Whitmire v. Kansas City Police Department

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

DAVID J. WHITMIRE, )

)

Plaintiff, )

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

v. )

)

KANSAS CITY, MISSOURI BOARD )

OF POLICE COMMISSIONERS, et al., )

)

Defendants. )

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,

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 Against

1 In Defendants’ Motion (Doc. No. 114), they argue that the officers reasonably believed

the property might be stolen based on previous experiences investigating and arresting

plaintiff for multiple burglaries committed by him. Of course, the defendants’ alleged

reasonable beliefs are questions that must be addressed on summary judgment, not on a

motion to dismiss a complaint wherein plaintiff has pled no facts regarding his criminal

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

2 Although plaintiff does not specify in the title to Count III, this claim appears to be pled

against all named defendants.

3 Plaintiff states in his suggestions in opposition that defendants do not seek dismissal as

to Mountz and Estes in Count II of the Fourth Amended Complaint. Although defendants,

in a footnote, suggest that plaintiff’s allegations in Count II apply only to Defendants

Terman and Klein, the Court believes that if defendants meant to seek dismissal of

defendants Mountz and Estes, they ought to have done so in the body of their motion and

suggestions, not in a footnote. Accordingly, the Court finds all claims in Count II against

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 generally Gentek 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

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.

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 any claims related to the personal involvement of defendants Terman and

Klein.

B. Count II against Terman and Klein in their Individual Capacities

Defendants argue that plaintiff’s claims against them in their individual capacities fail,

arguing that it appears plaintiff is seeking to invoke Monell liability, which can only be

asserted against municipalities, not individuals. See Monell v. Dep‘t of Soc. Servs., 436

U.S. 658, 691 (1978). In response, plaintiff argues that he has sufficiently pled that Terman

and Klein had personal involvement in the destruction and sale of plaintiff’s property, as

well as the failure to remedy unconstitutional deprivations of property, and therefore,

plaintiff’s claim do not fall within the purview of Monell. The Court agrees with plaintiff that,

for purposes of this motion to dismiss, he has sufficiently pled the personal involvement of

defendants Terman and Klein. Defendants’ motion to dismiss the individual capacity claims

pled against Terman and Klein is DENIED.

C. Count II for Unauthorized Intentional Deprivation of Property

Defendants argue that, to the extent plaintiff is bringing a Fourteenth Amendment

claim against defendants based on unauthorized intentional deprivation of property, these

claims do not constitute a violation of the procedure requirements of the Due Process

Clause of the Fourteenth Amendment as long as a meaningful post-deprivation remedy for

that plaintiff has access to a post-deprivation remedy in state court for a conversion or

replevin action. See, e.g., Blackwell Motors, Inc. v. Manheim Services Corp., 529 S.W.3d

367, 379 (Mo. App. E.D. 2017)

In response, plaintiff argues that, as pled, his case is not one regarding a random

unauthorized act by a state employee (as in Hudson), but rather, an intentional destruction

and sale authorized by the policies, practices, and customs of the KCPD. Hudson, 468 U.S.

at 532 (citing Logan v. Zimmerman Brush Co., 455 U.S. 522 (1982) (finding that post-

deprivation remedies do not satisfy due process where the deprivation is caused pursuant

to an established state procedure).

Upon consideration of this issue, the Court finds these arguments would be better

presented on summary judgment, where a full record could be made as to plaintiff’s specific

claims and the facts underlying each. Defendants’ motion to dismiss based on an adequate

remedy in state law is DENIED.

D. Count II as to the Board

Defendants argue that, to the extent that Count II is asserted against the board, such

a claim is not cognizable under Section 1983. In response, plaintiff notes that Count II of

the Fourth Amended Complaint is directed only at Mountz, Estes, Terman, and Klein, and

does not include the Board. Therefore, the Court will DISMISS any claims (pled or unpled)

against the Board in Count II of the Fourth Amended Complaint.

E. Count III as to the Board

Defendants argue that Count III should be dismissed on the basis of sovereign

immunity. Defendants assert that Count III (for negligent supervision, training, and/or

instruction of KCPD employees) sounds in tort rather than constitutional law. To the extent

that the claim is asserted under tort law, defendants note that state entities such as the

here. 4 See § 537.600, RSMo 2010, Cum. Supp. 2015. See also Gregg v. City of Kansas

City, 272 S.W.3d 353, 358 (Mo. App. W.D. 2008); Throneberry v. Mo. State Hwy. Pat‘l, 526

S.W.3d 198, 202, 207-08 (Mo. App. W.D. 2017). Defendants also argue that plaintiff

appears to rest his claims on a respondeat superior theory, which is improper. See

Throneberry, 526 S.W.2d at 207-08.

In response, plaintiff argues that Count III is not a mere tort claim, but rather is a

claim of constitutional violations based on the board’s “deliberately indifferent policies,

practices, customs, training, and supervision.” Plaintiff asserts these are Monell allegations,

not subject to sovereign immunity. See Monell v. Dept. of Social Services of City of New

York, 436 U.S. 658, 690-91 (1978) (finding that local governments may be liable if the

alleged constitutional violation is official policy, or is established through a custom or

usage). Plaintiff states that he has alleged that policies, customs, and practices of the

Board resulted in a violation of his constitutional rights. Doc. No. 108, ¶¶ 69-74. Plaintiff

also asserts that his claims do not solely rest on a respondeat superior theory, and therefore

should survive this motion to dismiss.

