Riggs v. City of Wichita, Kansas et al
Filing
145
MEMORANDUM AND ORDER denying 127 Motion for Summary Judgment. Signed by District Judge Eric F. Melgren on 3/12/2013.Mailed to pro se party Rowana Riggs by certified mail ; Certified Tracking Number: 7011 2000 0000 8323 0119. See Order for details. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROWANA RIGGS,
Plaintiff,
vs.
Case No. 09-1105-EFM
CITY OF WICHITA, KANSAS, CHIEF
NORMAN WILLIAMS, in his official
capacity, CHRISTIAN CORY in his official
and individual capacity,
Defendants.
MEMORANDUM AND ORDER
This case arises out of Plaintiff Rowana Riggs’s arrest that occurred on April 9, 2007, in
Wichita, Kansas. Plaintiff alleges that Defendant Christian Cory, a Wichita police officer,
violated her constitutional rights under 42 U.S.C. § 1983 by using excessive force in effectuating
her arrest. Plaintiff also brings state law claims of intentional infliction of emotional distress and
gross and wanton negligence against Defendant Cory. The matter is now before the Court on
Defendant Cory’s motion for summary judgment. Because there are genuine issues of material
fact precluding summary judgment, the Court denies Defendant’s motion.
I.
Factual and Procedural Background1
On the night of April 9, 2007, Defendant Christian Cory, a Wichita Police Officer,
performed a traffic stop of Plaintiff Rowana Riggs’s vehicle.
Defendant Cory had been
employed by the Wichita Police Department (“WPD”) for approximately seven years. Officer
Cory was in uniform, working third shift, and patrolling in a marked WPD patrol car.
Officer Cory performed the traffic stop in Riggs’s father’s driveway.2 Riggs parked in
the driveway. Officer Cory parked in the street at the end of the driveway and approached the
driver’s side of Riggs’s vehicle on foot. At some point during the incident, Riggs’s daughter,
Brucelle Guillory, approached the vehicle, and Officer Cory tased her. Officer Cory radioed a
call for assistance, and two officers responded. One of the officers, Officer Neal, went directly
to Guillory and took her into custody. After Officer Neal performed a pat down on Guillory, and
after Riggs was in custody, she performed a pat down on Riggs. Officer Neal noticed dirt and
gravel on Riggs, but no injuries.
Officer Cory arrested Riggs and took her to the Sedgwick County Adult Detention
Facility for booking. Riggs was charged and later convicted in Wichita Municipal Court of
resisting arrest, evade and elude, back-up lamps on, and running a stop sign. She appealed those
convictions to Sedgwick County District Court. Riggs subsequently pleaded nolo contendere to
the charge of resisting arrest. The remaining charges were dismissed.
1
In accordance with summary judgment procedures, the Court has set forth the uncontroverted facts, and
they are related in the light most favorable to the non-moving party.
2
Defendant and Plaintiff put forth vastly different versions of the facts surrounding Plaintiff’s arrest. Thus,
the Court will not set forth those facts here, but it will discuss these facts later in this Order.
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On April 9, 2009, Riggs filed this action against Officer Cory, Chief of Police Norman
Williams, and the City of Wichita.3
This Court previously dismissed several claims.4
In
addition, the Court previously dismissed Chief of Police Williams and the City of Wichita.5
At this time, the only remaining claims are: a 42 U.S.C. § 1983 claim for excessive force
against Defendant Cory in his individual capacity; a state law claim for intentional infliction of
emotional distress against Defendant Cory in his individual capacity; and a state law claim of
gross and wanton negligence against Defendant Cory in his “individual capacity, and in his
official capacity, but only to the extent that such claim relates to plaintiff’s use of excessive
force.”6 Defendant Cory now seeks summary judgment on those claims remaining against him.
II.
