Harris v. Gentile

• Decision Date: 30 July 2021
• Docket Number: 8:20CV17
• Parties: KEVIN B. HARRIS, Plaintiff, v. GRANT L. GENTILE, Police Officer #2140; JOHN H. LOPEZ, Police Officer #1955; NICOLAS YANEZ, Police Officer #1506; GEOFFREY A. STRONG, Police Officer Y631; and BROCK GENTILE, Police Officer #2391; and LANCE GORDON, Defendants.
• Court: U.S. District Court — District of Nebraska

KEVIN B. HARRIS, Plaintiff, v. GRANT L. GENTILE, Police Officer #2140; JOHN H. LOPEZ,Police Officer #1955; NICOLAS YANEZ, Police Officer #1506; GEOFFREY A. STRONG,Police Officer Y631; and BROCK GENTILE, Police Officer #2391; and LANCE GORDON, Defendants.

8:20CV17

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

July 30, 2021

MEMORANDUM AND ORDER

This matter is before the court on the parties' cross-motions for summary judgment (filings 42, 46 & 48) and Plaintiff's motions for default judgment against Defendant Lance Gordon (filings 32 & 35). For the reasons that follow, Defendants' motions for summary judgment (filings 42 & 48) are granted, and Plaintiff's Motion for Summary Judgment (filing 46) and motions for default judgment (filings 32 & 35) against Defendant Lance Gordon are denied.

I. BACKGROUND

Plaintiff Kevin B. Harris ("Plaintiff") originally filed this action on January 13, 2020, while he was incarcerated. (Filing 1.) The court granted him leave to proceed in forma pauperis on January 28, 2020, also while he was incarcerated. (Filing 7.) Plaintiff has since been released. (See Filing 57.) Upon order of the court (filing 52), Plaintiff has paid the full amount of the court's filing fee.

This case involves Plaintiff's 42 U.S.C. § 1983 Fourth Amendment claims against Defendants for unlawful arrest and unreasonable search and seizure of his property. (Filings 12 & 13.) In his Amended Complaint, Plaintiff alleges that, after Defendant Lance Gordon attacked him at his residence, City of Omaha Police Officers Grant L. Gentile, Brock Gentile, John H. Lopez, Nicolas Yanez, and Geoffrey A. Strong unlawfully arrested him and subjected his home to an unreasonable search and seizure. (Filing 12 at CM/ECF pp. 4, 6.) Plaintiff's Amended Complaint alleges that Defendant Gordon acted jointly with the police to have Plaintiff unlawfully arrested.¹ (Id. at CM/ECF p. 8; Filing 13 at CM/ECF p. 2.)

In its earlier Memorandum and Order, the court allowed the following claims to proceed: (1) unlawful arrest against all Defendants in their individual capacities; and (2) unreasonable search and seizure of property against Defendants Grant Gentile, Brock Gentile, Lopez, Yanez, and Strong in their individual capacities. (Filing 13 at CM/ECF p. 6.)

Defendant Strong filed his Answer (filing 15) on June 26, 2020, and Defendants Grant Gentile, Brock Gentile, Lopez, and Yanez (collectively, "City Defendants") filed their Answer (filing 31) on September 11, 2020. Defendant Gordon did not file an answer or otherwise respond to the Amended Complaint, and the Clerk of Court entered a default against Gordon on September 9, 2020. (Filing 30). Plaintiff then filed two motions for default judgment. (Filings 32 & 35.) On November 4, 2020, the court ordered Defendant Gordon to respond to Plaintiff's motions on or before December 4, 2020. (Filing 37.) Defendant Gordon failed to respond to the court's order. On December 21, 2020, the court ordered Plaintiff'smotions for default judgment against Defendant Gordon be held in abeyance until this matter has been adjudicated as to all Defendants. (Filing 38.)

