Calvo-Pino v. Weidl, Case No. 20-2044-JAR-GEB

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Citation514 F.Supp.3d 1321
Parties Orlando CALVO-PINO, Plaintiff, v. Matthew R. WEIDL, et al., Defendants.
Docket NumberCase No. 20-2044-JAR-GEB
Decision Date25 January 2021

514 F.Supp.3d 1321

Orlando CALVO-PINO, Plaintiff,
Matthew R. WEIDL, et al., Defendants.

Case No. 20-2044-JAR-GEB

United States District Court, D. Kansas.

Signed January 25, 2021

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Arthur A. Benson, II, Jamie Kathryn Lansford, Law Office of Arthur Benson, II, Kansas City, MO, Thomas R. Fields, Leawood, KS, for Plaintiff.

Jana V. Richards, Sean M. Sturdivan, Tyler Waugh, Sanders Warren Russell & Scheer, LLP, Overland Park, KS, for Defendants Matthew R. Weidl, City of Lawrence Kansas, Gregory C. Burns, Jr.

Jana V. Richards, Sean M. Sturdivan, Sanders Warren Russell & Scheer, LLP, Overland Park, KS, for Defendant Anthony Brixius.

Michael K. Seck, Fisher, Patterson, Sayler & Smith, LLP, Overland Park, KS, for Defendant Randy Roberts.



Plaintiff Orlando Calvo-Pino brings this civil rights action against Defendants Officer Matthew R. Weidl, Lawrence Interim Chief of Police Anthony Brixius, Douglas County Sheriff Randy Roberts, and the City of Lawrence, Kansas. Plaintiff alleges individual capacity claims against Officer Weidl and official capacity claims against the remaining Defendants. This matter is before the Court on Motions to Dismiss (Docs. 55, 58) the official capacity claims for failure to state a claim upon which relief can be granted filed by Sheriff Roberts, Interim Chief Brixius, and the City. The motions are fully briefed, and the Court is prepared to rule. As described more fully below, the Court grants in part and denies in part the motions to dismiss the official capacity claims alleged in the Second Amended Complaint.

I. Legal Standard

To pass muster under Fed. R. Civ. P. 12(b)(6), "the complaint must give the court reason to believe that this plaintiff

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has a reasonable likelihood of mustering factual support for these claims."1 The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than "a sheer possibility."2 "[M]ere ‘labels and conclusions,’ and ‘a formulaic recitation of the elements of a cause of action’ will not suffice; a plaintiff must offer specific factual allegations to support each claim."3 Finally, the Court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.4

The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court "must take all the factual allegations in the complaint as true, [but] we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ "5 Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.6 Second, the court must determine whether the factual allegations, when assumed true, "plausibly give rise to an entitlement to relief."7 "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."8 "While the [ Rule] 12(b)(6) standard does not require that Plaintiff establish a prima facie case in [the] complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim."9

II. Facts Alleged in the Second Amended Complaint

The following material facts are alleged in the Second Amended Complaint ("SAC") and assumed to be true for purposes of deciding this motion.

Defendant Matthew Weidl is a police officer employed by the City of Lawrence, Kansas ("the City") Police Department. Officer Weidl was assigned to the Lawrence/Douglas County Drug Enforcement Unit ("LDCDEU"), which includes officers from both the Lawrence Police Department ("LPD") and the Douglas County Sheriff's Office ("DCS"). The LDCDEU is a joint venture governed by a Memorandum of Understanding ("MOU"). The officers in this unit are cross-deputized; they work under the direction and supervision of commander-level officers from both agencies and are subject to LDCDEU rules, regulations, and training. Duties of LDCDEU officers are divided under the MOU—DCS deputies work undercover in unmarked law enforcement vehicles and do not conduct traffic stops, while LPD officers are uniformed, drive marked law enforcement

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vehicles, and make traffic stops for purposes of interdicting illegal drug activities. Revenues received from forfeitures by the LDCDEU are shared between the LPD and the DCS, with some revenues also provided to the Douglas County District Attorney and to the LDCDEU's own budget.

