Redmond v. City of Overland Park
| Decision Date | 21 July 1987 |
| Docket Number | Civ. A. No. 86-2217. |
| Citation | 672 F. Supp. 473 |
| Parties | Sandra Faye REDMOND, Plaintiff, v. CITY OF OVERLAND PARK, Overland Park Police Department, Myron E. Scafe, John Round, John Douglass, Jerry R. Wolfskill, Dr. Daniel Claiborn, Dr. Norman Heisler, and Dr. Sandra Radom, Defendants. |
| Court | U.S. District Court — District of Kansas |
COPYRIGHT MATERIAL OMITTED
T. Clarence Harper, Washington, D.C., for plaintiff.
Stephen A. Murphy, Michael McCormic, Gage & Tucker, Overland Park, Kan., and John J. Yates, Rosalee A. Miller, Gage & Tucker, Kansas City, Mo., Patrick D. Gaston, Bennett, Lystle, Wetzler, Winn & Martin, Prairie Village, Kan., M. Warren McCamish, Timothy P. McCarthy, Williamson & Cubbison, Kansas City, Kan., James D. Conkright, Blackwell Sanders Matheny Weary & Lombardi, Overland Park, Kan., Barry W. McCormick, Bruce Keplinger, Thomas L. Griswold, Payne & Jones, Shawnee Mission, Kan., Robert Watson, City Atty., Legal Dept. of Overland Park, Kan., Rex Henoch, Turner and Boisseau, Michael G. Norris, Niewald, Waldeck, Norris & Brown, Overland Park, Kan., for defendants.
This action was brought by the plaintiff against the City of Overland Park hereinafter "the City", the Overland Park Police Department hereinafter "the Department" and various individuals; the case arises from the termination of plaintiff's employment as a police officer with the Department. Plaintiff's first amended complaint contained four counts: (1) invasion of privacy; (2) denial of due process; (3) conspiracy to violate the plaintiff's constitutional rights; and (4) libel and slander. The matter now comes before the court on various motions of the parties.
On February 17, 1987, the magistrate held the final pre-trial conference in this case. The final pre-trial order, as approved by this court, gave plaintiff until February 24, 1987, to file a motion to amend Count II of her complaint to delete allegations of denial of due process and to add a specific allegation against defendant Wolfskill. However, plaintiff's motion for leave to amend was not filed until March 25, 1987, almost thirty days late. Plaintiff's proposed second amended complaint also contains numerous amendments not provided for in the pre-trial order.
Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend pleadings "shall be freely given when justice so requires." The United States Supreme Court has declared that "this mandate is to be heeded." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Among the factors to be considered are "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ..., futility of the amendment, etc." Id. The decision to grant or deny leave to amend is within the sound discretion of the court. LeaseAmerica Corp. v. Eckel, 710 F.2d 1470, 1473 (10th Cir.1983).
In her proposed amended complaint, Count II is changed from a due process claim to a claim of conspiracy to discriminate and racial discrimination. This change conforms the pleadings to the claims set forth in the final pre-trial order. The factual allegations in Count II are basically unchanged. However, the proposed complaint adds an allegation that defendant Wolfskill stated that plaintiff did not graduate from the Police Training Academy even though Wolfskill signed her certificate of graduation. Plaintiff has also attempted to add the Law Enforcement Training Center (LETC) as a defendant; plaintiff alleges that the LETC was defendant Wolfskill's employer.
Plaintiff's counsel have been less than diligent in filing motions and responses in this case, as evidenced by the late filing of plaintiff's motion for leave to amend and plaintiff's failure to file timely responses to the multiple motions for summary judgment. Therefore, the court finds that only part of the plaintiff's proposed amended complaint should be allowed. Specifically, the court will allow plaintiff to amend Count II of her complaint to the extent of the claims set forth in the pre-trial order. Thus, the allegations of racial discrimination and conspiracy may be substituted for the due process claim. The additional factual allegations against Wolfskill may also be included.
However, plaintiff has made numerous other changes in her proposed amended complaint. She seeks to add the LETC as a defendant and has also changed various allegations throughout her complaint. The court finds that these amendments should not be allowed. As to plaintiff's request to add the LETC as a defendant, there is no evidence that the LETC was Wolfskill's employer as alleged. In fact, Wolfskill stated in his deposition that he worked for Johnson County Community College as director of the regional police academy. In light of Wolfskill's deposition testimony, the court sees no reason to allow plaintiff's amendment absent some showing from the record that the addition of the LETC would not be futile.
The remaining proposed amendments must also be denied. Plaintiff has failed to establish that allowing these amendments is in the interest of justice. In fact, these amendments are not even mentioned in the memorandum in support of plaintiff's motion for leave to amend. Finally, plaintiff has provided no explanation of the delay in seeking these amendments.
