McCoy v. Independence, Kansas, City of et al
Filing
57
MEMORANDUM AND ORDER granting 46 Defendants' Motion for Summary Judgment and denying 55 Plaintiff's Motion for Hearing. Signed by District Judge Julie A. Robinson on 8/26/2013. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KEENAN L. MCCOY,
)
)
Plaintiff,
)
)
)
vs.
)
)
CITY OF INDEPENDENCE,
)
KANSAS, and CLARENCE SNYDER, )
)
)
Defendants.
)
____________________________________)
Case No. 12-1211-JAR-JPO
MEMORANDUM AND ORDER
On March 23, 2011, Plaintiff Keenan L. McCoy was driving with his fifteen-year old
stepson when he was stopped by Officer Clarence Snyder of the Independence, Kansas Police
Department. Snyder and three other backup officers ordered the men out of their vehicle with
guns drawn and handcuffed them before the officers realized that McCoy and his son were not in
fact the suspects in an assault that the officers had been investigating. McCoy filed this case
alleging racial profiling by Officer Clarence Snyder.1
Before the Court is Defendants’ Motion for Summary Judgment (Doc. 46) and Plaintiff’s
Motion for Hearing (Doc. 55) on the summary judgment motion. The summary judgment
motion is fully briefed, and the Court is prepared to rule. While this is a case where race appears
to be the only suspect identifier that matched McCoy or his stepson, it is not a case that involves
1
The Court previously dismissed Kenneth Parker, Chief of Police, and the claims associated with another
incident involving Plaintiff on April 19, 2011 (Doc. 26). Plaintiff represents that these claims, as well as the claims
against the City, were included in the Pretrial Order merely to preserve them for appeal. Doc. 54 at 3 n.1. Plaintiff
represents that the only remaining claim in this case is an equal protection claim against Defendant Snyder in his
individual capacity and the Court confines its analysis to this claim.
a pattern of stopping all or even anyone else based solely on the fact that their race matched the
race of the suspect. Thus, while a stop of one person based solely on race as a suspect identifier,
particularly when other identifiers did not match, may be strong circumstantial evidence of a
Fourth Amendment violation, it is not alone sufficient circumstantial evidence of discriminatory
intent or effect on a racial profiling claim. Accordingly, Defendants’ motion for summary
judgment is granted. The Court does not believe that oral argument would materially assist it in
deciding the issues presented on summary judgment, so the motion for hearing is denied.
I.
Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is “no
genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.”2 In
applying this standard, the court views the evidence and all reasonable inferences therefrom in
the light most favorable to the nonmoving party.3 “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
reasonable jury could return a verdict for the nonmoving party.”4 A fact is “material” if, under
the applicable substantive law, it is “essential to the proper disposition of the claim.”5 An issue
of fact is “genuine” if “‘the evidence is such that a reasonable jury could return a verdict for the
non-moving party.’”6
2
Fed. R. Civ. P. 56(a).
3
City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).
4
Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
5
Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
6
Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
2
The moving party initially must show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.7 In attempting to meet this standard, a movant that
does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim;
rather, the movant need simply point out to the court a lack of evidence for the other party on an
essential element of that party’s claim.8
Once the movant has met this initial burden, the burden shifts to the nonmoving party to
“set forth specific facts showing that there is a genuine issue for trial.”9 The nonmoving party
may not simply rest upon her pleadings to satisfy her burden.10 Rather, the nonmoving party
must “set forth specific facts that would be admissible in evidence in the event of trial from
which a rational trier of fact could find for the nonmovant.”11 To accomplish this, the facts “must
be identified by reference to an affidavit, a deposition transcript, or a specific exhibit
incorporated therein.”12 Rule 56(c)(4) provides that opposing affidavits must be made on
personal knowledge and shall set forth such facts as would be admissible in evidence.13 The
non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations
7
Spaulding v. United Trasp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986)).
8
Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
9
Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
10
Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).
11
Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at
671); see Kannady, 590 F.3d at 1169.
