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Dartez v. Peters

United States District Court, D. Kansas

March 2, 2018

SAMUEL LEE DARTEZ, II, Plaintiff,
v.
RICK PETERS, et al., Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         Plaintiff Samuel Lee Dartez, II brings this action against multiple Kansas Highway Patrol (“KHP”) officers and supervisors (collectively the “KHP Defendants”) and three Riley County Police Department detectives (the “RCPD Defendants”).[1] Plaintiff alleges that his Fifth, Eighth, and Fourteenth Amendment rights were violated during the course of his 2014 arrest. There are several motions pending before this Court, including 1) the KHP Defendants' Motion to Reconsider (Doc. 89), 2) KHP Defendants Peters and Ware's Motions for Summary Judgment (Docs. 93, 96), 3) Plaintiff's Motion for Leave to Amend Complaint (Doc. 119), and 4) Plaintiff's Motion for Order Denying Defendants' Motions for Summary Judgment (Doc. 129). For the reasons discussed below, the Court grants Plaintiff's motions, and the Court denies Defendants' motions.

         I. Factual and Procedural Background

         Plaintiff claims that on November 13, 2014, certain officers used excessive force when arresting him, that others failed to intervene to prevent the excessive force, and that he was subsequently denied necessary medical care. Plaintiff originally filed his Complaint on November 12, 2015, and included the KHP as a defendant. Because Plaintiff was a prisoner filing pro se when he filed the action, his Complaint was subject to screening pursuant to 28 U.S.C. § 1915A. On June 2, 2016, after conducting this screening process and reviewing the Complaint, Magistrate Judge Waxse dismissed Plaintiff's initial Complaint but granted Plaintiff 30 days in which to file an amended complaint naming proper defendants and setting forth sufficient facts. The Court noted that the KHP was not a proper defendant because the KHP, as an agency in the State of Kansas, was entitled to absolute immunity and was not a “person” amenable to suit under § 1983. The Court also noted that in Plaintiff's Amended Complaint, Plaintiff must assert a defendant's personal participation in the civil rights action and that Plaintiff could use fictitious names such as “John Doe” but must provide sufficient information so that each defendant could be identified for purposes of service.

         On June 30, 2016, Plaintiff timely filed his Amended Complaint. In Plaintiff's Amended Complaint, he asserted multiple claims under 42 U.S.C. § 1983 against Defendants. The KHP Defendants include: Rick Peters (a KHP Special Response Team leader), Lieutenant Peter Ware (a KHP tactical team leader), and seven John Does. Plaintiff alleges that these John Does were members of the KHP's tactical team and participated in his arrest.

         On August 10, 2016, after reviewing the Amended Complaint, Judge Waxse issued an order directing the clerk of the court to prepare waiver of service forms. In that same order, Judge Waxse denied without prejudice Plaintiff's motion for appointment of counsel. The next day, the clerk's office issued waivers of service.

         On August 18, 2016, Plaintiff filed a Certificate of Service stating that he had delivered a First Request for Production of Documents to Defendants. In this request, he stated that he sought statements and records relating to his arrest. He also stated that he wanted any and all information on all persons involved in his arrest, including the names and contact information of the KHP tactical team members (whether listed as a John Doe in the complaint or not).

         On September 13, 2016, counsel for KHP Defendants Peters and Ware entered an appearance and asked for an extension of time (which he received) to respond to Plaintiff's Amended Complaint and Plaintiff's request for production of documents. On October 11, 2016, counsel asked for an additional thirty-day extension. Judge Waxse granted this request and extended the time to respond to Plaintiff's Amended Complaint and request for production of documents to November 10, 2016.

         On November 10, 2016, counsel for KHP Defendants Peters and Ware asked for a third extension of time of 11 business days, or until November 28, to respond to the Amended Complaint and requests for production. On November 28, 2016, the KHP Defendants filed a Motion to Dismiss.[2] In this motion, they asserted numerous reasons for dismissal. One ground, relevant to the current motions before this Court, included that the John Doe Nos. 1-7 (employed as KHP tactical team members) had never been served with process and that the claims against them were now barred by the applicable two-year statute of limitations that expired on November 14, 2016. On this same date, the KHP Defendants filed a motion to stay deadlines pending the Court's ruling on their motion to dismiss.

         On December 2, 2016, KHP Defendants Peters and Ware filed a Certificate of Service indicating that they served their response and objections to Plaintiff's discovery request. In the response to Plaintiff, Defendants indicated that they did not have any responsive documents to Plaintiff's request for production. On December 9, 2016, Judge Waxse entered an order staying the case, including discovery, until the Court ruled upon the two pending dispositive motions.

