Thompson v. City of Lawrence, Kan., s. 94-3200
| Decision Date | 05 July 1995 |
| Docket Number | Nos. 94-3200,94-3203,s. 94-3200 |
| Parties | Ward A. THOMPSON, Plaintiff-Appellant, v. CITY OF LAWRENCE, KANSAS; Ron Olin, Chief of Police; Jerry Wells, District Attorney; Frank Diehl, David Davis, Kevin Harmon, Mike Hall, Ray Urbanek, Jim Miller, Bob Williams, Craig Shanks, John Lewis, Jack Cross, Catherine Kelley, Dan Ward, James Haller, Dave Hubbell and Matilda Woody, Defendants-Appellees. Frances S. WISDOM, Plaintiff-Appellant, v. CITY OF LAWRENCE, KANSAS; Ron Olin, Chief of Police; David Davis, Mike Hall, Jim Miller, Bob Williams, Craig Shanks, John L. Lewis, Jack Cross, Kevin Harmon, Catherine Kelley, Dan Ward and James Haller, Jr., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Patrick S. Levy, Lawrence, KS, for plaintiffs-appellants.
Gerald L. Cooley of Allen, Cooley & Allen, Lawrence, KS, for defendants-appellees City of Lawrence, Ron Olin, Kevin Harmon, Mike Hall, Ray Urbanek, Jim Miller, Craig Shanks, John Lewis, Jack Cross, Catherine Kelley, Dan Ward, and James Haller, Jr.
Donald Patterson of Fisher, Patterson, Sayler & Smith, Topeka, KS, for defendant-appellee David Davis.
Thomas D. Haney of Porter, Fairchild, Wachter & Haney, Topeka, KS, for defendants-appellees Wells and Diehl.
Before KELLY and BARRETT, Circuit Judges, and OWEN, District Judge. d
Plaintiffs-Appellants Ward A. Thompson and Frances S. Wisdom appeal from the district court's order denying their motion for reconsideration and granting Defendants-Appellees' motion for summary judgment. Our jurisdiction arises under 28 U.S.C. Sec. 1291 and we affirm.
In December 1991, Theodore Bratton was serving a one-year jail term for misdemeanor theft and was concurrently on parole for a prior burglary conviction. While on work release, Bratton visited Plaintiff Thompson at A.J.'s Bonding in order to discuss a $1300 debt which Bratton owed to Thompson for past bail bonds. Thompson had obtained a judgment on the bonds against Bratton and his mother, who co-signed the bonds. During the meeting, Thompson told Bratton that he was interested in obtaining a riding lawn mower and that if Bratton procured a mower for Thompson, the debt would be satisfied. Previously, Bratton had mentioned that his uncle possessed a riding mower and that Bratton could obtain such a mower for Thompson.
When Bratton returned to jail, he telephoned Defendant Officer Davis of the Lawrence Police Department ("LPD") to see if Davis might be interested in his information regarding Thompson. The following day, Davis and Defendant LPD Officer Lewis met with Bratton and devised a plan to conceal a recording device on Bratton and have him engage Thompson in a conversation regarding riding mowers. That same day, Davis received permission for Bratton to serve as an informant from the court services officer in charge of work and school release.
Subsequently, the plan to record a conversation between Thompson and Bratton was executed. On the recorded tape, Thompson told Bratton that he "[didn't] want to know where [the mower] came from" but that Bratton should bring the mower to him and he would "get rid of it the next day." LPD officers concluded that Thompson expected Bratton to procure a stolen mower and give it to him.
As a result of the recording, LPD officers decided to deliver a "stolen" riding mower to Thompson. The LPD borrowed a mower from a local farm equipment dealer. Bratton delivered the mower to Thompson, engaged him in another recorded conversation, and then returned to the Law Enforcement Center. Meanwhile, LPD officers stationed around A.J.'s Bonding failed to notice that Plaintiff Wisdom and her son had entered the establishment. After Bratton left the premises, the armed officers entered A.J.'s Bonding.
Once inside, the officers handcuffed Thompson and Wisdom. Although Davis gave Thompson Miranda warnings, Thompson waived his rights and told Davis that he knew Bratton was going to steal a riding lawn mower. Davis then asked for and received Thompson's consent to search the premises. While a search of the premises ensued, Wisdom and her son were released. Thompson, however, was arrested and subsequently charged with solicitation of theft. All charges against him were eventually dismissed without prejudice.
Thompson and Wisdom brought this suit alleging civil rights violations and various tort violations under Kansas law. The Defendants moved for partial judgment on the pleadings, which the district court granted. The Plaintiffs filed two motions for reconsideration, both of which the district court denied. Upon motion by Defendants, the district court granted summary judgment for the remaining claims. Plaintiffs appeal, arguing that the district court erred in 1) overruling Plaintiffs' motions to reconsider, 2) analyzing qualified immunity claims in the summary judgment context under an improper standard, 3) improperly finding that officers could have reasonably believed that warrantless search and seizure was lawful, 4) improperly characterizing Plaintiff Thompson's claims against Defendants Wells and Diehl, 5) improperly dismissing Plaintiff Wisdom's claims for unlawful seizure and excessive force, 6) improperly dismissing Plaintiff Thompson's claims of municipal liability and conspiracy, and 7) improperly dismissing Plaintiffs' state law and punitive damage claims.
