Berry v. Toms et al

Filing 73

MEMORANDUM AND ORDER granting 64 defendants' Motion for Summary Judgment. Signed by Chief Judge J. Thomas Marten on 11/6/14. Mailed to pro se party Michael Lee Berry by regular mail. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Michael Lee Berry,
Plaintiff,
vs.

Case No. 12-3179-JTM

Travis Toms, et al.,
Defendants.

MEMORANDUM AND ORDER

Michael Lee Berry, appearing pro se, has brought the present action against four
Kansas City, Kansas police officers (Travis Toms, David Underwood, Patrick Locke, and
Jesse Crawford), alleging the officers violated the Fourth Amendment by unreasonably
damaging his car and using excessive force when he was arrested on August 21, 2010.
Berry is currently in prison, following his convictions for battery and aggravated battery
on law enforcement officers, felony fleeing and eluding, and criminal damage to property.
The defendants have moved for summary judgment, asserting the protection of qualified
immunity.
Summary judgment is proper where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show there is no
genuine issue as to any material fact, and that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the
court must examine all evidence in a light most favorable to the opposing party. McKenzie
v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary
judgment must demonstrate its entitlement to summary judgment beyond a reasonable

doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party
need not disprove plaintiff's claim; it need only establish that the factual allegations have
no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323
(10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon
mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving
party must come forward with specific facts showing the presence of a genuine issue of
material fact for trial and significant probative evidence supporting the allegation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried
its burden under Rule 56(c), the party opposing summary judgment must do more than
simply show there is some metaphysical doubt as to the material facts. "In the language
of the Rule, the nonmoving party must come forward with 'specific facts showing that
there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the
principal purposes of the summary judgment rule is to isolate and dispose of factually
unsupported claims or defenses, and the rule should be interpreted in a way that allows
it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Findings of Fact
On August 21, 2010, the defendants were in uniform, working the night-time
community policing unit. This assignment includes patrolling high crime areas. Officer
Toms and Officer Locke were patrolling in a marked patrol car near 18th and Quindaro
Boulevard in Kansas City, Kansas. Around 8:30 p.m., they saw a red Chevrolet Lumina
driving south on 18th Street in excess of the speed limit. The officers turned on the patrol
car’s lights and sirens and tried to stop the Lumina.

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Berry, who was driving the Lumina, refused to stop. He tried to escape, accelerating
to 60 miles per hour. The speed limit on 18th Street is 30 miles per hour. Toms and Locke
asked for and were given permission for pursuit by their supervisor, Sergeant Steven
Haulmark.
Berry passed a vehicle, crossing over the double yellow lines into oncoming traffic.
Without signaling, Berry turned west on Stewart, passing through a stop sign without
stopping. The Lumina’s tires struck the curb, left the ground, and came down hard.
Defendants Crawford and Underwood were in another patrol car when they heard
of the chase. They drove west on Parallel Parkway, paralleling the pursuit.
After Berry’s car had stopped his car near 25th and Stewart, Locke stopped his
patrol car also. Locke and Toms approached Berry’s car, Locke on the driver’s side and
Toms on the other.
Berry was in the driver’s seat of the car, yelling and screaming and attempting to
start the car. The front driver’s-side door of the car was locked, with the window rolled up
most of the way.
Locke ordered Berry to get out of the car, but Berry ignored him. Locke then used
his baton to break out the front driver’s-side window of the Chevrolet.
According to Locke, as set forth in the defendants’ Motion for Summary Judgment,
he may have also struck Berry with the baton when he broke the window. He states that
this was not intentional. Berry claims that Locke and Toms did not order him from the
vehicle. However, Berry supplies no evidence in support of this assertion, whether by
affidavit testimony or otherwise. 1
“[S]ummary judgment is proper where a plaintiff fails to challenge the
affidavits or other proof filed by a defendant in support of its motion.” Lopez–Bignotte v.
Ontivero, 42 Fed. Appx. 404, 408 (10th Cir.2002) (quoting Parkinson v. California Co., 233
F.2d 432, 438 (10th Cir.1956)). Pro se litigants must still comply with the rules of the
court, including the requirement to provide admissible evidence in support of a
response to summary judgment motions. See Pueblo Neighborhood Health Ctrs., Inc. v.
Losavio, 847 F.2d 642, 649 (10th Cir.1988); See, e.g., Brown .v Kocharnowski, 2012 WL
1

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It is uncontroverted that Locke leaned through the window and grabbed hold of the
steering wheel and the gearshift to prevent Berry from fleeing. He pulled up on the
gearshift, trying to keep it in park.
Berry does not controvert Locke’s statement that Locke heard the car start and the
engine rev. Berry pulled down on the gearshift with both hands, causing the car to move.
It is uncontroverted that the car lunged backwards, while Locke was still leaning
through the window, his right hand on the door frame and his left hand on the gearshift.
The car’s mirror was against his left hip, and he was unable to get away.
Sgt. Haulmark had arrived at the scene and had parked his car behind the Chevrolet.
As the Chevrolet went backwards, it struck the right front fender of Haulmark’s car and
pinned Officer Locke with his back against it.
Toms, who was then in front of the Lumina, thought that Locke was in danger of
being seriously injured. He pointed his gun in Berry’s general direction and considered
shooting Berry, but was afraid that he might hit Locke. He holstered his gun and drew his
baton.
The front passenger door of the Chevrolet was locked, so Toms used his baton to
break the window. He then holstered the baton and leaned into the car. He wrestled with
Berry for control of the steering wheel, the gear shift, and the keys. Using his hands, he
struck Berry on the hands in an attempt to gain control of the car.
The plaintiff claims that, after breaking the passenger side window, Toms “reached
inside of the vehicle & struck Berry in the head & face area twice knocking him
unconscious.” (Dkt. 67, at 2). He states that he “has no other memory until after being

