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McHenry v. City Of Ottawa

United States District Court, D. Kansas

September 26, 2017

CHRIS MCHENRY, Administrator of the Estate of Joseph Jennings, Deceased, Plaintiff,
v.
CITY OF OTTAWA, KANSAS, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This matter comes before the court on two motions. Defendants City of Ottawa, Kansas (“Ottawa”); Officers Abe Schmidt; Justin Bulcock; Casey Gilmore; Doug Waterman; Bryce Hart; and Derek Butters (collectively called the “Ottawa Defendants”) have filed a Motion to Dismiss. Doc. 29. Defendants Franklin County, Kansas by and through the Board of County Commissioners for Franklin County, Kansas (“Franklin County”); Hunter Dryden; Jesse Vega; Ricky Wilson; and Dwayne Woods (collectively called the “Franklin Defendants”) have filed a Motion for Judgment on the Pleadings. Doc. 31. The parties have filed responses and replies. For reasons explained below, the court grants defendants' motions in part and denies them in part. After identifying the governing facts, this order explains why.

         I. Facts

         The following facts come from plaintiff's First Amended Complaint (Doc. 21).[1] Because the current dismissal motions rely on Federal Rules of Civil Procedure 12(b)(6) and 12(c), the court must accept the pleaded facts as true and view them in the light most favorable to plaintiff. See Ramirez v. Dep't of Corrs., 222 F.3d 1238, 1240 (10th Cir. 2000) (explaining that, on a motion to dismiss, the court must “accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff” (citation omitted)). The court emphasizes that this standard controls the facts at this stage of the case. In short, the court expresses no opinion whether they represent the facts that, ultimately, the fact finder would believe.

         This lawsuit arises from the shooting of Joseph Jennings by Franklin County sheriff deputies and Ottawa police officers on the night of August 23, 2014. Mr. Jennings had a history of mental illness, including depression, anxiety disorder, bipolar disorder, and pseudo seizures. During the time relevant to this case, Mr. Jennings was living with Brandy Smith and Billy Bruton. Ms. Smith was one of Mr. Jennings's foster parents. On the evening of August 22, 2014, Mr. Jennings attempted to take his own life, but Ms. Smith called 911 before he could succeed. Officers Abe Schmidt, Justin Bulcock, and Derek Butters of the Ottawa Police Department responded to the emergency call and took Mr. Jennings to the hospital for treatment. On August 23, 2014, the hospital released Mr. Jennings.

         After his release, Mr. Jennings still was upset. He tried to calm down both alone and with Mr. Bruton but to no avail. Eventually, Mr. Jennings told Mr. Bruton that he wanted to go for a walk alone. Mr. Jennings walked to the Orscheln Farm and Home parking lot in Ottawa, located directly across the street from Mr. Bruton and Ms. Smith's home. At about 7:50 p.m. on August 23, 2014, Mr. Jennings called 911 to report that a man in the Orscheln parking lot had pulled out a black handgun, waved it around once, cocked the gun, and then put the gun back in his shirt. When asked to describe the man, Mr. Jennings described himself. The 911 dispatcher did not know that Mr. Jennings, in effect, had made a 911 call to report himself.

         Officers from both the Ottawa Police Department and the Franklin County Sheriff's Department responded to the call. The dispatcher told the officers to approach without lights and sirens because it is legal to carry a firearm openly in Kansas. Contrary to this instruction, some officers approached the location with lights and sirens. Within minutes of Mr. Jennings's 911 call, more than 10 officers had arrived at the scene, including all of the individual defendants. The responding officers included Officers Schmidt, Bulcock, and Butters, who had responded the night before to Mr. Jennings's first suicide attempt.

         When they arrived at the scene, the officers saw Mr. Jennings. He matched the description of the man described in the 911 call. The officers also saw that Mr. Jennings's left hand was tucked inside his waistband. The officers called out to Mr. Jennings using his first name. One officer said: “Joe, you're not in any trouble, ” and he told Mr. Jennings that the officer just wanted to talk with him. The officer then asked to see Mr. Jennings's hands. Mr. Jennings did not respond. Instead, he paced back and forth, quietly and calmly.

         Officers repeated their instructions, but again, Mr. Jennings did not respond. So, the officers began pointing their patrol rifles at Mr. Jennings. Officers positioned themselves about 30 yards away from Mr. Jennings and assumed defensive positions behind the corner of the Orscheln store and their patrol cars. The officers were wearing protective gear. Mr. Jennings never made any movement towards the officers. Officers continued to order Mr. Jennings to show his hands, but Mr. Jennings continued to keep his left hand in his waistband.

         Mr. Bruton watched the scene across the street and once he realized that Mr. Jennings was the center of the attention, he ran toward him. Mr. Bruton asked the officers to talk with Mr. Jennings but they refused. Mr. Bruton went home and immediately returned with Ms. Smith. She also asked to speak to Mr. Jennings, explaining that Mr. Jennings wanted the officers to shoot him. And, she told the officers that if Mr. Jennings was armed, he possessed, at most, a BB gun. Mr. Bruton and Ms. Smith approached Mr. Jennings and asked the officers' permission to tackle him. In response, the officers instructed Mr. Bruton and Ms. Smith to leave the scene.

