United States District Court, W.D. Missouri, Western Division
Z. J. a minor, by and through her next friend Je’tuan Jones, Plaintiff,
KANSAS CITY, MISSOURI BOARD OF POLICE COMMISSIONERS, et. al. Defendants.
FERNANDO J. GAITAN, JR. UNITED STATES DISTRICT JUDGE
pending before the court is Defendants’ Motion to
Dismiss (Doc. No. 35).
Z. J. a minor child, by and through her next friend
Je’taun Jones, brought suit against Kansas City,
Missouri Board of Police Commissioners members Alvin Brooks,
Michael Rader, Angela Wasson-Hunt, Sylvester James, Leland
Shurin and officers Jason Rusley, Michael Jones, Barbara
Eckert, Caleb Lenz, William Nauyok, Eric Enderlin, Charles
Evans, Robert Jorgeonsen, Venasa Ray, and Robert McLaughlin
asserting a claim for excessive force in violation of the
Fourth and Fourteenth Amendments and a claim for deliberately
indifferent policies, practices, customs, training, and
supervision in violation of the Fourth and Fourteenth
November 3, 2010, Detective Mike Jones applied for a search
warrant for 11812 Bristol Avenue, Kansas City, Missouri for
Lee Charles. It was thought that Lee Charles lived at that
address but he had not resided at that address for four
months. On November 3, 2010, at 3:00 p.m. the search warrant
was issued. At 3:35 p.m. on that same day, Lee Charles was
arrested by the Kansas City Police Department by officer
Lantz. Defendant Eckert was contacted to sign the
Investigation Arrest Approval Form for Lee Charles.
about 7:00 p.m., the search warrant was executed by the KCMO
SWAT team including Defendant Eckert. This was almost three
and a half hours after Lee Charles was arrested. At the time
the SWAT team executed the search warrant, Je’taun and
Lemondray Jones (owners of the home) were at work. Plaintiff
Z. J. was home and in the care of her adult cousin, Carla
Brown (hereinafter “Brown”). Two other adults
were in the home as well, Z.J’s grandmother, Laverne
Charles (hereinafter “Charles”) who was upstairs
in a hospital bed, and Leona Smith (hereinafter Smith), who
was caring for Charles upstairs.
the SWAT team arrived at the home, they made contact with
Brown who had looked out the window to see officers already
attempting to open the outer door. The house had two doors,
an outer door and inner door. Brown shook the keys at
officers to signify that they did not need to break the door.
At this time, the grandmother and her caregiver were
upstairs. Z.J. who was two at the time was playing alone in
the basement. Instead of waiting for Brown to open the door,
the officers entered with weapons drawn, and immediately
threw a “flash bang grenade” into the living room
area of the residence igniting the drapes on fire. Officers
placed Brown and Smith in handcuffs, but their attempt to put
hand cuffs on Charles failed because of her physical
limitations. Officers were told that Lee Charles did not live
at the home and had not done so for four months, so they
left. The Jones’ residence suffered damage and Z. J.
allegedly suffered physical and emotional damages as a result
of the search.
deciding how the court should rule on a motion to dismiss,
the court must accept the factual allegations being made by
the plaintiff as true and construe them in the light most
favorable to the plaintiff. Patterson Oil Co. v.
VeriFone, Inc., No. 2:15-CV-4089, 2015 WL 6149594, *3
(W.D. Mo. Oct. 19, 2015) (citing Schaaf v. Residential
Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008)).
Civ. P. 12(b)(6) provides that a claim can be dismissed upon
the grounds of “failure to state a claim upon which
relief can be granted.” To avoid dismissal under Rule
12(b)(6) a complaint must be pleaded properly. Fed.R.Civ.P.
8(a)(2) sates that a pleading must contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” “The pleading standard Rule
8 announces does not require "detailed factual
allegations, " but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 677-678, 129 S.Ct.
1937, 1949 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.1955, 167
L.Ed.2d 929 (2007)). In order for a claim to survive a motion
to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to "state a claim to
relief that is plausible on its face. "”
Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009). A
motion to dismiss under 12(b)(6) is generally disfavored by
the courts. In re Eugene L. Pieper, P.C., 202 B.R.
294, 297 (Bankr. D. Neb. 1996). The court can treat a
12(b)(6) motion as a 12(c) motion for the judgment on the
pleadings “[a]fter the pleadings are closed-but early
enough not to delay trial-a party may move for judgment on
the pleadings.” Fed.R.Civ.P. 12(c). “The
distinction is purely formal, because a Rule 12(c) motion for
judgment on the pleadings is reviewed under the same standard
as a 12(b)(6) motion to dismiss.” Ixtepan v.
Beelman Truck Co., No. 14-00142, 2015 WL 1061560, *3
(E.D. Mo. Mar. 11, 2015) (citing Clemons v.
Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009); see also
NanoMech, Inc. v. Suresh, No. 13-3671, 777 F.3d
1020, 1023 (8th Cir. Feb. 6, 2015)).
filed a motion to dismiss plaintiff’s lawsuit alleging
that the complaint failed to state a claim against the
officers because alleging only that the police officers used
a “flash bang” device does not show that
plaintiff’s right to be free from excessive force was
violated. The officers were executing a search warrant for
evidence of a stabbing and strangulation. Defendants also
allege that the claim against the Board fails to state a
claim because it only alleges that the Board allows officers
to use “flash bang” devices in non-emergency
situations and does not state a “policy or
custom” because there are no facts pled that it
happened more than once.
Z.J. argues that defendants’ motion is untimely under
Fed.R.Civ.P. 12(b)(6) because a motion to dismiss cannot be
filed after the answer has been submitted. She alleges that
defendants submitted an answer to the Plaintiff’s First
Amended Complaint on February 23, 2016. (Doc. No. 25).
Plaintiff alleges that on March 9, 2016, defendants submitted
their motion to dismiss. (Doc. No. 35). Plaintiff alleges
that since the answer to the complaint was submitted, the
present motion is inappropriate. Plaintiff also alleges that
defendants’ motion states facts outside of the pleading
that should not be considered or the motion should be
converted to one for summary judgment. Plaintiff argues that
the First Amended Complaint states a claim sufficient to
comply with Iqbal and Twombly.
court will rule on this motion to dismiss construing the
facts in the light most favorable to the plaintiff. The court
must first determine if the timing ...