Swanson v. Fields

• Decision Date: 12 February 1993
• Docket Number: No. 91-4249-SAC.,91-4249-SAC.
• Citation: 814 F. Supp. 1007
• Parties: Kenneth and Nancy SWANSON, Plaintiffs, v. Sheriff Lynn FIELDS, Sheriff of Crawford County, Kansas as an individual and in his official capacity; and Officer Dennis Jameson, a patrol officer for the City of Pittsburgh, Kansas, as an individual and in his official capacity, Defendants.
• Court: U.S. District Court — District of Kansas

814 F. Supp. 1007

Kenneth and Nancy SWANSON, Plaintiffs, v. Sheriff Lynn FIELDS, Sheriff of Crawford County, Kansas as an individual and in his official capacity; and Officer Dennis Jameson, a patrol officer for the City of Pittsburgh, Kansas, as an individual and in his official capacity, Defendants.

No. 91-4249-SAC.

United States District Court, D. Kansas.

Decided February 12, 1993.

Corrected Nunc Pro Tunc February 17, 1993.

COPYRIGHT MATERIAL OMITTED

Lee R. Barnett, Wakarusa, KS, C. Richard Comfort, Comfort Law Office, Minneapolis, KS, for plaintiffs.

Donald Patterson, Fisher, Patterson, Sayler & Smith, Topeka, KS, A. Bradley Bodamer, Morrison & Hecker, Overland Park, KS, for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

The plaintiffs, Kenneth and Nancy Swanson, husband and wife, bring this civil rights action pursuant to 42 U.S.C. § 1983, arising out of their arrests on July 24, 1990. They allege the defendants acted wrongfully in arresting them, using force against them, charging them, and not returning property taken from their vehicle. Besides their federal civil rights action, the plaintiffs seek to recover under numerous state law claims. Both defendants have moved for summary judgment on all claims filed by the plaintiffs.

If no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law, the court shall grant a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). An issue of fact is "genuine" if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The issue also must be based on a viable legal theory in order to be "genuine." 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). An issue of fact is "material" if proof of it might affect the outcome of the lawsuit. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. In effect, the inquiry on a summary judgment motion 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." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512.

The movant's burden under Fed. R.Civ.P. 56 is to specify those portions of "`the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits if any,'" which demonstrate the absence of a genuine issue of fact. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d at 345 (quoting Fed.R.Civ.P. 56(c)). It may be sufficient for the movant to establish that the alleged factual issues are without legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987). Summary judgment will be granted when the movant is able to show it is entitled to judgment as a matter of law based upon the uncontroverted, operative facts.

The opposing party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts that show a genuine issue for trial remains and that are supported by the kinds of evidentiary materials listed in Rule 56(c). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. "Unsubstantiated allegations carry no probative weight in summary judgment proceedings." Phillips v. Calhoun, 956 F.2d 949, 951 (10th Cir.1992) (citations omitted). Because its evidence is deemed true and all reasonable inferences are drawn in its favor, the opposing party need come forth with only such evidence from which a fair-minded jury could return a verdict for it. Windon, 805 F.2d at 346.

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, 805 F.2d at 346.

For purposes of this motion, the court will accept the following facts as uncontroverted:

1. Around 6:45 p.m. on July 24, 1990, Kenneth and Nancy Swanson left their home in Pittsburg, Kansas, by car to visit Nancy's mother in Arma, Kansas. Kenneth was driving their white Chevrolet Suburban. After going several blocks and completing two turns, Kenneth observed a white Chevrolet Blazer following them. Kenneth immediately pulled over to the side of the road and moved his arms and hands to signal the white Blazer to pass him. While the Blazer slowly passed, the two drivers exchanged glares.

2. The Blazer was operated by the defendant Lynn Fields, Sheriff of Crawford County. He was not wearing his uniform, and the Blazer was not marked as a law enforcement vehicle. Fields passed the Suburban and pulled into a gravel parking lot a short distance away and turned his Blazer around so as to see approaching vehicles.

