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Alexander v. Bouse

United States District Court, D. Kansas

February 28, 2018

AMY E. ALEXANDER, Plaintiff,
v.
ANDREW BOUSE, STOPTECH, LTD., and STOP STICK, LTD., Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Background

         The 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.)

         Plaintiff 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.

         Plaintiff's 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)

         II. Legal Standards

         A. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1)

         Dismissal 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).

         Motions 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.

         B. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)

         The 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).

         III. Discussion

         A. Defendant Bouse's Motion to Dismiss

         Defendant 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.

         1. Plaintiff's Official Capacity Money Damages Claims Are ...


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