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Dartez v. Peters

United States District Court, D. Kansas

July 19, 2017

SAMUEL LEE DARTEZ, II, Plaintiff,
v.
RICK PETERS, et al., 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 Detectives: Mark French, Brian Johnson, and Robert 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, Eighth, and Fourteenth Amendment rights were violated by Defendants during the course of his 2014 arrest.

         Before the Court is the KHP Defendants' motion to dismiss. For the reasons stated below, the Court grants in part and denies in part Defendants' Motion to Dismiss (Doc. 41).

         I. Factual and Procedural Background

         Dartez claims that on November 13, 2014, in Morris County, Kansas, certain Defendants used excessive force against him during the course of his arrest, others failed to intervene to prevent the excessive force, and that he was subsequently denied necessary medical care. This action originated on November 12, 2015, almost one year later. On June 2, 2016, Magistrate Judge Waxse dismissed his initial complaint, and granted Dartez 30 days in which 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.

         A. Dartez's Amended Complaint

         Dartez filed the Amended Complaint on June 30, 2016, asserting multiple claims under 42 U.S.C. § 1983 against the KHP Defendants, [1] RCPD Defendants, and MCSD Defendants. Specifically, he claims that during his arrest on November 13, 2014 he was “brutally beaten . . . within an inch of [his] life” by the KHP Special Response Team.[2] 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 claims 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 was 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 claims 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 states: “All illegal actions listed caused me injury to my Fifth, Eighth and Fourteenth Amendment rights and still cause pain, suffering, and emotional distress.”

         Dartez then included the following request for relief:

A judgment from the court granting me a declaration that the acts and omissions described in this complaint violate my rights under the Constitution and laws of the U.S. A preliminary injunction ordering defendants from [the KHP] to complete additional training courses instructing them on how to properly subdue and arrest persons without using excessive force and causing great bodily harm. I would further ask the courts to impose a preliminary injunction suspending the officers without pay until their training is completed. I also ask for a preliminary and permanent injunction ordering the [KHP] to video and audio record all and any encounters where the [Special Response Team] and/or equivalent unit is called into any situation and/or activated or tasked to act, this is a standing injunction. I also am asking the court to grant me compensatory damages in the amount of $1, 000, 000 against each defendant, jointly and severally. Punitive damages in the amount of $1, 000, 000 against each defendant. A jury trial on all issues triable by jury. Recovery of my costs in this suit (lawyer fees if applicable as well) and any additional relief this court deems just, proper, and equitable.

         B. Subsequent History

         On August 18, 2016-41 days after filing his Amended Complaint-Dartez filed a Certificate of Service, indicating that he delivered a copy of his First Request for Production of Documents to the Defendants. Dartez's request for production encompassed: (1) written statements and reports relating to his arrest; (2) medical records obtained during the time he was incarcerated in the Riley County Jail; (3) Dartez's jail record; (4) KHP, RCPD, and MCSD rules and regulations; (5) “any and all information on ALL persons involved in the arrest”; (6) “names and contact information of the KHP tactical team members involved during the attack, ” as well as any other personnel present during the arrest (“whether listed in the initial complaint or not or listed as John Doe”), and anyone who has been contacted concerning the issues raised in Dartez's complaint.

         On September 13, 2016, KHP Defendants Rick Peters and Robert Ware filed a motion for extension of time to answer and to respond to Dartez's request for production. The original deadline to file the answer was October 4, 2016, and the Defendants requested an extension of seven days until October 11, 2016, “in order to complete their analysis of Plaintiff's claims and prepare an appropriate response.” Defendants also requested “a similar extension of time to respond to Plaintiffs' Requests for Production of Documents, ” but did not explain why the extension of time was necessary. This request was granted on September 16, 2016.

         On October 11, 2016, Defendants Peters and Ware filed a Second Motion for Extension of Time. Defendants requested an additional 30 days, until November 10, 2016, citing the same reasons as they did in the first motion. This request was granted on October 17, 2016.

