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Preston v. Lopez

United States District Court, D. Kansas

May 2, 2019

ROBERT L. PRESTON, Plaintiff,
v.
KIMBERLY LOPEZ, STEVE EDLER, PAUL PAULEY, and THE CITY OF GARDEN CITY, KANSAS Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         Plaintiff Robert L. Preston brings suit against three individuals and the City of Garden City, Kansas. He asserts eight claims arising from his arrest for allegedly driving under the influence. Defendants seek partial judgment on the pleadings (Doc. 13). They request that Counts IV through VIII be dismissed. Because the Court finds that Plaintiff states a claim for failure to intervene, the Court will not dismiss Count IV. Counts V through VIII, however, will be dismissed. Thus, Defendants' motion is granted in part and denied in part.

         I. Factual Background

         On September 11, 2017, at approximately 9:17 a.m., Defendant Kimberly Lopez (employed as a police officer by Defendant City of Garden City) stopped a vehicle driven by Plaintiff. The basis for the stop was an illegal turn. Plaintiff's son was a passenger in the vehicle.

         Lopez asked for Plaintiff's driver's license and insurance information. Plaintiff had no difficulty in giving them to her. Lopez then asked the last time that Plaintiff had drank alcohol to which he responded that he did not drink and had not since 1998. Lopez stated that it smelled like alcohol in the car.

         After Lopez took the information from Plaintiff, she returned to her motorcycle. She requested another officer to be dispatched. Approximately six minutes after the initial traffic stop, Defendant Steve Edler (also employed as a Garden City police officer) arrived.

         Lopez returned to Plaintiff's vehicle and had him step out to perform standard field sobriety tests. Plaintiff had no difficulty walking to the rear of his vehicle. Lopez and Edler spoke to Plaintiff for about a minute. During his encounter, Plaintiff had no difficulty speaking and was not slurring his speech.

         Prior to being tested, Plaintiff informed Lopez that he was so scared that he did not think he could do the tests. Plaintiff was afraid of Lopez and Edler because he believed that his son (who was in the car) had been beaten by members of the Garden City Police Department. The first test that Plaintiff performed was the horizontal gaze nystagmus.

         The second test that Plaintiff performed was the walk and turn test. During the first nine steps, Plaintiff missed heel to toe on three steps, he stepped off the line one time, and completed an improper turn. During the second set of nine steps, he missed heel to toe on three steps. He did not lose his balance or raise his arms and did not start until instructed to do so.

         The next test Lopez had Plaintiff do was the one leg stand. She noted no clues of impairment on this test. Lopez asked Plaintiff if he took any medication to which Plaintiff responded no. Lopez told him that she believed he was under the influence of something, and she was going to take him down to the police station to do some additional testing to see if he was under the influence of any medication.

         Lopez put handcuffs on Plaintiff and told him that he was under arrest. Edler assisted in the arrest by searching Plaintiff incident to his arrest. Plaintiff was transported to the police station by Officer Reid of the Garden City Police Department.

         At the police station, Plaintiff provided a breath sample to the intoxilyzer, a machine used to detect and quantify alcohol in a subject's breath. The intoxilyzer determined that Plaintiff's breath sample contained .000 grams of alcohol per 210 liters of breath. During the course of the traffic stop, Plaintiff was polite and cooperative; his speech and walking were normal; his eyes were bloodshot and pupils constricted; and he was dressed normally.

         Lopez charged Plaintiff with driving under the influence and making an improper turn, by filing a uniform notice to appear, directing him to appear in the Municipal Court of Garden City on November 1, 2017. The matter was set for trial on March 27, 2018. The City of Garden City dismissed the charges against Plaintiff on March 27, 2018.

         On July 10, 2018, Plaintiff filed suit against Lopez, Edler, Paule Pauley (Lopez's and Edler's supervisor), and the City of Garden City in the District Court of Finney County, Kansas. On August 15, 2018, Defendants removed the case to this Court. In Plaintiff's Complaint, he asserts eight different claims. In Plaintiff's first three claims, he asserts that Lopez violated his Fourth Amendment right to be free from unreasonable seizure. In Count IV, he claims that Edler had a duty to intervene and prevent his unlawful arrest and violated his Fourth Amendment right. In Count V, Plaintiff claims that Pauley ratified, approved, and authorized the unlawful conduct of Lopez and Edler. Counts VI and VII are brought against the City, and Plaintiff claims that the City violated his right to be free from unreasonable seizure under the Fourth Amendment when it ratified and approved the actions of Lopez, Edler, and Pauley. Count VIII is brought against the City for malicious prosecution.

         Defendants have now filed a Motion for Judgment on the Pleadings. They seek dismissal of claims IV through VIII.

         II. Legal Standard

         Defendants bring their motion pursuant to Fed.R.Civ.P. 12(c) because they have already filed an Answer in the case. Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings after the pleadings are closed as long as the motion is made early enough not to delay trial.[1] The standard for dismissal under Rule 12(c) is the same as a dismissal under Rule 12(b)(6).[2] To survive a motion for judgment on the pleadings, a complaint must present factual allegations, assumed to be true, that “raise a right to relief above the speculative level, ” and must contain “enough facts to state a claim to relief that is plausible on its face.”[3] All reasonable inferences from the pleadings are granted in favor of the non-moving party.[4] Judgment on the pleadings is appropriate when “the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.”[5] Documents attached to the pleadings are exhibits and may be considered in deciding a Rule 12(c) motion.[6] A court “may take judicial notice of pleadings in prior cases without converting that motion to one for summary judgment.”[7]

         III. Analysis

         Defendants contend that Counts IV through VIII should be dismissed because Plaintiff fails to state a claim. Plaintiff does not object to the dismissal of Counts V and VII. Plaintiff, however, contends that Counts IV, VI, and ...


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