United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
four-count, civil rights action flows from deputies with the
Leavenworth County Sheriff's Department (LCSD) arresting
plaintiff Veronica Humes. Before the court is a Motion to
Dismiss filed by defendants Leavenworth County, Kansas, Board
of Commissioners (LCBOC) and Sheriff Andrew Dedeke. Doc. 29.
In response to the Motion, Ms. Humes concedes that her
Amended Complaint fails to state a claim against the LCBOC
and that aspects of her three claims against Sheriff Dedeke
also fail to state claims. But, Ms. Humes argues she has
pleaded sufficient facts to sustain claims of excessive
force, unconstitutional seizure, and malicious prosecution
against Sheriff Dedeke. Ms. Humes also requests leave to file
a second amended complaint to raise, in part, a failure to
train and supervise claim against Sheriff Dedeke. The court
accepts Ms. Humes's concessions and, for reasons
explained below, concludes that her Amended Complaint fails
to advance sufficient, particularized allegations against
Sheriff Dedeke. The court, thus, dismisses the claims against
the LCBOC and Sheriff Dedeke. Also, because Ms. Humes has not
complied with the court's local rules when requesting
leave to file a second amended complaint, the court denies
Procedural History & Factual Allegations in Amended
Humes initiated this action on March 14, 2018. Ms.
Humes's original Complaint advanced excessive force
claims, alleging First, Fourth, and Fourteenth Amendment
violations; an unreasonable seizure claim, alleging Fourth
and Fourteenth Amendment violations; a retaliation claim,
alleging a First Amendment violation; a malicious prosecution
claim, alleging Fourth and Fourteenth Amendment violations; a
municipal liability claim, alleging First, Fourth, and
Fourteenth Amendment violations based on policies and
practices governing the LCSD; and a state-law negligence
claim. Doc. 1 at 11-20. The original Complaint named Edward
T. Cummings, David Lathrop, Megan Mance, Jason D. Slaughter,
and Eric J. Thorne (the “LCSD Deputies”) as
defendants, suing them in their individual capacities. Doc. 1
at 2-3 (Compl. at ¶¶ 10-14). The original Complaint
also named the LCSD and Sheriff Andrew Dedeke, suing him in
his official capacity as Leavenworth County Sheriff, as
defendants. Id. (Compl. at ¶¶ 9, 15).
filed joint motions to dismiss the original Complaint under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Docs.
14, 16. Pertinent to the Motion to Dismiss currently pending
before the court, the earlier Rule 12(b)(6) motion contended:
(1) the LCSD lacked the capacity to be sued; (2) Eleventh
Amendment sovereign immunity barred the official capacity
claims against Sheriff Dedeke because he was a state
official; (3) Ms. Humes could not possibly prevail on an
excessive force claim alleging a Fourteenth Amendment
violation where she was not a pretrial detainee at the time
of the events alleged in support of her claims; and (4)
qualified immunity barred the claims advanced against the
LCSD Deputies. Doc. 15 at 3-16. In response, Ms. Humes
conceded the first two arguments, did not contest the third,
but did contest the qualified immunity defense asserted by
the LCSD Deputies. Doc. 26 at 8, 11-12.
court dismissed the claims against Sheriff Dedeke and the
LCSD. Id. at 26. The court also dismissed Ms.
Humes's state-law negligence claim; her excessive force
claim, to the extent it was premised on a Fourteenth
Amendment violation; and her retaliation claim. Id.
But, otherwise, the court rejected the LCSD Deputies'
qualified immunity defense to Ms. Humes's claims for
excessive force, unreasonable seizure, and malicious
prosecution. Id. Finally, the court granted Ms.
Humes 10 days to amend her Complaint on the municipal
liability claim to allow her to assert the claim against the
“proper defendant.” Id. Ms. Humes timely
filed an Amended Complaint. Doc. 27.
Amended Complaint, Ms. Humes alleges that, on March 16, 2016,
the five LCSD deputies arrested her. Doc. 27 at 1, 7-8 (Am.
