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Estate of Holmes v. Somers

United States District Court, D. Kansas

April 17, 2019

ESTATE OF MATTHEW HOLMES, by and through administrator, WENDY COUSER, as administrator and individually, Plaintiff,
v.
CHRIS SOMERS, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE.

         This 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 herein.

         I. Materials Outside the Pleadings

         This 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.[1]

         Videos of the Incident.

         Multiple videos have been submitted as exhibits in this matter. The videos include both videos from cameras worn by Defendant officers[2] 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. D).

         Defendants 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 shooting.

         On a 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.

         Defendants 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).

         Largely 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).

         After 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.

         December 12, 2017, Statement by McPherson County Attorney.

         The 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.

         Court Records in Other Actions

         The NPD 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.

         II. Facts

         The 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.[3] 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[4], 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.

         Holmes 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.

         On the 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.[5] 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[6] 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.

         Plaintiff 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 the altercation.

         The 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 turn.

         III. Standards

         Rule 12(b)(6).

         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).

         Section 1983 Qualified Immunity.

         The 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.

         For a 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 omitted).

         In 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).

         Qualified 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. 2014).

         Supervisor Liability.

         Vicarious 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 policy.”).

         If the 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).

         Municipal Liability.

         Municipal 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).

         IV. Analysis

         A. Claims Against McPherson County, Harvey County, McPherson County Sheriff's Office, and Harvey County Sheriff's Office

         Defendants 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.

         Plaintiff's 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.)[7]

         The 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.[8] At this time, the court is not faced with a proposed amended complaint and therefore declines to address any proposed amendment.

         B. Section 1983 Claims for Excessive Force - Individual Defendants

         Plaintiff's 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.

         The 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 clearly established.

         A claim 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.

         Defendant Achilles, Somers, Hawpe, Hinton and Unknown Officer[9]

         The 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.

         The 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 ...


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