Boyd v. Victoria, City of et al
MEMORANDUM AND ORDER granting 32 , 39 Motions for Summary Judgment. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 8/18/17. Mailed to pro se party Lisa Boyd by regular mail (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 16-4106-SAC
CITY OF VICTORIA, KANSAS;
ELLIS COUNTY, KANSAS; MARY
PFEIFER; COLE DINKEL;
WILMER DINKEL; RYAN MAUCH;
CURTIS UNREIN; SHERIFF ED
HARBIN; and UNKNOWN ELLIS
COUNTY, KANSAS EMPLOYEES.
MEMORANDUM AND ORDER
The case comes before the court on the following summary
judgment motions that are ripe for decision: the defendants City of Victoria,
Mary Pfeifer, Cole Dinkel, Ryan Mauch and Curtis Unrein (ECF# 32)
(“Victoria defendants”) and the defendants Ellis County, Sheriff Ed Harbin,
Wilmer Dinkel and unknown Ellis County employees (ECF# 39) (“Ellis County
defendants”). The pro se plaintiff Lisa Boyd has filed responses to both
motions, (ECF## 47 and 58), and the defendants have replied respectively
(ECF## 59 and 60).
Ms. Boyd brings this lawsuit alleging 16 counts for relief
pursuant to 42 U.S.C. §§ 1983 and 1985 and pursuant to state tort law.
ECF# 1. The factual setting for her complaint, as alleged, is that Ms. Boyd
moved to the small town of Victoria, Kansas, sometime in 1998, and she
soon came to believe she was the target of a civil conspiracy intent to drive
her into leaving Victoria. ECF# 1, ¶¶ 24 and 26. Ms. Boyd alleges the
defendants enforced laws against her, made statements to her and about
her, and also conducted themselves as to oppose her interests all done in an
effort to discourage her from staying there. She alleges that her arrest on
June 19, 2014, for driving under the influence (“DUI”), as the culmination of
the defendants’ efforts.
The defendants seek summary judgment on several different
grounds. They characterize Ms. Boyd’s suit as an unsuccessful financiallymotivated attempt to transform “a series of unsatisfactory encounters with
the citizens, officials and employees of the city of Victoria between 2006 and
2014” into a plot to drive her away “because she did not share the religion of
many of her neighbors.” ECF# 33, p. 1. The defendants argue the facts show
that many of encounters resulted from calls for help made either by her or
her family. Id. p. 2. The defendants raise several legal defenses and argue
deficiencies in the evidence that prevent the plaintiff from recovering as a
matter of law.
SUMMARY JUDGMENT STANDARDS
“Summary judgment is appropriate only if ‘the movant shows
that there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.’” Tolan v. Cotton, ––– U.S. ––––,
134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014)(quoting Fed. R. Civ. P.
56(a)). A factual dispute is “material” only if it “might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986). A “genuine” factual dispute requires more than a mere scintilla
of evidence in support of a party's position. Id. at 252.
The moving party has the initial burden of showing “the absence
of a genuine issue of material fact,” and, if carried, the non-moving party
then “must bring forward specific facts showing a genuine issue for trial as
to those dispositive matters for which [it] carries the burden of proof.”
National American Ins. Co. v. American Re-Insurance Co., 358 F.3d 736,
739 (10th Cir. 2004) (internal quotation marks and citation omitted). At the
summary judgment stage, the court is not to be weighing evidence, crediting
some over other, or determining the truth of disputed matters, but is only to
be deciding if a genuine issue for trial exists. Tolan, 134 S. Ct. at 1866. The
court performs this task with a view of the evidence that favors most the
party opposing summary judgment. Id. Summary judgment may be granted
if the nonmoving party's evidence is merely colorable or is not significantly
probative. Liberty Lobby, 477 U.S. at 250–51. Essentially, the inquiry is
“whether the evidence presents a sufficient disagreement to require
submission to the jury or whether it is so one-sided that one party must
prevail as a matter of law.” Id. at 251–52.
The Court will not consider statements of fact, or rebuttals
thereto, which are not material or are not supported by competent evidence.
Fed. R. Civ. P. 56(c)(1)(A), 56(e)(2), 56(e)(3). “[O]n a motion for summary
judgment, it is the responding party's burden to ensure that the factual
dispute is portrayed with particularity, without depending on the trial court
to conduct its own search of the record.” Cross v. The Home Depot, 390 F.3d
1283, 1290 (10th Cir. 2004) (internal quotation and citation omitted). The
Court is “not obligated to comb the record in order to make [Plaintiffs']
arguments for [them].” See Mitchell v. City of Moore, Okla., 218 F.3d 1190,
1199 (10th Cir. 2000). The court’s local rule, D.Kan. Rule 56.1, provides:
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 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.
To be effective, summary judgment affidavits “must be based on
personal knowledge and set forth facts that would be admissible in evidence
at trial; conclusory and self-serving affidavits are not sufficient.” Murray v.
City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (quotations and
citation omitted). To be viable, the summary judgment affidavits must
provide evidence for which the content would be admissible even if the form
would not be admissible. Adams v. American Guarantee and Liability Ins.
Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (Inadmissible hearsay evidence
may not be used in summary judgment). “So it is that, although evidence
presented in the form of an affidavit at summary judgment can be converted
in form into live testimony at trial, the content or substance of the affidavit
must be otherwise admissible, and any hearsay contained in a summary
judgment affidavit remains hearsay, beyond the bounds of the court's
consideration.” Johnson v. Weld County, Colo., 594 F.3d 1202, 1210 (10th
“To defeat a motion for summary judgment, evidence, including
testimony, must be based on more than mere speculation, conjecture, or
surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
“In a response to a motion for summary judgment, a party cannot rest on
ignorance of facts, on speculation, or on suspicion and may not escape
summary judgment in the mere hope that something will turn up at trial.”
Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)(citation omitted).
“[A]t the summary judgment stage, statements of mere belief in an affidavit
must be disregarded.” Argo v. Blue Cross and Blue Shield of Kansas, Inc.,
452 F.3d 1193, 1200 (10th Cir. 2006) (internal quotation marks and citation
The plaintiff submits an affidavit that sweepingly states,
“statements of fact made by Plaintiff in her Response to the City’s Motion for
Summary Judgment . . . are true and correct.” ECF# 47-1, p. 4; ECF# 58, p.
7. She also submits a number of exhibits, and her citations to them are
frequently broad and vague. The court will accept as statements of fact only
those that can be read as statements of fact, because they are based on the
plaintiff’s personal knowledge with supporting detail and are not based on
speculation, opinion or argument. “The Tenth Circuit has held that merely
placing evidence in the record on summary judgment without pointing the
Court to it is insufficient: ‘it is the responding party's burden to ensure that
the factual dispute is portrayed with particularity, without . . . depending on
the trial court to conduct it's own search of the record.’” Ney v. City of
Hoisington, Kan., 508 F. Supp. 2d 877, 883 (D. Kan. 2007) (quoting Cross v.
The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004)), aff'd sub nom.
Ney v. City of Hoisington, Kansas, 264 Fed. Appx. 678 (10th Cir.
2008)(unpub.) “If a party fails to properly support an assertion of fact or
fails to properly address another party's assertion of fact . . ., the court
may: (1) give an opportunity to properly support or address the fact; (2)
consider the fact undisputed for purposes of the motion; (3) grant summary
judgment if the motion and supporting materials—including the facts
considered undisputed—show that the movant is entitled to it; or (4) issue
any other appropriate order.” Fed. R. Civ. P. 56(e).
Being pro se, Ms. Boyd’s filings are liberally construed, but the
court will not act as her advocate. James v. Wadas, 724 F.3d 1312, 1315
(10th Cir. 2013). Nor will the court “sift through the record to find support
for” her arguments. Phillips v. James, 422 F.3d 1075, 1081 (10th Cir. 2005),
Nor will it “fashion . . . [her] arguments” when her “allegations are merely
conclusory in nature and without supporting factual averments.” United
States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (citation omitted).
Ms. Boyd repeatedly states that she “cannot present facts
essential to justify her opposition absent adequate time to obtain affidavits
or take discovery and so states pursuant to Rule FRCP 56(d).” ECF## 47
and 58. An opposing party who wants the motion either deferred or denied
“must file an affidavit that explains why facts precluding summary judgment
cannot be presented” and that also identifies “the probable facts not
available and what steps have been taken to obtain these facts.”
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir.)(citation omitted),
cert. denied, 562 U.S. 968 (2010); see also Garcia v. U.S. Air Force, 533
F.3d 1170, 1179 (10th Cir. 2008)(“A party may not invoke Rule 56(f) by
simply stating that discovery is incomplete but must state with specificity
how the additional material will rebut the summary judgment motion.”). Ms.
Boyd’s blanket statement of needing more time lacks the required
explanation and detail.
