Jordan v. Kelly

• Decision Date: 20 November 1963
• Docket Number: No. 14439-3.,14439-3.
• Parties: Leon JORDAN, Plaintiff, v. C. M. KELLY, Chief of Police, James D. Theisen, Officer, and Albert W. Thomson, Roy P. Swanson, Davis K. Jackson, Clinton W. Kanaga, Jr., H. Roe Bartle, ex officio, as Members of Board of Police Commissioners of Kansas City, Missouri, Defendants.
• Court: U.S. District Court — Western District of Missouri

223 F. Supp. 731

Leon JORDAN, Plaintiff, v. C. M. KELLY, Chief of Police, James D. Theisen, Officer, and Albert W. Thomson, Roy P. Swanson, Davis K. Jackson, Clinton W. Kanaga, Jr., H. Roe Bartle, ex officio, as Members of Board of Police Commissioners of Kansas City, Missouri, Defendants.

No. 14439-3.

United States District Court W. D. Missouri, W. D.

November 20, 1963.

Leonard S. Hughes, Jr., and Harold L. Holliday, Kansas City, Mo., for plaintiff.

W. H. Bates, Secretary-Attorney Board of Police Commissioners, Kansas City, Mo., for defendants.

James H. Ottman, of Shook Hardy, Ottman, Mitchell & Bacon, Kansas City, Mo., special counsel for defendant Clinton W. Kanaga, Jr.

DUNCAN, District Judge.

Plaintiff instituted this suit in this court against the defendants to recover the sum of $50,000.00 actual and $50,000.00 punitive damages on Count I for alleged violation of § 1 of the 14th Amendment, and § 1983 Title 42 U.S.C.A. (the Civil Rights statute). Plaintiff alleges among other things:

"3. That defendants, Albert W. Thomson, Roy P. Swanson, Davis K. Jackson, Clinton W. Kanaga, Jr., and H. Roe Bartle, ex officio member, are members of the Board of Police Commissioners, duly appointed by the Governor of the State of Missouri, and that the defendant, C. M. Kelley was appointed by them as the Chief of Police of Kansas City, Missouri and is their agent; that the defendant, James D. Theisen, was and presently is a patrolman, employed by the Kansas City, Missouri Police Department, and at all times mentioned herein was acting in that capacity under the supervision, direction, and the control of the defendant Kelley and the defendant members of the Board of Police Commissioners of Kansas City, Missouri; that the defendants are all citizens and residents of the State of Missouri; that at all times hereinafter mentioned, they were acting under the authority and color of law.

"4. Plaintiff further states that on or about July 10, 1962, while the plaintiff was directing and supervising his affairs as an orderly and law abiding citizen and was conducting his business, he was, without warrant or other legal process, arrested by defendant, James D. Theisen, acting on his own and in the behalf of and under the direction of defendants, C. M. Kelley and the defendant members of the Board of Police Commissioners of Kansas City, Missouri, did wrongfully, maliciously and unlawfully commit an assault upon plaintiff by the use of vile and obscene language toward plaintiff, insulted, frightened, humiliated, and abused him, and in a most cruel and brutal manner did lay violent and forcible hands upon plaintiff and maliciously and unlawfully pushed, touched and jerked this plaintiff; that said acts of the defendants as aforesaid were under color of law but in violation of the privileges and immunities, the equal protection of the laws and the due process clauses of the Constitution of the United States, Amendment 14, and Chapter 21, Title 42, Section 1983, United States Code, and solely because of plaintiff's race and color.

"5. Plaintiff states that defendants had no reasonable grounds for believing that plaintiff had violated any ordinance of the municipality of Kansas City, Missouri or the laws of the State of Missouri, or of the United States and that defendants acted in accordance with a common plan and scheme to deprive plaintiff of rights guaranteed by the Constitution and laws of the United States, solely by reason of his race and color."

Count II seems to allege false imprisonment and seeks damages in the same amounts.

The defendants filed a Motion to Dismiss on the grounds:

"A.

"As a matter of law, plaintiff has no cause of action against defendant Chief C. M. Kelley, and defendants Albert W. Thomson, Roy P. Swanson, Davis K. Jackson, Clinton W. Kanaga, Jr., and H. Roe Bartle, members of the Board of Police Commissioners of Kansas City, Missouri.

"B.

"Plaintiff's complaint for damages fails to state a cause of action or complaint against any of the defendants upon which relief can be granted.

"C.

"Plaintiff, having been properly charged, admitted to bail and released on bond, was afforded due process of law and is precluded from purusing the action and relief sought in plaintiff's complaint for damages."

