Berry v. City of Phillipsburg, Kan.

• Decision Date: 17 June 1992
• Docket Number: Civ. A. No. 90-1252-B.
• Citation: 796 F. Supp. 1400
• Parties: Trudy BERRY, Plaintiff, v. THE CITY OF PHILLIPSBURG, KANSAS; Kevin Knitter; and Rick Kester, Defendants.
• Court: U.S. District Court — District of Kansas

796 F. Supp. 1400

Trudy BERRY, Plaintiff, v. THE CITY OF PHILLIPSBURG, KANSAS; Kevin Knitter; and Rick Kester, Defendants.

Civ. A. No. 90-1252-B.

United States District Court, D. Kansas.

June 17, 1992.

COPYRIGHT MATERIAL OMITTED

John T. Bird, Glassman, Bird and Braun, Caleb Boone, Hays, Kan., for plaintiff.

Lawton M. Nuss, Clark, Mize & Linville, Chtd., Salina, Kan., for defendants.

MEMORANDUM AND ORDER

BELOT, District Judge.

This matter is before the court on the motions of defendants for partial summary judgment, (Docs. 25, 44), and summary judgment. (Doc. 90).¹ Plaintiff brings this action under 42 U.S.C. § 1983 for alleged constitutional violations arising out of her arrest by two members of the police department of Phillipsburg, Kansas.

The standards governing summary judgment motions are well established. "Entry of summary judgment is mandated, after an adequate time for discovery and upon motion, against a party who `fails to make a showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Aldrich Enters., Inc. v. United States, 938 F.2d 1134, 1138 (10th Cir.1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). The court reviews the evidence in a light most favorable to the non-moving party, e.g., Washington v. Board of Public Utilities, 939 F.2d 901, 903 (10th Cir.1991), under the substantive law and the evidentiary burden applicable to the particular claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986).

For purposes of these summary judgment motions, the court accepts plaintiff's version of the disputed facts. Those portions of defendants' statement of facts not specifically controverted are deemed admitted. D.Kan. Rule 206(c).

On May 16, 1989, plaintiff pulled up in her van in front of her house in Phillipsburg, Kansas. Defendant Kester, an officer of the Phillipsburg Police Department, pulled up behind her. Kester told plaintiff that he had some tickets for her issued by defendant Knitter, the Chief of Police. The tickets concerned problems with plaintiff's four dogs. Kester spoke in a loud voice and was rude to plaintiff.

Kester took the tickets off his pad and handed them to plaintiff. Plaintiff became angry and refused to accept the tickets, stating "I don't want these" and "I don't have time for this." Plaintiff walked towards her house, whereupon Kester placed the tickets on the seat of plaintiff's van. When plaintiff saw Kester place the tickets in her van, she turned around, went back to the van, took the tickets out of the van, and threw them on the ground in her front yard. Kester then told plaintiff: "you're under arrest for littering," or words to that effect. Plaintiff told Kester: "you can go to hell," and she went into her house.

When plaintiff entered her house, she called her sister and told her to contact a local attorney because plaintiff believed she was going to jail. During this time, Kester called the police dispatcher and asked that Chief Knitter be sent to plaintiff's house. When Knitter arrived, Kester related to him what had happened. Knitter and Kester walked toward plaintiff's house. Plaintiff then went out in the yard to get her son and bring him inside. Knitter told plaintiff that she was under arrest for littering and told her not to go in the house. Plaintiff pulled her son in the house, and shut and locked the door.

Knitter was aware, or at least believed, that there had been a domestic disturbance in the past at the Berry house, during which incident a 12-gauge shotgun had been discharged. According to plaintiff this incident had occurred some 10 months before, and the gun had discharged by accident.

Knitter forced open the door. Plaintiff had just closed the door and was a few feet from the door when it came flying open. A scuffle ensued, the facts of which are in considerable dispute. Plaintiff, however, claims that Knitter knocked the wind out of her; that he choked her; that she could not breathe; that she did not attempt to resist arrest; that Knitter threw her around in a hall; that he forced her face into the carpet so that she could not breathe; and that he stuck his finger into her ear when she was pinned to the ground for the purpose of causing her pain. Plaintiff alleges that Kester assisted Knitter throughout this arrest by holding plaintiff's feet. Defendants admit that Knitter, after handcuffing plaintiff, hit plaintiff at least three times in the back and pulled her up off the floor with one hand on the cuffs and the other hand grasping her hair. (Defendant's Memo in Support, Doc. 90, at p. 8, ¶ 31). Knitter forcibly dragged plaintiff from her house by the handcuffs and her hair. Plaintiff was placed in Kester's police car and driven to the police station, where she learned that she was being charged with disorderly conduct.