Compl. at ¶¶ 2, 47, 49). The arrest followed a
report from Ms. Humes's neighbor-her rival in an ongoing
feud-that she had discharged a firearm in his direction.
Id. Ms. Humes alleges that, in the course of
effectuating her arrest, the LCSD deputies used excessive
force by deploying their tasers and then pinning her to the
ground. Id. at 2-3, 7-8 (Am. Compl. at ¶¶
3-4, 43-44, 49). Ms. Humes also alleges that, in an effort to
cover up the excessive force used when effectuating her
arrest, the “[d]efendant deputies and other deputies .
. . conspired and/or acted in concert to have [Ms.] Humes
falsely charged and prosecuted for aggravated assault.”
Id. at 7-8 (Am. Compl. at ¶ 48). And Ms. Humes
alleges that though the LCSD obtained a warrant to search her
home, defendants exceeded the scope of that warrant by
seizing a digital video recording system from the home and
accessing files on the system. Id. at 8 (Am. Compl.
at ¶¶ 51-53). Finally, Ms. Humes attributes the
alleged misconduct by the individual defendants to policies
and practices adopted by the LCBOC, as well as the
LCBOC's failure to sufficiently train and supervise
deputies employed by the LCSD sufficiently. Id. at
9-10 (Am. Compl. at ¶ 62).
Humes's Amended Complaint asserts four causes of action.
Count I makes an excessive force claim against the LCSD
Deputies and Sheriff Dedeke, violating Ms. Humes's First,
Fourth, and Fourteenth Amendment rights. Id. at
11-13 (Am. Compl. at ¶¶ 71-89). Count II alleges
the LCSD Deputies and Sheriff Dedeke unconstitutionally
seized Ms. Humes's person, violating the Fourth and
Fourteenth Amendments. Id. at 13-14 (Am. Compl. at
¶¶ 90-93). Count III, relying on the Fourth and
Fourteenth Amendments, makes a malicious prosecution claim
against the LCSD Deputies and Sheriff Dedeke. Id. at
14-16 (Am. Compl. at ¶¶ 94-109). Last, Count IV
asserts First, Fourth, and Fourteenth Amendment violations by
the LCBOC based on its alleged policies governing the LCSD
and deficiencies in its training and supervision of deputies
employed by the LCSD. Id. at 16-18 (Am. Compl. at
October 19, 2018, all seven named defendants filed a joint
Answer to Ms. Humes's Amended Complaint. Doc. 28. Three
days later, on October 22, 2018, Sheriff Dedeke and the LCBOC
moved to dismiss Ms. Humes's claims against them,
contending Ms. Humes failed to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Doc. 29. The LCBOC's
Motion argues that, under Kansas law, it lacks the authority
to supervise, train, or establish policies governing deputies
employed by the LCSD. Doc. 30 at 7-9. Meanwhile, Sheriff
Dedeke argues the Amended Complaint fails to satisfy the
pleading standard established by Federal Rule of Civil
Procedure 8(a) because the pleading does not make any
specific allegations about his conduct and involvement in Ms.
Humes's arrest and prosecution. Id. at 3-4.
Sheriff Dedeke also argues he is entitled to qualified
immunity. Id. at 4-7. Finally, the LCBOC and Sheriff
Dedeke jointly argue: (1) the two-year statute of limitations
for § 1983 actions in Kansas bars the claims raised
against them in the Amended Complaint; (2) the Fourteenth
Amendment does not apply to Ms. Humes's claims and this
court already has concluded as much when it ruled on the
earlier Rule 12(b)(6) Motion to Dismiss; and (3) this court
already has dismissed Ms. Humes's claims alleging First
Amendment violations. Id. at 9-15.
response, Ms. Humes concedes that the First and Fourteenth
Amendments do not provide a basis for relief. Doc. 38 at
11-12. Ms. Humes also concedes the LCBOC is not a proper
defendant for her Count IV claim. Id. at 9-10. But,
Ms. Humes argues, Sheriff Dedeke is a proper defendant for
her Count IV claim and requests an opportunity to file a
Second Amended Complaint to substitute Sheriff Dedeke for the
LCBOC. Id. at 12-13. Finally, on her claims in
Counts I-III against Sheriff Dedeke, Ms. Humes makes a pro
forma argument that her Amended Complaint satisfies the
Federal Rule of Civil Procedure 8(a) pleading standard, an
argument that does not direct the court to any particular
allegations against Sheriff Dedeke in her Amended Complaint.
