Cook v. Olathe Med. Ctr. Inc.

• Citation: 773 F.Supp.2d 990
• Decision Date: 01 March 2011
• Docket Number: Civil Action No. 10–2133–KHV.
• Parties: Samantha COOK, Plaintiff,v.OLATHE MEDICAL CENTER, INC., et al., Defendants.
• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas

773 F.Supp.2d 990

Samantha COOK, Plaintiff,

v.OLATHE MEDICAL CENTER, INC., et al., Defendants.

Civil Action No. 10–2133–KHV.

United States District Court, D. Kansas.

March 1, 2011.

Jeremiah L. Johnson, Law Offices of Jeremiah Johnson, LLC, Olathe, KS, for Plaintiff.Shannon D. Cohorst, Todd A. Scharnhorst, Scharnhorst, Ast & Kennard, P.C., Kansas City, MO, Marc N. Middleton, Michael K. Seck, Fisher, Patterson, Sayler & Smith, LLP, Trevin E. Wray, Holbrook & Osborn, PA, Overland Park, KS, Teresa L. Watson, Fisher, Patterson, Sayler & Smith, LLP, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

Samantha Cook brings suit against Olathe Medical Center, Inc. (“OMC”), Melissa Davenport, a nurse at OMC, Lee R. Kibbee and Wesley H. Smith, both Olathe police officers, the City of Olathe (the “City”), Ronald Karlin, a doctor at OMC and Kim Wheeler, a nurse at OMC.¹ Under 42 U.S.C. § 1983 and Kansas law, plaintiff asserts claims for violation of her constitutional rights, battery, intentional or negligent infliction of emotional distress, negligence and violation of privacy and patient rights. ² See Second Amended Complaint For Damages (“ Second Amended Complaint ”) (Doc. # 160) filed January 7, 2011. This matter comes before the Court on plaintiff's Memorandum In Support Of Plaintiff's Motion For Partial Summary Judgment Against Defendants Kibbee And Smith (“ Plaintiff's Memorandum ”) (Doc. # 53) filed July 27, 2010 and Defendants' Cross–Motion For Summary Judgment (Doc. # 77) which Kibbee, Smith and the City filed August 24, 2010. For reasons stated below, the Court overrules plaintiff's motion for partial summary judgment and sustains in part defendants' motion for summary judgment.

I. Legal StandardsA. Summary Judgment

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538–39 (10th Cir.1993). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. A “genuine” factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive matters for which it carries the burden of proof. See Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250–51, 106 S.Ct. 2505. In a response to a motion for summary judgment, a party cannot rely 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. Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251–52, 106 S.Ct. 2505.

B. Qualified Immunity

Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity provides government officials immunity from suit as well as from liability for their discretionary acts. See Mitchell v. Forsyth, 472 U.S. 511, 526–27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The doctrine of qualified immunity serves the goals of protecting officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority. Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).

When defendants assert a qualified immunity defense at the summary judgment stage, the burden shifts to plaintiff to show that defendants violated a constitutional right and that the constitutional right was clearly established at the time of the alleged violation. Vondrak v. City of Las Cruces, 535 F.3d 1198, 1204 (10th Cir.2008). To satisfy this burden, plaintiff must show facts which, when viewed in the light most favorable to plaintiff, show that defendants conduct violated a constitutional right and that the right was clearly established at the time of the alleged violation.³ See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir.2002) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). If plaintiff does so, the burden shifts back to defendants to prove that no genuine issues of material fact exist and that defendants are entitled to judgment as a matter of law. See Olsen, 312 F.3d at 1312. If the record shows an unresolved issue of fact relevant to the qualified immunity analysis, the Court must deny the motion for summary judgment. See id.

II. Facts ⁴

The following facts are either uncontroverted or where controverted, the contentions of each party are noted.

Kibbee and Smith work as police officers for the City of Olathe. On April 17, 2008, when plaintiff was driving northbound on I–35, Kibbee stopped her for speeding. A few minutes later, Smith joined Kibbee in the traffic stop. Kibbee smelled alcohol on plaintiff and suspected that she was driving under the influence of alcohol.⁵ Before beginning field sobriety tests, Kibbee performed a “pat-down” search of plaintiff. The search included placing his hands in plaintiff's jeans pockets. After performing field sobriety tests, Kibbee arrested plaintiff for driving under the influence (“DUI”). He cuffed her hands behind her back and placed her in the back seat of the patrol car. Kibbee and Smith left plaintiff in the back seat of the patrol car and began to search her vehicle.

While plaintiff was in the back seat of the patrol car, she began to hyperventilate. Defendants contend that plaintiff was screaming, yelling, kicking, biting and spitting. See Defendants' Exhibit 1, suppression hearing transcript at 9. Plaintiff contends that she did not scream or kick, but only knocked on the window.⁶ See Plaintiff's Reply Exhibit 2 at 52. Defendants contend that plaintiff began yelling and informed Smith that she was claustrophobic and needed to be removed from the patrol car. Smith replied that that was not an option. A few minutes later, Kibbee and/or Smith believed that plaintiff was having trouble breathing and called an ambulance.⁷ Smith got plaintiff out of the patrol car and had her kneel on the side of the road.⁸ See Plaintiff's Exhibit I.

A Med–Act ambulance responded to the scene. Plaintiff asked to go to the hospital. Med–Act personnel strapped plaintiff to a stretcher and placed her in the ambulance. On the stretcher, plaintiff laid on her right side with her hands cuffed behind her back and straps securing her torso and feet to the stretcher. See Plaintiff's Exhibit A at approx. 3:35:06. At that time, plaintiff's behavior was cooperative. See id.; Plaintiff's Exhibit L. For at least ten minutes, plaintiff remained in the ambulance while Kibbee and/or Smith searched her vehicle.⁹ See Plaintiff's Exhibit A at approx. 3:35:00–3:42:20. At some point, Kibbee and Smith got in the ambulance and rode with plaintiff to the hospital. The ambulance ride lasted about 15 minutes.

In the ambulance, plaintiff began yelling and screaming and became combative. The parties dispute when this occurred. Defendants maintain that plaintiff attempted to kick a paramedic and that they had to restrain her to prevent injury to herself, the paramedics and the officers. See Defendants' Exhibit 1, suppression hearing transcript at 10:12–22. Plaintiff contends that she became combative only in response to force used by the officers and that she did not intend to kick the paramedic. See Plaintiff's Reply (Doc. # 86) ¶ 44. Plaintiff testified that after the officers got in the ambulance they started feeling around, “like checking my pockets and then, like holding, like, squeezing my face and they were just all over me.” Plaintiff's Reply Exhibit 2 at 55:16–18. Plaintiff testified that she was trying to get the officers' hands off her and stop them from pinching, squeezing and holding her down. See Plaintiff's Exhibit Q. Plaintiff testified that at one point Kibbee choked her and that as a result of the officers' actions, she suffered bruises on her arms. See Plaintiff's Exhibits R and T. Plaintiff remained in handcuffs during this time.

The ambulance took plaintiff to the emergency room at OMC. Upon arriving at the hospital, plaintiff continued to scream and kick. Kibbee believed that plaintiff was a...