         The officers then decided to try non-lethal force to subdue Mr. Jennings.[2] Officer Butters retrieved a beanbag gun from his patrol car. When he saw the beanbag gun, Mr. Jennings said, “Don't beanbag me, [expletive].” This was the first and only time Mr. Jennings spoke. Mr. Jennings then backed away from Officer Butters and several other officers. The officers followed him with their weapons drawn. Officer Butters fired a beanbag at Mr. Jennings, but it did not affect him.

         Officer Butters tried the beanbag gun again and, this time, the shot partially knocked Mr. Jennings off his feet. Mr. Jennings stood up, pulled his left hand out of his waistband, and pointed his hand at several officers located to his west. Later, officers asserted that they had seen something black in Mr. Jennings's hand that looked like a gun. Then, Officers Jesse Vega, Ricky Wilson, Casey Gilmore, Schmidt, and Bulcock (“shooting officers”) fired their weapons in response. Twenty-nine total shots were fired, and eight or nine of them struck Mr. Jennings. Mr. Jennings later died from these gunshot wounds. Officers Doug Waterman, Bryce Hart, Hunter Dryden, Dwayne Woods, and Butters (“non-shooting officers”) were present at the scene, but they did not fire their weapons. Seventeen minutes elapsed from the time Mr. Jennings called 911 to the time he was killed. After the shooting ended, officers discovered that the object Mr. Jennings had pulled from his waistband was a pair of sunglasses, not a gun.

         II. Claims Asserted

         Plaintiff Chris McHenry, the administrator of the Estate of Joseph Jennings, has asserted the following claims under 42 U.S.C. § 1983: (1) excessive force violation against Officers Schmidt, Vega, Wilson, Bulcock, and Gilmore-the shooting officers (Count I); (2) failure to intervene in the use of excessive force against Officers Waterman, Hart, Butters, Dryden, and Woods-the non-shooting officers (Count II); and (3) municipal liability for failing to train officers to use appropriate force asserted against the City of Ottawa and Franklin County (Count III). Plaintiff also brings a claim under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act against all defendants (Count IV). Plaintiff also has asserted claims for wrongful death based on battery against Officers Schmidt, Vega, Wilson, Bulcock, Gilmore, the City of Ottawa, and Franklin County (Count V). Finally, plaintiff brings a claim against all defendants for wrongful death based on negligence (Count VI).

         III. Legal Standard

         The Ottawa Defendants have moved to dismiss all claims in the case under Fed.R.Civ.P. 12(b)(6). They assert that all claims fail to state a claim under Rule 12(b)(6). The Franklin Defendants have moved for judgment on the pleadings under Rule 12(c). Courts evaluate a Rule 12(c) motion under the same standard as a Rule 12(b)(6) motion to dismiss. See Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012). The court thus will decide both motions together using the motion to dismiss standard.

         On a motion to dismiss for failure to state a claim, the court accepts all facts pleaded by the non-moving party as true and draws any reasonable inferences in favor of the non-moving party. Id. “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.'” Carter v. United States, 667 F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original)).

         Although this Rule “does not require ‘detailed factual allegations, '” it demands more than “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” which, as the Supreme Court has explained, simply “will not do.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). This is so because the court need not “accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 557 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal quotation omitted).

         When evaluating a motion to dismiss under Rule 12(b)(6), the court may consider the Complaint itself along with any attached exhibits and documents incorporated into it by reference. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1180 (10th Cir. 2007); Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 964-65 (10th Cir. 1994)). A court also “‘may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.'” Id. (quoting Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (internal quotation omitted)). But, even where such documents exist, the governing cases permit the court to consider them-or not-as a matter of discretion. Lowe v. Town of Fairland, Okla., 143 F.3d 1378, 1381 (10th Cir. 1998).

         Here, the Ottawa and Franklin Defendants ask the court to consider video evidence they have submitted as part of the facts governing these two motions. Doc. 30 at 4-5; Doc. 42 at 7-8. The Franklin Defendants also refer to two additional documents in their motion: the County Prosecutor's report on the use of deadly force against Mr. Jennings and the criminal charges filed against Mr. Jennings when he was a minor. Doc. 32 at 10, 14. The court declines to consider any of these documents at this stage. None of the documents are attached as an exhibit or incorporated by reference into the Complaint. Nor are these documents central to plaintiff's claims.