We review the district court's denials of the motions for reconsideration for an abuse of discretion. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988). Under Kansas Local Rule 206(g), failure of a party to file a timely response constitutes a "waiver" of the right to file a response, "except upon a showing of excusable neglect." D.Kan.Civ.R. 206(g).
Here the Plaintiffs failed to file a response to Defendants' motion for partial judgment on the pleadings. Plaintiffs' counsel claims that the response was mailed, however neither the court nor opposing counsel (four in number) have any record of receiving the document. Moreover, the district court found unbelievable the statements of Plaintiffs' counsel regarding the purported mailing. Aplt.App. at 117.
The district court ultimately held that there was no basis to believe that Plaintiffs actually responded to Defendants' motion. Aplt.App. at 103. We agree. Further, Plaintiffs have failed to allege or prove any excusable neglect, mistake, inadvertence, or surprise. See Fed.R.Civ.P. 60(b)(1). In light of counsel's contumacious behavior, we find no abuse of discretion in the district court's denial. Compare Hancock, 857 F.2d at 1396 ().
We review a grant of summary judgment de novo, applying the same standard used by the district court under Fed.R.Civ.P. 56(c). McDermott v. Midland Management, Inc., 997 F.2d 768, 770 (10th Cir.1993). We review qualified immunity claims in the summary judgment context under the framework set out in Woodward v. City of Worland, 977 F.2d 1392, 1396-97 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 3038, 125 L.Ed.2d 724 (1993). See also Hinton v. City of Elwood, 997 F.2d 774, 779 (10th Cir.1993).
First the defendant must adequately raise the defense of qualified immunity. Then the plaintiff must show that the law was clearly established when the alleged violation occurred and must present facts or allegations sufficient to show that the official violated that law. The defendant then has the usual summary judgment burden of establishing that there is no genuine controversy over a material fact which would defeat his claim for qualified immunity and that he is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). We view the record in the light most favorable to the party opposing summary judgment. McDermott, 997 F.2d at 770.
Warrantless arrest is permissible if there is probable cause to believe that a person has committed a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Under a Sec. 1983 claim of unlawful arrest, Defendant police officers lose their shield of qualified immunity only if they could not have believed that Thompson's arrest was based on probable cause. Jones v. City and County of Denver, 854 F.2d 1206, 1210 (10th Cir.1988). Probable cause exists if the arresting officer has knowledge of facts and circumstances which are reasonably trustworthy and sufficient to lead a prudent person to believe that the arrestee has committed or is committing an offense. Id. Under Kansas law, the determination of probable cause at a preliminary hearing is prima facie evidence of probable cause, which may be overcome by a preponderance of the evidence. Swanson v. Fields, 814 F.Supp. 1007, 1014 (D.Kan), aff'd, 13 F.3d 407 (10th Cir.1993).
The state district court judge made a finding of probable cause at Thompson's preliminary hearing following his arrest. Thompson has failed to overcome this finding by a preponderance of the evidence. Moreover, the LPD possessed recorded conversations between Bratton and Thompson regarding the unlawful acquisition of the riding mower and knew that Thompson had accepted the purportedly stolen mower. In light of these factors, we find the existence of probable cause.
The potential unreliability of Bratton was compensated for by the recorded conversations and does not defeat the existence of probable cause. Similarly, our finding of probable cause is not affected by the failure of the LPD to obtain permission from Bratton's parole officer to use him as a confidential informant.
Thompson's argument that his arrest was unlawful because the LPD entered A.J.'s Bonding without a warrant fails. Warrantless arrest based...
To continue reading
Request your trial
-
Barkauskie v. Indian River School Dist., Civil Action No. 95-399 MMS.
...As a result, "a § 1983 conspiracy claim is not actionable without an actual violation of § 1983." Id. Accord Thompson v. City of Lawrence, Kansas, 58 F.3d 1511 (10th Cir.1995); Hale v. Townley, 45 F.3d 914 (5th Cir.1995); Goldschmidt v. Patchett, 686 F.2d 582 (7th Summary judgment will be g......
-
Hernandez v. Conde
...to fear violence or destruction of evidence." Torres v. United States, 200 F.3d 179, 186 (3d Cir.1999). See also Thompson v. City of Lawrence, 58 F.3d 1511, 1516 (10th Cir.1995) (holding that it was not unreasonable for police officers to carry weapons into a home and handcuff a suspect who......
-
Smith v. Barber
...was based on probable cause.'" McCormick v. City of Lawrence, 271 F.Supp.2d 1292, 1304 (D.Kan.2003) (quoting Thompson v. City of Lawrence, 58 F.3d 1511, 1515 (10th Cir.1995) (citation omitted)). Therefore, the critical question is not whether probable cause actually existed, but whether "a ......
-
Kelley v. City of Albuquerque
...the plaintiff "must prove both the existence of a conspiracy and the deprivation of a constitutional right." Thompson v. City of Lawrence, Kan., 58 F.3d 1511, 1517 (10th Cir.1995)(citing Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir.1990)). In addition, for a § 1985 violation, the ......
-
The Potential Civil Liability of Law Enforcement Officers and Agencies
...facts are undisputed, this claim (like false arrest) may be resolved by summary judgment. See, e.g., Thompson v. City of Lawrence, 58 F.3d 1511, 1516 (10th Cir. 1995) (affirming the trial court's granting of the defendants' motion for summary judgment for various claims, including excessive......