Anderson v. Willis et al
Filing
35
MEMORANDUM AND ORDER granting in part and denying in part 27 Motion for Summary Judgment. The motion is granted as to al claims against defendant Wilson and defendant City. The motin is granted as to the claims of excessive force against defendant Bush. Otherwise, the motion is denied. Signed by District Judge Richard D. Rogers on 1/4/2013. (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JASON M. ANDERSON,
Plaintiff,
v.
JON C. “CHRIS” WILLIS, ADAM BUSH,
MIKE WILSON AND CITY OF
ATCHISON, KANSAS
Defendants.
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Case No. 11-2484-RDR
MEMORANDUM AND ORDER
This is an action brought pursuant to 42 U.S.C. § 1983
alleging
a
violation
against
unreasonable
of
plaintiff’s
detention
and
Fourth
Amendment
excessive
force
right
while
plaintiff was working as a private process server attempting to
serve process upon the wife of an off-duty City of Atchison,
Kansas police officer at her home.
following defendants in this case:
Plaintiff has named the
the City of Atchison; Mike
Wilson, the Chief of Police for the City of Atchison; Jon C.
“Chris” Willis, the off-duty police officer; and Adam Bush, an
Atchison police officer who was called by Willis to the scene.
This
case
is
before
summary judgment.
I.
the
court
upon
defendants’
motion
for
Doc. No. 27.
Standards for summary judgment
Summary judgment is warranted if the materials on record
show that there is “no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.”
the
FED.CIV.P. 56(a).
light
most
The court views “all of the facts in
favorable
to
the
non-movant
and
reasonable
inferences from the record must be drawn in favor of the nonmoving party.”
2007).
Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir.
From this viewpoint, the court attempts to determine
whether a reasonable jury could return a verdict in favor of the
non-moving party.
Bones v. Honeywell Int’l, Inc., 366 F.3d 869,
875 (10th Cir. 2004).
“While we view the record in the light
most favorable to the non-moving party, that party must still
identify sufficient evidence requiring submission to the jury to
survive summary judgment.”
Piercy, 480 F.3d at 1197.
In other
words, the court may consider evidence produced by the moving
party as well as the absence of admissible evidence in favor of
an essential element of the non-moving party’s claim.
Adams v.
Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).
II.
Uncontroverted facts
The
following
uncontroverted
only
factual
for
the
recitation
purposes
shall
of
the
be
treated
current
as
motion
before the court.
On April 1, 2011, at approximately 6:00 p.m., plaintiff
arrived at the home of defendant Willis in Atchison, Kansas.
Plaintiff was there to serve civil process upon Rusty Willis,
the wife of defendant Willis.
She was not home at that time.
2
The civil process was related to a civil case filed in Johnson
County state court in which Rusty Willis was a defendant.
She
was also the resident agent for another defendant in that case.
Plaintiff was dressed in a Polo shirt and blue jeans.
He
was carrying a FedEx delivery envelope with him, but he did not
tell defendant Willis that he was a FedEx delivery employee or
that he was there to serve Rusty Willis with civil process.
He
only said that he needed to make a personal delivery and asked
when Willis’ wife would be home.
Defendant Willis said that his
wife would be home in about thirty minutes and asked if he could
sign for whatever plaintiff was delivering.
Plaintiff said that
the delivery required Rusty Willis’ personal signature and said
that he would come back later.
Plaintiff
returned
to
his
vehicle
and
was
filling
out
paperwork when defendant Willis approached and again asked what
he was delivering.
Plaintiff responded that it was for Rusty
Willis and that she would have to sign for it. Plaintiff drove
away and attempted to serve process upon Sharon Baldridge (a
relative of Rusty Willis) who was a defendant in the same case.
She also was not home.
Plaintiff returned to the Willis home
sometime between 6:41 p.m. and 6:49 p.m. to again attempt to
serve process upon Rusty Willis.
Defendant
Willis
answered
the
door.
He
was
on
the
telephone to defendant Bush and requested Bush to come to the
3
Willis
home.
plaintiff
Defendant
was
not
identification.
a
Willis
FedEx
told
plaintiff
delivery
person
that
he
knew
and
demanded
Plaintiff refused to provide defendant Willis
with identification.
