Swinehart v. City of Ottawa

• Decision Date: 15 August 1997
• Docket Number: No. 77112,77112
• Citation: 943 P.2d 942,24 Kan.App.2d 272
• Parties: Shirley C. SWINEHART, Appellant, v. The CITY OF OTTAWA, Kansas, a Municipal Corporation; Mark D'Augereau; and Tim Ahrens, Appellees.
• Court: Kansas Court of Appeals

Page 942

943 P.2d 942

24 Kan.App.2d 272

Shirley C. SWINEHART, Appellant, v. The CITY OF OTTAWA, Kansas, a Municipal Corporation; Mark

D'Augereau; and Tim Ahrens, Appellees.

No. 77112.

Court of Appeals of Kansas.

Aug. 15, 1997.

Syllabus by the Court

1. 42 U.S.C. § 1983 (1994) is not itself a source of substantive rights, but rather a method for vindicating federal rights elsewhere conferred.

2. Because a statute of limitations was not provided when the 42 U.S.C. § 1983 (1988) cause of action was codified, the state statute of limitations that most closely fits the facts of the claim is applied.

3. A claim of excessive use of force by officers is governed by K.S.A. 60-513(a)(4), which provides that an action for injury to the rights of another, not arising on contract and not otherwise enumerated, must be brought within 2 years.

4. The use of excessive force in an arrest implicates the right of a person under the Fourth Amendment of the United States Constitution to be secure against unreasonable seizure.

5. 42 U.S.C. § 1983 (1994) claims of excessive use of force by police officers during an arrest are not barred by state tort remedies.

Wendell J. Barker, Ottawa, for appellant.

Michael K. Seck, of Fisher, Patterson, Sayler & Smith, L.L.P., Overland Park, for appellees.

Before GREEN, P.J., MARQUARDT, J., and C. ROBERT BELL, District Judge, Assigned.

MARQUARDT, Judge:

Shirley C. Swinehart appeals from the district court's order granting summary judgment to the appellees on all of her claims.

In July 1993, Michael Ecord and Swinehart were living together in Ecord's house. Prior to July 17, 1993, Ecord had told Swinehart to move out at least two or three times. On July 17, after Swinehart and Ecord had a disagreement, Ecord again told Swinehart to leave, but she ignored him. Ecord told Swinehart that he was going to call the police. Swinehart replied that she was going to sleep and that she would talk to Ecord in the morning. Ecord proceeded to call the police. Officer Tim Ahrens and Sergeant Mark d'Augereau arrived at Ecord's house at approximately 4 a.m. Ecord told the officers that he wanted Swinehart removed from his residence.

Ecord told Sergeant d'Augereau that Swinehart had been staying with him for a short time and that he had tried for several days to get her to leave without success. Sergeant d'Augereau testified that in his opinion, if Swinehart was residing at the house, then she had a right to be there and that it would take a court order to remove her. Although the record indicates that Ecord and Swinehart had lived together for 3-4 years, Ecord told Sergeant d'Augereau that Swinehart did not reside at his house.

Swinehart testified that she was awakened by officers shining a flashlight in her face. Sergeant d'Augereau told Swinehart that Ecord wanted her to leave. Sergeant d'Augereau asked Swinehart to leave because he thought it would facilitate a peaceful resolution. However, Swinehart became belligerent and refused to leave.

The officers told Swinehart several times to leave, and she responded with vulgarities. Sergeant d'Augereau testified that Swinehart laid down on a couch and said that she was not going anywhere. When Sergeant d'Augereau told Swinehart that she was under arrest for disorderly conduct and that she needed to get off the couch, she rolled over into a passive resistance position. Officer Ahrens then grabbed Swinehart's shoulders and "slid" her off the couch. Sergeant d'Augereau testified that "[Swinehart] kind of just slid off the couch before I could get to her legs. Once she was on the floor, Officer Ahrens and I rolled her over, and I did put the handcuffs on her." Sergeant d'Augereau also testified that Swinehart locked her arms together before leaving the couch.

Swinehart's description of the events differed from that of the officers. Swinehart testified that after she swore at the officers, "[T]hey jerked me off the daybed [and] slammed me face down on the floor." Swinehart testified that an officer grabbed her arms and twisted them tightly behind her back so that she was not able to catch herself from falling off the couch. Swinehart told the officers that they were hurting her. Swinehart testified that she did not lock her arms together to prevent the officers from handcuffing her.

Ecord testified that the officers' treatment of Swinehart "was a very violent act" and a "pretty vicious bodily thing," with Swinehart being thrown face down on the floor. When Ecord saw how the officers were treating Swinehart, he told them not to arrest her and that she could stay. Sergeant d'Augereau told Ecord that Swinehart was under arrest for disorderly conduct.

