Yadon v. Council Grove, City of et al
Filing
71
MEMORANDUM AND ORDER granting 52 Motion for Summary Judgment; denying 63 Motion for Discovery; denying 64 Motion for Discovery. Signed by District Judge Richard D. Rogers on 1/14/2013. (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GLEN DALE YADON,
)
)
)
)
)
)
)
)
)
)
_
Plaintiff,
v.
CHRIS HILTON, JASON BACON,
and SHAWN WANGERIN,
Defendants.
Case No. 11-4164-RDR
MEMORANDUM AND ORDER
This
alleging
is
a
that
pro
se
action
defendants,
pursuant
three
to
police
42
U.S.C.
officers,
§
1983
violated
plaintiff’s constitutional right against unreasonable seizure by
employing
conduct.
excessive
force
during
motions for discovery.
the
defendants
and,
arrest
for
disorderly
This case is before the court upon defendants’ motion
for summary judgment. Doc. No. 52.
below,
an
court
therefore,
sustained.
Doc. Nos. 63 and 64.
finds
violated
the
Plaintiff has also filed
that
clearly
motion
plaintiff
established
for
cannot
As explained
prove
constitutional
summary
judgment
that
rights
must
be
In addition, although plaintiff has not responded to
defendants’ argument that plaintiff has failed to properly serve
defendants with legal process, the court shall not decide that
argument.
Finally, plaintiff’s motions for discovery shall be
denied as immaterial and untimely.
I.
Standards for pro se pleadings
“A
pro
se
litigant’s
pleadings
are
to
be
construed
liberally and held to a less stringent standard than formal
pleadings drafted by lawyers.”
1110
(10th
Cir.
1991).
Hall v. Bellmon, 935 F.2d 1106,
However,
the
Tenth
Circuit
has
“repeatedly insisted that pro se parties follow the same rules
of procedure that govern other litigants.”
Garrett v. Selby
Connor
840
Maddux
&
Janer,
2005)(quotation omitted).
425
F.3d
836,
(10th
Cir.
In this regard, the court notes that
the Local Rules of this court for motions for summary judgment
require that:
(b) Opposing Memorandum
(1) A memorandum in opposition to a motion for summary
judgment must begin with a section containing a
concise statement of material facts as to which the
party contends a genuine issue exists.
Each fact in
dispute must be numbered by paragraph, refer with
particularity to those portions of the record upon
which the opposing party relies, and, if applicable,
state the number of movant’s fact that is disputed.
(2) If the party opposing summary judgment relies on
any facts not contained in movant’s memorandum, that
party must set forth each additional fact in a
separately numbered paragraph, supported by references
to the record, in the manner required by subsection
(a), above.
All material facts set forth in this
statement of the non-moving party will be deemed
admitted for the purpose of summary judgment unless
specifically controverted by the reply of the moving
party.
. . . .
(d) Presentation of Factual Material
All facts on which a motion or opposition is based
must be presented by affidavit, declaration under
penalty of perjury, and/or relevant portions of
2
pleadings, depositions, answers to interrogatories,
and responses to requests for admissions.
Affidavits
or declarations must be made on personal knowledge and
by a person competent to testify to the facts stated
that are admissible in evidence. Where facts referred
to in an affidavit or declaration are contained in
another document, such as a deposition, interrogatory
answer, or admission, a copy of the relevant excerpt
from the document must be attached.
Local Rule 56.1(b).
Plaintiff has not submitted an opposing
memorandum or presented factual material in compliance with this
Local Rule.
the
Nevertheless, the court has examined and analyzed
pleadings
and
materials
plaintiff
has
submitted
and
attempted to give them a fair construction.
II.
Summary judgment standards
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
favorable
The court views “all of the facts in
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
3
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).
III.
Uncontroverted facts
The following factual recitation is taken mostly from a
list of facts contained in defendants’ motion.
Plaintiff has
either not responded in opposition to these facts or has failed
to oppose the facts with citation to any competent authority to
support his opposition.
Each defendant is a police officer for the City of Council
Grove, Kansas.
On May 8, 2010, defendants responded to a non-
injury accident at 123 North 10th
Grove.
Street in or near Council
The accident involved a person who backed her vehicle
into another vehicle parked illegally at that location.
The
officers found that three vehicles were parked facing the wrong
direction and requested that the owners of the vehicles move
their vehicles to be legally parked.
vehicle owners.
