Opinion
CIVIL ACTION No. 00-2116-CM.
December 21, 2000
MEMORANDUM AND ORDER
This case arises out of the execution of a search warrant conducted in Kansas City, Kansas on June 29, 1999. Plaintiffs allege that defendants violated their constitutional rights. Plaintiffs also assert various state law claims. This matter is before the court on defendants' motion for summary judgment (Doc. 15) and plaintiffs' motion for leave to amend the complaint (Doc. 31).
The court construes the facts in the light most favorable to plaintiff as the non-moving party pursuant to Fed.R.Civ.P. 56.
A. Execution of the Search Warrant
On June 29, 1999, officers of the Kansas City, Kansas Police Department (KCKPD) executed a search warrant at a residence in Kansas City, Kansas. The search warrant was properly issued and was based upon an affidavit submitted by defendant Detective Greeno. The search warrant included the seizure of illegal drugs and firearms as among the fruits and instrumentalities of the alleged crime. Plaintiff Carlotta Mitchell owned the residence in question but was not present at the time the search began. Ms. Mitchell's daughters, plaintiffs Modest Mitchell and Lotea Sloan, and Ms. Mitchell's cousins, plaintiffs Cornell Jones and Cornelius Jones, were all present at the residence when officers executed the search warrant.
Prior to entry into the residence, officers (the entry team) announced, "Police-search warrant," and at least twice gave loud repetitive commands for the subjects inside to "get down." The entry team deployed a noise flash diversionary device inside the residence to permit the team's entry and divert the attention of subjects within the residence. After the entry team completed securing the residence, officers conducted a search.
Cornelius Jones, Modest Mitchell, Cornell Jones, and Lotea Sloan were handcuffed and detained by officers for approximately 2 1/2 hours while officers searched the residence. At some point during the search, Carlotta Mitchell arrived at the scene. By the end of the search, officers had recovered two firearms and marijuana.
Plaintiffs Cornelius Jones, Modest Mitchell, Cornell Jones, and Lotea Sloan claim that they were "arrested and detained." Yet, plaintiffs cite only to the affidavit of Carlotta Mitchell to support their contention that they were actually arrested. Specifically, plaintiffs cite to a portion of Ms. Mitchell's affidavit which states that the search took approximately "2 1/2 hours from initial arrest and detention." However, Ms. Mitchell was not present at the scene when the officers first arrived and, therefore, has no personal knowledge regarding whether the other plaintiffs were placed under arrest.
B. Procedural History
On August 17, 1999, Carlotta Mitchell, Modest Mitchell and Cornelius Jones sent a Notice of Claim to the Unified Government of Wyandotte County/Kansas City, Kansas (Unified Government). The August 1999 Notice stated that Carlotta Mitchell was making a claim for property damage and negligence, and that Modest Mitchell and Cornelius Jones were making claims for personal injury, unreasonable seizure of their persons, false arrest, false imprisonment, and negligence.
On February 23, 2000, Carlotta Mitchell, Modest Mitchell and Cornelius Jones filed a petition in the District Court of Wyandotte County, Kansas. Defendants removed the case to federal court on March 13, 2000. Apparently, prior to removal, plaintiffs amended their petition on March 9, 2000 in state court to add as plaintiffs Cornell Jones and Lotea Sloan. Defendants, however, did not include in their notice of removal a copy the amended petition and, thereby, failed to comply with 28 U.S.C. § 1446(a), which requires that defendants file "a copy of all process, pleadings, and orders served upon such defendant or defendants in such action." Moreover, defendants never filed a copy of the state court proceedings with this court and, thereby, failed to comply with D. Kan. Rule 81.2, which requires that, within twenty days after removal, the removing party "shall procure and file with the clerk of this court a copy of all records and proceeding had in the state court." As a result of defendants' failure to file a copy of the state court proceedings, the court spent unnecessary time determining which petition was at issue and which plaintiffs were actually parties to the case at the time defendants filed their summary judgment motion. At this juncture, the court could remand the case because of defendants' failure to comply with the court's local rules. D. Kan. Rule 81.2 ("The court may remand any case sought to be removed to this court because of failure to comply with the provisions of this subsection."). However, in the interest of judicial economy, the court declines to remand the case. The defendants are ordered to immediately procure and file with the court a copy of the state court proceedings.
