United States District Court, D. Kansas
CARLOS J. SILVA, Plaintiff,
RON EKIS, Sergeant, Topeka Police Department, in his individual and official capacity, et al., Defendants.
MEMORANDUM & ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
matter comes before the court upon defendants Michael Burns,
Martin Cordero, Justin Joyce, Jason Junghans, and Adam
Kary's Motion to Dismiss (Doc. 101). Plaintiff Carlos J.
Silva's claims relate to an incident that occurred on
January 20, 2013, when plaintiff was walking home on SW Wayne
Street in Topeka, Kansas. Plaintiff claims that defendants
used, or failed to intervene to stop the use of, excessive
force in violation of plaintiff's Fourth Amendment rights
when they seized him, handcuffed him, tased him, beat him up,
and cut off his hair. Plaintiff claims that defendants'
actions resulted in plaintiff's five-day stay in the ICU
and caused him emotional distress and lasting physical
release, plaintiff was not charged with any crime. Plaintiff
filed a Biased Policing Complaint with the Kansas Attorney
General's Office. Then in June 2014, plaintiff mailed a
claim to the Joint Committee on Special Claims Against the
State. On July 31, 2014, the Shawnee County District
Attorney's Office filed a criminal complaint against
plaintiff for battery against a law enforcement officer and
interference with law enforcement based on the January 20,
2013 incident. Plaintiff disputes the factual assertions in
the affidavit attached to his criminal complaint, which was
signed by defendant Ekis. Plaintiff claims that defendant
Ekis was his initial attacker on January 20, 2013.
Second Amended Complaint (Doc. 92) contains three counts:
Count I claims that defendants used excessive force under 42
U.S.C. § 1983, violating plaintiff's Fourth
Amendment right to be free from unreasonable searches and
seizures; Count II claims that defendants failed to intervene
when plaintiff was subjected to excessive force, also in
violation of § 1983; and Count III claims intentional
infliction of emotional distress. All claims are brought
against all defendants.
defendants were added to this suit with plaintiff's
Second Amended Complaint (Doc. 92), filed November 17, 2017.
Previously, they were represented as Jane and/or John Doe
defendants who are either City of Topeka Police Officers or
Shawnee County Sheriff's Deputies, and who allegedly took
part in the January 20, 2013 incident. Once plaintiff learned
the identities of the officers who were present on January
20, 2013, he sought and was granted leave to amend his
pleading to name them individually.
argue that plaintiff's claims against moving defendants
do not relate back to plaintiff's original complaint
under Fed.R.Civ.P. 15(c)(1)(C) because the statute of
limitations had expired by the time they were served.
Motions 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.
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).
that a claim is barred by the statute of limitations is
usually an affirmative defense, but may be resolved on a
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
Wanjiku v. Johnson Cnty., 173 F.Supp.3d 1217, 1232
(D. Kan. 2016) (citing Aldrich v. McCulloch Props.,
Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980)). Because
“when a complaint shows on its face that the applicable
statute of limitations has run, an action is subject to
dismissal for failure to state a claim upon which relief can
be granted.” Turner & Boisseau, Inc. v.
Nationwide Mut. Ins. Co., 944 F.Supp. 842, 844 (D. Kan.
Relation Back Under Fed.R.Civ.P. 15(c)
Rule of Civil Procedure 15(c) explains when an amendment to
the pleadings can relate back to the date of the original
pleading. The purpose of relation back amendments is to
balance the defendants' interest in statute of
limitations protections with the federal rules' general
preference to resolve disputes on their merits. Krupski
v. Costa Crociere S.p.A., 560 U.S. 538, 550 (2010).
A prospective defendant who legitimately believed that the
limitations period had passed without any attempt to sue him
has a strong interest in repose. But repose would be a
windfall for a prospective defendant who understood, or who
should have understood, that he escaped suit during the
limitations period ...