McCormick v. City of Lawrence

• Decision Date: 24 June 2004
• Docket Number: No. CIV.A.03-2195-GTV.,CIV.A.03-2195-GTV.
• Citation: 325 F.Supp.2d 1191
• Parties: Dale E. McCORMICK and Curtis A. Kastl II, Plaintiffs, v. CITY OF LAWRENCE, et al., Defendants.
• Court: U.S. District Court — District of Kansas

325 F.Supp.2d 1191

Dale E. McCORMICK and Curtis A. Kastl II, Plaintiffs, v. CITY OF LAWRENCE, et al., Defendants.

No. CIV.A.03-2195-GTV.

United States District Court, D. Kansas.

June 24, 2004.

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Dale E. McCormick, Lawrence, KS, pro se.

Curtis A. Kastl, II, Lawrence, KS, pro se.

Randall F. Larkin, Gerald L. Cooley, Gilliland & Hayes, P.A., Lawrence, KS, for Defendants.

MEMORANDUM AND ORDER

VanBEBBER, Senior District Judge.

Plaintiffs Dale E. McCormick and Curtis A. Kastl II, proceeding pro se, bring this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiffs allege that Defendants Mik Shanks, Scott Hofer, Kirk Fultz, Dean Brown, Warren Burket, Mike Pattrick, Leo Souders, Justin Stipanovich, and James White — all Lawrence, Kansas police officers — police chief Ron Olin, and the City of Lawrence, violated their First, Fourth, Fifth, and Fourteenth Amendment rights during and after Plaintiffs' arrests in July 2002 and in connection with a sobriety checkpoint in June 2002. Plaintiffs also allege that Defendants violated the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and Kansas state common law. Defendants have filed a motion to dismiss or for summary judgment (Doc. 121). For the following reasons, the court grants Defendants' motion.

Also pending before the court are Defendants' motion to supplement Doc. 121 by adding a page erroneously omitted (Doc. 140), Plaintiffs' motions for summary judgment (Docs. 18 and 20), and Plaintiff McCormick's motion to deem Plaintiffs' summary judgment motion(s) as uncontested (Doc. 149). The court grants Doc. 140, but denies Plaintiffs' motions as moot.

I. STANDARDS FOR JUDGMENT

Defendants move to dismiss Plaintiffs' amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, or, alternatively, move for summary judgment under Fed.R.Civ.P. 56. Both Plaintiffs and Defendants have asked the court to consider documents outside of the pleadings. When deciding a motion to dismiss, however, the court may consider evidence outside the pleadings only if the court converts the motion to dismiss into a motion for summary judgment. See Prager v. LaFaver, 180 F.3d 1185, 1188-89 (10th Cir.1999) (citing GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997)). The court has broad discretion in deciding whether to convert a motion to dismiss into a motion for summary judgment, and will do so here. See id. at 1189. The court takes judicial notice of the facts supported by documents on file in the District of Kansas.

A. 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 of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Lack of a genuine issue of material fact means that the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505.

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider the record in the light most favorable to the nonmoving party. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984).

B. Standards as Applied to Pro Se Plaintiffs

Because Plaintiffs are proceeding pro se, the court affords them more leniency. Asselin v. Shawnee Mission Med. Ctr., Inc., 894 F.Supp. 1479, 1484 (D.Kan.1995) (citation omitted). The court may not, however, assume the role of advocate for Plaintiffs simply because they are proceeding pro se. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

II. FACTUAL BACKGROUND

The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to Plaintiffs' case. Immaterial facts and facts not properly supported by the record are omitted.

Between August 18, 2001 and July 13, 2002, Plaintiff McCormick verbally protested and/or recorded police activity in Lawrence, Kansas on approximately fifty occasions. He alleges that at least twenty times, Lawrence police officers have retaliated against his verbal challenges and protests by threatening arrest. Plaintiff McCormick also claims that, in response to his protected speech, he has been physically attacked on three occasions and robbed and kidnapped on two of those three occasions.