Plaintiff was one of the
While defendants were working the accident and
asking for the vehicles to be moved, plaintiff several times
yelled
and
Plaintiff
accident
flailed
was
was
his
arms
apparently
in
the
in
the
disturbed
jurisdiction
4
vicinity
because
of
Morris
of
he
defendants.
thought
County,
the
Kansas
authorities and not in the jurisdiction of the Council Grove
police
department.
disruptive
The
fashion,
last
defendant
time
plaintiff
Wangerin
told
acted
in
plaintiff
he
a
was
under arrest for disorderly conduct and directed plaintiff to
put
his
hands
behind
his
back.
Plaintiff
defendants and hurried to his van.
turned
away
from
Defendant Wangerin yelled at
plaintiff to stop, but plaintiff tried to get into his van.
Defendant
Wangerin
then
grabbed
plaintiff’s
arm
(or
neck,
according to plaintiff) and tried to pull him away from the van.
Plaintiff yelled loudly and swung his arms around.
He struggled
for several minutes before being handcuffed.
During this time,
defendant
plaintiff’s
Bacon
put
his
elbow
underneath
shoulder and the two of them went to the ground.
right
Defendants
Wangerin and Bacon attempted to hold plaintiff on the ground
while defendant Hilton tried to handcuff plaintiff.
pulled
his
arm
handcuffed.
away
several
During
this
times
process,
before
he
plaintiff
Plaintiff
was
finally
continued
to
struggle and then began to complain that he could not breathe.
Plaintiff
was
arrested
for
disorderly
conduct
and
ultimately entered a diversion agreement to resolve charges of
disorderly conduct and obstructing legal duty.
disorderly
conduct
was
a
class
C
misdemeanor
In May 2010,
in
obstructing legal duty was a class A misdemeanor.
Kansas
and
K.S.A. 21-
4101, K.S.A. 21-3808 (2007)(repealed and replaced on July 1,
5
2011).
As part of the diversion agreement, plaintiff agreed
that if the diversion agreement was revoked by the court, he
would
admit
to
the
contents
of
the
State’s
complaint
and
accompanying reports, and that the trial could proceed to the
court upon those stipulated facts.
Plaintiff
was
examined
by
a
doctor
not
long
after
plaintiff’s arrest.
The doctor found contusions and abrasions
on
and
plaintiff’s
face
arms,
and
a
sprained
right
elbow.
Pictures submitted as part of the record show a substantially
swollen elbow and the abrasions noted by the doctor.
after the incident, plaintiff had his ribs x-rayed.
showed two nondisplaced rib fractures.
Two days
The x-rays
Plaintiff is 6’1” or
6’2” and weighed 194 pounds on May 8, 2010.
Plaintiff testified in a deposition that he was grabbed by
the
neck
deposition.
and
“choked
out.”
Doc.
No.
53-2,
pp.
39-40
of
He has little recollection after that, although he
remembers gasping for air twice and awaking handcuffed, with
defendant Hilton on his back.
He
has
no
recollection
of
Id. at pp. 40-41 of deposition.
being
hit.
Id.
at
p.
52
of
deposition.
IV.
Defendants
liability.
Qualified
are
immunity
entitled
protects
to
qualified
public
immunity
officials
from
performing
discretionary functions unless their conduct violates “clearly
6
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
“The relevant, dispositive inquiry
in determining whether a right is clearly established is whether
it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.”
U.S. 194, 202 (2001).
Saucier v. Katz, 533
The question is not whether the right
against excessive force in general is clearly established, but
whether under the facts of the case plaintiff’s rights against
excessive force were clearly violated.
Morris v. Noe, 672 F.3d
1185, 1196 (10th Cir. 2012).
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).
If
plaintiff makes this showing then the burden shifts back to the
defendant to demonstrate that there are no genuine issues of
7
material fact and that he or she is entitled to judgment as a
matter of law.
Id.
“A qualified immunity defense will not
succeed [upon summary judgment] . . . when the facts considered
collectively
present
circumstances.”
an
incomplete
picture
of
the
relevant
Olsen v. Layton Hills Mall, 312 F.3d 1304, 1314
(10th Cir. 2002)(interior quotation omitted).
Excessive
force
is
determined
under
an
“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).
“[T]he
right
to
make
an
arrest
or
investigatory stop necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect
it.”
Graham, 490 U.S. at 396.
The totality of circumstances is
examined including the following factors taken from the Graham
case:
“’the severity of the crime at issue, whether the suspect
poses
an
others,
immediate
and
threat
whether
the
is
he
to
safety
actively
attempting to evade arrest by flight.’”
of
the
resisting
officers
or
arrest
or
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).