In their motions, the defendants have blended their arguments
to incorporate even challenges to pleading based on Rule 12(b)(6). In
addressing those arguments, the court applied the following. The court
accepts as true “all well-pleaded factual allegations in a complaint and
view[s] these allegations in the light most favorable to the plaintiff.” Smith
v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009), cert. denied, 558
U.S. 1148 (2010). This duty to accept a complaint's allegations as true is
tempered by the principle that “mere labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not suffice; a plaintiff
must offer specific factual allegations to support each claim.” Kansas Penn
Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting in
part Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted)). To withstand a Rule 12(b)(6) motion, “a
complaint must contain enough allegations of fact, taken as true, to state a
claim to relief that is plausible on its face.” Al–Owhali v. Holder, 687 F.3d
1236, 1239 (10th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Thus, “a plaintiff must offer sufficient factual allegations to ‘raise a
right to relief above the speculative level.’” Kansas Penn Gaming, 656 F.3d
at 1214 (quoting Twombly, 550 U.S. at 555). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 556). “‘A claim has facial plausibility when
the [pleaded] factual content . . . allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Rosenfield
v. HSBC Bank, USA, 681 F.3d 1172, 1178 (10th Cir. 2012).
STATEMENT OF FACTS
Ms. Boyd moved to Victoria, Kansas in 1998, and Cole Dinkel
became Victoria Police Department’s (“VPD’s”) Chief of Police (“Chief”) in
May of 2008. Over the years, Chief Dinkel in his official capacity has had
numerous contacts with the plaintiff Ms. Boyd. For example, in June of 2010,
he investigated a reported burglary and theft at the plaintiff’s shop which
resulted in a confession by the perpetrator. In September of 2010, the
plaintiff’s adult daughter made a disturbance call reporting that the plaintiff
had been hit by the plaintiff’s boyfriend, Bentham. Chief Dinkel went to the
plaintiff’s home and saw her bruises, but the plaintiff refused to tell him
what had happened. Several days later, the plaintiff told Chief Dinkel what
had happened, but she said she did not want Bentham to be arrested, but
In November of 2011, the VPD received multiple calls of fighting
between the plaintiff and Bentham which ended in Bentham’s arrest. When
released, Bentham was ordered not to have contact with the plaintiff, but
the plaintiff continued to contact Bentham even after she was told to stop.
The VPD received information that the plaintiff was harassing Bentham,
threatening to get him, and speaking ill of him. The VPD also received a
report from another citizen who complained that the plaintiff had entered his
residence without permission to rant about Bentham. The plaintiff does not
effectively controvert this statement.
The plaintiff reported credit card fraud in February of 2012. After
VPD Officer Ryan Mauch’s investigation of it, the VPD understood the plaintiff
had been refunded the money. The plaintiff’s evidence does not controvert
Chief Dinkel’s averments that the plaintiff did not subsequently contact the
VPD about this credit card debt and that he never refused to take from the
plaintiff a report of identity theft.
In June of 2012, the plaintiff’s adult daughter, Sara, contacted
the VPD with a report that the plaintiff would not leave Sara’s hair salon. The
incident resolved with the plaintiff leaving and no action being taken. On
September 6, 2012, a citizen reported to the VPD that there was apparent
drug activity in the plaintiff’s yard. Officer Mauch made contact with the
plaintiff and Bentham. Finding no evidence of drug activity, no further action
The City of Victoria maintains one “hard copy” of its ordinances
in several volumes, none of which may be removed from the city office.
Upon a citizen’s request to see certain ordinances, the relevant ones are
identified and produced for viewing. The affidavit of City Clerk Mary Pfeifer
states that the plaintiff was never refused access to the city ordinances. The
plaintiff refers to several instances when Pfeifer effectively denied her
requests to “see all of the ordinances” at the same time. ECF# 47, ¶ 30
On September 6, 2012, plaintiff went into the City Clerk’s office,
“slammed her hands on the counter and began rambling and complaining
loudly, yelling and behaving in what the clerk and assistant perceived to be
a bizarre, aggressive, and threatening manner.” ECF# 33, ¶ 31. The plaintiff
referred to herself as crazy. Frightened and alarmed, the City Clerk called
the VPD, and the plaintiff then left. The plaintiff’s unsupported and
unexplained use of “controverted” and her statements concerning her
subjective intent do not effectively controvert these statements of fact. The
defendant VPD Officer Ryan Mauch stopped the plaintiff as she was driving
from the city hall and arrested her for disorderly conduct. After the plaintiff
was booked and released on an OR bond, the officer gave her a ride home.
Later that same day, a hand-lettered sign appeared in the
plaintiff’s front yard that read, “St. Fidelis-Always Faithful to Pedophiles.” In
her complaint, the plaintiff alleges that after her disorderly conduct arrest
she allowed her boyfriend Bentham to put up this sign in her yard, because
he wished to express his opinion on this subject. At paragraphs 88 and 89 of
her complaint, the plaintiff alleges that in regard to this incident she “hoped
that some feather ruffling might stop or slow the city’s harassment
activities,” but she “was mistaken in this hope.” ECF# 1. The VPD received
calls about the plaintiff’s sign. VPD Officer Mauch instructed the plaintiff to
remove the sign from the city’s right of way, and when the plaintiff promised
to comply, Mauch left. Chief Dinkel stopped by later, and he too discussed
the situation with the plaintiff and Bentham. Citizens were noticing the sign
and objecting to it. Dinkel recalls Ms. Boyd saying the town disliked her to
which he replied that the sign did not help. The plaintiff’s statement does not
effectively controvert any of the material facts here.
According to Chief Dinkel, the plaintiff began alleging
harassment and demanding money from the city for it. She also threatened
to replace her St. Fidelis sign if the city did not pay her. Chief Dinkel told the
plaintiff that she was free to replace her sign and that he could not stop her.
The plaintiff’s blanket statement of “controverted” is insufficient. Because
this statement addresses what the plaintiff purportedly said at a particular
point in time, the plaintiff offers nothing to show how her controverting
evidence is unavailable.
On September 11, 2012, the owner of the shop which the
plaintiff leased asked the VPD to provide a civil standby as he served an
eviction notice on the plaintiff. Chief Dinkel performed this duty, and no
arrests were made. Later that same day, the plaintiff contacted a city council
member and Mayor Unrein in regards to this eviction, and Chief Dinkel
received citizen phone calls complaining that the plaintiff had re-erected her
St. Fidelis sign. Chief Dinkel went to the plaintiff’s house and they discussed
the situation. He did not request or order her to remove the sign, and he
told her that he was there to protect her and her property. The plaintiff
eventually removed the sign.
On June 16, 2013, Chief Dinkel received a citizen’s complaint
that the plaintiff had gone to a residence and yelled at the citizen in front of
his children and had left harassing messages on his cell phone. Chief Dinkel
spoke with the plaintiff and mediated the issues between the citizen and the
plaintiff. During this event, Chief Dinkel observed the plaintiff engage in
disorderly conduct by coming outside in boxer shorts and then yelling and
cursing. Chief Dinkel repeatedly warned the plaintiff who went back inside
without any further action being taken.
On July 3, 2013, the plaintiff’s adult daughter called 911 to
report that the plaintiff was not allowing her and her 6-year-old son to leave
the plaintiff’s home. Chief Dinkel responded and saw the plaintiff physically
blocking the young boy from leaving the yard and joining his mother. The
plaintiff accused her daughter of being an unfit mother. Chief Dinkel allowed
the daughter and her son to leave, and he took no action against the
On July 17, 2013, Chief Dinkel responded to a citizen call that
the plaintiff was violating the City’s water use restrictions. Chief Dinkel
explained the restrictions, and the plaintiff accepted the warning. No further
action was taken.
In June of 2014, Bentham as occupant of the plaintiff’s house
was served with a warning letter that the lawn vegetation violated the city’s
environmental code. On June 17, 2014, Chief Dinkel followed up on the
warning letter and saw that the yard still did not comply. He discussed the
situation with the plaintiff who demanded to see the governing ordinance.
So, Chief Dinkel went with the plaintiff to City Hall where he made a copy of
the ordinance for her. The plaintiff complained that other yards in Victoria
were also in violation of this ordinance, and Chief Dinkel responded that they
were being addressed too. The plaintiff’s statements to Chief Dinkel included
the comment that the citizens of Victoria were Nazis.
On June 19, 2014, Chief Dinkel received multiple calls from
citizens complaining that the plaintiff was highly intoxicated and was
screaming at Bentham in front of the church. Another report came in that
the plaintiff was yelling obscenities at three juvenile boys who were riding
bikes in the area. Chief Dinkel went to the area and spoke with the boys who
confirmed the reported complaint. He then observed the plaintiff driving her
vehicle. She made a turn without using a turn signal and then stopped at her
home leaving one wheel up over the curb. When Chief Dinkel made contact
with her, the plaintiff was loud, belligerent, and used obscene language.
