McGregor v. City of Neodesha
| Decision Date | 11 October 2022 |
| Docket Number | 22-1033-EFM |
| Parties | LORI MCGREGOR., Plaintiff, v. CITY OF NEODESHA, KANSAS, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Following a theft report by employees of Casey's General Store in Neodesha, Kansas, Plaintiff Lori McGregor was arrested by Neodesha Police Officer Ryan Miller. Appearing pro se Plaintiff brings federal civil rights claims under 42 U.S.C § 1983, and various Kansas tort claims, against Casey's, Miller, and the City of Neodesha. After Defendants moved to dismiss the Complaint, Plaintiff moved to amend. For reasons explained below, the Court finds that the action should be dismissed.
In her original Complaint, Plaintiff alleged that on January 9, 2020, Defendant Miller arrested her as she left the Casey's General Store in Neodesha, Kansas, and that she was charged with theft and illegal parking. She was transported to the Wilson County Jail where she was “detained for several hours in freezing conditions.” She posted bond several hours later, and also had to pay “substantial monies” to obtain the return of her impounded car. The charges against her were subsequently dismissed.
Plaintiff sought recovery against the City of Neodesha, Officer Miller, and Casey's General Store citing (1) both 42 U.S.C. § 1983 and § 1985, (2) “the Kansas Common Law of False Arrest and Imprisonment, Assault and Battery, Malicious Prosecution, and Abuse of Process, and the Tort of Outrage,” and (3) “the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, and Section 15 of the Bill of Rights of the Constitution of the State of Kansas.” Beyond this, however, Plaintiff's allegations of excessive force, false arrest, abuse of process, unlawful search, arrest without probable cause are utterly conclusory.
Defendants Miller and the City moved to dismiss the action under Fed. R. Civ. Pr. 12(b)(6), as Plaintiff's § 1985 claim makes no allegation of any parties acting in concert, and no allegation such parties acted on the basis of her race. They argue that any official capacity claim against Miller is superfluous to her claim against the City, and that any individual action against Miller or against the City, fails because Plaintiff offers no specifics to support her federal claims of excessive force, false arrest, or abuse of process. They argue neither the claims of outrage nor violation of a state constitution are cognizable under § 1983. Plaintiff's remaining claims are also conclusory.
Plaintiff filed a Response to the motions to dismiss coupled with a Motion to Amend her Complaint. The proposed Amended Complaint, her attached affidavit, and her Response provides some additional details to her story, although the details vary slightly.
According to her most recent pleadings, Plaintiff is now 63 years old. According to Plaintiff, she bought $20.00 worth of gasoline at the store on January 8, 2020, but later found her debit card had been charged $36.92.
According to a probable cause affidavit later completed by Defendant Miller, the same day the store called police to report that an unknown woman “had been caught on camera stealing a set of keys.” Officer Meyer responded to the call, watched the video, and asked for a copy.
The next day, Plaintiff went to the store to dispute the charge. She was polite when she explained the situation to a store employee. She gave the employee her store receipt, a printout of her bank account transactions, and her debit card. The employee went into a back room to call the company headquarters.
During this time, “the same assistant manager who had worked when the keys had been taken,” called police to report that the woman “who stole the keys, had returned to the store.”
After about 15 minutes, the store employee returned and gave Plaintiff a Casey's corporate phone number to call. Plaintiff was leaving as Officer Miller arrived. He followed her and asked if he could talk to her. When she turned around, he asked if she had taken some keys.
Plaintiff said, “I have my keys.”
Plaintiff's proposed Amended Complaint states that she “did not try to run” from Miller; her Response states that after answering Miller's question, “she moved away from him.”
Miller physically restrained her with this arms, knocking her purse from her arms. Plaintiff emphasizes that Officer Miller had not warned her she was about to be arrested, and had not asked for identification.
Plaintiff was wearing a winter coat, and Officer Miller took everything out of her pockets, including her receipts and the phone number she was to call. According to Plaintiff, these receipts were never returned to her. Officer Miller searched her physically. He then handcuffed her.
At the time, Plaintiff was “very weak, dizzy, and fevered from an extreme flu.” She did not threaten Officer Miller.
Officer Miller took Plaintiff's car keys and, with another store employee searched it. Plaintiff had parked her car across the street, about 50 feet from the store entrance. Plaintiff emphasizes that her car was not parked on Casey's property. Officer Miller came back to the store with several key rings in his hand.
He placed Plaintiff in the back of his police car, and then went into the store. Plaintiff waited for about an hour, and was uncomfortable and “very miserable” from her restraints, “with pain to my neck and spine, wrists and arms.”
Miller drove Plaintiff to the police station where she was photographed and fingerprinted. According to Plaintiff, Miller “threatened me with indefinite jail time as I would not get of jail at all unless I started answering questions.” Plaintiff does not explain what these questions were. Plaintiff agreed to identify herself, but “did not want to answer anything.” She believes Miller was “bullying in personality in his manner.”
Defendant Miller took Plaintiff to be booked at the Wilson County Jail in Fredonia, Kansas. Plaintiff was charged with theft under K.S.A. 21-5801, interference with a law enforcement officer in violation of K.S.A. 21-5904, and illegal parking in violation of K.S.A. 81571.
A jail employee took Plaintiff's coat, and she was placed for several hours in “a very cold concrete cell.” The cell was filthy.
Bond was set at $2500, and Plaintiff arranged for a relative to pay the bond. After the bond was paid, Plaintiff was held for another hour while jail employees looked for the keys to her cell. After her release, she retrieved her car from the tow shop.
According to Plaintiff, on her release she suffered from “exhaustion, fatigue, fever, and pneumonia for some time.” She contracted pneumonia again in October 2021, and states “[e]ach time it last for six or more months and results in a loss of productivity and ability to function.”
Plaintiff unsuccessfully asked to have her bond reduced, citing her ties to the community. In Wilson County District Court, Plaintiff pled not guilty. She alleges the prosecutor would not respond to her discovery requests, and “believe[s] that I was being treated different from others so situated due to my previous battle on the stop sign ticket in Fredonia.”
The charges against Plaintiff were subsequently dismissed.
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move for dismissal of any claim for which the plaintiff has failed to state a claim upon which relief can be granted.[1]The court must decide “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.' ”[2] A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct.[3] The plausibility standard reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of the nature of claims as well the grounds on which each claim rests.[4] Under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint, but need not afford such a presumption to legal conclusions.[5]
“[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.”[6] Viewing the complaint in this manner, the court must decide whether the plaintiff's allegations give rise to more than speculative possibilities.[7] If the allegations in the complaint are “so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.' ”[8]Generally, the Court is constrained by the allegations in the complaint when considering a motion to dismiss. However, “a document central to the plaintiff's claim and referred to in the complaint may be considered in resolving a motion to dismiss, at least where the document's authenticity is not in dispute.”[9] Pro se complaints are held to “less stringent standards than formal pleadings drafted by lawyers.”[10] A pro se litigant is entitled to a liberal construction of his pleadings.[11] If a court can reasonably read a pro se complaint in such a way that it could state a claim on which it could prevail, it should do so despite “failure to cite proper legal authority . . . confusion of various legal theories . . . or [Plaintiff's] unfamiliarity with pleading requirements.”[12] But it is not the proper role of a district court to “assume the role of advocate for the pro se litigant.”[13]
Parties may amend pleadings “once as a matter of course” before trial if they do so within (A) twenty-one days of serving the pleading or (B) “if the pleading is one to which...
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