         The Ottawa Defendants urge the court to follow the logic of Hyung Seok Koh v. Graf., No. 11-cv-2605, 2013 WL 5348326 (N.D. Ill. Sept. 24, 2013). In that case, the court considered a video submitted by defendants to support their motion to dismiss. Id. at *10. The video depicted the incident put at issue by the Complaint. Id. The court concluded it could consider the video based on the Supreme Court's decision in Scott v. Harris, 550 U.S. 372 (2007). Id. at *9. In Scott, the Supreme Court held a district court could consider a video to discredit a plaintiff's version of the facts, albeit at the summary judgment stage. Scott, 550 U.S. at 380. Hyung held that a court also properly could consider a video to decide a motion to dismiss, thus extending Scott's holding and reasoning the video can “utterly discredit” plaintiff's allegations in the Complaint. Id. at *9.

         The court declines to apply Scott as expansively as Hyung Seok Koh did. The standard governing a motion to dismiss differs from the one applied at summary judgment. At the summary judgment stage, the moving party must show that “no genuine dispute of material fact exists.” Scott, 550 U.S. at 380. Once the moving party has carried that burden, the non-moving party must show there is more than “some metaphysical doubt as to the material facts.” Id. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. Applying this logic to video evidence, Scott reasoned that when a video clearly shows “no genuine dispute of material fact” exists and the plaintiff is unable to produce other evidence to contradict the video's content, then summary judgment is appropriate. See id.

         But, this reasoning does not fit a motion governed-as here-by the Rule 12(b)(6) standard. On a motion to dismiss, the court cannot compare the evidence that will govern the case at trial or even judge the motion by the summary judgment facts. The court cannot evaluate competing evidence to discern whether a genuine factual issue exists. Instead, the court must accept the facts pleaded by the non-moving party and draw any reasonable inferences in that party's favor. Burke, 698 F.3d at 1228. If the video evidence would end the litigation, then defendants, using the approach adopted by Scott, can file a motion for summary judgment and explain why the video dispels any material fact disputes. See Fed. R. Civ. P. 56(b), (d); see also Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110 (10th Cir. 2017) (holding plaintiff had not shown additional discovery was needed when he could not explain “how additional time would allow for rebuttal of the adversary's argument for summary judgment”). Given the limit of Scott's holding, the standard governing this motion, and the availability of summary judgment procedure, the court, in its discretion, declines to consider the video tendered by defendants.[3]

         IV. Analysis

         A. Section 1983 Claims

         Plaintiff asserts his first three claims under 42 U.S.C. § 1983. Doc. 21 at 10, 14, 16. The first one asserts that Officers Schmidt, Vega, Wilson, Bulcock, and Gilmore[4] used excessive lethal force in violation of the Fourth Amendment. Doc. 21 at 10. Plaintiff's second claim asserts that Officers Waterman, Hart, Butters, Dryden, and Woods failed to intervene to protect Mr. Jennings's constitutional rights.[5] Doc. 21 at 14. And third, plaintiff claims that Ottawa and Franklin County failed to train their officers how to use the correct amount of force. Doc. 21 at 16.

         A defendant is liable under § 1983 if, under color of state law, the defendant deprives a person of a constitutional right. 42 U.S.C. § 1983. Defendants make three arguments for dismissal of plaintiff's § 1983 claims. First, they argue that plaintiff's Complaint fails to allege that the shooting officers are not protected by qualified immunity. Doc. 30 at 10-14, 18-20; Doc. 32 at 17-26, 29-34. Second, defendants contend that plaintiff has failed to allege a constitutional violation adequately against the non-shooting officers. Doc. 30 at 14-16; Doc. 32 at 26-29. The claim against the non-shooting officers theorizes that they failed to intervene to prevent the shooting officers from shooting Mr. Jennings. Third, defendants argue that Ottawa and Franklin County can incur no liability on a theory that they failed to train their officers. Doc. 30 at 20-23; Doc. 32 at 34-38.

         The court addresses these three arguments in turn, in subsections 1, 2, and 3 of this section.

         1. Qualified Immunity on the Excessive Use of Force

         Qualified immunity protects officers from suit when the officer's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. City & Cty. of S.F., Cal. v. Sheehan, 135 S.Ct. 1765, 1774 (2015). “The plaintiff bears the burden of establishing both (1) that the defendant violated a constitutional right and (2) that the right had been clearly established by the time of the violation.” Tenorio v. Pitzer, 802 F.3d 1160, 1164 (10th Cir. 2015). Here, the Complaint alleges that the shooting officers “violated Mr. Jennings's clearly established right to be free from excessive force.” Doc. 21 ¶ 64. Defendants respond, alleging that (1) the Complaint alleges no violation of Mr. Jennings's right to be free from excessive force and (2) even if the Complaint does allege a constitutional violation, it does not allege the shooting officers violated clearly established law.

         a. Constitutionally Excessive Force

         A claim that law enforcement officers used excessive force to effect a seizure is governed by the Fourth Amendment's “reasonableness” standard.[6]Cty. of L.A., Cal. v. Mendez, 137 S.Ct. 1539, 1546 (2017). “Determining whether the force used to affect a particular seizure is ‘reasonable' under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'” Graham v. Connor, 490 U.S. 386, 396 (1989). The court must pay ‚Äúcareful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by ...


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