McGuire v. Allen et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MELISSA MCGUIRE,
Plaintiff,
v. Case No. 24-2047-EFM-GEB
TODD W. ALLEN,
Defendant.
MEMORANDUM AND ORDER
Before the Court is pro se Defendant Todd W. Allen’s Motion for Reconsideration (Doc.
46) of this Court’s decision (Doc. 42) to grant in part and deny in part his Motion to Dismiss (Doc.
26). Plaintiff Melissa McGuire’s suit arises out of Allen’s sexual assault of Plaintiff in 2013. For
the reasons stated herein, the Court denies Allen’s Motion for Reconsideration.
I. Factual and Procedural Background1
The Court described the facts in more detail in its Order related to Allen’s Motion to
Dismiss,2 and will only touch on the most relevant facts here.
In July 2013, Plaintiff and a friend were parked at Rice Park in Hutchinson, Kansas.
Allen—at the time a police officer with the Hutchinson Police Department (“HPD”)—approached
their car, shining a flashlight into the vehicle. Allen identified himself as a police officer and
instructed Plaintiff to get out of the car. Under the guise of conducting a search of her person,
Allen sexually assaulted Plaintiff.
1 The facts are taken from Plaintiff’s Complaint and are considered true for purposes of this Order.
2 See McGuire v. Allen, 2025 WL 2996777, at *1–2 (D. Kan. Oct. 24, 2025).
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Plaintiff asked for Allen’s badge number, but Allen did not respond. Plaintiff saw that
Allen was wearing a black mask covering his face and black gloves. Not knowing if Allen was
actually a police officer, Plaintiff began to run and scream for help. Plaintiff’s friend began to
chase Allen, but Allen got away. When Plaintiff got home, she told her parents who took her to
the HPD station to report the sexual assault.
From October 2012 until July 2018, HPD received at least eight other similar reports from
different victims. On August 17, 2022, HPD announced Allen’s arrest in a press conference. Allen
pled guilty to multiple felony crimes in connection with his sexual assault of ten women, including
Plaintiff. In the Fall of 2022 or early 2023, victim advocates contacted Plaintiff to inform her that
Allen was her assailant and that he was under arrest. Prior to this, Plaintiff was unaware of Allen’s
identity or that Allen was actually a HPD police officer.
After Plaintiff filed suit, Allen filed a motion to dismiss. He asserted that the statute of
limitations had run on Plaintiff’s claims. He argued that because his sexual assault of Plaintiff took
place in 2013, the two-year statute of limitations had run. The Court found that the statute of
limitations had run on some of Plaintiff’s claims and dismissed them. However, the Court found
that Plaintiff’s § 1983 excessive-force claim was not barred by the statute of limitations. The Court
applied the federal discovery rule, under which a claim does not accrue until a plaintiff has reason
to know of the existence of the cause of action.3 An element of Plaintiff’s § 1983 claim is that her
rights were violated by an “actor acting under color of state law.”4 The Court reasoned that—
3 Id. at *3 (citing Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004)).
4 Id. (citing Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016)).
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because Plaintiff alleges that she did not know the identity of her assailant as a person acting under
of color of state law until the Fall of 2022—her claim did not accrue until then.5
II. Legal Standard
Allen proceeds pro se, so the Court liberally construes his pleadings and holds them to a
less stringent standard than those drafted by attorneys.6
The Court has discretion whether to grant a motion to reconsider.7 The Federal Rules of
Civil Procedure do not formally recognize a “motion to reconsider.”8 Instead, a post-judgment
motion to reconsider “may arise under either Rule 59(e) (motion to alter or amend the judgment)
or Rule 60(b) (relief from judgment for mistake or other reason),” although the rules are not
interchangeable.9 A motion for reconsideration under Rule 59(e) “gives the court an opportunity
to correct manifest errors of law or fact and to review newly discovered evidence.”10 The court
should alter or amend its judgment where the court has misapprehended the facts, the parties’
positions, or the controlling law.11 “A motion to reconsider is not a second chance for the losing
party to make its strongest case or to dress up arguments that previously failed.”12 Such motions
5 Id.
6 See Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007).
7 See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988).
8 See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).
9 Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir. 2005) (citation omitted) (internal quotation marks omitted).
10 Voelkel v. General Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan. 1994) (citing Comm. for the First
Amend. v. Campbell, 962 F.2d 1517, 1523 (10th Cir. 1992)).
11 Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009) (internal quotation
marks omitted) (citation omitted).
12 Voelkel, 846 F. Supp. at 1483.
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are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear
new arguments or supporting facts that could have been presented originally.13
III. Analysis
Allen contends that the Court should reconsider its decision not to dismiss Plaintiff’s
§ 1983 claim for three reasons. First, he contends that the Court misapprehended the facts as to
Plaintiff’s knowledge of Allen’s identity as an HPD officer. Second, he argues that he was not
acting under color of state law. Finally, he asserts that he has already agreed to pay restitution to
Plaintiff. The Court will address each argument in turn.
A critical fact in the Court’s denial of Allen’s motion to dismiss was that Plaintiff was
unaware of Allen’s identity as an HPD officer until the Fall of 2022. Allen disputes this fact.
Instead, he argues that Plaintiff knew his identity as a police officer on the night in question,
pointing to Plaintiff’s initial impression that Allen was in fact a police officer when he told her to
exit the car. Ultimately, however, her Complaint alleges that “Prior to [Fall 2022], Plaintiff was
unaware of the identity of her assailant and that her assailant was, at the time of the assault, a law
enforcement officer with the [HPD].”14 At the motion to dismiss phase, the Court must accept as
true the allegations in the Complaint.15 Accordingly, even though Allen may disagree with
Plaintiff’s allegation, the Court did not misapprehend the factual allegations supporting Plaintiff’s
Complaint.
Next, Allen argues that he was not acting under color of state law when he sexually
assaulted Plaintiff. Rather, he contends that because he was acting as a “regular citizen,” he cannot
13 See Van Skiver, 952 F.2d at 1243.
14 Doc. 1 at 9.
15 Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
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be subject to liability under § 1983. But Plaintiff alleges that Allen was an HPD officer acting in
the course and scope of his employment when he assaulted Plaintiff. As before, the Court must
consider these allegations true at this stage of the suit. Accordingly, Plaintiff has pled facts
sufficient to support an inference that Allen was acting under color of state law.
Finally, Allen asserts that he has already agreed to pay restitution to Plaintiff. He mentioned
the restitution payments in an earlier correspondence with the Court and now explains:
[Allen] already agreed to pay restitution for drug and alcohol treatment that the
plaintiff claims was a result of the interaction between the plaintiff and [Allen].
[Allen] did not argue against this even though it would have been difficult to prove
that the plaintiff[’]s drug and alcohol abuse was initiated by [Allen’s] action and
not as a result of recreational use by the plaintiff.16
Even had Allen provided this additional explanation in his motion to dismiss, it would not have
served as a basis to dismiss Plaintiff’s § 1983 claim. Presented in his Motion to Reconsider, this
information does not constitute newly discovered evidence, nor does it cause the Court to conclude
that it must act to correct a manifest error of law or fact in its prior order.
In sum, none of Allen’s arguments cause this Court to conclude that Plaintiff’s § 1983
claim against Allen should be dismissed.
IT IS THEREFORE ORDERED that Defendant Allen’s Motion for Reconsideration
(Doc. 46) is DENIED.
IT IS SO ORDERED.
Dated this 24th day of February, 2026.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
16 Doc. 46 at 4.
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