure to return their property is based on the Fourth Amendment. Moreover, nothing in those cases suggests that no cause of action exists for the failure to return property under the Fifth or Fourteenth Amendment. See id. (while the Fourth Amendment cannot be invoked to regain property, plaintiffs alleged Fourteenth ...