Bell v. City of Topeka, Kansas, 06-4026 JAR.

• Decision Date: 09 July 2007
• Docket Number: No. 06-4026 JAR.,06-4026 JAR.
• Citation: 496 F.Supp.2d 1182
• Parties: David L. BELL, Plaintiff, v. CITY OF TOPEKA, KANSAS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

496 F.Supp.2d 1182

David L. BELL, Plaintiff, v. CITY OF TOPEKA, KANSAS, et al., Defendants.

No. 06-4026 JAR.

United States District Court, D. Kansas.

July 9, 2007.

David L Bell, Law Office of Eric Kjorlie, Topeka, KS, for Plaintiff.

Mary B. Mudrick, City of Topeka, Legal Department, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ROBINSON, District Judge.

Plaintiff David L. Bell brings this action against the City of Topeka¹ alleging unreasonable use of force, negligent training, and negligent supervision resulting from plaintiffs arrest in March 2004. This matter comes before the Court on defendant's Motion for Summary Judgment (Doc. 85). For the reasons set forth below, the Court grants defendant's motion and dismisses this action.

I. Summary Judgment Standard

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."² A fact is only material under this standard if a dispute over it would affect the outcome of the suit.³ An issue is only genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party."⁴ The inquiry essentially determines if there is a need for trial, or whether the evidence "is so one-sided that one party must prevail as a matter of law."⁵

The moving party bears the initial burden of providing the court with the basis for the motion and identifying those portions of the record that show the absence of a genuine issue of material fact.⁶ "A movant that will not bear the burden of persuasion at trial need not negate the nonmovant's claim."⁷ The burden may be met by showing that there is no evidence to support the nonmoving party's case⁸ If this initial burden is met, the nonmovant must then "go beyond the pleadings and `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."⁹ When examining the underlying facts of the case, the Court is cognizant that it may not make credibility determinations or weigh the evidence.¹⁰

II. Factual Background

A. Evidentiary Issues

Defendant argues that several documents filed in support of plaintiff's summary judgment response are not properly authenticated and are therefore inadmissible.

Unauthenticated documents, once challenged, cannot be considered by a court in determining a summary judgment motion. In order for documents not yet part of the court record to be considered by a court in support of or in opposition to a summary judgment motion they must meet a two-prong test: (1) the document must be attached to and authenticated by an affidavit which conforms to rule 56(e); and (2) the affiant must be a competent witness through whom the document can be received into evidence.... Documentary evidence for which a proper foundation has not been laid cannot support a summary judgment motion, even if the documents in question are highly probative of a central and essential issue in the case.¹¹

Specifically, defendant objects to a collection of documents attached to plaintiffs summary judgment response as Exhibit C.¹² That exhibit begins with an affidavit from plaintiffs counsel in which he states that the following documents are true and accurate copies of the deposition of Chief of Police Edwin E. Klumpp and exhibits that were used in that deposition. Plaintiff attempts to controvert several of defendant's Statements of Uncontroverted Facts by citing certain exhibits that were used in Chief Klumpp's deposition, but the Court agrees with defendant that these documents do not appear to be properly authenticated.¹³ A party may properly authenticate a document "through a supporting affidavit or deposition excerpt from anyone with personal knowledge of the facts contained in the exhibit."¹⁴ The personal affidavit submitted by plaintiffs counsel is insufficient to provide authentication when plaintiffs counsel is not the author of these documents nor does he state that he has any personal knowledge of the facts contained within those documents.¹⁵ Also, the deposition of Chief Klumpp fails to authenticate these exhibits when there is no citation to a relevant portion of that deposition showing that Chief Klumpp has personal knowledge of the facts contained within the exhibits. Because plaintiff does not set forth the proper authentication for these deposition exhibits, the Court may not consider these documents.¹⁶

Additionally, the Court disregards these documents as immaterial. Plaintiff points to these documents to support his allegations of corruption within the Topeka Police Department ("TPD") Narcotics Unit. However, plaintiff fails to provide any evidence showing that this alleged corruption is relevant to his claim of excessive force during his arrest in March 2004. Indeed, Chief Klumpp testified that Exhibits 9, 17, and 18,¹⁷ which are various communications and reports regarding an investigation of the TPD Narcotics Unit, had nothing to do with the use of excessive force by any police officer.

