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Arnold v. City of Olathe

United States District Court, D. Kansas

September 10, 2019

MARK ARNOLD, Plaintiff,
v.
CITY OF OLATHE, KANSAS, et al., Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA, UNITED STATES DISTRICT JUDGE.

         This case arises out of the tragic shooting death of Ciara Howard. Ms. Howard, who suffered from mental health and addiction problems, had walked away from a residential center. Because she was required to report to the center as a condition of her probation, an arrest warrant was issued. When Olathe police officers and Johnson County deputies arrived at Ms. Howard's boyfriend's home to serve the warrant, Ms. Howard refused to leave the house. Eventually, the officers entered the house and shot and killed Ms. Howard. The Special Administrator of Ms. Howard's Estate, Mark Arnold, filed this action, bringing 42 U.S.C. § 1983 excessive force claims and state law tort claims for assault/battery and survival/wrongful death against the officers, deputies, and their employers. Both groups of defendants-those associated with the Olathe police department (the “Olathe defendants”) and those associated with the Johnson County Sheriff's Office (the “Johnson County defendants”)- filed motions to dismiss. (Docs. 37 & 47.) Plaintiff initially sought discovery before responding to the motions, but the court denied that request and ordered plaintiff to respond. The motions are now ripe and the court is ready to rule.

         I. Factual Background

         The following facts are taken from plaintiff's complaint. Defendants have also submitted some evidence that they claim is referenced in and central to the complaint. See Alcarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (noting that a court may consider documents referred to in the complaint if they are central to plaintiff's claims and undisputed). Some of that evidence may be considered (i.e., the Notice of Claim). Some of it may not (i.e., the affidavits that contradict the allegations in the complaint). In any event, the court has discretion whether to consider such evidence. Lowe v. Town of Fairland, Okla., 143 F.3d 1378, 1381 (10th Cir. 1998). As necessary throughout this opinion, the court will identify pieces of evidence that it has or has not considered, in accord with governing standards.

         With these standards in mind, the court now turns to the facts of the case-viewed in the light most favorable to plaintiff. The most succinct way to explain the facts is through the following chart of actors/defendants and timeline:

Name

Employer

Alleged Involvement

Sergeant Tim Sweany

Olathe Police Department

Led entry into the house with a riot shield. Broke down the laundry room door. Was part of the group who opened fire on Ms. Howard.

Sergeant Chad Mellick

Olathe Police Department

Entered the house and was part of the group who opened fire on Ms. Howard.

Officer Jameson Miller

Olathe Police Department, although plaintiff erroneously identified him as a deputy for Johnson County

Entered the house with the group who opened fire on Ms. Howard.

Deputy Nate Denton

Johnson County Sheriff's Office

Entered the house and was part of the group who opened fire on Ms. Howard.

Deputy Thomas Chaulk

Johnson County Sheriff's Office

Entered the house with the group who opened fire on Ms. Howard.

Officer Ian Mills

Olathe Police Department

Canine Officer. Entered the house with police dog.

Deputy Tamara Sparks

Johnson County Sheriff's Office

Was present outside before officers entered the house. Discussed with others that if they left the scene, “word would get out” and “they're going to freakin' barricade up with a weapon, and we're just going to keep walking away.” Outside house when shots fired, but did not try to prevent others from entering the house.

Sergeant Brian Wessling

Olathe Police Department

Was present outside before officers entered the house. Convinced Ms. Howard's boyfriend to act as negotiator. Outside house when shots fired, but did not try to stop others from entering the house.

Deputy Chief Michael Butaud

Olathe Police Department

“[P]ermitted and condoned the unlawful entry and . . . participated in the siege by entering the house and assisting the officers and deputies.”

Major Wade Lanphear

Olathe Police Department

“[P]ermitted and condoned the unlawful entry and . . . participated in the siege by entering the house and assisting the officers and deputies.”

Chief Steve Menke (in both individual and official capacities)

Olathe Police Department

Supervisor. Not present at house.

Sheriff Calvin Hayden (in both individual and official capacities)

Johnson County Sheriff's Office

Supervisor. Not present at house.

         Despite the varying levels of involvement identified above, plaintiffs theory is that the collective actions of all the officers, deputies, and supervisors led to Ms. Howard's death. Plaintiff alleges that the defendants knew that Ms. Howard was mentally ill and in crisis. According to plaintiff, even those defendants who were not physically in the house during the shooting are responsible because they collectively raised the level of confrontation from a non-lethal one to a lethal one. They used Ms. Howard's boyfriend as a negotiator when they should have used a trained negotiator or mental health expert. And they did not attempt to stop Sergeant Sweany's unsafe entry of the house. Plaintiff claims that the following series of events led to “officer-created jeopardy, ” when there were other options that would not have resulted in Ms. Howard's death.

         . Afternoon of August 23, 2017: Ms. Howard had walked away from her residential center and was alone in her boyfriend, Larry Sumner's, house at 112 S. Keeler St., Olathe, Johnson County, Kansas.

