Watson v. City of Kansas City, Kan.
| Decision Date | 08 November 1999 |
| Docket Number | No. Civ.A. 99-2106-KHV.,Civ.A. 99-2106-KHV. |
| Citation | 80 F.Supp.2d 1175 |
| Parties | Sandra Folse WATSON, et al., Plaintiff, v. CITY OF KANSAS CITY, KANSAS, et al., Defendant. |
| Court | U.S. District Court — District of Kansas |
Mark K. Birmingham, Kansas City, KS, for Plaintiffs.
Douglas M. Greenwald, Daniel B. Denk, Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for Defendants.
This matter comes before the Court on Defendants' Motion To Dismiss Plaintiffs' Amended Petition For Damages (Doc. # 29) filed July 1, 1999, pursuant to Fed. R.Civ.P. 12(b)(6). For reasons stated below, defendants' motion is sustained in part and denied in part.
Motions To Dismiss Under Rule 12(b)(6)
In ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must assume as true all well pleaded facts in plaintiffs' complaint and view them in a light most favorable to plaintiffs. Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); see also Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). The Court must make all reasonable inferences in favor of plaintiffs. Zinermon, 494 U.S. at 118, 110 S.Ct. 975; see also Fed.R.Civ.P. 8(a); Lafoy v. HMO Colorado, 988 F.2d 97, 98 (10th Cir.1993). The issue in reviewing the sufficiency of plaintiffs' complaint is not whether they will prevail, but whether they are entitled to offer evidence to support their claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court may not dismiss a cause of action for failure to state a claim unless it appears beyond a doubt that plaintiffs can prove no set of facts in support of their theory of recovery that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir.1991). Although plaintiffs need not precisely state each element of their claims, they must plead minimal factual allegations on those material elements that must be proved. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
Sandra Watson owns properties at 1209 through 1221 Central Avenue and 1216 through 1220 Ridge Avenue in Kansas City, Kansas. Steve Perry is property manager for Watson's properties at 1209 through 1221 Central Avenue and he rented space from Watson to operate a business. Christine Perry is Steve Perry's wife. William Bushue also rented business space from Watson. Carla Balzer, Christy Knight, Christy Anthony, Ronald Beachman and Dora Huff were residential tenants at the time of the incidents in question.
On March 24, 1995, a fire burned Watson's properties at 1215 Central Avenue and 1219 Central Avenue. Plaintiffs allege that since the fire, defendants have attempted to close these properties and destroy the businesses of Watson, Bushue and Perry. Plaintiffs also allege that defendants have attempted to close the residential properties and deny all other plaintiffs their fundamental rights to choose where they live.
In the early morning of July 10, 1997, defendants planned and conducted a warrantless search of the Central Avenue properties which Watson rented to Balzer, Knight, Anthony, Beachman and Huff. At approximately 9:00 a.m., Steve Perry advised Watson that seven to ten uniformed officers or employees of various municipal departments of Kansas City, Kansas were searching, trespassing, and attempting to gain entry into the premises. Pat Ohler, director of the Neighborhood Resource Center and a lieutenant with the Kansas City, Kansas police department, demanded entry into the common hallways of residential apartments located at 1211-1217 Central Avenue to check the halls and around the outside.2 Steve Perry inquired whether Ohler had a search warrant. Defendants answered that they did not, but the group continued to search the outside of the properties. Perry informed Ohler and the other defendants that he did not have authority to allow anyone other than a resident to enter the buildings.
Early the next morning, at approximately 8:15 a.m. on July 11, 1997, Watson and Steve Perry arrived at 1209-1221 Central Avenue, where they observed seven to ten uniformed officers or employees of various municipal departments conducting another warrantless search of the outside of the properties. When Watson got out of her car, someone shoved a camcorder into her face while Edwin A. Rust, acting fire marshal for Kansas City, Kansas, demanded entry into the residential addresses of 1211-1217 Central Avenue and the nonresidential properties at 1219-1221 Central Avenue. Watson refused entry and advised the group that she would have to speak to her lawyer before discussing anything further. Watson then departed.