After the case was removed, defendants filed a motion for summary judgment. Several days later, on June 29, 2000, plaintiffs sent another Notice of Claim to the Unified Government. In this June 2000 Notice, all five plaintiffs (Carlotta Mitchell, Modest Mitchell, Cornelius Jones, Cornell Jones, and Lotea Sloan) were named as claimants. Carlotta Mitchell made the same claim in the June 2000 Notice as she did in the August 1999 Notice, while Modest Mitchell and Cornelius Jones added unreasonable search of their persons, assault, and battery to their claims. Lotea Sloan and Cornell Jones each claimed unreasonable search and seizure of their persons, false arrest, false imprisonment, negligence, assault, and battery. With respect to damages, Carlotta Mitchell, Modest Mitchell, and Cornelius Jones provided a specific amount for both economic and noneconomic damages. Lotea Sloan and Cornell Jones stated that they would provide an amount for economic damages at a future date and gave a specific amount for noneconomic damages.
On September 20, 2000, plaintiffs filed a motion to amend their complaint. In that motion, plaintiffs seek to add additional police officers as defendants and further seek to add an additional count, which alleges that certain defendants invaded plaintiffs' privacy and placed them in a false light.
II. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact"and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
III. Discussion
A. Compliance with Kan. Stat. Ann. § 12-105b
Defendants argue that the court lacks subject matter jurisdiction over some of plaintiffs' tort claims. Specifically, defendants claim that plaintiffs either failed to give notice at all or failed to give proper notice regarding their claims against the Unified Government and its employees.
Subject to exceptions stated in the Kansas Tort Claims Act (KTCA), Kan. Stat. Ann. § 75-6104, each governmental entity is liable for damages caused by the negligent or wrongful acts of any of its employees while acting within the scope of their employment. With regard to municipalities, Kan. Stat. Ann. § 12-105b provides a mandatory, uniform procedure for the presentation of claims. The statute provides in pertinent part:
The definition of "municipality" under the KTCA includes a city and a county. Kan. Stat. Ann. § 75-6102. The Unified Government is a consolidated city-county government and is deemed both a city and a county under Kansas law. Id. § 12-345.
Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. . . . Once notice of the claim is filed, no action shall be commenced until after the claimant has received a notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. . . . No person may initiate an action against a municipality unless the claim has been denied in whole or part. . . .
Kan. Stat. Ann. § 12-105b(d). "The notice requirements in § 12-105b(d) are mandatory and a condition precedent to bringing a tort claim against a municipality." Miller v. Brungardt, 904 F. Supp. 1215, 1217 (D.Kan. 1995). Dismissal for lack of jurisdiction is proper where a plaintiff fails to comply with the notice requirements set forth in § 12-105b(d). Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F. Supp. 279, 282 (D.Kan. 1995).
1. Cornell Jones and Lotea Sloan's State Tort Claims
Cornell Jones and Lotea Sloan were added as plaintiffs in March 1999. In that amended petition, Mr. Jones and Ms. Sloan asserted state tort claims for false arrest, false imprisonment, assault, and battery. However, Mr. Jones and Ms. Sloan did not file a notice of claim until June 2000, which was after defendants filed their summary judgment motion raising the issue. Defendants point out that these plaintiffs failed to file a notice of claim prior to commencing their action against the Unified Government and contend that their subsequent filing of a notice of claim does not cure the defect or satisfy the condition precedent.
By its terms, the notice provision requires that "any person" having a tort claim against a municipality must file written notice before commencing an action. The statute also provides that "no person" may initiate an action unless the municipality has denied the claim. Thus, the plain language of the statute required Mr. Jones and Ms. Sloan to file a notice of claim prior to initiating any action for tort claims against the Unified Government. There is no reason for dispensing with the notice requirements merely because these plaintiffs asserted their tort claims via an amended petition. See Kan. Mun. Gas Agency v. Vesta Energy Co., Inc., 840 F. Supp. 814, 823-25 (D.Kan. 1993) (finding that the notice requirements of § 12-105b applied to defendant's counterclaim). As such, Mr. Jones and Ms. Sloan's tort claims, which fall within the scope of the KTCA, against the Unified Government are barred for failure to comply with § 12-105b(d). Johnson v. Bd. of County Comm'rs, 259 Kan. 305, 326, 913 P.2d 119, 134 (1996). Specifically, defendant Unified Government is entitled to summary judgment on this issue and, accordingly, Mr. Jones and Ms. Sloan's claims for negligence, false arrest, false imprisonment, assault, and battery against the Unified Government are dismissed.