Chief Dinkel smelled a strong odor of alcohol on the plaintiff. The plaintiff
consented to taking a preliminary breath test, and the blood alcohol result
was .117. Chief Dinkel arrested the plaintiff and took her to the Law
Enforcement Center in Hays. At the Center, the plaintiff agreed to a breath
test, and the results were .104. The plaintiff then insisted on a blood test,
and Chief Dinkel informed the plaintiff that additional testing would be at her
expense. The plaintiff was taken to the Hays Medical Center (“hospital”), and
the blood test results were .084. While at the hospital, the plaintiff also
asked for and received treatment and medication for a toothache and blood
pressure problem. Upon her release from the hospital, Chief Dinkel took the
plaintiff to the jail where she was booked in at 7:40 p.m. The plaintiff has
not effectively controverted any of the above facts. The plaintiff asserts the
hospital gave her prescriptions for pain medication, antibiotic, and blood
pressure medication which were not filled by the jail or county personnel.
Staff at the Ellis County jail did not observe the plaintiff to be
suffering from any serious or life-threatening health while she was detained
from the evening of June 19 through her release the next morning on June
20 shortly after 11:00 am. Other than complaining about a toothache, she
did not advise staff of any serious medical issues or health conditions. While
the plaintiff denies filling out and signing an intake form indicating no serious
current health problems, the plaintiff does not controvert what the staffers
observed regarding her condition. The plaintiff denies being given an
opportunity to advise staff of her medical conditions. Nonetheless, it is
uncontroverted that on June 20th before she was taken to court and
released on bond, jail staff transported the plaintiff to an urgent care center
across the street around 8:15 a.m. based on the plaintiff’s complaints of a
toothache. While at this urgent care center, she again took medication for
her blood pressure, was encouraged to get her antibiotic prescription filled,
was to have her blood pressure monitored while incarcerated, and was to
follow up with dental care following her release. She was returned to her jail
cell at 9:10 a.m. on June 20, transported to district court at 11:10 a.m., and
was bonded out at approximately 11:23 a.m.
When the plaintiff was booked into jail, she was placed in a cell
with another female detainee due to the high number of female detainees on
June 19th. The cell contained a toilet, sink, bed, and sufficient space for two
detainees. The plaintiff believes the cell was too small for two beds with
sufficient space to travel from bed to toilet. The jailers aver the plaintiff
never told them about her trouble with urinating or with her cellmate. The
plaintiff says her verbal requests were ignored during the night, but that she
raised her issues the next morning with the jailer who took her to the urgent
care center. The plaintiff’s cellmate began screaming in pain and was taken
to the hospital at 2:45 a.m. on June 20th with complaints of kidney stones.
The cellmate was treated for this condition at the hospital and was returned
to the jail cell around 6:10 a.m. The plaintiff was taken to court around
11:00 a.m. and released before noon.
The plaintiff entered a diversion agreement in which she
admitted to unlawfully operating a vehicle on June 19th with a breath
alcohol level of .104 such that she was incapable of driving safely. The
plaintiff admits the Ellis County Attorney’s office assisted her in obtaining the
proper operation of videos she received from the VPD. As far as the video of
her DUI arrest, Wilmer Dinkel did not erase, destroy or tamper the video and
did not conspire to do the same. The lost video from the DUI check lane was
caused by the mechanical failure of two hard drives, not human error or
Chief Dinkel has not solicited anyone to act as an informant on
the plaintiff’s activities and has never looked for some excuse to arrest the
plaintiff. The plaintiff’s exhibits do not controvert these facts, nor does her
affidavit which only recounts what she “is alleging” and does not appear to
be based on personal knowledge. ECF# 47, p. 13, ¶ 109. Chief Dinkel did
not advise Victoria residents that plaintiff was a bad person or that the
plaintiff was someone likely to get them into trouble. The plaintiff’s affidavit
lacks the content and the specificity required by Rule 56(d) to controvert this
statement. Chief Dinkel avers that he did not treat the plaintiff differently
from other citizens who had violated city ordinances. The plaintiff avers that
her yard “was cited on numerous occasions” when other citizens who were in
violation did not receive citations. ECR# 47, pp. 13-14. Chief Dinkel avers
that he did not destroy any evidence concerning the plaintiff and did not ask
or collude with anyone else to destroy evidence. The plaintiff’s affidavit fails
the requirements of 56(d) concerning this latter statement.
Summary of Complaint
The plaintiff’s pro se complaint is 34 pages in length with 304
numbered paragraphs. ECF# 1. Her factual allegations coming under the
title of “Nature of the Case” comprise the numbered paragraphs of 24
through 188. Id. at pp. 3-20. Interspersed among the factual allegations are
the following bolded headings:
-Chief Cole Dinkel and city clerk Mary Pfeifer engaged in defamatory
activities toward Plaintiff and interfered with Plaintiff’s family and
business relationships. (p. 4).
-Mary Pfeifer, the Victoria City Clerk repeatedly refused to provide
Plaintiff access to the Victoria city ordinances, stating that she didn’t
have time to “supervise” Plaintiff while (sic) was reading them. Chief
Cole Dinkel, Mayor Unrein and Mary Pfeifer employed the “mystery
ordinances” against Plaintiff in furtherance of their conspiracy to drive
Plaintiff from town. (p. 7).
-Chief Cole Dinkel, Mary Pfeifer and Ryan Mauch conspired to falsely
arrest Plaintiff for “disorderly conduct” after Plaintiff lawfully exercised
her first amendment right to object to years of illegal denial of access
to the city ordinances. (p. 8).
-Officer Mauch locked Plaintiff in a police vehicle in extreme heat with
no air conditioning for an extended period while talking on his cell
phone with Mary Pfeifer and Cole Dinkel. (p. 9).
-Defendants Cole Dinkel, Curtis Unrein and Ryan Mauch refused to
take action on criminal threats to kill Plaintiff as communicated to
Plaintiff by Mayor Unrein, Cole Dinkel and Ryan Mauch; These
defendants used reports of threats by area residents to kill Plaintiff
(sic) to chill plaintiff’s speech, force Plaintiff to remove the sign from
her yard and ultimately to move away from the community. (p. 10).
-A year later, Plaintiff returned to Victoria to deal with the house there,
and unwisely developed an impacted tooth while having no money for
a dentist in Kansas. (pp. 11-12).
-Chief Cole Dinkel refused to provide timely medical care, and the city
had no procedures in place to assure that arrestees’ medical needs
were reasonably assessed and acted upon. (pp. 12-13).
-Cole Dinkel forced Plaintiff (an indigent person on Medicaid) to agree
to pay for medical care that the City of Victoria was in fact obligated to
provide, as a condition to transport of the Plaintiff to the Emergency
Room at Hays Medical Center. (p. 14).
-Chief Cole Dinkel failed to advise Plaintiff of her right to consult with
an attorney after Plaintiff consented to and performed a breathalyzer
test. (p. 15).
-Three and only three pieces of recorded evidence in the DUI
“investigation.” Three separate technical maladies. What are the odds?
-Other Ellis County Jail Issues—Inadequate Medical Care (p. 17);
Physical Disability Accommodation (p. 18); Failure to protect prisoners
from other prisoners (p. 18); Pattern of failure to provide prescription
medications (p. 20).
These headings reveal the plaintiff’s intended organization of her factual
allegations. The plaintiff’s complaint then consists of the following claims for
relief under federal law:
Count One: 42 U.S.C. § 1983. First Amendment—Freedom of Religion
claim. Allegations are that she was “deliberately discriminated against”
for not being of the Roman Catholic faith, that as a result she “was
denied access to community, association, and a venue for informal
dispute resolution,” that disparaging comments were made about her,
and that “because the religious discrimination was overwhelming and
intractable,” she “suffered damages related to moving expenses, lost
enjoyment of her property and disruption of her family relationships.”
(¶¶ 191, 192, 197, 199).
Count Two: 42 U.S.C. § 1983. First Amendment—Freedom of Speech
claim. Allegations are that she was denied free expression of opinions
on her property, including those critical of the Roman Catholic church,
that she was threatened with violence due to her speech and lack of
respect for local church, and that as a result she felt “she had to move
out of Victoria” and she “suffered damages related to moving
expenses, lost enjoyment of her property and disruption of her family
relationships.” (¶¶ 203-205, 208-209).
Count Three: 42 U.S.C. § 1983. First Amendment—Freedom of Press
claim. Allegations are that defendants denied her “requests for
information,” that is, access to and examination of the ordinances
which the city must publish, that this denial resulted in the denial of
her opportunity and constitutional right to publish the ordinances, and
that she was unable to defend herself from fines for violating
ordinances. (¶¶ 213-215, 217).
