United States District Court, D. Kansas
MEMORANDUM & ORDER
MURGUIA United States District Judge
matter comes before the court upon defendant Kansas Bureau of
Investigation's (“KBI”) Motion to Dismiss
(Doc. 14), defendant Special Agent Christopher M.
Nicholson's Motion to Dismiss (Doc. 16), and defendant
Special Agent William Smith's Motion to Dismiss (Doc.
filed this case asserting claims under 42 U.S.C. § 1983;
§ 1988; the Fourteenth Amendment; and various state
laws. The complaint's allegations involve defendants'
investigation into a report that plaintiff Shelly Aversman
had unlawful sexual relations with a student at Atchison High
School while she was teaching there. Defendant Nicholson
interviewed Ms. Aversman twice and the student once, all on
November 24, 2015. First, he interviewed Ms. Aversman; she
admitted to having a sexual relationship with the student but
only after their student-teacher relationship ended, after
the student's graduation. Next Defendant Nicholson
interviewed the student; he also denied that any sexual
activity took place while he was a student at Atchison High.
The student admitted that sexual contact occurred in
September 2012 when he had returned home from his college
studies due to a medical issue. Later in the interview,
defendant Nicholson asked the student to confirm “So
some of that contact [referring to sexual contact] was prior
to you graduating and going to college.” (Doc. 6 at 4.)
The student said “Yeah, like I said - ” but was
cut off by defendant Nicholson before he completed an answer.
(Id.) Defendant Nicholson drew a timeline and asked
the student to point out when the contact occurred, but did
not have him mark or sign the chart.
Nicholson then interviewed Ms. Aversman again, this time
telling her that the student had admitted that they had a
sexual contact while he was a senior in high school. To this,
Ms. Aversman “responded with maybe, and then probably,
but then clarified that [the student] had expressed feelings
for her during [his] senior year, but that she had rejected
those feelings by telling him that she saw him like a
child.” (Id. at 5.) Defendant Nicholson then
asked “‘Is there a time when a mistake
happened?', to which Mrs. Aversman responded
‘Yea' and clarified that ‘[i]t was closer to
his graduation time.'” (Id.) She
“then clarified again that she had rejected [the
student's] advances because of her life, her career,
everything.” (Id.) Defendant Nicholson told
Ms. Aversman that the student guessed the sexual contact
began in January of his senior year in high school. She
responded “‘Probably. I was thinking it was long
after that, ' and followed up with ‘I guess
so.'” (Id. at 6.) Ms. Aversman described
“the sexual contact that took place prior to September
2012” as “fondling/touching.”
after the November 24, 2015 interviews, defendant Nicholson
listened to audio recordings of the interviews and summarized
their contents. Within fifteen days, by December 9, 2015, he
prepared a probable cause affidavit for Ms. Aversman's
arrest based on the summaries. He included in the probable
cause affidavit that the student:
admitted that he and Aversman engaged in a sexual
relationship at a time period between January 2012 and August
2012, when he was still a student at Atchison High School and
Aversman was one of his teachers. . . . [Ms. Aversman
admitted] that she had engaged in lewd fondling of [the
student] prior to his graduation from Atchison High School a
time period in which Aversman was employed by Atchison High
School and was one of [his] teachers. Aversman stated the
touching involved her touching [his] genitals under his
clothes and [his] touching her genitals under her clothes.
(Id. at 7.) Based on those statements, an arrest
warrant issued and Ms. Aversman was arrested based on charges
of Unlawful Voluntary Sexual Relations in violation of K.S.A.
§ 21-5512(a)(9), the same day. Ms. Aversman posted bond
awaiting a preliminary hearing that was scheduled for March
2, 2016, when the charges were dismissed. Ms. Aversman had
been suspended from her job, and despite the charges against
her being dismissed, her employment was terminated.
KBI moves to dismiss itself from the case for lack of subject
matter jurisdiction under Fed.R.Civ.P. 12(b)(1) and because
it lacks the capacity to sue or be sued under Fed.R.Civ.P.
17(b) (Doc. 14). Plaintiff does not oppose defendant
KBI's motion. It is therefore granted. Plaintiffs'
Count XVI is therefore dismissed.
Smith moves to dismiss the claims against him pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief can be granted (Doc 18). Plaintiffs do not oppose
defendant Smith's motion to dismiss but ask that it be
granted without prejudice in case plaintiffs discover
evidence during discovery that indicates defendant acted with
deliberate indifference, opening him to liability under
§ 1983. Therefore, defendant Smith's motion to
dismiss is granted.
remaining motion before the court is defendant
Nicholson's Motion to Dismiss for failure to state a
claim upon which relief can be granted under Fed.R.Civ.P.
12(b)(6) and because he claims he is entitled to qualified
immunity. (Doc. 16.)
Motion to dismiss ...