Shaffer v. City of Leavenworth

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EBONY SHAFFER, et al. Plaintiffs, v. CITY OF LEAVENWORTH, et al. Defendants.

Civil Action No. 2:23-cv-2017

United States District Court, D. Kansas

June 9, 2023

MEMORANDUM AND ORDER

KATHRYN H. VRATIL United States District Judge

On December 5, 2022, in the District Court of Leavenworth County, Kansas, Ebony Shaffer filed this suit against the City of Leavenworth and the Leavenworth Police Department. On January 16, 2023, Shaffer filed an amended petition, adding the Estate of Willie Gillom Jr. as a plaintiff. The next day defendants removed this action to federal court.

In her individual capacity, pursuant to 41 U.S.C. § 1983 Shaffer alleges that in violation of the Fourth and Fourteenth Amendments, U.S. Const. amends. IV, XIV defendants unlawfully deprived her of property without due process (Count I). Under Kansas law, Shaffer individually asserts claims for conversion (Count II), intentional infliction of emotional distress (Count III) and negligent inflection of emotional distress (Count IV). In her official capacity as executor of Gillom's Estate, pursuant to Section 1983, Shaffer alleges that in violation of the Fourth and Fourteenth Amendments, defendants unlawfully deprived the Estate of property without due process (Count I), and in violation of Kansas law, defendants converted the Estate's property (Count II).^[1] This matter is before the Court on Defendants' Motion To Dismiss (Doc. #3) filed February 6, 2023. For reasons stated below, the Court sustains the motion in part and overrules in part.

Legal Standards

Defendants move to dismiss under both Rule 12(b)(1), Fed. R. Civ. P., for lack of subject matter jurisdiction, and Rule 12(b)(6), for failure to state a claim. Dismissal pursuant to Rule 12(b)(1) is appropriate when the Court lacks subject matter jurisdiction over a claim for relief. The party asserting jurisdiction has the burden of establishing subject matter jurisdiction. Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir.2008).

Generally, a Rule 12(b)(1) motion to dismiss takes one of two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). In a factual attack, the moving party does not attack the sufficiency of the complaint but asserts that the Court lacks subject matter jurisdiction based on facts outside of the pleadings. Id. at 1003. Here, defendants challenge the facts on which subject matter jurisdiction depend, i.e. whether the Court maintains jurisdiction in light of the notice of suit which plaintiffs filed with the City. When reviewing a factual attack, the Court has wide discretion to consider affidavits, other documents and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). Id.

In ruling on a motion to dismiss under Rule 12(b)(6), the Court assumes as true all well-pleaded factual allegations and determines whether they plausibly give rise to an entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible-not merely conceivable-on its face. Id. at 679-80; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To determine whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Iqbal, 556 U.S. at 679.

The Court need not accept as true those allegations which state only legal conclusions. See id. at 678. Plaintiffs make a facially plausible claim when they plead factual content from which the Court can reasonably infer that defendant is liable for the misconduct alleged. Id. However, plaintiffs must show more than a sheer possibility that defendant has acted unlawfully- it is not enough to plead facts that are “merely consistent with” liability. Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement will not stand. Id. Similarly, where the well-pleaded facts do not permit the Court to infer more than the mere possibility of misconduct, the complaint has alleged-but has not “shown”-that the pleader is entitled to relief. Id. at 679. The degree of specificity necessary to establish plausibility and fair notice depends on context; what constitutes fair notice under Rule 8(a)(2) depends on the type of case. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).

When defendant seeks dismissal under Rule 12(b)(1) and 12(b)(6) in the alternative, the Court must first decide motion under Rule 12(b)(1) for the latter challenge would be moot if the Court lacks subject matter jurisdiction. Mounkes v. Conklin, 922 F.Supp. 1501, 1506 (D. Kan. 1996).