12
Adams, 233 F.3d at 1246.
13
Fed. R. Civ. P. 56(c)(4).
3
unsupported by specific facts, or speculation.14
Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of
every action.”15 In responding 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.”16
II.
Uncontroverted Facts
The following facts are either uncontroverted, stipulated to, or taken in the light most
favorable to Plaintiff. At approximately 8:15 p.m. on March 23, 2011, Independence Police
Officers Christina Johnson, Andrew Reid, Clarence Snyder, and Lt. Lisa Helkenberg responded
to a reported disturbance at a Jiffy Mart on Main Street in Independence, Kansas. When Officer
Johnson arrived, she saw two black males in the parking lot, one of whom identified himself as
Anthony Sterling. He reported that he had been assaulted by two men, and that he knew the
initials, J.B., of one of the men who had assaulted him. When Officer Reid asked Sterling
whether he wanted to press charges, Sterling replied that he did not and that he would “take care
of it on the streets.” Officer Snyder was at the Jiffy Mart for approximately ten minutes and had
an opportunity to observe Sterling. Sterling was 31 years old; he was 5 feet 8 inches and
weighed 155 pounds. Officer Snyder describes Sterling as a short and stocky black male with
dreadlocks that did not extend past his shoulders. None of the officers saw a gun on Sterling.
14
Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citation
omitted).
15
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
16
Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).
4
Approximately one-half hour after leaving the Jiffy Mart call, officers were dispatched to
a fight on North 17th Street; Snyder responded in case the dispatched officers required
assistance. This was J.B.’s residence. Officer Snyder learned that a black male subject named
Anthony “Pig” Sterling had been at the residence and was threatening to shoot people there;
Officer Snyder recognized Sterling’s name from the earlier Jiffy Mart encounter. One of the
witnesses reported a bulge in Sterling’s shirt. Another witness told officers that Sterling was
driving a blue Caprice automobile; another witness told officers that Sterling’s car was a 1993
red Mercury, older model, with 24-inch rims. While at the 17th Street residence, a car drove by
and one of the residents said “that’s the car that Pig was in.” Officer Snyder followed after the
car and performed a “felony stop” along with Officer Reid. Officers Snyder and Reid removed
at least four people from the vehicle—two white males and two black females. Sterling was not
in the vehicle, so the officers explained to the occupants why they had been stopped and released
them to leave.
According to Officer Snyder, a felony car stop is to be performed if an officer believes
there is a dangerous person in a vehicle that could cause injury to officers or the public. The
officers’ protocol for a felony stop includes using their vehicle for safety, drawing their weapon,
and directing the vehicle’s occupants out of the car one at a time, secured by a cover officer until
all occupants are out of the vehicle and secure.
Officer Snyder returned to patrol and looked for Sterling. The parties dispute whether
Snyder had a vehicle description for Sterling’s vehicle, but agree that Snyder did not stop
Plaintiff’s vehicle based on any vehicle description.
Just after 9:00 p.m., Plaintiff and his fifteen year-old stepson, I.K., were driving east in a
5
1988 gold Cadillac on Myrtle Street, on their way to rent a Redbox video. At a traffic light at
10th Street, Plaintiff noticed a police cruiser driven by Officer Snyder headed south on 10th
Street, which turned right to head west on Myrtle. Officer Snyder testified that when he
observed Plaintiff’s vehicle as he passed by it, he believed the person in the passenger seat was
Sterling. Snyder made an abrupt U-turn on Myrtle and got behind Plaintiff’s vehicle, turned on
his emergency lights, and performed a traffic stop. Officer Snyder called for backup, advising
dispatch that he thought he had the subject they were looking for. In the meantime, Snyder
instructed Plaintiff to turn off his car and Plaintiff complied. Officer Reid arrived within about
two minutes, followed by a third and fourth patrol car, driven by Officer Johnson and Lt.
Helkenberg.
