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Counce v. Wolting

United States District Court, D. Kansas

February 17, 2017

KENNETH COUNCE, Plaintiff,
v.
RYAN WOLTING, ET AL., Defendants.

          MEMORANDUM AND ORDER

          J. Thomas Marten Chief United States District Judge.

         Plaintiff Kenneth Counce brings this pro se civil rights action under 42 U.S.C. § 1983, alleging various claims, including excessive force during his October 2013 arrest, deliberate indifference in the denial of medical care, and deprivation of property without due process. Defendants Ryan Wolting, [fnu] Arnold, Eric Sauer, Mark Bruce, Kirk Simone, and Darian Dernovish, all current or former employees of the Kansas Highway Patrol (collectively “KHP Defendants”), seek dismissal of all claims against them on various grounds (Dkt. 99).[1] In addition to filing a response opposing the motion (Dkt. 115), plaintiff filed a motion requesting the court direct KHP's records custodian to furnish Arnold's first and middle name (Dkt. 116) and a Motion for Leave to File Supplemental Citations (Dkt. 120). For the reasons stated below, the court partially grants the motion to dismiss, grants the motion for Arnold's first and middle name, and denies the motion for leave to file the supplement.

         I. Factual Background

         This court previously summarized plaintiff's factual allegations in the screening order (Dkt. 51) and will repeat only those necessary for resolution of these motions. On October 22, 2013, at the milepost 224 rest area on Interstate 70, KHP Trooper Wolting tasered plaintiff in the groin area and assaulted him for “15 to 25 minutes or more, ” resulting in a broken left jaw, swollen left eye, and injuries to his shoulders, knees, and right wrist (Dkt. 48 at 3-A-B).[2]Civilians John Doe 1 and 2 assisted Trooper Wolting by holding plaintiff down. Doe 1 also allegedly struck plaintiff on the left side of his jaw with an unknown weapon, sat on him, verbally assaulted him, called him the “N” word, and choked him. As to Doe 2, although he was not as enthusiastic as Doe 1, he failed to intervene when Doe 1 choked and sat on plaintiff.

         Trooper Wolting handcuffed plaintiff and refused plaintiff's request to remove the right handcuff, even though it was cutting deeper into the gash on his right wrist. He also denied the EMT's request to examine plaintiff's shoulders and right wrist, telling them to “stay away from the handcuff.” Plaintiff claims he only received superficial swabbing by EMS at milepost 224. (Id. at 4-B).

         Trooper Arnold arrived on scene and drove plaintiff to the Ellsworth County Jail (“ECJ”). He too refused to remove the right handcuff or loosen the left handcuff despite plaintiff's repeated requests during the 25 or 35- minute ride to the jail.

         Plaintiff alleges that upon his arrival at the jail, his physical injuries and distress were obvious, yet Trooper Wolting, Trooper Arnold, Sheriff Ploutz, Deputy Chamberlain, Deputy Doe 3, and Deputy Doe 4, all with deliberate indifference, refused to take him to the hospital or give him any meaningful treatment, including a sip of water. Plaintiff claims that his severe pain went untreated during his interrogation, which was more than two hours long. (4-A-B).

         The state charged plaintiff with battery of a law enforcement officer (LEO) in violation of Kan. Stat. Ann. § 21-5413 on October 23, 2013. Plaintiff remained at ECJ while that charge was pending. On November 20, 2013, plaintiff pled guilty to said charge. Plaintiff filed a motion to withdraw his plea and a notice of appeal on November 26, 2013. The clerk's office docketed the notice, but failed to forward it to the chief district judge for assignment. ECJ remanded custody of plaintiff to the State of Texas on December 2, 2013 due to a detainer. The chief district judge became aware of the notice of appeal sometime after October 24, 2014, and ordered the County Attorney to clarify all that had transpired in the case. On January 7, 2015, the state district court informed the prosecution that if the prosecution failed to arrange for the return of Mr. Counce from Texas custody to stand trial within 180 days, then the matter would be dismissed with prejudice. Id. at 4. On September 24, 2015, the state court dismissed the criminal case with prejudice. The county attorney has appealed that dismissal, arguing that plaintiff bore the burden under the Interstate Agreement on Detainers to initiate his return to Kansas for a trial de novo. That appeal appears to be pending.

         During his 40-day incarceration at ECJ, plaintiff claims that he was never provided with proper medical treatment because Sheriff Ploutz either rebuffed or ignored his requests for non-over-the-counter pain medication and treatment at a hospital.

         On October 29, 2013, Sheriff Ploutz told plaintiff that he had turned over plaintiff's cash to the KHP on Friday, October 25, 2013. Plaintiff alleges that Sheriff Ploutz and Trooper Wolting had intended to steal his money, but Sheriff Ploutz became nervous and confessed that he gave it to Trooper Wolting, without a court order or a receipt.

         After his arrest, plaintiff wrote several letters to Darian P. Dernovish, KHP's legal counsel, and Kirk E. Simone, KHP's Asset Forfeiture Coordinator, to request the return of his money and minivan. He claimed that they ignored his complaints and never returned his cash. (Dkt. 46 at 38). Plaintiff alleged that their requirement that he fill out IRS Form W-9 request was unreasonable (because he could not recall his tax identification number) and tantamount to covering up the theft of his money. (Dkt. 48 at 2-O). In a letter dated September 11, 2014, Simone advised plaintiff that because the social security number listed on his Form W-9 was not recognized as belonging to him, and pursuant to Kan. Stat. Ann. § 22-2512, the money was transferred in plaintiff's name to the Unclaimed Property Division of the State of Kansas. Plaintiff claimed that $ 8, 400 was turned over to the state treasurer's office and that KHP still owed him $ 520. (Dkt. 46 at 38).

         II. Analysis

         A. Motion to Dismiss

         KHP Defendants contend that Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6) require dismissal of plaintiff's claims against them. They invoke Rule 12(b)(1), contending the court lacks subject matter jurisdiction to hear plaintiff's claims against them in their official capacities (“official-capacity claims”). They invoke Rule 12(b)(5), contending plaintiff did not properly serve process on them. They invoke Rule 12(b)(6), contending plaintiff failed to state a claim against them in their individual capacities (“individual-capacity claims”). The court considers each argument below.

         1. Rule 12(b)(1) and Official-Capacity Claims

         KHP Defendants argue that asserting claims against them in their official capacities is a runaround way of suing KHP, which Kansas law and the Eleventh Amendment bars. Dkt. 100 at 7. The court agrees. State officials acting in their official capacities are immune from suit under § 1983. When a suit is brought against state officials in their official capacities, the real party in interest is the state entity. Kentucky v. Graham, 473 U.S. 159, 166-67 (1985); Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (“[N]either a State nor its officials acting in their official capacities are ‘persons' under § 1983.”). The Eleventh Amendment bars actions against a state in federal court, even by its own citizens, unless the state waives that immunity. U.S. Const. amend. XI; Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000). ...


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