Count Four: 42 U.S.C. § 1983. First Amendment—Freedom of
Assembly claim. Allegations are that the defendants “discouraged
other city residents from associating with the Plaintiff” causing the
plaintiff to feel “isolated and lonely for most of the 15 years that she
lived in the town. (¶¶ 223, 227).
Count Five: 42 U.S.C. § 1983. Sixth Amendment—Fair Trial claim.
Allegations are that the defendants deprived her of a constitutional
right to a fair trial in the DUI prosecution and driver’s license
proceedings by destroying evidence that would have benefitted her
and would have resulted in no prosecution and no conviction. (¶¶ 233235).
Count Six: 42 U.S.C. § 1983 Sixth Amendment—Right to Counsel
Claim. Allegations are that she was denied the right to counsel, as
Chief Dinkel failed to allow her to contact an attorney after she took
the breathalyzer test and Ellis County failed to appoint her an attorney
in her district court appeal from the driver’s license administrative
Count Seven: 42 U.S.C. § 1983 Fourteenth Amendment—Due Process
and Eighth Amendment claim. Allegations are that the conditions of
her jail confinement (placed in a cell with another person, not provided
adequate medical care in jail, denied the filling of her prescriptions,
not given blood pressure checks, and not provided circumstances for
emptying bladder) violated the Eighth Amendment and that the
defendant Sheriff Harbin violated her due process rights by
discriminatorily subjecting her to these jail conditions.
Count Eight: 42 U.S.C. § 1983 Fourteenth Amendment—Due Process
claim. Allegations are that the defendants conspired by causing her to
be arrested for disorderly conduct without evidence to sustain an
arrest, by deliberately destroying evidence, and by demanding her to
pay for emergency medical services as a condition of transportation.
Count Nine: 42 U.S.C. § 1983 Fourteenth Amendment—
Unenumerated Rights—Right to Privacy claim. Allegations are that the
defendants deprived the plaintiff of her constitutional right to maintain
privacy in her family and personal affairs by talking about the plaintiff
among themselves and other town residents and by cultivating
informants who reported on the plaintiff’s life with tenants and family.
Count Ten: 42 U.S.C. § 1983 Conspiracy to Deprive Constitutional
Rights claim. Allegations are that the defendants conspired to “use
their positions of authority whenever possible in the most punitive way
possible given whatever opportunities arose, for the purpose of
frightening, intimidating and impoverishing the Plaintiffs, all for the
ultimate purpose of driving the Plaintiff out of town and to thereby to
deprive Plaintiff of her constitutional rights.
Count Eleven: 42 U.S.C. § 1985(3) Conspiracy to Deprive
Constitutional Rights claim. Allegations are that the defendants
conspired to deprive the plaintiff of her constitutional rights as alleged
Counts 12 through 16 allege claims for relief under state law.
Statute of Limitations—§§ 1983 and 1985 Claims
The defendants first argue that all of the plaintiff’s federal
claims, except for those based on the DUI arrest in June of 2014 and/or the
related events occurring subsequently, are barred by the statute of
limitations. The plaintiff filed her complaint on June 16, 2016. The complaint
fails to set out the dates for many of the alleged events. The headings
indicate the different events are generally being alleged in chronological
order. The defendants’ motions, however, effectively establish the dates for
most of the alleged actions and events. The plaintiff does not controvert or
challenge the dates established in the defendants’ motions. Consequently,
only those federal claims based on the events occurring with and after the
plaintiff’s DUI arrest appear to come within the applicable two-year
limitations period. The plaintiff’s response appears to date other events as
occurring on June 16th and after. Notably, she refers to a traffic stop in
which Chief Dinkel told Chris Rogers that the plaintiff was a “bad person.”
The plaintiff offers nothing but her hearsay statement in support of this
event. The plaintiff also alleges Chief Dinkel harassed her and issued her a
municipal ordinance violation for the condition of her yard. The plaintiff
alleges this issuance of a violation shows harassment because Chief Dinkel
did not confront Bentham who was the “primary resident” of her house. This
allegation fails to state a claim for relief for it does not support any inference
of improper or illegal motive behind the otherwise lawful enforcement of a
municipal ordinance. The plaintiff does not deny she is liable for the
ordinance violation as she admits being present and being the owner of the
The governing statute of limitations in § 1983 actions is the state
statute of limitations for personal injury actions. See Hardin v. Straub, 490
U.S. 536, 539 (1989); Brown v. Unified Sch. Dist. 501, Topeka Pub. Schs.,
465 F.3d 1184, 1188 (10th Cir. 2006). “For conspiracy claims under §
1985(3), courts have also applied the forum state’s personal-injury statute
of limitations.” Lyons v. Kyner, 367 Fed. Appx. 878, 881-82 (10th Cir. Feb.
10, 2010) (citations omitted); see Robinson v. Maruffi, 895 F.2d 649, 65354 (10th Cir. 1990). For Kansas, this is the two-year limitations period in
K.S.A. § 60-513(a).” Brown, 465 F.3d at 1188. The accrual of a § 1983
claim, however, is a matter of federal law and occurs “when the plaintiff has
a complete and present cause of action.” Wallace v. Kato, 549 U.S. 384, 388
(2007). For § 1983 claims arising from police actions being taken, the Tenth
Circuit presumes accrual “when the actions actually occur.” Beck v. City of
Muskogee Police Dep't, 195 F.3d 553, 558 (10th Cir. 1999) (quoting Johnson
v. Johnson County Comm’n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991)).
“The limitations period for a § 1985(3) action ‘runs from the occurrence of
the last overt act resulting in damage to the plaintiff.’” Lyons, 367 Fed.
Appx. at 882 (quoting Bell v. Flower, 99 F.3d 262, 270 (8th Cir. 1996)). The
Tenth Circuit has explained the conspiracy limitations period in this way.
[I]t runs separately from each overt act of the conspiracy that
allegedly caused injury, see Scherer v. Balkema, 840 F.2d 437, 439
(7th Cir. 1988); see also Robinson, 895 F.2d at 655 (indicating that
conspiracies involving “discrete claims of [constitutional] wrongs,
despite their being averred as a continuing wrong,” accrue when the
plaintiff is injured). Consequently, O'Connor “may recover only for the
overt acts that [he] specifically alleged to have occurred within the
limitations period.” Scherer, 840 F.2d at 439 (quotation and ellipses
O'Connor v. St. John's College, 290 Fed. Appx. 137, 141 (10th Cir.
2008)(unpub.), cert. denied, 556 U.S. 1108 (2009).
As far as police/state actions taken or overt acts committed
within the two-year limitation period, the plaintiff’s complaint does not allege
any until ¶ 117 on page 12. These factual allegations concern her DUI arrest
as well as the circumstances surrounding the processing of her arrest and
her subsequent treatment while being held after the arrest. Thus, all the
factual allegations supporting counts one through four and nine are outside
the statute of limitations, and these counts are subject to summary
judgment. Only those overt acts that fall within the limitation period properly
remain the subject of the conspiracy counts of 10 and 11. Though alleged to
have started outside the limitations period, the conspiracy claim may remain
viable if the accrual date of the later overt acts are within the limitation
period. See Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir.), cert. denied,
513 U.S. 832 (1994).
Conspiracy Claims under §§ 1983 and 1985
A conspiracy claim under § 1983 requires pleading not only a
conspiracy but also the conspiracy’s action in depriving the plaintiff of a
constitutional right. Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir.
1990)(“[T]he essence of a § 1983 claim is the deprivation of the right rather
than the conspiracy.”). The delayed accrual of a conspiracy claim until later
overt acts is conditioned upon the plaintiff alleging “specific facts showing
agreement and concerted action” among the defendants, because
“[c]onclusory allegations of conspiracy are insufficient to state a valid § 1983
claim.” Hunt v. Bennett, 17 F.3d at 1266 (internal quotation marks and
citation omitted). There is no doctrine of continuing violations applicable to §
1983 actions. Mercer-Smith v. New Mexico Children, Youth and Families
Dept., 416 Fed. Appx. 704, 712 (10th Cir. Mar. 21, 2011). On this count, the
plaintiff’s complaint alleges:
The Defendants reached an agreement amongst themselves to use
their positions of authority whenever possible in the most punitive way
possible given whatever opportunities arose, for the purpose of
frightening, intimidating, and impoverishing the Plaintiff, all the
ultimate purpose of driving the Plaintiff out of town and to thereby to
deprive Plaintiff of her constitutional rights.
ECF# 1, ¶ 277.
In the same vein as § 1983, the Supreme Court recognizes that
§ 1985 does not create rights. Great Am. Fed. Sav. & Loan Ass'n v. Novotny,
442 U.S. 366, 376 (1979)(emphasis omitted). Section 1985 is a “purely
remedial statute, providing a civil cause of action when some otherwise
defined federal right—to equal protection of the laws or equal privileges and
immunities under the laws—is breached by a conspiracy . . . .” Id. Section
1985(3) prohibits two or more persons from conspiring “for the purpose of
depriving, either directly or indirectly, any person . . . of the equal protection
of the laws, or of equal privileges and immunities under the laws.” 42 U.S.C.
