United States District Court, D. Kansas
CHRIS MCHENRY, Administrator of the Estate of Joseph Jennings, Deceased, Plaintiff,
CITY OF OTTAWA, KANSAS, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
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.
following facts come from plaintiff's First Amended
Complaint (Doc. 21). 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.
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.
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.
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.
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.
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.
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
officers then decided to try non-lethal force to subdue Mr.
Jennings. 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.
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.
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).
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.
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)).
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
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).
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
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.
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.
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.
Section 1983 Claims
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 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. 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
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.
court addresses these three arguments in turn, in subsections
1, 2, and 3 of this section.
Qualified Immunity on the Excessive Use of Force
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.
Constitutionally Excessive Force
that law enforcement officers used excessive force to effect
a seizure is governed by the Fourth Amendment's
“reasonableness” standard.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 “careful
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 ...