The defendants contend that Mr. Jones and Ms. Sloan failed to satisfy a condition precedent to filing suit against the Unified Government or its employees and that, as a result, those claims should be dismissed. Plaintiffs fail to point out the distinction between the Unified Government and its employees and neglect to make any argument regarding the applicability of § 12-105b to employees. However, it is clear under Kansas law that the notice requirements of § 12-105b "apply only to actions for injury to person or property against a municipality and are not a condition precedent to bringing an action against a police officer, even though said officer was engaged in the performance of a governmental function." Bradford v. Mahan, 219 Kan. 450, 453, 548 P.2d 1223, 1227 (1976). Accordingly, the notice requirements do not apply to the individual defendants.
The court does not construe plaintiff's amended petition as asserting a claim by Mr. Jones and Ms. Sloan for negligence. However, to the extent that Mr. Jones and Ms. Sloan intended to assert such a claim against the Unified Government, the claim is similarly barred for failure to comply with § 12-105b(d).
2. Modest Mitchell and Cornelius Jones's Claims for Assault and Battery
Defendants argue that Modest Mitchell and Cornelius Jones failed to state or make reference to any claims for assault and battery in their August 1999 Notice. Defendants contend that, as a result, those claims are barred pursuant to the notice requirements set forth in § 12-105b.
Defendants actually entitled this argument section, "Plaintiffs Carlotta Mitchell's, Modest Mitchell's and Cornelius Jones' (sic) claims for the torts of assault and battery." However, upon review of the petition and amended petition, the court finds that Carlotta Mitchell did not assert a claim for assault and battery.
Section 12-105b(d) sets forth the requirements when giving written notice to a municipality of claims which could give rise to an action under the KTCA. Specifically, § 12-105b(d) states that the notice shall contain:
(1) The name and address of the claimant and the name and address of the claimant's attorney, if any;
(2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of;
(3) the name and address of any public officer or employee involved, if known;
(4) a concise statement of the nature and extent of the injury claimed to have been suffered; and
(5) a statement of the amount of monetary damages that is being requested.
Kan. Stat. Ann § 12-105b(d). The statute further provides, "In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim." Id. "Substantial compliance" means that a claimant must attempt to state each element required of the notice. Tucking v. Bd. of Jefferson County Comm'rs, 14 Kan. App.2d442, 448, 796 P.2d 1055, 1059 (1990).
In this case, the August 1999 Notice contained a brief narrative of the events that transpired during the execution of the search warrant. The narrative included reference to the noise flash diversionary device that was deployed and the alleged injuries sustained as a result, and further stated that Modest Mitchell and Cornelius Jones were placed under arrest and handcuffed. The August 1999 Notice did not, however, expressly state that Ms. Mitchell and Mr. Jones were making a claim for assault and battery.
The facts of this case differ from those in Mitchell v. Coffey County Hosp., 903 F. Supp. 1415 (D.Kan. 1995). In Mitchell, the plaintiff had filed a notice of claim which stated that his employment was wrongfully terminated in breach of an implied contract. The plaintiff later filed suit, asserting claims of breach of contract and retaliatory discharge. The court held that the plaintiff did not substantially comply with the § 12-105b(d) notice requirements because the notice "fail[ed] to contain any facts that would support a retaliatory discharge claim." Id. at 1429. In the present case, plaintiffs set forth facts that could arguably support a claim for assault and battery. Notwithstanding that plaintiffs failed to include the terms "assault" and "battery" in the August 1999 Notice, the court finds that plaintiffs substantially complied with § 12-105b(d)(2) by providing a "statement of the factual basis of the claim" as required by that section. Summary judgment is denied on this issue.
3. Carlotta Mitchell's Claim for False Arrest and False Imprisonment
Defendants contend that Carlotta Mitchell failed to reference a claim for false arrest or false imprisonment in the August 1999 Notice and, as such, those claims should be dismissed. Upon review of the petition and amended petition, the court finds no claim for false arrest or false imprisonment made by Carlotta Mitchell. Defendants' argument on this issue is moot.
4. Carlotta Mitchell, Modest Mitchell, and Cornelius Jones's Statement of Damages
Section 12-105b(d) requires that notice to a municipality contain "a statement of the amount of monetary damages that is being requested." Kan. Stat. Ann. § 12-105b(d)(5). Defendants claim that Carlotta Mitchell, Modest Mitchell, and Cornelius Jones's statement of monetary damages in their August 1999 Notice does not meet this standard. In the August 1999 Notice, Carlotta Mitchell stated that she would provide an amount for economic damages at a future date; Modest Mitchell stated that she had medical expenses of $1,150.90 to date but reserved the right to supplement the amount as more medical bills were received; and Cornelius Jones stated that his medical expenses were unknown but reserved the right to supplement as medical bills were received. Regarding noneconomic damages, all three claimed an amount that is "just and reasonable."