Willis told plaintiff for the first time
that he was an off-duty police officer.
He further stated that
officers were on the way and that plaintiff was not leaving
until
the
police
arrived
and
he
was
positively
identified.
Plaintiff asked for defendant Willis to show identification, but
Willis refused.
Plaintiff asked why he was being detained.
Defendant Willis said that he wanted plaintiff’s “information
ran.”
In
a
statement
made
after
the
events
in
question,
defendant Willis stated that he was not going to let plaintiff
leave until plaintiff could be positively identified and his
purpose ascertained.
About this time, plaintiff noticed that defendant Willis
was becoming irate and he backed onto the lawn of the Willis
house.
Plaintiff began to explain that he was not a FedEx
delivery person and that he was there to serve civil process on
Rusty Willis, which he attempted to show to defendant Willis.
Defendant
Willis
plaintiff
based
told
on
his
plaintiff
actions
that
and
he
that
could
not
plaintiff
trust
was
not
leaving until he showed identification and proof of his actions
to the police.
Plaintiff noticed that defendant Willis was
holding a Glock semi-automatic pistol, which was his service
4
weapon for the Atchison Police Department.
Defendant Willis
directed several profanities at plaintiff and told him that he
had better pray to God that he didn’t have any warrants.
Then, defendant Bush arrived in uniform and on duty.
defendant
Bush
arrived,
plaintiff
told
defendant
When
Bush
that
plaintiff was armed with a firearm for which he had a concealed
carry permit.
firearm.
By
identification
check.
Defendant Bush took possession of plaintiff’s
6:55
and
p.m.,
defendant
contacted
Bush
dispatch
for
secured
a
plaintiff’s
driver’s
license
Defendant Willis became extremely irate at plaintiff for
bringing a firearm onto his property.
He went into his house
and returned again holding and waving his gun.
He stated that
he would or should kick plaintiff’s ass and that plaintiff was
lucky that he didn’t give plaintiff a “beat down,” indicating
that he had done it before to others as defendant Bush could
attest.
Defendant Bush nodded “yes.”
he
defendant
told
Bush
on
multiple
Plaintiff testified that
occasions
that
wanted to leave, but he was not allowed to leave.
Willis
told
him
that
he
couldn’t
leave.
plaintiff
Defendant
According
to
statement written by defendant Willis:
[Plaintiff] said that he was not looking for any
trouble that he was trying to leave but I wouldn’t let
him.
I told him no, that he couldn’t leave.
I
explained to him that he was running around with a
deadly weapon stalking an elementary school teacher
[Rusty Willis] and being purposefully deceptive [- -]
that he couldn’t leave because I am a lot better at my
5
a
job than he is at his.
I was not going to let him
leave until we had him positively identified and made
sure he was not a threat.
Doc. No. 28-3 at p. 7.
The
background
check
came
back
clean
at
7:02
defendant Bush asked what plaintiff’s purpose was.
p.m.
and
Plaintiff
said that he was there to serve process and showed defendant
Bush the court documents.
Defendant Bush said that “around
here, the sheriff’s department does all the service.”
Defendant
Bush retained plaintiff’s identification and plaintiff’s gun.
He
entered
Willis.
the
When
Willis
home
defendant
and
Bush
spoke
came
there
back
with
outside,
defendant
he
told
plaintiff that they could not reach Rusty Willis so plaintiff
should leave.
Defendant Willis told plaintiff that plaintiff or
process servers working for plaintiff’s company were not allowed
on defendant’s property and that any service had to be done
through the sheriff’s department.
At this point, Rusty Willis
arrived and plaintiff was able to serve her with both sets of
documents
at
7:21
p.m.
Sharon
Baldridge
also
plaintiff served her with process at 7:28 p.m.
arrived
and
After Baldridge
was served with process, defendant Bush escorted plaintiff to
his car, returned his gun to him and he was allowed to leave.