         On November 10, 2016, Defendants Peters and Ware filed a Third Motion for Extension of Time. Defendants requested an additional 11 days, up to and including November 28, 2016, again citing the same reasons.[3] On this same date, the MCSD Defendants filed a motion for summary judgment, and a motion to stay discovery until the Court ruled on their motion for summary judgment.

         On November 28, 2016, the KHP Defendants filed this present motion to dismiss. Defendants argue, amongst other things, that the claims against John Doe Nos. 1-7 should be dismissed because Dartez failed to serve John Doe Nos. 1-7 within 90 days, and that the claims are now barred by the statute of limitations. On this same date, Defendants Peters and Ware also filed a motion to stay deadlines pending the Court's ruling on their motion to dismiss.

         On December 2, 2016, Defendants Peters and Ware filed a Certificate of Service of Responses and Objections to Plaintiff's Requests for Production of Documents. This was filed four days after the November 28 deadline, and 106 days after Dartez served his request for production. On December 9, 2016, Magistrate Judge Waxse granted Defendants' joint motion to stay the proceedings pending the Court's ruling on the pending dispositive motions.

         Then, on March 27, 2017, before the Court had ruled on the dispositive motions, Dartez filed a motion for leave to amend complaint. This Court denied Dartez's motion for leave to amend, and granted the MCSD Defendants' motion for summary judgment on Jun 27, 2017. The Court now turns to the KHP Defendants' motion to dismiss.

         II. Legal Standard

         Under Rule 12(b)(6), a defendant may move to dismiss any claim for which the plaintiff has failed to “state a claim upon which relief can be granted.”[4] In order to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ”[5] A claim is facially plausible if the plaintiff pleads facts sufficient for the Court to reasonably infer that the defendant is liable for the alleged misconduct.[6] This plausibility standard reflects the Rule 8 requirement that pleadings must provide defendants with fair notice of the nature of the claims as well as the grounds upon which each claim rests.[7] When considering a Rule 12(b)(6) motion, this Court must accept all of the factual allegations in the complaint as true, and view them in a light most favorable to the plaintiff.[8] The Court, however, does not apply the same presumption to conclusory allegations or legal conclusions.[9]

         For purposes of this motion to dismiss, the Court construes Dartez's complaint in the light most favorable to Dartez.[10] Additionally, because Dartez is proceeding pro se, the Court construes his complaint liberally and holds it to a less stringent standard than if it had been drafted by a trained lawyer.[11] However, the Court may not provide additional factual allegations “to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.”[12]

         III. Discussion

         A. Dartez Has Shown Good Cause for His Failure to Timely Effect Service

         The KHP Defendants first argue that Dartez had 90 days from the date the Amended Complaint was filed (June 30, 2016) to properly serve John Doe Nos. 1-7. However, as the KHP Defendants point out, John Doe Nos. 1-7 have never been served with process. Thus, the KHP Defendants argue that any claims against John Doe Nos. 1-7 should be dismissed for lack of personal jurisdiction, and are subsequently barred by the applicable statute of limitations.

         Dartez counters that shortly after he filed the Amended Complaint, he submitted a Request for Production “in an attempt to obtain the contact information (names, etc.) of all those involved in the incident, including the 7 John Does listed in the Amended Complaint.” However, according to Dartez, “the Defendants, and counsel for the Defendants, knowingly withheld the information from [him], and the Court(s), pertaining to the John Doe Defendants.” Thus, he argues, the fact that John Doe Nos. 1-7 have not been served is not due to his negligence. Rather, Dartez contends that this delay is due to the KHP Defendants' efforts to conceal the identities of John Doe Nos. 1-7.

