United States District Court, D. Kansas
ESTATE OF MATTHEW HOLMES, by and through administrator, WENDY COUSER, as administrator and individually, Plaintiff,
CHRIS SOMERS, et al., Defendants.
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE.
case comes before the court on Defendants' motions to
dismiss (Docs. 33, 38, 51, 53, 61). The motion has been fully
briefed and is ripe for decision. (Docs. 34, 39, 52, 54, 60,
62, 65, 67, 68, 73, 74, 82, 83, 86.) Defendants' motions
are GRANTED IN PART AND DENIED IN PART for the reasons stated
Materials Outside the Pleadings
action arises from the shooting of Matthew Holmes by
McPherson County Sheriff's Deputy Chris Somers on August
28, 2017. Before setting forth the facts applicable to the
pending motions, the court must first determine whether
materials outside the pleading should be considered by the
court at this stage.
of the Incident.
videos have been submitted as exhibits in this matter. The
videos include both videos from cameras worn by Defendant
officers and from patrol cars. The following videos
have been submitted: 1) Skyler Hinton's body cam video
(Doc. 39, Exh. 1); 2) Joshua Hulse's dash cam video (Doc.
39, Exh. 2); 3) Officer Minkevitch's body cam video (Doc.
34, Exh. A); 4) Officer Hawpe's body cam video (Doc. 34,
Exh. B); 5) Deputy Gayer's body cam video (Doc. 34, Exh.
C); and 6) Chris Somers' body cam video (Doc. 34, Exh.
assert that the court may consider the videos on the pending
motions to dismiss because the “video” is
referenced in the complaint and central to the claims.
Plaintiff's complaint makes one reference to the
“video.” In paragraph 41, Plaintiff states that
“Defendant Somers' account that Mr. Holmes gained
control of a weapon is contradicted by the video of the
shooting.” (Doc. 1 at 7.) Plaintiff did not attach any
video to her complaint. Plaintiff objects to the use of the
videos at this stage of the proceedings. Plaintiff, however,
does not assert that the videos are not authentic copies of
the events that transpired during the evening of the
motion to dismiss, the court may consider the complaint
itself and any attached exhibits or any documents
incorporated by reference. Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009); Lowe v. Town of
Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998)
(“[C]ourts have broad discretion in determining whether
or not to accept materials beyond the pleadings.”);
GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130
F.3d 1381, 1384-85 (10th Cir. 1997). A court also “may
consider documents referred to in the complaint if the
documents are central to the plaintiff's claim and the
parties do not dispute the documents'
authenticity.” Id. Plaintiff states that she
had portions of certain videos prior to drafting the
complaint but did not have all the videos. Plaintiff contends
that she did not incorporate the video into her complaint.
Plaintiff also asserts that the video is not central to her
claim as other evidence, including witnesses and reports,
support the claims in the complaint.
have cited various authority in support of their position
that the court may consider the videos in ruling on a motion
to dismiss. Much of the authority, however, can be
distinguished as several cases were at the summary judgment
stage and, in some cases, the plaintiffs either attached the
videos as exhibits or did not object to their consideration.
See Scott v. Harris, 550 U.S. 372, 380-81 (2007)
(summary judgment); Bogie v. Rosenberg, 705 F.3d
603, 608 (7th Cir. 2013) (attached video to complaint);
Chamberlain v. City of White Plains, 986 F.Supp.2d
363, 380 (S.D.N.Y. 2013) (“Neither party contests the
appropriateness of the Court's consideration of the
recordings without converting the instant Motions to ones for
summary judgment.”); Hartman v. Walker, 685
Fed.Appx. 366, 368 (5th Cir. 2017) (exhibit attached to
complaint); Carabajal v. City of Cheyenne, Wyoming,
847 F.3d 1203, 1207 (10th Cir.), cert. denied sub nom.
Carabajal v. City of Cheyenne, Wyo., 138 S.Ct. 211, 199
L.Ed.2d 118 (2017) (considering video at summary judgment
stage); Garcia v. Does, 779 F.3d 84, 87-88 (2d Cir.