         . 3:00 p.m.: Johnson County Sheriff deputies and Olathe police officers arrived at Mr. Sumner's house to serve an arrest warrant for Ms. Howard. Mr. Sumner advised officers that Ms. Howard had access to a .45-caliber handgun. Sergeant Sweany spoke to Ms. Howard from outside the house, telling her that the house was surrounded, she could not get out, and that they were going to be getting a warrant for the house to come in and drag her out. Sergeant Sweany threatened that “there will most likely be a dog sent in which will result in you getting dog bit and potentially other people getting hurt as well.” A county deputy and Sergeant Sweany discussed whether to enter the house and the fact that Sheriff Hayden was “not on board” with entering the house.

         . 3:45 p.m.: Both agencies called for their respective special tactical units that specialize in engaging with barricaded armed subjects, but the special tactical teams declined to come. The tactical team commanders reasoned that it was not worth the life-and-death risk to go inside the house with lethal force. Deputies discussed that if they left the scene, “word would get out” and “they're going to freakin' barricade up with a weapon, and we're just going to keep walking away.”

         . 4:15 p.m.: Sergeant Sweany and Sergeant Wessling convinced Mr. Sumner to negotiate with Ms. Howard, although that action violated established protocol and policies. Negotiation was unsuccessful. Ms. Howard became convinced that Mr. Sumner was conspiring with police. Sergeant Sweany warned Ms. Howard that the longer it went on, the longer she would be in jail. Ms. Howard, who was spotted hiding underneath a bed, rambled wildly: “I want to f-in' die. . . . I don't want to live.” Defendants knew that advancing into the house would likely result in “civil liability” for “suicide and/or homicide.”

         . After 4:15 p.m.: The officers and deputies became impatient. Some were overheard saying “Jimmy John's delivers”; “I've got a grill”; “Maybe some lawn chairs?” Meanwhile, Ms. Howard shouted from inside the house “I'm not afraid to die” and “I'm ready!”

         . 5:30 p.m.: Sergeant Sweany announced to Ms. Howard that her time was up and prepared a squad of officers and deputies. The squad, which included Sweany, Mellick, Mills (and his police dog), Denton, Miller, and Chaulk, used a battering ram to break through the front door of the house. They swept the house for other occupancy and confirmed that Ms. Howard was alone in a small laundry room in the back of the house. Supervising officers on the scene, including Deputy Chief Butaud and Major Lanphear, permitted and condoned the entry, and also entered the house and assisted the officers and deputies.

         . After Entry of House: The laundry room door was locked. Ms. Howard yelled that she was only in her nightgown and that she would kill herself if they came into the laundry room. Sergeant Sweany threatened to release the attack dog and had Officer Mills, the canine officer, prod the dog to bark in a menacing manner. Ms. Howard opened the door slightly, talked to and then barked back at the dog and said that the dog “started” it. Ms. Howard stated, “You're not even real cops.” And then, without warning, Sergeant Sweany broke open the laundry room door and entered behind his riot shield.

         . After Entry of Laundry Room: For thirteen seconds, Ms. Howard stood shouting and trembling in the laundry room, aimlessly waiving a gun in her hand while Sergeant Sweany screamed at her to drop her gun. Mellick and Denton took cover behind Sweany's riot shield and the door and pointed their firearms at Ms. Howard. Ms. Howard did not drop the gun, and the officers and deputy opened fire. Their bullets struck and killed Ms. Howard.

         II. Legal Standards

         Both groups of defendants-the Olathe defendants and the Johnson County defendants-ask for dismissal pursuant to Rule 12(b)(6). The court will grant a 12(b)(6) motion to dismiss only when the factual allegations fail to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the factual allegations need not be detailed, the claims must set forth entitlement to relief “through more than labels, conclusions and a formulaic recitation of the elements of a cause of action.” In re Motor Fuel Temperature Sales Practices Litig., 534 F.Supp.2d 1214, 1216 (D. Kan. 2008). The allegations must contain facts sufficient to state a claim that is plausible, rather than merely conceivable. Id. “All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true.” Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court construes any reasonable inferences from these facts in favor of the plaintiff. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006).

         The Olathe defendants labeled their motion as one alternatively for dismissal or for judgment on the pleadings. These defendants filed an answer before filing their motion. Technically, it is impermissible under the Federal Rules to submit an answer and thereafter file a Rule 12(b)(6) motion to dismiss. See Fed. R. Civ. P. 12(b) (stating that a motion to dismiss under the rule “shall be made before pleading if further pleading is permitted”). But Rule 12(h)(2) permits the court to consider “[a] defense of failure to state a claim upon which relief can be granted” within a Rule 12(c) motion for judgment on the pleadings. See Swearingen v. Honeywell, Inc., 189 F.Supp.2d 1189, 1193 (D. Kan. 2002). The distinction between the two rules is purely one of procedural formality and the court employs the same standard that it uses to analyze a Rule 12(b)(6) motion to dismiss to evaluate a Rule 12(c) motion for judgment on the pleadings. Id. (citing Ramirez v. Dep't of Corr., 222 F.3d 1238, 1240 (10th Cir. 2000)).

