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Kellogg v. Coleman

United States District Court, D. Kansas

May 22, 2019

Carol A. Kellogg, Individually, and as sole Heir-at-Law and Administrator of the Estate of Lee J. Witschi, deceased, Plaintiff,
Keith Coleman, Sheriff of Ottawa County, Kansas, et al., Defendants.



         On March 29, 2016, two officers of the Minneapolis, Kansas police department responded to a call from a local nursing home indicating that one elderly patient, Lee Witschi, had assaulted another. The nursing home staff asked the officers to transport Witschi to a hospital for mental evaluation. Witschi refused, and was subsequently tasered by an Ottawa County undersheriff what had arrived to assist. Witschi's heir instituted this action for violation of his constitutional rights, and the matter is before the court on the defendants' Motions to Dismiss. For the reasons provided herein, the court finds these motions should be granted.

         The operative Third Amended Complaint alleges that The Evangelical Lutheran Good Samaritan Society is a 64-bed nursing facility located in Minneapolis, Kansas. It gives skilled nursing care and special mental health services to residents that are experiencing functional impairments.

         After a four-day hospitalization in November, 2013, Lee Witschi was admitted to Good Samaritan for evaluation. Witschi otherwise appeared healthy and had not been under a doctor's care for some thirty years, but his daughter Kellogg had begun to notice behavioral changes, memory loss, and other symptoms of possible dementia. A physician diagnosed Witschi as having “'slowly progressive dementia' of likely Alzheimer's type or ‘other behavioral dementia known to have behavioral disturbances as a feature of the disease.'” (Dkt. 57, ¶ 55).

         Witschi was admitted to Good Samaritan's memory care unit, known as “the Cove, ” that specialized in personalized care for residents with memory issues and other special needs. According to the Third Amended Complaint, Witschi's physician described him as “very healthy, grossly oriented to person, place and time; hard of hearing and easily confused [and] prescribed Namenda, a prescription drug often used with Alzheimer's patients.” (Dkt. 57, ¶ 60).

         On March 29, 2016, the staff at Good Samaritan called Minneapolis police, asking for their help in transporting Witschi to the Salina Regional Health Center for an evaluation. The staff reported that Witschi “had been in a confrontation with another nursing home resident earlier that day and [they] needed assistance to get Lee Witschi” into a van “so that he could be transported to Salina Regional Health Center.” The general nature of the call was then reported to Minneapolis police officers Gent and Carr. The Complaint alleges that at the nursing home, the staff did not tell Gent and Carr “about the specifics of the confrontation, ” but the officers were “told that Lee Witschi was in his 90s and did have Alzheimer's.” (Dkt. 57, at 68-70). The earlier 911 call from Good Samaritan (which is included in the record) was more specific, reporting that “we have a resident who needs to go to the ER for, basically, he was beating the crap out of another resident, ” “we've got to keep our residents safe, ” and “we can't have him here like this.”

         Gent and Carr found Witschi in the dining room, “displaying a calm demeanor.” (Id. ¶ 71). Gent and Carr repeatedly tried to get Witschi to accompany them to the nursing home's van, so that he could be transported to the hospital. Witschi refused.

         The nursing home staff insisted that transportation was necessary. Gent radioed for assistance, and Deputy Russell Thornton arrived within a few minutes.

         In the interim, Witschi walked from the dining room to the living room to watch television. Thornton repeatedly tried to persuade Witschi go to the van. During this time, the staff continued to insist to the officers that Witschi had to be transported for evaluation.

         Gent told the staff that the officers did not want to place their hands on Witschi, but that that might be only way to get him to the van. All three officers repeatedly asked Witschi to stand up.

         Eventually, Witschi told the officers to back up. He then stood up and walked past the officers. While Witschi was walking away, Thornton pulled his taser and used it on Witschi, who fell to the ground.

         Witschi died May 19, 2016. The Complaint alleges that Good Samaritan caused his death (Dkt. 57, ¶¶ 3, 212), but makes no allegation that the death was caused by the City or the County as a result of the tasing incident.

         Kellogg filed a Notice of Claim with the City on September 7, 2017. Kellogg stated that she had video of the events and identified Gent and Carr by name.

         Kellogg initiated the present action by filing a series of complaints which were amended in quick succession. The original Complaint in this action was filed on February 27, 2018, followed by a First Amended Complaint on March 29, 2018, and a Second Amended Complaint on May 24, 2018. These complaints did not name any individual defendant in an individual capacity.

         After the defendants responded by filing motions to dismiss which included defenses that the named defendants were not proper parties to the action, Kellogg sought leave to amend yet again. The court granted the relief sought, and Kellogg filed the Third Amended Complaint on November 2, 2018. The Third Amended Complaint raises individual capacity claims against Gent and Carr for unlawful seizure and excessive force, and against the City for failing to employ policies or training which would have prevented the incident.

