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Humes v. Cummings

United States District Court, D. Kansas

April 15, 2019

VERONICA HUMES, Plaintiff,
v.
EDWARD T. CUMMINGS, Individually; DAVID LATHROP, Individually; MEGAN MANCE, Individually; JASON D. SLAUGHTER, Individually; ERIC J. THORNE, Individually; ANDREW DEDEKE, Individually; JOHN DOE SHERIFF'S DEPUTIES 1-10; and LEAVENWORTH COUNTY, KANSAS, BOARD OF COMMISSIONERS, Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This 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 her request.

         I. Procedural History & Factual Allegations in Amended Complaint

         Ms. 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).

         Defendants 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.

         This 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.

         In her Amended Complaint, Ms. Humes alleges that, on March 16, 2016, the five LCSD deputies arrested her.[1] 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.[2] Id. at 9-10 (Am. Compl. at ¶ 62).

         Ms. 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.[3] Id. at 16-18 (Am. Compl. at ¶¶ 110-123).

         On 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.

         In her 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.

         II. Conversion of Rule 12(b)(6) Motion to Rule 12(c) Motion

         Sheriff 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 dismiss.”).

         A court 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.

         III. Legal Standards

         A. Standard for Rule 12(c) Motions

         A court 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).

         B. Qualified ...


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