§ 1985(3). A claim asserted under 42 U.S.C. § 1985(3) requires: “(1) the
existence of a conspiracy (2) intended to deny [plaintiff] equal protection
under the laws or equal privileges and immunities of the laws (3) resulting in
an injury or deprivation of federally-protected rights, and (4) an overt act in
furtherance of the object of the conspiracy.” Murray v. City of Sapulpa, 45
F.3d 1417, 1423 (10th Cir. 1995) (citing Griffin v. Breckenridge, 403 U.S.
88, 102–03 (1971) (further citation omitted)). A conspiracy claim under §
1985 “requires at least a combination of two or more persons acting in
concert and an allegation of a meeting of the minds, an agreement among
the defendants, or a general conspiratorial objective.” Brooks v. Gaenzle,
614 F.3d 1213, 1227–28 (10th Cir. 2010) (citations omitted), cert. denied,
562 U.S. 1200 (2011). Mere conclusory allegations of conspiracy cannot
state a valid claim under § 1985. Hogan v. Winder, 762 F.3d 1096, 1114
(10th Cir. 2014). For both § 1983 and § 1985 conspiracies, the Tenth Circuit
has held that “a plaintiff must allege specific facts showing an agreement
and concerted action amongst the defendants because conclusory allegations
of conspiracy are insufficient to state a valid § 1983 claim.” Brooks, 614 F.3d
at 1228 (internal quotation marks and citations omitted). For a § 1985(3)
claim, a plaintiff also must allege a “racial, or perhaps otherwise classbased, invidiously discriminatory animus behind the conspirators' actions.”
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (relating to § 1985(3));
Smith v. Yellow Freight System, Inc., 536 F.2d 1320, 1323 (10th Cir. 1976)
(relating to § 1985(2)). Class-based discrimination means “classifications on
. . . race, sex, religion or national origin.” Brown v. Reardon, 770 F.2d 896,
905-06 (10th Cir. 1985) (alteration in original). The plaintiff’s complaint
alleges under her § 1985 count that, “As described more fully above, each of
the Defendant conspired, directly or indirectly, for the purpose of depriving
Plaintiff of her constitutional rights.” ECF# 1, ¶ 283.
Plaintiff's conspiracy claims cannot survive summary judgment.
First, for the reasons discussed later, the plaintiff is unable to show the
denial of a constitutional right. Second, to bring a conspiracy claim, the
plaintiff must allege more than conclusory allegations and make an effort to
provide some details and facts showing an agreement and concerted action
among the defendants. Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504,
533 (10th Cir. 1998). There must be enough specific factual allegations
making it reasonable to infer the defendants were conspiring with one
another. Id.; Brooks, 614 F.3d at 1228 (allegations of inconsistencies or
parallel action or inaction “does not necessarily indicate an agreement to act
in concert.”). The plaintiff’s complaint and her memoranda utterly fail to
come forward with specific factual allegations or evidence to show an
agreement or concerted action. What is offered by the plaintiff shows no
more than the expected and regular communications occurring between city
officials. Their actions toward the plaintiff, individually and together, show no
more than the expected and regular response to complaints coming from
citizens or from the plaintiff’s own family. The plaintiff offers no reasonable
inferences of an agreement or combined action by the defendants, and her
allegations are no more than speculation and conjecture on her part. Third,
the plaintiff fails to allege any recognized class-based discrimination for
purposes of her § 1985(3). She stops with alleging that she is not Roman
Catholic in a small community that is largely Roman Catholic. The plaintiff is
alleging she is part of a class that chooses not to be part of the defendant’s
group. Following the Supreme Court’s lead in Bray v. Alexandria Women’s
Health Clinic, 506 U.S. 263, 269 (1993), the court questions the plaintiff’s
speculative extension of § 1985(3) “which unquestionably connotes
something more than a group of individuals who share a desire to engage in
conduct that the § 1985(3) defendant disfavors.” In this case, the plaintiff is
alleging no more than the desire to not engage in conduct that the §
1985(3) defendants favor, that is, participating in the Roman Catholic
church. In sum, the plaintiff does not make a § 1985(3) claim out of the
defendants enforcing the municipal ordinances, the citizens complaining
about the plaintiff’s behavior, or the defendants discharging their lawful
official duties in a manner lacking apparent conspiratorial or discriminatory
motives. The plaintiff provides no evidence to support her allegations other
than speculative and conclusory musings. They do not suffice to create a
genuine issue for trial. The record here contains no evidence that defendants
shared a mutual understanding or reached a meeting of the minds about
threatening or forcing plaintiff to leave Victoria. Without such evidence, the
court must grant summary judgment against plaintiff's conspiracy claims
(counts 10 and 11) under 42 U.S.C. §§ 1983 and 1985(3).
Counts I and II—Freedom of Religion and Speech
Count one alleges the plaintiff suffered discrimination for not
being of the Roman Catholic faith and was denied “her constitutional right to
a free choice of religious belief.” ECF# 1, pp. 21-22. The Court construes this
claim as alleging a violation of the Free Exercise clause. To establish such a
claim, the plaintiff “must show that the government has placed a burden on
the exercise of [her] . . . religious beliefs or practices” and must state a
claim that the “exercise of religion is burdened if the challenged action is
coercive or compulsory in nature.“ Fields v. City of Tulsa, 753 F.3d 1000,
1009 (10th Cir.) (internal quotation marks and citation omitted), cert.
denied, 135 S. Ct. 714 (2014).
The plaintiff’s complaint and evidence does not state a viable
First Amendment claim. The plaintiff’s only evidence associated with the
Roman Catholic faith of the community is related to her signs disparaging
Roman Catholic priests that she put up in her yard. The signs resulted in
citizens making complaints and the officers visiting with her. There is no
evidence that the officers coerced the plaintiff into conduct contrary to her
religious beliefs or that burdened her from practicing her religion. The
citizens complaining of the sign is not state action. The allegations of the
officers’ responses to the complaints and potential threats show a concern
for community safety that was met by a display of their presence. The
evidence simply does not show that the officers’ presence in itself was
coercive or compulsory conduct. The court finds no plausible Free Exercise
claim to be alleged here.
Count two alleges the plaintiff was denied her constitutional right
to communicate her opinions on her property as she was threatened with
violence for putting up a sign that was critical of the Roman Catholic church.
A First Amendment retaliation claim outside of an employment context
requires a plaintiff to allege and show:
(1) that the plaintiff was engaged in constitutionally protected activity;
(2) that the defendant’s actions caused the plaintiff to suffer an injury
that would chill a person of ordinary firmness from continuing to
engage in that activity; and (3) that the defendant’s adverse action
was substantially motivated as a response to the plaintiff’s exercise of
constitutionally protected conduct.
Leverington v. City of Colorado Springs, 643 F.3d 719, 729 (10th Cir. 2011)
(internal quotation marks and citation omitted). While conceding the
plaintiff’s sign was protected speech, the defendants argue that their actions
did not chill the plaintiff’s speech but protected the plaintiff’s speech. The
plaintiff alleges the defendants threatened her, but the uncontroverted facts
show the defendants simply responded to citizens’ complaints and
maintained the peace by their presence. Not only were the defendants’
action not adverse to the plaintiff, but they were beneficial to her. When the
plaintiff voluntarily chose to take down the sign, the officers ended their
surveillance of the situation. Indeed, the plaintiff alleges she posted the sign
with the expectation of antagonizing the community, so the defendants’
actions taken to preserve the peace were expected, reasonable,
proportional, and not adverse. What the plaintiff recounts as Chief Dinkel’s
statements and handling of the plaintiff’s sign and her other so-called
“performance art” fails to show adverse action that would chill a person of
ordinary firmness from continuing to engage in that activity. The plaintiff
fails to show any violation of her constitutional rights in counts one and two
as alleged and shown.
Count 3—Freedom of Press
The plaintiff explains her freedom of press claim as based on her
being denied full access to the municipal ordinance books. This is not a
viable legal basis for such a claim. “[T]here is no constitutional right, and
specifically no First Amendment right, of access to government records.”
Lanphere & Urbaniak v. State of Colo., 21 F.3d 1508, 1512 (10th Cir.), cert.
denied, 513 U.S. 1044 (1994). Even assuming an actionable right here, the
uncontroverted facts are that the plaintiff was not denied access to the
ordinances, but she was subject to the same uniform procedure used by the
City in requiring a citizen’s request to see certain ordinances and in then
providing the relevant volume for viewing. Copies of the ordinances could be
made and taken with the citizen. The plaintiff is essentially asserting a
constitutional right to see a hard copy of all ordinances simultaneously.
