Hall v. Doering

• Decision Date: 25 February 1998
• Docket Number: No. CIV. A. 97-2203-KHV.,CIV. A. 97-2203-KHV.
• Parties: George Milam HALL and Mary Milam Hall, Plaintiffs, v. Steve DOERING, et al., Defendants.
• Court: U.S. District Court — District of Kansas

997 F.Supp. 1464

George Milam HALL and Mary Milam Hall, Plaintiffs, v. Steve DOERING, et al., Defendants.

No. CIV. A. 97-2203-KHV.

United States District Court, D. Kansas.

February 25, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

George Milam Hall, Greeley, KS, Pro se.

Mary Milam Hall, Greeley, KS, Pro se.

Michael E Waldeck, Laura E. Thompson, Niewald, Waldeck & Brown, P.C., Kansas City, MO, for Steve Doering.

Wendell F. Cowan, Jr., Celia K. Garrett, Shook, Hardy & Bacon L.L.P., Overland Park, KS, for David Vaughn, Andy Bair, John Kersley, Anderson County Prosecuting Attorney, John Dowell, Anderson County, Kansas, Gene Highberger, Ann Callahan, Dudley Feuerborn, Howard Thompson.

Michael T. Halloran, Knipmeyer, McCann, Smith, Manz & Gotfredson, Kansas City, MO, for Bernard J. Lickteig, Mike Lickteig, Steve Lickteig.

Terry J. Solander, Garnett, KS for Kathy Feuerborn.

James D. Griffin, Scott R. Ast, Blackwell, Sanders, Matheny, Weary & Lombardi L.L.P., Overland Park, KS, for Terry J. Solander.

Lee H. Tetwiler, Winkler, Lee, Tetwiler & Domoney, Paola, KS, for Crown Realty of Kansas, Inc., Janie Burkdahl, Willie Duethman.

M. Joan Klosterman, James C. Morrow, Myerson & Morrow, Kansas City, MO, for Anderson County Review, Garnett Publishing, Inc., Duane Hicks.

MEMORANDUM AND ORDER

VRATIL, District Judge.

In its Memorandum and Order (Doc. # 200) entered January 5, 1998, the Court addressed the parties' various motions to dismiss Plaintiffs' Second Amended Complaint (Doc. # 152) filed October 9, 1997. See Hall v. Doering, et. al, No. Civ.A.97-2203-KHV, 1998 WL 58874 (D.Kan. January 6, 1998). As the case now stands, plaintiffs claim that Terry Solander denied and conspired to deny their constitutional rights under 42 U.S.C. § 1983 and conspired to commit fraud; that Steve Doering denied and conspired to deny their constitutional rights under 42 U.S.C. § 1983, committed and conspired to commit fraud, intentionally and negligently inflicted emotional distress, and intentionally interfered with prospective business relations in violation of state law; and that the Lickteig defendants denied and conspired to deny their constitutional rights under 42 U.S.C. § 1983, conspired to commit fraud, and intentionally interfered with prospective business relations in violation of state law (the latter claim being advanced only against Bernard Lickteig). The matter comes before the Court on the Second Motion For Summary Judgment Of Terry Solander (Doc. # 208), Defendant Steven B. Doering's Motion For Judgment On The Pleadings (Doc. # 212), Defendant Steven B. Doering's Motion For Summary Judgment (Doc. # 214), and the Motion For Summary Judgment Of Separate Defendants Bernard Lickteig, Mike Lickteig And Steve Lickteig (Doc. # 207), all filed January 9, 1998. The matter also comes before the Court on plaintiffs' cross motion for summary judgment, see Motion For Summary Judgment Pursuant To Federal Rule of Civil Procedure Rule 56(a) and (c) (Doc. # 210) filed January 9, 1998.

Having considered the arguments of record, the Court finds that defendants' motions should be sustained for the reasons stated below.

Factual Summary

At the outset, the Court notes that in responding to defendants' motions for summary judgment, plaintiffs have failed to comply with the scheduling order and the local rules which govern the summary judgment process. D. Kan. Rule 56.1 provides in relevant part as follows:

A memorandum in opposition to a motion for summary judgment shall begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each 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 movant's fact that is disputed. All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.

Plaintiffs have not specifically controverted defendants' statements of facts under D. Kan. Rule 56.1 in a manner sufficient to raise a genuine issue of material fact.¹ Wisner v. Unisys Corp., 917 F.Supp. 1501, 1504 (D.Kan.1996)(response which set forth 17 independent statements of fact, and made blanket denial of movant's statements of fact "insofar as they are inconsistent" with plaintiff's factual statements, did not conform to letter or spirit of Rule 56.1); Thompson v. City of Lawrence, Kansas, Nos.Civ.A.93-2253-KHV, 93-2310-KHV, 1994 WL 262598, at *2 (D.Kan. May 19, 1994)(plaintiffs who purported to controvert moving party's statements of undisputed facts but failed to cite record support failed to establish genuine issue of material fact under predecessor to D. Kan. Rule 56.1).

