Angeles v. Jenison

SHEILA ALBERS, as Administratorof the Estate of J.A., Deceased, Plaintiff, v. CLAYTON JENISON and THE CITYOF OVERLAND PARK, KANSAS, Defendants.

Case No. 18-2185-DDC-JPO

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

October 26, 2018

MEMORANDUM AND ORDER

This matter comes before the court on defendants City of Overland Park and Clayton Jenison's Motion for Judgment on the Pleadings. Doc. 9. Plaintiff has filed a Response. Doc. 22. And defendants have filed a Reply. Doc. 29. For reasons explained below, the court grants part of the motion and denies the remainder. After identifying the governing facts, this order explains why.

I. Materials the Court Will Consider for the Motion for Judgment on the Pleadings

This lawsuit arises from the shooting of "J.A.," a 17-year-old boy, by Overland Park Police Department ("O.P.P.D") Officer Clayton Jenison on the evening of January 20, 2018. Before identifying the facts that govern this Motion for Judgment on the Pleadings, the court first must determine what, if any, materials offered by both parties outside of the pleadings it will consider.

When defendants filed their Motion for Judgment on the Pleadings, they also submitted a computer disc containing (1) video from a responding officer's dash-mounted camera, which captures the shooting and includes portions of audio from dispatch, and (2) a full transcript of the 911 conversation between dispatchers and officers involved in the event ("Audio Transcript"). Doc. 10-1 at ¶¶ 3-4. Defendants' motion explicitly relies on this video and Audio Transcript.

Plaintiff does not object to the court considering the video. See Doc. 22 at 7 (". . . Plaintiff does not object to the Court considering the video, as it shows precisely what it shows and no more."). But, plaintiff makes three arguments about what other evidence the court should consider and how the court should proceed. First, plaintiff objects to including the Audio Transcript that defendants provided because plaintiff questions the accuracy of the supporting affidavit. See id. at 8. Second, plaintiff asserts that if the court considers the video and/or audio transcript, Fed. R. Civ. P. 12 directs the court to convert defendants' Motion for Judgment on the Pleadings into a motion for summary judgment. Id. at 8. Last, and alternatively, if the court considers the video and Audio Transcript without changing the motion to one for summary judgment, plaintiff asks the court to consider exhibits plaintiff attached to her Memorandum in Opposition to Defendants' Motion for Judgment on the Pleadings.¹ Id.

A. Governing Law

Generally, at the motion to dismiss² stage, if the parties present matters outside of the pleadings for consideration, "'the court must either exclude the material or treat the motion as one for summary judgment.'" Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017) (quoting Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004)). But, the district court may "consider documents attached to or referenced in thecomplaint if they are 'central to the plaintiff's claim and the parties do not dispute the documents' authenticity.'" Id. (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)); see also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)); TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1180 (10th Cir. 2007); Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 964-65 (10th Cir. 1994). Even when such documents exist, the court, at the motion to dismiss stage, "has broad discretion in determining whether to accept materials beyond the pleadings." Brokers' Choice, 861 F.3d at 1103 (citing Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998)).

B. Defendants' Submissions

The court first addresses the video exhibit submitted by defendants. The Complaint relies extensively on photos taken from the police dashcam footage and thus, one fairly could conclude that the Complaint incorporates the video by reference. See Doc. 4 at 9 (Compl. ¶ 22); id. at 13 (Compl. ¶ 29); id. at 16-21. And the video is central to plaintiff's claim—it captures the entire interaction between Officer Jenison and J.A. See, e.g., Estate of Ronquillo by and through Estate of Sanchez v. City and Cty. of Denver, 720 F. App'x 434, 437 (10th Cir. 2017) (considering surveillance video at motion to dismiss stage when it captured most of the events resulting in officers shooting suspect who attempted to flee in his car). Last, as noted, plaintiff does not challenge the video's authenticity. The court thus will consider the video.

But the court will not consider the Audio Transcript because plaintiff contests Officer Kohake's affidavit. This affidavit attests to the validity of the transcript purportedly capturing the exchange between the 911 dispatch and responding officers. See Doc. 22 at 7-8. Plaintiffcontends that Officer Kohake's affidavit "contains data that cannot be verified without a deposition." See id. at 8.

