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Dartez v. Peters

United States District Court, D. Kansas

June 26, 2017

SAMUEL LEE DARTEZ, II, Plaintiff,
v.
RICK PETERS, Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE.

         Plaintiff Samuel Lee Dartez, II brings this action against nine Kansas Highway Patrol (“KHP”) officers and supervisors: Rick Peters, Robert Ware, and John Doe Nos. 1-7 (collectively the “KHP Defendants”); Riley County Police Department (“RCPD”) Detectives: French, Johnson, and Dierks (the “RCPD Defendants”); Morris County Sheriff's Department (“MCSD”) Deputies Charles Rodman and Dan Good, and MCSD Undersheriff John H. Riffel (the “MCSD Defendants”). Dartez alleges that his Fifth, Eight, and Fourteenth Amendment rights were violated by Defendants during the course of his 2014 arrest.

         On November 10, 2016, the MCSD Defendants filed a motion seeking summary judgment on the claims against them (Doc. 36). On March 27, 2017, before the Court had ruled on that motion, Dartez filed a motion seeking leave to amend his complaint, and an extension of time to file the amended complaint (Doc. 72). All of the Defendants separately opposed this motion (Docs. 73, 74, 75). Notably, on April 3, 2017, the KHP Defendants filed a memorandum in opposition to Dartez's motion for leave to amend. Then, on April 28, Dartez filed a Motion for Leave to Respond to Defendant(s) Motion in Opposition to Plaintiff's Motion for Leave to Amend Complaint (Doc. 78). Dartez attached his Reply to the motion, which was unopposed. As a preliminary matter, the Court grants that motion and will consider Dartez's reply.

         Because Dartez's proposed Second Amended Complaint could arguably modify some of the claims in the First Amended Complaint that the MCSD Defendants are seeking summary judgment on, the Court must determine whether Dartez may again amend his complaint. For the reasons stated below, the Court denies Dartez's motion for leave to amend, and grants the MCSD Defendants' motion for summary judgment.

         I. Factual and Procedural Background

         A. Dartez's Original Complaint

         Dartez filed his complaint on November 12, 2015, naming KHP, RCPD, MCPD, and the State of Kansas as Defendants. Dartez alleged that the action arose from the following events:

On November 13th 2014 within the jurisdiction of Morris County I was brutally beaten to within one inch of my life by the Kansas Highway Patrol tactical/SRT team(s). The incident was observed, initiated, instructed and administered by RCPD, MCPD, and KHP SRT/Tacticle [sic] Team personal [sic]. I was for about 30-45 [seconds] if not more. MCPD Under Sheriff John H. Riffel says there is video of incident, but no one can locate it. I was rushed to the ER the next day for multiple x-rays, CAT-scans, MRIs etc.

         Ultimately, Dartez brought three claims in this original complaint. In Count I, Dartez claimed “[p]olice brutality and excessive use of force” by the KHP Special Response Team. In Count II, Dartez claimed an Eighth Amendment constitutional right violation. And Dartez claimed a Fourteenth Amendment violation in Count III. He requested “[c]ivil and monetary relief for injuries sustained, emotional distress, and pain and suffering.” He also requested “[l]egal relief by pursuing criminal charges against those involved and procedural investigations.”

         On June 2, 2016, Magistrate Judge Waxse entered a screening order pursuant to 28 U.S.C. § 1915A(a) & (b). Judge Waxse concluded that the State of Kansas and its agencies- such as the KHP-are absolutely immune to suit for money damages under the Eleventh Amendment, and are not “persons” that Congress made amenable to suit for damages under § 1983. Because Dartez failed to name any “persons” as a defendant, he did not name a single proper defendant. Furthermore, Dartez failed to point to a policy of deficiency in the training program used by the KHP, RCPD, or MCPD. Accordingly, Judge Waxse granted Dartez 30 days to file an “Amended Complaint” naming proper defendants and setting forth sufficient facts which show the personal participation of each person named as a defendant in the alleged use of excessive force.[1]

         B. Amended Complaint

         Dartez filed an amended complaint on June 30, 2016, asserting multiple claims under 42 U.S.C. § 1983 against the KHP Defendants, RCPD Defendants, and MCSD Defendants. Specifically, he claimed that during his arrest on November 13, 2014 he was “brutally beaten . . . within an inch of [his] life” by the KHP Special Response Team. According to Dartez, he was “kicked, punched, hit with shields, slammed and jumped on excessively.” Then, after he was handcuffed, he “was again punched, kicked and severely beaten by the [KHP Special Response Team].” Furthermore, “[n]o one from any agency or police department present came forward and/or tried to help [him] or stop” the KHP Special Response Team from “beating” him. As a result, he claimed to have suffered “severe pain, swelling, dizziness, concussion, temporary blindness, & loss of motor skills, etc.”

