Humes v. Cummings

VERONICA HUMES, Plaintiff, v. EDWARD T. CUMMINGS, et al., Defendants.

Case No. 18-2123-DDC-GEB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

September 25, 2018

MEMORANDUM AND ORDER

On March 16, 2016, deputy sheriffs from the Leavenworth County Sheriff's Department responded to a report that plaintiff Veronica Humes had fired two gunshots at her neighbor. After plaintiff refused to comply with the deputies' commands to get on the ground, the deputies tased and arrested her. Plaintiff brings this lawsuit under 42 U.S.C. § 1983 against the Leavenworth County Sheriff's Department, Andrew Dedeke (the Leavenworth County Sheriff) in his official capacity, and five deputy sheriffs from the Leavenworth County Sheriff's Department in their individual capacities. Plaintiff alleges that defendants violated her First, Fourth, and Fourteenth Amendment rights. She also asserts a negligence claim under the Kansas Tort Claims Act ("KTCA").

This matter comes before the court on two motions. First, defendants have filed a Motion to Dismiss plaintiff's § 1983 claims under Federal Rule of Civil Procedure 12(b)(6) for failing to state a claim. Doc. 14. Second, defendants have filed a Motion to Dismiss plaintiff's KTCA claim under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Doc. 16. For reasons explained below, the court grants part of defendants' Motion to Dismiss plaintiff's § 1983 claims and denies the remainder. Also, the court grants defendants' Motion to Dismiss plaintiff's KTCA claim because, as plaintiff concedes, she has not provided written notice of her claim as Kan. Stat. Ann. § 12-105b(d) requires. The court thus dismisses plaintiff's KTCA claim but without prejudice.

I. Factual Background

The following facts are taken from plaintiff's Complaint (Doc. 1) and viewed in the light most favorable to her. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) ("We accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the [plaintiff]." (citation and internal quotation marks omitted)).

Plaintiff owns at least two properties in Leavenworth County, Kansas. One of those properties—located at 215 Broad Street, Easton, Leavenworth County—neighbors the home of Danny Clark. Plaintiff and Mr. Clark have had a "long standing property dispute." Doc. 1 at 5 (Compl. ¶ 28). The two have engaged in many spats, resulting in multiple calls to and visits from local law enforcement officials during the last two years.

On March 16, 2016, plaintiff contacted the Leavenworth County Sheriff's Department ("LCSD") to report that Mr. Clark had been trespassing on her property at 215 Broad Street. LCSD Deputy Jason Slaughter responded to the call. When Deputy Slaughter arrived at plaintiff's property, Mr. Clark emerged from the neighboring house and charged at plaintiff, screaming "You fucking crazy bitch." Id. at 5 (Compl. ¶ 30). Deputy Slaughter refused to subdue Mr. Clark. Also, he declined plaintiff's offer to show him footage from her security camera showing Mr. Clark's trespass. Citing the impossibility of determining the actual property line separating the feuding neighbors, Deputy Slaughter refused to file a police report and left the property without resolving the dispute.

A few hours later, plaintiff visited her other property at 31298 Cemetery Road, Easton, Leavenworth County, Kansas. About 9:00 p.m., plaintiff began walking back to the 215 Broad Street property. While walking in the road, plaintiff saw a light in the field to her right. She called out, asking who was there. Suddenly, a large vehicle reversed out of Mr. Clark's property. It drove toward plaintiff with bright, white lights shining at her. Blinded by the light, plaintiff could not identify the vehicle or the person driving it.

A few seconds later, the driver stepped out of the vehicle and ordered plaintiff to get on the ground. Plaintiff later learned that the driver was LCSD Deputy Eric J. Thorne. In response, plaintiff put her hands in the air and asked repeatedly what was going on. Deputy Thorne refused to answer plaintiff's question. Instead, he pulled a gun, pointed it at plaintiff, and threatened to shoot her if she did not comply with his instruction. Plaintiff asserts that she was terrified, confused, and unable to see.

Suddenly, LCSD deputies surrounded plaintiff, as Deputy Thorne continued to order plaintiff to get on the ground. Plaintiff asserts that the deputies became irate, even though she posed no threat and the bright light was blinding her. Then, without any warning, justification, or provocation, defendants fired their tasers at plaintiff. Plaintiff fell to the pavement, and the deputies jumped on her. They pinned plaintiff's head against the ground, pulled her arms behind her back, and handcuffed her. Once detained, deputies transported plaintiff to the LCSD's office and placed her under arrest. Law enforcement officers told plaintiff that they were investigating her for attempted murder of her neighbor, Mr. Clark, who had reported that plaintiff fired two gunshots at him earlier that night.

Plaintiff asserts that defendants conspired or acted in concert to falsify their reports. Plaintiff contends that the reports contain many contradictions and glaring omissions. Plaintiffalso asserts that defendants made these false reports to convince the Leavenworth County prosecutor to bring charges against plaintiff.

On March 17, 2016, the Leavenworth County prosecutor charged plaintiff with aggravated assault and attempted animal cruelty based on Mr. Clark's report to law enforcement. On July 19, 2017, a unanimous jury acquitted plaintiff of these charges.

II. Legal Standard

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

"Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to exercise jurisdiction." Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citation omitted). Federal district courts have original jurisdiction over all civil actions arising under the constitution, laws, or treaties of the United States or where there is diversity of citizenship. 28 U.S.C. § 1331-32. "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citation omitted). Since federal courts are courts of limited jurisdiction, the party invoking federal jurisdiction bears the burden to prove it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

Generally, a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) takes one of two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). "First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true." Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)).

"Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends." Id. at 1003. "When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations." Id. A court has wide discretion to allow affidavits, other documents, and [to conduct] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id. (internal citations omitted); Los Alamos Study Grp. v. United States Dep't of Energy, 692 F.3d 1057, 1063-64 (10th Cir. 2012).

B. Motion to Dismiss for Failure to State a Claim

Fed. R. Civ. P. 8(a)(2) provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Although this Rule "does not require 'detailed factual allegations,'" it demands more than "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action'" which, as the Supreme Court explained, "will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must assume that the factual allegations in the complaint are true. Id. (citing Twombly, 550 U.S. at 555). But the court is "'not bound to accept as true a legal conclusion couched as a factual allegation.'" Id. (quoting Twombly, 550 U.S. at 555). "'Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice'" to state a claim for relief. Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). Also, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citations omitted).

For a complaint to survive a motion to dismiss under Rule 12(b)(6), the pleading "must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Iqbal, 556 U.S. at 679 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556); see also Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192 (10th Cir. 2009) ("The question is whether, if the allegations are true, it is...