As a result of this incident, plaintiff received medical treatment for multiple abrasions and contusions. None of plaintiff's bones were broken in the incident.

I. Failure to Plead

As an initial matter, the court notes that defendants have challenged whether plaintiff has pled several of the claims now being asserted. On the ground of untimeliness, the magistrate previously denied plaintiff leave to amend her pleading. (Order of July 31, 1991; Doc. 37). Throughout defendants' various memoranda, defendants contend that plaintiff's complaint fails to state the following claims: excessive force under § 1983; false arrest and imprisonment under Kansas law; municipal liability under any theory.

Because the pretrial order has been filed in this case, the allegations and claims made therein supersede the complaint and are controlling. Fed.R.Civ.P. 16(e).

The court finds that the pretrial order sufficiently frames the theories and factual allegations found wanting by defendants. The pretrial order states the facts underlying the alleged excessive use of force, false arrest and imprisonment, and refers to the statute and state law theories by name. Moreover, the pretrial order states the facts underlying plaintiff's theory of municipal liability based upon the failure of the City to heed information that indicated individual defendants' violent propensities.

II. Constitutional Claims under § 1983

The court initially notes that plaintiff has conceded the validity of defendants' challenge to her Eighth Amendment claim. (Doc. 35, at ¶ 23). The court will therefore grant summary judgment in defendants' favor on this claim.

A. Excessive Force

Defendants contend that the force used was reasonable as a matter of law, or alternatively that they are entitled to qualified immunity.

A constitutional claim that officers used excessive force in effecting an arrest is evaluated under the Fourth Amendment standard of reasonableness, rather than the substantive due process standard. Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989). Because plaintiff's arrest occurred on May 16, 1989 — one day after Graham was decided — the court applies the Graham Fourth Amendment standard to this case.² Moreover, in passing on a claim of excessive force in violation of the Fourth Amendment, the constitutional inquiry of reasonableness is the same inquiry that determines whether qualified immunity is available to the state actor in his individual capacity. Quezada v. County of Bernalillo, 944 F.2d 710, 718 (10th Cir. 1991); Street v. Parham, 929 F.2d 537, 540 (10th Cir.1991). The court therefore addresses defendants' alternate arguments together.

"Under the Fourth Amendment, the question is whether the defendants' actions were `objectively reasonable' in light of the facts and circumstances confronting them, without regard to underlying intent or motivation." Frohmader v. Wayne, 958 F.2d 1024, 1026 (10th Cir.1992) (citing Graham, 490 U.S. at 397, 109 S.Ct. at 1872). "Whether the force used in making an arrest was unreasonable is an issue to be determined in light of all the circumstances of each case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and actively resists arrest or attempts to evade arrest by flight." Zuchel v. Spinharney, 890 F.2d 273, 274 (10th Cir.1989).

Applying these standards, the court finds that a jury could reasonably find that defendants' use of force was unreasonable under the circumstances. There is evidence that plaintiff was being arrested for nothing more than littering, and attempting to evade arrest by fleeing to her home; that her arrest for the underlying offense was not supported by probable cause; and that plaintiff did not resist arrest once defendants were in her home. If the jury were to accept this, it could reasonably conclude that breaking down the door to a person's home; tackling and choking that person in her home; and finally dragging that person from her home by handcuffs and hair is an unreasonable means by which to apprehend a suspected litterer. Although defendants contend that a single previous domestic disturbance gave rise to a concern of violence, this matter is more appropriately addressed to a jury.

Defendant Kester also contends that there is no evidence that he personally used excessive force on plaintiff, and that summary judgment as to the claim against him should be granted.

Section 1983 imposes liability upon any person acting under color of state law who "subjects, or causes to be subjected," any person to the deprivation of a federal right. Vinyard v. King, 728 F.2d 428, 433 (10th Cir.1984). As such, liability under § 1983 will lie against any person who personally participates in the deprivation of plaintiff's federal rights. Id.; Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1976); cf. Allen v. Denver Public School Bd., 928 F.2d 978, 983 (10th Cir. 1991) (...