840 F.Supp. 837 (D.Kan. 1993), 91-4081, Umbehr v. McClure

Docket Nº:91-4081-RDR.
Citation:840 F.Supp. 837
Party Name:Keen A. UMBEHR, Plaintiff, v. Joe McCLURE, Glen Hiser and George Spencer, Defendants.
Case Date:December 30, 1993
Court:United States District Courts, 10th Circuit, District of Kansas

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840 F.Supp. 837 (D.Kan. 1993)

Keen A. UMBEHR, Plaintiff,


Joe McCLURE, Glen Hiser and George Spencer, Defendants.

No. 91-4081-RDR.

United States District Court, D. Kansas.

Dec. 30, 1993

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Brenda J. Bell, Everett, Seaton, Miller & Bell, Richard H. Seaton, Manhattan, KS, for plaintiff.

Donald Patterson, Fisher, Patterson, Sayler & Smith, Topeka, KS, for defendants.


ROGERS, District Judge.

This is an action under 42 U.S.C. § 1983. Plaintiff alleges that defendants, as members or ex-members of the Wabaunsee County Commission, voted or helped cause a vote to terminate plaintiff's trash hauling contract in retaliation for plaintiff's exercise of his right to free speech. This case is now before the court upon defendants' motion for summary judgment. For the reasons which follow, the motion shall be granted. 1

Summary Judgment Standards

The general guidelines for analyzing summary judgment motions were reviewed by the Tenth Circuit in Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993):

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L.Ed.2d 202, 106 S.Ct. [2505, 2509 (1986); Russillo v. Scarborough, 935 F.2d 1167, 1170] (10th Cir.1991). The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L.Ed.2d 265, 106 S.Ct. 2548 [, 2552] (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 89 L.Ed.2d 538, 106 S.Ct. 1348 [, 1355-56] (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). To sustain this burden, the non-moving party cannot rest on the mere allegations in the pleadings. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324[, 106 S.Ct. at 2553]; Applied Genetics Int'l v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

Uncontroverted Facts

The following facts appear uncontroverted. During the relevant times in this case, plaintiff was not an employee of Wabaunsee County, Kansas. Plaintiff operated a trash hauling business. He had a contract with Wabaunsee County, although the contract did not involve plaintiff hauling trash for Wabaunsee County. The contract originated on April 7, 1981 and was redone on February 11, 1985. Under the 1985 contract, a trash hauling rate was established. Plaintiff agreed to haul trash at the established rate for six cities in Wabaunsee County (Alma, Alta Vista, Eskridge, Harveyville, Paxico and McFarland) provided that those cities approved and endorsed the contract. The cities were not required to endorse the contract. If a city did endorse the contract, then plaintiff alone had the franchise to haul trash for that city at the rate established in the contract. Plaintiff was not paid by Wabaunsee County for hauling trash for the cities in the county. Plaintiff was paid by the cities on a per residence basis. One city in Wabaunsee County, Maple Hill, was never part of the contract.

The contract provided that it would renew automatically for successive one-year terms unless either party notified the other in writing of the intent to terminate at least sixty days prior to the end of the contract's annual term. After the Wabaunsee County Commission

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terminated the contract in 1991, the city of Alta Vista contracted with a different trash hauling company after seeking competitive bids. Plaintiff retained the trash hauling business of the other cities for which he had hauled trash before the contract was terminated.

In 1990, when defendants Spencer, Heiser and McClure were members of the...

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