After Reid arrived, Officer Snyder got out of his patrol car and stood behind the driver’s
door. Plaintiff followed Officer Snyder’s directive to take off his seat belt and open his door
with his right hand. Officer Snyder then instructed Plaintiff to face away from the officers, place
his hands behind his back and walk backwards toward the sound of his voice. Officer Johnson
approached Plaintiff from Officer Snyder’s left side, with his firearm drawn. Officer Snyder’s
service weapon was trained on Plaintiff. Plaintiff noticed that I.K. was shaking with fear.
Officer Johnson approached Plaintiff and patted him down for weapons. Plaintiff was
upset and asked what this was about. Johnson told Plaintiff that they were “looking for
someone.” Officer Snyder next instructed I.K. to get out of the car in the same manner in which
Plaintiff was directed out of the car. I.K. was a fifteen-year-old black male wearing a white Tshirt and gray sweats; he was about six feet tall and weighed 280 pounds. I.K’s hair was worn in
an afro that extended at least five inches away from his head. By the time Lt. Helkenberg
6
arrived at the scene, Officers Snyder and Reid were both pointing their firearms at Plaintiff and
I.K.; Reid was pointing a shotgun. Lt. Helkenberg told the officers that I.K. was not Sterling.
Another officer commented, “that is not even them.” Officer Johnson released Plaintiff and
before Officer Snyder could tell them they were free to go, Plaintiff became angry, yelling
expletives and repeatedly asking Officer Snyder for his name. Eventually, Plaintiff and I.K. left
the scene.
The Independence Police Department (“IPD”) never did obtain an arrest warrant for
Sterling—the person who was assaulted failed to cooperate. The officers did not look for
Sterling or stop any other vehicles that evening in pursuit of Sterling after they stopped
Plaintiff’s vehicle. There were never any charges filed against Sterling.
Plaintiff filed a complaint with the Kansas Human Rights Commission (“KHRC”) on
April 25, 2011, claiming that he and his son had been victims of racial profiling in conjunction
with the March 25, 2011 incident, as well as two other interactions Plaintiff had with IPD that
are not the subject of the remaining claim in this case.
The video of this stop was recorded on Johnson’s patrol car that evening but there is a
fifteen second audio gap. The video is no longer maintained by the IPD and Lt. Helkenberg does
not know what happened to the recording. Plaintiff obtained a copy for this litigation from the
KHRC.
The IPD has a policy prohibiting racial profiling. That policy provides as follows:
It is the policy of the Independence Police Department to treat all
persons having contact with this agency in a fair, equitable, and
objective manner, in accordance with law, and without
consideration of their race, ethnicity, national origin, gender,
religious dress or other individual characteristics.
7
….
“Racial Profiling” means the practice of a law enforcement officer
or agency relying, as the sole factor, on race, ethnicity, national
origin, gender or religious dress in selecting which individuals to
subject to routine investigatory activities, or in deciding upon the
scope and substance of law enforcement activity following the
initial routine investigatory activity. Racial profiling does not
include reliance on such criteria in combination with other
identifying factors when the law enforcement officer or agency is
seeking to apprehend a specific suspect whose race, ethnicity,
national origin, gender or religious dress is part of the description
of the suspect.17
On February 24, 2011, Snyder and other IPD officers attended a two-hour training
course on racial profiling provided by the KHRC. Snyder does not remember anything about
this training, but understands racial profiling to mean that “you cannot enforce the laws against
any one race, color, religion strictly based on that race, color, or religion.” Snyder’s supervisor,
Lt. Helkenberg recalls that the training was boring, but understands that it might not be boring
for black citizens. She understands racial profiling is the use of race, gender, any of the
protected persons as the sole basis for the consensual or nonconsensual investigation, stop, frisk
or search of persons.
III.
Discussion
The City and Snyder move for summary judgment on the remaining claim in this case—
racial profiling claim against Officer Snyder in his individual capacity.18 Defendants argue that
Plaintiff cannot demonstrate a constitutional violation and that Snyder is entitled to qualified
17
Doc. 48, Ex. 9 at 1–2.