In reply to plaintiff’s suggestions that the claims against the Board are Monell

allegations not subject to sovereign immunity, defendants note that Monell held that

municipalities may be considered Section 1983 persons. Monell, 436 U.S. at 690 (holding

that “municipalities” and “local governments” may be considered “persons” under § 1983)).

The Supreme Court further noted in Monell, however, that their holding “[was], of course,

limited to local government units which are not considered part of the State for Eleventh

4 The only exceptions from sovereign immunity are: (1) where a plaintiff‘s injury arises from

a public employee‘s negligent operation of a motor vehicle in the course of his employment;

and (2) where the injury is caused by a dangerous condition on government property. §

of Police Com'rs, 913 S.W.2d 388, 391 (Mo. App. W.D. 1996) and Div. of Empl. Sec. v. Bd.

of Police Comm’rs, 864 F.3d 974, 980 (8th Cir. 2017), for the proposition that the Board is

a legal subdivision of the state and has sovereign immunity for the operation and

maintenance of a police force.

Upon its independent review, the Court believes the law on Eleventh Amendment

sovereign immunity as to the Kansas City Board of Police Commissioners to be unsettled

in the Eighth Circuit, as separate panels have come to different conclusions on this issue.

Compare Div. of Empl. Sec. v. Bd. of Police Comm’rs, 864 F.3d 974, 980 (8th Cir. 2017)

with Darby v. Bratch, 287 F.3d 673, 678–679 (8th Cir. 2002), citing Gorman v. Easley, 257

F.3d 738, 744 (8th Cir. 2001), cert. granted, 534 U.S. 1103, 122 S. Ct. 865, 151 L. Ed. 2d

739 (2002) and judgment rev'd on other grounds, 536 U.S. 181, 122 S. Ct. 2097, 153 L. Ed.

2d 230 (2002) (finding the Kansas City Board of Police Commissioners is not a political

subdivision of the state, and thus is not entitled to protection of Eleventh Amendment).

Given the state of the law, the Court will DENY the motion to dismiss as to Count III against

the Board. Defendant may raise this issue again on summary judgment (or, in the

alternative, may raise other grounds for relief as to Count III of the Fourth Amended

Complaint on summary judgment).

F. Count IV as to Defendants Mountz, Estes, Terman, and Klein – official

capacity

Defendants indicate that the claims for negligence and conversion against

Defendants Mountz, Estes, Terman and Klein in their official capacities must be dismissed,

because an action against a state official acting in his official capacity is considered the

same as one against the state itself. See Edwards v. McNeill, 894 S.W.2d 678, 682 (Mo.

App. W.D. 1995); Brandon v. Holt, 469 U.S. 464, 471-72 (1985); Williams v. Shannon Cnt‘y

Sovereign immunity applies to tort claims against the state and state entities unless

immunity is expressly waived by statute. See R.S.Mo. § 537.600; Southers v. City of

Farmington, 263 S.W.3d 603, 609 (Mo. banc 2008); Claspill v. State Div. of Economic Dev.,

809 S.W.2d 87, 89 (Mo. App. 1991). Defendants note that none of plaintiff’s allegations in

Count IV implicate the exceptions to sovereign immunity cited in R.S. Mo. § 537.600.1.

In response, plaintiff argues that suits against officers in their official capacity are

proper when seeking injunctive relief. Will v. Michigan Dept. of State Police, 491 U.S. 58,

92 (1989) (finding, in the context of Section 1983, “although prospective relief awarded

against a state officer also ‘implicate[s] Eleventh Amendment concerns,’ [] the interests in

‘end[ing] a continuing violation of federal law’ [] outweigh the interests in state sovereignty

and justify an award under §1983 of an injunction that operates against the State’s officers

or even directly against the state itself.” Will, 491 U.S. at 90. Plaintiff argues that he is

seeking injunctive relief to change the practices and procedures of the KCPD that violate

Missouri statutory law, and thus argues that defendants Mountz, Estes, Terman, and Klein

are not subject to sovereign immunity in in their official capacities.

To the extent that plaintiff has pled a claim for damages and/or declaratory relief

against defendants in their official capacities in Count IV of his Fourth Amended Complaint,

that claim must be DISMISSED. However, to the extent plaintiff is seeking prospective or

injunctive relief related to official capacity claims, those claims in Count IV will be allowed

to proceed.

G. Count IV negligence under state law

Defendants also argue that plaintiff has failed to state a claim for negligence under

state law, arguing that plaintiff has not pled the elements of a res ipsa loquitur theory. See

MAI 31.02(3) (requiring plaintiff to demonstrate that the defendant had control over the thing

those in charge use due care, that the alleged incident was directly caused by defendant’s

negligence, and as a result of such negligence, plaintiff sustained damages). Defendants

argue that Count IV does not allege the actions plaintiff believes were negligent, nor does

Count IV specifically identify which of the defendants acted negligently. Further defendants

argue that plaintiff has failed to allege an event that was committed by any defendant which

does not ordinarily happen when due care is used.