Defendant Wilson, the Chief of Police for Atchison, told
plaintiff’s employer, Kyle Jones, that he had determined after a
“full investigation” that defendants Willis and Bush had done
6
nothing
wrong.
Defendant
about what happened.
behalf
of
the
City
Wilson
never
spoke
with
plaintiff
Defendant Wilson filed a complaint on
of
Atchison
with
the
Kansas
Bureau
of
Investigation regarding plaintiff’s conduct during the abovedescribed
events.
The
Kansas
Attorney
General’s
Office
responded to the complaint and found no grounds upon which to
take any action.
There is no dispute that plaintiff and his employer were
legally engaged in the service of process in this matter.
III.
A material issue of fact remains as to whether defendant
Willis acted under color of state law.
The first argument in the motion for summary judgment is
that plaintiff cannot demonstrate that defendant Willis acted
under color of state law as required for liability under 42
U.S.C.
§
1983,
and
therefore
plaintiff’s
§
1983
claims
of
wrongful detention and excessive force must be dismissed as to
defendant Willis.
According
to
the
Tenth
Circuit,
“[t]he
traditional
definition of acting under color of state law requires that the
defendant in a § 1983 action have exercised power possessed by
virtue of state law and made possible only because the wrongdoer
is clothed with the authority of state law.”
Jojola v. Chavez,
55 F.3d 488, 492-3 (10th Cir. 1995)(interior quotations omitted).
The state authority which allegedly “clothes” the actions of a
7
wrongdoer in a § 1983 action may be actual or apparent.
493.
Id. at
There must be a real nexus between the use or misuse of
public authority and the violation allegedly committed by the
defendant.
Id.
Plaintiff
proving this nexus.
The
motion
has
the
burden
of
pleading
and
Id. at 494.
for
summary
judgment
argues
that
plaintiff
cannot carry this burden as to defendant Willis when one views
the facts agreed to for the purposes of the motion.
Defendant
Willis was not in uniform and told plaintiff that he was offduty.
He did not display his badge.
He was standing in or near
his home during the events in question.
Plaintiff’s business at
the Willis home directly involved defendant Willis’ wife, not
defendant Willis.
Nevertheless, defendant Willis was obviously
acting out of personal interest, not attempting to intervene in
a dispute involving third parties or to enforce the law outside
his property.
did
not
In addition, the motion contends that plaintiff
perceive
authority
because
defendant
he
waited
Willis
to
as
acting
inform
anyone
with
that
police
he
was
carrying a concealed firearm until defendant Bush arrived on the
scene.
service
On
the
revolver.
other
He
hand,
told
officer, albeit off duty.
house.
defendant
plaintiff
Willis
that
he
brandished
was
a
his
police
He summoned a fellow officer to his
He arguably implied that the other officer would stand
aside if he assaulted plaintiff.
8
More importantly, on or about
the
time
that
he
brandished
plaintiff
that
he
was
Willis
told
plaintiff
identification was run.
an
his
weapon
off-duty
he
and
police
could
not
after
officer,
leave
he
told
defendant
until
his
This is the kind of command and conduct
which is related to the duties of a police officer.
Given the facts before the court at this time, the court
believes that a reasonable jury could decide that there was a
genuine nexus between defendant Willis’ real and apparent police
authority and Willis’ alleged illegal detention of plaintiff and
alleged
excessive
force
against
Callan, 13 F.3d 545, 548 (2nd
plaintiff.
See
Pitchell
v.
Cir. 1994)(courts look to the
nature of the officer’s act, not simply his duty status); see
also,
Swiecicki
v.
Delgado,
463
F.3d
489,
(6th
496
Cir.
2006)(nature of the act, rather than clothing of the officer,
informs state-actor analysis); U.S. v. Tarpley, 945 F.2d 806,
809 (5th Cir. 1991) cert. denied, 504 U.S. 917 (1992)(actions
committed for purely personal reasons do not necessarily fall
outside color of state law); Huffman v. County of Los Angeles,
147 F.3d 1054, 1058 (9th Cir. 1998) cert. denied, 526 U.S. 1038
(1999)(same); Coles v. City of Chicago, 361 F.Supp.2d 740, 748
(N.D.Ill.