The Court is all too aware that plaintiffs proceed pro se and it shares the concern, frequently voiced by other courts, that pro se litigants not succumb to summary judgment merely because they fail to comply with the technical requirements involved in defending such a motion. See Woods v. Roberts, 47 F.3d 1178 (Table; available on West-law at 1995 WL 65457)(10th Cir.1995); Hass v. United States Air Force, 848 F.Supp. 926, 929 (D.Kan.1994)(courts must take added precautions before ruling on summary judgment motion involving pro se litigant). The Court has therefore made a diligent search of plaintiffs' briefs and attachments, to determine whether genuine issues of material fact preclude summary disposition of the claims which remain in this case. By the same token, the Court is not plaintiffs' advocate and will not construct arguments or theories for them. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991); Blackford v. Kansas Employment Sec. Bd. of Review, 938 F.Supp. 739, 741 (D.Kan.1996). Plaintiffs are held to the rules of procedure which apply to other litigants. DiCesare v. Stuart, 12 F.3d 973, 979 (10th Cir.1993). They cannot withstand summary judgment by relying on allegations that are unsupported by the evidence in the record. See Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992).

Accordingly, because plaintiffs have failed to comply with D. Kan. Rule 56.1 and thereby demonstrate a genuine issue of material fact, the Court must deem all of defendants' facts to be admitted for purposes of their motions. The undisputed facts are these:

In August, 1994, Bernard Lickteig sold Mary Hall [Mrs. Hall] certain farm property in Greely, Kansas. The property contained various chattels, including several horses and a mule which Bernard Lickteig kept on the property. Mrs. Hall and Bernard Lickteig had an oral agreement that he would rent a portion of the pasture located on her farm, and he paid pasture rent for one year beginning November 1, 1994. On April 21, 1995, Doering, acting as attorney for Bernard Lickteig, contacted Sheriff David Vaughn to request that he or one of his deputies conduct a "civil standby" at Mrs. Hall's farm so that Bernard Lickteig could remove the animals which belonged either to him or to the estate of the Lickteig children [the conservatorship]. Doering made the request because Bernard Lickteig was concerned that Hall might become violent. Doering told Vaughn that he was not requesting assistance with the actual removal of the animals or any other property, and that if anyone objected to the removal of the animals, the removal should stop and "they" — apparently the sheriff or deputy sheriff and Bernard Lickteig — should leave the premises. In a letter to Vaughn dated April 21, 1995, Doering reiterated Bernard Lickteig's desire to remove the animals from plaintiffs' farm. Doering enclosed documentation that Bernard Lickteig had paid Hall the pasture rent, thus satisfying any claims for a lien that Hall might assert over the animals. Doering also enclosed the letter from the conservator which authorized Bernard Lickteig to remove the animals which belonged to the conservatorship.

Later that day, the sheriff's office instructed Deputy Sheriff Andrew Bair to accompany Bernard Lickteig to the farm on April 22, 1995, to "stand by" in the event of a disturbance. Bair did so, along with Steve Lickteig. Mike Lickteig did not go to the farm, and he did not communicate with Vaughn, Bair, or anyone else regarding removal of the animals. Plaintiffs were not at the farm. When Bair got to the farm, he parked his car next to the pasture gate, and stood next to Bernard Lickteig's truck while the Lickteigs removed the animals.² Bair did not go onto the property, and he did not see either of the Lickteigs enter any of the buildings on the property. The Lickteigs did not ask Bair to help them corral or remove the animals. Bair had no intention of helping and he did not do so. After they removed the animals, Steve Lickteig left, followed by Bair then Bernard Lickteig. Plaintiffs claimed to hold a security interest in the animals under Kansas law,³ and the horses were removed without their consent.

On April 24, 1995, Vaughn wrote a letter to the county attorney which noted that on April 19 and 20, 1995, Hall had sought his assistance regarding the dispute with Bernard Lickteig. Vaughn reported that he had told Hall that the dispute was a civil matter and advised Hall to consult a lawyer. Vaughn also stated that Doering had requested a "civil standby" to ensure that "no trouble would occur," and confirmed that Bair in fact had performed the "civil standby" on April 22, 1995.

On June 1, 1995, Mrs. Hall filed a suit against Bernard Lickteig and Dorothy Lickteig in the District Court of Anderson County, Kansas. See Mary Hall v. Bernard Lickteig, et. al, Case No. 95 C 33 %[Lickteig]. In part, Mrs. Hall claimed that Bernard Lickteig had breached an agreement to...