Legal Standard
Summary judgment is appropriate if the moving party demonstrates that “there is no
genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.”7
The Court must view the evidence and all reasonable inferences in the light most favorable to the
nonmoving party.8 The moving party bears the initial burden of demonstrating the absence of a
3
When Riggs filed this action, she filed as a pro se litigant. The Court subsequently appointed counsel,
and several different counselors have represented her at different times over the past several years, including during
summary judgment briefing. But Riggs is once again proceeding pro se.
4
See Doc. 32.
5
See Doc. 86.
6
With respect to the gross and wanton negligence claim, the Court has issued two previous orders. See
Docs. 32, 86. In Doc. 32, the Court stated that this claim survived against Defendant Cory in his official and
individual capacity. But the Court also stated in that Order that all state law claims against Defendant Cory in his
official capacity were dismissed. In Doc. 86, the Court noted that it may have incorrectly stated in its December 21
Order that Plaintiff’s gross and wanton claim survived against Defendant Cory in his official capacity. The Court,
however, declined to resolve the matter at that time. The Court will now resolve the issue and make clear that the
gross and wanton negligence claim only survives against Defendant Cory in his individual capacity.
7
Fed. R. Civ. P. 56(a).
8
LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
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genuine issue of material fact.9 To meet this standard, the moving party need not disprove the
nonmoving party’s claim; rather, the movant must simply point out the lack of evidence on an
essential element of the nonmoving party’s claim.10
If the moving party carries its initial burden, the party opposing summary judgment
cannot rest on the pleadings but must bring forth “specific facts showing a genuine issue for
trial.”11 “To accomplish this, the facts must be identified by reference to affidavits, deposition
transcripts, or specific exhibits incorporated therein.”12
Conclusory allegations alone are
insufficient to defeat a properly supported motion for summary judgment.13
III.
Analysis
A. Plaintiff’s 42 U.S.C. § 1983 Claim
1.
Reasonableness of Excessive Force
Defendant first argues that he is entitled to summary judgment on Plaintiff’s § 1983 claim
because the uncontroverted facts demonstrate that his use of force was objectively reasonable.
“Claims of excessive force are analyzed under the objective reasonableness standard of the
Fourth Amendment.”14 The reasonableness of the officer’s actions must be assessed from the
officer’s perspective on the scene, understanding that the officer is under stressful and dangerous
9
Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986)).
10
Id. (citing Celotex, 477 U.S. at 325).
11
Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005).
12
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998).
13
White v. York Int’l Corp., 45 F.3d 357, 363 (10th Cir. 1995).
14
Medina v. Cram, 252 F.3d 1124, 1131 (10th Cir. 2001).
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circumstances requiring split-second decisions.15 There are several relevant factors when
considering whether the amount of force exercised was objectively reasonable: (1) the severity of
the underlying offense, (2) whether the suspect posed an immediate threat to the officer, and (3)
whether the suspect was actively resisting arrest.16
Objective reasonableness is a legal
determination in the absence of disputed facts.17
In this case, the underlying facts are in dispute.
With respect to the first factor,
Defendant concedes that it weighs in Plaintiff’s favor because Plaintiff was stopped for
“relatively low-severity misdemeanors.” Plaintiff, however, controverts that she engaged in any
crime prior to being stopped by Defendant. Thus, the parties disagree over the events leading up
to Plaintiff’s arrest.
The second and third factors overlap in this case. Again, the parties provide two different
versions of the facts. Defendant contends that Plaintiff was unresponsive to his requests for
compliance, reached for his taser, repeatedly turned her body towards him, yelled for assistance
from bystanders, and violently struggled with him.
Thus, he contends that his muscling
techniques, three closed-fist strikes, four knee kicks, and three taser drive-stuns to Plaintiff were
all an objectively reasonable effort to subdue Plaintiff.
Plaintiff controverts that she was
unresponsive and claims that she did not say anything except once asking “why are you beating
me” and stating that she “didn’t do anything.”
Plaintiff asserts that Defendant hit her
approximately forty to fifty times, kicked her, and tased her multiple times. She also testified in
15
Id.
16
Id.
17
Id.