         1. Dartez Has Shown Good Cause

         Fed. R. Civ. P. 4(c) provides that the “plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) . . . .” Rule 4(m) then provides:

If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own motion after notice to the plaintiff-must dismiss the action without prejudice against the defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

         Under Rule 4(m), the Court's preliminary inquiry is whether the plaintiff has shown good cause for the failure to timely effect service.[13] If the plaintiff shows good cause, then the plaintiff is entitled to a mandatory extension of time.[14] But if the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted.[15] “At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service.”[16]

         Good cause is likely to be found when: (1) the plaintiff's failure to timely effectuate service is the result of the conduct of a third person; (2) “the defendant has evaded service of the process or engaged in misleading conduct;” (3) the plaintiff has diligently tried to effect service or there are understandable mitigating circumstances; or (4) the plaintiff is proceeding pro se or in forma pauperis.[17] However, the fact that a defendant would not be prejudiced by an extension, by itself, does not equate to good cause.[18] Similarly, the fact that the statute of limitations has run-effectively barring a plaintiff's claims absent an extension-is also insufficient to demonstrate good cause by itself.[19]

         Here, Dartez has shown good cause for his failure to serve John Doe Nos. 1-7 within 90 days as required by Rule 4(m). First, Dartez's failure to identify or serve John Doe Nos. 1-7 can almost exclusively be attributed to Peters, Ware, and their counsel. Dartez did not know the name of the officers involved in his arrest. Thus, he filed a request for production, requesting the names of John Doe Nos. 1-7 just 49 days after filing his Amended Complaint. Had the KHP Defendants responded to Dartez's request within 30 days as required by Rule 34, [20] Dartez would theoretically have had 21 days left to serve John Doe Nos. 1-7. Yet Defendants requested three extensions of time, without providing a reason why additional time was needed to respond to Dartez's request.[21] From the date Dartez filed his request, until the date Defendants served Dartez with their responses and objections, 106 days had passed, along with the 90-day Rule 4 deadline.[22]

         And according to Dartez, “when a response was finally received from them, they denied any knowledge of any of the John Does, refused to recognize them as Defendants in this case, provided no response or defense for them and then suggested that they do not have any recollection of the persons assigned that day and lack the ability and/or authority to retrieve the information requested.”[23] Although Defendants deny withholding information from Dartez, they do not claim that they provided Dartez with the “names and contact information of the KHP tactical team members involved during the attack, ” as he had requested. Accordingly, Peters' and Ware's conduct-which can properly be classified as “evasive” and “misleading”-is primarily to blame for Dartez's failure to timely effectuate service.[24]

         Furthermore, the Court concludes that Dartez has diligently tried to effect service and the facts of this case amount to understandable mitigating circumstances. Dartez requested the names of John Doe Nos. 1-7 on August 18, 2016. If the KHP Defendants had timely responded to his request, he would have had three weeks to serve John Doe Nos. 1-7 before reaching the 90-day deadline. The extensions of time that the KHP Defendants received were out of Dartez's control. In fact, because Dartez is a pro se prisoner, the parties did not even confer with him before requesting the extensions. Dartez's efforts to effect service and the mitigating circumstances further support the conclusion that Dartez has shown good cause.

         Finally, even though the fact that the statute of limitations has run is, by itself, insufficient to demonstrate good cause, it does support the conclusion when viewed in conjunction with the KHP Defendants' misleading and evasive conduct. In fact, the Advisory Committee Notes to the 1993 Amendments to Rule 4(m) suggest that an extension should be granted (even if there is no good cause shown), if the applicable statute of limitations would bar a refiled action, or the defendant is evading service.[25] Wright and Miller explain:

There also will be instances in which the defendant either purposely evades service during the Rule 4(m) period or the defendant conceals a defect in process until the statute of limitations period has expired. These types of cases provide strong arguments for granting good-cause extensions of the period for service, as described above. Also, in the event a defendant moves to dismiss under these circumstances, the motion should be denied. The purpose of Rule 4(m) is to prod the slow-footed plaintiff, not to reward the crafty or evasive defendant.[26]

         Such is the case here. Dartez timely requested that Defendants Peters and Ware provide him with the names and contact information of the KHP Special Response Team members so he could serve them with process. Instead of timely providing Dartez with that information, the KHP Defendants requested numerous extensions (without conferring with Dartez) to “complete their analysis of Plaintiff's claims and prepare an appropriate response.” And while the KHP Defendants were diligently “analyzing” Dartez's claims, they were struck by good fortune: the 90-day Rule 4 deadline passed. At that point, the “appropriate response” finally became clear. They could simply argue that Dartez failed to serve John Doe Nos. 1-7 within 90 days, so the Court now lacks personal jurisdiction over them, and the claims should therefore be dismissed. And as an added bonus, because so much time has passed, Dartez would be barred from bringing a subsequent action against John Doe Nos. 1-7. The KHP Defendants' conduct-which can accurately be described as crafty and evasive-will not be rewarded by this Court.[27] In fact, the conduct strongly supports the Court's decision to grant Dartez a good-cause extension.

