United States District Court, D. Kansas
AMY E. ALEXANDER, Plaintiff,
ANDREW BOUSE, STOPTECH, LTD., and STOP STICK, LTD., Defendants.
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
matter comes before the court upon defendants Stop Stick,
Ltd. and StopTech, Ltd.'s Motions to Dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) (Docs. 11, 13) and defendant Kansas
Highway Patrol (“KHP”) Trooper Andrew Bouse's
Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and
12(b)(6) (Doc. 25). Plaintiff Amy E. Alexander brings claims
against defendant Bouse pursuant to 42 U.S.C. § 1983 for
alleged violations of her substantive due process rights and
under Kansas law for negligence. She brings negligence and
products liability claims against defendants Stop Stick, Ltd.
and Stoptech, Ltd. For the reasons explained below, the
motions are granted in part and denied in part as moot.
amended complaint alleges that on February 15, 2015,
plaintiff was driving her car southbound on Highway 69 in
Miami County, Kansas. She came to a road block, where a KHP
Trooper, defendant Bouse, directed her to pull over. She
pulled over as far as she could, but the way was at least
partially blocked by other pulled-over vehicles. Defendant
Bouse had blocked one southbound lane with his car and the
other with “stop sticks.” “Stop
sticks” are strips of material linked together with
protruding spikes, used to puncture tires. Plaintiff was not
given any other directions or information. Defendant Bouse
exited the roadway. Shortly thereafter, Steven Ray Smith
approached from the incorrect direction and drove his Ford
F-150 at an estimated 90-100 mph over the stop sticks,
rupturing his left front tire and causing him to lose control
of the vehicle. Smith's truck hit plaintiff's car,
collapsing the driver's side, pinning her in, and causing
life-threating injuries. Plaintiff's “injuries
included a torn aorta, a shattered pelvis, a lacerated
spleen, left kidney hematoma, pneumothorax, hemothorax, a
broken nose and broken ribs. . . .” (Doc. 3 at 7.)
claims Smith had been observed traveling in the wrong lane in
both Linn and Miami Counties, and that the Miami County
Sheriff's Department was pursuing him. The pursuit
covered nearly twenty miles and passed around fifty other
cars without incident before the collision with plaintiff.
Plaintiff claims that defendant Bouse was not initially
involved in Smith's pursuit, was not asked or approved to
join the pursuit either by a KHP supervisor or by the Miami
County Sheriff's Department, and his actions violated the
mandatory rules of conduct promulgated by the KHP when he
created a roadblock without supervisor authorization and
under unsafe conditions.
First Amended Complaint alleges the following counts:
I. 42 U.S.C. 1983 § Due Process Claim (Bouse)
II. Negligence under the Kansas Tort Claims Act (Bouse)
III. Negligent Failure to Warn - common law (Stop Tech)
IV. Strict Liability/Failure to Warn (Stop Tech)
V. Negligent Failure to Warn (Stop Tech)
VI. Negligent Failure to Warn - common law (StopStick)
VII. Strict Liability/Failure to Warn (StopStick)
VIII. Negligent Failure to Warn (StopStick) IX. Loss of
Consortium (All Defendants)
Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1)
pursuant to Fed. R. of Civ. P. 12(b)(1) is appropriate when
the court lacks subject matter jurisdiction over a claim.
Plaintiff claims that subject matter jurisdiction exists and
has the burden of establishing it. Port City Props. v.
Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir.
2008). Because federal courts are courts of limited
jurisdiction, there is a strong presumption against federal
jurisdiction. Sobel v. United States, 571 F.Supp.2d
1222, 1226 (D. Kan. 2008).
for lack of subject matter jurisdiction generally take one of
two forms: (1) a facial attack on the sufficiency of the
complaint's jurisdictional allegations; or (2) a
challenge to the actual facts upon which subject matter
jurisdiction is based. Holt v. United States, 46
F.3d 1000, 1002-03 (10th Cir. 1995). For a facial challenge,
the court accepts the plaintiff's factual allegations
regarding jurisdiction as true. Id. at 1002. But for
a factual attack, the court does not presume that the
plaintiff's allegations are true. Id. at 1003.
Rather, “[a] court has wide discretion to allow
affidavits, other documents, and a limited evidentiary
hearing to resolve disputed jurisdictional facts under Rule
12(b)(1). In such instances, a court's reference to
evidence outside the pleadings does not convert the motion to
a Rule 56 motion.” Id.
Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)
court will grant a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) only when the factual allegations
fail to “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). Although the factual allegations need
not be detailed, the claims must set forth entitlement to
relief “through more than labels, conclusions and a
formulaic recitation of the elements of a cause of
action.” In re Motor Fuel Temperature Sales
Practices Litig., 534 F.Supp.2d 1214, 1216 (D. Kan.
2008). The allegations must contain facts sufficient to state
a claim that is plausible, rather than merely conceivable.
Id. “All well-pleaded facts, as distinguished
from conclusory allegations, must be taken as true.”
Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.
1984); see also Ashcroft v. Iqbal, 556 U.S. 662, 681
(2009). The court construes any reasonable inferences from
these facts in plaintiff's favor. Tal v. Hogan,
453 F.3d 1244, 1252 (10th Cir. 2006).
Defendant Bouse's Motion to Dismiss
Bouse's motion to dismiss raises several arguments: (1)
any claim against defendant for monetary damages in his
official capacity is barred by sovereign immunity; (2) any
claims against defendant in his individual capacity are
barred by qualified immunity; and (3) if the court dismisses
the federal claims, it should not exercise supplemental
jurisdiction over the Kansas Tort Claims Act
(“KTCA”) negligence claim, which also fails to
state a claim and is barred because defendant Bouse has
discretionary function and police protection immunity.
Plaintiff's Official Capacity Money Damages Claims Are