United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten Chief United States District Judge.
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). 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
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).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.
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
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.
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).
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
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
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.
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).
Motion to Dismiss
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.
Rule 12(b)(1) and Official-Capacity Claims
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). ...