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Smith v. City of Wichita

United States District Court, D. Kansas

August 10, 2017



          J. Thomas Marten, Judge

         Plaintiff 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”).[1] 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.

         I. Factual Background

         On May 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.

         Two 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.

         II. Legal Standards

         “Federal 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).

         The 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.

         The 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)).

         III. Plaintiff's claims

         In his 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 Amendment.

         Plaintiff 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 common law.

         IV. Discussion

         Plaintiff 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 ...

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