Estate of Holmes v. Somers

Citation387 F.Supp.3d 1233
Decision Date17 April 2019
Docket NumberCase No. 18-1221-JWB
Parties ESTATE OF Matthew HOLMES, BY AND THROUGH administrator, Wendy COUSER, as administrator and individually, Plaintiff, v. Chris SOMERS, et al., Defendants.
CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas

Arthur Loevy, Pro Hac Vice, Jonathan Loevy, Pro Hac Vice, Joshua L. Loevy, Mark Loevy-Reyes, Pro Hac Vice, Loevy & Loevy, Chicago, IL, for Plaintiff.

J. Steven Pigg, Fisher, Patterson, Sayler & Smith, LLP, Topeka, KS, for Defendant Chris Somers.

Corey M. Adams, Edward L. Keeley, McDonald Tinker PA, Wichita, KS, for Defendants Anthony Hawpe, Skyler Hinton, City of Newton Kansas.

Charles E. Millsap, Fleeson, Gooing, Coulson & Kitch, LLC, Wichita, KS, for Defendants Jason Achilles, Jerry Montagne, McPherson County Sheriff's Office.

Brian L. Bina, Karstetter & Bina, LLC, McPherson, KS, Charles E. Millsap, Fleeson, Gooing, Coulson & Kitch, LLC, Wichita, KS, for Defendant County of McPherson Kansas.

David E. Rogers, Foulston Siefkin LLP, Wichita, KS, Toby Crouse, Crouse, LLC, Overland Park, KS, for Defendants Chad Gay, County of Harvey Kansas, Harvey County Sheriff's Office.

MEMORANDUM AND ORDER

JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE

This case comes before the court on Defendants' motions to dismiss (Docs. 33, 38, 51, 53, 61). The motion has been fully briefed and is ripe for decision. (Docs. 34, 39, 52, 54, 60, 62, 65, 67, 68, 73, 74, 82, 83, 86.) Defendants' motions are GRANTED IN PART AND DENIED IN PART for the reasons stated herein.

I. Materials Outside the Pleadings

This action arises from the shooting of Matthew Holmes by McPherson County Sheriff's Deputy Chris Somers on August 28, 2017. Before setting forth the facts applicable to the pending motions, the court must first determine whether materials outside the pleading should be considered by the court at this stage.1

Videos of the Incident. Multiple videos have been submitted as exhibits in this matter. The videos include both videos from cameras worn by Defendant officers2 and from patrol cars. The following videos have been submitted: 1) Skyler Hinton's body cam video (Doc. 39, Exh. 1); 2) Joshua Hulse's dash cam video (Doc. 39, Exh. 2); 3) Officer Minkevitch's body cam video (Doc. 34, Exh. A); 4) Officer Hawpe's body cam video (Doc. 34, Exh. B); 5) Deputy Gayer's body cam video (Doc. 34, Exh. C); and 6) Chris Somers' body cam video (Doc. 34, Exh. D).

Defendants assert that the court may consider the videos on the pending motions to dismiss because the "video" is referenced in the complaint and central to the claims. Plaintiff's complaint makes one reference to the "video." In paragraph 41, Plaintiff states that "Defendant Somers' account that Mr. Holmes gained control of a weapon is contradicted by the video of the shooting." (Doc. 1 at 7.) Plaintiff did not attach any video to her complaint. Plaintiff objects to the use of the videos at this stage of the proceedings. Plaintiff, however, does not assert that the videos are not authentic copies of the events that transpired during the evening of the shooting.

On a motion to dismiss, the court may consider the complaint itself and any attached exhibits or any documents incorporated by reference. Smith v. United States , 561 F.3d 1090, 1098 (10th Cir. 2009) ; Lowe v. Town of Fairland , 143 F.3d 1378, 1381 (10th Cir. 1998) ("[C]ourts have broad discretion in determining whether or not to accept materials beyond the pleadings."); GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384–85 (10th Cir. 1997). A court also "may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity." Id. Plaintiff states that she had portions of certain videos prior to drafting the complaint but did not have all the videos. Plaintiff contends that she did not incorporate the video into her complaint. Plaintiff also asserts that the video is not central to her claim as other evidence, including witnesses and reports, support the claims in the complaint.

