Wesley v. Don Stein Buick, Inc., 97-2271-JWL.

• Citation: 42 F.Supp.2d 1192
• Decision Date: 10 March 1999
• Docket Number: No. 97-2271-JWL.,97-2271-JWL.
• Parties: Rhonda Sue WESLEY, Plaintiff, v. DON STEIN BUICK, INC.; Don Stein; Jerry Kaplan; Multiple Unnamed Sales Agents of Don Stein Buick-Isuzu, Inc.; T.A. Stovall; One Unnamed Desk Clerk of Overland Park, Kansas Police Department; and the City of Overland Park, Kansas, Defendants.
• Court: U.S. District Court — District of Kansas

42 F.Supp.2d 1192

Rhonda Sue WESLEY, Plaintiff, v. DON STEIN BUICK, INC.; Don Stein; Jerry Kaplan; Multiple Unnamed Sales Agents of Don Stein Buick-Isuzu, Inc.; T.A. Stovall; One Unnamed Desk Clerk of Overland Park, Kansas Police Department; and the City of Overland Park, Kansas, Defendants.

No. 97-2271-JWL.

United States District Court, D. Kansas.

March 10, 1999.

COPYRIGHT MATERIAL OMITTED

Larry D. Coleman, Larry Delano Coleman, P.C., Kansas City, MO, for Rhonda Sue Wesley, plaintiff.

Rhonda Sue Wesley, Kansas City, MO, pro se.

Lawrence L. Ferree, III, Kirk Thomas Ridgway, Ferree, Bunn & O'Grady, Chtd., Overland Park, KS, Peter John Vander-warker, Blackwell Sanders Peper Martin, LLP, Overland Park, KS, James D. Conkright, Sanders Conkright & Warren LLP, Kansas City, MO, for Don Stein Buick, Inc., Don Stein, Jerry Kaplan, Multiple Unnamed Sales Agents, of Don Stein Buick-Isuzu, Inc., defendants.

Lawrence L. Ferree, III, Kirk Thomas Ridgway, Ferree, Bunn & O'Grady, Chtd., Overland Park, KS, for American Isuzu Motors, Inc., defendant.

Robert J. Harrop, David C. Vogel, Lathrop & Gage L.C., Kansas City, MO, Yvonne M. Warlen, Shank, Laue & Hamilton, P.C., Kansas City, MO, for General Motors Corp.

Michael R. Santos, City of Overland Park, Legal Department, Overland Park, KS, Daniel B. Denk, Michael M. Shultz, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for T. A. Stovall, One Unnamed Desk Clerk, John M. Douglass, City of Overland Park, Kansas, defendants.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

Plaintiff filed suit against defendants arising out of an incident which occurred at the Don Stein Buick dealership in Overland Park, Kansas, and plaintiff's subsequent efforts to have the incident investigated, charges filed and individuals prosecuted by various authorities. In prior memorandums and orders, the court dismissed multiple claims and defendants. See Wesley v. Don Stein Buick, Inc., 996 F.Supp. 1312 (D.Kan.1998); Wesley v. Don Stein Buick, Inc., 996 F.Supp. 1299 (D.Kan.1998); Wesley v. Don Stein Buick, Inc., 985 F.Supp. 1288 (D.Kan. 1997).

Two groups of defendants remain parties in this action — the "Don Stein Defendants," including Don Stein Buick, Inc.; Don Stein; Jerry Kaplan; and Multiple Unnamed Sales Agents of Don Stein Buick-Isuzu, Inc.; and the "Overland Park Defendants," including the City of Overland Park, Officer T.A. Stovall and One Unnamed Desk Clerk. Plaintiff's remaining claims include claims against the Don Stein Defendants for violations of 42 U.S.C. §§ 1981, 1983, 1985, 1986, 13981 (the Violence Against Women Act) and common law assault¹ and claims against the Overland Park Defendants for violations of 42 U.S.C. § 1983.² This matter is presently before the court on the Don Stein Defendants' motion for summary judgment (doc. # 219) and the Overland Park Defendants' motion for summary judgment (doc. # 217). For the reasons set forth below, defendants' motions are granted and plaintiff's complaint is dismissed in its entirety.