2015) (attached to complaint; parties did not contest
consideration); Estate of Ronquillo by & through
Estate of Sanchez v. City & Cty. of Denver, 720
Fed.Appx. 434, 437 (10th Cir. 2017) (video attached as an
exhibit to complaint).
depending on the facts and the parties' positions, courts
in this district have gone both ways, sometimes considering a
video in the context of a motion to dismiss and at other
times declining to do so. Albers v. Jenison, No.
18-2185-DDC-JPO, 2018 WL 5311862, at *1 (D. Kan. Oct. 26,
2018) (plaintiff did not object); Myers v. Brewer,
No. 17-2682, 2018 WL 3145401, at *1-2 (D. Kan. June 27, 2018)
(videos central to complaint and part of the record in
another court case); McHenry v. City of Ottawa, No.
16-3726-DDC, 2017 WL 4269903, at *4 (D. Kan. Sept. 26, 2017)
(declining to consider the video); Choate v. City of
Gardner, Kansas, No. 16-2118-JWL, 2016 WL 2958464, at *3
(D. Kan. May 23, 2016) (considered videos).
reviewing the parties' briefing, the court declines to
consider the videos in deciding the motions to dismiss. Six
different videos have been submitted in support of the
motions. The parties' memoranda conflict as to the events
occurring on the videos, the statements made therein, and the
party making those statements. At this stage, the court
cannot evaluate competing interpretations of the videos and,
having reviewed the videos, the court finds that certain
events and statements included therein may be susceptible to
more than one interpretation. Ultimately, evaluation of the
videos in this case will be aided by testimony and possibly
other forms of evidence that can be considered at summary
judgment or at trial. While the court's decision here
does not mean that the court would never consider a video on
a motion to dismiss, the court declines to do so in this
case. Defendants are free to rely on the videos at the
summary judgment stage to the extent that is consistent with
the law regarding video evidence.
12, 2017, Statement by McPherson County Attorney.
City of Newton Defendants (“NPD Defendants”) have
attached the Statement issued by McPherson County Attorney
Greg Benefiel regarding the death of Holmes. Defendants
assert that the court should consider the Statement as
Plaintiff quotes from the Statement in her complaint. (Doc.
39 at 3.) The complaint states that “In order to
provide post-hoc justification, Defendant Somers fabricated
that he saw Mr. Holmes with his hands on a gun. There is
absolutely no evidence to support this claim, as the
McPherson County Attorney's Office admits: ‘There
is no evidence that Holmes actually gained control of Cpl.
Hawpe's duty weapon.'” (Doc. 1 at 7.) Plaintiff
objects to the court's consideration of the Statement on
the basis that it is hearsay and is not authenticated. (Doc.
60 at 53.) Defendants do not respond to Plaintiff's
objection. (Doc. 74.) The court declines to consider the
Statement in deciding the pending motions to dismiss.
Records in Other Actions
Defendants have also submitted exhibits that include court
records from excessive force actions that are cited in
Plaintiff's complaint. (Doc. 39.) The records are
submitted for the purpose of determining whether the
underlying allegations in the complaints were meritorious and
substantially similar to the allegations in this complaint.
(Doc. 39 at 16-17.) Although the court can take judicial
notice of publicly filed court documents, the court declines
to review the records for the purpose of determining whether
these alleged instances of misconduct were meritorious and
substantially similar in order to establish the existence of
a policy and/or deliberate indifference. Such determination
is more appropriate for summary judgment. At this stage, the
court will consider only the allegations in the complaint.
following facts are taken from the allegations in the
complaint, without regard to the evidence contained in the
videos. Additional facts are noted throughout this order. On
August 28, 2017, officers were attempting to stop Holmes, who
was driving his vehicle. The officers were from the Harvey
County Sheriff's Office (“HCSO”), the
McPherson County Sheriff's Office (“MCSO”)
and the City of Newton Police Department (“NPD”).