18
Defendants also moved for summary judgment to the extent Plaintiff asserted a claim for excessive force.
Judge O’Hara denied Plaintiff’s motion to amend to add a claim for excessive force after the summary judgment
motion was filed, so the Court need not address this claim. See Doc. 53.
8
immunity.
Defendant Snyder contends that he is entitled to qualified immunity on Plaintiff’s racial
profiling claim. When a qualified immunity defense has been raised on summary judgment, the
plaintiff must demonstrate that (1) the defendant’s actions violated a constitutional or statutory
right, and (2) the constitutional or statutory rights the defendant allegedly violated were clearly
established at the time of the conduct at issue and under the circumstances in question.19 The
court may decide the appropriate order to consider these issues.20 If plaintiff makes this showing
then the burden shifts back to the defendant to demonstrate that there are no genuine issues of
material fact and that he or she is entitled to judgment as a matter of law.21 “A qualified
immunity defense will not succeed [upon summary judgment] . . . when the facts considered
collectively present an incomplete picture of the relevant circumstances.”22
Qualified immunity protects public officials performing discretionary functions unless
their conduct violates “clearly established statutory or constitutional rights of which a reasonable
person would have known.”23 Qualified immunity leaves “ample room for mistaken judgments,”
protecting “all but the plainly incompetent or those who knowingly violate the law.”24 “The
relevant dispositive inquiry in determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was unlawful in the situation he
19
See Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011), cert. denied, 133 S. Ct. 211 (2012).
20
Camreta v. Greene, 131 S. Ct. 2020, 2031–32 (2011).
21
Id.
22
Olsen v. Layton Hills Mall, 312 F.3d 1304, 1314 (10th Cir. 2002) (internal quotation omitted).
23
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
24
Malley v. Briggs, 475 U.S. 335, 341 & 343 (1986).
9
confronted.”25
In determining whether the plaintiff has met his burden of establishing a constitutional
violation that was clearly established, a court construes the facts in the light most favorable to
the plaintiff as the non-moving party.26 “[T]his usually means adopting . . . the plaintiff’s
version of the facts,” unless that version “is so utterly discredited by the record that no
reasonable jury could have believed him.”27 The Court has reviewed the videotape recording
submitted by the parties and finds that it does not blatantly contradict Plaintiff’s version of the
events surrounding the traffic stop on March 23, 2011.28
Plaintiff alleges a racial profiling claim against Snyder, based on his decision to conduct
a felony stop of Plaintiff’s vehicle on March 23, 2011. Such an equal protection claim requires
Plaintiff to show clear evidence that Snyder’s actions “had a discriminatory effect and were
motivated by a discriminatory purpose”29 in order to overcome the presumption that law
enforcement conduct did not violate equal protection.30 While the discriminatory purpose need
not be the only purpose, it must be a motivating factor in the decision.31 “Discriminatory
purpose can be shown by demonstrating that the ‘decisionmaker . . . selected or reaffirmed a
25
Saucier v. Katz, 533 U.S. 194, 202 (2001).
26
Scott v. Harris, 550 U.S. 372, 378–80 (2007); Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)
(noting that the Tenth Circuit “accept[s] the facts as the plaintiff alleges them”).
27
Scott, 550 U.S. at 378, 380. In Scott, the plaintiff’s testimony was discredited by a videotape that
completely contradicted his version of events. Id. at 379.
28
Doc. 48, Exs. L, M.
29
Marshall v. Columbia Lea Reg. Hosp., 345 F.3d 1157, 1168 (10th Cir. 2003).
30
Id.; see also United States v. Armstrong, 517 U.S. 456, 465 (1996).
31
Marshall, 345 F.3d at 1168.
