Mann v. Purcell

• Decision Date: 26 July 1989
• Docket Number: No. 86-1655-K.,86-1655-K.
• Citation: 718 F. Supp. 868
• Parties: Michael Keith MANN, and Gail Mann, Plaintiffs, v. Pat PURCELL, Individually and as the Undersheriff of the County of Sherman; Scott Harper, Individually and as a Police Officer in the Police Department of the City of Goodland; and the County of Sherman, a Kansas County, Defendants.
• Court: U.S. District Court — District of Kansas

718 F. Supp. 868

Michael Keith MANN, and Gail Mann, Plaintiffs, v. Pat PURCELL, Individually and as the Undersheriff of the County of Sherman; Scott Harper, Individually and as a Police Officer in the Police Department of the City of Goodland; and the County of Sherman, a Kansas County, Defendants.

No. 86-1655-K.

United States District Court, D. Kansas.

July 26, 1989.

Susan P. Selvidge, Fleeson, Gooing, Coulson & Kitch, Wichita, Kan., for plaintiffs.

Mary Kathleen Babcock, Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., Gary K. Jones, Turner and Boisseau, Wichita, Kan., and Perry Warren, Goodland, Kan., for defendants.

MEMORANDUM AND ORDER

PATRICK F. KELLY, District Judge.

This case arises out of an incident which occurred on July 31, 1985 at a gas station off of Interstate-70 near Goodland, Kansas. On that date, plaintiffs Michael and Gail Mann were traveling through Kansas on their way to Oklahoma and stopped at the gas station of Leroy Baalman. After an altercation involving a rosebush and a credit card (as more fully described in the fact portion of this opinion), Michael Mann was arrested for disorderly conduct by Sherman County Undersheriff Pat Purcell.

The Manns subsequently brought the instant action pursuant to 42 U.S.C. § 1983 against the County of Sherman, Undersheriff Pat Purcell, Goodland City Police Officer Scott Harper, and gas station owner Leroy Baalman. Plaintiff Michael Mann claims the circumstances of his arrest and imprisonment violated his constitutional rights under the first, fourth and fourteenth amendments. Gail Mann argues only that her first amendment right to free speech was violated. Plaintiffs further allege pendent state claims of false arrest, false imprisonment, assault and battery, outrageous conduct, intentional infliction of emotional distress, and prima facie tort.

The court previously granted defendant Leroy Baalman's motion for summary judgment on the ground that Baalman was a private individual and as such did not act "under color of state law" as required by § 1983. See Mann v. Baalman, et al., No. 86-1655-K, slip op. at 10, 1988 WL 166237 (D.Kan. Apr. 28, 1988). Currently before the court are the motions for summary judgment of remaining defendants Sherman County, Officer Purcell and Officer Harper.

The court heard oral argument on defendants' motions on June 12, 1989, and at that time indicated its intention to grant the summary judgment motions of defendants Sherman County and Officer Harper. The court deferred judgment, however, on the summary judgment motion of Officer Purcell. The court has since had an opportunity to thoroughly examine the briefs and supporting documentation filed by the parties, as well as to research and consider the relevant case law, and is now prepared to rule. Consistent with its statements at the hearing and for the additional reasons set forth herein, the court grants summary judgment as to each of the remaining defendants.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, this court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir.1988). Further, the party moving for summary judgment must demonstrate its entitlement beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985). The moving party need not disprove plaintiff's claim, but rather, must only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations, or denials, contained in its pleadings or briefs. Rather, the moving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegations. Burnette v. Dresser Industries, Inc., 849 F.2d 1277, 1284 (10th Cir.1988). One of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Findings of Fact

Plaintiffs' version of the facts of this case differs substantially from defendants' version. Since the court is required, however, to consider the evidence in a light most favorable to the party opposing summary judgment, the following recitation of facts consists, unless otherwise stated, of plaintiffs' account of the events prompting this lawsuit.

On July 31, 1985, plaintiffs Michael and Gail Mann were en route from their family horse ranch in Oregon to the Quarterhorse World Championships at Tulsa, Oklahoma. The Manns, who were pulling a four-horse trailer, had been traveling with two other vehicles,¹ but became separated from the convoy near Denver, Colorado. Upon reaching Goodland, Kansas, the Manns decided to stop at the Quality Oil Service Station in order to refuel and look for the other vehicles. The owner of the station, Leroy Baalman, was the only person on duty when the Manns arrived.

