Stewart v. City of Prairie Vill.

• Citation: 904 F.Supp.2d 1143
• Decision Date: 17 October 2012
• Docket Number: Case No. 12–CV–2185–JAR/DJW.
• Parties: Beverly STEWART, both individually and as Special Administrator of the Estate of Susan Leslie Stuckey, Plaintiff, v. CITY OF PRAIRIE VILLAGE, KANSAS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

904 F.Supp.2d 1143

Beverly STEWART, both individually and as Special Administrator of the Estate of Susan Leslie Stuckey, Plaintiff,

v.CITY OF PRAIRIE VILLAGE, KANSAS, et al., Defendants.

Case No. 12–CV–2185–JAR/DJW.

United States District Court,

D. Kansas.

Oct. 17, 2012.

Cheryl A. Pilate, Jennifer M. Wilbert, Morgan Pilate LLC, Kansas City, MO, Rebecca L. Kurz, The Kurz Law Office, LLC, Mission, KS, for Plaintiff.

Jill Waldman, Michael K. Seck, Fisher, Patterson, Sayler & Smith, LLP, Overland Park, KS, for Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

In the aftermath of her daughter's tragic death, Plaintiff Beverly Stewart filed this lawsuit both individually and as Special Administrator of the Estate of Susan Leslie Stuckey against Defendants City of Prairie Village, Police Chief Wesley Jordan in his individual and official capacity, and against Officers Wes E. Lovett, Tim Schwartzkopf, Byron Roberson, Seth Meyer, John Olson, Dan Stewart, Benjamin Micheel, and Adam Taylor in their individual capacities. Plaintiff claims that Defendants violated Stuckey's right to be free from use of excessive force under the Fourth and Fourteenth Amendments and Stewart's right to familial association under the First and Fourteenth Amendments. The case is currently before the Court on Defendants' Motion to Dismiss (Doc. 3). In their motion, Defendants argue that Plaintiff has not alleged sufficient facts to show that any Defendant violated Stuckey's or Stewart's rights. And further, Defendants argue that Defendants sued in their individual capacity are immune from liability under the doctrine of qualified immunity. The motion is fully briefed, and the Court is prepared to rule. As explained more fully below, the Court grants the motion in part and denies the motion in part.

I. Legal Standard

To survive a motion to dismiss, a complaint must present factual allegations, assumed to be true, that “raise a right to relief above the speculative level” and must contain “enough facts to state a claim to relief that is plausible on its face.” ¹ “[T]he complaint must give the court reasonto believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” ² The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than “a sheer possibility.” ³ “[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.” ⁴ 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.⁵

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.’ ” ⁶ 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.⁷ Second, the court must determine whether the factual allegations, when assumed true, “plausibly give rise to an entitlement to relief.” ⁸ “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.” ⁹

II. Factual Allegations

The following facts are alleged in Plaintiff's Complaint and construed in the light most favorable to Plaintiff. Susan L. Stuckey suffered from mental health problems, including severe depression and post-traumatic stress disorder, and she received Social Security disability. During March 2010, Stuckey's behavior became more erratic, her mental state greatly deteriorated, and her mental problems were quite obvious. Stuckey made frequent calls to the Prairie Village Police Department, and various members of the Prairie Village Police Department and the Johnson County Mental Health Center conducted welfare checks on Stuckey. Also at this same time, Stuckey's landlord had begun eviction proceedings against her because she refused to vacate the suite she had been temporarily occupying while her apartment was being cleaned following an accidental cooking fire. The Prairie Village Police Department knew of Stuckey's increasing mental health problems and the eviction proceedings.

On the morning of March 31, 2011, Stuckey was alone in her apartment in Prairie Village, Kansas. On that morning, Stuckey made several 911 calls to the Overland Park, Kansas, and Leawood, Kansas, Police Department, demanding that the police bring her cigarettes and stating that the police should be armed because she wanted the police to kill her, she would give them a reason to kill her, and she was going to commit “suicide by cop.” Police from the respective police departments conveyed the content of the calls to a Prairie Village, Kansas, police dispatcher, who sent officers to Stuckey's apartment. Fifteen or more Prairie Village police officers went to Stuckey's apartment, and Captain Wes Lovett had tactical command of the scene. When the officers arrived, Stuckey would not allow the officers to enter her apartment and would only communicate with them by yelling through the front door to her apartment. Distraught and agitated, Stuckey barricaded her front door and repeatedly said that she would kill herself.