Swinehart complained that she suffered physical injuries to her right shoulder and arm during the arrest. As a result, Swinehart needed physical therapy and eventually underwent surgery to repair the ligaments in her shoulder.

On July 17, 1995, Swinehart filed suit alleging that she had been unlawfully arrested and interrogated, that she had been assaulted and battered, and that the "illegal actions of the Defendants, including their excessive and unnecessary use of force," had caused her injuries. Swinehart alleged causes of action against Sergeant d'Augereau, Officer Ahrens, and the City of Ottawa (defendants) under 42 U.S.C. § 1983 (1994) and the United States and Kansas Constitutions. Swinehart also alleged a cause of action against the City of Ottawa for a pattern and practice of allowing its police officers to use excessive and unnecessary force in making arrests.

The district court granted summary judgment to the defendants on all counts and assessed the costs of the action against Swinehart. Swinehart appeals the district court order on the following issue: "The trial court erred in ruling that the plaintiff did not state a cause of action under [42 U.S.C. § 1983]."

The district court's order did not expressly mention Swinehart's § 1983 claim; however, it did state: "Following the cases cited on page 12 of the defendants' motion, this court finds an adequate remedy existed under state law which is now barred by the statute of limitation[s]." The cases cited are as follows: Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989); Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 1914, 68 L.Ed.2d 420 (1981), overruled in part Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986); Alvarado v. City of Dodge City, 238 Kan. 48, 53-54, 708 P.2d 174 (1985); King v. Pimentel, 20 Kan.App.2d 579, 593-94, 890 P.2d 1217 (1995); Massey v. Shepack, 12 Kan.App.2d 770, 775, 757 P.2d 329 (1988). The essence of defendants' argument was that "plaintiff's Second Cause of Action and Fourth Cause of Action are barred by the existence of an adequate state law remedy; that being an action for malicious prosecution, assault and battery."

The question of whether Swinehart's § 1983 claims were barred by an adequate state remedy is a question of law subject to unlimited review by this court and one that has not been addressed by Kansas appellate courts. See Security Benefit Life Ins. Corp. v. Fleming Companies, Inc., 21 Kan.App.2d 833, 836, 908 P.2d 1315 (1995), rev. denied 259 Kan. ---- (1996).

42 U.S.C. § 1983 provides, in part:

"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 or other person within the jurisdiction thereof 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."

42 U.S.C. § 1983 is not itself a source of substantive rights, but rather a method for vindicating federal rights elsewhere conferred. Graham, 490 U.S. at 393-94, 109 S.Ct. at 1870-71; Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 811, 127 L.Ed.2d 114, reh. denied 510 U.S. 1215, 114 S.Ct. 1340, 127 L.Ed.2d 688 (1994).

"When Congress created the cause of action codified in 42 U.S.C. § 1983 (1988), it did not provide a statute of limitations. Miller v. City of Overland Park, 231 Kan. 557, 559, 646 P.2d 1114 (1982)." Lindenman v. Umscheid, 255 Kan. 610, 625, 875 P.2d 964 (1994). Since § 1983 does not provide a statute of limitations, the state statute of limitations that most closely fits the facts of the claim is applied. 255 Kan. at 625, 875 P.2d 964.

Defendants correctly stated that Swinehart's assault and battery claim was barred by the 1-year statute of limitations provided in K.S.A. 60-514(b) on actions involving assault, battery, malicious prosecution, or false imprisonment. Swinehart filed her cause of action 2 years after the July 17 incident, and she does not appeal the district court's ruling on this issue.

Although one of Swinehart's causes of action was for assault and battery, she also raised constitutional issues, alleging that the police officers used excessive force during her arrest. See Putman v. Gerloff, 639 F.2d 415, 420 (8th Cir.1981) (noting that the constitutional excessive force inquiry is very different from a battery analysis). A claim of excessive use of force by officers is governed by the 2-year statute of limitations in K.S.A. 60-513(a)(4), which provides that an action for injury to the rights of another, not arising on contract and not otherwise enumerated, must be brought within 2 years. Oyler v. Finney, 870 F.Supp. 1018, 1023 (D.Kan.1994), aff'd 52 F.3d 338 (10th Cir.1995); Cowdrey v. City of Eastborough, Kan., 730 F.2d 1376, 1378 (10th Cir.1984).

In Parratt, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420, the plaintiff, an inmate, ordered hobby materials that were lost by prison employees. The plaintiff filed a § 1983 action against prison officials. The Parratt Court held that when a state provides an adequate...