But, “’the mere fact that an injury
8
occurred
while
an
individual
was
in
police
custody
is
not
sufficient to avoid summary judgment – a plaintiff must identify
the
specific
injuries.’”
unreasonable
conduct
that
caused
his
or
her
Giannetti v. City of Stillwater, 216 Fed.Appx. 756,
766 (10th Cir. 2007)(quoting Abdullahi v. City of Madison, 423
F.3d 763, 770-71 (7th Cir. 2005)).
Examining
the
Graham
factors
here,
it
appears
that
plaintiff was being arrested for a class C misdemeanor, not a
serious crime.
posed
an
Second, there is no evidence that plaintiff
immediate
threat
to
the
safety
of
defendants
(who
outnumbered plaintiff) or others, except to the extent that he
was angry and flailed his arms.
resist
arrest.
justifies
modestly
the
So,
use
supports
of
the
the
Finally, plaintiff did actively
first
force.
use
of
Graham
The
factor
second
force.
only
Graham
And,
factor strongly supports the use of force.
the
slightly
factor
third
only
Graham
Where all three
factors support some use of force and the use of force in this
case (which plaintiff either cannot or has not described in any
detail) is not clearly egregious, the court is inclined to find
that
defendants’
conduct
did
not
violate
clearly
established
by
results
in
constitutional principles.
This
conclusion
other cases.
from
his
is
supported
the
several
First, with regard to forcibly removing plaintiff
van,
the
court
has
examined
9
the
following
cases:
Huntley
v.
City
of
Owasso,
2012
WL
4458342
(10th
*4
Cir.
9/27/2012)(arm bar maneuver used to remove a compliant domestic
violence suspect from house); Lawrence v. Bloomfield Township,
2008
WL
647163
*4-5
(6th
Cir.
3/7/2008)(grabbing
hair
and
dragging belligerent domestic violence suspect out of his home);
Meacham
v.
Frazier,
500
F.3d
1200,
1204-05
(10th
Cir.
2007)(pepper spray employed against woman stopped for speeding
and failing to wear a seat belt when she refused to cooperate
with officers and to exit the car over a 50-minute period of
time); Lawrence v. Kenosha County, 391 F.3d 837, 843 (7th Cir.
2004)(attempting to pull driver out of vehicle by the arm when
he angrily refused to produce driver’s license); Anderson v.
Antal, 1999 WL 717993 *4 (6th Cir. 9/7/1999)(grabbing arm and
forcibly removing female driver from car who had been stopped
for running a red light and had twice refused to get out of
car);
Ashbrook
v.
Boudinot,
2007
WL
4270658
*4-5
(S.D.Ohio
12/3/2007)(dragging DUI suspect out of car who had refused to
exit
and
had
been
slow
to
stop
in
response
to
sirens
and
lights); Swanson v. Fields, 814 F.Supp. 1007, 1017 (D.Kan. 1993)
aff’d, 1993 WL 537708 (10th Cir. 12/30/1993)(grabbing neck of
belligerent arrestee in order to handcuff and arrest him).
Second, with regard to forcibly taking plaintiff to the
ground, the court has examined the following cases:
*5
(leg
sweep
justified
by
suspect’s
10
resistance);
Huntley, at
Bozung
v.
Rawson, 2011 WL 4634215 *7 (6th Cir. 10/7/2011)(arm bar takedown
of intoxicated person suspected of a misdemeanor who did not
follow order to put his hands behind his back); Liiv v. City of
Coeur
D’Alene,
130
Fed.Appx.
848,
(9th
852
Cir.
4/20/2005)(throwing down video journalist for crossing barrier
tape in violation of city ordinance at Aryan Nations’ march);
Hinton
v.
City
of
Elwood,
997
F.2d
774,
(10th
781
Cir.
1993)(taking a person stopped for disturbing the peace to ground
after he shoved an officer – using stun gun on the person when
his resistance to arrest and handcuffing increased); Raymond v.
Dine, 2012 WL 4813520 *4 (D.Md. 10/9/12)(leg sweep of person,
arrested
for
disorderly
conduct
and
littering,
which
caused
hairline fracture of jaw); Mitchell v. City of Morristown, 2012
WL 2501102 *5-7 (E.D.Tenn. 6/28/2012)(multiple officers taking
down
a
Hill
noncompliant
v.
person
Mueller,
arrested
2009
WL
for
disorderly
conduct);
613578
*4-6
(E.D.Mich.