Id. at 6-9. And, Ms. Humes argues that if her
Amended Complaint satisfies Rule 8(a), the court should
reject Sheriff Dedeke's qualified immunity defense for
the same reasons it rejected the LCSD Deputies' qualified
immunity defense when ruling on the earlier Rule 12(b)(6)
Motion. Id. at 9. In reply, Sheriff Dedeke opposes
Ms. Humes's request to file a Second Amended Complaint,
arguing: (1) the request does not comply with District of
Kansas Local Rule 15.1 (“Local Rule 15.1”); (2) a
second amended complaint would not relate back to the
original Complaint where Ms. Humes's misidentification of
the LCSD and then the LCBOC as the Count IV-defendant
resulted from a failure to conduct diligent research about
the identity of the proper defendant; and (3) Ms. Humes is
trying to create a “moving target” by amending
her Complaint repeatedly. Doc. 39 at 2-10.
Conversion of Rule 12(b)(6) Motion to Rule 12(c)
Dedeke and the LCBOC filed their Rule 12(b)(6) Motion to
Dismiss after they had filed an Answer to Ms. Humes's
Amended Complaint. A Rule 12(b)(6) motion, however,
“must be made before pleading if a responsive
pleading is allowed.” Fed.R.Civ.P. 12(b) (emphasis
added). As such, the Rule 12(b)(6) Motion filed by Sheriff
Dedeke and the LCBOC is untimely. See In re XP Entm't
LLC, Nos. 09-30699 MER, 11-1650 MER, 2013 WL 542249, at
*2 & n.13 (D. Colo. Feb. 12, 2013) (collecting cases);
see also Swearingen v. Honeywell, Inc., 189
F.Supp.2d 1189, 1193 (D. Kan. 2002) (“Technically, it
is impermissible under the Federal Rules to submit an answer
and thereafter file a Rule 12(b)(6) motion to
faced with a post-answer Rule 12(b)(6) motion, however, may
exercise its discretion and convert the motion into a Rule
12(c) motion for judgment on the pleadings if the basis for
the Rule 12(b)(6) motion is cognizable within a Rule 12(c)
motion. Helm v. Kansas, No. 08-2459-JAR, 2009 WL
2168886, at *1 (D. Kan. July 21, 2009); Swearingen,
189 F.Supp.2d at 1193. Meanwhile, Federal Rule of Civil
Procedure 12(h)(2) permits a party to raise a failure to
state a claim defense in a Rule 12(c) motion.
Swearingen, 189 F.Supp.2d at 1193. So, because
Sheriff Dedeke and the LCBOC can raise the legal basis for
their Motion to Dismiss in a Rule 12(c) motion and because
denying the Rule 12(b)(6) Motion as untimely almost certainly
would lead Sheriff Dedeke and the LCBOC simply to restyle and
refile the pending motion as a Rule 12(c) motion, this court
exercises its discretion and converts the Rule 12(b)(6)
Motion into a Rule 12(c) Motion.
Standard for Rule 12(c) Motions
evaluates a Rule 12(c) motion under the same standard that
governs a Rule 12(b)(6) motion to dismiss. Mock v. T.G.
& Y. Stores Co., 971 F.2d 522, 528 (10th Cir. 1992).
The court will grant a motion for judgment on the pleadings
if the factual allegations in the complaint fail to
“state a claim to relief that is plausible on its face,
” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007), or if an issue of law is dispositive, Neitzke
v. Williams, 490 U.S. 319, 326 (1989). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). To satisfy
the plausibility requirement, “the complaint must give
the court reason to believe that this plaintiff has
a reasonable likelihood of mustering factual support for
these claims.” Ridge at Red Hawk, L.L.C.
v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).