Fillmore v. Eichkorn

• Decision Date: 18 May 1995
• Docket Number: No. 93-4211-RDR.,93-4211-RDR.
• Citation: 891 F. Supp. 1482
• Parties: Rodney Joe FILLMORE, Plaintiff, v. KHP Trooper John EICHKORN, et al., Defendants.
• Court: U.S. District Court — District of Kansas

891 F. Supp. 1482

Rodney Joe FILLMORE, Plaintiff, v. KHP Trooper John EICHKORN, et al., Defendants.

No. 93-4211-RDR.

United States District Court, D. Kansas.

May 18, 1995.

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Rodney Joe Fillmore, pro se.

David C. Wetzler, Bennett, Lytle, Wetzler, Martin & Pishny, L.C., Prairie Village, KS, Carol R. Bonebrake, John W. Campbell, Office of Atty. Gen., Topeka, KS, for defendants John Eichkorn, Karl J. Koenig, K.H.P. Troopers.

David C. Wetzler, Bennett, Lytle, Wetzler, Martin and Pishny, L.C., Prairie Village, KS, Carol R. Bonebrake, John W. Campbell, Office of Atty. Gen., Sandra L. Jacquot, Office of County Counselor, Shawnee County, Kan., Topeka, KS, for defendants Damon L. Carlton, K.H.P. Trooper, Athena E. Andaya, Shawnee County Asst. Dist. Atty.

Catherine A. Walter, Thomas E. Wright, Wright, Henson, Somers, Sebelius, Clark & Baker, Sandra L. Jacquot, Office of County Counsel, Shawnee County, Kan., Topeka, KS, for defendants Earl Hindman, Shawnee Co. D.O.C. Director, John Does, Shawnee Co. D.O.C. Correctional Officers John Does 1-8, Jane Roes, Shawnee Co. D.O.C. Correctional Officers Jane Roes 1-6, Shawnee Co. D.O.C. Correctional Officers Does or Roes unknown, Scott Greeno, Rhonda Redmon, Richard Hamilton, Todd Rogers, Timothy James, Brian Cole, Kenneth Akins, David Seymour, Merrill McCue, Kenneth Sloop, Tammy Reedy, Thomas (NMI) Merkel.

MEMORANDUM AND ORDER

ROGERS, Senior District Judge.

This is an action under 42 U.S.C. § 1983 with pendent state law claims. Plaintiff is suing three Kansas Highway Patrol ("KHP") troopers who participated in plaintiff's arrest on September 25, 1992. These defendants are: Trooper John Eichkorn; Trooper Karl Koenig; and Trooper Damon Carlton. Plaintiff is also suing many correctional officers and officials of the Shawnee County Department of Corrections ("SCDOC") in connection with plaintiff's detention following his arrest. These defendants are: Scott Greeno; Richard Hamilton; Todd Rogers; Timothy James; Brian Cole; Kenneth Akins; David Seymour; Merrill McCue; Kenneth Sloop; Tammy Reedy; Rhonda Redmon; Earl Hindman and Thomas Merkel.¹ Defendants Hindman and Merkel are sued in their official capacities. The other SCDOC defendants are sued in their individual capacities.

This case is now before the court upon three motions for summary judgment. Plaintiff has filed a motion for summary judgment. The defendant troopers have filed a motion for summary judgment. The SCDOC defendants have also filed a motion for summary judgment. The court has considered all three motions and the materials submitted in support of the motions. After full consideration, the court believes summary judgment should be granted against plaintiff's federal law claims, and the court should decline to exercise supplemental jurisdiction over plaintiff's state law claims.

Plaintiff's Claims

Plaintiff's complaint makes the following claims against the defendant KHP troopers: unlawful seizure of plaintiff in violation of the Fourth and Fourteenth Amendments; unlawful arrest in violation of the Fourth and Fourteenth Amendments; unlawful retaliation or punishment for exercising plaintiff's right to silence in violation of the Fourteenth Amendment; unlawful search in violation of Section 15 of the Bill of Rights of the Kansas Constitution; unlawful seizure in violation of Section 15 of the Bill of Rights of the Kansas Constitution; and malicious prosecution.