2005)(the
essential
inquiry
is
whether
the
police
officer’s actions related in some way to the performance of a
police
duty).
This
issue
involves
9
a
“highly
fact
specific
inquiry.” Coles, 361 F.Supp.2d at 747.
The record before the
court is not compatible with summary judgment on the question.
IV.
Material issues of fact prevent this court from finding
that defendants Willis and Bush are entitled to qualified
immunity against plaintiff’s claims of illegal detention.
Qualified
immunity
protects
public
officials
performing
discretionary functions unless their conduct violates “clearly
established
statutory
or
constitutional
reasonable person would have known.”
U.S. 800, 818 (1982).
rights
of
which
a
Harlow v. Fitzgerald, 457
Qualified immunity leaves “ample room for
mistaken judgments,” protecting “all but the plainly incompetent
or those who knowingly violate the law.”
U.S. 335, 341 & 343 (1986).
Malley v. Briggs, 475
Upon a summary judgment motion,
when a qualified immunity defense has been raised, the plaintiff
must
demonstrate
that
the
defendant’s
actions
violated
a
constitutional or statutory right and the plaintiff must show
that
the
constitutional
or
statutory
rights
the
defendant
allegedly violated were clearly established at the time of the
conduct at issue and under the circumstances in question. See
Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011)
cert. denied, 133 S.Ct. 211 (2012).
showing
then
the
burden
shifts
If plaintiff makes this
back
to
the
defendant
to
demonstrate that there are no genuine issues of material fact
and that he or she is entitled to judgment as a matter of law.
Id.
10
In this case, plaintiff is asserting the right to be free
from unlawful detention.
“The Fourth Amendment protects the
public
searches
from
unreasonable
and
seizures,
unreasonable investigatory stops or detentions.”
including
U.S. v. Jones,
2012 WL 6582319 *9 (10th Cir. 12/18/2012)(interior quotations and
citations omitted).
An investigative stop or detention requires
that a law enforcement officer, based upon the totality of the
circumstances, “’have a particularized and objective basis for
suspecting the particular person stopped of criminal activity.’”
Id. (quoting U.S. v. Villagrana-Flores, 467 F.3d 1269, 1273 (10th
Cir. 2006)).
detaining
reasonable
Courts ask “whether the facts available to the
officers,
at
caution
in
appropriate.”
the
time,
believing
warranted
the
an
action
officer
of
taken
was
Id. at * 12 (interior quotations omitted).
The
Tenth Circuit has stated that:
[n]either inarticulate hunches nor unparticularized
suspicion will suffice to justify an investigatory
detention. However, in determining the reasonableness
of an investigative detention, common sense and
ordinary human experience must govern over rigid
criteria.
The Fourth Amendment does not require
police officers to close their eyes to suspicious
circumstances.
Gallegos v. City of Colo. Springs, 114 F.3d 1024, 1028, (10th
Cir. 1997)(citations and quotations omitted).
facts
and
the
law,
courts
ask
whether
there
In reviewing the
was
reasonable suspicion for an investigative detention.
11
“arguable”
If there
was,
then
the
defendant
is
entitled
to
qualified
immunity.
Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012).
Defendant
Willis
contends
that
he
had
an
arguable
reasonable suspicion that plaintiff was stalking his wife in
violation of K.S.A. 21-3438.
This statute, which was repealed
and replaced after the events of this case, provided that the
crime of “stalking” encompassed:
Intentionally or recklessly engaging in a course of
conduct targeted at a specific person which would
cause a reasonable person in the circumstances of the
targeted person to fear for such person’s safety, or
the safety of a member of such person’s immediate
family and the target person is actually placed in
such fear; . . .
“Course of conduct” means two or more acts over a
period of time, however short, which evidence a
continuity of purpose. A course of conduct shall not
include
constitutionally
protected
activity
nor
conduct that was necessary to accomplish a legitimate
purpose independent of making contact with the
targeted person.
K.S.A. 2009 Supp. 21-3438(a)(1) & (f)(1).