A. July 13, 2002 Incident

On July 13, 2002, at approximately 11:45 p.m., Defendant Hofer initiated a traffic stop of a vehicle driven by Sonia Carbajal for an illegal lane change. Mrs. Carbajal was driving a pick-up truck, licensed in Oklahoma. Her husband was a passenger.

The parties disagree about the sequence of events following the traffic stop. Because the facts must be viewed in the light most favorable to Plaintiffs, many of the following facts are taken from Plaintiff McCormick's testimony at the preliminary injunction hearing held before this court.

Defendant Hofer testified in a state court hearing on Plaintiffs' criminal charges that as soon as he exited his vehicle, he heard Plaintiff McCormick shouting things like, "Hey f* * *er! Leave her the f* * * alone! Leave the out-of-towners alone! Way to welcome them to Lawrence!" Plaintiff McCormick denies uttering the "f-word" at any point prior to being "attacked" by the officers.¹ At that time, Plaintiffs were located in a McDonald's parking lot approximately 30-40 feet away from the stop, and Plaintiff McCormick was holding a video camera.

Defendant Hofer tried to take down Mrs. Carbajal's information, but she was not carrying a driver's license or any other identification at the time. Defendant Hofer testified in the state court hearing that he did not have a clear view of the passenger in the vehicle, and that he was distracted by Plaintiff McCormick's shouting. Plaintiffs deny that Defendant Hofer was distracted by the shouting and that Defendant Hofer was legitimately concerned for his safety, citing Defendant Hofer's testimony in the state court hearing that he "ignored them and approached the vehicle ... and continued with the car stop." Because Defendant Hofer successfully ignored them, Plaintiffs reason, he must not have been distracted by their shouting.

Defendant Shanks arrived as Defendant Hofer was talking to Mrs. Carbajal. Defendant Shanks recognized Plaintiff McCormick, and was concerned about his presence. Plaintiff McCormick denies that any concern was warranted based on his non-threatening behavior and his past history of protesting.

Upon Defendant Shanks's arrival, Plaintiff McCormick continued shouting, redirecting some of his comments toward Defendant Shanks. At that time, Defendant Shanks claims that Plaintiff McCormick was screaming things like "Mother F* * *ers," "F* * * heads," "F* * *ing pigs," "Why don't you run around the track, chubby?," "Hey chubby, what's your name?," "Hey fatty," "Hey fat a* *," and "Leave her the f* * * alone." Again, Plaintiff McCormick denies using the "f-word" until later.

Plaintiff McCormick's verbal tirade caused "extreme alarm" in the officers. While Defendant Hofer checked Mrs. Carbajal's information through dispatch, Defendant Shanks returned to his vehicle and trained two spotlights on Plaintiffs' position. Plaintiffs submit that the only purpose for the spotlight was to thwart their filming, as the area was well-lit and Defendant Shanks testified in the state court jury trial that he knew that he was blinding Plaintiff McCormick's video camera when he turned the spotlights on.

Plaintiffs then walked around a fence and approached the traffic stop, coming within ten to fifteen feet of the stopped vehicle. Defendant Shanks warned Plaintiffs that he would arrest them if they interfered with the traffic stop. Plaintiff McCormick asked, "Is that a threat?" Defendant Shanks has testified that he felt physically threatened by Plaintiffs, but Plaintiffs deny that any such feeling was justified. Plaintiff McCormick had never physically harmed anyone during his protests, Plaintiffs did not make an attempt to physically interfere with Defendants Shanks or Hofer, they were not making threats, and the "verbal banter" remained consistent.

Plaintiff McCormick claims that Defendant Shanks turned toward him and rhetorically asked, "Are you interfering with my investigation?" Defendant Shanks then said to himself, "I think you are," and told Plaintiff McCormick that he was under arrest. According to Plaintiff McCormick, Defendant Shanks then began rushing at him, and a struggle ensued. Plaintiff McCormick testified in the preliminary injunction hearing that Defendant Shanks tried to "tackle" him, but that he stood in a solid stance and refused to let...