         III. Discussion

         Because many of the issues overlap, the court takes up both motions to dismiss together. Where particular arguments only apply to certain defendants, the court will address those defendants individually.

         A. Standing/Real Party in Interest

         The first issue the court addresses is one that both groups of defendants raise to varying degrees within their motions: plaintiff's standing. The Olathe defendants claim that plaintiff lacks standing to bring any claim because he is not the real party in interest. They argue that the order appointing plaintiff as Special Administrator of the Estate did not authorize him to bring the claims in this case. Similarly, the Johnson County defendants argue that plaintiff lacks standing to bring the wrongful death claim because he is not an “heir at law.”

         Although the term “standing” is used loosely in many contexts to denote the party with a right to bring a particular cause of action, technically “‘standing pertains to suits brought by individuals or groups challenging governmental action which has allegedly prejudiced their interests. On the other hand, the real party in interest question is raised in those much rarer instances between private parties where a plaintiff's interest is not easily discernible.'” Fed. Deposit Ins. Corp. v. Bachman, 894 F.2d 1233, 1235 (10th Cir. 1990) (citation omitted). The issue before the court here is more one of whether plaintiff is a real party in interest than one of standing. But regardless of whether plaintiff is the real party in interest, dismissal or judgment on the pleadings is not the appropriate remedy. Fed.R.Civ.P. 17(a)(3) states:

The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the real party in interest.

         For § 1983 claims of a deceased party, the proper party is the estate of the victim. Berry v. Muskogee, 900 F.2d 1489, 1506-07 (10th Cir. 1990). It is a survival action, and like a state law survival action, cannot be brought by the decedent's heirs. See Cory v. Troth, 223 P.2d 1008, 1010 (Kan. 1950) (stating who can bring a Kansas survival action). In contrast, a Kansas wrongful death action “may be commenced by any one of the heirs at law of the deceased who has sustained a loss by reason of the death.” Kan. Stat. Ann. § 60-1902.

         Here, plaintiff is the Special Administrator of the Estate of Ciara Howard, appointed by the Probate Division of the Johnson County District Court. The order appointing plaintiff authorized him to:

File a wrongful death action in the District Court of Johnson County, Kansas on behalf of decedent's estate, and serve as Special Administrator of decedent's estate throughout the course of the wrongful death action to Final Judgment or throughout the course of an appeal therefrom.

         The question, then, is whether the order effectively limited plaintiff's right to bring this case in federal court. The court concludes that it did not. Allowing the order to dictate who may bring this action would result in no party being qualified. The order does not authorize a § 1983 or survival action at all. And it incorrectly authorizes plaintiff to bring a wrongful death action on behalf of the estate (when a wrongful death action belongs to the heirs). Alternatively, if the order does effectively limit plaintiff's authority, then it is something that would be remedied by substitution or joinder-not dismissal.

         Plaintiff properly brings § 1983 claims as the representative of the estate. And although he is not an heir-at-law capable of bringing a wrongful death action, it appears that the heirs in this case have yet to be determined. Until that time, plaintiff is acting on behalf of the heirs. After they have been determined, they may be added as parties if appropriate.

         Plaintiff may continue to pursue relief in this case. Ultimately, he may not be the proper party for all claims, but dismissal is not appropriate at this time.

         B. Rule 8 and Collective Liability

         The Olathe defendants claim that plaintiff's attempt at collective liability does not meet the pleading standards of Fed.R.Civ.P. 8. They argue that plaintiff uses the general term “defendants” to identify who took actions, but does not specify which defendants took which actions.

         Rule 8(a) requires that a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of this rule is to give the opposing party “fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555.

         Plaintiff's complaint meets this standard. While at times plaintiff groups defendants together, at other times, plaintiff identifies particular defendants who took specific actions. Where possible, the court will evaluate the actions of the defendants when considering whether they personally participated in the alleged deprivations of constitutional rights. The court will not automatically accept that because plaintiff used the collective term “defendants, ” all defendants may be held responsible for the actions of others. But the court will conduct this analysis when determining whether plaintiff has adequately alleged personal participation-not in determining whether plaintiff has met the pleading standards of Rule 8. The burden of Fed.R.Civ.P. 8 is light, and plaintiff has met its standard.

         C. Fourth Amendment v. Fourteenth Amendment

         Both groups of defendants argue that plaintiff has not stated a claim for violation of the Fourteenth Amendment. Plaintiff did not address this argument and made no effort to distinguish the Fourth Amendment claims from the Fourteenth Amendment claims. The court determines that the Fourth Amendment is the proper avenue for plaintiff's excessive force claims, and dismisses plaintiff's claims under the Fourteenth Amendment to the extent they are an attempt to raise independent due process claims. See Estate of Booker v. Gomez, 745 F.3d 405, ...


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