         In Count I, Dartez claims “[p]olice brutality and excessive use of force by the [KHP Special Response Team].” The “supporting facts” provide: “During my arrest . . . I was kicked, punched, hit with shields, slammed and jumped on excessively. Then, after I was handcuffed I was again punched, kicked and severely beaten by the [KHP Special Response Team]. While I screamed and cried for them to stop I was not violating any laws or acting disruptively in any way.”

         In Count II, Dartez claims that the KHP Special Response Team violated his Eighth Amendment rights causing him “pain, suffering, physical injury and emotional distress.” Dartez provided the following supporting facts: “The members of the [KHP Special Response Team] severely beat and attacked me during my arrest while I was not violating any laws or behaving disruptively in any manner, and while I was screaming and crying for them to stop.”

         Next, in Count III, Dartez claims that his Eighth Amendment rights were violated by “all other defendants named” by “witnessing the KHP [Special Response Team's] illegal action, failing to correct that misconduct, and encouraging the continuation of the misconduct . . . .”

         In Count IV, without naming the Defendant(s) against whom the claim is being brought, Dartez claims violations of his Fifth and Fourteenth Amendment rights. He specified: “By being beaten and being allowed to be beaten by the [KHP Special Response Team] during an arrest for a crime I allegedly committed I was refused my rights of due process of law as well as being innocent until proven guilty . . . .”

         In Count V, Dartez claimed the RCPD detectives were deliberately indifferent to his medical needs by neglecting to transport him to the hospital after his arrest. Immediately following Count V, Dartez added a provision which stated: “All illegal actions listed caused me injury to my Fifth, Eighth and Fourteenth Amendment rights and still cause pain, suffering, and emotional distress.”

         C. MCSD Defendants' Motion for Summary Judgment

         On November 10, 2016, the MCSD Defendants filed a motion for summary judgment. The MCSD Defendants argued that (1) they did not violate Dartez's constitutional rights, and (2) they are entitled to qualified immunity. In the motion, the MCSD Defendants pointed out that while Dartez's Amended Complaint asserted that the MCSD Defendants deprived him of his Fifth, Eighth, and Fourteenth Amendment rights, the Fourth Amendment's objective reasonableness standard is the only possible basis for his claim. However, even under the Fourth Amendment (which Dartez failed to plead), Dartez's claim would still fail because there is no allegation or evidence suggesting that the MCSD Defendants personally participated in the alleged use of excessive force, and the evidence shows that the MCSD Defendants did not have a reasonable opportunity to intervene.

         On the same day, the MCSD Defendants filed a Notice to Pro Se Litigant Who Opposes a Motion for Summary Judgment (Doc. 38), as required by Local Rule 56.1.

         D. Dartez's Motion for Leave to Amend Complaint

         On March 27, 2017, Dartez filed a “Motion for Leave to Amend Complaint, and A Motion for Extension of Time to File Amended Complaint” (Doc. 72). In his motion, Dartez provided a list of requests. However, only two of those requests relate to amending the complaint. First, Dartez requested leave to add the Fourth Amendment “objective reasonableness standard clause against the KHP Officials.” Second, Dartez requested leave to “re-add the KHP Agency to the suit for the purposes of injunctive relief.”

         The rest of Dartez's requests can loosely be classified as requests for injunctive relief or discovery requests. The motion provided, in relevant part:

7. I would like the officials involved within this suit to be properly addressed and reprimanded by their prospective employer.
8. I would like to retrieve the names and contact information about all officials involved so that they can be properly identified and added to this complaint.
9. I would like for the Kansas Highway Patrol and its actors to change their policy about how and when they proceed to activate their Tactical, SRT and other similar units in any situation. Provided that their policy is not to video (audio and/or video) their Tactical, SRT Teams activations.
10. I would like to receive the handbook, rules and regulations, proper procedures etc. used, studied and/or needed to be obtained by all KHP personnel.
11. I would like the written reports, if any, about the day in question of the incident.
12. I would like to know what action(s) the KHP Agency has taken, or plans to take, against the officials involved with the incident basing from this suit.

         However, Dartez did not attach a proposed amended complaint. Instead, Dartez also included a request for an extension of time to file his proposed Amended Complaint. He claimed that his Complaint “is about 10 pages long, without the Exhibits, and would take a substantial amount of time to type up.” He requested a seven-day extension, from March 27 to April 3.

