United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
Under 42 U.S.C. § 1983, Kevin Ward and Desta Yilala bring suit pro se against the Police Department of Lenexa, Kansas and Lenexa Police Officers Marcus Hefley, Nicholas Vajen and James Befort. Plaintiffs allege that defendants violated their rights under the Fourteenth Amendment of the United States Constitution. This matter comes before the Court on Defendants' Motion For Summary Judgment (Doc. #67) filed November 8, 2013. For reasons set forth below, the Court finds that the motion should be sustained.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co. , 11 F.3d 1535, 1538-39 (10th Cir. 1993). A "genuine" factual dispute is one "on which the jury could reasonably find for the plaintiff, " and requires more than a mere scintilla of evidence. Liberty Lobby , 477 U.S. at 252. A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Id . at 248.
The moving party bears the initial burden of showing that there are no genuine issues of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986); Justice v. Crown Cork & Seal Co. , 527 F.3d 1080, 1085 (10th Cir. 2008). Once the moving party meets the initial burden, the burden shifts to the nonmoving party to show that a genuine issue remains for trial with respect to the dispositive matters for which the nonmoving party carries the burden of proof. Nat'l Am. Ins. Co. v. Am. Re-Ins. Co. , 358 F.3d 736, 739 (10th Cir. 2004); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986). As to these matters, the nonmoving party may not rest on the pleadings but must set forth specific facts. Fed.R.Civ.P. 56(e)(2); Matsushita , 475 U.S. at 586-87; Justice , 527 F.3d at 1085. Conclusory allegations not supported by evidence are insufficient to establish a genuine issue of material fact. Jarvis v. Potter , 500 F.3d 1113, 1120 (10th Cir. 2007); see Kidd v. Taos Ski Valley, Inc. , 88 F.3d 848, 853 (10th Cir. 1996).
When applying this standard, the Court must view the factual record in the light most favorable to the party opposing the motion for summary judgment. Duvall v. Ga.-Pac. Consumer Prods., L.P. , 607 F.3d 1255, 1260 (10th Cir. 2010); see Ricci v. DeStefano , 557 U.S. 557, 586 (2009). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby , 477 U.S. at 250-51. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Id . at 251-52.
The Court recognizes that pro se litigants should not succumb to summary judgment merely because they fail to comply with the technical requirements involved in defending such a motion. See Woods v. Roberts, No. 94-3159 , 1995 WL 65457, at *2 (10th Cir. Feb. 17, 1995); Long v. Morris , 485 F.Supp.2d 1247, 1250 (D. Kan. 2007). The Court has therefore searched the record to determine whether genuine issues of material fact preclude the entry of summary judgment as to the claims of either plaintiff. See Jackson v. Yellow Logistics, Inc. , 24 F.Supp.2d 1206, 1209 (D. Kan. 1998).
The following facts are uncontroverted or, where controverted, construed in a light most favorable to plaintiffs.
Desta Yilala is an African American. He operated a restaurant and bar at 7820 Quivira Road, Lenexa, beginning in September of 2003 until December 2011. Yilala changed the name of the restaurant several times; the Court refers to it as the business. At all times relevant to this lawsuit, the business was open to the public. Yilala was required to have a liquor license in order to serve and/or sell alcohol at the business.
Kevin Ward is an African American. He was part owner and operator of Ward Guard, a security company. From April 17, 2011 to September of 2011, Ward Guard provided security services to Yilala's business.
Defendants Marcus Hefley, Nicholas Vajen and James Befort were sworn law enforcement officers of the Lenexa Police Department at all times relevant to this lawsuit.
The Lenexa Police Department has received a significantly higher volume of calls regarding complaints about the business than they have received for any other business entity in Lenexa. Between 2006 through 2011, Lenexa police officers were present at the business at least 70 times. Officers responded to calls regarding noise disturbances, concealed weapons on clientele, thefts and assaults and batteries. Officers also went to the business to investigate compliance with liquor laws.
On November l, 2009, Lenexa police officers conducted a tavern check at the business following a narcotics investigation in the parking lot. The officers cited two ...