Opinion
Civil Action No. 04-2149-GTV.
July 8, 2004
MEMORANDUM AND ORDER
Plaintiffs Charon Porter, James McNeal III, Jaron McNeal, James McNeal, Sr., and Josephine McNeal (collectively "Plaintiffs") filed this action against Defendants Board of Police Commissioners of Kansas City, Missouri, the Kansas City, Missouri Police Department, Officer Chris Praschak, Officer John Pickens, and the Attorney General for the State of Missouri, Jeremiah W. Nixon. Plaintiffs' complaint alleges constitutional rights violations pursuant to 42 U.S.C. § 1983, as well as state wrongful death and outrage claims arising from the death of James McNeal, Jr.
This action is before the court on Defendants Board of Police Commissioners of Kansas City, Missouri ("the Board") and the Kansas City, Missouri Police Department's ("the Department") motion to dismiss (Doc. 6), Attorney General Jeremiah Nixon's motion to dismiss (Doc. 9), and Plaintiffs' motion to file an amended complaint (Doc. 13). For the following reasons, all three motions are granted.
I. STANDARD OF REVIEW
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, 2 L.Ed.2d 80, 78 S.Ct. 99 (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, 40 L.Ed.2d 90, 94 S.Ct. 1683 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 73 L.Ed.2d 396, 102 S.Ct. 2727 (1982).
II. FACTUAL BACKGROUND
On January 5, 2003, Defendants Praschak and Pickens, officers of the Kansas City, Missouri Police Department, followed the deceased, James McNeal, Jr., and two others riding in a sports utility vehicle in the midtown area of Kansas City, Missouri. Plaintiffs allege that without legal authority, justification or cause, Defendants chased the sports utility vehicle into Kansas City, Kansas. Eventually, the vehicle stopped. The two passengers riding with James McNeal, Jr. left on foot because they were the subjects of outstanding warrants and did not want to be arrested. Plaintiffs further allege that James McNeal, Jr. remained in the vehicle and cooperated with the police officers. At some point, a shooting occurred and James McNeal, Jr. received two gun shot wounds. He died later that day. Plaintiffs assert that at no point did Defendants Praschak and Pickens activate their emergency sirens, turn on their video system in their police car, or contact other officers of the Kansas City, Kansas Police Department for assistance.
III. DISCUSSION A. The Board and The Department's Motion to Dismiss
Plaintiffs' complaint names the Board of Police Commissioners of Kansas City, Missouri and the Kansas City, Missouri Police Department as Defendants in this action. The Board and the Department claim that they should be dismissed from this action because neither entity is capable of being sued. In response, Plaintiffs request that the court grant them leave to file an amended complaint. Plaintiffs' proposed amended complaint asserts a section § 1983 claim against the individual members of the Board in their official capacities. The proposed amended complaint does not name the Board or the Department as Defendants. In their reply, the Board and the Department argue that Plaintiff has not disputed the fact that they cannot be sued as entities, and further ask the court to not allow Plaintiffs to file an amended complaint to sue the individuals members of the Board under § 1983. Specifically, Defendants point out that Plaintiffs have not opened an estate as required by the Tenth Circuit. See Berry v. Muskogee, 900 F.2d 1489, 1506-07 (10th Cir. 1990) (holding that the proper federal remedy in § 1983 death cases is "a survival action, brought by the estate of the deceased victim, in accord with § 1983's express statement that the liability is `to the party injured'").
The court agrees that a plaintiff may maintain an action against the Board members in their official capacities under § 1983. See Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 905 (8th Cir. 1999) (observing that "because [the plaintiff's] section 1983 suit is against the members of the Board in their official capacities, it must be treated as a suit against the municipality"). The court also agrees that the proper party to bring this claim is the personal representative of the decedent's estate, not Plaintiffs. See Berry, 900 F.2d at 1506-07;Tomme v. City of Topeka, No. 89-2033-V, 1992 WL 81334, at *3 (D. Kan. Mar. 4, 1992) (stating that "an heir at law may not bring a wrongful death action under section 1983 for the alleged infringement of the decedent's constitutional rights"). Plaintiffs' attorney concedes this point and requests time to open an estate for the decedent.
