United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten, Judge
Jeff Lloyd Smith originally filed this action in the District
Court of Sedgwick County, Kansas, against defendants City of
Wichita, Kansas (“City”) and Wichita Police
Department Police Chief Nelson Mosley (“Chief
Mosley”). Plaintiff alleges that two Wichita Police
Department (“WPD”) officers engaged in conduct
that “amounted to excessive, indiscriminate,
unreasonable, inhumane and unlawful use of force.”
(Dkt. 1-1, at 3). Defendant removed the action to this court
pursuant to 28 U.S.C. §§ 1441, 1446, and D. Kan.
Rule 81.1 under federal question jurisdiction, 28 U.S.C.
§ 1331. This matter is before the court on
plaintiff's motion for remand claiming this court lacks
subject matter jurisdiction (Dkt. 4). For the reasons
provided below, the court denies plaintiff's motion.
4, 2015, plaintiff was riding in the passenger seat in a
vehicle driven by another individual known as
“Skip.” A police cruiser drove past Skip's
vehicle in the opposite direction. The cruiser turned around
and began to follow Skip's vehicle. Skip accelerated to
an excessive rate attempting to elude the police. Plaintiff
repeatedly asked Skip to stop. Skip eventually pulled into a
warehouse area and jumped from the car, but the car continued
to roll forward. Plaintiff tried to stop the car by throwing
his left leg over the console to apply the brakes, however,
plaintiff's seat belt was fastened and he remained in the
passenger seat while trying to stop the vehicle.
unknown WPD officers ran to the vehicle with their firearms
drawn, and shot at plaintiff. Plaintiff suffered multiple
gunshot wounds. The WPD officers then pulled plaintiff from
the passenger seat, across the driver's seat, and out of
the car. The WPD officers pummeled plaintiff and handcuffed
him. Plaintiff, who was unarmed and alleges he committed no
criminal offense, suffered permanent, life altering physical
injuries as a result of the WPD officers' conduct.
courts are courts of limited jurisdiction; they must have a
statutory basis for their jurisdiction.” Dutcher v.
Matheson, 733 F.3d 908, 984 (10th Cir. 2013) (quoting
Rural Water Dist. No. 2 v. City of Glenpool, 698
F.3d 1270, 1274 (10th Cir. 2012)). A federal court has
jurisdiction over a claim if it “aris[es] under the
Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331. Civil actions filed in state courts
over which federal district courts have original jurisdiction
“may be removed by the defendant . . . to the district
court of the United States for the district and division
embracing the place where such action is pending.” 28
U.S.C. § 1441(a). “If at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.” 28
U.S.C. § 1447(c).
well-pleaded complaint rule usually governs whether a claim
arises under federal law. Sharp v. Wellmark, Inc.,
744 F.Supp.2d 1191, 1194 (D. Kan. 2010). “The rule
makes the plaintiff the master of his claim; he or she may
avoid federal jurisdiction by exclusive reliance on state
law.” Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987). Even if a well-pleaded complaint does not
specifically seek relief under federal law, removal may still
be proper under the substantial-federal-question doctrine.
See Grable & Sons Metal Prods., Inc. v. Darue
Eng'g & Mfg., 545 U.S. 308, 314 (2005). This
doctrine applies when “a state-law claim necessarily
raise[s] a stated federal issue, actually disputed and
substantial, which a federal forum may entertain without
disturbing any congressionally approved balance of federal
and state judicial responsibilities.” Id.
party claiming jurisdiction has the burden to show
jurisdiction by a preponderance of the evidence. Karnes
v. Boeing Co., 335 F.3d 1189, 1193 (10th Cir. 2003).
There is a presumption against finding federal jurisdiction,
until the party invoking it makes an adequate showing.
Id. at 1194. “Doubtful cases must be resolved
in favor of remand.” Colbert v. Union Pac. R. R.
Co., 485 F.Supp.2d 1236, 1239 (D. Kan. 2007) (quoting
Thurkill v. The Menninger Clinic, Inc., 72 F.Supp.2d
1232, 1234 (D. Kan. 1999)).
state petition, plaintiff claims that the WPD officers were
acting in their official capacity and under color of law when
they stopped Skip's vehicle and shot and injured
plaintiff. Plaintiff asserts that the shooting was an
immediate arrest without probable cause, thereby violating
his Fourth and Fourteenth Amendment right to be free of
unreasonable seizures. He also claims that the shooting was
cruel and unusual punishment in violation of the Eighth
claims that defendant is vicariously liable for Chief
Mosley's and the WPD officers' negligence under the
doctrine of respondeat superior and/or other doctrines
recognized by law because the WPD officers used force that
was reckless, careless, and grossly negligent in violation of
WPD policies/regulations. Plaintiff also alleges that
defendant is negligent for the hiring and retention of Chief
Mosley and the two WPD officers who shot and injured him.
Plaintiff seeks actual and exemplary damages and costs
pursuant to the Kansas Tort Claims Act (“KTCA”),
Kan. Stat. Ann. §§ 75-6101 to 75-6115, and state
claims that he did not refer to 42 U.S.C. § 1983, and
asserts that his only theory of liability is negligence.
Plaintiff states that he is raising a “negligence per
se” claim when he was arrested without probable cause
and shot by the WPD officers. (Dkt. 6, at 4). Plaintiff
recognizes that he alleged the officers' conduct violated
the Fourth and Eighth Amendments, but argues that these