Defendant Strong filed his Motion for Summary Judgment on April 27, 2021 (filing 42), and City Defendants filed their Motion for Summary Judgment on June 10, 2021 (filing 48). Plaintiff has not responded to either summary judgment motion. Instead, on May 3, 2021, Plaintiff filed his own Motion for Summary Judgment. (Filing 46.) Defendant Strong and City Defendants have not responded to Plaintiff's Motion for Summary Judgment.

II. SUMMARY JUDGMENT STANDARD

"A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion." Fed. R. Civ. P. 56(a).

In ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. See Dancy v. Hyster Co., 127 F.3d 649, 652-53 (8th Cir. 1997). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue; the court merely determines whether there is evidence creating a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51 (1986); Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011).

"There is a genuine dispute when the evidence is such that a reasonable jury could return a verdict for the non-moving party." Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (internal quotations and citations omitted). "A factis material if it 'might affect the outcome of the suit.'" Id. (quoting Anderson, 477 U.S. at 248).

The moving party bears the initial responsibility of informing the court of the basis for the motion and must identify those portions of the record which the moving party believes show the lack of a genuine issue of material fact.² Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the moving party does so, the burden then shifts to the nonmoving party, who "may not rest upon mere allegation 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. If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, summary judgment should be granted. Smith-Bunge v. Wisconsin Cent., Ltd., 946 F.3d 420, 424 (8th Cir. 2019).

III. SUMMARY JUDGMENT PROCEDURE

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

This court's local rules further specify that "[t]he moving party must include in the brief in support of the summary judgment motion a separate statement of material facts," which "should consist of short numbered paragraphs, each containing pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials that support the material facts stated in the paragraph." NECivR 56.1(a) (underlining in original). "The statement must not contain legal conclusions." Id.

The opposing party's brief must include "a concise response to the moving party's statement of material facts." NECivR 56.1(b)(1). "Each material fact in the response must be set forth in a separate numbered paragraph, must include pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon which the opposing party relies, and, if applicable, must state the number of the paragraph in the movant's statement of material facts that is disputed." Id.

A party's failure to comply with these requirements can have serious consequences: The moving party's "[f]ailure to submit a statement of facts" or "[f]ailure to provide citations to the exact locations in the record supporting the factual allegations may be grounds to deny the motion for summary judgment." NECivR 56.1(1)(a) (underlining omitted). On the other hand, "[p]roperly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response." NECivR 56.1(1)(b)(1) (underlining omitted).

IV. EVIDENCE PRESENTED

In this case, Defendant Strong's brief (filing 44) in support of his Motion for Summary Judgment and City Defendants' brief (filing 50) in support of their Motion for Summary Judgment each contain a separate statement of material facts,consisting of numbered paragraphs with proper references to the record. The documents referenced in the two briefs include: the declarations of Defendant Strong (filing 43-1) and City Defendants—Grant Gentile, Brock Gentile, Lopez, and Yanez (filings 49-1, 49-2, 49-3 & 49-4); a foundational affidavit (filing 49-5) for the declarations of City Defendants; copies of court documents in Plaintiff's state court criminal case (filing 43-2 at CM/ECF pp. 2-11); and a foundational affidavit for the court documents (id. at CM/ECF pp. 1-2). While Plaintiff's failure to file opposing briefs is not considered a confession of the motions, see NECivR 7.1(b)(1)(C), his failure to controvert Defendant Strong's and City Defendants' statements of material facts is considered an admission for purposes of deciding the motions. See NECivR 56.1(1)(b)(1); Fed. R. Civ. P. 56(e)(2) ("If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion . . . .").

Plaintiff did not file a separate brief in support of his own Motion for Summary Judgment. See NECivR 7.1(a)(1). Additionally, Plaintiff's motion does not include a separate statement of material facts. See NECivR 56.1(a). Plaintiff did include with his motion a notarized written statement from his wife in which she asserted that Defendant Gordon entered their residence "with the intentions to start an[] altercation and fight" with Plaintiff. (Filing 46 at CM/ECF pp. 3-4.) The court will consider this document.

In light of the above, the court adopts the following...