This issue is like one considered in Stewart v. City of Prairie Village, where our court declined to consider an audio recording that police offered in a 42 U.S.C § 1983 claim. 904 F. Supp. 2d 1143 (D. Kan. 2012). In Stewart, defendants sought to include an audio recording capturing the police's interaction with the decedent, who police shot three times, at the motion to dismiss stage. Id. at 1154, 1154 n.17. The disputed recording captured the officer's command, instructing the decedent, "don't pick up that knife." Id. at 1152. The court declined to consider the tape at the motion to dismiss stage, reasoning that "[a]lthough the recording is referred to in the Complaint, and although it addresses an issue central to Plaintiff's claim, Plaintiff argues that she cannot know if the tape is a true and accurate record of the event without discovery." Id. at 1153 n.17.

Here, plaintiff references some dispatch conversations in her Complaint. See Doc. 4 at 3 (Compl. ¶ 8); id. at 4 (Compl. ¶ 12). But, like the plaintiff in Stewart, plaintiff here argues that the affidavit, and in turn, the transcript require discovery to verify. See Doc. 22 at 8. The court thus will consider only the video—and the audio included in the video³. But the court will not consider the Audio Transcript.

C. Plaintiff's Submissions

Finally, the court will not consider any exhibits attached to plaintiff's Memorandum in Opposition to Defendants' Motion for Judgment on the Pleadings. It is true, plaintiff refers to O.P.P.D. policies in her Complaint. See Doc. 4 at 23-24, 26 (Compl. ¶¶ 43-44, 64). But thecourt will not consider the policies in full at the motion to dismiss stage because they are not central to either plaintiff's excessive force or municipal liability claims.

Exercising its discretion, the court finds that the Overland Park Police Department Standard Operating Procedures are not central to plaintiff's excessive force claim. It is true that "'[o]fficials sued for constitutional violations do not lose their qualified immunity merely because their conduct violated some statutory or administrative provision.'" Tanberg v. Sholtis, 401 F.3d 1151, 1160 (10th Cir. 2005) (quoting Davis v. Scherer, 468 U.S. 183, 194 (1984)). But, in this Circuit, courts have considered an officer's training as part of an excessive force claim. See Weigel v. Broad, 544 F.3d 1143, 1152 (10th Cir. 2008) (incorporating officer's training into reasonableness evaluation under Fourth Amendment). So, while relevant, violating a standard operating procedure, standing alone, will not suffice. And, plaintiff already includes relevant standard operating policy excerpts in her Complaint. See Doc. 4 at 23-24, 26 (Compl. ¶¶ 43-44, 64). Thus, the court cannot say that the full policies are central to plaintiff's claim, and, in its discretion, the court chooses not to consider them at this early stage in the litigation.

Second, the standard operating procedures are not central to plaintiff's municipal liability claims. In her Complaint, plaintiff does not argue that the O.P.P.D.'s written policies are constitutionally impermissible. This argument would be a non-starter: plaintiff argues that Officer Jenison's conduct was, in part, constitutionally unreasonable because he violated his department's policies. See, e.g., Doc. 4 at 26 (Compl. ¶ 64). Instead, based on the court's reading of plaintiff's Complaint, she asserts that the City failed to train or supervise officers to prevent them from violating citizens' constitutional rights. This is one avenue to establish municipal liability, but it does not require the court to consider the operating procedures at this stage.

Neither will the court consider the expert report materials and Officer Jenison's Personnel Action Report that plaintiff submitted with her Memorandum in Opposition to Defendants' Motion for Judgment on the Pleadings. See Doc. 22-2 (Personnel Action Report of Clayton Jenison); Doc. 22-4 (Investigatory Reconstruction Analysis Report by Steven R. Christoffersen, P.E.); Doc. 22-5 (Affidavit of Steven R. Christoffersen, P.E.); Doc. 22-6 (Résumé of Steven R. Christoffersen, P.E.). As noted, one prerequisite to considering exhibits outside the pleadings at the motion to dismiss stage is that the documents must be attached to or referenced in the complaint. Smith, 561 F.3d 1090 at 1098. Because these documents were prepared several months after plaintiff filed the Complaint, plaintiff, of course, never attached these exhibits to her Complaint or otherwise incorporated them by reference.

D. Conclusion

In sum, the court will consider the video that defendants submitted with their motion. But, the court will not consider the Audio Transcript defendants provided; the standard operating procedures plaintiff submitted; or the expert witness materials plaintiff submitted. The court also declines to convert defen...