In addition to naming individual defendants, Plaintiff has
also asserted claims against unknown officers from those
agencies. The named individual Defendants include Chris
Somers and Jason Achilles, deputies of the MCSO, and Jerry
Montagne, the Sheriff of McPherson County. Defendants Anthony
Hawpe and Skyler Hinton are all law enforcement officers of
the NPD. Defendant Chad Gay is the Sheriff of Harvey County.
was 24 years old in August 2017. Holmes is African-American
and suffered from schizophrenia. Wendy Couser is Holmes'
mother and the court-appointed administrator for Holmes'
estate. Couser was previously employed by the NPD for several
years. The NPD Defendants knew Holmes personally and were
aware that he suffered from schizophrenia.
evening of August 28, Holmes was fleeing from officers in his
vehicle. After stopping his vehicle, Holmes remained in his
car for approximately three minutes before exiting. According
to the complaint, Holmes exited slowly and with his hands
raised. Holmes was unarmed and his hands were
empty. Almost immediately after Holmes exited the vehicle,
Defendant Achilles shot Holmes with a bean bag gun and
Defendant Somers fired an electroshock weapon at Holmes.
Defendant Hawpe then allegedly drove Holmes to the ground. An
unknown HCSO officer allegedly hit Holmes on his head
with the butt of a shotgun. After several seconds, a shot was
heard. Defendant Somers had fired his weapon into Holmes'
back. After the shot, Hawpe allegedly punched Holmes in the
face several times. Defendant Hinton then allegedly used an
expandable baton to strike Holmes several times. This entire
event lasted approximately 21 seconds.
alleges that the individual Defendants acted out of anger and
rage and were motivated by Holmes' race. After Holmes was
shot, the individual Defendants allegedly failed to provide
first aid care. The video recordings were allegedly turned
off. Holmes did not immediately succumb to his injuries but
later died from the gunshot wound. The complaint alleges that
Holmes never touched or took possession of any weapon during
complaint asserts several claims against Defendants. All
Defendants have moved to dismiss the complaint in its
entirety on the basis that it fails to state a valid claim
for relief and that the individual Defendants are entitled to
qualified immunity. The court will address the claims in
order to withstand a motion to dismiss for failure to state a
claim, a complaint must contain enough allegations of fact to
state a claim for relief that is plausible on its face.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 127 S.Ct. 1955, 1974 (2007)). All well-pleaded facts and
the reasonable inferences derived from those facts are viewed
in the light most favorable to Plaintiff. Archuleta v.
Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory
allegations, however, have no bearing upon the court's
consideration. Shero v. City of Grove, Okla., 510
F.3d 1196, 1200 (10th Cir. 2007).
1983 Qualified Immunity.
individual Defendants move for dismissal on the basis of
qualified immunity. “Individual defendants named in a
§ 1983 action may raise a defense of qualified
immunity.” Cillo v. City of Greenwood Vill.,
739 F.3d 451, 460 (10th Cir. 2013). Qualified immunity
“shields public officials ... from damages actions
unless their conduct was unreasonable in light of clearly
established law.” Gann v. Cline, 519 F.3d
1090, 1092 (10th Cir. 2008) (quotations omitted). When the
defense of qualified immunity is asserted, a plaintiff must
show: “(1) that the defendant's actions violated a
federal constitutional or statutory right, and, if so, (2)
that the right was clearly established at the time of the
defendant's unlawful conduct.” Cillo, 739
F.3d at 460.
right to be clearly established, the contours of that right
must be “sufficiently clear that every reasonable
official would have understood that what he is doing violates
that right.” Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011) (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)). A right is clearly established if
there is a “Supreme Court or Tenth Circuit decision on
point, or the clearly established weight of authority from
other courts found the law to be as the plaintiff
maintains.” Brown v. Montoya, 662 F.3d 1152,
1164 (10th Cir. 2011) (quoting Stearns v. Clarkson,
615 F.3d 1278, 1282 (10th Cir. 2010)). The court must
determine “whether the violative nature of particular
conduct is clearly established.” Ziglar v.