Defendant Willis asserts that he had a reasonable suspicion
that
plaintiff
was
stalking
his
wife
because
plaintiff
“purported” to be a FedEx deliveryman while other circumstances
suggested this was just a masquerade.
He also argues that,
after the first encounter with plaintiff concluded and plaintiff
returned to his car, defendant Willis found plaintiff “hiding at
a location” away from the house “staking out” defendant’s house.
12
Finally, defendant Willis contends that plaintiff was nervous
and evasive.
Although the parties in this case have agreed upon many
facts for the purposes of this motion, the court believes there
is a material issue of fact as to whether a reasonable person in
defendant Willis’ position would have concluded that plaintiff
purported to be a FedEx deliveryman or that plaintiff was hiding
in
his
car
while
“staking
out”
plaintiff was nervous and evasive.
the
Willis
house
or
that
Upon the record before us,
we conclude that material issues of fact preclude the court from
concluding
that
defendant
Willis
had
arguable
reasonable
suspicion that plaintiff was stalking his wife in violation of
Kansas law.
Defendant Bush asserts that he is entitled to qualified
immunity because he was relying upon information conveyed by
defendant Willis.
The fact record before the court, however,
does not indicate what this information was.
In addition, there
is a material fact issue as to when plaintiff was free to leave
and whether plaintiff was allowed to leave after the driver’s
license check was clean.
Therefore, the court cannot find that
defendant Bush is entitled to qualified immunity merely because
he was responding to defendant Willis’ call.
Defendant
Bush
also
contends
that
he
had
the
authority
under the law, K.S.A. 75-7c03, to perform a records check upon
13
any person who carried a concealed handgun in defendant Bush’s
presence.
Plaintiff does not respond to this contention and it
appears valid to the court.
fact
as
to
whether
But, there is a material issue of
plaintiff
was
identification check came back clean.
detained
after
the
Accordingly, defendant
Bush’s valid exercise of authority under K.S.A. 75-7c03 does not
immunize him from possible liability upon the facts currently
before the court.
Defendant Bush asserts that plaintiff did not
object to remaining in Willis’ yard and never told defendant
Bush that plaintiff no longer was interested in serving process
upon Willis’ wife.
Plaintiff claims, however, that he told
defendant Bush that he wanted to leave, but that Bush maintained
possession of plaintiff’s handgun and/or identification.
Thus,
there is a material issue of fact as to whether the plaintiff’s
investigative detention ever became a consensual encounter.
In summary, the court finds that material issues of fact
prevent the court from finding qualified immunity on behalf of
either defendant Willis or defendant Bush.
This finding further
precludes the court from granting summary judgment in favor of
defendants
based
on
their
claim
that
there
was
reasonable
suspicion to detain plaintiff for investigation.
V. Summary judgment shall be denied as to the excessive force
claim against defendant Willis, but granted as to defendant
Bush.
14
Defendants Willis and Bush contend that excessive force was
not
used
against
plaintiff
qualified
that
against
any
claim
immunity
Excessive
and
force
is
determined
they
of
under
are
entitled
excessive
an
to
force.
“objective
reasonableness” standard from the perspective of a reasonable
officer
on
hindsight.
the
scene,
rather
than
with
the
20/20
vision
of
Graham v. Connor, 490 U.S. 386, 396 (1989); Cordova
v. Aragon, 569 F.3d 1183, 1188 (10th Cir. 2009) cert. denied, 130
s.Ct. 1146 (2010).
The totality of circumstances is examined
including the following factors:
“’the severity of the crime at
issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively
resisting
arrest
or
attempting
to
evade
arrest
by
flight.’”
Weigel v. Broad, 544 F.3d 1143, 1151-52 (10th Cir. 2008)(quoting
Graham, 490 U.S. at 396)).
Measuring the reasonableness of
force is generally a fact issue for the jury.
Buck v. City of
Albuquerque, 549 F.3d 1269, 1288 (10th Cir. 2008).
As for the
brandishing of firearms, the Tenth Circuit has stated:
The display of weapons, and the pointing of firearms
directly at persons inescapably involves the immediate
threat of deadly force.