4127959, *5 (D.Kan. 2012) (granting summary judgment where pro se plaintiff “did not
file any affidavits or submit any other admissible evidence to refute the evidence filed
by the defendants in support of their motion for summary judgment”); Brown v.
Dorneker, 2008 WL 3334025, *1 (D. Kan. 2008) (“[e]ven a pro se plaintiff must present
some ‘specific factual support’ for his allegations” (quoting Pueblo, 847 F.2d at 649)).
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tazed, unaware of which officer tazed him.” (Id.) The plaintiff supplies no admissible
evidence in support of either assertion.
It is uncontroverted that the weight of the Lumina broke Locke’s Taser holster and
threw his Taser out. Then the mirror on the Chevrolet broke, freeing Locke. The car’s tires
ran over Locke’s right foot and the fender banged into his right knee. Although Berry
denies injuring Locke, he fails to support the denial with any citation to admissible
evidence.
Locke doubled over in pain. He got up and ran back to his patrol car, thinking that
the pursuit was going to be on again.
From the passenger side, Toms managed to steer the Berry’s car backwards into a
yard, where it stopped.
Crawford and Underwood arrived and found Locke running up to his patrol car.
Locke pointed to the east and said, “He just rammed me.” Crawford and Underwood
drove further east and spotted a red car on the south side of Stewart. The car was partially
in a yard and partially in the street.
Underwood stopped in front of the car, and Crawford and he got out and went to
the driver’s side. They saw Berry inside the car, with both hands on the steering wheel,
screaming and yelling and rocking back and forth. Crawford saw that Berry had blood on
his face. The officers ordered Berry to get out of the car.
The front driver’s-side window was broken out, and there was broken glass in the
car. Crawford and Underwood reached through the window and tried to gain control of
Berry, but Berry fought them, pushing their arms out of the way, locking his arms on the
steering wheel, and twisting and moving around and pulling away from them as he tried
to get the car started.
Crawford tried to control Berry by reaching through the front driver’s-side window
and behind his neck and grabbing his right shoulder with his right hand. He placed his left
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hand on Berry’s left shoulder.
It was hot, and Crawford was sweating. His right hand slipped from Berry’s right
shoulder, ending up in front of Berry’s face. Crawford felt a very sharp pain as Berry bit
down on his right index finger. At that moment, the car jerked forward, ripping Crawford’s
finger from Berry’s mouth. Crawford screamed in pain.
Underwood deployed his Taser. The prongs struck Berry in the torso. After the first
cycle, Berry continued to fight and resist, so Underwood gave him a second five-second
cycle. While Crawford and Underwood were trying to gain control of Berry on the driver
side, Toms was struggling with Berry through the front passenger side window. He was
able to get hold of the keys and throw them out of reach. He tried to pull Berry out through
the passenger-side window, but was unable to do so.
Again, Berry asserts that throughout this time he was unconscious. Berry denies
biting Crawford, but again supplies no admissible evidence in support of his denial.2
Other officers arrived and removed Berry from the passenger side of the car and
handcuffed him.
Crawford backed out of the way when Underwood deployed his Taser. Crawford
saw that he had a cut on his finger and, since Berry was bleeding from the face, was
concerned about exposure to blood-borne pathogens. He went to trunk of the patrol car
and attempted to clean his finger. He was not involved in removing Berry from the car.
By the time Locke turned the patrol car around, the Chevrolet had stopped and

As with his other assertions, Berry supplies no admissible evidence, in the form
of affidavit or otherwise, supporting the claim that he did not bite Crawford. Further, as
noted below, Berry was found guilty of the crime of battery against Crawford. The
plaintiff is therefor precluded from arguing that the battery did not occur. See Jiron v.
City of Lakewood, 392 F.3d 410, 415 (10th Cir. 2004)(finding that the Full Faith and Credit
Act, 28 U.S.C. § 1738 requires giving same preclusive effect to state court judgments as
that state would give); Hill v. Day, 168 Kan. 604, 609-10, 215 P.2d 219, 223-24 (1950)
(under Kansas law “a judgment of conviction amounts to a conclusive determination
that probable cause for the arrest and prosecution existed”).
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officers were taking Berry into custody.
After his arrest, Berry was taken by ambulance to Kansas University Medical Center.
He was later transported to the Wyandotte County Detention Center.
On April 27, 2011, a Wyandotte County jury convicted Berry of the following crimes
in connection with the August 21, 2010 incident:
(a) Aggravated battery against a law enforcement officer (Locke) with a motor
vehicle in violation of K.S.A. 21-3415(a)(3);
(b) Battery on a law enforcement officer (Crawford) in violation of K.S.A.
21-3413(a)(2);
(c) Fleeing or attempting to elude a police officer while committing five or more
moving violations in violation of K.S.A. 8-1568(b); and
(d) Criminal damage to property in violation of K.S.A. 21-3720(a)(1) and (b)(3).
On November 2, 2012, the Kansas Court of Appeals affirmed Berry’s convictions.

