Sevier v. City of Lawrence

• Decision Date: 27 May 1994
• Docket Number: No. 92-4261-SAC.,92-4261-SAC.
• Citation: 853 F. Supp. 1360
• Parties: Willie SEVIER, Individually; as Parent and heir at law of Gregory Sevier, Deceased, and as administrator of the estate of Gregory Sevier, and Orene Sevier, Individually; as Parent and heir at law of Gregory Sevier, Deceased, Plaintiffs, v. CITY OF LAWRENCE, Ted J. Bordman, James H. Phillips, W. Ronald Olin and George T. Wheeler, Defendants.
• Court: U.S. District Court — District of Kansas

853 F. Supp. 1360

Willie SEVIER, Individually; as Parent and heir at law of Gregory Sevier, Deceased, and as administrator of the estate of Gregory Sevier, and Orene Sevier, Individually; as Parent and heir at law of Gregory Sevier, Deceased, Plaintiffs, v. CITY OF LAWRENCE, Ted J. Bordman, James H. Phillips, W. Ronald Olin and George T. Wheeler, Defendants.

No. 92-4261-SAC.

United States District Court, D. Kansas.

May 27, 1994.

Catherine A. Walter, Wright, Henson, Somers, Sebelius, Clark & Baker, Topeka, KS, Lance W. Burr, Lawrence, KS, for plaintiffs.

Gerald L. Cooley, Allen, Cooley & Allen, Lawrence, KS, for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

On November 18, 1992, the plaintiffs filed an eleven-page, five-count complaint. The plaintiffs, on behalf of themselves and their deceased son, seek, inter alia, compensatory and punitive damages from the defendants under 42 U.S.C. § 1983. The plaintiffs allege that the defendants' actions constituted a violation of both the plaintiffs' and the decedent's constitutional rights. All of the human defendants are sued individually and in their official capacities as police officers for the City of Lawrence.

To summarize, the complaint alleges that on April 21, 1991, the plaintiffs, concerned about their son, Gregory Sevier, placed an emergency call to the 911 service in Lawrence, Kansas. The 911 dispatcher was advised that Gregory Sevier had a knife and that the Sevier's wanted someone to check on him.

Officer Bordman was the first officer to arrive at the Sevier home. Without consultation with the Sevier family, Officer Bordman made contact with Gregory Sevier by shouting orders and acting in a confrontational manner. Officers Phillips and Wheeler subsequently arrived at the Sevier home. Although Gregory Sevier posed no significant threat of death or serious injury, Officers Bordman and Phillips fired their service revolvers at Gregory Sevier. Gregory Sevier was struck with six bullets and was killed as a result of this gunfire.

Count I alleges that the acts of the defendants deprived the decedent of his constitutional rights, privileges and immunities, and that the acts were carried out under color of the statutes, regulations, customs and usages of the City of Lawrence and the State of Kansas, pursuant to the official policy of the City of Lawrence. Specifically, Count I alleges that the defendants deprived the decedent of his Fourth Amendment right to be free of unreasonable searches and seizures and his Fourteenth Amendment right not to be deprived of life, liberty or property without due process and equal protection of the laws.¹

Count II alleges that the Lawrence Police Officers received inadequate training in responding to suicide-related emergency calls which amounts to a deliberate indifference to the constitutional rights of the decedent. Specifically, the conduct of the defendants deprived the decedent of his Fourth and Fourteenth Amendment rights.²

Count III alleges that the plaintiffs are Native American, as was the decedent, and that response to 911 emergency calls placed by Native Americans is treated differently than similarly situated white families in Lawrence. The plaintiffs allege that this disparate treatment is the result of a pattern, practice and policy of discrimination against Native Americans by the City of Lawrence.³

Count IV alleges that Officer Bordman's and Officer Phillips' use of excessive force caused Gregory Sevier's death.

Count V alleges that conduct of the officers was so extreme, egregious and outrageous so as to constitute a tort of outrage.

This case comes before the court upon the defendants' motion for summary judgment (Dk. 60). In the memorandum in support of that motion, the defendants seek summary judgment in regard to all of the plaintiffs' federal claims and request the court to decline to exercise jurisdiction over the plaintiffs' supplemental state law claims, or in the alternative, grant summary judgment to the defendants on those claims.

The plaintiffs have filed a response to the defendants' motion. In that response, the plaintiffs deny that the defendants are entitled to summary judgment.⁴ The defendants have filed a reply.

The court, having considered the briefs of counsel, the numerous exhibits attached to those briefs, and the applicable law, is now prepared to rule.

Standards for Summary Judgment

A court grants a motion for summary judgment if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The substantive law governing the suit dictates which facts are material or not. Id. at 248, 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "There are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).

The movant's burden under Rule 56 of the Federal Rules of Civil Procedure is to lay out the basis of its motion and to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). "A movant is not required to provide evidence negating an opponent's claim." Committee for First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir.1992) (citation omitted).

If the moving party meets its burden, then it becomes the nonmoving party's burden to show the existence of a genuine issue of material fact. Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir.1991); see Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) ("If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case."). When the nonmoving party will have the burden of proof at trial, "Rule 56(e) ... then requires the nonmoving party to go beyond the pleadings and by her own affidavits or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). "Unsubstantiated allegations carry no probative weight in summary judgment proceedings." Phillips v. Calhoun, 956 F.2d 949, 951 (10th Cir.1992) (citations omitted); see Martin, 3 F.3d at 1414 (non-moving party cannot rest on the mere allegations in the pleadings); see also Vega v. Kodak Caribbean, Ltd. 3 F.3d 476, 479 (1st Cir.1993) ("Optimistic conjecture, unbridled speculation, or hopeful surmise will not suffice."). The court views the evidence of record and draws inferences from it in the light most favorable to the nonmoving party. Burnette v. Dow Chemical Co., 849 F.2d at 1273.

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion is not the chance for a court to act as the jury and determine witness credibility, weigh the evidence, or decide upon competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).

Facts

Willie Sevier and Orene Sevier are the surviving parents and heirs-at-law of Gregory Sevier, deceased. Willie Sevier is the administrator of the estate of Gregory Sevier. Plaintiffs bring this action individually and Willie Sevier brings this action as administrator of his son's estate. The plaintiffs are Native Americans, as was Gregory Sevier.

The City of Lawrence, Kansas, is a municipal corporation duly organized and existing under the laws of the State of Kansas. Ted J. Bordman is a police officer employed by the City of Lawrence. Bordman has been employed in that capacity since January 1, 1989. James H. Phillips is a police officer employed by the City of Lawrence. Phillips has been employed in that capacity since July 11, 1977. George T. Wheeler is a police officer employed by the City of Lawrence. Wheeler has been employed as a police officer since 1978. At the times relevant to this action, Wheeler was a supervisory officer with the City of Lawrence's police force.

W. Ronald Olin is the Chief of Police for the City of Lawrence. Olin has been employed as a law enforcement officer since November 1, 1971. Olin has been employed in the capacity of Chief of Police since December 1, 1987.

The Events of April 20-21, 1993

Between the hours of 11:00 p.m. and 12:00 a.m. on April 20, 1991, Willie Sevier and Gregory Sevier went to shoot pool at the West Coast Saloon. En route, Gregory Sevier told his father that he was having problems with his girlfriend. While at the West Coast Saloon, Willie Sevier purchased one pitcher of beer and Gregory Sevier consumed at least one glass of beer.

After making several stops, Willie Sevier and Gregory Sevier returned home. Gregory Sevier went to his room and began playing his stereo at a high volume. He went downstairs and retrieved a six pack of beer. After...