10
particular course of action at least in part because of, not merely in spite of, its adverse effects
upon an identifiable group.’”32 Here, Plaintiff does not rely on statistical evidence to show
discriminatory purpose. Instead, he relies on the actions of a particular officer during a single
incident. In this context, the Court should consider Snyder’s “pattern of traffic stops and arrests,
his questions and statements to the person involved, and other relevant circumstances [to]
support an inference of discriminatory purpose.33
Plaintiff points to the following facts regarding Snyder’s discriminatory purpose: (1) the
decision to stop was not based on a traffic violation; (2) Plaintiff’s car did not match the
description of the car Sterling was reportedly driving; (3) Plaintiff did not match the description
of Sterling; and (4) I.K. did not resemble Sterling.
It is uncontroverted that Snyder did not stop Plaintiff’s vehicle because of a traffic
violation, or based on a vehicle description. When Snyder passed by Plaintiff’s vehicle on
Myrtle Street, he briefly glimpsed at the occupants. He testified at his deposition that he
believed Sterling was sitting in the passenger seat of the vehicle. This belief was based on his
personal observation of Sterling earlier that evening for approximately ten minutes. Snyder
explains the mistaken identification by noting that I.K. was seated in the vehicle, so physical
characteristics like height and weight were difficult to discern. Viewing the facts in the light
most favorable to Plaintiff, other glaring disparities in these individuals’ resemblance should
have been readily apparent to Snyder: I.K. did not have dreadlocks, but an afro that extended
32
Farm Labor Organizing Comm. v. Ohio St. Highway Patrol, 308 F.3d 523, 534 (6th Cir. 2002) (quoting
Wayte v. United States, 470 U.S. 608, 610 (1985)).
33
Marshall, 345 F.3d at at 1168–69; McNeal v. Losee, No. 08-2472, 2009 WL 1580274, at*6 (D. Kan. June
3, 2009)
11
five inches from his head; and, importantly; I.K. weighed over 100 pounds more than Sterling;
the men are approximately fifteen years apart in age. Viewing the evidence in the light most
favorable to Plaintiff, race was the primary basis for stopping Plaintiff’s vehicle.
But the Court is unable to conclude that stopping Plaintiff’s car on the race based suspect
identifier, standing alone, constitutes clear evidence of discriminatory purpose under Marshall.
Unlike other cases in which discriminatory purpose is found, the police in this case did not
perform a pretextual stop of Plaintiff’s vehicle based on race—race was one accurate criteria that
described Sterling’s appearance, albeit the only criteria that matched Plaintiff and I.K’s
appearance.34 While the Court recognizes that circumstantial evidence alone can support a
finding of discriminatory purpose,35 there is no evidence, circumstantial or otherwise, in the
summary judgment record that Snyder was motivated even in part by discriminatory animus
when he conducted the felony stop.36 There is no statistical evidence, no pattern of
discriminatory behavior, and no evidence of questions or statements by him that would lead a
reasonable person to believe that he pulled Plaintiff’s vehicle over with the intent to
discriminate.37 Race was one part of Sterling’s description that Snyder used in attempting to
locate Sterling on March 23, 2011. The fact that no suspect criteria other than race accurately
matched Plaintiff or I.K. may be highly relevant to a Fourth Amendment analysis—whether
34
See, e.g., Marshall, 345 F.3d at 1168–69; Giron v. City of Alexander, 693 F. Supp. 2d 904, 938–39 (E.D.
Ark. 2010) (finding direct evidence of discriminatory purpose in case alleging racial profiling of Hispanic motorists).
35
Blackwell v. Strain, 496 F. App’x 836, 844 (10th Cir. 2012).
36
See Starr v. Downs, 271 F. App’x 746, 749 (10th Cir. 2008) (“Some further circumstantial evidence is
required other than the fact that [Plaintiff] was an African-American who was followed by [the officer].”) (citing
United States v. James, 257 F.3d 1173, 1179 (10th Cir. 2001)).
37
See Marshall, 345 F.3d at 1168–69.
12
there was probable cause to stop the vehicle—but it stops short of clear evidence of
discriminatory intent.38 Plaintiff does not assert a claim that the stop was unreasonable under the
Fourth Amendment.