         E. Dartez's Proposed Second Amended Complaint

         One week later, on April 3, 2017, Dartez filed his Proposed Second Amended Complaint (Doc. 76), as a supplement to his motion for leave to amend complaint. In his proposal, Dartez names the same defendants that were named in the Amended Complaint, with one addition: the Kansas Highway Patrol. The proposal states that KHP was acting under color of state law, because it “dispatched Rick Peters, Lt. Ware and John Does 1-7 to the location and possesses the information pertaining to who they are, the reports that were made on the day in question and has the authority to reprimand and sanction how they see fit, as pertaining to their employment, what training they have been through and duties performed etc.”

         Count I does not deviate from the Amended Complaint, alleging “[p]olice brutality and excessive use of force by the KHP SRT/Tactical Team.” Count II alleges a violation of Dartez's rights under the Fourth Amendment objective reasonableness standard, causing Dartez “pain, suffering, physical and emotional injury and distress, ” as well as some “mental retardation and loss of motor skill(s).”

         Count III in the proposal appears to reflect substantially the same claim as set forth in the Amended Complaint: violation of Dartez's rights under the Eight Amendment inflicting cruel and unusual punishment, and causing severe pain, suffering, physical injury and emotional distress. It appears that this claim is brought specifically against the KHP Defendants. Similarly, Count VII also claims Eighth Amendment violations, this time apparently directed at the MCSD Defendants.

         Count IV claims that the KHP Defendants violated Dartez's rights under Section 9 of the Kansas Constitution Bill of Rights “by inflicting cruel and unusual punishment.”

         Count V claims that the KHP Defendants “are in violation of the Universal Declaration of Human Rights and its Article(s) (1), (2), (3), (5), (6), (7), (12), (28) & (30).” Count VIII alleges the same against the MCSD Defendants, and Count XII alleges the same against the RCPD Defendants.

         Counts VI and IX both claim violations of Dartez's rights under the Fifth and Fourteenth Amendments “by way of Due Process, ” against the KHP Defendants and the MCSD Defendants respectively.

         Finally, the proposal also brings two deliberate indifference claims. Count X alleges deliberate indifference by the MCSD Defendants “for failure to adequately respond and stop the KHP Officials from inflicting wanton pain and affliction” onto Dartez. And Count XI alleges deliberate indifference by the RCPD Defendants “by the way of neglecting much needed medical attention.”

         In sum, Dartez seeks to bring seven new claims in his proposed complaint under a number of new theories. The Amended Complaint only contained claims under the Fifth, Eighth, and Fourteenth Amendments (as well as an unspecified “police brutality and excessive use of force” claim and an unspecified “deliberate indifference” claim). The proposed complaint brings claims under those same theories, but adds new claims under the Fourth Amendment, the Kansas Constitution, and the Universal Declaration of Human Rights.

         II. Discussion

         A. Motion for Leave to Amend Complaint[2]

         Because an amended complaint could obviate the need to rule on the motion for summary judgment, the Court will first address Dartez's motion for leave to amend his complaint. Fed.R.Civ.P. 15(a) provides that “[a] party may amend its pleading once as a matter of course” within 21 days after serving it, or within 21 days after service of a responsive pleading or a Rule 12 motion. “In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave.”[3] “The court should freely give leave when justice so requires.”[4]

         Rule 15 is intended “to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.' ”[5] The Court may deny leave to amend, however, based on “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.”[6]

         The Defendants first argue that leave to amend should be denied because Dartez failed to comply with D. Kan. Rule 15.1(a) by not attaching a copy of the proposed amended complaint to his motion. Additionally, defendants argue that leave to amend should be denied because the proposed amendment is futile.

         1. Local Rule 15

         Local Rule 15 provides that a party filing a motion to amend a pleading or other document that may not be filed as a matter of right must “set forth a concise statement of the amendment or leave sought” and “attach the proposed pleading or other document.”[7] Dartez undisputedly failed to do so in this case. However, in lieu of attaching the proposed pleading, Dartez included in his motion a request for a seven-day extension of time to file his proposed amended complaint, up to and including April 3, 2017. Dartez then proceeded to file the Proposed Third Amended Complaint on April 3.

         In opposing this request, Defendants argue that they are “aware of no deadline that would have prohibited Plaintiff from waiting to file the motion for leave to amend until such time as the [Third] Amended Complaint could be drafted and included.” The Court is similarly perplexed as to why Dartez did not simply wait one week to finish drafting his proposed complaint before filing his motion for leave to amend. Regardless, the Court's ultimate directive is “to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.' ”[8] The Court will therefore construe Dartez's proposed amended complaint as a supplement to his motion to amend. Accordingly, the Court concludes that Dartez substantially complied with Local Rule 15.1, and any shortcomings are not significant enough to be the basis for denying the motion to amend.

         2. Futility

         Defendants argue that Dartez's proposed amendments would be subject to dismissal, and therefore futile, because they are precluded by the previous rulings of the Court, and are otherwise subject to ...


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