There is no allegation here that the plaintiff did not receive constitutional
effective notice of any ordinances. The plaintiff’s preference to see all the
ordinances at the same time without supervision as opposed to the clerk’s
procedure of serial production upon specific request does not assert a claim
of constitutional significance.
Count 4—Freedom of Assembly and Association
The plaintiff explains this claim is based on Chief Dinkel telling a
resident of Victoria “to stay away from the Plaintiff for no Constitutionally
acceptable reason” which violated the “[p]laintiff’s freedom to assemble with
Chris Rogers.” ECF# 47, p. 29. She also alleges her right to petition was
denied because the City failed to respond substantively to her complaint
letters. The plaintiff has not alleged anything that resembles a restriction
upon a right to assemble peaceably in a public place or a right to petition the
government for redress of grievances. The right to assemble “is a collective
or group right, rather than the right of a single individual.” Brown v. City of
Maize, Kan., 2009 WL 872905, at *6 (D. Kan. 2009). The plaintiff’s
allegations do not invoke any right to have meetings, marches, pickets, or
the like. “The right to petition government does not create in the
government a corresponding duty to act.” Scroggins v. City of Topeka, Kan.,
2 F. Supp. 2d 1362, 1375 (D. Kan. 1998)(internal quotation marks and
citations omitted). The plaintiff’s allegations do not show that she was
deprived of her right to petition the city government for redress of
The defendants liberally construe the plaintiff’s complaint as
alleging a claim for interference with her constitutional right of expressive
association. The court recognizes the following as a proper summary of the
Included among the protections the First Amendment guarantees, the
Supreme Court has recognized “a First Amendment right to associate
for the purpose of speaking, which [it has] termed a ‘right of
expressive association.’” Rumsfeld v. Forum for Academic &
Institutional Rights, Inc., 547 U.S. 47, 126 S.Ct. 1297, 164 L.Ed.2d
156 (2006) (quoting Boy Scouts of Am. v. Dale, 530 U.S. 640, 644,
120 S.Ct. 2446, 147 L.Ed.2d 554 (2000)). See Grace United Methodist
Church v. City of Cheyenne, 451 F.3d 643, 658 (10th Cir. 2006) (“In
addition to freedom of speech, the First Amendment also implicitly
protects the corresponding freedom to expressive association.”). The
First Amendment protects associational rights in two distinct ways: (i)
it “protects against unjustified government interference with an
individual's choice to enter into and maintain certain intimate or
private relationships”; and (ii) it ensures “the freedom of individuals to
associate for the purpose of engaging in protected speech or religious
activities.” Bd. of Dirs. v. Rotary Club of Duarte, 481 U.S. 537, 544,
107 S.Ct. 1940, 95 L.Ed.2d 474 (1987). See Grace United Methodist
Church v. City of Cheyenne, 451 F.3d at 658.
. . . Indeed, there is no independent First Amendment right of
expressive association; the First Amendment protects the freedom of
association only in certain circumstances. See City of Dallas v.
Stanglin, 490 U.S. 19, 23, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989)
(“While the First Amendment does not in terms protect a ‘right of
association,’ our cases have recognized that it embraces such a right
in certain circumstances.”). Although an opportunity “might be
described as ‘associational’ in the common parlance,” it does not
necessarily follow that it involves “the sort of expressive association
that the First Amendment has been held to protect.” City of Dallas v.
Stanglin, 490 U.S. at 24, 109 S.Ct. 1591. Although “[i]t is possible to
find some kernel of expression in almost every activity a person
undertakes ... such a kernel is not sufficient to bring the activity within
the protection of the First Amendment.” City of Dallas v. Stanglin, 490
U.S. at 25, 109 S.Ct. 1591.
A.M. ex rel. Youngers v. New Mexico Dept. of Health, 117 F. Supp. 3d 1220,
1243–44 (D.N.M. 2015). The court agrees with the defendants that the
plaintiff’s claim alleges some generalized right to associate that does not fall
within the First Amendment’s protection. Even assuming the allegations
about Chief Dinkel’s comments were true, they amount to nothing more than
conversational advice, and they carry no remote possibility of having denied
the plaintiff of any constitutional right.
Count 5—Destruction of Evidence
The plaintiff alleges the defendants acted individually and jointly
in conspiracy by destroying evidence concerning her DUI arrest “that would
have benefited Plaintiff at trial and in the driver’s license proceeding” and
that “[a]bsent this misconduct, the prosecution of Plaintiff could not and
would not have been pursued.” ECF# 1, ¶¶ 234, 235. The plaintiff’s
complaint includes these factual allegations:
155. Chief Cole Dinkel destroyed evidence by deliberately failing to
switch his microphone input from his car microphone to his personal
microphone unit while interviewing Plaintiff outside of the police
vehicle. Evidence of that exchange would have helped Plaintiff at trial
because Chief Cole Dinkel refused to provide medical care and made
other statements which would have helped Plaintiff’s criminal and
driver’s license cases.
160. Chief Cole Dinkel colluded with Wilmer Dinkel and/or some other
county employee to destroy the DUI check lane video taken of Plaintiff
on June 19, 2015 by destroying the DUI audio video recording
163. Plaintiff believes that Chief Dinkel informed his father, Wilmer
Dinkel of the situation, and then Wilmer Dinkel destroyed or had
someone else erase the hard drives on the DUI audio/video machine
which wiped out the recording of the Plaintiff along with that of many
other county arrestees.
ECF# 1. The defendants argue these conclusory allegations are divorced
from the facts that no body mic recording was made, that the videos
produced by the County Attorney included some unreadable portions, and
that an equipment manufacturer said such malfunctions were rare. The
defendants characterize the plaintiff’s allegations of the defendants
destroying evidence as being “entirely conjectural and speculative.” ECF#
33, p. 29. As already noted above, the plaintiff has not controverted either
Chief Dinkel’s averment or Wilmer Dinkel’s averment that they did not
destroy any evidence concerning the plaintiff and they did not ask, conspire,
or collude with anyone else to destroy evidence. In response, the plaintiff
argues the existing recording shows she requested medical care, but Chief
Dinkel still testified in the “driver’s license review hearing” that the plaintiff
did not request medical care prior to arriving at the hospital. ECF# 47, p. 29.
From this, the plaintiff asks the court to assume that because Chief Dinkel
was “willing to lie” about this topic at the hearing then it would be no
“stretch to assume that he might destroy evidence” to cover himself on this
topic. Id. In reply, the defendants say that the recording shows the plaintiff
requested additional blood work not medical care and that the plaintiff has
no material facts from which to infer the destruction of evidence.
On a § 1983 claim, the due process right to a fair trial
encompasses a duty “to disclose and preserve impeachment/exculpatory
evidence.” Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999)(citations
omitted). “Under Youngblood [Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct.
333, 102 L.Ed.2d 281 (1988)], a defendant can establish a due process
violation if he can show that (1) the government failed to preserve evidence
that was ‘potentially useful’ to the defense; and (2) the government acted in
bad faith in failing to preserve the evidence.” Riggs v. Williams, 87 Fed.
Appx. 103, 106 (10th Cir.) (citation omitted), cert. denied, 541 U.S. 1090
(2004). “Supreme Court authority makes clear that when dealing with lost or
destroyed evidence, ‘unless a criminal defendant can show bad faith on the
part of the police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law.’” Snow v. Sirmons, 474 F.3d 693,
716 (10th Cir. 2007) (quoting Youngblood, 488 U.S. at 58)(emphasis
deleted). “The Court therefore imposed the requirement that the defendant
show bad faith on the part of the police when potentially exculpatory
evidence is lost or destroyed.” Id.; See United States v. Fletcher, 801 F.2d
1222, 1224-25 (10th Cir. 1986) (“Absent evidence of police or prosecutorial
bad faith or misconduct, [relief is] warranted only if the missing evidence
possesses an exculpatory value that was apparent before the evidence was
destroyed.”). “[T]he inquiry into bad faith must necessarily turn on the
police's knowledge of the exculpatory value of the evidence.” Riggs v.
Williams, 87 Fed.Appx. at 106 (internal quotation marks and citation
omitted). Thus, the “mere fact that the government controlled the evidence
and failed to preserve it is by itself insufficient to establish bad faith.” Id.
(quoting United States v. Bohl, 25 F.3d 904, 910 (10th Cir. 1994)).