Abbasi, 137 S.Ct. 1843, 1866 (2017) (internal quotations
doing so, the court is not required to find that
“‘the very action in question has previously been
held unlawful.'” Id. at 1866 (quoting
Anderson, 483 U.S. at 640); see also
Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir.
2014) (“A previous decision need not be materially
factually similar or identical to the present case; instead,
the contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.”)
There “need not be a case precisely on point.”
Redmond v. Crowther, 882 F.3d 927, 935 (10th Cir.
2018). But “it is a ‘longstanding principle that
clearly established law should not be defined at a high level
of generality.'” Id. (quoting White v.
Pauly, ___ U.S. ___, 137 S.Ct. 548, 552, 196 L.Ed.2d 463
(2017) (per curiam)); see also District of Columbia v. Wesby,
___ U.S. ___, 138 S.Ct. 577, 590, 199 L.Ed.2d 453 (2018)
(“The clearly established standard ... requires a high
degree of specificity.” (quotations omitted)).
“[T]he salient question ... is whether the state of the
law ... gave [the defendants] fair warning that their alleged
treatment of [the plaintiffs] was unconstitutional.”
Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508,
153 L.Ed.2d 666 (2002).
Doe v. Woodard, 912 F.3d 1278, 1289 (10th Cir.
2019). The test is whether “the unlawfulness of the
officer's conduct ‘[is] apparent'”
“in the light of pre-existing law.”
Ziglar, 137 S.Ct. at 1867 (quoting
Anderson, 483 U.S. at 640).
immunity defenses are usually resolved at the summary
judgment stage, although “district courts may grant
motions to dismiss on the basis of qualified immunity.”
Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir.
liability is inapplicable to section 1983 claims.
Iqbal, 556 U.S. at 676. As such, “a plaintiff
must plead that each Government-official defendant, through
the official's own individual actions, has violated the
Constitution.” Id. A plaintiff may also plead
a claim against a “defendant-supervisor who creates,
promulgates, implements, or in some other way possesses
responsibility for the continued operation of a policy”
which caused the constitutional harm. Dodds v.
Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010).
Therefore, personal liability includes both personal
involvement or supervisory liability due to a policy.
Brown v. Montoya, 662 F.3d 1152, 1164-1165 (10th
Cir. 2011) (Personal liability through “his personal
participation” “or the promulgation of a
basis of liability is a policy, Plaintiff must prove that
“(1) the defendant promulgated, created, implemented or
possessed responsibility for the continued operation of a
policy that (2) caused the complained of constitutional harm,
and (3) acted with the state of mind required to establish
the alleged constitutional deprivation.”
Dodds, 614 F.3d at 1199. “An affirmative link
must exist between the constitutional deprivation and the
supervisor's personal participation, exercise of control
or direction, or failure to supervise.” Quint v.
Cox, 348 F.Supp.2d 1243, 1250 (D. Kan. 2004).
liability requires more than a violation by one of the
municipality's officers. Plaintiff must sufficiently
allege: (1) that a violation was committed by an officer; (2)
that there is a municipal policy or custom; and (3) a
“direct causal link between the policy or custom and
the injury alleged.” Graves v. Thomas, 450
F.3d 1215, 1218 (10th Cir. 2006). A policy or custom includes
the following: 1) a “formal regulation or policy
statement;” 2) an informal custom that amounts to a
widespread and well-settled practice; 3) a decision of an
employee with final policymaking authority; 4) ratification
by a final policymaker of a subordinate's decision; or 5)
“failure to adequately train or supervise employees, so
long as that failure results from deliberate indifference to
the injuries that may be caused.” Bryson v. City of
Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010).