The police informed the Johnson County Mental Health Center that they planned to remove Stuckey from her apartment. A staff member there offered to send a counselor to Stuckey's apartment, but an officer told the staff member that was not necessary. The police then evacuated the apartment building, with the exception of one woman. Fire department and emergency medical personnel were on the scene.

Defendant Lovett contacted Police Sergeant Byron Roberson and told him to mobilize the Prairie Village Critical Incident Response Team 1 (“CIRT 1”). Defendant Roberson acted as the team leader for CIRT 1. Defendants Olson, Stewart, and Meyer were also members of CIRT 1. Defendant Tim Schwartzkopf contacted Police Chief Wes Jordan and briefed him about the unfolding events. Chief Jordan was concerned about the possibility of a fire and gave his approval to enter the apartment.

Defendant Lovett wanted to enter Stuckey's apartment before the CIRT arrived, but Defendant Roberson knew Defendant Lovett had limited CIRT experience and told Lovett to wait to enter the apartment. Defendant Roberson also contacted an officer on the scene and directed him to attempt to calm Lovett and make him slow down. Defendant Roberson believed that if Stuckey wanted to harm herself or burn down the building she would have done it already.

Within ten minutes of the arrival of Defendant Roberson and CIRT 1, Defendant Lovett declared that negotiations with Stuckey had failed. Defendant Lovett made this decision even though no officer trained in negotiations had spoken with Stuckey. An officer trained in hostage negotiation was on the scene, but Defendant Lovett felt the officer was too busy controlling the scene to talk to Stuckey.

Stuckey told Defendant Taylor that she wanted to talk to her mother. She gave Defendant Taylor her mother's name and telephone number. Defendant Taylor passed the information on to another officer, but no one contacted Stuckey's mother, Stewart. Had Stewart received a call from the police, she would have immediately gone to Stuckey's apartment to talk to her daughter. Instead, Defendant Taylor told Stuckey that the police could not contact her mother.

Stuckey remained barricaded in her apartment. Members of the CIRT surrounded Stuckey's building, and officers positioned snipers who could see into the apartment. Team members were clothed in riot gear with protective helmets. Defendant Roberson formulated an operation plan to enter the apartment and remove Stuckey. The operation plan did not include any provision for use of methods—further negotiations, the use of chemical munitions, or the use of non-lethal weapons—other than to forcibly enter the apartment and remove Stuckey. Defendant Lovett and Defendant Schwartzkopf approved the plan. This plan went against Prairie Village Police Department policy, which provides that negotiations should be the primary tactic in barricade situation. Other approved options include the use of chemical munitions to influence the suspect to come out of his or her stronghold and tactical entry only when all other means of persuasion are exhausted or fail. The officers knew that Stuckey was armed with a baseball bat and expected her to be waiting near the door when they entered.

Defendant Lovett ordered Defendant Taylor to inform Stuckey that she had two minutes to exit her apartment or the police would remove her. After she failed to exit, Defendant Lovett ordered Defendant Roberson and his team to enter the apartment. Defendants Roberson, Olson, Stewart, Meyer, Taylor and Micheel positioned themselves outside Stuckey's front door in the hallway. Defendant Meyer breached the door using a battering ram and moved the door out of the way. Defendants Roberson and Olson entered the foyer of the apartment and saw Stuckey swinging a baseball bat, which they took from her. Defendant Roberson also took a broom handle from her. Defendant Roberson fired his TASER twice at Stuckey and Defendant Taylor fired his TASER once, but the TASER darts do not appear to have hit Stuckey.

Plaintiff alleges that an audio recording from the scene indicates that Defendant Roberson told Stuckey, “don't pick up that knife.” Two seconds later, three shots were fired. Defendant Roberson claims that Stuckey grabbed a knife and then threw it at him as he shot her; he states that the knife bounced off his body armor...