Rice v. Barnes
| Decision Date | 15 January 1997 |
| Docket Number | No. 95-0756-CV-W-5.,95-0756-CV-W-5. |
| Citation | 966 F.Supp. 877 |
| Parties | Samuel L. RICE, Plaintiff, v. John I. BARNES, et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Samuel L. Rice, Kansas City, MO, pro se.
Jon K. Lowe, Kansas City, MO, Sulaimon Adebayo Hassan, Kansas City, KS, for Samuel L. Rice.
Galen P. Beaufort, Kathleen A. Hauser, City Attorney's Office, Kansas City, MO, for City of Kansas City, MO, Richard Berkley, Emmanuel Cleaver.
Dale H. Close, Lisa Sander Morris, Kansas City Police Dept., Legal Advisor's Office, Kansas City, MO, for Steven Bishop, Sgt. Molloy, Cord Laws.
ORDER GRANTING SUMMARY JUDGMENT
Pending before the Court is Defendants John Barnes' ("Officer Barnes"), Cord Laws' ("Officer Laws"), George McCall's ("Officer McCall") and Rick Ludwig's ("Officer Ludwig") Motion for Summary Judgment, together with Suggestions in Support, filed on June 13, 1996. Plaintiff Samuel L. Rice ("Mr. Rice") filed Suggestions in Opposition on September 4, 1996, to which Defendants filed Reply Suggestions on September 10, 1996.1 The primary issue presented by Defendants' Summary Judgment Motion is whether the individual Defendants are entitled to qualified immunity with respect to Plaintiff's claims.
After due consideration of the above, and for the reasons set forth below, Defendants' Motion is granted.
A moving party is entitled to summary judgment "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). A defendant who moves for summary judgment bears the burden of showing that there is no genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). When considering a motion for summary judgment, a court must scrutinize the evidence in the light most favorable to the nonmoving party and the nonmoving party "must be given the benefit of all reasonable inferences." Mirax Chem. Prod. Corp. v. First Interstate Commercial Corp., 950 F.2d 566, 569 (8th Cir.1991) (citation omitted).
To establish a genuine issue of fact sufficient to warrant trial, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing there is a genuine issue for trial. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).
With these principles in mind, the Court turns to an examination of the facts.
Pursuant to Local Rule 13(G), Defendants' Suggestions in Support begin with separately numbered paragraphs of concise statements of uncontroverted facts. Each fact is supported by reference to a specific part of the record where the fact is established. All facts set forth in Defendants' statement of uncontroverted facts are deemed admitted for the purposes of summary judgment unless specifically controverted by Plaintiff. Local Rule 13(G)(1). Accordingly, the facts set forth in Defendants' Suggestions in Support which are uncontroverted, together with those uncontroverted facts set forth in Plaintiff's Suggestions in Opposition, form the basis of the Court's understanding of the factual background of this case.
On August 23, 1990, Defendants, and others, forcibly entered the residence at 3410 Brooklyn, Kansas City, Missouri, pursuant to a search warrant signed by the Honorable John R. O'Malley, Circuit Judge of Jackson County, Missouri. [Pl.'s Ex. 7.] The search warrant authorized the Officers to search for and seize marijuana, U.S. currency in close proximity to narcotics or pre-recorded advanced Street Narcotics Unit funds, papers and documents relating to narcotic trafficking, firearms and narcotics paraphernalia. The search warrant was issued based upon a previous undercover drug buy at the residence.
The documents before the Court do not indicate what affidavit(s) or other evidence was submitted to Judge O'Malley in support of the application for the search warrant. The record does contain information relating to a previous drug sale at the residence on August 14, 1990, the day before the application for the search warrant was submitted. The Investigative Report of Officer Lewis states that on August 14, 1990, at 11:18 p.m., pursuant to a hotline report of narcotics trafficking, Officer Lewis proceeded to 3410 Brooklyn, Kansas City, Missouri. [Pl.'s Ex. 6.]2 At the residence, in exchange for twenty dollars ($20.00), an unknown black male gave Officer Lewis two bags of a green leafy substance. A field test revealed that the substance in the bags "reacted positive to the presence of THC, the active ingredient in marijuana." [Pl.'s Ex. 6.] The Investigative Report identifies the seller of the substance as an "UNKNOWN B/M, 6'2", 245 lbs., 25-30 years of age, medium complexion, afro hair style." [Pl.'s Ex. 6.]