I. Facts³

Plaintiff Rhonda Sue Wesley visited the Don Stein Buick, Inc. dealership on October 11, 1996 to obtain price information on various Buick automobiles. According to plaintiff, the sales agents at the dealership did not offer assistance to plaintiff; rather, she was forced to seek out assistance from an agent. At some point during her encounter with this agent, the agent began asking plaintiff questions she believed were "irrelevant," including plaintiff's name, address and other "personal" information. Plaintiff averred that after she refused to answer the agent's questions, the agent "became belligerent in tone and gestures." Plaintiff then returned to the showroom and complained to a member of management about the "rude treatment" she had received from the sales agent. The individual to whom plaintiff complained then directed another sales agent to assist plaintiff. This agent began showing plaintiff a variety of available Buicks. Soon thereafter, the unsuspecting agent began seeking "personal information" from plaintiff. Plaintiff advised the agent that the information requested was "not of his concern." Plaintiff then asked the agent to write down the prices of the automobiles he had shown to her. At this point, the agent returned to the showroom and left plaintiff in the lot. He did not return. Shortly thereafter, according to plaintiff's testimony, two other agents "suddenly burst" from the showroom and rushed toward plaintiff "in a threatening manner with arms flailing, writing instruments in hand," shouting and yelling. The agents demanded that plaintiff leave the premises.

Plaintiff found the nearest telephone and called 911. The Overland Park Police Department (OPPD) dispatched Officers T.A. Stovall and R. Staples to the dealership. In addition, Sergeant Kostelac of the OPPD went to the dealership when he heard dispatch send Officers Stovall and Staples to the scene. After Sergeant Kostelac and the Officers arrived at the dealership, plaintiff advised them that the Don Stein sales agents had been unwilling to assist her and had been rude to her. Plaintiff did not inform Sergeant Kostelac or the Officers that she had been subject to an assault. Sergeant Kostelac advised plaintiff that she could write a statement about her experience at the dealership and that the statement would be attached to a brief information sheet on the call. At that point, Officer Staples and Sergeant Kostelac went into the dealership. Officer Stovall remained outside with plaintiff while plaintiff wrote her statement. Officer Stovall told plaintiff she could obtain a copy of her written statement at the OPPD on October 14, 1996.

On October 14, 1996, plaintiff went to the Records Unit of the OPPD to obtain a copy of the police report and/or the written statement she had given to Officer Stovall. The desk clerk refused to give plaintiff a copy of her statement. Plaintiff left with the desk clerk a typewritten statement (referred to by plaintiff as an addendum to her handwritten statement from October 11, 1996) addressed to Officer Stovall. In the addendum, plaintiff set forth additional information concerning her visit to the dealership, including allegations that certain sales agents had assaulted her. One week later, plaintiff called the OPPD and left a message for Officer Stovall to return her call. Officer Stovall did not respond to plaintiff's addendum of October 14, 1996 and did not return plaintiff's telephone call.

On December 17, 1996, plaintiff sent a letter to Chief of Police John M. Douglass in which she complained that she had not received a copy of her statement and set forth her belief that the incident at the dealership constituted a criminal assault. In response, Chief Douglass advised plaintiff that she should have received a copy of her statement and apologized to plaintiff for the error and any inconvenience. He enclosed with his written response a copy of plaintiff's statement and further advised her to contact the prosecutor's office if she had any questions concerning the pursuit of criminal charges against the dealership or its agents.

In April 1997, plaintiff sent another letter to Chief Douglass. In this letter, plaintiff complained that the OPPD and Officer Stovall failed to act upon her allegations that she had been the victim of a criminal assault. Captain Stephen E. Ford of OPPD's Administrative Services Division responded to plaintiff's letter. In his letter, Captain Ford explained to plaintiff that her case had been reviewed in January 1997 by four members of the prosecutor's office and a patrol division supervisor, who had determined that there was insufficient evidence to indicate that a criminal offense had occurred. The OPPD did not take any further action concerning plaintiff's problems with the dealership or its sales agents.

II. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of...