Whitmire v. Kan. City

• Court: U.S. District Court — Western District of Missouri
• Writing for the Court: Fernando J. Gaitan, Jr. United States District Judge
• Decision Date: 29 August 2018
• Docket Number: Case No. 16-1020-CV-W-FJG
• Citation: Whitmire v. Kan. City, Case No. 16-1020-CV-W-FJG (W.D. Mo. Aug 29, 2018)
• Parties: DAVID J. WHITMIRE, Plaintiff, v. KANSAS CITY, MISSOURI BOARD OF POLICE COMMISSIONERS, et al., Defendants.

DAVID J. WHITMIRE, Plaintiff, v. KANSAS CITY, MISSOURI BOARDOF POLICE COMMISSIONERS, et al., Defendants.

Case No. 16-1020-CV-W-FJG

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

August 29, 2018

ORDER

Pending before the Court is Defendants' Partial Motion to Dismiss and Suggestions in Support (Doc. No. 114). As an initial matter, to the extent that plaintiff argues that defendants have waived the grounds for portions of their motion to dismiss, the Court agrees with defendants that it is within its discretion to address all issues raised in the pending motion for partial dismissal. See Banko v. Apple, Inc., Case No. 13-02977 RS, 2013 WL 6623913, at *2 (N.D. Cal. Dec. 16, 2013) (providing, "Although Rule 12(g) technically prohibits successive motions to dismiss that raise arguments that could have been made in a prior motion . . . courts faced with a successive motion often exercise their discretion to consider the new arguments in the interests of judicial economy."); TrueNorth Cos., L.C. v. TruNorth Warranty Plans of N.A., LLC, 292 F. Supp. 3d 864, 868-69 (N.D. Iowa 2018)(finding "it would be inconsistent with the spirit of Rule 1 to deny [a successive pre-Answer] motion" on the basis of Rule 12(g) where addressing the substantive issues in the pre-Answer motion would limit or refine the same issues that could be raised in a later motion). Accordingly, the Court turns to the merits of the issues raised by defendants.

I. Background

Plaintiff alleges in his Fourth Amended Complaint (Doc. No. 108, filed on April 25, 2018), that on or about August 14, 2013, defendants Detective Timothy Mountz ("Mountz") and Detective Darold Estes ("Estes"), both officers with the Kansas City, Missouri, Police Department ("KCPD") searched the home of Lakisha Walker. During the search, Mountz and Estes seized a variety of items allegedly belonging to plaintiff. Plaintiff alleges that when Mountz and Estes logged the pieces of property in at the police station, they listed owner designations as "safekeeping" and/or "unknown," leading to the destruction of sale of those items. Plaintiff alleges that defendants, by destroying and selling his personal property, exhibited deliberate indifference to his constitutional rights.¹ Plaintiff also alleges that the KCPD Board is liable for violations of his constitutional rights, because there is a lack of training as to proper handling of property and evidence.

Defendants are Mountz (sued in his individual and official capacity); Estes (sued in his individual and official capacity); Mark D. Terman (Captain of the KCPD Property and Evidence Section at relevant times, sued in his individual and official capacity); Curtis P. Klein (Sergeant in the KCPD Property and Evidence Section at relevant times, sued in his individual and official capacity); the Kansas City, Missouri Board of Police Commissioners, through its members Nathan Garrett, Leland Shurin, Don Wagner, Mark Tolbert, and Sylvester James, in their official capacities; and Defendants John and Jane Doe, in their individual and official capacities.

Plaintiff brings the following counts in his Fourth Amended Complaint: Count I - Section 1983 Claim against Defendants Mountz and Estes for Unlawful Search and Seizure in Violation of Plaintiff's Fourth Amendment Rights; Count II - Section 1983 Claim AgainstDefendants Mountz, Estes, Terman, and Klein for Violation of Plaintiff's Fifth and Fourteenth Amendment Rights; Count III - Deliberately Indifferent Policies, Practices, Customs, Training, and Supervision in Violation of the Fourth, Fifth, and Fourteenth Amendments²; Count IV - Claim of Negligence and Conversion under Missouri State Law against Defendants Mountz, Estes, Terman, and Klein; and Count V - Replevin Claim for any Personal Property Seized from Mr. Whitmire Still Held by the KCPD Property & evidence Section under Missouri Statute 533.010.