In executing the search warrant, the parties dispute whether the Officers announced that they were the police and that they had a search warrant prior to entering the residence. Plaintiff alleges that he was in the bathtub, which is located in the back of the house, with the radio playing, when he heard knocking and/or banging on the front door. [Def.s' Ex. C at pp. 36-38.] According to the Investigative Report signed by Officer Ludwig, the Officers yelled "Police Officers" as they used a battering ram to gain access into the residence. [Pl.'s Ex. 7 — Pl.'s Opp. to Officer Lewis' Motion for Summary Judgment.] Similarly, Officer Ludwig's Affidavit provides that the Officers announced that they were the police and that they had a search warrant prior to entering the residence. [Def.s' Ex. A at ¶ 4.] Plaintiff alleges after he heard the banging, he grabbed his rifle to protect himself "from the invaders and to scare them away." [Pl.'s Ex. 9 at ¶ 6.]
Officer Barnes was the first Officer to enter the residence. Upon his entry, Officer Barnes alleges he saw the Plaintiff inside the residence pointing a rifle at him and another Officer. The parties dispute whether or not the Plaintiff fired the rifle at the Officers. Officer Barnes alleges that Plaintiff fired a single shot, but did not hit anyone. Plaintiff denies he fired the rifle. It is undisputed that Officer Barnes fired three (3) shots at the Plaintiff and struck him one (1) time in the face, near his cheek. Additionally, Officer Colley fired one (1) time at Plaintiff but did not hit him.3 Plaintiff was the only person in the residence when the Officers entered the premises.
At the time of the shooting, Officers Laws, McCall and Ludwig were outside the residence and not one of them fired their weapons while they were at the residence.
Following the incident on August 23, 1990, Plaintiff was charged with a Class C Felony of Selling Marijuana on August 14, 19904, and a Class D Felony of Exhibiting a Weapon in a Rude, Angry and Threatening Manner on August 23, 1990. On March 11, 1991, pursuant to a plea agreement, Plaintiff pleaded guilty to the charges of Sale of a Controlled Substance and Unlawful Use of a Weapon. At the conclusion of Plaintiff's testimony, the Honorable Jon R. Gray made the following findings:
The Court finds in each case that the Defendant [Mr. Rice] understands the charges against him and the consequences of the plea. He's been advised of his rights and understands them and voluntarily, freely and intelligently waives those rights. He's been able to understand and assist his attorney. He's been ably and competently assisted by counsel. There's no mental disease or defect of defense.... Accordingly, the Court finds beyond a reasonable doubt the defendant [Mr. Rice] is guilty of sale of controlled substance, a class C felony and unlawful use of a weapon, a class D felony.
[Def.s' Ex. D — Tr. at pp. 19-20.]5
The Defendants in this case are the Officers who executed the search warrant of Plaintiff's residence on August 23, 1990, which include Officers Barnes, Colley, Laws, McCall and Ludwig. Officer Lewis, the officer involved in the alleged drug sale on August 14, 1990, and whose affidavit, according to Plaintiff, served as the basis for the search warrant for Plaintiff's residence, is also a Defendant. Plaintiff's Amended Complaint is in two counts. Count I alleges a claim under 42 U.S.C. § 1983 for unreasonable search and seizure and unreasonable deprivation of freedom against all of the Defendants. Count II alleges a claim under 42 U.S.C. § 1983 for excessive force against all of the Officers, except Officer Lewis. The Amended Complaint does not specify whether the lawsuit is brought against the Officers in their individual or their official capacities. The Court will treat the action as one against the Officers in their individual capacities.6
Title 42 U.S.C. § 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must establish (1) that the defendant(s) deprived him/her of a right secured by the Constitution or laws of the United States; and (2) that such deprivation...
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