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Myers v. Brewer

United States District Court, D. Kansas

June 27, 2018

KRISTINA MYERS, et al., Plaintiffs,
VIRGIL BREWER, et al., Defendants.



         This case arises out of the death of Steven P. Myers. Mr. Myers was shot with a “beanbag round” from a 12-gauge shotgun at a distance of six to eight feet. At the time, Mr. Myers was not brandishing a weapon or attempting to escape. Defendant Virgil Brewer, Undersheriff of Barber County, Kansas, fired the beanbag round. Defendant Lonnie Small, Sheriff of Barber County, was present at the scene but withdrew with his K-9 just before the shooting. Mr. Myers died at the scene. The shooting, as well as the events leading up to the shooting, were captured on audio and/or video recording.

         Plaintiff Kristina Myers, individually, as Administrator of the Estate of Steven P. Myers, and as natural parent and legal guardian of K.D.M., C.F.M., and K.J.M., minors, claims that defendants Brewer and Small are responsible in both their individual and official capacities for the death of her husband. She brings the following claims: (1) Count I: § 1983 claim for excessive force in violation of the Fourth and Fourteenth Amendments (on behalf of the estate); (2) Count II: § 1983 claim for survival (on behalf of the estate); (3) Count III: § 1983 claim for conspiracy to use excessive force (on behalf of the estate); (4) Count IV: § 1983 claim for violation of the civil right to familial relationship (on behalf of herself and the children); and (5) Count V: wrongful death under Kansas law (on behalf of herself and the children).

         Defendants Brewer and Small each separately moved to dismiss plaintiff's complaint. In defendant Small's motion to dismiss (Doc. 10), defendant Small asks for dismissal on the following grounds:

(1) He is entitled to qualified immunity on the claims against him in his individual capacity because

(a) the complaint does not allege that he personally participated in the application of force;
(b) the allegations of conspiracy are insufficient; and
(c) no clearly established law suggests that defendant Small's conduct was plainly incompetent or in knowing violation of the law;

(2) There is no viable official capacity claim; and

(3) The state law claims are not viable because

(a) defendant Small has Eleventh Amendment immunity;
(b) the complaint does not allege that defendant Small used any force against Mr. Myers; and
(c) the court may decline supplemental jurisdiction.

         Defendant Brewer moves for dismissal on similar grounds in Doc. 17:

(1) He is entitled to qualified immunity because his actions, in a tense and rapidly-evolving situation, did not violate any clearly established rights of plaintiff;
(2) There is not a valid official capacity claim against defendant Brewer;
(3) Plaintiff failed to plead any facts sufficient to establish a viable conspiracy claim; and
(4) The court should decline to exercise supplemental jurisdiction over the state law claims.

         For the following reasons, the court grants defendant Small's motion and grants in part and denies in part defendant Brewer's motion.

         I. Factual Background

         The following facts are taken from plaintiff's complaint. The court has also considered the content of the video recordings submitted by defendants. The videos are referenced in the complaint and are central to the complaint. It is well-settled that on a motion to dismiss, the court may consider documents referenced in a complaint that are also central to the complaint. See GFF Corp. v. Assoc.Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir. 1997). It is further well-settled that when a non-moving party's version of the facts are plainly contradicted by video, the court need not view the facts in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007) (deciding, at summary judgment stage-not the motion to dismiss stage-that the content of a videotape recording controlled when it “blatantly contradicted” the plaintiff's version of the facts). The court sees no difference between considering documents referenced in the complaint and considering video and audio referenced in the complaint. But cf. McHenry v. City of Ottawa, No. 16-3726-DDC, 2017 WL 4269903, at *4 (D. Kan. Sept. 26, 2017) (declining to consider video when the video was not incorporated by reference or central to the plaintiff's complaint). To the extent the allegations in plaintiff's complaint are “blatantly contradicted” by the videos, the court has considered the videos instead of the unsupported factual allegations.

         Moreover, the videos are part of the public record in another court case. A court may take judicial notice of facts that are a matter of public record and of state court documents. Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006); Pace v. Swerdlow, 519 F.3d 1067, 1072 (10th Cir. 2008). “[F]ederal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (citations omitted). The court does so without converting a motion to dismiss into a motion for summary judgment. Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1278 n.1 (10th Cir. 2004) (citations omitted). With these standards in mind, the court now turns to the facts of the case.

         On October 6, 2017 at 6:26 p.m., the Barber County Sheriff's Office received a 9-1-1 call, reporting that Steven Myers was threatening people with a shotgun in the street in front of Buster's Bar in Sun City, Kansas. The caller indicated that Mr. Myers was drunk and had been thrown out of the bar for fighting. Four officers from Barber County responded: defendants Small and Brewer, as well as Deputies Suchy and Miller. The officers were not close, however, and by the time they arrived, Mr. Myers had left the area. In fact, Mr. Myers had returned home, put away the shotgun, and had taken his dog for a walk. But the officers were unaware of this fact.

         When the officers arrived in Sun City at 7:07 p.m.-approximately forty-one minutes after the call-they began searching house-to-house for Mr. Myers. While searching, defendant Small remarked that, with a little luck, Mr. Myers would “just pass out and die.”

         Eventually, defendant Small spotted Mr. Myers in a shed in a home's backyard, about fifteen feet away. At the time, defendant Small was in the back door of the house with a K-9. Defendant Small shouted for Mr. Myers to come out of the shed, and then immediately turned around and led the K-9 toward the front door, away from Mr. Myers. Mr. Myers yelled back at defendant Small. Defendant Brewer and Deputy Suchy began shouting at Mr. Myers, telling him to put his hands up and get on the ground. Mr. Myers did not comply with either command. He was also apparently moving toward the house.

         After about eight seconds of yelling, defendant Brewer fired his 12-gauge shotgun at Mr. Myers's chest from a distance of six to eight feet. Defendant Brewer fired a beanbag round, which is a small fabric pouch filled with lead pellets. When used appropriately, a beanbag round is intended to be a less-lethal weapon. But when fired from less than ten feet at a subject's chest, the rounds still present risk of serious injury or death.

         After being hit, Mr. Myers fell to his knees and collapsed face-down. When defendant Brewer fired the gun, defendant Small was exiting the front door of the home. He passed the home's occupant and commented that defendant Brewer had “beanbag rounded him. He didn't . . . it wasn't lethal.” Defendant Small then told another officer, “Shot him with a beanbag round. Hadn't shot anybody with it yet.” After that, defendant Small disabled his body camera.

         Defendant Brewer and Deputy Suchy remained with Mr. Myers. They handcuffed him and rolled him over so his face was up. Mr. Myers's shirt was covered in blood, and Deputy Suchy began performing CPR about five-and-a-half minutes after the gunshot. One of the officers called for EMS. Twenty-two minutes later, EMS arrived. They encouraged Deputy Suchy to continue his resuscitation efforts. EMS and law enforcement discussed the heavy odor of alcohol coming from Mr. Myers.

         When the coroner arrived, he assessed the scene and said, “That's from a beanbag? Holy shit! I thought they weren't supposed to penetrate. Must've been pretty damn close, like six to eight feet maybe?” The coroner asked if Mr. Myers was inside the house. Deputy Suchy began to answer, but defendant Small interrupted and said, “Don't tell him everything but just that he got shot here.” The coroner agreed, “I don't need to know all the facts.” Defendant Small continued, “Right, because KBI don't want [the coroner] to know [everything.]” Defendant Small later ...

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