In response, plaintiff notes that the term “res ispa loquitur” does not appear in his

Fourth Amended Complaint. Under Missouri law, a regular negligence claim requires: “a

(1) legal duty on the part of the defendant to conform to a certain standard of conduct to

protect others against unreasonable risks; (2) a breach of that duty; (3) a proximate cause

between the conduct and the resulting injury; and (4) actual damages to the claimant's

person or property.” Howard v. Frost Nat’l Bank, 458 S.W.3d 849, 853 (Mo. Ct. App. 2015).

Plaintiff states that he has set forth sufficient allegations to support a negligence claim,

citing paragraph 76 of his Fourth Amended Complaint as containing examples of breaches

of duties owed by the defendant officers.

In reply defendants argue that regardless of the plaintiff’s negligence theory, he has

still failed to state a claim under state law, as the duties listed by plaintiff are those owed to

the public generally and not to plaintiff specifically. See Southers v. City of Farmington,

263 S.W.3d 603, 611 (Mo. banc 2008) (explaining the public duty doctrine). The Court

notes, however, that the public duty doctrine was not mentioned in defendants’ opening

brief, but rather for the first time in the reply brief. Given this, the Court believes that the

arguments raised by defendants would be better presented in a motion for summary

judgment (especially given the factual development which could be presented at summary

state a claim upon which relief can be granted is DENIED.

H. Count V as to any Defendants in their official capacity

Defendants argue that plaintiff’s replevin claims against them in their official capacity

are barred by sovereign immunity. As discussed above, an action against a state official

acting in his official capacity is considered the same as one against the state itself. See

Edwards v. McNeill, 894 S.W.2d 678, 682 (Mo. App. W.D. 1995); Brandon v. Holt, 469 U.S.

464, 471-72 (1985); Williams v. Shannon Cnt‘y Jail, et al., Case. No. 1:15- CV-146-SNLJ,

2015 WL 5098749 (E.D. Mo. Aug. 31, 2015). The Board, via its members, is also a state

entity. See generally § 537.600, R.S.Mo. 2010, Cum. Supp. 2015. See also Gregg v. City

of Kansas City, 272 S.W.3d 353, 358 (Mo. App. W.D. 2008); Fantasma v. Kansas City, Mo.

Bd. of Police Comm‘rs, 913 S.W.2d 388, 391 (Mo. App. W.D. 1996). Again, defendants

argue that neither of the two exceptions to sovereign immunity set forth in § 537.600.1 is

implicated. To the extent plaintiff is seeking damages (including punitive damages),

defendants argue such claims must be dismissed.

In response, plaintiff argues that the Fourth Amended Complaint properly pleads a

replevin claim under Missouri law, further noting that defendants previously argued that

there could be no violation of plaintiff’s Fourteenth Amendment due process rights because

plaintiff had the remedy of replevin. Plaintiff complains that if a replevin cause of action is

not available to him, defendants’ justification for their argument that there can be no due

process violation in Count II fails. Plaintiff further notes that after counsel was appointed

and discovery conducted, counsel discovered some of plaintiff’s property might still remain

in the possession of the KCPD, so plaintiff amended his complaint to seek return of that

property under a theory of replevin. Plaintiff notes that replevin is a cause of action seeking

prospective relief, not damages, and therefore the claim is not barred by sovereign

Televen v. University of Minn., 73 F.3d 816, 819 (8th Cir. 1996)).

In reply, defendants argue that the rules permit them to set out alternative defenses.

Defendants further argue that, to the extent he wishes to make a claim for replevin, this

post-deprivation remedy remains available to plaintiff in state court.

After reviewing the parties’ arguments, the Court finds that defendants’ motion

should be DENIED. Plaintiff does not appear to be seeking monetary damages relating to

replevin; instead, the claim is for return of his (alleged) property. At this juncture, that claim

could be heard in either state or federal court.

IV. Conclusion

Therefore, for the foregoing reasons, (1) the motion to dismiss Count II of the Fourth

Amended Complaint is GRANTED IN PART as it relates to dismissal of plaintiff’s claims for

money damages and declaratory relief against defendants Terman and Klein in their official

capacities, plaintiff’s claims based on vicarious liability against defendants Terman and

Klein, and plaintiff’s claims (if any) against Defendant Board, and is DENIED IN PART in all

remaining aspects; (2) the motion to dismiss Count III of the Fourth Amended Complaint is

DENIED without prejudice to reassertion; (3) the motion to dismiss Count IV of the Fourth

Amended Complaint is GRANTED IN PART to the extent that plaintiff has pled a claim for

damages and/or declaratory relief against defendants in their official capacities, and

DENIED IN PART in all other aspects; and (4) the motion to dismiss Count V of the Fourth

Amended Complaint is DENIED.

IT IS SO ORDERED.

Date: August 29, 2018 S/ FERNANDO J. GAITAN, JR.

Kansas City, Missouri Fernando J. Gaitan, Jr.

United States District Judge