Dempsey v. City of Baldwin City, Kan.

• Decision Date: 17 August 2004
• Docket Number: No. CIV.A. 03-2009-CM.,CIV.A. 03-2009-CM.
• Citation: 333 F.Supp.2d 1055
• Court: U.S. District Court — District of Kansas
• Parties: William B. DEMPSEY, et al., Plaintiffs, v. The CITY OF BALDWIN CITY, KANSAS, Defendant.

333 F.Supp.2d 1055

William B. DEMPSEY, et al., Plaintiffs, v. The CITY OF BALDWIN CITY, KANSAS, Defendant.

No. CIV.A. 03-2009-CM.

United States District Court, D. Kansas.

August 17, 2004.

COPYRIGHT MATERIAL OMITTED

Ira Dennis Hawver, Ozawkie, KS, for Plaintiffs.

Donald Patterson, Fisher, Patterson, Sayler & Smith, Topeka, KS, Robert L. Bezek, Jr., Bezek, Lowry & Hendrix, Ottawa, KS, for Defendant.

MEMORANDUM AND ORDER

MURGUIA, District Judge.

Plaintiffs William B. Dempsey (Dempsey), Eric J. Garcia (Garcia), Charles W. Hensley, II (Hensley), and Charles R. Woolsoncroft (Woolsoncroft) (collectively plaintiffs) brought this action on January 7, 2003, under 42 U.S.C. § 1983, alleging defendants the City of Baldwin City, Kansas (the City), the Mayor, the City Administrator, and the City Council of the City of Baldwin City, Kansas (the Council), engaged in a pattern and practice of retaliation against plaintiffs for exercising their rights under the First and Fourteenth Amendments while they served as police officers for the City's Police Department. Plaintiffs also brought defamation and intentional infliction of emotional distress claims under Kansas law.

During the parties' pretrial conference, held on November 21, 2003, and in the subsequent Pretrial Order (Doc. 52), entered on December 11, 2003, the parties stipulated to the dismissal, with prejudice, of all plaintiffs' claims against three of the defendants — the Mayor, the City Administrator, and the Council. It also appears that plaintiffs abandoned their intentional infliction of emotional distress claim. Pursuant to the Pretrial Order, plaintiffs' remaining claims are their First and Fourteenth Amendment claims under 42 U.S.C. § 1983, and their defamation claim under Kansas law.¹

This matter comes before the court on the remaining defendant, the City's Motion for Summary Judgment (Doc. 53) on plaintiffs' 42 U.S.C. § 1983 claims, defamation claim, and request for injunctive relief. As set forth below, defendant's motion is granted.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Rather, the nonmoving party must "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." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.

Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1).

II. Facts

A. Procedural Issues

As a preliminary matter, the court notes that plaintiffs Dempsey, Garcia, and Woolsoncroft submitted extensive affidavits in response to the Motion for Summary Judgment. The City argues that the affidavits should be stricken. In essence, the City contends that these affidavits contain improper opinions and conclusions, that each affiant has failed to establish personal knowledge of the facts to which they attest, and that, in several instances, the facts in the affidavits are not material for summary judgment purposes. The City also argues that the affidavits contradict plaintiffs' prior deposition testimony in an attempt to create sham issues of fact, despite the fact that plaintiffs did not make any corrections to their deposition transcripts. The City also argues that the affidavits do not provide record support for the facts asserted by plaintiffs as is required to overcome a motion for summary judgment.

In determining whether to consider plaintiffs' affidavits, the court notes that contradictions found in a witness's testimony are not, in themselves, sufficient to preclude such testimony. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973 (10th Cir.2001). Indeed, "in determining whether a material issue of fact exists, an affidavit may not be disregarded [merely] because it conflicts with the affiant's prior sworn statements." Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986). However, in assessing a conflict under these circumstances, "courts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue." Id. Factors relevant to the existence of a sham fact issue include whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain. Id.

The court concludes that portions of Garcia's, Dempsey's, and Woolsoncroft's affidavits directly contradict their prior deposition testimony, contain facts not material to the motion for summary judgment, fail to establish personal knowledge to some of the facts attested, and fail to provide record support for the facts asserted. However, portions of the affidavits also cite directly to deposition testimony and other documents that are part of the discovery record. Moreover, many of the statements in the affidavits are consistent with plaintiffs' positions and prior statements throughout the lawsuit. Therefore, the court will not strike the affidavits in their entirety, but will, instead, simply disregard those portions not based upon personal knowledge, those portions containing improper conclusions, those portions containing facts immaterial to the motion for summary judgment, and those portions not otherwise supported with reference to the record. Trestle & Tower Eng'g, Inc. v. Star Ins. Co., 13 F.Supp.2d 1166, 1167 (D.Kan.1998).

The court also notes that plaintiffs' response brief fails to adequately respond to the City's statement of facts. Plaintiffs begin their fact section with several paragraphs that summarily oppose the City's statement of facts without citing to any evidentiary support. Plaintiffs then present a separate statement of facts, at times noting a paragraph in the City's brief to which they are responding, often without providing evidentiary support other than a cite to one of the plaintiffs' affidavits. Local Rule 56.1 requires that "[e]ach fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the opposing party relies and, if applicable, shall state the number of the movant's fact that is disputed." D. Kan. Rule 56.1(b)(1). Plaintiffs have failed to comply with these requirements. Thus, where allegedly disputed facts are not directly controverted by evidence contained in the record, the court considers those facts uncontroverted pursuant to Fed.R.Civ.P. 56. However, the court will deem the City's facts controverted to the extent that plaintiffs' own facts fairly meet the substance of the City's statement of facts and are supported by competent evidence.

Finally, the court notes that it construes the facts in the light most favorable to plaintiffs as the non-moving party pursuant to Federal Rule of Civil Procedure 56.

B. Organization/Policies of the City

During the time period relevant to plaintiffs' lawsuit, the City was a City of the Third Class under Kansas law which adopted the Strong Mayor/City Council form of government, as modified by a charter ordinance. Kan. Stat. Ann. § 15-301 permits the City's Mayor to preside at all meetings of the Council, but permits the Mayor to vote as a member of the Council only when the Council is equally divided. At all times relevant to this lawsuit, the Council was comprised of five members.

Kan. Stat. Ann. § 15-204 permits the Mayor to appoint a municipal judge, a clerk, a treasurer, a chief of police, law enforcement officers, and other officers as necessary. While duties and pay of those appointed officers are regulated by ordinance, the Mayor may suspend any of the elected officials. The Council may, by majority vote, remove...