B. Uncontroverted Facts

The following facts are either uncontroverted, stipulated to, or viewed in the light most favorable to plaintiff. Late in the evening of March 3, 2004, and continuing to the early morning hours of March 4, 2004, TPD Sergeant Ron Erwin was in charge of the execution of a search warrant, that had been signed by a judge, at a residence on Swygart Street. The target of the search warrant was Anuerin Netherland. At or around 11:50 p.m. on March 3, 2004, plaintiff and his girlfriend drove to Netherland's residence on Swygart, arriving at approximately 11:55 p.m. or 11:57 p.m. Plaintiffs girlfriend went into the residence while plaintiff waited in the car. After a few minutes, plaintiff hit the horn twice to tell his girlfriend to "come on."

Somewhere between 11:55 p.m. and 11:58 p.m., TPD officers arrived at the Swygart residence. The TPD officers were dressed in uniforms with "POLICE" written in big, black letters on the back. Lieutenant Frank Pase, the highest ranking officer in the TPD Narcotics Unit at the time of the execution of the search warrant, was present at the scene to provide perimeter control and to supervise officers.¹⁸ As the TPD officers approached the house alongside plaintiff's car, the horn in plaintiffs car honked. Lieutenant Pase testified that the honking of the horn posed an officer safety issue. Lieutenant Pase then heard TPD officers ordering the person in the car to show his hands and to get out of the car. One of the TPD officers pointed his rifle toward the passenger area of the car, and then broke out the passenger side window of the vehicle. Afterwards, someone opened the door on the driver's side, grabbed plaintiffs left arm, and started yanking it. Someone told plaintiff to "get out of the car," but plaintiff was unable to get out of the car because his seatbelt was still fastened. Officer Kristoffer Souma used the flashlight on his weapon to illuminate the interior of the vehicle, while Officer Bruce Voigt started to remove plaintiff from the car and Officer Doug Garman came to assist. Plaintiff reached down to the right to release his seatbelt. He hit the release button on his seatbelt, and he was jerked from the car. Plaintiff claims that after he was pulled from the car, officers slapped hand cuffs on him and slammed him face-first into the car, causing plaintiff to suffer a dental injury. Afterwards, plaintiff was beaten on his legs and lower back, and then he fell to the ground on his knees. Officers then picked plaintiff up, carried him a couple of steps, and then dropped him back down, forcing him to lie face down in a puddle of water. Lieutenant Pase saw the officers remove plaintiff from the car, but he did not see plaintiff being taken to the ground because he could only glance over occasionally while tending to his duties. Lieutenant Pase also saw the officers bring plaintiff toward the street where he lay face down on the ground.

Sergeant Erwin stayed with plaintiff while the officers proceeded with the execution of the search warrant. Plaintiff contends that he asked Sergeant Erwin if he could move so that he would not have to be face down in the water, and Sergeant Erwin's response was, "Shut the fuck up right now before I put my foot on the back of your motherfucking neck and hold you face down in that water until you drown." After that, plaintiff claims that Sergeant Erwin made comments such as "I ought to shoot you." After the scene was, secured and officer safety was under control, Lieutenant Pase told Sergeant Erwin to pick plaintiff up off of the ground. At that point, officers wanted to search plaintiff, who told them, "the only thing lower than a motherfucking crackhead was the motherfucking Topeka Police Department." He also told an officer, "Kiss my ass and good luck." The officers then told plaintiff that they needed to search his car, and they warned him if they cut themselves on the broken glass from his crack pipe that he would be in trouble. Plaintiff laughed and told the officers, "You stupid motherfuckers, you broke the glass — broke the windows of my car. There's — the car is full of glass." Throughout the events that evening and in the early morning, plaintiff describes the officers as being dressed in black, "ninja-like clothing" and wearing masks. Plaintiff was then put into a car for transport to the jail. Plaintiff asked the officer who was transporting him to loosen the handcuffs, which the officer did. Plaintiff was at the jail for approximately twenty-six minutes before he was released at about 1:26 a.m.

On the evening of the raid, Lieutenant Pase did not see any officer hit or threaten plaintiff. If he had seen an officer mistreat plaintiff, Lieutenant Pase...