Fed.R.Civ.P. 15(a) provides that "leave [to amend] shall be freely given when justice so requires." Leave to amend is a matter committed to the court's sound discretion and is not to be denied without the court giving some reason or cause on the record. Fed. Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987). Leave may be denied when the amendment would cause undue prejudice to the opposing party, when the movant has "unduly and inexplicably delayed" in requesting leave, when the movant acts on a "bad faith or dilatory motive," or when the amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). In exercising its discretion, the court must be mindful that the Federal Rules of Civil Procedure are designed to facilitate decisions on the merits rather than on pleading technicalities. Koch v. Koch. Indus., 127 F.R.D. 206, 209 (D. Kan. 1989).
Despite the evident deficiencies in Plaintiffs' § 1983 claim, the court determines that in the interests of fairness, justice, and the judicial preference to reach a decision on the merits, Plaintiffs should be permitted to amend their complaint to bring a properly pleaded § 1983 action against the individual members of the Board. Accordingly, the court grants Plaintiffs sixty (60) days from the date of this order to open an estate and file an amended complaint as to this claim. Finally, the court dismisses Defendants Board of Police Commissioners of Kansas City, Missouri and the Kansas City, Missouri Police Department as parties in this action.
B. Attorney General Jeremiah Nixon's Motion to Dismiss
Defendant Attorney General Jeremiah Nixon's motion to dismiss contains several arguments as to why he is not a proper party in this action, including lack of personal jurisdiction. Plaintiffs' attorney concedes that no personal jurisdiction exists as to Defendant Nixon and voluntarily consents to his dismissal from this suit. Accordingly, Defendant Nixon's motion to dismiss is granted.
C. Plaintiffs' Motion to File an Amended Complaint
The court grants Plaintiffs' motion to file an amended complaint. As stated before, Plaintiffs shall have sixty (60) days from the date of this order to open an estate and file an amended complaint as to the § 1983 claims against the individuals members of the Board of Police Commissioners of Kansas City, Missouri. The court also notes that Plaintiffs' proposed amended complaint alleges § 1983 claims against Defendant Prashack and an "Unidentified Supervisor." Again, the court reminds Plaintiffs that these claims must be brought by a representative of the decedent's estate, not by Plaintiffs in their individual capacity as heirs-at-law. Accordingly, the court grants Plaintiffs sixty (60) days from the date of this order to open an estate and file an amended complaint as to these claims.
Next, the court observes that both Plaintiffs' original complaint and proposed amended complaint alleges a state law outrage claim against all Defendants. Defendant Nixon's motion to dismiss argued that Plaintiffs' outrage claim is barred by the statute of limitations. Defendants the Board and the Department also asserted this argument in their reply brief. Although these Defendants have already been dismissed, the court will address this argument now, as the court determines that it is futile for this cause of action to appear in Plaintiffs' amended complaint.
"In Kansas, claims of intentional infliction of emotional distress or outrage have a one-year statute of limitations."Moore v. Luther, 291 F. Supp.2d 1194, 1198 (D. Kan. 2003) (citing Curts v. Dillard's, Inc., 48 P.3d 681, 682-83 (Kan.Ct.App. 2002)). A claim of outrage accrues "on the date when the injury was incurred and the emotional impact was felt." Id. (citation omitted). The court concludes that the accrual date for Plaintiffs' outrage claim is January 5, 2003, the date that James McNeal, Jr. died. Plaintiffs did not file their complaint in state court until March 8, 2004. Plaintiffs' outrage claim is therefore dismissed.
Finally, Plaintiffs' proposed amended complaint contains a state law assault and battery claim against Defendants Praschak and Pickens. The court concludes that adding this claim to the amended complaint would be futile. The claim is barred by the one-year statute of limitations. See Kan. Stat. Ann. § 60-514.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendants Board of Police Commissioners of Kansas City, Missouri and the Kansas City, Missouri Police Department's motion to dismiss (Doc. 6), Attorney General Jeremiah Nixon's motion to dismiss (Doc. 9), and Plaintiffs' motion to file an amended complaint (Doc. 13) are granted. Specifically, Defendants Board of Police Commissioners of Kansas City, Missouri, the Kansas City, Missouri Police Department, and Attorney General Jeremiah Nixon are dismissed as parties to this action. The court further grants Plaintiffs sixty (60) days from the date of this order to open an estate and file an amended complaint consistent with this opinion.
Copies of this order shall be transmitted to counsel of record.