Claims Against McPherson County, Harvey County, McPherson
County Sheriff's Office, and Harvey County Sheriff's
move for dismissal of all claims against McPherson County,
Harvey County, McPherson County Sheriff's Office, and
Harvey County Sheriff's Office on the basis that these
entities cannot be sued under Kansas law. (Docs. 34 at 23-24;
54 at 22-23.) In order to state a claim against a county,
Plaintiff must sue the “board of county
commissioners” of the county. K.S.A. 19-105. With
respect to the Sheriff's Office, such an entity is not
capable of being sued without statutory authorization.
Creamer v. Ellis Cty. Sheriff Dep't, No.
08-4126-JAR, 2009 WL 1870872, at *5 (D. Kan. June 29, 2009)
(citing Lindenman v. Umscheid, 255 Kan. 610, 875
P.2d 964, 977 (1994). The Kansas legislature has not provided
a county sheriff's department with the capacity to sue or
be sued. Id.
response does not contest that this is an accurate
representation of the law. Rather, Plaintiff asserts that her
municipal liability claims, with respect to the counties, are
against the sheriffs. Plaintiff states as follows:
Under Kansas law, the sheriff is independently elected and is
solely responsible for the policies and training of sheriff
employees. Seifert v. Unified Government of Wyandotte
County/Kansas City, Kan., No. 11-2327-JTM, 2012 WL
2448932, at *6 (D. Kan. June 26, 2012) (citing Wilson v.
Sedgwick County Bd. of County Com'rs, No.
05-1210-MLB, 2006 WL 2850326, at *3-4 (D. Kan. Oct. 3, 2006).
Plaintiff's municipal liability claims are directed at
Defendant Montagne, and not the McPherson County
Sheriff's Office or McPherson County proper. Plaintiff
does not dispute that Kan. Stat. Ann. § 19-105 requires
any claims against County defendants to be titled as against
their respective County Board of Commissioners. Plaintiff
proposes amending her complaint (where required) to correct
this error after the Court has had an opportunity to rule on
Defendants' substantive arguments.
(Doc. 60 at 66, n. 14.)
court finds that the claims against both Sheriff's
Offices must be dismissed as they are not entities that can
be sued under Kansas law. With respect to the counties,
Plaintiff has failed to sue the board of county commissioners
for each county. Plaintiff cannot maintain a claim against
the “County” without suing the respective board.
K.S.A. 19-105. Therefore, the counties must also be
dismissed. Plaintiff states that she will seek to amend her
complaint to fix her error. At this time, the court is not
faced with a proposed amended complaint and therefore
declines to address any proposed amendment.
Section 1983 Claims for Excessive Force - Individual
complaint asserts that the individual Defendants violated
Holmes' constitutional rights under the Fourth and
Fourteenth Amendments. “Excessive force claims can be
maintained under the Fourth, Fifth, Eighth, or Fourteenth
Amendment ... and each carries with it a very different legal
test.” Porro v. Barnes, 624 F.3d 1322, 1325
(10th Cir. 2010). Excessive force claims arising from force
used “leading up to and including an arrest” are
properly analyzed under the Fourth Amendment. Estate of
Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014)
(citation and internal quotation marks omitted). The
Fourteenth Amendment applies to pretrial detainees -
“one who has had a ‘judicial determination of
probable cause as a prerequisite to [the] extended restraint
of [his] liberty following arrest.” Id.
(quoting Bell v. Wolfish, 441 U.S. 520, 536 (1979)).
Because Plaintiff's complaint alleges excessive force
used during Holmes' seizure, the Fourth Amendment
provides the applicable standard. Humes v. Cummings,
No. 18-2123-DDC-GEB, 2018 WL 4600717, at *6 (D. Kan. Sept.
