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Aversman v. Nicholson

United States District Court, D. Kansas

July 11, 2017

SHELLY AVERSMAN and MATTHEW AVERSMAN, Plaintiffs,
v.
CHRISTOPHER M. NICHOLSON, in his individual capacity, WILLIAM SMITH, in his individual capacity, KANSAS BUREAU OF INVESTIGATION, and JOHN DOES 1-10, Defendants.

          MEMORANDUM & ORDER

          CARLOS MURGUIA United States District Judge

         This 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. 18).

         I. Factual Background

         Plaintiffs 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.

         Defendant 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.” (Id.)

         Sometime 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.

         II. Procedural Background

         Defendant 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.

         Defendant 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.

         The 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.)

         III. Legal Standards

         A. Motion to dismiss ...


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