3. After the Blazer passed, Kenneth drove on and began to turn right when he saw the Blazer waiting in a parking lot farther down the street. Instead of completing the turn, Kenneth proceeded ahead in order to confront the driver of the Blazer. Kenneth drove up along side of the Blazer and asked: "Are you looking for trouble?"

4. The defendant Fields replied: "I'll give you plenty of trouble." Looking angry and upset, Fields climbed out of his Blazer and walked towards the Swanson's Suburban. Fields grabbed at the Suburban's doorpost, but Kenneth drove away and yelled at Fields "Go to hell." It is controverted whether Fields identified himself as the Sheriff at this time.

5. After leaving the parking lot, Kenneth went to the bypass around town and headed towards Arma. He then noticed that the Blazer was behind him again. The Swansons decided to leave the bypass and head towards the police station.

6. Fields followed the Swansons on the bypass and through the park at a safe distance and did not attempt to pull them over. Fields radioed the Pittsburg Police Department for backup.

7. As they neared the police station, the Swansons saw a Pittsburg police car approaching them from the right. Kenneth turned right at the corner and stopped immediately in the driving lane of the street. The police car driven by defendant Jameson pulled over to a stop on the opposite side of the road. Fields stopped his Blazer in a parking lot at the same corner just to the west of the Swanson's Suburban.

8. Kenneth exited the Suburban immediately and shouted to Officer Jameson that he wanted "that crazy son-of-a-bitch arrested." Officer Jameson directed Kenneth to move the Suburban to the side of the road. Kenneth did not follow these directions but ran directly to the rear of Fields' Blazer. Fields saw Kenneth come running towards him yelling, "You son-of-a-bitch."¹

9. Kenneth's reason for running to the Blazer was to get its license plate number. When he reached the rear of the Blazer, Kenneth noticed that Fields was standing beside it. As he approached Kenneth, Fields announced he was the Sheriff and displayed his badge. Fields instantly grabbed Kenneth by the neck with one hand and used his other hand to handcuff Kenneth. Because of an injury to his left wrist over a year before, Kenneth tried to wrest his left arm free from Fields during the handcuffing. Fields never struck, hit, or kicked Kenneth during the arrest. Kenneth, however, perceived Fields' grasp on his neck as an attempt to choke him. Sheriff Fields is approximately six foot three inches tall and weighs two hundred and forty pounds. Kenneth is approximately five foot nine inches tall and weighs one hundred and sixty pounds.

10. Seeing the encounter between Fields and her husband, Nancy ran over to them. Officer Jameson attempted to restrain her by grabbing both of her arms. She resisted Jameson's efforts and yelled at Fields: "Let my husband go you son-of-a-bitch." She broke free from Jameson's grasp two different times in an effort to assist her husband. Jameson twice pushed Nancy up against the Blazer with enough force that her glasses fell off but her head never struck the Blazer. At some point, Nancy's arm struck Jameson on the head which caused him to arrest and handcuff her. Jameson then placed Nancy in the patrol car. Officer Jameson never struck or kicked her.

11. Sheriff Fields did not hit, kick, strike, or touch Nancy Swanson before or during the arrest. Nor did Officer Jameson ever kick or strike Kenneth Swanson. Kenneth does complain that Officer Jameson walked him over to the patrol car after the arrest using an upward pressure on his arms.

12. The Swansons were transported to the Pittsburg Police Station. Nancy suffered some pain and bruising from the handcuffs. At the station she complained that the handcuffs were too tight, and the officers removed them on her request and promise to cooperate. Kenneth also complained about tight handcuffs, and officers replaced the handcuffs with more comfortable ones. The plaintiffs never sought medical attention for the bruises and swelling in their wrists or for any other alleged physical injury resulting from this encounter.

13. At the Pittsburg Police Station, Kenneth was asked to take sobriety tests, but he refused. His driving license was suspended for one year as a result.

14. The plaintiffs were transported to the Crawford County Jail in Girard, Kansas, where they remained for approximately six hours. Kenneth executed a booking form there and learned that he was charged with driving under the influence, reckless driving, resisting arrest and disorderly conduct. Officer Jameson charged Nancy with battery to a law enforcement officer. After making arrangements with a bail bondsman and executing the...