On February 2, 2018, shortly before 2:00 a.m., Plaintiff was driving his vehicle west on I-70 when he passed Officer Weidl, who was on patrol. After passing the officer's vehicle, Plaintiff signaled and moved into Officer Weidl's lane before Weidl considered the lane change to be safe. Officer Weidl followed Plaintiff for two miles and then initiated a traffic stop. Plaintiff, a Spanish speaker who knew little English, provided his Colorado driver's license and rental car documentation. Due to this language barrier, Officer Weidl asked Plaintiff back to his patrol car so that they could call an interpreter. Plaintiff agreed, joined Officer Weidl in the patrol car, and an interpreter promptly joined them by phone.

Officer Weidl eventually instructed the interpreter to explain that Plaintiff would be given only a written warning, and that his assistance was only needed to get basic information correct. Officer Weidl then spent roughly ten more minutes questioning Plaintiff in detail about his family and where he had traveled. Officer Weidl ultimately returned Plaintiff's information, but as Plaintiff was walking back to his car, Officer Weidl re-engaged him by asking if he could ask further questions and search the vehicle. Plaintiff gave permission, and Officer Weidl—eventually joined by another officer—searched the vehicle. The officers observed a satchel hanging from the driver's seat that contained a pistol and notebook with numbers. They found currency in a bag of dog food.

Officer Weidl then gave Miranda warnings to Plaintiff and Plaintiff agreed to speak with him, informing the officers that the money was from the sale of horses some days before. Officer Weidl ultimately arrested Plaintiff and took him to the Investigations and Training Center in Lawrence for further processing and assistance. Plaintiff was charged with Unlawful Acts Involving Proceeds Derived from Violations of K.S.A. §§ 21-5701 through 21-5717, a drug severity level 4 felony. Plaintiff obtained defense counsel and eventually moved to suppress all evidence obtained after Officer Weidl announced his intent to give Plaintiff only a warning. A Douglas County District Court granted the motion, finding Officer Weidl lacked reasonable suspicion to prolong the traffic stop.

No LPD or DCS supervisor of Officer Weidl instructed or counseled him on how to avoid unlawful prolonged detentions after a traffic stop. In addition, no supervisor ever checked Officer Weidl or monitored his law enforcement activities to determine whether he was avoiding unlawful prolonged traffic stops during his highway drug interdiction duties, or whether he was improperly compromising the voluntary nature of traffic stops.

Neither LPD nor DCS supervisors (1) monitored and supervised LDCDEU officers conducting traffic stops as part of their highway drug interdiction activities; (2) made any inquiries, formal or informal, to determine whether or not LDCDEU officers were engaging in unlawfully prolonged traffic stops; (3) promulgated policies and practices to guide officers conducting drug interdiction traffic stops about how to avoid prolonged detentions; or (4) made efforts to determine whether Officer Weidl had been trained on how to avoid unlawfully prolonged traffic stops or nonconsensual interrogations. The City, Interim Chief Brixius and Sheriff Roberts

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failed to take these actions despite their awareness of legal precedent establishing how to conduct traffic stop interrogations that did not run afoul of the Fourth Amendment. Specifically, they were aware of national and state cases establishing that conduct similar to Officer Weidl's in this case was unconstitutional.

III. Discussion

This Court previously dismissed the official capacity claims alleged against the former Douglas County Sheriff, Sheriff McGovern, for failure to set forth a plausible claim of municipal liability. Plaintiff subsequently filed the SAC, reasserting official capacity claims against the new Douglas County Sheriff, Sheriff Roberts, and substituting Interim Chief Brixius for the previous LPD Chief. Suing Sheriff Roberts and Interim Chief Brixius in their official capacities "is essentially another way of pleading an action against the county or municipality [he] represent[s]."10 Similar to the First Amended Complaint, the SAC purportedly alleges...

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