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Silva v. Ekis

United States District Court, D. Kansas

March 23, 2018

CARLOS J. SILVA, Plaintiff,
RON EKIS, Sergeant, Topeka Police Department, in his individual and official capacity, et al., Defendants.



         This 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 injury.

         Upon 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.

         Plaintiff's 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.

         Moving 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.

         Defendants 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.

         I. Legal Standards

         a. Motions 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).

         Asserting 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. 1996).

         b. Relation Back Under Fed.R.Civ.P. 15(c)

         Federal 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 ...

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