Demster v. City of Lenexa, Kansas, 04-2420-JWL.

Citation352 F.Supp.2d 1165
Decision Date18 January 2005
Docket NumberNo. 04-2420-JWL.,04-2420-JWL.
PartiesStanley DEMSTER, et al., Plaintiffs, v. CITY OF LENEXA, Kansas, et al. Defendants.
CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas

Michael P. Joyce, Van Osdol Magruder Erickson & Redmond, Kansas City, MO, for Plaintiffs.

Callie A. Marks, Marcia L. Knight, Lenexa, KS, for Defendants.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

Stanley, Karen and Renee Demster bring this action under 42 U.S.C. § 1983. Stanley Demster asserts a claim against Officers Shannon Trevino, David Valasquez, Casey Flack and Kevin McCormack, in their individual capacities, alleging excessive force. Karen and Renee Demster assert claims against Officers Shannon Trevino, David Valasquez, Casey Flack and Kevin McCormack, in their individual capacities, alleging false arrest and malicious prosecution Claims are also asserted against the City of Lenexa and Chief of Police Ellen T. Hanson, in her official capacity, for negligent training, supervision and retention with respect to the individually named officers. This matter is currently before the court on defendants' motion to dismiss the following counts: count one of the complaint, excessive force in violation of Stanley Demster's Fifth Amendment rights, for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6); count three of the complaint, false of arrest of Karen and Renee Demster ("plaintiffs") in violation of their Fourth Amendment rights, for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), qualified immunity, or lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1); and count four of the complaint, malicious prosecution of plaintiffs in violation of their Fourth Amendment rights, for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) and lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (Doc. # 4).

The court grants in part and denies in part defendants' motion. The court grants dismissal of count one, as dismissal is unopposed by Stanley Demster. The court also grants dismissal of count three. While the court finds that it has subject matter jurisdiction, and that plaintiffs have sufficiently pled a § 1983 claim for false arrest, the court finds that defendants are shielded by qualified immunity. The court, however, denies defendants' motion to dismiss count four because the court has subject matter jurisdiction and plaintiffs have sufficiently pled a § 1983 claim for malicious prosecution.

The court also denies plaintiffs' request for leave to amend the false arrest claim of their complaint because allowing the pleading of additional facts would not alter the court's finding that the officers are shielded by qualified immunity.

I. BACKGROUND1

On September 6, 2004 Officers Trevino, Velasquez, Flack and McCormack responded to the Demster residence in reference to a disturbance involving unknown parties. While on the premises, the officers arrested Stanley Demster.

During the course of the arrest, Karen Demster, Stanley Demster's wife, and Renee Demster, Stanley Demster's daughter, believed that the officers were physically assaulting Stanley Demster. Karen and Renee Demster began crying out and screaming at the officers to stop their actions as they were injuring Stanley Demster. Karen and Renee Demster attempted to approach Stanley Demster, and Officer Flack grabbed Renee Demster and held her away from Officers Trevino and Velasquez before she could reach her father. Officer McCormack restrained Karen Demster and held her away from Officers Trevino and Velasquez before she could reach her husband.

Karen and Renee Demster were arrested for obstructing legal process or official duty, which is prohibited by K.S.A. 21-3808. Officers Trevino, Velasquez, Flack and McCormack created police reports describing their encounter with Karen and Renee Demster containing allegedly false information, that Karen and Renee Demster obstructed police officers during the performance of official duties by grabbing officers and pulling them off of Stanley Demster as they were arresting him. Subsequently, charges were filed against Karen and Renee Demster in the District Court of Johnson County, Kansas for the actions described in the police report. These charges were dismissed after Officers Trevino, Velasquez, Flack and McCormack failed to appear in court.

II. STANDARD FOR MOTION TO DISMISS PURSUANT TO RULE 12(b)(1)

Federal courts have limited jurisdiction, and the court thus presumes that there is no jurisdiction unless the party invoking it makes an adequate showing that it exists. United States ex rel. Holmes v. Consumer Ins. Group, 279 F.3d 1245, 1249 (10th Cir.2002) (citing United States ex rel. Precision Co. v. Koch Indus., 971 F.2d 548, 551 (10th Cir.1992)). The party seeking to invoke federal jurisdiction bears the burden of alleging and proving by a preponderance of the evidence the facts necessary to support jurisdiction. Id. (citing Koch Indus., 971 F.2d at 551). 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." Gadlin v. Sybron Int'l Corp., 222 F.3d 797, 800 (10th Cir.2000) (quoting Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974)).

Motions to dismiss under Rule 12(b)(1) may take one of two forms. Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir.2001). First, a party may make a facial challenge to the plaintiff's allegations concerning subject matter jurisdiction, thereby questioning the sufficiency of the complaint. Id. (citing Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995)). In addressing a facial attack, the district court must accept the allegations in the complaint as true. Id. (citing Holt, 46 F.3d at 1002). Second, "a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction is based." Id. (citing Holt, 46 F.3d at 1003). In addressing a factual attack, the court does not presume the truthfulness of the complaint's factual allegations, but has "wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts." Id. (citing Holt, 46 F.3d at 1003). A court's reference to evidence outside the pleadings in analyzing a factual attack does not convert the motion into a Rule 56 motion. Id.

III. STANDARD FOR MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)

The court will dismiss a cause of action for failure to state a claim only when "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his [or her] claims which would entitle him [or her] to relief," Aspenwood Investment Co. v. Martinez, 355 F.3d 1256, 1259 (10th Cir.2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Adams v. Kinder-Morgan, Inc., 340 F.3d 1083, 1088 (10th Cir.2003). The issue in resolving a motion such as this is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

IV. EXCESSIVE FORCE AS A VIOLATION OF FIFTH AMENDMENT (Count I)

In count one of the complaint, Stanley Demster alleges a § 1983 excessive force claim, arguing that his Fifth Amendment rights were violated. Defendants ask for dismissal of this claim, arguing that this allegation can only be properly analyzed under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443. Stanley Demster concedes this argument, and, therefore the court will dismiss count one of the complaint.

V. FALSE ARREST (Count III)

In count three of the complaint, Karen and Renee Demster allege that they were falsely arrested by Officers Trevino, Velasquez, Flack and/or McCormack for obstruction of justice in violation of their Fourth Amendment rights cognizable under § 1983. Defendants ask the court to dismiss this claim because it fails to state a claim for which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6); or, alternatively, because defendants are entitled to qualified immunity; or, alternatively, because the court lacks subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

Section 1983 imposes liability for conduct carried out under the color of state law which deprives a plaintiff of "rights, privileges, or immunities secured by the Constitution and laws ..." 42 U.S.C. § 1983. To prevail on a claim for damages for a constitutional violation pursuant to section 1983, a plaintiff must establish that a defendant acted under color of state law and caused or contributed to the alleged violation.2 Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir.1996). In certain circumstances, a false arrest may constitute not only an action under state law, but a violation of civil rights pursuant to 42 U.S.C. § 1983, as well. Nesmith v. Alford, 318 F.2d 110, 126 (5th Cir.1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964); Mason v. Stock, 955 F.Supp. 1293 (D.Kan.1997).

Arrest by police officers without probable cause violates the Fourth Amendment's guarantee of security from unreasonable searches and seizures, giving rise to a claim...

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