         On July 19, 2017, this Court issued an Order granting in part and denying in part the KHP Defendants' Motion to Dismiss. In this Order, the Court discussed the KHP Defendants' argument that John Doe Nos. 1-7 had not been served with process and thus should be dismissed for lack of personal jurisdiction. The Court found that Plaintiff had shown good cause for his failure to timely effect service on John Doe Nos. 1-7 within 90 days of the Amended Complaint being filed. In this Order, the Court noted that Plaintiff's failure to identify or serve the John Does could be attributed to KHP Defendants' counsel's evasiveness in responding to Plaintiff's request for production in documents. The Court ordered the KHP Defendants' counsel to show cause why sanctions should not be imposed for this evasiveness. Furthermore, the Court found that Plaintiff had diligently tried to effect service and that the facts of the case amounted to mitigating circumstances. Thus, the Court granted Plaintiff an extension of time to serve John Doe Nos. 1-7. The Court further ordered KHP Defendants Peters and Ware to submit the full names and service addresses of the John Does within 30 days of the Order and failure to do so would result in a show cause hearing. Plaintiff was ordered to file a Motion for Leave to Amend his Complaint within 30 days of receiving the true identities of the John Does.

         On August 2, 2017, Defendants Peters and Ware filed their response to the Court's Show Cause Order. On August 9, the KHP Defendants' filed a Motion for Reconsideration of the Court's order denying and granting their previous Motion to Dismiss. This motion is currently before the Court.

         On August 10, 2017, the KHP Defendants filed a Notice of Disclosure in Compliance with Court Order and identified 34 individuals as potential John Does. On August 11, the Court appointed Plaintiff counsel. On August 18, KHP Defendants Peters and Ware each filed a Motion for Summary Judgment (Docs. 93, 96). Counsel for Plaintiff entered his appearance on this date too. On August 23, based on Defendants' Notice of Disclosure, the Court set a show cause hearing for September 5, 2017. The Court also extended Plaintiff's deadline for filing an amended complaint (and responding to the KHP Defendants' pending motions) to October 9, 2017.

         The Court held a hearing on September 5, 2017. In this hearing, the Court found that the KHP Defendants' response of identifying 34 individuals as potential John Does violated the Court's previous order of identifying the officers specifically involved in Plaintiff's arrest and found counsel in contempt of court. During this hearing, the KHP Defendants' counsel identified eight individual KHP officers who were likely involved in the physical extraction of Plaintiff from his vehicle and his subsequent arrest.[3]

         On October 5, 2017, Plaintiff filed a Motion for Leave to File an Amended Complaint (Doc. 119). In this motion, Plaintiff seeks to add the true identities of John Does 1-7. Plaintiff also filed a Motion for Order Denying Defendants' Motions for Summary Judgment (pursuant to Fed.R.Civ.P. 56(d)) or in the Alternative for an Extension of Time to Respond (Doc. 129). The Court will first consider Plaintiff's Motion for Leave to Amend Complaint and Defendant KHP's Motion for Reconsideration. The Court will then address Plaintiff's Motion seeking the denial of KHP Defendants Peters and Ware's summary judgment motions.

         II. Plaintiff's Motion to Amend Complaint and Defendants' Motion for Reconsideration (Docs. 119, 89)

         Plaintiff seeks leave from the Court to file a Second Amended Complaint. Fed.R.Civ.P. 15(a)(1) provides that “[a] party may amend its pleading once as a matter of course” within 21 days after serving it, or within 21 days after service of a responsive pleading or a Rule 12 motion. “In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave.”[4] “The court should freely give leave when justice so requires.”[5]

         Rule 15 is intended “to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.' ”[6] The Court may deny leave to amend, however, based on “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.”[7]

         Plaintiff does not make any substantive changes to the factual allegations in the previous complaint but seeks to substitute the actual names of eight John Doe defendants and include service of process information for those Defendants. Plaintiff is following this Court's previous order directing Plaintiff to seek leave to file an amended complaint after he obtained the information on the John Doe defendants.

         The KHP Defendants oppose the filing of a Second Amended Complaint. They make a number of arguments as to the futility of the amendment including that 1) the claims against Peters and Ware are not viable, [8] 2) the claims do not relate back to the First Amended Complaint, 3) the claims against the John Doe Defendants are barred by the statute of limitations, and 4) equitable considerations do not toll the statute of limitations.[9]

         A. Statute of Limitations

         Claims brought under 42 U.S.C. § 1983 are governed by the forum state's statute of limitations for personal injury actions.[10] In Kansas, there is a two-year statute of limitations for personal injuries.[11] Here, the incident involving Plaintiff occurred on November 13, 2014. Plaintiff filed suit within this time on November 12, 2015. Plaintiff named the KHP as a defendant and Plaintiff's Complaint was subject to screening pursuant to 28 U.S.C. § 1915A. On June 2, 2016, Judge Waxse found that Plaintiff's suit against the KHP was not proper as the KHP was not a “person” for purposes of § 1983 and directed Plaintiff to file an amended complaint naming the proper defendants, including any John Does if necessary. On June 30, 2016, Plaintiff filed his Amended Complaint naming two individual Defendants from the KHP and seven additional John Does employed by the KHP. On November 13, 2016, none of the John Doe Defendants had been served. Thus, the statute of limitations expired on that date absent any reason for tolling or extending the statute of limitations.