Plaintiff's complaint claims that defendant SCDOC officers and officials unlawfully punished him in violation of the Fourteenth Amendment in the following manner: by confining plaintiff in a detox cell when he was not intoxicated; denying plaintiff toilet paper and toilet facilities; denying plaintiff's requests for distilled water to drink and 100% cotton clothing to wear in accordance with plaintiff's religious beliefs; using excessive force to disrobe plaintiff; denying plaintiff a Holy Bible; denying plaintiff writing material; denying plaintiff the right to make a telephone call; denying plaintiff a chair, mattress, blanket or pillow; denying plaintiff's request for a psychological counselor; confining plaintiff in cells with the lights left on at full intensity day and night; confining plaintiff in cells with television surveillance; ogling plaintiff while he was naked in his cell; and maintaining plaintiff's confinement for more than 48 hours without a probable cause hearing. Plaintiff further claims that several of the above-described actions violated his right to privacy, his rights under the First Amendment, state statute, and Section 15 of the Bill of Rights of the Kansas Constitution.

Procedural Standards

Plaintiff has brought this case pro se. Accordingly, the court has not strictly applied the standards of practice against his pleadings. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). This does not excuse plaintiff, who is not a novice at litigation, from the burden of coming forward with evidence to support his claims as required by the Federal Rules of Civil Procedure and the local rules of this court. Dees v. Vendel, 856 F.Supp. 1531, 1536 (D.Kan.1994) citing Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir.1988); Local Rule 206 (material facts deemed admitted unless specifically controverted). In assessing the factual support for plaintiff's claims, the court has considered all the material supplied for all three summary judgment motions, including the affidavits filed by plaintiff.²

The general guidelines for analyzing summary judgment motions were reviewed by the Tenth Circuit in Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993):

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." Fed. R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L.Ed.2d 202, 106 S.Ct. 2505, 2509 (1986); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L.Ed.2d 265, 106 S.Ct. 2548, 2552 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 89 L.Ed.2d 538, 106 S.Ct. 1348, 1355-56 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). To sustain this burden, the non-moving party cannot rest on the mere allegations in the pleadings. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Applied Genetics Int'l v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

Plaintiff's Claims against KHP Troopers Eichkorn, Carlton & Koenig

The following uncontroverted facts are pertinent to these claims. On the evening of September 25, 1992, Trooper Eichkorn was on duty and stopped a pickup truck which plaintiff was driving on U.S. Highway 75 south of Topeka, Kansas. Eichkorn's duties included enforcing the traffic and vehicle laws of the State of Kansas. In the course of these duties, Trooper Eichkorn and other troopers have frequently stopped vehicles with defective taillights. Prior to the evening of September 25, 1992, Trooper Eichkorn had never met plaintiff and did not know plaintiff.

After stopping his pickup truck, plaintiff exited the vehicle and approached Eichkorn to ask why he had been stopped. Eichkorn radioed for assistance, and Troopers Karl Koenig and Damon Carlton arrived shortly thereafter. Eichkorn told plaintiff that he was stopped because of a defective right taillight. A piece of the taillight lens was missing. Plaintiff denied that the taillight was unlawful. Eichkorn also noted that the driver's side mirror on plaintiff's truck was defective because it was cracked, although he did not indicate plaintiff was stopped because of the cracked mirror. Plaintiff denied that the mirror was unlawful and demanded permission to leave. Eichkorn asked plaintiff to identify himself and for his driver's license. Plaintiff refused. This happened repeatedly. Plaintiff does not dispute that he was aggressive, belligerent, argumentative and uncooperative with Eichkorn.

Eichkorn arrested plaintiff for: obstruction of legal process, failure to produce a driver's license, and no proof of insurance. Following the arrest, plaintiff's truck was subjected to an inventory search. Plaintiff's wallet was found during the course of the search. The wallet and its contents were taken to the Shawnee County jail. The wallet contained identification cards or other cards which did not use plaintiff's name. At the jail, Eichkorn learned plaintiff's identity after officers from Osage County, Kansas, who overheard radio traffic, called SCDOC and suggested that the person Eichkorn arrested was Rodney Joe Fillmore. Eichkorn conducted a computer check using plaintiff's name through the State of Virginia. The check showed that plaintiff's driver's license was suspended. Eichkorn wrote plaintiff three notices to appear for: driving with a suspended license in violation of K.S.A. 8-262; no proof of insurance in violation of K.S.A. 40-3104; and obstruction of legal process in violation of K.S.A. 21-3808. Eichkorn also issued an inspection warning for a defective right taillight and defective left mirror.³

Plaintiff was charged in Shawnee County District Court in a three-count complaint with: obstructing legal process in violation of K.S.A. 21-3808; no liability insurance in violation of...