Such a show of force should
be predicated on at least a perceived risk of injury
or danger to the officers or others, based upon what
the officers know at that time.
Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1192
(10th Cir. 2001) cert. denied, 535 U.S. 1056 (2002).
15
The Ninth
Circuit stated in Washington v. Lambert, 98 F.3d 1181, 1187 (9th
Cir. 1996):
“Under ordinary circumstances, when the police have
only reasonable suspicion to make an investigatory stop, drawing
weapons and using handcuffs and other restraints will violate
the Fourth Amendment.”
The
fact
situations
in
Holland
and
Washington
involved
pointing firearms at adults and children, not just brandishing a
firearm.
The use of force in this case does not appear as
severe.
Nevertheless,
the
record
upon
summary
judgment
indicates that defendant Willis waved his firearm and cursed at
plaintiff while plaintiff was unarmed and compliant.
Defendant
Willis also implied that he should or would physically assault
plaintiff.
This occurred when there was another police officer
present to mitigate whatever threat might be posed by plaintiff.
Under these circumstances, the court finds that summary judgment
is
not
warranted
against
against defendant Willis.
plaintiff’s
excessive
force
claim
A reasonable jury could find that
defendant Willis violated clearly established law prohibiting
the use of excessive force.
See Smith v. Wampler, 108 Fed.Appx.
560, 565 (10th Cir. 2004)(physically threatening to strike an
arrestee with a pistol while directing racial epithets at the
arrestee, who was handcuffed on the floor and making no attempt
to resist, constituted excessive force although this was not
clearly established in 1994 when the incident took place).
16
Defendants, citing Cortez v. McCauley, 478 F.3d 1108 (10th
Cir. 2007), suggest that plaintiff’s excessive force must be
dismissed because there is no evidence that plaintiff suffered a
physical
or
standard.
emotional
injury
which
exceeded
a
de
minimis
The Cortez decision involved two plaintiffs, one who
was handcuffed allegedly too tightly and one who was taken from
her home by the arm and placed in the locked back seat of a
patrol
car
while
her
home
was
searched.
The
Tenth
Circuit
suggested in connection with the handcuffed plaintiff that there
was too little evidence of actual injury to support an excessive
force
claim
justified.”
“if
the
use
of
the
handcuffs
was
478 F.3d at 1129 (emphasis supplied).
otherwise
It was in
this context that the court stated that “a claim of excessive
force requires some actual injury that is not de minimis, be it
physical or emotional.”
Id.
As for the plaintiff who was
placed in the locked patrol car, the Tenth Circuit held that
“[p]hysical contact is not required for an excessive force claim
-
-
patently
unreasonable
conduct
is.”
Id.
at
1131.
Considering such interests as personal security and individual
dignity, the court decided there was evidence of an invasion of
that
plaintiff’s
“personal
considered de minimis.
security”
Id. at 1132.
that
could
hardly
be
Therefore, an excessive
force claim by the plaintiff who was placed in the patrol car
17
was
permitted
to
go
forward
despite
a
claim
of
qualified
immunity.
In the case at bar, plaintiff has made sworn statements
that he was fearful and concerned for his safety during his
encounter with defendants.
71.
Plaintiff’s deposition, pp. 62 and
A reasonable jury on the record before the court could
conclude:
that
defendant
Willis’
conduct
was
patently
unreasonable, that it had more than a de minimis impact upon
plaintiff’s sense of personal security; and that, in spite of
the absence of actual physical injury, defendant Willis applied
excessive force during the events in question.
As for defendant Bush, plaintiff opposes summary judgment
on
the
grounds
that
defendants
Willis
and
Bush
“taunted
[plaintiff] about the numerous ‘beat downs’ they administer.”
Doc. No. 31, p. 34.
The factual record before the court does
not support a claim that defendant Bush engaged in taunting,
only that he nodded his head “yes” when defendant Willis said
that Willis had assaulted people before.
Doc. No. 31, ¶ 72.
A
reasonable jury would not find that the record supports a claim
of excessive force against defendant Bush and the court further
finds
that
defendant
Bush
would
be
entitled
to
qualified
immunity against any such claim.
