The opinion of the court was delivered by: Richard D. Rogers United States District Judge
This is a pro se action pursuant to 42 U.S.C. § 1983 alleging that defendants, three police officers, violated plaintiff's constitutional right against unreasonable seizure by employing excessive force during an arrest for disorderly conduct. This case is before the court upon defendants' motion for summary judgment. Doc. No. 52. Plaintiff has also filed motions for discovery. Doc. Nos. 63 and 64. As explained below, the court finds that plaintiff cannot prove that defendants violated clearly established constitutional rights and, therefore, the motion for summary judgment must be sustained. In addition, although plaintiff has not responded to defendants' argument that plaintiff has failed to properly serve defendants with legal process, the court shall not decide that argument. Finally, plaintiff's motions for discovery shall be denied as immaterial and untimely.
I. Standards for pro se pleadings "A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Tenth Circuit has "repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)(quotation omitted). In this regard, the court notes that the Local Rules of this court for motions for summary judgment require that:
(1) A memorandum in opposition to a motion for summary judgment must begin with a section containing a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute must be numbered by paragraph, refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, state the number of movant's fact that is disputed.
(2) If the party opposing summary judgment relies on any facts not contained in movant's memorandum, that party must set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by subsection
(a), above. All material facts set forth in this statement of the non-moving party will be deemed admitted for the purpose of summary judgment unless specifically controverted by the reply of the moving party. . . . .
All facts on which a motion or opposition is based must be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of
(d) Presentation of Factual Material pleadings, depositions, answers to interrogatories, and responses to requests for admissions. Affidavits or declarations must be made on personal knowledge and by a person competent to testify to the facts stated that are admissible in evidence. Where facts referred to in an affidavit or declaration are contained in another document, such as a deposition, interrogatory answer, or admission, a copy of the relevant excerpt from the document must be attached.
Local Rule 56.1(b). Plaintiff has not submitted an opposing memorandum or presented factual material in compliance with this Local Rule. Nevertheless, the court has examined and analyzed the pleadings and materials plaintiff has submitted and attempted to give them a fair construction.
II. Summary judgment standards Summary judgment is warranted if the materials on record show that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.CIV.P. 56(a). The court views "all of the facts in the light most favorable to the non-movant and reasonable inferences from the record must be drawn in favor of the non-moving party." Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir. 2007). From this viewpoint, the court attempts to determine whether a reasonable jury could return a verdict in favor of the non-moving party. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). "While we view the record in the light most favorable to the non-moving party, that party must still identify sufficient evidence requiring submission to the jury to survive summary judgment." Piercy, 480 F.3d at 1197. In other words, the court may consider evidence produced by the moving party as well as the absence of admissible evidence in favor of an essential element of the non-moving party's claim. Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).
III. Uncontroverted facts The following factual recitation is taken mostly from a list of facts contained in defendants' motion. Plaintiff has either not responded in opposition to these facts or has failed to oppose the facts with citation to any competent authority to support his opposition.
Each defendant is a police officer for the City of Council Grove, Kansas. On May 8, 2010, defendants responded to a non-injury accident at 123 North 10th Street in or near Council Grove. The accident involved a person who backed her vehicle into another vehicle parked illegally at that location. The officers found that three vehicles were parked facing the wrong direction and requested that the owners of the vehicles move their vehicles to be legally parked. Plaintiff was one of the vehicle owners. While defendants were working the accident and asking for the vehicles to be moved, plaintiff several times yelled and flailed his arms in the vicinity of defendants. Plaintiff was apparently disturbed because he thought the accident was in the jurisdiction of Morris County, Kansas authorities and not in the jurisdiction of the Council Grove police department. The last time plaintiff acted in a disruptive fashion, defendant Wangerin told plaintiff he was under arrest for disorderly conduct and directed plaintiff to put his hands behind his back. Plaintiff turned away from defendants and hurried to his van. Defendant Wangerin yelled at plaintiff to stop, but plaintiff tried to get into his van. Defendant Wangerin then grabbed plaintiff's arm (or neck, according to plaintiff) and tried to pull him away from the van. Plaintiff yelled loudly and swung his arms around. He struggled for several minutes before being handcuffed. During this time, defendant Bacon put his elbow underneath plaintiff's right shoulder and the two of them went to the ground. Defendants Wangerin and Bacon attempted to hold plaintiff on the ground while defendant Hilton tried to handcuff plaintiff. Plaintiff pulled his arm away several times before he was finally handcuffed. During this process, plaintiff continued to struggle and then began to complain that he could not breathe.
Plaintiff was arrested for disorderly conduct and ultimately entered a diversion agreement to resolve charges of disorderly conduct and obstructing legal duty. In May 2010, disorderly conduct was a class C misdemeanor in Kansas and obstructing legal duty was a class A misdemeanor. K.S.A. 21-4101, K.S.A. 21-3808 (2007)(repealed and replaced on July 1, 2011). As part of the diversion agreement, plaintiff agreed that if the diversion agreement was revoked by the court, he would admit to the ...