Moore v. Board of County Com'Rs County Leavenworth

• Decision Date: 22 January 2007
• Docket Number: Civil Action No. 05-2556-KHV.
• Citation: 470 F.Supp.2d 1237
• Parties: Marlene MOORE, Individually and as Executrix of the Estate of Jared Michael Moore, et al., Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LEAVENWORTH, et al., Defendants.
• Court: U.S. District Court — District of Kansas

Page 1237

470 F.Supp.2d 1237

Marlene MOORE, Individually and as Executrix of the Estate of Jared Michael Moore, et al., Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LEAVENWORTH, et al., Defendants.

Civil Action No. 05-2556-KHV.

United States District Court, D. Kansas.

January 22, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Patrick John Doran, Kansas City, MO, for Plaintiffs.

Michael K. Seck, Fisher, Patterson, Sayler & Smith, LLP, Overland Park, KS, Teresa L. Watson, Fisher, Patterson, Sayler & Smith, Topeka, KS, Michael Colby Kirkham, Sanders Conkright & Warren LLP, Overland Park, KS, for Defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Marlene Moore, as executrix of the Estate of Jared Moore, brings suit under 42 U.S.C. §§ 1983 and 1988 to recover money damages for violations of his rights under the Fourth and Fourteenth Amendments, as well as injunctive and declaratory relief. Marlene Moore and Patrick Moore also bring suit under 42 U.S.C. §§ 1983 and 1988 seeking money damages for violations of their own rights under the First Amendment, as well as declaratory and injunctive relief. Plaintiffs also allege violations of the Kansas Constitution, the Kansas Open Records Act, K.S.A. § 45-215 et seq., and the Kansas Tort Claims Act, K.S.A. § 75-6101 et seq.

This matter is before the Court on Defendants Board Of County Commissioners Of The County Of Leavenworth, Kansas, Navinsky, Graeber, Oroke, Zoellner, And Nye's Motion For Summary Judgment (Doc. # 69), Defendant Robert L. Peterman's Motion For Summary Judgment (Doc. # 71) and Plaintiffs' Motion For Partial Summary Judgment, For. Declaratory Judgment And For Preliminary Injunction (Doc. # 74), all filed October 13, 2006, as well as plaintiffs' Motion To Strike Affidavit Of Robert Peterman On Training (Doc. # 88) filed November 27, 2006. For reasons stated below, the Court sustains defendants' motions for summary judgment and overrules plaintiffs' motion for summary judgment and motion to strike.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See 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); 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. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.

The moving party bears the initial burden of showing the 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); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). 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 Securities, 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, 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 her pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

The Court must view the record in a light most favorable to the parties opposing the motion for summary judgment. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted 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. "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 mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry 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. 2505.

Factual Background

The following material facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff.

Marlene and Patrick Moore are the parents and heirs of Jared Moore. Marlene Moore is the executrix of the estate of Jared Moore. Donald Navinsky, Clyde Graeber and Dean Oroke are elected county commissioners of Leavenworth County, Kansas (the "County"), and sit on the Board of County Commissioners of the County of Leavenworth (the "Board"). Until January 11, 2005, Herb Nye was the elected sheriff of Leavenworth County. David Zoellner is the current elected sheriff of Leavenworth County. Robert Peterman is a deputy with the Leavenworth County Sheriffs Department ("the Department"). John Does 1 and 2 are unidentified deputies with the Department.

Shortly before midnight on December 28, 2004, the Department dispatched Deputy Peterman to an automobile accident near the intersection of 158th Street and Donahoo Road in Leavenworth County. Deputy Peterman responded to the scene ,in his patrol car with emergency lights illuminated, but without activating the siren on his patrol car.¹

Jared Moore was a volunteer firefighter with the Fairmont Township Fire Department ("FTFD"). The Department dispatches the FTFD as a first responder. When dispatched as first responders, firefighters with the FTFD respond in personal vehicles, and those with gear immediately available respond directly to the scene, rather than first reporting to the fire station. It is common practice for more than one firefighter to respond to an emergency call.

On December 28, 2004, Jared Moore, driving his personal vehicle with hazard lights activated, also responded to the accident near 158th Street and Donahoo Road. Jared Moore's vehicle did not have emergency equipment, and was not equipped with a two-way radio. Deputy Peterman was aware that firefighters were responding to the accident scene. Deputy Peterman could locate first responders through visual observation, or by asking dispatchers for their locations and/or monitoring his scanner.² Deputy Peterman turned off his scanner while responding to the accident on December 28, 2004.³

As Jared Moore and Deputy Peterman traveled north on 155th Street, Deputy Peterman approached Jared Moore's vehicle from behind, traveling 90 to 94 miles per hour.⁴ As Deputy Peterman approached Jared Moore's vehicle, he moved into the southbound lane of 155th Street. At about the same time, Jared Moore began to make a left turn onto Donahoo toward the accident scene. As Jared Moore began his turn, Deputy Peterman steered back to the right, partially into the northbound lane of 155th Street, then swerved back across the center line into the southbound lane where his patrol car collided with the rear end of Jared Moore's vehicle at the intersection of 155th Street and Donahoo Road. Deputy Peterman should have turned left onto Donahoo Road toward the accident scene, but he did not.⁵ At the time of impact, Deputy Peterman's patrol car was traveling at approximately 84 to 87 miles per hour.⁶ Jared Moore was ejected from his vehicle, suffered severe injuries and died the following day.

Jared Moore's family erected a roadside memorial at the accident site immediately following his death. In September of 2005, the Moores discovered that the memorial was gone. In October of 2005, after they had replaced the memorial, they discovered that it had again been removed. The Moores do not know who removed the memorial. They replaced it again in December of 2005, and it has remained undisturbed since that time.

A jury acquitted Deputy Peterman of vehicular homicide in connection with the collision.⁷ Sheriffs deputies were present in the courtroom during trial. They were not friendly to Marlene Moore and gave her "dirty' looks."

At approximately 2:30 p.m. on September 19, 2005, an unidentified sheriff's deputy followed the Moore's daughter as she drove Marlene Moore's car home from an appointment. At approximately 10:05 p.m. on September 22, 2005, an unidentified sheriffs deputy rapidly approached the Moore's vehicle from behind, followed them closely and then, drove away. The Moores have not been followed again since September 22, 2005.⁸

On three or four occasions following Jared Moore's death, Marlene and Patrick Moore made statements to the media regarding the accident and the contents of the accident report prepared by the Kansas Highway Patrol. Patrick Moore admits that neither the removal of the memorial, the presence of deputies in the courtroom during Deputy Peterman's trial nor the two incidents of being followed have stopped him from speaking out about Jared Moore's death. Since Jared Moore's death, Patrick Moore has spoken about emergency response safety issues with the Kansas State Firefighters Association, the National Fallen Firefighters Foundation and a United States congressperson from Pennsylvania.⁹ After being tailed by officers and deputies, Marlene Moore has declined to speak about Jared Moore's death for fear of retaliation. Since the accident Marlene and Patrick Moore have written Dennis Moore, their congressperson, advocating changes in the law regarding emergency response.¹⁰

The Department trained Deputy Peterman when he transferred to the patrol division. This training included a "Field Training Program," which lasted for approximately six weeks. This training involved driving a patrol car under supervision,...