The court finds that Carlotta Mitchell, Modest Mitchell, and Cornelius Jones substantially complied with the notice requirement set forth in § 12-105b(d)(5). This is not a case where plaintiffs entirely neglected the damage element, in which case substantial compliance would be lacking. Miller, 904 F. Supp. at 1218 (holding notice inadequate where plaintiff made no reference to the amount of monetary damages claimed); Tucking, 14 Kan. App.2d at 447, 796 P.2d at 1059 (same). While greater specificity is preferable, the court finds that plaintiffs' attempt to state an amount of damages constitutes substantial compliance with § 12-105b(d)(5). The court denies defendants' summary judgment motion on this issue.
B. Participation in Alleged Constitutional Violations
Plaintiffs Modest Mitchell, Cornelius Jones, Cornell Jones, and Lotea Sloan have brought a claim alleging that defendants used excessive force in violation of plaintiff's Forth Amendment rights. The excessive force claim apparently stems from the deployment of the noise flash diversionary device and from plaintiffs' detainment during the search.
Defendants contend that Detective Greeno and Officer Wright did not participate in the alleged use of excessive force. To prevail on a claim under § 1983, a plaintiff must establish that the defendant acted under color of state law and caused or contributed to the alleged constitutional violation. Ruark v. Solano, 928 F.2d 947, 950 (10th Cir. 1991). Thus, a plaintiff must show that the defendant personally participated in the alleged conduct, Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976), and conclusory allegations are not sufficient to state a constitutional violation. Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981). In the context of supervisory liability, a plaintiff must show that the supervisor personally directed the violation or had actual knowledge of the violation and acquiesced in its continuance. Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir. 1992). It is uncontroverted that the search warrant in question was validly issued and that Detective Greeno and Officer Wright participated in its execution. Specifically, the two were assigned to outside perimeter security in the initial execution of the warrant and entered the residence only after it was secured by the entry and interior security team. Neither Detective Greeno nor Officer Wright participated in or supervised the initial entry or securing of the interior residence.
1. Plaintiffs' Detention
Defendants contend that neither Detective Greeno nor Officer Wright arrested or detained any of the plaintiffs, nor did the two strike or touch plaintiffs in a violent or offensive manner or threaten to strike or touch plaintiffs in a violent or offensive manner. Plaintiffs attempt to controvert this assertion by citing only to the affidavit of Carlotta Mitchell, who was not present at the time Modest Mitchell, Cornelius Jones, Cornell Jones, and Lotea Sloan were initially detained. Carlotta Mitchell's affidavit never identifies Detective Greeno or Officer Wright as an officer who arrested or detained plaintiffs. Rather, Carlotta Mitchell's affidavit states that the "police officers" refused her demand that Cornelius Jones, Cornell Jones, and Lotea Sloan's handcuffs be removed. The affidavit also states that "none of the police officers at the scene protested that plaintiffs be released from detention or that the handcuffs be removed."
While the record is not entirely clear, it appears that Modest Mitchell was receiving medical attention and, as a result, not handcuffed, when Carlotta Mitchell arrived.
Plaintiffs have failed to bring forth any evidence that Detective Greeno and Officer Wright participated in their detention. The only evidence in the record comes from the sole plaintiff who was not present at the time the others were placed in handcuffs and detained, and that evidence further fails to identify these two defendants as being involved in plaintiffs' detention. Summary judgment is appropriate where a plaintiff fails to identify an officer as one of those who subjected the plaintiff personally to excessive force. Jenkins v. Wood, 81 F.3d 988, 995 (10th Cir. 1996). Plaintiffs further do not set forth evidence, or for that matter even allege, that Detective Greeno or Officer Wright had supervisory authority over any officers who handcuffed and detained plaintiffs. Plaintiffs have failed to meet their burden at the summary judgment stage. Accordingly, Detective Greeno and Officer Wright are entitled to judgment as a matter of law on plaintiffs' claim that plaintiffs' detention during the execution of the search involved the use of excessive force.