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her deposition that she was simply covering up her body to protect herself from Defendant’s
blows. Accordingly, there are factual issues as to the second and third elements.
With regard to the third element of resisting arrest, the Court notes that Plaintiff pled nolo
contendere to resisting arrest, and this conviction is now on her record. Defendant argues that
due to the Heck preclusion doctrine, Plaintiff’s conviction bars all or most of Plaintiff’s claim. In
Heck v. Humphrey, the United States Supreme Court found that a claim for damages in a § 1983
suit is not cognizable if a judgment favorable to the plaintiff would necessarily imply the
invalidity of the underlying conviction.18 Defendant contends that Plaintiff seeks to relitigate the
underlying facts of her arrest which would invalidate her conviction for resisting arrest.
The Court has concerns over whether Heck applies because Plaintiff is not in custody and
thus habeas relief is unavailable.19 More importantly, even if Heck is applicable, a favorable
judgment for Plaintiff on her excessive force claim would not necessarily invalidate her
conviction for resisting arrest. To determine whether Plaintiff’s success on her §1983 claim
would invalidate her underlying conviction, the court must consider the elements of the
underlying criminal offense.20 Plaintiff pled nolo contendere to the City of Wichita’s Municipal
Code § 5.72.010(a) which provides: “Resisting Police Officers. It is unlawful for any person to
resist or oppose any police officer in the discharge of any official duty.” The officer’s force is
not an element of resisting arrest and the finding that defendant used excessive force would not
necessarily invalidate or undermine Plaintiff’s criminal conviction. Plaintiff does not challenge
18
512 U.S. 477, 486-87 (1994).
19
See Jiron v. City of Lakewood, 392 F.3d 410, 413 n.1 (10th Cir. 2004) (noting that “[f]ive Justices of the
Supreme Court have now concluded that Heck does not apply when a plaintiff is not in custody” but declining to
reach the issue of whether Heck applicable in the case before the court); see also Jackson v. Loftis, 189 F. App’x.
775, 778-89 (10th Cir. 2006) (declining to decide the issue of Heck applicability).
20
See Martinez v. City of Alburquerque, 184 F.3d 1123, 1125 (10th Cir. 1999).
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the lawfulness of her arrest and conviction, but rather challenges Defendant’s use of excessive
force in effectuating her arrest. Thus, Plaintiff’s previous resisting arrest conviction does not
necessarily foreclose an excessive force claim here.21
Defendant contends that there is no admissible competent evidence controverting the fact
that Plaintiff resisted and analogizes the facts to the facts in Hinton v. City of Elwood, Kansas in
which the Tenth Circuit found that an officer’s use of force was objectively reasonable due to the
plaintiff’s resistance.22 In Hinton, the plaintiff admitted that he refused to talk with the police,
shoved an officer, and was actively and openly resisting the officers by biting them.23 In
addition, the plaintiff’s own expert testified that the officers’ actions of wrestling the plaintiff to
the ground were not inappropriate.24
In this case, Plaintiff controverts the actions that Defendant claims were the reason for his
excessive force. To be sure, Plaintiff’s conviction for resisting arrest will be relevant in the
determination of whether Defendant used excessive force to effectuate her arrest. And the
charging document explaining the basis for Plaintiff’s resisting arrest conviction states, “[R]esist
or oppose Off. Cory #1927 in the discharge of his/her official duty by rolling on ground pulling
away to defeat arrest.” But the Court is unable to discern as a matter of law at what point
Defendant engaged in excessive force. Taking Plaintiff’s version of the facts, she claims that
21
Defendant also argues that collateral estoppel applies and bars Plaintiff’s claim. The Court disagrees.
Collateral estoppel requires that the issue previously decided be identical with the issue presented in the current
action. See Frandsen v. Westinghouse Corp., 46 F.3d 975, 978 (10th Cir. 1995). There was no previous
determination regarding Defendant’s use of force because the use of force was not an element of Plaintiff’s resisting
arrest charge.
