Henry v. Board of Leavenworth County

• Decision Date: 04 August 1999
• Docket Number: No. Civ.A. 98-2476-KHV.,Civ.A. 98-2476-KHV.
• Citation: 64 F.Supp.2d 1042
• Parties: Curtis HENRY, et al., Plaintiffs, v. BOARD OF LEAVENWORTH COUNTY, COMMISSIONERS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

64 F.Supp.2d 1042

Curtis HENRY, et al., Plaintiffs, v. BOARD OF LEAVENWORTH COUNTY, COMMISSIONERS, et al., Defendants.

No. Civ.A. 98-2476-KHV.

United States District Court, D. Kansas.

August 4, 1999.

COPYRIGHT MATERIAL OMITTED

Sulaimon Adebayo Hassan, Hassan Law Firm, Chartered, Kansas City, KS, for Plaintiffs.

Michael T. Jilka, Wendell F. Cowan, Jr., Shook, Hardy & Bacon L.L.P., Barry E. Warren, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, KS, Michael E. Waldeck, John L. Hayob, laura Thompson Goettsch, Niewald, Waldeck & Brown, P.C., Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Plaintiffs' action arises from the death of Curtis Henry, Jr. on October 19, 1996. Plaintiffs sue various officials and officers of Leavenworth County, Kansas,¹ the City of Lansing, Kansas,² and the City of Leavenworth, Kansas,³ seeking to establish liability under 42 U.S.C. §§ 1983, 1985 and 1986 and state law. This matter comes before the Court on the Motion Of Leavenworth County Board of Commissioners, Donald Navinsky, Herbert F. Nye, Charlie Yates, Edward Cummings, Michael Wehmeyer, William Eustice, Alfred Grenier And John Duncanson's Motion For Summary Judgment (Doc. # 83) filed May 28, 1999; Defendants City Of Lansing, Kansas, Michael Smith, Kenneth Bernard, And Steven Wayman's Motion For Summary Judgment (Doc. # 86) filed May 28, 1992; the Motion For Summary Judgment (Doc. # 80) filed May 27, 1999 by the City of Leavenworth, H.B. Weeks and Lee Doehring; and plaintiffs' Motion For Hearing On Defendants' Motion For Summary Judgment (Doc. # 106) filed June 29, 1999.⁴ The Court sustains plaintiffs' motion for hearing⁵ and for reasons stated below, sustains in their entirety the motions for summary judgment by the City of Lansing defendants and the City of Leavenworth defendants. Defendants' motions do not address all of plaintiffs' claims, however, and the Court is presently unable to grant summary judgment as to plaintiffs' entire case. Depending on the Court's further rulings, the other motions may be moot and the Court refrains from ruling on them at this time.

As noted, plaintiffs bring suit under 42 U.S.C. §§ 1983, 1985 and 1986 and state law. Plaintiffs' Section 1983 claim alleges that Sheriff Nye and Yates, Wehmeyer, Eustice and Grenier (officers in the county sheriff's department) violated (1) the Fourth Amendment by killing Henry and seizing his gun and knife without probable cause; (2) the Fifth Amendment by depriving Henry of life and taking his knife and gun without due process; (3) the Eighth Amendment by using unreasonable and excessive force and inflicting cruel and unusual punishment upon Henry by killing him; and (4) the Fourteenth Amendment by depriving Henry of his life, liberty and property without due process and by denying him equal protection of the laws.

Plaintiffs' Section 1985(3) claim alleges that the same defendants (Sheriff Nye and county officers Yates, Wehmeyer, Eustice and Grenier), along with county officer Duncanson, Lansing Police Chief Smith, Lansing officer Wayman, and Leavenworth Police Chief Doehring, made false police reports, manufactured evidence to sustain false statements, ordered junior officers not to write complete and detailed reports, and falsely claimed that Henry had shot officer Wehmeyer. Plaintiffs' Section 1986 claim alleges that the Leavenworth County Board of Commissioners, the City of Leavenworth, the City of Lansing, County Commissioner Navinsky, Mayor Bernard and Mayor Weeks knew or should have known about the cover up but failed to stop or prevent it.