For these reasons, plaintiff's motion for leave will be granted only in part. Count II of plaintiff's complaint may be amended as proposed; all other amendments will be denied. Since plaintiff's amended claim is already included in the final pre-trial order, plaintiff will not need to file an amended complaint.
All defendants have filed motions for summary judgment; some of the defendants also have requested that the court impose sanctions against the plaintiff pursuant to Rule 11 of the Federal Rules of Civil Procedure. Plaintiff has failed to file a timely response to any of these motions.1 Therefore, the uncontroverted facts recited by the defendants are deemed admitted pursuant to Rule 15(c) of the Local Rules.
The uncontroverted facts, as gleaned from the pleadings,2 affidavits, and depositions are as follows. Plaintiff was a probationary police officer with the City of Overland Park Police Department from December of 1984 until May 10, 1985. Plaintiff submitted an application for employment with the Department in 1984 while visiting Kansas. Plaintiff's application was favorably considered because of her apparent credentials and previous work experience with the United States Marshal's Office. In addition, plaintiff's race and sex were considered positive factors in the hiring process because of the City's affirmative action responsibilities. The Department performed a background investigation of the plaintiff, as it does with all new police officers. In order to conduct this investigation, the defendant John Douglass had to travel to Washington, D.C., and Virginia, where plaintiff had lived and was employed.
After completion of the background investigation and other hiring procedures, the plaintiff was offered employment with the Department on or about November 30, 1984. Plaintiff was hired at a level of compensation which was five percent higher than that of other entry-level police officers because of the nature of her prior work experience. The Department paid at least part of the plaintiff's moving expenses from Washington, D.C., to Kansas. On December 4, 1984, plaintiff signed a statement indicating that she understood that her one-year probationary status would begin upon her graduation from the Recruit Academy.
The plaintiff was enrolled in the Police Training Program at Johnson County Community College from January 1985 through mid-April 1985. While a recruit in the police training program, the plaintiff heard the term "felony nigger rule." The record indicates that the plaintiff discussed this matter with Lieutenant Douglass in early January. The plaintiff told Douglass that her understanding of the "felony nigger rule" meant that any black person seen in Overland Park after midnight was to be stopped and checked. Defendant Douglass asked the plaintiff for the names of the persons giving her this information. Douglass informed the plaintiff that the term was coined by a former sergeant in reaction to a series of "smash and grab" burglaries that occurred in the late 1970's and early 1980's, for which a number of black youths were ultimately convicted. The plaintiff was also informed that at least one employee of the police department had been reprimanded both orally and in writing for using the term "felony nigger rule." The plaintiff refused to reveal the names of the persons who used the phrase in her presence. Plaintiff stated in her deposition that she was satisfied with the prompt action taken by Lieutenant Douglass on her report regarding use of the term "felony nigger rule." Plaintiff also admitted that Chief Scafe told her that the so-called "felony nigger rule" was not a policy or practice of the City or the Department.
Plaintiff received a certificate of graduation from the Police Training Program at Johnson County Community College, dated April 11, 1985, attesting that she had fulfilled the requirements set forth in Kansas House Bill 1137, § 8. The certificate of graduation was signed by defendant Jerry Wolfskill, the director of the Police Training Program. However, plaintiff did not satisfactorily complete her situational training, which was required for state certification, while enrolled in the Police Training Program. Plaintiff admitted that she had not completed her situational training and that she had been informed by defendant Wolfskill that she had not completed that training.
On May 1, 1985, defendant Wolfskill wrote a letter to...
To continue reading
Request your trial
-
Thompson v. City of Arlington, Tex.
...her duties substantially outweigh any privacy interest the plaintiff had in the information in question.... Redmond v. City of Overland Park, 672 F.Supp. 473, 484 (D.Kan.1987). In this case, the relationship between the parties, plaintiff's status as a police officer, and the circumstances ......
-
Sorlucco v. New York City Police Dept.
...In the face of such evidence, plaintiff's charge of conspiracy is not sufficient to survive summary judgment. Redmond v. City of Overland Park, 672 F.Supp. 473, 487 (D.Kan.1987) (summary judgment granted dismissing conspiracy claim where only evidence of conspiracy was communication between......
-
Flood v. County of Suffolk
...however, in light of the fact that she signed a release authorizing the disclosure of all information from the SCPD to the NYPD. Redmond, 672 F.Supp. at 483 (no constitutional right to privacy regarding records for which plaintiff signed a release). Accordingly, defendants' motion for summa......
-
Richard O'Brien Companies v. Challenge-Cook Bros.
... ... , 1986 they filed suit against defendant in the District Court for the City and County of Denver. First plaintiff sought to recover damages for ... ...