Defendants filed their partial motion to dismiss on May 9, 2018, arguing that the Court should dismiss certain claims under Fed. R. Civ. P. 12(b), as a number of the amended and newly-asserted claims are either barred by sovereign immunity or are not cognizable under Section 1983 and/or state law. Specifically, defendants seek dismissal as to (1) Count II as to defendants Terman and Klein, both in their individual and official capacities; (2) Count II according to Missouri state law; (3) Count II as to the Board as not cognizable under Section 1983;³ (4) Count III as to the Board, as barred by sovereign immunity; (5) Count IV as to Defendants Mountz, Estes, Terman, and Klein in their official capacities as barred by sovereign immunity; (6) Count IV for failure to state a claim for negligence under state law; and (7) Count V as to any Defendants in their official capacity as barred by sovereign immunity.

II. Standard

Sovereign immunity is a jurisdictional, threshold matter that is properly addressed under Rule 12(b)(1). Sundquist v. Nebraska, 122 F.Supp.3d 876 (D.Neb.2015) (citing Lors v. Dean, 746 F.3d 857, 861 (8th Cir.2014)). "In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993). In a facial attack, the court "restricts itself to the face of the pleadings" and "the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6)." Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir.1990). A facial attack merely questions the sufficiency of the subject matter jurisdiction as alleged in the complaint, and the court will find subject matter jurisdiction exists where the plaintiff's allegations establish federal claims. See generallyGentek Bldg. Products, Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir.2007).

Keselyak v. Curators of the Univ. of Missouri, 200 F. Supp. 3d 849, 853-54 (W.D. Mo. 2016), aff'd sub nom. Keselyak v. Curators of Univ. of Missouri, 695 Fed. Appx. 165 (8th Cir. 2017)

To survive a Rule 12(b)(6) motion to dismiss, "the complaint must do more than recite the bare elements of a cause of action." Williams v. City of Kansas City, Mo., No. 4:13-0347-CV-W-DGK, 2014 WL 2158998, at *3 (W.D. Mo. May 23, 2014) (citing Ashcroft v. Iqbal, 556 U.S. 662, 687 (2009)). The complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

III. Discussion

A. Count II as to defendants Terman and Klein in their official capacities

Defendants indicate that the claims for damages against Defendants Terman and Klein in their official capacities must be dismissed, because a state official acting in his official capacity is not a "person" within the meaning of Section 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); Murphy v. State of Arkansas, 127 F.3d 750, 754 (8th Cir. 1997). Furthermore, to the extent that plaintiffs are seeking liability as to these defendants based on their supervision of others, defendants argue that those claims must fail because Section 1983 does not permit claims based on vicarious liability. Bell v. KansasCity Police Dep't, 635 F.3d 346, 347 (8^th Cir. 2011) (finding respondeat superior inapplicable to claims brought under 42 U.S.C. § 1983).

In response, plaintiffs argue that defendants' motion to dismiss the official capacity claims pled against them should be denied, because "[s]tate officials acting in their official capacities are § 1983 'persons' when sued for prospective relief, and the Eleventh Amendment does not bar such relief." Murphy v. State of Arkansas, 127 F.3d 750, 754 (8th Cir. 1997) (citing Televen v. University of Minn., 73 F.3d 816, 819 (8th Cir. 1996)). Plaintiff indicates that his Fourth Amended Complaint seeks injunctive relief to change the policies and procedures of the KCPD Property & Evidence Section, Doc. No. 108 at 20, and his request for injunctive relief alone defeats Defendants' motion. In addition, plaintiff argues that he has alleged personal involvement of Terman and Klein, not simply vicarious liability. In particular, plaintiff alleges that Klein personally approved the release of plaintiff's property for destruction and sale. Doc. No. 108, ¶¶ 12, 42-44, 68. Furthermore, plaintiff asserts that Terman, as Captain of the Property and Evidence Section is liable via supervisor liability. Pool v. Missouri Dept. of Corrs. and Human Res., 883 F.2d 640, 645 (8th Cir. 1989) (finding supervisors can be liable under § 1983 if they knew their "subordinates caused deprivations of constitutional rights and [they] demonstrated deliberate indifference or 'tacit authorization' of the offensive acts by failing to take steps to remedy them").

In their reply suggestions, defendants indicate that they recognize that "the Eleventh Amendment permits suits for prospective injunctive relief against state officials acting in violation of federal law." Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). Defendants note, however, that a declaratory judgment for past liability, as well as claims for money damages (including punitive damages) are prohibited. Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 646 (2002); Frew, 540 U.S. at 437.

To the extent plaintiff is seeking money damages and declaratory relief against defendants Terman and Klein in their official capacities, those claim must be DISMISSED for the reasons stated by defendants. Furthermore, to the extent that plaintiff seeks relief based on vicarious liability, any such claims must be DISMISSED. However, the Court is not convinced that all claims against Terman and Klein are based on vicarious liability, as the plaintiff has pled some amount of personal involvement of both defendants in relation to Count II. Accordingly, the official capacity claims for prospective/injunctive relief remain pending, as do...