Factual Background

Plaintiffs' complaint alleges as follows:

Shaffer is the daughter of Willie Gillom, Jr. Exhibit A (Doc. #1-1) at 19. Gillom resided at 76 Sheridan Street in Leavenworth, Kansas (“the residence”). Id. at 21. On December 7, 2020, the Leavenworth Police Department notified Shaffer's daughter that Gillom had died at the residence. Id. Shaffer's daughter called Shaffer, who arrived at the residence about 15 minutes later. Id. at 22. At the residence, Shaffer noticed that Gillom's clothing had been removed from a closet and thrown into piles on chairs. Id. She also saw two empty plastic jars that had been filled with loose change. Id. After Shaffer's brother arrived at the residence, he and Shaffer searched the home. Id. at 23. They observed that Gillom's closet and bedroom were in disarray. Id.

On December 16, 2020, Shaffer and her husband began organizing Gillom's personal property at the residence. Id. They discovered empty gun cases, empty knife boxes and missing firearms ammunition. Id. Shaffer immediately contacted the Leavenworth Police Department non-emergency line to report the missing firearms. Id. at 24. After Shaffer provided the address of the residence, she observed “a prolonged, awkward pause.” Id. The dispatcher informed Shaffer that two police offers would respond to the residence to take a formal report. Id.

About ten minutes later, Officer Shane Adams called Shaffer. Id. Adams advised her that officers did not need a formal report. Id. Adams explained that on December 7, 2020, when officers had arrived at the residence, they conducted a thorough search of the home. Id. at 24-25. Adams stated that the officers had seized five firearms “for safekeeping.” Id. at 25. This was the first time Shaffer learned about the search and seizures. Id. Adams informed Shaffer that she needed to contact Officer Leona Housell to retrieve the firearms. Id. When Shaffer asked Adams to complete a formal report, he refused and told Shaffer to wait for the matter to get “sorted out.” Id.

Immediately after speaking with Adams, Shaffer called and left a message for Housell. Id. at 26. Shaffer then went to the police department to retrieve the firearms. Id. At the police department, Shaffer saw a sign stating that “[f]irearms taken by the Leavenworth Police Department for safekeeping would be held for 30 days, then would become the property of the Leavenworth Police Department.” Id. Shaffer attempted to recover the firearms, but the receptionist informed Shaffer that she needed to return with an attorney. Id. Before leaving, Shaffer left another message for Housell and requested a copy of the police report relating to the officers' initial visit to the residence on December 7. Id. at 27. The receptionist provided a redacted copy of an officer call activity report and stated that Shaffer could receive an unredacted report when she returned with an attorney. Id.

On December 31, 2020, Shaffer returned with her probate attorney's paralegal and provided documents to show that she was the executor of Gillom's estate. Id. Shaffer then learned that she must contact Andrew Brinker at the satellite office. Id. The Leavenworth Police Department does not have a satellite office. Id.

On January 5, 2021, the attorney for Gillom's estate called the police department and demanded that it return the seized property. Id. Major Dan Nicodemus informed the attorney that after it received Gillom's autopsy report, the department would release the property. Id. at 28. Nicodemus stated that when the department could release the property, he would contact the attorney, which he never did. Id.

On January 6, 2021, Nicodemus emailed Shaffer that the department had seized the property “as part of [her] father's death” investigation. Id. On or about January 14, 2021, Shaffer received her father's death certificate, which indicated that an autopsy had not been performed. Id. On or about April 12, 2021, Shaffer received an email stating that she could retrieve the seized property. Id. Upon receipt of the property, Shaffer discovered that officers had seized various firearms and sums of cash. Id.^[2]

Procedural History

On June 9, 2021, as required by K.S.A. § 12-105b, the Estate filed a notice of claim with the City. The notice listed Shaffer as administrator of Gillom's Estate and detailed “claims by the Estate, brought under the Kansas Tort Claims Act and 42 U.S.C. § 1983.” Exhibit A (Doc. #4-1) at 1; see K.S.A. §§ 75-6101 et seq. The Estate detailed the facts set forth above and described its alleged injury as follows: “Illegal search and seizure, including theft of various personal property including, but not limited to, firearms, money, knives, and medications.” Id. at 4.

As noted, on December 5, 2022, in the District Court of Leavenworth County, Shaffer filed this suit against defendants. On January 16, 2023, Shaffer filed an amended petition, adding Gillom's Estate as a plaintiff. On ...