As the defendants’ motion shows, the plaintiff has no evidence or
factual basis for alleging that there was evidence destroyed. Nor does the
plaintiff explain how any evidence that she requested medical care earlier
than the hospital would have been exculpatory in her DUI prosecution or in
the administrative driver’s license proceedings. Consequently, the plaintiff’s
claim is nothing more than conjecture and speculation on whether there is
missing evidence, whether it was exculpatory, and whether there was any
bad faith on the defendants’ part. The plaintiff fails to allege a claim for
relief, as she is essentially asserting a constitutional right for the police to
create exculpatory evidence. She has no authority for such a right. As for
the recordings allegedly not preserved or destroyed, the plaintiff does not
allege any exculpatory value in the recordings. Indeed, the plaintiff
admittedly alleges in her complaint that she “unwisely drove two blocks to
the church while under the influence of alcohol (for pain) and eventually
blew .011 in the county breathalyzer.” ECF#1, ¶ 116.The simple fact that
the defendant controlled evidence and the plaintiff’s simple hope that the
defendants would have some exculpatory evidence are insufficient to make a
claim of bad faith destruction of evidence.
Count 6—Right to Counsel
The plaintiff’s complaint reads in pertinent part:
141. Plaintiff was entitled under Kansas law to consult with an attorney
as soon as the breathalyzer test was completed or refused.
142. Plaintiff requested from Cole Dinkel to be allowed to contact an
attorney prior to chemical testing and was informed by Defendant Cole
Dinkel that Kansas law did not allow for that.
143. Defendant Cole Dinkel failed to further advise Plaintiff that she
was entitled to an attorney after she completed chemical testing.
144. Plaintiff was therefore deprived of access to counsel from the
time of completing the breathalyzer test at the sheriff’s office until
much later in the evening.
243. Defendant Cole Dinkel failed to allow plaintiff to contact an
attorney immediately after the Plaintiff complied with the breathalyzer
244. The Defendant Ellis County failed to appoint an attorney for the
Plaintiff in a district court appeal of the driver’s license administrative
hearing, even though those proceedings are thought to be complex
even for attorneys.
ECF# 1. From the complaint, it appears, as the defendants argue, the
plaintiff is alleging that she requested counsel before any chemical testing
but did not request counsel thereafter, that Chief Dinkel did not advise her
about contacting counsel after the chemical testing, that the plaintiff asked
for additional testing which was provided at the hospital, and that she was
given a chance to contact counsel after being returned from the hospital.
The Victoria defendants argue these allegations do not state a claim for
denial of counsel but only the failure to advise her of “a right she did not yet
have.” ECF# 33 p. 30. The plaintiff responds that the Chief Dinkel failed to
advise her of the right to counsel after the breathalyzer but before the blood
test as required by the Kansas Supreme Court decision of Dumler v. Kansas
Dept. of Revenue, 302 Kan. 420, 354 P.3d 519 (2015). The Ellis County
defendants note that they did give the plaintiff an opportunity to consult her
attorney, but the plaintiff complains that it was not until she was returned to
the jail and her attorney already “retired for the evening.” ECF# 58, p. 5.
They also argue that the plaintiff had no Sixth Amendment right to legal
representation in the administrative proceedings, and the plaintiff does not
respond to this argument. In reply, the defendants note the right in Dumler
is purely a creature of state statute.
The plaintiff’s complaint alleges a denial only in not being
advised of a right to counsel after the breathalyzer test and failure to
appoint counsel in her driver’s license administrative proceedings. Section
1983 “is not itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred by those parts of the United
States Constitution and federal statutes.” Baker v. McCollan, 443 U.S. 137,
144 n.3 (1979). “[T]he Sixth Amendment right to counsel applies only to
criminal proceedings.” Smith v. Sec. of New Mexico Dept. of Corrections, 50
F.3d 801, 821 (10th Cir. 1995) (citing see Maine v. Moulton, 474 U.S. 159,
170 (1985)); see Beaudry v. Corrections Corp. of Am., 331 F.3d 1164, 1169
(10th Cir. 2003)(“[P]laintiffs have no Sixth Amendment right to counsel in a
civil case.”), cert. denied, 540 U.S. 1118 (2004). Nor does the plaintiff have
a cognizable claim under § 1983 based upon a defendant’s violation of a
state statute. Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir. 2002).
Because the plaintiff alleges only a violation of the Kansas statutory right
recognized in Dumler and alleges no violation of a constitutional right, she
brings no cognizable claim for § 1983 relief.
Count 7—Due Process-Conditions of Confinement
The plaintiff’s complaint alleges her constitutional right to be free
from cruel and unusual punishment was violated in several different ways.
She was placed in a cell that could not accommodate more than one person
sleeping “off the floor” and that her cellmate was mentally instable and
threatened the plaintiff. She had medical issues that were not attended to
while in jail, including failure to follow discharge orders from the hospital
emergency room by not filling prescriptions and by not taking blood pressure
checks. She was not provided help for emptying her bladder. The plaintiff
alleges injuries that include emotional distress, intense pain, and loss of
The defendant notes the uncontroverted evidence establishes
that the plaintiff was treated at the hospital before she was booked into the
jail and was released from custody less than sixteen hours later. During her
brief period of custody, the plaintiff did not inform the defendant staff of any
serious health problems, and the staff did not observe the plaintiff to be
suffering from any serious medical conditions. When the plaintiff did
complain of a toothache, the staff took her to the urgent care facility where
she received additional blood pressure medication. In sum, the plaintiff
received medical care twice within a 24-hour period, and there is no medical
evidence of any diagnosis of a serious medical need that went untreated.
The jail staff denies knowledge of any alleged bladder condition, and there is
no evidence of this being a serious medical condition. The defendants deny
that the double bunking of the plaintiff for less than 16 hours does not rise
to a constitutional violation. The cellmate’s threatening gestures do not
sustain an Eighth Amendment claim, and even if they did, the plaintiff failed
to notify the defendants as to show deliberate indifference. The plaintiff
responds that the defendants did not answer her calls for assistance during
her incarceration. In reply, the defendants point out that the plaintiff’s
complaint alleges that she received a “dental block” at the hospital but that
it “wore off in the early morning hours of June 20th” and she did not receive
treatment. ECF# 1, ¶ 167. The defendants also note that the plaintiff was
alone in her cell from 2:45 am through 6:10 am., as her cellmate was at the
hospital being treated.
The treatment and conditions of incarceration are subject to
Eighth Amendment scrutiny which “imposes duties on these officials, who
must provide humane conditions of confinement; prison officials must ensure
that inmates receive adequate food, clothing, shelter, and medical care, and
must take reasonable measures to guarantee the safety of the inmates.”
Farmer v. Brennan, 511 U.S. 825 832 (1994) (internal quotation marks and
citations omitted). The due process rights of a pretrial detainee parallel the
Eighth Amendment rights of an inmate. Lopez v. LeMaster, 172 F.3d 756,
759 (10th Cir. 1999); see City of Revere v. Massachusetts General Hosp.,
463 U.S. 239, 244-45 (1983). “To prevail on a conditions of confinement
claim under the Eighth Amendment, an inmate must establish that (1) the
condition complained of is sufficiently serious to implicate constitutional
protection, and (2) prison officials acted with deliberate indifference to
inmate health or safety.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir.
2001)(internal quotation marks and citations omitted). To meet the first
requirement, “the inmate must show that he is incarcerated under conditions
posing a substantial risk of serious harm.” Id. For the second requirement,
deliberate indifference is “more than mere negligence” but equal to
“recklessness, in which a person disregards a risk of harm of which he is
aware.” Id. at 972. The plaintiff’s allegations fail to show that the conditions
of her 16-hour confinement in jail rise were sufficiently serious as to
implicate constitutional protection. Even assuming such allegations, the
plaintiff’s complaint utterly fails to allege facts sufficient to infer deliberate
indifference on the defendants’ part. The plaintiff has failed to controvert the
conclusive facts and rebut the compelling legal arguments that the
defendants have made for dismissal of these claims.
To prevail on a medical care claim, “deliberate indifference to
serious medical needs of prisoners constitutes the ‘unnecessary and wanton
infliction of pain’ . . . proscribed by the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 91, 104 (1976). The Tenth Circuit has applied the rule
from Estelle to “pretrial detainees” holding that they are “’entitled to the
degree of protection against denial of medical attention which applies to
convicted inmates.’” Estate of Booker v. Gomez, 745 F.3d 405, 429 (10th
Cir. 2014) (quoting Garcia v. Salt Lake Cnty., 768 F.2d 303, 307 (10th Cir.
1985)). A “due process standard” applies that “protects pretrial detainees
against deliberate indifference to their serious medical needs.” Id. The
following is the law governing the plaintiff’s claim:
To state a denial of medical care claim, a plaintiff must satisfy “both an
objective and a subjective component.” Mata v. Saiz, 427 F.3d 745,
751 (10th Cir. 2005) (quotations omitted). First, the detainee must
“produce objective evidence that the deprivation at issue was in fact
sufficiently serious.” Id. (quotations omitted). “[A] medical need is
sufficiently serious if it is one . . . that is so obvious that even a lay
person would easily recognize the necessity for a doctor's attention.”
Id. (quotations omitted); see also Sealock v. Colorado, 218 F.3d 1205,
1209 (10th Cir. 2000) (same).