Plaintiffs also bring state law claims on behalf of Henry's estate.⁶

Summary Judgment Standard

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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Smith v. Midland Brake, Inc., 138 F.3d 1304, 1307 (10th Cir.1998). The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party meets its 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. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

In considering a summary judgment motion the Court must view the evidence in the light most favorable to the nonmoving party. Tom v. First Am. Credit Union, 151 F.3d 1289, 1291 (10th Cir.1998). Summary judgment may be granted, however, if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. Thus, "`[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,' summary judgment in favor of the moving party is proper." Thomas v. IBM, 48 F.3d 478, 484 (10th Cir.1995) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

Facts⁷

Before providing the relevant facts, the Court notes two issues raised by defendants' motions for summary judgment. First, before reciting their statements of facts under D.Kan.Rule 56.1, all defendants set forth lengthy discussions about the facts of this case. The Court, however, disregards all factual statements which are presented in a format that does not comply with D.Kan.Rule 56.1. In addition, the City of Leavenworth defendants rely almost exclusively on police reports, without showing that these reports meet any hearsay exception. To that extent, when defendants offer the reports for the truth of the matter asserted, the reports are hearsay and thus inadmissible, and the Court also disregards them. See Lancaster v. Independent School Dist. No. 5, 149 F.3d 1228, 1236 (10th Cir.1998); United States v. McIntyre, 997 F.2d 687, 698-99 (10th Cir.1993) (documents offered for truth of statements they contain are hearsay); Fed.R.Evid. 801(c). On the other hand, as discussed below regarding officer Eustice, defendants sometimes cite the reports to establish what officers believed on the night of the incident, not for the truth of the statements in the reports. To this extent, the reports do not constitute hearsay. See Webb v. ABF Freight System, Inc., 155 F.3d 1230, 1248 (10th Cir.1998); Fed.R.Evid. 801. Finally, the record includes extensive material which the parties do not include in their statements of undisputed facts. Also, in their motions and at oral argument, the parties have often referred the Court to evidence which is not found in their statements of undisputed facts. The Court has therefore scoured the record and includes its own factual allegations which are supported by uncontroverted record evidence.⁸

On October 19, 1996, Curtis Henry, Jr. confronted Shammara Stuteville (now Van-Guerrin), who was using a pay telephone located outside the Western Sizzlin Restaurant. The restaurant was located at 5401 South Fourth Street in the City of Leavenworth, Kansas. During the confrontation, Henry brandished a knife and threw Stuteville to the ground. Stuteville and Henry went to his car, where Henry pulled out a covered object which Stuteville believed to be a rifle. Henry also confronted Stuteville's twin sister, Salima, and pointed a rifle at her. Salima heard Henry fire the rifle into the air.

An individual called 911 and reported the incident to the police department for the City of Leavenworth. The Leavenworth County sheriff's department then issued a bulletin which asked law enforcement agencies to stop a vehicle which matched the description of Henry's car.⁹ The sheriff's department also dispatched Lansing police officer Brian Duncan to assist in responding to the call. The sheriff's department informed Duncan that the suspect was driving a yellow Ford Escort southbound on Fourth Street. Duncan was proceeding to the crime scene when he observed Henry driving a cream Ford Escort southbound on Main Street. Duncan pursued Henry southbound on Highway 73.¹⁰ Lansing police officers Stan Hobbs, Randall Livengood and Steven Wayman also pursued Henry. Hobbs was alone in one patrol car while Livengood and Wayman shared another patrol car. As Duncan pursued the Ford Escort, he knew that Henry had been involved in an armed disturbance at the restaurant. He also saw a muzzle flash and heard a "bang" or "thud," after which time a hole appeared in the rear window of Henry's car. As a result, Duncan thought that Henry had shot at him.¹¹ Duncan then saw another flash reflect off Henry's windshield and saw the remaining glass in Henry's back window fall out. Duncan therefore believed that Henry had shot at him a second time. Officer Wayman saw Henry raise his rifle and fire a third shot, out the passenger window of the car.¹²

At the intersection of Highway 73 and Hollingworth Road, Henry pulled his car over to the right shoulder of the road. Duncan, Hobbs and Wayman all parked their cars approximately 30 yards behind his car. Duncan and Wayman ordered Henry to exit his car and surrender, but Henry did not respond. Lansing police chief Mike Smith arrived at the scene within seconds after Duncan and Wayman. Wayman pointed his gun at Henry's car, but the record contains no evidence that he fired it.¹³ Officers with the City of Leavenworth police department reported that "[s]ubject in the vehicle is disabled and they're trying to stand him up." Plaintiff's Response To Defendants' Motion For Summary Judgment (Doc. # 101) filed June 21, 1998 at Ex. 1, Bate Stamp 209.¹⁴

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