Opinion
CIVIL ACTION No. 03-2025-GTV
May 12, 2003.
MEMORANDUM AND ORDER
Plaintiff, Angela Agustonelli, brings this action pursuant to 42 U.S.C. § 1983 and Kansas state law alleging that Defendant, Junction City, Kansas police officer Jim Springer, violated her First Amendment right to privacy and Fourth Amendment right to be free from unreasonable searches and seizures, and committed battery on her. The case is before the court on Defendant's Motion to Dismiss, or in the Alternative, Objection to Designation of Place of Trial (Doc. 3). For the reasons set forth below, Defendant's motion to dismiss is denied and his objection to Plaintiff's designation of place of trial is overruled.
I. MOTION TO DISMISS STANDARD
Defendant moves to dismiss this case pursuant to Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion to dismiss will be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling her to relief under her theory of recovery. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984) (citation omitted). The court must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed. Id. (citation omitted). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support her claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982).
II. BACKGROUND
The following facts are taken from Plaintiff's complaint and are assumed to be true for purposes of this opinion. On the evening of March 11, 2002, Plaintiff was working at the liquor store she operated in Junction City, Kansas when Defendant entered the store and conducted a warrantless search of Plaintiff by patting her down, pulling back the waist of her pants and looking down her pants, and placing his hands on her breasts. Defendant claimed that he conducted the search because he had just observed Plaintiff sell drugs to Chris Johnson, a liquor store customer. The search of Plaintiff was conducted in the presence of Mr. Johnson, James Peterson, the co-owner of the liquor store, a female customer, and Plaintiff's twelve year-old son. No drugs or contraband were found on Plaintiff or in the liquor store, which was also searched without a warrant. Mr. Johnson, who was also alleged to have been involved in the drug deal, was not searched.
III. DISCUSSION
A. First and Fourth Amendment Claims
Plaintiff's First and Fourth Amendment claims are both based on the search Defendant conducted on her. Defendant moves to dismiss the claims on two grounds. First, Defendant argues his search was appropriate under the law because he had probable cause to believe that Plaintiff had just committed a crime. Defendant's argument appears to be based on the allegation in Plaintiff's complaint that "Defendant claimed that he had just observed [Plaintiff] selling drugs to Chris Johnson, a customer at the liquor store." Defendant contends that this allegation demonstrates that he had the requisite probable cause to permit him to conduct the search. The court disagrees. Plaintiff's complaint also clearly alleges that Defendant did not have probable cause or other lawful reason to search Plaintiff, that no drugs were found on her or in the store, that Mr. Johnson, who was also alleged to have been involved in the drug deal, was not searched, and that no arrests were ever made. Taking the allegations in Plaintiff's complaint as true and viewing all reasonable inferences in her favor, the court cannot conclude that it appears beyond a doubt that Plaintiff will be unable to prove any set of facts entitling her to relief on these claims. Therefore, the court will not dismiss Plaintiff's First or Fourth Amendment claims on this ground.
Second, Defendant argues that he is entitled to qualified immunity because his search violated no clearly established right of Plaintiff. Qualified immunity shields an individual government official performing discretionary functions from liability for civil damages insofar as his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow, 457 U.S. at 818 (citations omitted). For purposes of a motion to dismiss, the court conducts a two-part inquiry to determine whether a defendant is entitled to qualified immunity. First, the court must determine whether the plaintiff has sufficiently alleged a violation of federal law. Currier v. Doran, 242 F.3d 905, 917 (10th Cir. 2001) (citations omitted). If the plaintiff's complaint adequately alleges such a violation, the court then examines whether "the right was sufficiently clear that a reasonable official would have understood that his conduct violated the right." Id. at 923 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992) (citation omitted). The court does not apply a heightened pleading standard in the context of a qualified immunity defense raised in a motion to dismiss. Currier, 242 F.3d at 916-17.
Here, the court has already determined that Plaintiff's complaint adequately alleges violations of her First and Fourth Amendment rights. The court, therefore, turns directly to the issue of whether those rights were sufficiently clear that Defendant should have understood that his conduct in searching Plaintiff on March 11, 2002 violated them. Because the illegality of a warrantless search of an individual absent probable cause or other legal justification to conduct such a search was clearly established as of that date, see, e.g., Minnesota v. Dickerson, 508 U.S. 366, 372 (1993), the court determines that Defendant should have understood that his conduct violated Plaintiff's constitutional rights. Defendant is therefore not entitled to qualified immunity at this stage of the litigation.
B. Battery Claim
Defendant also moves to dismiss Plaintiff's battery claim against him on two grounds. First, he contends that the claim must be dismissed because Plaintiff's complaint fails to demonstrate compliance with the Kansas Tort Claims Act ("KTCA") notice requirement provided in K.S.A. § 12-105b(d). In her response to the motion to dismiss, Plaintiff provides a copy of a notice of claim that her attorney sent to the City Clerk of Junction City, Kansas on April 26, 2002. In his reply brief, Defendant does not dispute that the April 26 letter satisfies the KTCA's notice requirement. The court therefore deems this argument abandoned and concludes that Defendant is not entitled to dismissal of Plaintiff's battery claim on this ground.
Second, Defendant argues that he is entitled to immunity from the claim under the KTCA. Although the KTCA imposes liability on governmental entities and their employees for "negligent or wrongful act[s] or omission[s]," K.S.A. § 75-6103(a), it provides various exceptions to the general rule of liability, see id. § 75-6104. Defendant contends that he is entitled to immunity under the exceptions enumerated in subsections 75-6104(e) and (n), which provide:
A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:
. . . .
(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved;
. . . .
(n) failure to provide, or the method of providing, police or fire protection. . . .
The court disagrees that Defendant is entitled to immunity under either of these subsections at this time. As an initial matter, "the KTCA is an `open-ended' act; liability is to the be rule while immunity is to be the exception." Burgess v. West, 817 F. Supp. 1520, 1524-25 (D.Kan. 1993) (quoting Kan. State Bank v. Specialized Transp. Servs., Inc., 819 P.2d 587, 599 (Kan. 1991)). More importantly, however, "the section 75-6104 exceptions to liability only protect negligent conduct, but not willful or wanton acts by governmental employees." Id. at 1526. A police officer who commits an intentional tort such as battery simply cannot claim immunity under the KTCA. Watson v. City of Kansas City, 80 F. Supp.2d 1175, 1198, 1199 (D.Kan. 1999) (citations omitted). Because the court, as it must, takes all of the allegations in Plaintiff's complaint as true and views all reasonable inferences in her favor, it assumes for purposes of this opinion that Defendant committed a battery on Plaintiff. Thus, the court cannot grant immunity to Defendant under the KTCA at this stage of the litigation. Defendant is not entitled to dismissal of Plaintiff's battery claim on this ground.
C. Designation of Place of Trial
Finally, Defendant objects to Plaintiff's request that this case be tried in Kansas City, Kansas. Defendant contends that because he, Plaintiff, and the majority of witnesses are residents of Junction City, Kansas, a trial at the courthouse in Topeka, Kansas would be closer and more convenient for the parties. The court believes that Defendant's objection to the designation of place of trial is premature, and it declines to rule on it at this time. If Defendant decides to re-raise the objection, the court will entertain it at a date following the final pre-trial conference in this case.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's Motion to Dismiss, or in the Alternative, Objection to Designation of Place of Trial (Doc. 3) is denied.
Copies of this order shall be transmitted to counsel of record.