         B. Tolling

         Generally, the inclusion of a John Doe in a complaint does not stop the statute of limitations from running.[12] There are circumstances, however, in which a plaintiff's claim may still be timely. “[A]t least one of two conditions must be satisfied: 1) the limitations period must have been tolled at least until plaintiff filed his amended complaint; or 2) the amended complaint must relate back to the date of filing the original complaint pursuant to Rule 15(c).”[13] Questions related to tolling and application are also governed by the forum state's law.[14] With regard to tolling, “a trial court [in Kansas] cannot toll a limitations period; only the legislature, by statute, may do so.”[15] “Despite this seemingly hard and fast rule, Kansas courts have recognized equitable tolling and the related concepts of equitable estoppel and the ‘unique circumstances doctrine.' ”[16]

         C. Unique Circumstances Doctrine and Equitable Tolling

         In this case, Plaintiff does not attempt to toll the limitations period statutorily because there is no basis to do so. Instead, Plaintiff proceeds under equitable tolling, the unique circumstances doctrine, and equitable estoppel.[17] The unique circumstances doctrine is limited in scope and only involves situations where non-party error is at issue.[18] Equitable tolling applies when a person has been pursuing his rights diligently and some “extraordinary circumstance” prevented the timely filing.[19]

         As an initial matter, Defendants conflate the unique circumstances doctrine with the “extraordinary circumstance” inquiry under equitable tolling. These are two separate theories. To be sure, case law from Kansas only occasionally discusses equitable tolling and generally the circumstances do not warrant it.[20] In contrast, the unique circumstances doctrine is discussed more frequently in Kansas.[21] The unique circumstances doctrine considers the non-party error, whether the party's conduct affected the non-party error, and whether the party reasonably relied upon the non-party's action.[22] Equitable tolling, however, requires that a plaintiff has been pursuing his rights diligently and some “extraordinary circumstance” prevented the timely filing.[23] Because equitable tolling and the unique circumstances doctrine have different elements, these two equitable doctrines are separate.

         Defendants further contend that it is questionable “whether equitable tolling based on ‘unique circumstances' ” is a viable legal doctrine under Kansas law and Defendants state that this Court should certify the question to the Kansas Supreme Court. Defendants' contention, however, is an incorrect statement and ignores the discussion in several Kansas cases. In Mangus v. Stump, the Kansas Court of Appeals discussed the confusion surrounding the unique circumstances doctrine and whether it was still viable in some cases.[24] Noting that the question of whether to extend an appeal period on the basis of unique circumstances was up before the Kansas Supreme Court and had not yet been answered, the Kansas Court of Appeals discussed the viability of the doctrine with regard to extending the statute of limitations.[25] The court noted the distinction between applying the unique circumstances doctrine to jurisdictional or non-jurisdictional issues.[26]With jurisdictional issues, such as statutory deadlines for filing an appeal, the unique circumstances doctrine cannot be employed.[27] The statute of limitations, however, is an affirmative defense that can be waived and is not jurisdictional.[28] In Mangus, the issue related to a statute of limitations timeframe, and the Kansas Court of Appeals stated “[n]ow that we have established that the unique circumstances doctrine is still viable, in the appropriate situation, to prevent a cause of action from being barred by the statute of limitations, the question then becomes whether it was proper for the district court to apply the doctrine to the facts of this case.”[29] Thus, the Kansas Court of Appeals applied it in Mangus to a non-jurisdictional statute of limitations timeframe and determined that it was applicable to prevent the plaintiff's cause of action from being barred by the statute of limitations.[30]

         Several months after the Kansas Court of Appeals' decision in Mangus, the Kansas Supreme Court decided Board of County Commissioners of Sedgwick County v. City of Park City.[31] In Park City, the Kansas Supreme Court found that the unique circumstances doctrine cannot be used to extend jurisdictional statutory deadlines.[32] The subsequent holding in Park City relating to jurisdictional statutory deadlines, however, does not disturb the conclusion in Mangus. Furthermore, the Kansas Supreme Court declined to review the Mangus case. Accordingly, the Kansas Court of Appeals decision remains good law and the applicability of the unique circumstances doctrine appears viable as applied to non-jurisdictional timeframes (statute of limitations).[33]

         1. Unique Circumstances Doctrine

         Plaintiff contends that the unique circumstances doctrine is applicable here because he was subject to a non-party's (the Court) delay. The Court agrees. Plaintiff filed suit on November 12, 2015.[34] This date was approximately one year after the events in question (November 13, 2014) and one year prior to the expiration of the statute of limitations (November 13, 2016). Because Plaintiff was a pro se prisoner, his Complaint was subject to the Court's screening process. The Court did not make any ruling on Plaintiff's Complaint until June 2, 2016-203 days after Plaintiff filed his Complaint and while the statute of limitations continued to run. On this date, the Court ordered Plaintiff to file an amended complaint within thirty days to name the proper Defendants. Specifically, as it relates to the KHP Defendants, the Court found that the KHP (as ...


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