Conclusions of Law
Under the doctrine of qualified immunity, government officers are protected from
civil suits for damages if their conduct does not violate any clearly establish right belonging
to the plaintiff. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a defendant asserts the
defense of qualified immunity, the plaintiff must “properly allege a deprivation of a
constitutional right and must further show that the constitutional right was clearly
established at the time of the violation.” Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th
Cir.2012). “[W]hether an official protected by qualified immunity may be held personally
liable for an allegedly unlawful official action generally turns on the ‘objective legal
reasonableness' of the action, assessed in light of the legal rules that were ‘clearly
established’ at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct.
3034, 97 L.Ed.2d 523 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. at 818–19).
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In resolving questions of qualified immunity, courts are required to
resolve a “threshold question: Taken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer's conduct violated
a constitutional right? This must be the initial inquiry.” Saucier v. Katz, 533
U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If, and only if, the court
finds a violation of a constitutional right, “the next, sequential step is to ask
whether the right was clearly established ... in light of the specific context of
the case.” Ibid. Although this ordering contradicts “[o]ur policy of avoiding
unnecessary adjudication of constitutional issues,” United States v. Treasury
Employees, 513 U.S. 454, 478, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (citing
Ashwander v. TVA, 297 U.S. 288, 346–347, 56 S.Ct. 466, 80 L.Ed. 688 (1936)
(Brandeis, J., concurring)), we have said that such a departure from practice
is “necessary to set forth principles which will become the basis for a [future]
holding that a right is clearly established,” Saucier, supra, at 201, 121 S.Ct.
2151.
Scott v. Harris, 550 U.S. 372, 377 (2007). The traditional summary judgment analysis arises
only if the plaintiff meets the initial two-part burden of showing the violation of a
constitutional right and that the right was clearly established at the time of the alleged
violation. See Rojas v. Anderson, 7272 F.3d 1000, 1004 (10th Cir. 2013).
Berry claims that defendants violated the Fourth Amendment by breaking his car
windows, and were guilty of excessive force in effecting his arrest. The defendants argue
that they are entitled to summary judgment under the doctrine of qualified immunity.
They do not assert that the plaintiff has failed to allege violation of specific constitutional
rights. Rather, they argue that the facts do not demonstrate the violation of any clearlyestablished right. (Dkt. 65,a t 10, Dkt. 72, at 11).
The court finds that the defendants are entitled to qualified immunity, because Berry
has failed to show that the defendants violated any clearly-established constitutional right.
Based on the admissible evidence before the court, it is uncontroverted that the officers
were presented with a very dangerous situation. Berry had previously attempted to flee
police at double the posted speed limit, driving dangerously through a large city. His car
was stopped, but Berry ignored police orders to get out. Berry was yelling and screaming,
and he tried restart the car. The officers tried to stop him, but Berry fought back and was

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able to cause the car to lunge backward, pinning one officer and ramming a police vehicle.
Berry then bit another officer who tried to intervene.
Under these circumstances, Locke and Toms were entitled to break the car windows
in attempt to put an end to the danger. There is no admissible evidence that any officer
intentionally struck Berry with their batons. Toms, seeing his patrol partner pinned by
Berry’s car, and perhaps being gravely injured, was justified in drawing (but not using) his
weapon. Crawford and Toms were both justified in attempting to wrestle control of the
vehicle from Berry. And, seeing Berry bite Crawford, Underwood was justified in using a
taser device to finally subdue Berry.
Berry has pointed to no cases which would suggest that the officers, under these
circumstances violated any clearly established law. For example, officers may not use a
taser device to subdue persons suspected of misdemeanor criminal conduct. See Cavanaugh
v. Woods Cross City, 625 F.3d 661 (10th Cir. 2010); Casey v. City of Federal Heights, 509 F.3d
1278 (10th Cir. 2007). But such cases have no application here, where Berry was suspected
of multiple felonies and represented a continuing risk of flight and danger to the safety of
other persons. To the contrary, an officer may lawfully use force if he or she reasonably has
a probable cause belief that there is a risk of serious physical harm to other persons. See
Thomas v. Durastanti, 607 F.3d 655, 663-64 (10th Cir. 2010).
Under circumstances of the case, a reasonable police officer in the positions of the
defendants would have been justified in believing that the use of limited, non-deadly force
(the use of night sticks to break car windows, physical restraint of the plaintiff, and
ultimately the use of a taser) were justified for the purpose of protecting the police and the
public.

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IT IS ACCORDINGLY ORDERED this 6th day of November, 2014, that the
defendants’ Motion for Summary Judgment (Dkt. 64) is hereby granted.
s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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