         According to an affidavit by Carr, he had no knowledge of the case until he was served with the Third Amended Complaint on December 10, 2018.

         Individual Defendants and the Statute of Limitations

         Both the County and the City seek dismissal of the claims against the individual officers, because these claims were added only in the Third Amended Complaint and are accordingly time barred. The plaintiff argues that these claims relate to the earlier claims against the corporate defendants, and are therefore timely. The court first considers the timeliness of the claims against the County officers.

         An amendment adding a party will relate back to an earlier pleading if “the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.” Fed.R.Civ.P. 15 (c)(1)(C).

         In applying the Rule, the court “asks what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of filing her original complaint.” Krupski v. Costa Crociere S. p.A., 560 U.S. 538, 548 (2010) (emphasis in original). In Krupski, the plaintiff injured on a cruise ship had originally sued the operator of the cruise (Costa Cruise Lines) rather than the Italian Corporation which owned the ship (Costa Crociere). The Court of Appeals had affirmed the district court's decision that the plaintiff's subsequent amendment could not relate back, because “Krupski knew or should have known of the proper party's identity and thus determined that she had made a deliberate choice instead of a mistake in not naming Costa Crociere as a party in her original pleading.” Id. The Supreme Court held this was “the wrong starting point, ” explaining:

Information in the plaintiff's possession is relevant only if it bears on the defendant's understanding of whether the plaintiff made a mistake regarding the proper party's identity. For purposes of that inquiry, it would be error to conflate knowledge of a party's existence with the absence of mistake. A mistake is “[a]n error, misconception, or misunderstanding; an erroneous belief.” Black's Law Dictionary 1092 (9th ed.2009); see also Webster's Third New International Dictionary 1446 (2002) (defining “mistake” as “a misunderstanding of the meaning or implication of something”; “a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention”; “an erroneous belief”; or “a state of mind not in accordance with the facts”). That a plaintiff knows of a party's existence does not preclude her from making a mistake with respect to that party's identity. A plaintiff may know that a prospective defendant-call him party A-exists, while erroneously believing him to have the status of party B. Similarly, a plaintiff may know generally what party A does while misunderstanding the roles that party A and party B played in the “conduct, transaction, or occurrence” giving rise to her claim. If the plaintiff sues party B instead of party A under these circumstances, she has made a “mistake concerning the proper party's identity” notwithstanding her knowledge of the existence of both parties. The only question under Rule 15(c)(1)(C)(ii), then, is whether party A knew or should have known that, absent some mistake, the action would have been brought against him.
Respondent urges that the key issue under Rule 15(c)(1)(C)(ii) is whether the plaintiff made a deliberate choice to sue one party over another. We agree that making a deliberate choice to sue one party instead of another while fully understanding the factual and legal differences between the two parties is the antithesis of making a mistake concerning the proper party's identity. We disagree, however, with respondent's position that any time a plaintiff is aware of the existence of two parties and chooses to sue the wrong one, the proper defendant could reasonably believe that the plaintiff made no mistake. The reasonableness of the mistake is not itself at issue. As noted, a plaintiff might know that the prospective defendant exists but nonetheless harbor a misunderstanding about his status or role in the events giving rise to the claim at issue, and she may mistakenly choose to sue a different defendant based on that misimpression. That kind of deliberate but mistaken choice does not foreclose a finding that Rule 15(c)(1)(C)(ii) has been satisfied.

560 U.S. at 548-49 (record citations omitted).

         The plaintiff relies in particular on Krupski, and argues that the officers should have known that they were omitted from the earlier complaints by mistake. In contrast, citing the September 7, 2017 notice of claim letter, which explains in detail the actions of various officers at the scene, the County argues Kellogg made a deliberate choice not to sue Thornton or Coleman as individual individuals. (Dkt. 84, at 7-8). The County argues that further support for this conclusion is reflected in the Krupski Court's treatment of its earlier decision in Nelson v. Adams, USA, Inc., 529 U.S. 460 (2000). The Court concluded that Nelson was “entirely consistent with our understanding of the Rule: When the original complaint and the plaintiff's conduct compel the conclusion that the failure to name the prospective defendant in the original complaint was the result of a fully informed decision as opposed to a mistake concerning the proper defendant's identity, the requirements of Rule 15(c)(1)(C)(ii) are not met.” 560 U.S. at 552.

         Here, it is clear that Kellogg knew of the individual defendants' existence. Having possession of video evidence, she knew in detail the identities and actions of the officers at the scene. This is not a case, as in Krupski, where the plaintiff knew of two virtually identically named corporate entities, and erred as to which was responsible for operation of the cruise ship. Rather, plaintiff made a deliberate, tactical decision not to sue the individual officers. The plaintiff knew the County and City were acting through their officers, as reflected in the First Amended Complaint which asserts claims against both based on the ...

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