Fillmore v. Ordonez, Civ. A. No. 92-4074-DES.

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Citation829 F. Supp. 1544
Docket NumberCiv. A. No. 92-4074-DES.
PartiesRodney Joe FILLMORE, Plaintiff, v. Miquel ORDONEZ, individually and as Osage County Sheriff; Eldon Croucher; Gerald Nitcher; Darrel Manning; Lori Dunn; and Ken Fozdick, Defendants.
Decision Date29 July 1993





Rodney Joe Fillmore, pro se.

Donald Patterson, Fisher, Patterson, Sayler & Smith, Topeka, KS, for defendants.


SAFFELS, District Judge.

This matter is before the court on the motion of the plaintiff for summary judgment (Doc. 59) and on the defendants' joint motion for summary judgment (Doc. 56).

Nature of the Claim

Plaintiff brings this pro se action for monetary damages pursuant to 42 U.S.C. § 1983 against the Sheriff of Osage County and several deputy sheriffs.1 Among other contentions, he argues that he was unlawfully arrested and detained for five days in the Osage County jail; that his briefcase was unlawfully seized and searched; that he was unlawfully prosecuted for obstruction of official duty; that he was denied meaningful telephone access to legal counsel; that he was denied certain law books and other legal materials he requested; that he was effectively deprived of adequate food because the defendants failed to provide a diet consistent with his religious beliefs; that he was denied a suitable mattress; and that he was subjected to the deliberate infliction of pain while in the defendants' custody.

The defendants, Osage County Sheriff Miquel Ordonez and five deputy sheriffs, all deny that plaintiff was deprived of any of his federal rights during his arrest, booking, and detention in the Osage County jail. Defendant Ordonez, who is sued in his official capacity on two of plaintiff's claims, denies that he maintains any policy, regulation, custom, or procedure that denies anyone any rights protected by the Constitution or laws of the United States. With regard to plaintiff's other claims against Ordonez and his claims against the deputy sheriffs in their individual capacities, the defendants jointly contend that they are entitled to qualified immunity.

Jurisdiction and Venue

The court has jurisdiction of this matter pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). Venue is proper under 28 U.S.C. § 1391(b)(1) and (2).

Summary Judgment Standards

Under Fed.R.Civ.P. 56, the court is compelled to render summary judgment on behalf of a moving party 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. 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510.

The moving party has the burden of showing the absence of a genuine issue of material fact. This burden "may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. The nonmoving party must go beyond the pleadings and designate specific facts, by affidavits, depositions, answers to interrogatories, and admissions on file, showing that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514.

The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues. United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986). The court must also consider the record in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). However, a mere scintilla of evidence in favor of the nonmoving party is insufficient to create a genuine issue of material fact. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.

When a defendant raises the affirmative defense of qualified immunity in a motion for summary judgment, the burden shifts to the plaintiff to come forward with facts or allegations which demonstrate that the defendant's alleged violation of the law should have been apparent in light of preexisting law. Jantz v. Muci, 976 F.2d 623, 627 (10th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993). Once the plaintiff has done so, the defendant assumes the normal burden of a movant for summary judgment of establishing that no material facts remain in dispute that would defeat his claim of qualified immunity. Id. (citing Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th Cir.1989)).


For the purpose of resolving the parties' summary judgment motions, the court makes the following findings of fact.

At approximately 9 p.m. on December 7, 1991, defendant Eldon Croucher, a deputy sheriff in Osage County, stopped a truck for speeding on U.S. Highway 56. Defendant Croucher had checked the truck's speed with radar equipment at 69 mph in a 55 mph zone. The sole occupant of the truck was the plaintiff, Rodney Joe Fillmore, who immediately exited the truck and approached Deputy Croucher's vehicle, asking why he had been stopped. He denied he had been speeding. He also denied he had been driving, but admitted he had been causing movement of the truck from which he had emerged.2

Defendant Croucher had known plaintiff and his family for approximately 30 years, since their childhood days. When defendant Croucher asked plaintiff for his driver's license, plaintiff responded that he did not have one. Upon defendant Croucher's request, plaintiff produced the truck's registration and proof of insurance. The truck was registered in the name of plaintiff's brother. Defendant Croucher then asked plaintiff whether he had a license in another state and whether he was driving with a suspended license. Plaintiff refused to answer, noting that driving with a suspended license was a crime. Defendant Croucher told plaintiff that if he did not respond to his questions, he would be arrested for obstructing legal process. Plaintiff again declined to respond, stating that he was not waiving any of his rights. Plaintiff was otherwise fully cooperative.

Defendant Croucher then placed plaintiff under arrest for obstructing an officer in the performance of his legal duty and for failing to display a driver's license on demand. Plaintiff requested that defendant Croucher allow him to sign a Notice to Appear instead of arresting him, but defendant Croucher declined to do so. Plaintiff was handcuffed and pat-searched, and was then seated in defendant Croucher's patrol car.

Defendant Croucher asked the plaintiff if his truck was secure, and plaintiff responded that it was. Defendant Croucher explained that if plaintiff left the truck on the side of the highway, the county could not be held responsible for any damage. Plaintiff agreed. Defendant Croucher then exited his vehicle and approached plaintiff's truck to ensure that it was secure. He saw a briefcase and a zippered deposit bag resting on the seat of the truck, and he seized them. Next, he took the keys out of the truck and locked it behind him. Defendant Croucher did not conduct an inventory search of the truck, nor did he impound the vehicle. Defendant Croucher returned to the police car carrying plaintiff's briefcase and money bag. Plaintiff protested defendant Croucher's search of the truck and the seizure of his personal property.

On the drive to the Osage County jail, defendant Croucher recited plaintiff's Miranda rights.

Upon their arrival at the jail, plaintiff's property was inventoried. He was carrying on his person approximately $465.00 in cash. In addition, he carried a Sam's Club card showing plaintiff's picture, but bearing the name Gary Thompson. In addition, he was carrying two telephone credit cards, one bearing the name Oliver Douglas and the other the name Russell Briskie. Defendant Croucher demanded that plaintiff unlock and open the briefcase so he could search it, but plaintiff refused to do so, stating that the deputy sheriffs had no warrant or probable cause to search the briefcase. At some point, plaintiff's deposit bag was opened and searched without a warrant and without plaintiff's consent.3

Defendants Nitcher and Manning were on duty at the jail when defendant Croucher arrived with plaintiff. They attempted to photograph plaintiff and take his fingerprints, as required according to jail policy for all persons booked into jail.4 Plaintiff refused, stating that he was not subject to K.S.A. 21-2501, the Kansas statute requiring fingerprinting of persons under certain circumstances. Defendants Nitcher and Manning threatened plaintiff with a charge of obstructing legal process if he refused to submit to their requests. However, plaintiff continued to refuse. Plaintiff also refused to don the standard orange jumpsuit worn by jail inmates because the garment contained synthetic fibers, explaining that his religion permitted him to wear only clothes made of...

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  • Fillmore v. Eichkorn
    • United States
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    • May 18, 1995
    ...with similar facts involving plaintiff, summary judgment was granted against plaintiff's unlawful arrest claim. Fillmore v. Ordonez, 829 F.Supp. 1544, 1556-58 (D.Kan.1993) aff'd on other grds, 17 F.3d 1436 (10th Cir.1994) (table case, opinion attached hereto). We will follow this holding an......
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    ...district court's ruling on summary judgment that constant lighting was reasonably based on security concerns); Fillmore v. Ordonez, 829 F.Supp. 1544 (D.Kan.1993) (on summary judgment, court held soft night-time lighting did not amount to cruel and unusual punishment)).] In contrast to these......
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