2. Deployment of the Noise Flash Diversionary Device
Detective Greeno and Officer Wright also assert that they were not involved in the deployment of the noise flash diversionary device. In response, plaintiffs admit that Detective Greeno and Officer Wright did not participate in or supervise the initial entry or securing of the residence (the time at which the device was deployed); that Detective Greeno and Officer Wright did not deploy the noise flash diversionary device; and that Detective Greeno and Officer Wright entered the residence only after it was secured by the entry team. Plaintiffs, however, claim that they cannot admit or deny without conducting further discovery whether Detective Greeno and Officer Wright directed or requested the deployment of the diversionary device. Plaintiffs point to Detective Greeno's affidavit upon which the search warrant was based, wherein he stated that the residence was a drug house and that the residents were inherently dangerous individuals. Plaintiffs argue that further discovery may show that Detective Greeno and Officer Wright requested the use of the diversionary device by the entry team or that Detective Greeno's statement, that the residents were inherently dangerous individuals, influenced the entry team's decision to use the device.
Plaintiffs have failed to establish a genuine issue of fact regarding Detective Greeno and Officer Wright's participation in the deployment of the noise flash diversionary device. Plaintiffs do not controvert that neither Detective Greeno nor Officer Wright participated in or supervised the initial entry or securing of the residence and that neither deployed the device.
Additionally, plaintiffs' argument, that further discovery may establish that Detective Greeno or Officer Wright requested the use of the diversionary device or that Detective Greeno's affidavit influenced the entry team's decision to deploy the device, is unpersuasive. Foremost, the court notes that summary judgment may be entered before discovery is completed. Pub. Serv. Co. v. Cont'l Cas. Co., 26 F.3d 1508, 1518 (10th Cir. 1994). A party seeking discovery to oppose summary judgment must file an affidavit pursuant to Federal Rule of Civil Procedure 56(f) showing with specificity how the discovery will enable him to rebut the movant's allegations of no genuine issue of material fact. Jensen v. Redevelopment Agency, 998 F.2d 1550, 1554 (10th Cir. 1993). Plaintiffs in this case failed to file such an affidavit.
Even if plaintiffs had filed an affidavit, the court finds that any "influence" Detective Greeno's affidavit may have had on the entry team's decision to deploy the device is insufficient to establish that Detective Greeno participated in the decision. Moreover, plaintiffs present no evidence, nor do they allege, that Detective Greeno or Officer Wright had supervisory authority such that a request by either to deploy the device would be honored. Indeed, the uncontroverted facts lead the court to the opposite conclusion — that neither Detective Greeno nor Officer Wright acted in a supervisory capacity. In sum, plaintiffs have failed to set forth evidence that Detective Greeno or Officer Wright participated in the decision to deploy, or the actual deployment of, the noise flash diversionary device. As such, summary judgment is granted to Detective Greeno and Officer Wright on plaintiff's claim of excessive force as that claim relates to the deployment of the diversionary device.
C. Qualified Immunity
Even assuming that Detective Greeno and Officer Wright participated in the alleged constitutional violations, the court finds that Detective Greeno and Officer Wright are entitled to qualified immunity on plaintiffs' § 1983 claims. Qualified immunity protects police officers from liability when acting within the scope of their employment. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity provides government officials immunity from suit as well as from liability for their discretionary acts. See Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985); Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir. 1988). The doctrine of qualified immunity serves the goals of protecting public officials "who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Butz v. Economou, 438 U.S. 478, 506 (1978).
The Supreme Court has established a two-part approach to determine if qualified immunity applies. "[T]he better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question." Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 516 (10th Cir. 1998) (citing County of Sacramento v. Lewis, 523 U.S. 833, 842 n. 5 (1998)). Thus, the court follows this two-step test to analyze the issue of qualified immunity raised by defendants here. Butler v. City of Prairie Village, Kan., 172 F.3d 736, 745 (10th Cir. 1999).
1. Plaintiffs' Detention
Plaintiffs Modest Mitchell, Cornelius Jones, Cornell Jones, and Lotea Sloan were handcuffed and detained for 2 1/2 hours while officers conducted a search of the residence. Plaintiffs argue that their detention was without probable cause and that, as a result, defendants violated their clearly established constitutional right to be free from unreasonable arrest and seizure.
As a general rule, every arrest, and every seizure having the essential attributes of a formal arrest, are deemed unreasonable unless supported by probable cause. United States v. Ritchie, 35 F.3d 1477, 1481 (10th Cir. 1994) (citing Michigan v. Summers, 452 U.S. 692, 700 (1981)). However, the Supreme Court has held that some seizures can be reasonable under the Fourth Amendment without probable cause where the seizure is inherently less intrusive than an arrest, is justified by substantial law enforcement interests, and the police have reasonable articulable suspicion of criminal activity. Summers, 452 U.S. at 697-701.
