Lemons v. Lewis

• Decision Date: 22 April 1997
• Docket Number: Civil Action No. 95-2507-EEO.
• Citation: 963 F.Supp. 1038
• Parties: John E. LEMONS, Jr., Plaintiff, v. Ramona K. LEWIS, Defendant.
• Court: U.S. District Court — District of Kansas

963 F.Supp. 1038

John E. LEMONS, Jr., Plaintiff, v. Ramona K. LEWIS, Defendant.

Civil Action No. 95-2507-EEO.

United States District Court, D. Kansas.

April 22, 1997.

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John E. Lemons, Jr., Kansas City, KS, pro se.

Dale H. Close, Kansas City Police Dept., Legal Advisor's Office, Kansas City, MO, Lisa S. Morris, Kansas City Police Dept., Kansas City, MO, for Ramona K. Lewis.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Senior District Judge.

This matter is before the court on the following motions:

Plaintiff's Motion to Reconsider the Dismissal Order On Defendant Board of Commissioners and Detective Reed (Doc. # 68);

Plaintiff's Motion to Enter Court Transcript of the Trial as Evidence Prior to Entering Judgment on a Summary Judgment (Doc. # 69); and

Defendant Ramona K. Lewis' Motion for Summary Judgment (Doc. # 63).

The motions are ready for ruling. For the reasons set forth below, plaintiff's motion for reconsideration is denied. Plaintiff's motion to enter the court transcript as evidence is granted. Defendant's motion for summary judgment is granted.

I. Plaintiff's Motion for Reconsideration (Doc. # 68).

The decision of whether to grant or deny a motion for reconsideration is committed to the court's discretion. See Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988) (district court's decision on motion for reconsideration is reviewed under abuse of discretion standard). It is well established that a motion for reconsideration is the opportunity for the court to correct manifest errors of law or fact and to review newly discovered evidence or to review a prior decision when there has been a change in the law. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986). Appropriate circumstances for a motion to reconsider are where the court has obviously misapprehended a party's position on the facts or the law, or the court has mistakenly decided issues outside of those the parties presented for determination. Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990); Refrigeration Sales Co. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983).

Plaintiff filed his complaint on November 15, 1995, and named as a defendant the Board of Police Commissioners of Kansas City, Missouri ("the Board"). Thereafter, the Board filed a motion for judgment on the pleadings, on the grounds that the Board of Police Commissioners is not an entity capable of suing or being sued. On April 1, 1996, this court granted the Board's motion, finding that the Board is not a suable entity as a matter of law. Lemons v. Kansas City, Missouri Bd. of Police Comm'rs. et al., Civ. A. No. 95-2507-EEO, 1996 WL 223912, *1 (D.Kan. April 1, 1996) (citing Thompson v. City of Kansas City, Missouri, Civ. A. No. 93-2446-EEO, 1994 WL 325997, *2 (D.Kan. June 7, 1994) (citing numerous cases)).

On February 24, 1997, plaintiff filed the instant motion to reconsider. Pursuant to our Local Rule 7.3, "[A] motion asking a judge ... to reconsider an order or decision made by that judge ... shall be filed within ten days after the entry of the order or decision unless the time is extended by the court." D. Kan. Rule 7.3. Plaintiff, by filing the instant motion nearly eleven months after our April 1, 1996, order, has seriously failed to comply with the time limitations clearly set forth in our Local Rule. Thus, plaintiff's motion should be denied on timeliness grounds alone.

Nevertheless, the court will consider the merits of plaintiff's motion. Plaintiff seeks reconsideration based on "the need to correct clear error or prevent manifest injustice." Plaintiff's reply brief at 1. Plaintiff does not contend that reconsideration is warranted based on an intervening change in the controlling law, or on the availability of new evidence. In support of his motion for reconsideration, plaintiff asserts that the court granted the Board's motion because plaintiff's reply was not timely received by the court, and because of plaintiff's inexperience with the proper procedures for handling a civil rights case.

Plaintiff misapprehends the basis for the court's April 1, 1996, decision. In our opinion, we specifically stated that the Board's motion for judgment on the pleadings would be granted because, as a matter of law, the Board was not a suable entity. In his motion for reconsideration, plaintiff has not challenged the validity of this legal proposition. Because plaintiff has not presented the court with any valid grounds for sustaining a motion for reconsideration as to its decision regarding the Board, such motion will be denied.

Plaintiff also seeks reconsideration of our November 22, 1996, order, wherein the court dismissed the action, without prejudice, against defendant Jeff H. Reed. On October 24, 1996, the court issued a show cause order, directing plaintiff to respond on or before November 12, 1996, showing why service of the summons and complaint had not been made upon Reed within 120 days from the filing of the complaint. Plaintiff failed to respond by November 12, 1996, and on November 22, 1996, the court dismissed Reed from this action.

Once again, plaintiff's motion for reconsideration, filed some three months after the order, is untimely, and therefore should be dismissed on this ground alone. Furthermore plaintiff has stated no sufficient reason for this court to reconsider its November 22, 1996, order dismissing defendant Jeff Reed from the case. Plaintiff merely states:

As to Det. Reed: when the court directed me to respond showing why service of the summons was not made upon Det. Reed within 120 days from filing of the complaint. The reason for that is Detective lawyer told me that the det. was working on another job, while she and the plaintiff was at the per-trial [sic] hearing. [A]nd I was satisfied that his commission was taken, so he could not do this to any one else again.

Plaintiff's reply brief at 2. Accordingly, plaintiff's motion for reconsideration as to Jeff Reed will be denied.

II. Plaintiff's Motion to Enter Court Transcript of the Trial as Evidence Prior to Entering Judgment on a Summary Judgment (Doc. # 69).

Plaintiff seeks to enter into the record a trial transcript, apparently as evidentiary support for his opposition to defendant's motion for summary judgment. Defendant objects to plaintiff's motion on the grounds of untimeliness, and notes that pursuant to Local Rule 7.1(b), a party opposing a motion for summary judgment shall have twenty days to respond. Defendant filed her motion for summary judgment on January 29, 1997. Plaintiff filed a response to the motion for summary judgment on February 3, 1997, well within the twenty days. The court will view the motion at issue as a motion to supplement the summary judgment record, and will grant plaintiff leave to supplement the summary judgment record to include the trial transcript.

In the third paragraph of plaintiff's motion, it appears plaintiff may also be requesting that the court admit the trial transcript as evidence in any trial of this case. To the extent plaintiff is making such a request, the court finds a determination on the admissibility of evidence for trial is premature at this time, and is best left to the trial judge at the time of trial. Accordingly, such request is denied.

III. Defendant's Motion for Summary Judgment (Doc. # 63).

A. Standards for Summary Judgment.

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, 2509, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

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, 2552, 91 L.Ed.2d 265 (1986); Hicks v. Watonga, 942 F.2d 737, 743 (10th Cir.1991). Essentially, the inquiry as to whether an issue is genuine 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, 477 U.S. at 251-52, 106 S.Ct. at 2512. 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. This inquiry necessarily implicates the substantive evidentiary standard of proof that would apply at trial. Id. at 252, 106 S.Ct. at 2512.

Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in the light most favorable to the parties opposing the motion for summary judgment." Deep-water Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the...