Each defendant, except Theisen, filed an affidavit in support of said motion. The affidavits of the members of the Board of Police Commissioners are identical, and omitting the names, are as follows:

"Comes now _______, of legal age, having been first duly sworn, and on his oath states:

"(1) That he is one of the named defendants in a law suit entitled Leon Jordan v. C. M. Kelley, Chief of Police, et al., Number 14439-3.

"(2) That at all times pertinent in said law suit, to wit, on July 17, 1962, he was a duly appointed and qualified member of the Board of Police Commissioners of Kansas City, Missouri, having been previously appointed by The Honorable John M. Dalton, Governor of the State of Missouri, and administered the oath of office by a Judge of the Circuit Court of Jackson County, Missouri, at Kansas City.

"(3) Affiant states that he was not present at the time of the arrest of Leon Jordan, the plaintiff in the above captioned cause.

"(4) Affiant states that he has no personal knowledge, by his own observation, of any of the incidents leading up to or relating to the arrest of Leon Jordan, plaintiff in the above captioned cause.

"(5) Affiant states that he at no time directed or ordered the arrest of said Leon Jordan nor at any time did he confer with Officer James D. Theisen in relation to said arrest and prior thereto.

"Further affiant saith not."

The affidavit of the Chief of Police is identical in language to that of the members of the Board of Police Commissioners, except he states that he is the duly appointed and qualified Chief of Police of the Kansas City, Missouri, Police Department.

The Motion to Dismiss is also supported by the affidavit of Robert Gross, a sergeant of the Kansas City, Missouri, Police Department at the time of the alleged arrest on July 17, 1962. On the date of the arrest of the plaintiff, Sergeant Gross was assigned to duty at Police Station No. 3 in Kansas City, Missouri, as desk sergeant. His affidavit is as follows:

"AFFIDAVIT

STATE OF MISSOURI | > SS COUNTY OF JACKSON |

Robert Gross, of lawful age, being first duly sworn, on oath states:

That he is a Sergeant on the Kansas City, Missouri, Police Department.

That on July 17, 1962, he was assigned to duty at No. 3 Police Station in Kansas City, Missouri, as a Desk Sergeant.

That on July 17, 1962, one Leon Jordan was arrested at 26th and Prospect at 10:50 p. m., on the charges of disorderly conduct and interfering with a police officer in the performance of his duties.

That the said Leon Jordan was booked in at No. 3 Police Station at 11:15 p. m., on July 17, 1962, on the charges of disorderly conduct in violation of Section 39.120, paragraph 3, Revised Ordinances of Kansas City, Missouri, and interfering with a police officer in the discharge of his official duties in violation of Section 39.530, Revised Ordinances of Kansas City, Missouri.

That the said Leon Jordan posted a cash bail bond from his own money in his possession in the sum of Fifty Dollars ($50.00) on these said charges for appearance in the Municipal Court of Kansas City, Missouri, at 9:00 a. m., July 18, 1962.

That this bonding procedure and execution of this bail bond was completed at approximately 11:30 p. m., July 17, 1962, at the booking desk at No. 3 Police Station.

That the said Leon Jordan was never put in a cell at any time but remained at all times in the vicinity of the booking desk.

That after making the said bond, the said Leon Jordan remained at No. 3 Police Station and talked with some police officers for about fifteen minutes and then left the station.

/s/ Robert Gross " ___________________________ Robert Gross "

A copy of the record incident to the booking of the plaintiff at the station accompanies the affidavit and recites:

"Booked for loitering on the sidewalk at the place of arrest after the arresting officers told subject to move on from the scene. Subject also told other citizens at the scene that they did not have to move from the scene either. Subject had been warned before. Subject was also booked for interefering with the duties after he tried to warn other subjects that they did not have to leave the scene."

This was the charge upon which the plaintiff appeared in police court the morning following his arrest, and was acquitted.

The court is considering defendants' Motion to Dismiss under Rule 12(b) F.R.Civ.P. which provides:

"Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, crossclaim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * (6) failure to state a claim upon which relief can be granted * * * If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, * * *."

Rule 56(c): "The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits."

Thereafter the court may render Summary Judgment. The court caused notice to be served upon all the parties in accordance with the requirements of the Rule, and set the matter for hearing on November 2, 1963, on which date, pursuant to notice, counsel for the respective parties appeared before the court, and the following discussion took place between one of the attorneys for the defendants and the attorneys for the plaintiff:

"MR. OTTMAN: I

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