Defendants have cited various authority in support of their position that the court may consider the videos in ruling on a motion to dismiss. Much of the authority, however, can be distinguished as several cases were at the summary judgment stage and, in some cases, the plaintiffs either attached the videos as exhibits or did not object to their consideration. See Scott v. Harris, 550 U.S. 372, 380–81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (summary judgment); Bogie v. Rosenberg , 705 F.3d 603, 608 (7th Cir. 2013) (attached video to complaint); Chamberlain v. City of White Plains , 986 F.Supp.2d 363, 380 (S.D.N.Y. 2013) ("Neither party contests the appropriateness of the Court's consideration of the recordings without converting the instant Motions to ones for summary judgment."); Hartman v. Walker , 685 F. App'x 366, 368 (5th Cir. 2017) (exhibit attached to complaint); Carabajal v. City of Cheyenne, Wyoming , 847 F.3d 1203, 1207 (10th Cir.), cert. denied sub nom. Carabajal v. City of Cheyenne, Wyo. , ––– U.S. ––––, 138 S.Ct. 211, 199 L.Ed.2d 118 (2017) (considering video at summary judgment stage); Garcia v. Does , 779 F.3d 84, 87-88 (2d Cir. 2015) (attached to complaint; parties did not contest consideration); Estate of Ronquillo by & through Estate of Sanchez v. City & Cty. of Denver , 720 F. App'x 434, 437 (10th Cir. 2017) (video attached as an exhibit to complaint).

Largely depending on the facts and the parties' positions, courts in this district have gone both ways, sometimes considering a video in the context of a motion to dismiss and at other times declining to do so. Albers v. Jenison , No. 18-2185-DDC-JPO, 2018 WL 5311862, at *1 (D. Kan. Oct. 26, 2018) (plaintiff did not object); Myers v. Brewer , No. 17-2682, 2018 WL 3145401, at *1–2 (D. Kan. June 27, 2018) (videos central to complaint and part of the record in another court case); McHenry v. City of Ottawa , No. 16-3726-DDC, 2017 WL 4269903, at *4 (D. Kan. Sept. 26, 2017) (declining to consider the video); Choate v. City of Gardner, Kansas , No. 16-2118-JWL, 2016 WL 2958464, at *3 (D. Kan. May 23, 2016) (considered videos).

After reviewing the parties' briefing, the court declines to consider the videos in deciding the motions to dismiss. Six different videos have been submitted in support of the motions. The parties' memoranda conflict as to the events occurring on the videos, the statements made therein, and the party making those statements. At this stage, the court cannot evaluate competing interpretations of the videos and, having reviewed the videos, the court finds that certain events and statements included therein may be susceptible to more than one interpretation. Ultimately, evaluation of the videos in this case will be aided by testimony and possibly other forms of evidence that can be considered at summary judgment or at trial. While the court's decision here does not mean that the court would never consider a video on a motion to dismiss, the court declines to do so in this case. Defendants are free to rely on the videos at the summary judgment stage to the extent that is consistent with the law regarding video evidence.

December 12, 2017, Statement by McPherson County Attorney. The City of Newton Defendants ("NPD Defendants") have attached the Statement issued by McPherson County Attorney Greg Benefiel regarding the death of Holmes. Defendants assert that the court should consider the Statement as Plaintiff quotes from the Statement in her complaint. (Doc. 39 at 3.) The complaint states that "In order to provide post-hoc justification, Defendant Somers fabricated that he saw Mr. Holmes with his hands on a gun. There is absolutely no evidence to support this claim, as the McPherson County Attorney's Office admits: ‘There is no evidence that Holmes actually gained control of Cpl. Hawpe's duty weapon.’ " (Doc. 1 at 7.) Plaintiff objects to the court's consideration of the Statement on the basis that it is hearsay and is not authenticated. (Doc. 60 at 53.) Defendants do not respond to Plaintiff's objection. (Doc. 74.) The court declines to consider the Statement in deciding the pending motions to dismiss.

Court Records in Other Actions

The NPD Defendants have also submitted exhibits that include court records from excessive force actions that are cited in Plaintiff's complaint. (Doc. 39.) The records are submitted for the purpose of determining whether the underlying allegations in the complaints were meritorious and substantially similar to the allegations in this complaint. (Doc. 39 at 16-17.) Although the court can take judicial notice of publicly filed court documents, the court declines to review the records for the purpose of determining whether these alleged instances of misconduct were meritorious and substantially similar in order to establish the existence of a policy and/or deliberate indifference. Such determination is more appropriate for summary judgment. At this stage, the court will consider only the allegations in the complaint.

II. Facts

The following facts are taken from the allegations in the complaint, without regard to the evidence contained in the videos. Additional facts are noted throughout this order. On August 28, 2017, officers were attempting to stop Holmes, who was driving his vehicle.3 The officers were from the Harvey County Sheriff's Office ("HCSO"), the McPherson County Sheriff's Office ("MCSO") and the City of Newton Police Department ("NPD"). In addition to naming individual defendants, Plaintiff has also asserted claims against unknown officers from those agencies. The named individual Defendants include Chris Somers and Jason Achilles4 , deputies of the MCSO, and Jerry Montagne, the Sheriff of McPherson County. Defendants Anthony Hawpe and Skyler Hinton are all law enforcement officers of the NPD. Defendant Chad Gay is the Sheriff of Harvey County.

Holmes was 24 years old in August 2017. Holmes is...

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