Second, under the subjective component, the detainee must
establish deliberate indifference to his serious medical needs by
“present[ing] evidence of the prison official's culpable state of mind.”
Mata, 427 F.3d at 751. He must show that the prison “official acted or
failed to act despite his knowledge of a substantial risk of serious
harm.” Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994). “The Supreme Court [has] cautioned that ‘an
inadvertent failure to provide adequate medical care’ does not rise to a
constitutional violation.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th
Cir.2009) (quoting Estelle, 429 U.S. at 105–06, 97 S.Ct. 285). But
“[w]hether a prison official had the requisite knowledge of a
substantial risk is a question of fact subject to demonstration in usual
ways, including inference from circumstantial evidence.” Gonzales v.
Martinez, 403 F.3d 1179, 1183 (10th Cir.2005) (quoting Farmer, 511
U.S. at 842, 114 S.Ct. 1970).
Estate of Booker, 745 F.3d at 430. The plaintiff’s allegations and evidence do
not present a question of fact over the seriousness of the plaintiff’s medical
needs in light of the care and treatment that she received during the 16
hours of confinement. She arrived that evening having been treated and
medicated for her needs, and the next morning she received additional
medical treatment and was released before noon. These same
uncontroverted facts prevent any plausible allegation that the defendants
acted with deliberate indifference to her medical needs.
Count 8—Due Process
Under this count, the plaintiff materially alleges:
263. As described more fully above, all of the Defendants, while
acting individually, jointly, and in conspiracy, as well as under color of
law and within the scope of their employment, deprive Plaintiff of her
constitutional right to due process.
264. In the manner described more fully above, the Defendants
deliberately violated the constitutional rights of Plaintiff by deliberately
destroying evidence, causing the Plaintiff to be arrested for disorderly
conduct with no basis in fact for the arrest, and by demanding that
Plaintiff agree to pay for emergency medical services as a condition of
transporting his prisoner, to the Emergency Room for medical
ECF# 1. In opposing dismissal/summary judgment, the plaintiff argues this
due process claim is based on the officers processing her DUI arrest while
failing to provide medical care and medication for her abscessed tooth and
high blood pressure. Specifically, the plaintiff complains the defendants
investigated her DUI rather than addressing her medical needs and then
refused to help her. As for any allegation concerning the lawfulness of her
arrest, the plaintiff has not controverted facts establishing that she
committed driving violations leading to the traffic stop, that there was a
strong odor of alcohol on the plaintiff, and that the breath testing results
showed significant levels of alcohol. The plaintiff has admitted in her
complaint to unlawfully driving under the influence.
The same deliberate indifference standard governs the plaintiff’s
lack of medical care claim here. The plaintiff’s allegations fail to show a
medical need so obvious that “a lay person would easily recognize the
necessity for doctor’s attention.” Estate of Booker, 745 F.3d at 430. The
plaintiff’s alleged medical needs had not forced her to seek immediate
medical care for them prior to the traffic stop and arrest. In fact, they had
not kept her from driving a vehicle while she was admittedly under the
influence of alcohol. The plaintiff’s subjective complaints of seriousness are
not enough under the circumstances to establish the objective component or
to provide the defendants with the requisite knowledge for the subjective
Count 9—14th Amendment—Right to Privacy
The plaintiff alleges here:
270. In the manner described more fully above, the Defendants
deliberately violated Plaintiff’s constitutional right to privacy by
discussing Plaintiff amongst themselves and with other townspeople,
including Plaintiff’s family and business associates, with the intention
of harming the Plaintiff’s income, family relations, and social relations,
commonly known as “meddling.”
271. For no justifiable law enforcement purpose, Defendant Cole
Dinkel cultivated as informants and discussed the Plaintiff’s life with
Plaintiff’s tenants and family, which had a direct and negative impact
on all of their decisions and attitudes in regard to the Plaintiff.
ECF# 1. The defendants recognize that the constitutional right to privacy
includes the interest of informational privacy and protects “the individual
interest in disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589,
599-600 (1977). “An individual is thus protected from disclosure of
information where the individual has a legitimate expectation . . . that it will
remain confidential.” Aid for Women v. Foulston, 441 F.3d 1101, 1116 (10th
Cir. 2006)(internal quotation marks and citation omitted). “The legitimacy
of this expectation depends, at least in part, upon the intimate or otherwise
personal nature of the material which the state possesses.” Sheets v. Salt
Lake County, 45 F.3d 1383, 1387 (10th Cir.) (internal quotation marks and
citation omitted), cert. denied, 516 U.S. 817 (1995).
At most, the plaintiff alleges the defendants may have meddled
in her life by talking about her and her life with family and business
associates. The complaint fails to allege and the plaintiff does not offer proof
that the defendants disclosed personal and confidential information held by
the City about which she had a legitimate expectation of privacy. The
plaintiff’s complaint does not allege interests or actions that implicate a
constitutional right to privacy when it is based on nothing more than a public
employee giving his opinions about others without disclosing confidential
material. Because the plaintiff did not respond to the defendants’ arguments
for dismissal of this count, the court also grants here the defendants’ motion
For each of her federal claims of relief, the plaintiff includes the
conclusory allegation that, “The misconduct described in this Count was
undertaken pursuant to the policy and practice of the City of Victoria in the
manner described more fully above.” ECF#1, ¶¶ 201, 211, 220, 231, 239,
247, 262, 267, 274, 281, and 286. In some of these cited paragraphs, the
plaintiff also names Ellis County, Kansas. The defendant City contends the
plaintiff’s complaint fails to allege a specific policy, to identify the policy, or
to allege the facts indicating the existence of a policy. Instead, the plaintiff
simply repeats this formulaic, conclusory allegation. The plaintiff limits her
response to saying that in her DUI proceedings she requested a copy of all
operating procedures governing the City’s police department and learned
there were none for this two-man department. From this, the plaintiff
characterizes the City as inviting “arbitrary enforcement” and disregard of
citizen’s rights. Finally, the plaintiff concludes, “If the only way that the city
can be held liable is to show that it failed to follow acceptable policies and
procedures, but there are no written policies or procedures, then it would be
impossible to hold (sic) responsible for anything.” ECF# 47, p. 31. In reply,
the defendants note that the lack of written policies does not relieve the
plaintiff from proving a policy and practice.
To prove a § 1983 municipal liability claim, a municipal
employee must have committed a constitutional violation, and “a municipal
policy or custom was the moving force behind the constitutional
deprivation.” Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004)
(citations omitted). The above rulings show the plaintiff has not alleged or is
not able to prove a constitutional violation. The Tenth Circuit has said the
following as to policy or custom:
A municipal policy or custom may take the form of (1) a formal
regulation or policy statement; (2) an informal custom amounting to a
widespread practice that, although not authorized by written law or
express municipal policy, is so permanent and well settled as to
constitute a custom or usage with the force of law; (3) the decisions of
employees with final policymaking authority; (4) the ratification by
such final policymakers of the decisions—and the basis for them—of
subordinates to whom authority was delegated subject to these
policymakers' review and approval; or (5) the failure to adequately
train or supervise employees, so long as that failure results from
deliberate indifference to the injuries that may be caused.
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010)
(internal quotation marks and citations omitted), cert. denied, 564 U.S.
1019 (2011). The court agrees with the defendants that the plaintiff has
failed to allege any viable basis for a municipal policy or custom.
Decline to Exercise Supplemental Jurisdiction
Under 28 U.S.C. § 1367(c), the Court may decline to exercise
supplemental jurisdiction if it has dismissed all claims over which it has
original jurisdiction. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
The Court considers the nature and extent of pretrial proceedings, judicial
economy, convenience and whether fairness would be served by retaining
jurisdiction. Anglemyer v. Hamilton Cty. Hosp., 58 F.3d 533, 541 (10th Cir.
1995). In the usual case, the balance of factors points toward declining to
exercise jurisdiction over the remaining state law claims. McWilliams v.
Jefferson Cty., 463 F.3d 1113, 1118 (10th Cir. 2006). The Court finds no
compelling reasons to exercise supplemental jurisdiction to decide the merits
of plaintiff's state law claims. This ruling on the federal law claims is
occurring early in the litigation. The magistrate judge stayed discovery
pending a ruling on the dispositive motions. ECF# 46. Under these
circumstances, the court declines to exercise supplemental jurisdiction.
IT IS THEREFORE ORDERED that the Victoria defendants’ motion
for summary judgment (ECF# 32) and the Ellis County defendants’ motion
for summary judgment (ECF# 39) are granted as to all federal claims for
relief (Counts 1-11) which are dismissed with prejudice, and the court
declines to exercise supplemental jurisdiction over the plaintiff’s state law
claims for relief (Counts 12-16) which are dismissed without prejudice.
Dated this 18th day of August, 2017, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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