VI.
Summary judgment shall be granted in favor of defendant
Wilson and the City of Atchison because there is no causal link
18
between
these
injuries.
defendants
and
the
alleged
constitutional
Defendant Wilson and defendant City contend, and plaintiff
appears to agree, that neither defendant can be liable merely
because of a supervisory or employer/employee relationship with
defendants
Willis
and
Bush.
See
Monell
v.
Dep’t
of
Social
Servs., 436 U.S. 658, 694 (1978); Dodds v. Richardson, 614 F.3d
1185,
1194-95
(2011).
there
(10th
Cir.
2010)
cert.denied,
131
S.Ct.
2150
Defendant Wilson and defendant City further argue that
is
an
injuries.
of
caused
affirmatively
absence
evidence
plaintiff’s
that
either
claimed
defendant
constitutional
In response, plaintiff asserts that these defendants
are subject to liability because they ratified the actions of
defendants Willis and Bush when they filed a complaint regarding
plaintiff’s
behavior
with
the
Kansas
Attorney
General
and
supported the complaint with statements from defendants Willis
and Bush.
Plaintiff further claims that defendant Wilson and
defendant City ratified the alleged unconstitutional actions of
Willis and Bush when defendant Wilson supported the officers and
profanely rebuffed an inquiry by plaintiff’s employer sometime
after the incident in question.
Plaintiff’s
response
fails
to
establish
an
affirmative
causal link between the alleged acts of ratification and the
alleged unconstitutional conduct.
19
Such a link is required for
liability.
See Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th
Cir. 2008); Hinton v. City of Elwood, 997 F.2d 774, 782 (10th
Cir. 1993).
Because defendant Wilson and defendant City are not
alleged to have caused plaintiff’s constitutional injuries by
any action taken before or after the events on April 1, 2011,
plaintiff cannot sue defendant Wilson and defendant City under §
1983.
See Dempsey v. City of Baldwin, 143 Fed.Appx. 976, 986
(10th Cir. 2005)(ratification must be the cause of the alleged
violation); Riggs v. City of Wichita, 2011 WL 2970828 *6 (D.Kan.
7/21/2011)(citing Dempsey and other cases for the same rule).
Plaintiff does not assert another viable grounds for liability
against defendant Wilson and defendant City.
Accordingly, the
court shall grant summary judgment in favor of these defendants.
VII.
Summary judgment shall be denied as to
damages claims against defendants Willis and Bush.
the
punitive
Defendants argue that summary judgment should be granted
against plaintiff’s claims for punitive damages.
Because the
court shall grant summary judgment in favor of defendant Wilson
and defendant City as to all claims, the court only considers
the position of defendants Willis and Bush.
In § 1983 cases, “[p]unitive damages are available only for
conduct
which
is
‘shown
to
be
motivated
by
evil
motive
or
intent, or when it involves reckless or callous indifference to
the federally protected rights of others.’”
20
Searles v. Van
Bebber, 251 F.3d 869, 879 (10th Cir. 2001)(quoting Smith v. Wade,
461 U.S. 30, 56 (1983)).
The court shall not grant summary
judgment against the punitive damages claims against defendants
Willis
and
Bush
credibility
which
defendants
were
because
have
a
there
bearing
recklessly
constitutional rights.
are
on
questions
the
indifferent
of
issue
to
fact
of
and
whether
plaintiff’s
For instance, the court does not know
what defendant Willis told defendant Bush before and after Bush
arrived at the Willis’ home.
It is also unclear when and how
plaintiff communicated his desire to leave the Willis’ address,
and
when
consensual.
and
if
his
encounter
with
the
defendants
became
In addition, the length of time and manner in which
defendant Willis brandished his weapon is not clear.
VIII.
Conclusion
The motion for summary judgment (Doc. No. 27) shall be
granted in part and denied in part.
The motion is granted as to
all claims against defendant Wilson and defendant City.
The
motion is granted as to the claims of excessive force against
defendant Bush.
Otherwise, the motion is denied.
IT IS SO ORDERED.
Dated this 4th day of January, 2013 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
21
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