Steve Perry and Christine Perry were in the process of purchasing from Watson property at 1220 Ridge Avenue. This property was contiguous to Watson's property at 1209-1221 Central Avenue. Steve Perry discovered that during the warrantless search on July 11, 1997, Rust, Ohler, Debbie Ward, an employee with the Code Enforcement Department of the Unified Government, and other city employees had opened the gate to his property at 1220 Ridge Ave, Kansas City, Kansas, ignored his "no trespassing" sign, and entered his property. Defendants also videotaped his home and tomato garden.
Also on July 11, 1997, Rust, Maurice Ryan, an assistant city attorney, and Gregory Talkin, deputy chief building inspector for the Building Inspections Department of the Unified Government, conspired to obtain a search warrant for Watson's properties at 1211-1219 Central Avenue and 1221 Central Avenue. Rust, Ryan and Talkin drafted or offered input into an affidavit in support of the application for search warrant and located a Wyandotte County district judge to hear the application. In both the affidavit and sworn testimony before the court, Rust gave false and misleading information. In the application for a search warrant, Rust stated that he had observed "what appeared to be a violation of fire code." Rust omitted material facts, including the fact that a valid repair permit existed for 1215 Central Avenue and 1219 Central Avenue. In the application, Ryan sought a warrant allowing "an inspection ... to determine whether or not such ordinances have been violated." At a subsequent hearing, Ryan stated that city ordinance allowed the application for a warrant because plaintiffs had refused to allow entrance into the properties. Ryan stated that a right of entry requires that a demand for entry be made to those in control, but defendants did not demand entry to any tenant during either of the two previous warrantless searches. Defendants received a search warrant which listed the addresses of the properties, but did not contain the names of the owner, the names of any tenants, or the apartment numbers.
Watson was ordered to be present at 1209-1221 Central Avenue at 4:30 p.m. on July 11, 1997 for execution of the search warrant. When she arrived, Rust served her with the warrant. Ohler seized Watson's building at 1215 Central by ordering that only Watson and Steve Perry could enter the building and by placing police guards at the building entrance. Plaintiffs overheard these officers tell another officer that they were there to close down the buildings. Ohler, Rust, Talkin, Ward and Wayne Bradley, building inspector I for the Building Inspections Department for the Unified Government, took city employees on an extensive three-hour search of the buildings. Rust and Ohler went into every apartment and space in the buildings. Plaintiffs allege that the search far exceeded the scope of the affidavit for a search warrant, the sworn testimony, and the warrant itself. Defendants went to each address, threatened tenants, and investigated tenants' private refrigerators, bathrooms and cabinets. Defendants forced entry into sealed basement areas, broke a window to gain entry into an occupied apartment while the tenant was at work, and generally terrorized the tenants and frightened their small children.
On July 24, 1997, Rust and Ohler sent Watson a letter which listed several code violations and demanded that Watson meet certain requirements. The majority of the alleged code violations were fabrications, while the remaining violations were minor and located in areas outside of Watson's control. The letter directed Watson to hire an engineer and an architect to give the city a report and plans on the buildings, even though a Wyandotte County district court had previously held that Watson did not need to do so. The letter also gave Watson notice that she would have to secure building permits, even though she already had a building permit.3
A month later, on August 29, 1997 at approximately 9:30 a.m., Ohler and other city employees arrived at the properties and without notice to Watson, tagged the buildings as "unfit" and notified tenants that they would have to vacate the premises. The notice set a hearing date of September 8, 1997 at 9:00 a.m. On September 2, 1997, John Lacy, license administrator for the Unified Government, sent Watson a letter which terminated her rental license for the buildings on Central Avenue even though Watson had paid her fees and had no inspection.
On September 8, 1997, at 9:00 a.m., Watson and her tenants appeared at City Hall for the hearing as provided in the prior notice. No one was present to conduct a hearing.
On October 8, 1997, city attorney Wes Griffin requested entry to reinspect the properties at 1211-1221 Central Avenue from J.R. Russell, attorney for Watson. Russell denied the request. Ohler, Rust and Ryan applied for and obtained a second search warrant for reinspection of the same properties, which again failed to list the name of the owner, the names of any tenants, or any...
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