Birch v. City of Atchison
| Decision Date | 05 June 2020 |
| Docket Number | Case No. 2:19-CV-2156-JAR |
| Parties | DALE W. BIRCH, Plaintiff, v. CITY OF ATCHISON, KANSAS, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
This matter arises out of incidents that led to the January 8, 2019 arrest and resulting conviction of Plaintiff Dale W. Birch, who proceeds pro se. Plaintiff claims that, during the course of his arrest and prosecution, several Atchison Police Department officers violated his civil rights, committed perjury, slander, libel and defamation, and caused him emotional distress. Plaintiff names the City of Atchison, the Atchison Police Department, Chief of Police Michael Wilson, and Officers Kurtis Page, Josh Sinclair, Adam Bush, Matt Stout, and Alex Moore as defendants in this action.
Before the Court is Defendants' Motion for Summary Judgment (Doc. 36) and Motion for Leave to file Sur-sur-reply (Doc. 45) to Plaintiff's sur-reply.1 Under D. Kan. Rules 7.1 and 15.1(a), sur-replies are not permitted without leave of court, which Plaintiff did not obtain.2 Thus, Defendants' motion to file a sur-sur-reply is denied because the Court does not considerPlaintiff's sur-reply to which Defendants seek to respond. For the reasons discussed in detail below, Defendants' motion for summary judgment is granted.
Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. 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 The facts "must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein."7 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.8
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 everyaction."9 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."10
The Court is mindful here of Plaintiff's pro se status. A pro se litigant's pleadings are to be liberally construed and are held to a less stringent standard than pleadings by represented parties.11 However, the Court does not become an advocate for the pro se litigant, and "will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues."12 Moreover, a pro se litigant is not excused from compliance with fundamental rules of procedure.13 Pro se litigants must follow rules of procedure, including local rules.14 "Plaintiff's pro se status, in and of itself, does not prevent this Court from granting summary judgment."15
D. Kan. Rule 56.1(a) provides that "[a]ll material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." Because Plaintiff did not specifically controvert any of Defendants' factual assertions as required by D. Kan. Rule 56.1(b)(1) or offer his own statement of additional facts as permitted by D. Kan. Rule 56.1(b)(2), but instead stated"I do not want to agree to any of it at all,"16 the Court accepts Defendants' factual assertions as uncontroverted to the extent that they are supported by the record.17 The following facts are deemed uncontroverted.
Early on the morning of January 8, 2019, while still dark, uniformed officers Sinclair and Page responded to separate calls reporting a prowler pounding on the door of a residence and trying to gain entrance. Uniformed officer Stout soon responded to a similar call. Officers responded to investigate an alleged felony aggravated burglary. As Sinclair approached the front porch of the residence, he saw Plaintiff standing on the porch. Sinclair announced that he was an officer and asked Plaintiff what was going on. Plaintiff did not respond. Instead, Plaintiff fled, prompting Sinclair to communicate to officers that an unknown male had run around the back of the house and then headed northeast. Sinclair and Page gave chase. Sinclair observed no other person on the property.
During the chase route over several streets, Plaintiff slipped and fell in the mud at one point, losing his backpack and other belongings. Several times officer Page yelled "stop, police," ordered Plaintiff to the ground and warned Plaintiff that he would be Tased. Plaintiff did not stop. Page deployed his Taser on Plaintiff. Although Plaintiff fell to the ground, he got up again and continued running. When Plaintiff again slipped and fell, Page approached Plaintiff and Plaintiff kicked him in the leg. When Page then tried to grab Plaintiff's wrist, Plaintiffpunched Page. Plaintiff continued to resist as Page and Sinclair and Stout successfully handcuffed Plaintiff. Officers had to apply a second set of handcuffs because the first set of handcuffs were impacted with mud. By the time they successfully handcuffed him, Plaintiff was no longer wearing pants, socks or shoes.
After Plaintiff was handcuffed, Sinclair checked Plaintiff for injuries and Taser probes, finding one Taser probe in Plaintiff's right buttock and one on the left side of Plaintiff's shorts. Sinclair also noticed scrapes on Plaintiff's knees. Sinclair did not see any injury to Plaintiff's ear nor any active bleeding. Nor did Stout or Page.
While Sinclair was doing the injury check, Page recovered the backpack that Plaintiff had dropped in the street during the foot chase. Officers later inventoried the contents of the backpack, which included a small pipe; lab tests confirmed that the pipe contained tetrahydrocannabinol.
While Page was recovering the backpack, and before Sinclair could complete the injury check, Plaintiff spun away from Sinclair and started running away again, while handcuffed with his hands behind his back. Sinclair gave chase and regained control of Plaintiff with Stout's help. Sinclair testified that he used the minimum amount of force necessary to apprehend Plaintiff. Neither Sinclair nor any officer ground or slammed Plaintiff's head into the ground. Page did not punch or kick Plaintiff and did not strike Plaintiff's face; and Page did not see any other officer strike Plaintiff. Officer Bush did not touch Plaintiff but got within a couple feet of him at the scene. Bush did not see any injuries on Plaintiff.
On the scene of the incident, Plaintiff complained that his wrist hurt from the handcuffs. Plaintiff repeatedly complained that his knees hurt, after being handcuffed, before running away in handcuffs, and again after he was caught. Plaintiff did not complain of injuries to his ear.
In about five minutes, Officer Moore arrived with a caged patrol car that transported Plaintiff to jail. During the transport, Plaintiff complained that his legs were bothering him; and Plaintiff beat his head against the inside of the caged patrol vehicle window. Moore pulled over, asked Plaintiff to stop, and he complied. Moore continued to drive to the county jail. There was no blood in the transport vehicle after Plaintiff was taken to jail.
When Plaintiff arrived at the Atchison County jail at 7:30 a.m. Deputy Sheriff Thomas noticed an injury to Plaintiff's ear, which Thomas described as a "pretty deep scratch."18 Thomas saw no blood on Plaintiff's shirt and no active bleeding; the blood on his lower ear was dried and the cut was congealed. Thomas accompanied Plaintiff to the emergency room, arriving between 7:35 and 7:40 a.m. Plaintiff received 50 to 70 stitches in his left ear and was given pain medication while the sutures were made. Plaintiff had multiple bruises, scrapes, and scratches all over his body. Plaintiff also received a CT scan to screen for a concussion.
Plaintiff was charged with six counts: Interference With a Law Enforcement Officer, Battery Against a Law Enforcement Officer, Attempted Criminal Trespass, Criminal Damage to Property, Possession of a Controlled Substance, and Possession of Drug Paraphernalia. The jury convicted him of all six counts. Plaintiff's conviction is on appeal.19
Plaintiff was deposed in the present action prior to Defendants' motion for summary judgment, and Defendants set forth Plaintiff's version of the events in question in their statement of facts. Not all officers named as defendants are included in Plaintiff's account, and Plaintiff describes an encounter with another officer who is not named as a defendant. In fact, althoughPolice Chief Michael Wilson is named as a defendant in an unspecified capacity, Plaintiff mentions him nowhere else in his Complaint or deposition. Thus, although the Court notes that Plaintiff's testimony contains internal inconsistencies and inconsistencies with the above-stated, uncontroverted facts, what follows is his recitations of the events on January 8, 2019.
Plaintiff left the residence around 5:00 or 5:30 a.m., walked to his uncle's house a few blocks away to access his uncle's Wi-Fi, before returning to the residence about 60 or 90 minutes later. As Plaintiff walked back to the residence, he saw a man standing...
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