In Summers, police officers detained a person while executing a search of a premises for drugs. The search was conducted pursuant to a valid search warrant. The Court held that the existence of a search warrant for contraband, issued by a neutral magistrate and based upon probable cause, creates an articulable and individualized suspicion of criminal activity, and "[t]he connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant." Id. at 703-04. The Court concluded, "Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Id. at 706 (footnotes omitted).
In this case, the police officers were conducting a search of a residence pursuant to search warrant which was issued by a district court judge and based on probable cause. The search warrant was for contraband. Upon entry, the police officers found four occupants, who were subsequently detained and handcuffed for 2 1/2 hours. The court finds that, pursuant to Summers, the police officers had authority to detain the occupants of the residence while the search was being conducted.
The question thus becomes whether the detention was too prolonged or whether the use of handcuffs created special circumstances such that the officers exceeded their authority. Id. at 705 n. 21.
Case law indicates that, at least in certain circumstances, officers may handcuff the occupants of a premises while executing a search warrant. United States v. Fountain, 2 F.3d 656, 659-60 (6th Cir. 1993). In Fountain, officers executing a search for narcotics and firearms handcuffed the occupants of the house and forced them to lie face down on the floor while they conducted the search. The court found that the character of the intrusion was reasonable and proportional to law enforcement's legitimate interests in preventing flight in the event incriminating evidence is found and in minimizing the risk of harm to the officers. Id. at 663. Only where other factors are present has handcuffing has been found to be excessive. See Franklin v. Foxworth, 31 F.3d 873, 874-78 (9th Cir. 1994) (found Fourth Amendment violation where officers carried a seriously disabled man from his bed and left him handcuffed on a couch for over two hours with nothing to cover the lower half of his body); Baker v. Monroe Township, 50 F.3d 1186, 1192-94 (3d Cir. 1995) (found Fourth Amendment violation where officers handcuffed and pointed guns at a mother and her teenage children who happened to be approaching a residence for a social visit).
There is no evidence in the record of any factors that would support a conclusion that Detective Greeno and Officer Wright's conduct was excessive or unreasonable. The only evidence is that plaintiffs were handcuffed, and then separated, during the course of the search. There was good reason to fear violence or destruction of evidence because there was cause to believe drugs and weapons were located within the residence. Moreover, the length of plaintiffs' detention was not unreasonable. Torres v. United States, 200 F.3d 179, 187 (3d Cir. 1999) (found no Fourth Amendment violation where plaintiff was handcuffed during a search lasting from 1 1/2 to 3 hours). Plaintiffs' detention in this case complied with the Constitution. As such, plaintiffs have failed to allege a deprivation of a constitutional right at all. At the very least, the court notes that, even if plaintiffs' constitutional rights were violated, the law is ambiguous as to exactly when and under what circumstances a detention in this situation becomes unreasonable. Thus, no "clearly established" Fourth Amendment right of plaintiffs was violated. Accordingly, Detective Greeno and Officer Wright are entitled to qualified immunity.
2. Deployment of the Noise Flash Diversionary Device
Plaintiffs argue that the officers used excessive force in deploying the noise flash diversionary device. In reviewing plaintiffs' claim, the court must determine whether the officers' actions were "objectively reasonable" in light of the facts and circumstances confronting them. Graham v. Connor, 490 U.S. 389, 397 (1989). The Tenth Circuit has recognized that the court must review the officers' actions from the perspective of reasonable agents on the scene who are legitimately concerned with both doing their job and with their own safety. United States v. Meyers, 106 F.3d 936, 940 (10th Cir. 1997) (citing Graham, 490 U.S. at 396) (holding that the use of a "flashbang" device in a house where innocent children sleep was reasonable in light of the fact that the agents knew of the suspect's criminal history and that the residence likely contained an illegal marijuana operation).
