United States District Court, D. Kansas
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
Plaintiffs bring this action asserting claims of excessive use of force, malicious prosecution and false arrest under 42 U.S.C. § 1983, and state law claims for negligent use of force and intentional infliction of emotional distress. This matter is before the Court on Defendants' Motion for Partial Summary Judgment (Doc. 77). Defendants' motion seeks summary judgment on the following: Plaintiff Mary Patterson's malicious prosecution claim; both Plaintiffs' state law claims of negligent use of force claims and intentional infliction of emotional distress; and the City of Wichita's liability under the federal §1983 claims. Plaintiffs have conceded that the City of Wichita is not liable for the federal claims. The motion is fully briefed and the Court is prepared to rule. As described more fully below, the Court grants in part and denies in part Defendants' motion for partial summary judgment.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if the moving party demonstrates "that there is no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law." In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party." A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." 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."
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the nonmovant's claim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.
Once the movant has met the initial burden of showing the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." The nonmoving party may not simply rest upon its pleadings to satisfy its burden. 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 fact could find for the nonmovant."
Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." In responding to a motion for summary judgment, "a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial." When examining the underlying facts of the case, the Court is cognizant that it may not make credibility determinations or weigh the evidence.
II. UNCONTROVERTED FACTS
The following facts are either uncontroverted, stipulated to, or viewed in the light most favorable to Plaintiffs.
Plaintiff Travis Patterson and Antron Cox are brothers. Plaintiff Mary Patterson is their mother. On June 6, 2010, Travis was living with Mary, along with Travis' girlfriend Audrey Martinez and Travis and Audrey's two small children. On June 6, 2010, sometime after midnight, Travis and Antron were "cussing and wrestling" with each other in the front yard of Mary's house. The two had been out to a bar earlier in the evening and had each consumed two and a half alcoholic drinks. Mary heard them from inside the house and went outside to see what was happening. She tried to physically separate the men bu twas unable to do so. She observed that Travis had blood on his lip. Mary told them to stop or she would call the police. They did not stop so Mary told Audrey, who had come outside, to call the police. At that time, Mary was aware that there was a felony warrant for Antron's arrest-he was wanted on a rape charge. Audrey called 911, saying that her boyfriend and his brother were fighting and they needed officers to assist. She said one of the men was wounded but did not need an ambulance.
Antron's girlfriend, Sharmon Phares, drove to Mary's home from a night club. She passed two parked police cars up the street from Mary's house. Two police officers were standing outside the cars talking. Phares drove by the officers and parked across the street from Mary's house. Phares exited her vehicle and walked toward Travis and Antron, who were arguing. She asked what was going on, and she advised Travis and Antron that there were police cars parked up the street.
Sharmon and Antron walked to Sharmon's van and got in to leave. But several uniformed police officers arrived-some in cars, some on foot-coming around the street corner from the south. According to Mary, they were shining flashlights and shouting "Shut the fuck up. Get the fuck back. Get the fuck back." Mary saw several police officers pull Antron away from the van, throw him to the ground, and then sit on him. Phares got out and stood at the back of the van. Mary joined Phares at the rear of the van where she could see Antron. Audrey was there as well.
Mary testified that she was "furious" because of "all of this happening" and was "hollering at the officers to get off him [Antron], let him breathe." Mary said that an office other than Officer Henry shined a flashlight in her face and told her to "[g]et the fuck back." Mary said the next thing she knew, Officer Henry struck her in the throat and knocked her to the ground, laying on top of her. A nearby neighbor, Nazeeh Shahid, called 911 requesting a supervisor be sent to the scene after he saw Defendant Henry tackle Mary Patterson in the street.
Travis said he saw a police officer "basically tackle" Mary and she landed on her left side. Travis testified that he went toward his mother but he can't remember whether he pulled the police officer off of her. Travis does remember putting his hands up in the air and asking the officers why they were doing this to Mary. Travis said the next thing he remembers is being tased twice in the back. Travis testified that he told an officer that he (Travis) had an associate's degree in criminal justice. The officer said Travis' degree "ain't like mine... because of where you live." Travis was handcuffed and put in the back of the police car.
Mary was handcuffed and told to sit on the curb. Mary testified that the duration of time from when the police arrived until she was handcuffed and sat on the curb was approximately fifteen to twenty minutes. Officer Henry took Mary to the police station. Mary testified that Officer Henry told her to shut up and quit crying. He also told another officer that Mary battered him. Travis was also taken to the police station. His handcuffs were removed. Mary arrived at the station after Travis arrived. Travis asked Mary if she was okay. Officer Henry, told Travis to shut up and turn around. Travis replied that he had the right to ask his mother if she was okay. Officer Henry then approached Travis Travis responded by rising from his chair to a standing position. Several officers surrounded Travis. One pulled Travis' hands behind his back to handcuff him. Travis testified that Officer Henry kneed him in the outer left thigh three times. Travis said he was placed up against a wall with his hands behind his back and Officer Henry grabbed his thumb and twisted it.
Travis was charged with battery of a law enforcement Officer Casey Wills, and resisting arrest. He was convicted of the battery charge in municipal court and found not guilty of resisting arrest. Travis appealed the conviction. During the appeal process, the battery charge was amended to obstructing legal process. Travis pled no contest to this charge and received fines and probation.
Mary was also charged with battery of a law enforcement officer. She was booked and released on June 6, 2010. According to jail records the booking process took one hour and fifteen minutes. Mary was still wearing her nightclothes.
Mary was arraigned on June 25, 2010 and she was released on her own recognizance pending trial. Mary was provided a court-appointed defense attorney. She was found not guilty in municipal court on September 24, 2010.
Mary testified that she was depressed and taking medication for her depression before the incident and that after the incident she suffered nightmares and became more depressed. She said her doctor increased her dose of depression medication. Mary said she was paranoid and anxious before the incident, but became worse after the incident.
Travis testified that he is embarrassed "in a way" when someone asks about the Taser marks on his back and he reveals he has been tased.
Before June 6, 2010, the City of Wichita had placed into effect a use of force policy, Regulation 4.0, which addressed use of electronic control devices, i.e. tasers, at § 4.117-4.126. WPD Reg. 4, § 4.131 entitled "Unnecessary/Excessive Force" states that "Only such force as is reasonably necessary shall be used to control an individual or situation. Members shall use extreme caution when using any police weapon or tactic." WPD Reg. 4 § 4.131(A) states "Unnecessary use of force is strictly prohibited." WPD Reg. 4 §4.131(B) states "Excessive Force is strictly prohibited." WPD Regulation 4.101 states in part that "[a] member's decision, relative to the use of force, must be legally justifiable, considering both the nature of the crime and circumstances surrounding the incident." WPD Reg. 4 §4.101 states;
"This Department recognizes and respects the value and special integrity of each human life. In vesting police members with the lawful authority to use force to protect the public welfare, a careful balancing of all human interests is required. Therefore, it is the policy of this Department that police members shall use only that force that is reasonably necessary to effectively bring an ...