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Z. J. v. Kansas City

United States District Court, W.D. Missouri, Western Division

August 2, 2016

Z. J. a minor, by and through her next friend Je’tuan Jones, Plaintiff,
v.
KANSAS CITY, MISSOURI BOARD OF POLICE COMMISSIONERS, et. al. Defendants.

          ORDER

          FERNANDO J. GAITAN, JR. UNITED STATES DISTRICT JUDGE

         Currently pending before the court is Defendants’ Motion to Dismiss (Doc. No. 35).

         I. Background

         Plaintiff 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 Amendments.

         On 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.

         At 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.

         When 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.

         II. Standard

         When 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)).

         Fed. R. 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, the-defendant-unlawfully-harmed-me accusation.” 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)).

         III. Discussion

         Defendants 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.

         Plaintiff 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.

         The 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 ...


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