Arnold v. City of Olathe

Decision Date10 September 2019
Docket NumberCase No. 18-2703-CM-JPO
Citation413 F.Supp.3d 1087
Parties Mark ARNOLD, Plaintiff, v. CITY OF OLATHE, KANSAS, et al., Defendant.
CourtU.S. District Court — District of Kansas

Andrew S. LeRoy, Jose M. Bautista, Bautista LeRoy, LLC, Kansas City, MO, Linda C. Powers, Pro Hac Vice, Groves Powers, LLC, St. Louis, MO, for Plaintiff.

Michael K. Seck, Fisher, Patterson, Sayler & Smith, LLP, Alex Scott Gilmore, Kirk Thomas Ridgway, Ferree, Bunn, Rundberg, & Ridgway, Chartered, Overland Park, KS, for Defendant.


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 Alvarado 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:


Despite the varying levels of involvement identified above, plaintiff's 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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....

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