22
997 F.2d 774 (10th Cir. 1993).
23
Id. at 781.
24
Id.
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Defendant started beating her before she had exited her vehicle and was told that she was under
arrest. There are too many disputed facts and credibility determinations for the Court to make a
ruling as a matter of law that Defendant’s use of force was objectively reasonable at the
summary judgment stage.
2.
Qualified Immunity
Defendant Cory next argues that he is entitled to summary judgment because of qualified
immunity.25 “When a defendant asserts qualified immunity at summary judgment, the burden
shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the
constitutional right was clearly established.”26 The Court has discretion as to which factor to
first address.27
a. Constitutional Right
With respect to the first factor, “[i]n excessive force claims, a suspect’s constitutional
rights are not violated if the amount of force used by police was ‘objectively reasonable.’ ”28
“[T]he reasonableness inquiry in excessive force cases overlaps with the qualified immunity
question, which also requires the application of a reasonableness standard in order to determine
25
The Court notes that Defendant Cory states that qualified immunity precludes claims against him in his
official capacity. However, “[q]ualified . . . immunity is available only in suits against officials sued in their
personal capacities, not in suits against governmental entities or officials sued in their official capacities.” Becker v.
Bateman, ___F.3d. ___, 2013 WL 697910, at *2 (10th Cir. Feb. 27, 2013) (citing Starkey ex. rel. A.B. v. Boulder
Cnty. Social Servs., 569 F.3d 1244, 1263 n. 4 (10th Cir. 2009)). Furthermore, the § 1983 claim only remains against
Defendant Cory in his individual capacity. See Doc. 86 (stating that one of the remaining claims includes
“excessive force pursuant to [§] 1983 against Defendant Cory in his individual capacity.”) Thus, the Court will
consider Defendant Cory’s qualified immunity defense in the context of his individual capacity.
26
Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009).
27
Id.
28
Mecham v. Frazier, 500 F.3d 1200, 1203 (10th Cir. 2007) (citing Graham v. Connor, 490 U.S. 386
(1989)).
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whether an officer violated a clearly established right.”29 The Court set forth the standard for
evaluating objective reasonableness and excessive force claims above. And as the Court
previously found, the underlying facts are disputed. At trial, the jury may discredit most or all of
Plaintiff’s testimony, but the Court may not make that credibility determination. At summary
judgment, viewing the circumstances in the light most favorable to Plaintiff, the Court cannot
conclude that Officer Cory’s uncontroverted use of force was objectively reasonable.
b. Clearly established
Plaintiff must also demonstrate that Defendant violated a clearly-established law to
overcome a qualified immunity defense. “[I]n order for the law to be clearly established, there
must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of
authority from other courts must have found the law to be as the plaintiff maintains.”30
Defendant argues that the clearly-established law favors Defendant, not Plaintiff, because the law
clearly demonstrates that his use of force was reasonable in the face of Plaintiff’s escalating and
ongoing resistance to arrest. Defendant’s argument, however, relies on facts that are in dispute.
And the law was clearly established at the time of the alleged violation that Plaintiff had the right
to be free from excessive force.31 Accordingly, the Court denies Defendant’s qualified immunity
defense.
B. Plaintiff’s State Law Claims
Plaintiff also brings state law claims for intentional infliction of emotional distress and
wanton and gross negligence against Defendant Cory in his individual capacity. Because the
29
Medina, 252 F.3d at 1131.
30
Becker, 2013 WL 697910, at *2.
31
See Dixon v. Richer, 922 F.2d 1456, 1460-61 (10th Cir. 1991).
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underlying facts are in dispute, the Court finds that Defendant cannot meet its burden in
demonstrating that there does not exist a genuine issue of material fact. Thus, the Court also
denies Defendant’s motion on these two claims.
IT IS ACCORDINGLY ORDERED this 12th day of March, 2013, that Defendant’s
Motion for Summary Judgment (Doc. 127) is hereby DENIED.
IT IS SO ORDERED.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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