JUDY A. MILLER,
        Plaintiff,

        vs.            Case No. 01C 907

BOARD OF COUNTY COMMISSIONERS
OF SHAWNEE COUNTY,
RICHARD BARTA,
CORPORAL DAVID BURKETT,
        Defendants.

Defendants filed a motion to dismiss on the basis of qualified immunity and pursuant to K.S.A. 60-212(b)(6). Defendants also filed a motion to stay discovery. Plaintiff has filed a response and defendants have filed a reply to that response. In addition, plaintiff has filed a motion and an amended motion to strike defendants' reply. The court deems that all motions are ready for ruling.

On or about October 16, 2000, defendant Corporal Burkett came to plaintiff Judy Miller's property and asked to search her property for a particular individual. Plaintiff refused defendant Burkett's initial request to search her residence as he had no search warrant. Plaintiff alleges that defendant Burkett used excessive force against plaintiff and that he allegedly conducted an illegal search of her property and further that his actions allegedly constituted false arrest, assault and battery on plaintiff.

The court belatedly grants defendants' motion to stay discovery during the pendency of this motion to dismiss.

Plaintiff alleges that defendants' reply was not filed timely because it was not filed within 10 days of the plaintiff's response pursuant to District Court Rule 3.202(b). Plaintiff's response was filed on October 15, 2001 and defendants' reply was filed on October 30, 2001.

Shawnee County District Court Rule 3.202(b) provides that a party may file a reply to a response within ten (10) days after the service of such response. However, Shawnee County District Court Rule 3.202(f) provides that K.S.A. 60-206 shall govern the computation of the time periods set forth in the rule.

K.S.A. 60-206(a) provides:

Computation; legal holiday defined. In computing any period of time prescribed or allowed by this chapter, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday or a legal holiday. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. . .

K.S.A. 60-206(e) provides:

Additional time after service by mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served upon such party by mail, three days shall be added to the prescribed period.

Plaintiff's response contained a certificate of service which showed that the response was mailed to defendants' counsel on October 15, 2001. The mailing of the response triggered application of K.S.A. 60-206(e) which provides three additional days. K.S.A. 60-206(a) provides that only working days are to be counted. Therefore, pursuant to K.S.A. 60-206 defendants' reply was not due until November 1, 2001. Since defendants' reply was filed on October 30, 2001 it was timely filed. Therefore, this court denies plaintiff's amended motion to strike defendants' reply brief.

The standard for granting a motion to dismiss for failure to state a claim is clear in Kansas. A district court may dismiss a petition "under K.S.A. 60-212(b)(6) for failure to state a claim when it appears 'beyond doubt' petitioner can prove no set of facts which would entitle him to relief." Shepherd v. Davies, 14 Kan. App. 2d 333, 335, 789 P.2d 1190 (1990). When a motion to dismiss for failure to state a claim raises an issue regarding the legal suitability of that claim, the issue has to be decided from the well plead facts of plaintiff's petition. Grindsted Products Inc., v. Kansas Corporation Commission, 262 Kan. 294, 937 P.2d 1 (1997). "Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim." Id. "In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff's description of that which occurred along with any inference reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if the allegations do not reasonably follow from the description itself." Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, ¶3, 620 P.2d 837 (1980). "Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to the plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief." Knight at ¶2.

Defendants allege that this action against them should be dismissed on the basis of qualified immunity and also pursuant to K.S.A. 60-212(b)(6). Defendants' argument for dismissal is different for defendant Burkett than it is for the Board of County Commissioners and Sheriff Barta, therefore, the court will discuss the defendants separately.

Defendants allege that if this petition is filed against defendant Burkett in his individual capacity under 42 U.S.C. § 1983, defendant Burkett is entitled to qualified immunity.

Plaintiff Miller states in her response that she has not alleged a 42 U.S.C. § 1983 claim in her petition. Plaintiff Miller also argues that even if she had, assault and battery would not give "rise to qualified immunity."

Based on this court's review of plaintiff's petition, the court finds no allegation of any claim under 42 U.S.C. § 1983 even though plaintiff's letter pursuant to K.S.A. 12-105b alleges that Ms. Miller was deprived of her civil rights under 42 U.S.C. § 1983. Therefore, based on the review of plaintiff's petition and plaintiff's assertion that there is no claim under 42 U.S.C. § 1983, this court denies defendant Burkett's motion to dismiss based on qualified immunity under 42 U.S.C. § 1983.

Defendants allege, in addition, that all claims against Board of County Commissioners of the County of Shawnee and Sheriff Barta in his official and individual capacity should be dismissed. Defendants allege that the defendants Board of County Commissioners and defendant Barta cannot be held liable under the theory of respondent superior. Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). See also Board of Comm'rs of Bryan Cty v. Brown, 520 U.S. 397, 403, 137 L. Ed. 2d 626, 117 S. Ct. 1382, rev. denied 20 U.S. 1283 (1997).

However, plaintiff correctly argues that the cases cited by defendants pertain to claims filed under 42 U.S.C. § 1983. As stated previously, plaintiff asserts she has not made a claim under 42 U.S.C. § 1983 and, therefore, the cases cited by defendants are not relevant to this action.

Plaintiff further argues that K.S.A. 75-6103(a) under the Kansas Tort Claims Act provides:

Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omissions of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person would be liable under the laws of this state.

Plaintiff's petition alleges that Corporal Burkett was acting within the scope of his employment as a deputy sheriff for the sheriff of Shawnee County, Kansas and Shawnee County, Kansas. Defendants admit that allegation in their answer.

The Kansas Supreme Court recently reiterated the rules relating to liability under the Kansas Tort Claims Act (KTCA): "When the legislature enacted the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., liability became the rule for negligent or tortious conduct, and immunity the exception. Hopkins v. State, 237 Kan. 601, 609, 702 P. 2d 311 (1985)." McCormick v. Board of County Commissioners of Shawnee County, Kansas, _ Kan. App. 2nd _, 35 P. 3d 815 (2001). "The burden of showing immunity under the KTCA is 'placed upon the governmental entity or employer to establish entitlement to any of the exceptions set forth in K.S.A. 75-6104.' 237 Kan. at 609." Id.

This court, therefore, denies defendants' motion to dismiss as to defendant Burkett and defendants Board of County Commissioners, Shawnee County, Kansas and defendant Sheriff Barta.

The above constitutes the court's rulings on the three motions as set forth above and no further journal entry is required.

The court sets this matter for a case management conference on February 26, 2002 at 1:30 p.m. in Division 14.

IT IS SO ORDERED.

Dated this day of February, 2002.

 
________________
Nancy Parrish
District Judge, Third Judicial District
Division 14

I hereby certify that a copy of the foregoing Memorandum Decision and Order was mailed this day of February, 2002 to the following:

 
Leonard M. Robinson
1605 SW 37th Street
Topeka, Kansas 66611

 
Jonathan C. Brzon
200 SE 7th Street, Suite 100
Topeka, Kansas 66603

 
__________________
Norma J. Dunnaway
Administrative Assistant