In this case, the officers possessed a reasonable suspicion that the persons inside the residence were engaged in the distribution of drugs, were armed and, as a result, inherently dangerous individuals. Plaintiffs do not dispute the reliability and content of the information the officers possessed. Because the officers believed that drugs and weapons were located within the home, the use of a diversionary device was reasonable to effectuate the safest entry possible. Accordingly, the court finds that any officer of reasonable competence would have made the same choice to utilize a distraction device in these circumstances. Thus, while the deployment of such diversionary devices should not be used as a routine matter, Myers, 106 F.3d at 940 (citing Jenkins v. Wood, 81 F.3d 988, 996-98 (10th Cir. 1996)), the court finds that the evidence, even when viewed in the light most favorable to plaintiffs, fails to establish a constitutional violation. Detective Greeno and Officer Wright are entitled to qualified immunity.
In fact, officers recovered marijuana and two firearms during the search.
IV. Motion to Amend
Plaintiffs seek to amend their complaint to add additional defendants and to add an additional count, alleging that certain defendants invaded plaintiffs' privacy and placed them in a false light. For the reasons stated below, the court grants in part and denies in part plaintiffs' motion to amend.
Plaintiffs' motion to amend also omits as defendants Officer Trzok and Officer McCall. To the extent that plaintiffs seeks to dismiss Officer Trzok and Officer McCall from this action, plaintiffs' motion is granted.
1. False Arrest, False Imprisonment, Assault, and Battery Claims
Plaintiffs seek to add additional police officers as defendants to their claims of false arrest, false imprisonment, assault, and battery. Kansas statutory law expressly provides that claims for assault, battery, and false imprisonment are governed by a one-year statute of limitations. Kan. Stat. Ann. § 60-514. This statute has been construed to apply to claims of false arrest. Cowdrey v. City of Eastborough, Kan., 730 F.2d 1376, 1379-80 (10th Cir. 1984) (citing Porter v. Stormont Vail Hosp., 228 Kan. 641, 621 P.2d 411 (1980)). To fall within the applicable statute of limitations, plaintiffs must have sought to amend their complaint by June 29, 2000. Because plaintiffs moved to amend their complaint on September 20, 2000, plaintiffs' claims are untimely with respect to any new defendants. The court must therefore determine whether plaintiffs' claims against any new defendants relate back to the date of the original petition.
For an amendment adding a new party to relate back, all of the condition set forth in Federal Rule of Civil Procedure 15(c)(3) must be met. Rule 15(c)(3) establishes that a claim will only relate back to the date of the original complaint if three conditions are met: (1) the amended complaint involves the same transaction or occurrence as the original complaint; (2) the new party had notice of the action such that the party will not be prejudiced in maintaining a defense on the merits; and (3) the new party knew or should have known that but for a mistake in identity, the action would have been brought against him. Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1226-27 (10th Cir. 1991). Moreover, the second and third requirements must have been fulfilled within the period for service process prescribed by Rule 4(m). Henry v. Fed. Deposit Ins. Corp., 168 F.R.D. 55, 59 (D.Kan. 1996).
Rule 15(c) provides:
An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m)for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Rule 15(c)(3) has been construed to require that a plaintiff make a mistake concerning the identity of a proper party. Id. In Henry, the court stated:
Had the drafters of the rule intended pleadings against an unknown defendant who subsequently became identified to relate back, they would have said so. Instead, the plain language of the rule permits relation back of claims against only mistakenly identified parties (under certain circumstances). One can only mistakenly identify a known party.
Id. The court ultimately held that, because plaintiff's failure to name a defendant "stemmed from lack of knowledge rather than a mistake in identification, the plain language of Rule 15(c)(3) does not permit relation back." Id.
In this case, plaintiffs do not assert that they mistakenly identified the defendants which they now seek to add. Rather, plaintiffs claim that, at the time they filed their original petition, the names of the defendants were not available to them. Thus, plaintiffs simply seek to add these new defendants. Having failed to name these defendants because of a lack of knowledge rather than a mistake in identification, the court finds that plaintiffs' claims do not relate back to the date on which the original complaint was filed. Because plaintiffs' motion to amend was filed after the applicable statute of limitations, plaintiffs' claims for false arrest, false imprisonment, assault, and battery against any new defendants are time-barred. Plaintiffs' motion to amend with respect to this issue is denied.
2. Negligence
Plaintiffs move to add additional police officers as defendants to their negligence claim. The applicable statute of limitations for a negligence claim is two years. Kan. Stat. Ann. § 60-513(a)(4). Thus, having filed their motion to amend on September 20, 2000, plaintiffs' negligence claim against these newly added defendants falls within the statute of limitations. Pursuant to Federal Rule of Civil Procedure 15(a), the court grants plaintiffs' motion to add defendants to their claim of negligence.