Mr. Mann initially informed Baalman that he would be paying for the gas with a credit card and asked Baalman if the Manns could obtain water for their horses. Baalman agreed and pointed Mr. Mann toward the outside faucet and hose.

While Mr. Mann was watering the horses, Baalman emerged from the store and began yelling obscenities at Mr. Mann. Baalman claimed that Mann, in moving the hose to water the horses, had damaged a small rosebush located at the back of the station. The Manns and Baalman subsequently examined the rosebush together but disagreed as to the damage, if any, the rosebush had sustained. Baalman continued to yell obscenities at the Manns and the Manns became upset. Mr. Mann told Baalman, "you're sick, you need to see a psychiatrist, you're just nuts." (M. Mann Depo., pp. 104-05.)

Mrs. Mann and Baalman then went inside the station, where Baalman imprinted the Manns' credit card number on a receipt and wrote in the amount of the gas sale, but refused to permit Mrs. Mann to sign the receipt, saying that he would not accept the credit card. A somewhat heated discussion ensued between the two, with Mrs. Mann insisting that Baalman was obligated to take the card and Baalman insisting she pay cash. Mrs. Mann, not Baalman, eventually called the local police and informed them of the dispute.

After placing the phone call, Mrs. Mann returned to the counter and picked up her credit card which Baalman had placed on the counter. At that point, Mr. Mann came into the station and asked what was going on. Mrs. Mann informed him that Baalman had returned her credit card but would not return the imprinted receipts, and that the police were on their way. Mr. Mann, who was speaking in a "raised voice," asked Baalman "what the hell his damn problem was." (M. Mann Depo, p. 121.) Mr. and Mrs. Mann then walked outside the station to talk the matter over. At approximately the same time, Goodland Police Officer Scott Harper arrived with lights flashing and siren operating.

Both Mr. and Mrs. Mann approached Harper. Mrs. Mann, who was very emotional at this point, began relating to Harper the incident which had occurred and repeating in a raised voice all the profanity she had heard from Baalman. Mr. Mann claims that during this exchange Harper acted nervous and excited.

While the Manns spoke with Harper, three Sherman County sheriff's officers arrived in two additional vehicles.² After Deputy Doug Whitson got out of one vehicle, Mr. Mann went over and began speaking with Whitson about what had transpired. When the sheriff's deputies arrived, Officer Harper went inside the station to speak with Baalman. According to Harper, he went inside to get Baalman's side of the story because he wasn't able to reason with the Manns.

In the meantime, Whitson asked Mann if he would like to sign a complaint against Baalman, to which Mann replied, "I'm not interested in signing a complaint, but I'd like to take the son of a bitch (Baalman) out back behind the building for a few minutes." (M. Mann Depo., pp. 123, 413.) Deputy Whitson told Mann to "just calm down." (M. Mann Dep., p. 123.)

After speaking briefly with Baalman, Harper rejoined the group outside. Harper testified in his deposition that when he went in to the station to speak with Baalman, he knew that the Manns were claiming that Baalman would not accept their credit card. During his conversation with Baalman, he learned that some damage had been done to the rosebush by Mann but he does not recall what was said about the credit card. (Harper Depo., p. 32.) Baalman testified that he and Harper did not discuss the rosebush, but that Baalman did tell Harper that he (Baalman) refused to accept the Manns' credit card.

When Harper returned to the group, he approached Mr. Mann and advised him that "everything is okay, but Leroy Baalman won't take your credit card, he says you have to pay in cash." (M. Mann Depo., p. 132.) Harper's statement upset Mr. Mann and Mann "raised" his voice and "sternly" said, "Hey, wait a minute ... the man Baalman agreed to take the credit card, he put the fuel in on the pretense of taking the credit card, and he should have to take it." (M. Mann Depo., p. 134; G. Mann Depo., p. 144.) Mr. Mann also asked Harper how "everything could be fine" when the Manns, who were the complainants, were being asked to pay cash. Mann claims that after he said this, Harper got angry and started shaking, so Mann changed his tone and suggested that "maybe" Baalman should...