25, 2018). The Fourth Amendment is applicable to Defendants,
as state actors, through the Fourteenth Amendment. Bailey
v. United States, 568 U.S. 186, 192 (2013). To the
extent the Plaintiff intended to assert a due process claim
under the Fourteenth Amendment, it is dismissed as the Fourth
Amendment is the proper standard in this action.
Booker, 745 F.3d at 419.
individual defendants move for dismissal on the basis that
they are entitled to qualified immunity. As discussed above,
Plaintiff must plead facts capable of supporting a finding
that the individual Defendants violated Holmes' Fourth
Amendment rights. Plaintiff must also show that the right was
asserting that a Defendant used excessive force to affect a
seizure is governed by the Fourth Amendment's
“reasonableness” standard. Cty. of L.A. v.
Mendez, 137 S.Ct. 1539, 1546 (2017). “Determining
whether the force used to affect a particular seizure is
‘reasonable' under the Fourth Amendment requires a
careful balancing of ‘the nature and quality of the
intrusion on the individual's Fourth Amendment
interests' against the countervailing governmental
interests at stake.'” Graham v. Connor,
490 U.S. 386, 396 (1989) (quoting Tennessee v.
Garner, 471 U.S. 1, 8 (1985)). In reviewing whether a
seizure is reasonable, the court is to consider “the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to
evade arrest by flight.” Id. The court must
analyze the circumstances as a reasonable officer would in
the heat of the moment. Id. at 396-97. “We
must take care to judge the situation ‘from the
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.'” Cavanaugh
v. Woods Cross City, 625 F.3d 661, 665 (10th Cir. 2010)
(quoting Graham, 490 U.S. at 396)). The court
recognizes that “police officers are often forced to
make split-second judgments ... about the amount of force
that is necessary in a particular situation.”
Graham, 490 U.S. at 397.
Achilles, Somers, Hawpe, Hinton and Unknown
court must view the factors in the light most favorable to
Plaintiff. Turning to the first factor, the severity of the
crime, only the HCSO Defendants offer any argument. They
assert that the crime at issue is fleeing the police. (Doc.
54 at 13.) Viewing the complaint, the court agrees. The
court, however, disagrees with the HCSO Defendants' view
of the crime as a felony. Under Kansas law, a first
conviction for fleeing or attempting to elude a pursuing
police officer is a misdemeanor unless Holmes additionally
committed any of the acts described in K.S.A. 8-1568(b)(1) or
is attempting to elude capture for commission of a felony.
K.S.A. 8-1568(b)(2). At this time, the allegations state that
Holmes was fleeing the police. There are no additional
allegations regarding his actions prior to fleeing nor are
there any allegations that would support a conclusion that a
felony could be charged under Kansas law. Therefore, viewing
the allegations in a light most favorable to Plaintiff at
this stage of the proceedings, the crime at issue was a
misdemeanor. When officers suspect that a misdemeanor has
been committed, this “reduces the level of force that
was reasonable.” Casey v. City of Fed.
Heights, 509 F.3d 1278, 1281 (10th Cir. 2007).
“Graham establishes that force is least
justified against nonviolent misdemeanants who do not flee or
actively resist arrest.” Id. at 1285. Although
the court does not view this as a minor crime because of the
potential for injury to the public and officers from fleeing
the police, the allegations must be viewed in a light most
favorable to Plaintiff and, as alleged, this crime is a
misdemeanor under Kansas law.
second factor is whether the suspect poses a threat to the
officers. The allegations in the complaint state that Holmes
was not armed when he exited his vehicle, had his hands
raised and empty, and did not attempt to touch or grab an
officer's gun. There are no allegations that Holmes was
threatening or confrontational. At this stage, the court must
view the allegations in a light most favorable to Plaintiff.
Defendants' briefs all argue this factor on the basis of
the videos. (Doc. 34 at 10-11.) As discussed, the court has
declined to consider the videos ...