3. § 1983 Claims
Plaintiffs seek to add additional police officers as defendants to their § 1983 claim, which alleges the use of excessive force and unreasonable search and seizure under the Fourth Amendment. The court already has determined that the defendants which plaintiff initially named are entitled to qualified immunity. Specifically, the court has found that any participation by Detective Greeno and Officer Wright in plaintiffs' detention and deployment of the noise flash diversionary device is subject to qualified immunity. In their motion to amend, plaintiffs allege no new or different conduct by any defendants with respect to their § 1983 claim. Rather, plaintiffs simply seek to add new defendants, claiming that those new defendants detained them for 2 1/2 hours and deployed the diversionary device in violation of the Fourth Amendment.
Because the court already has found that defendants who engaged in such conduct enjoy qualified immunity, plaintiffs' excessive force claim against any new defendants, absent some allegation of differing conduct, will likely not survive a qualified immunity defense. However, the court is aware of the Tenth Circuit's decision, Gagan v. Norton, 35 F.3d 1473, 1477 (10th Cir. 1994), wherein the court reversed a district court's order denying plaintiff's motion to amend. The district court had concluded that, because the defendants which plaintiff sought to add could avail themselves of qualified immunity, joinder of those defendants would be futile. The Tenth Circuit pointed out that qualified immunity is an affirmative defense that must be raised by the party alleging it. Accordingly, the Tenth Circuit reversed the district court's order denying plaintiff's request to name additional defendants in so far as the basis for the ruling was a determination on the question of qualified immunity. Id. But see Yeoman v. City of Parsons, Kan., No. Civ. 95-2272-GTV, 1997 WL 159048, at *7 (D.Kan. Mar. 21, 1997) (denying plaintiff's request for leave to amend complaint on the basis that it would be futile to allow plaintiff to add additional defendant because claim would not survive a qualified immunity defense).
The statute of limitations for a claim brought under § 1983 is two years. Cowdrey, 730 F.2d at 1378. Thus, plaintiffs' motion to amend to add defendants is timely. As such, pursuant to Federal Rule of Civil Procedure 15(a), and in accordance with Gagan, plaintiffs' motion to add defendants to their § 1983 claim is granted.
4. Privacy/False Light Claims
Plaintiffs request leave of court to add a claim that certain defendants invaded their privacy and placed them in a false light. Pursuant to Kan. Stat. Ann. § 60-513(a)(4), the statute of limitations for invasion of privacy claims in Kansas two years. Newcomb v. Ingle, 827 F.2d 675, 678 (10th Cir. 1987). Thus, having filed their motion to amend on September 20, 2000, plaintiffs' privacy claims fall within the statute of limitations. Pursuant to Federal Rule of Civil Procedure 15(a), the court grants plaintiffs' motion to add this claim.
V. Conclusion
In light of the holdings contained in this order, the following are the only claims pending before this court, and plaintiffs may amend their complaint accordingly:
1. Modest Mitchell and Cornelius Jones's claim against the Unified Government, Detective Greeno, and Officer Wright for false arrest and false imprisonment.
2. Cornell Jones and Lotea Sloan's claim against Detective Greeno and Officer Wright for false arrest and false imprisonment.
3. Modest Mitchell and Cornelius Jones's claim against the Unified Government, Detective Greeno, and Officer Wright for assault and battery.
4. Cornell Jones and Lotea Sloan's claim against Detective Greeno and Officer Wright for assault and battery.
5. Carlotta Mitchell, Modest Mitchell, and Cornelius Jones's claim against the Unified Government, Sergeant Wolley, Sergeant Moran, and Officer Whitworth for negligence.
6. Modest Mitchell, Cornelius Jones, Cornell Jones, and Lotea Sloan's claim against the Unified Government, Officer Garrett, and Officer Hatfield for false light and invasion of privacy.
7. Modest Mitchell, Cornelius Jones, Cornell Jones, and Lotea Sloan's claims against Sergeant Moran, Sergeant Woolley, Officer Burris, Officer Whitworth, Officer Porterfield, Officer Nicholson, Officer Key, Officer Littlefield, and Sergeant Stahl brought pursuant to § 1983.IT IS THEREFORE ORDERED that defendants' motion for summary judgment (Doc. 15) is granted in part and denied in part, and plaintiffs' motion for leave to amend the complaint (Doc. 31) is granted in part and denied in part. Defendant is further ordered to immediately procure and file with the court a copy of the state court proceedings.
Dated this day of January 2001, at Kansas City, Kansas.