3/6/2009)(suspected bank robber who, once cornered, approaches
police with hands up and is taken to the ground in a manner
which
breaks
his
ribs
and
vertebrae);
Overton
v.
Hamilton
County, 2009 WL 2601848 *3 (E.D. Tenn. 8/24/2009)(taking down
pregnant student – and fracturing her finger – when she would
not
cooperate,
handcuffed
City
of
and
was
verbally
arrested
Pembroke
for
Pines,
abusive,
and
disorderly
2005
11
WL
was
conduct);
6108998
going
to
be
Sullivan
v.
*6-9
(S.D.Fla.
4/15/2005)(grabbing and twisting arm to take female down to the
ground
and
placing
a
knee
in
her
back
when
her
non-violent
belligerence caused officer to arrest her for disturbing the
peace).
Finally, with regard to the allegations that the officers
“choked out” plaintiff, the court has examined the following
cases: Liiv, 130 Fed.Appx. at 852 (choke hold employed against
person who refused to stand or cooperate after being arrested);
Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir.
1993)(5-second
choke
hold
of
person
arrested
for
obstructing
officer engaged in code enforcement); Tanner v. San Juan County
Sheriff’s
Office,
2012)(reasonable
864
to
F.Supp.2d
conclude
that
1090,
3-second
1153
choke
(D.N.M.
hold
was
necessary to prevent handcuffed suspect who was banging his head
against vehicle from harming himself or others); Burns v. City
of Redwood City, 737 F.Supp.2d 1047, 1063 (N.D.Cal. 2010)(use of
“half-nelson” leading to torn brachial plexus against person who
was resisting the efforts of two other officers to arrest him on
suspicion of public intoxication).
In all of the cases listed above the courts determined that
qualified immunity should be applied because the right against
the
use
of
determined
force
that
was
the
not
uses
clearly
of
established
force
did
constitutional right against excessive force.
12
not
or
the
courts
violate
the
The court acknowledges that plaintiff has filed two motions
for discovery.
the
other
Neither
One motion (Doc. No. 63) asks for photographs;
motion
motion
difference
to
(Doc.
No.
explains
the
64)
why
court’s
asks
this
decision
for
dispatcher
discovery
regarding
would
the
tapes.
make
a
qualified
immunity issues raised in defendants’ summary judgment motion.
In addition, the motions, which were filed on September 27,
2012, appear to be untimely because the pretrial order provides
that all pretrial discovery was to be completed by May 31, 2012
with the exception of some discovery agreed to by the parties.
Because
the
discovery
motions
appear
to
be
immaterial
to
defendants’ qualified immunity defense and untimely, the motions
shall be denied.
Summing up, the court finds, giving plaintiff’s pleadings a
liberal
construction,
identify
specific
that
conduct
plaintiff
by
cannot
defendants
describe
which
is
and
clearly
unreasonable under the totality of the circumstances and which
constitutes excessive force pursuant to the analytical framework
of the Graham decision and under results set out in roughly
analogous
defense
cases.
is
valid
Therefore,
and
defendants’
summary
judgment
qualified
for
immunity
defendants
is
warranted.
V. The court does not reach defendants’ argument that personal
jurisdiction has not been secured over defendants because the
method of service was legally insufficient.
13
Service of process was done by the United States Marshal in
this case.
Defendants contend that service was insufficient
because service was made upon them at their place of employment
before
any
attempt
was
made
to
serve
them
at
their
homes.
Plaintiff has not responded to defendants’ argument.
There
is
conflicting
authority
within
the
District
of
Kansas over whether the method of service in this case is in
substantial
This
is
compliance
discussed
in
with
one
of
motion for summary judgment.
*5 (D.Kan. 11/23/2010).
service
the
of
cases
process
cited
requirements.
in
defendants’
Nicks v. Brewer, 2010 WL 4868172
Rather than issue a decision on this
point without the benefit of argument from both sides, the court
shall defer reaching this point and resolve defendants’ motion
solely on the basis of the qualified immunity defense.
VI.
Conclusion
In conclusion, consistent with the above-stated reasoning,
defendants’ motion for summary judgment (Doc. No. 52) shall be
granted.
Plaintiff’s motions for discovery (Doc. Nos. 63 and
64) shall be denied.
IT IS SO ORDERED.
Dated this 14th day of January, 2013 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
14
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