Plaintiff also falls short of showing a genuine issue of material fact as to discriminatory
effect. The Tenth Circuit has indicated that a plaintiff can demonstrate discriminatory effect
either by showing a similarly situated non-protected individual was treated more favorably, or by
relying on statistical evidence.39 Here, Plaintiff neither comes forward with statistical evidence
nor with evidence of a more favorably treated similarly situated individual in support of his
claim. IPD officers conducted another felony stop that evening of a vehicle with two white
males and two black females, but it is uncontroverted that the first stop was based on a positive
vehicle identification by a witness, not on a faulty identification by Snyder. And presumably,
Officer Snyder would not have conducted a felony stop in this case of a white male given
Sterling’s description. Plaintiff argues that the Court should rely on the fact that Defendant only
stopped his car that night in pursuit of Sterling. But this actually cuts against Plaintiff’s claim of
discriminatory effect because it acknowledges that the stop was an isolated example of Snyder’s
misidentification. The Court is unable to find clear evidence in the record that would create a
genuine issue of material fact as to discriminatory effect. Because there is no genuine issue of
38
See Brown v. City of Oneonta, N.Y., 235 F.3d 769, 776–77 (2d Cir. 2000) (denying rehearing en banc on
racial profiling claim that race-based suspect identifier violated equal protection and explaining that the Fourth
Amendment prohibits arrests and investigatory detentions that are based on race alone); Washington v. Lambert, 98
F.3d 1181, 1190–93 (9th Cir. 1996) (affirming directed verdict for plaintiff on Fourth Amendment civil rights claim
where dissimilarity of features other than race between plaintiff and suspect did not amount to probable cause); see
also United States v. Lawes, 292 F.3d 123, 127 (2d Cir. 2002) (evaluating whether dissimilarity between suspect and
defendant was fatal to reasonableness of police officers’ suspicion).
39
Marshall, 345 F.3d at 1168-69.
13
material fact about whether Officer Snyder committed a constitutional violation, he is entitled to
qualified immunity.40
In his response brief, Plaintiff raises the issue of the fifteen-second gap in the audio of the
traffic stop recording, and appears to request an adverse inference instruction.41 To the extent
Plaintiff requests such an instruction, it is moot in light of the Court’s ruling that Defendant
enjoys qualified immunity from suit on this racial profiling claim.
In conclusion, the Court finds that while the incident involving Plaintiff and I.K. was
unfortunate, and certainly an avoidable mistake by the officers involved, the evidence is
insufficient to create a genuine issue of material fact that a Fourteenth Amendment equal
protection violation occurred here. The proper judicial remedy under these circumstances was a
claim that the officers violated the Fourth Amendment by stopping and seizing Plaintiff without
probable cause that he or I.K. was, in fact, Sterling. But this claim was not asserted, and under
the standards that apply to the claim that Plaintiff did raise, summary judgment is appropriate in
favor of Defendant Snyder.
IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion for
Summary Judgment (Doc. 46) is granted.
40
To the extent Plaintiff continues to allege an official capacity claim against the City, it too would fail. A
local government cannot be held liable under § 1983 for acts of its employees; a plaintiff must establish that the
municipality has a policy or custom that directly caused the constitutional deprivation of rights. Monell v. Dep’t of
Social Servs. of City of New York, 436 U.S. 658, 694 (1978). The claim would fail because Plaintiff cannot show an
underlying constitutional violation and because Plaintiff did not make any showing that a policy or custom directly
caused Snyder’s actions in this case.
41
Plaintiff quotes from McCue v. Kansas, 938 F. Supp. 718 (D. Kan. 1996), where Judge Saffels discussed
when the adverse inference instruction might be appropriate. Tenth Circuit law provides that such an instruction to
the jury requires evidence of intentional destruction. See Henning v. Union Pac. R.R., 530 F.3d 1206, 1220 (10th
Cir. 2008). Plaintiff makes no such showing in this case.
14
IT IS FURTHER ORDERED that Plaintiff’s Motion for Hearing (Doc. 55) is denied.
IT IS SO ORDERED.
Dated: August 26, 2013
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
15
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