         For these reasons, the Court concludes that Dartez has shown good cause for his failure to serve John Doe Nos. 1-7 within 90 days. Accordingly, Dartez is entitled to a mandatory extension of time to serve John Doe Nos. 1-7 “for an appropriate period, ” which is explained below.[28]

         2. KHP Defendants Must Provide the Names and Addresses of John Doe Nos. 1-7

         Of course, an extension of time to serve John Doe Nos. 1-7 is useless to Dartez without knowledge of their identities. In his request for production, Dartez requested the names and contact information of all those involved in the arrest, including John Doe Nos. 1-7. But Dartez now asserts that the KHP Defendants have “denied any knowledge of any of the John Does, refused to recognize them as Defendants in this case . . . and suggested that they do not have any recollection of the persons assigned that day and lack the ability and/or authority to retrieve the information requested.” The KHP Defendants do not specifically deny Dartez's account. While the KHP Defendants are adamant that they did not withhold information from Dartez, they do not state that they provided him with the names and addresses he requested. The KHP Defendants very well could have denied any knowledge of the John Does or suggested that they do not have any recollection of the persons assigned that day.

         When a plaintiff is ignorant of defendants' true identities, the claimant is entitled to name a John Doe defendant. This practice preserves the plaintiff's right to name the defendant official later when his or her identity has been learned. But the claimant should attempt to learn the Doe defendants' true identities with reasonable diligence. If an incarcerated pro se plaintiff is unable to ascertain the identities through the discovery process, the Court may order the disclosure of the identity or identities of John Doe(s).[29]

         Here, Dartez attempted to ascertain the identities of John Doe Nos. 1-7 when he filed his request for production on August 18, 2016. But it does not appear that the KHP Defendants cooperated with that request. Accordingly, the Court orders that Defendants Peters and Ware shall take all reasonable steps to ascertain the full names and service addresses of John Doe Nos. 1-7 allegedly involved in the incident described in the Amended Complaint.

         The Court further orders that Defendants Peters and Ware shall submit to the Court and to Dartez the full names and service addresses of John Doe Nos. 1-7 within 30 days from the date of this Order.[30] The Court will not grant an extension of time. Failure to comply will result in a show cause hearing with the Court.

         Once the information is provided to the Court and to Dartez, Dartez is ordered to file a motion for leave to amend his Amended Complaint. This motion must seek to add the true identities of John Doe Nos. 1-7 as Defendants in this action. The Court orders Dartez to file this motion within 30 days of receiving the requested names and addresses. Upon resolution of that motion, Dartez will have 45 days to serve those individuals with the summons and complaint.

         3. Counsel Must Show Cause Why Sanctions Should Not Be Imposed

         In hindsight, it appears that the KHP Defendants may not have needed additional time to “analyze” Dartez's claims, but rather were delaying the proceedings until after the 90-day Rule 4 deadline had passed and the statute of limitations had run. As counsel should well know, the law favors deciding cases on the merits.[31] That is not to say that counsel is required to resolve all litigation meritoriously; attorneys are certainly encouraged to utilize the technical rules of procedure to their advantage. But they are not entitled to mislead the Court or seek to delay the proceedings based upon deceitful pretenses.

         Fed. R. Civ. P. 11(b) governs representations to the Court. By presenting to the Court a written motion, an attorney certifies that it is not being presented for any improper purpose, such as to harass or cause unnecessary delay.[32] The Court relies on these certifications, especially when the opposing party is not consulted beforehand. Additionally, an attorney is also certifying that the factual contentions made in the motion have evidentiary support.[33] Rule 11(c)(3) then provides that the Court, on its own initiative, may order an attorney, law firm, or party to show cause why conduct specifically described in the order has ...


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