United States District Court, D. Kansas
MEMORANDUM AND ORDER
ERIC F. MELGREN, District Judge.
Plaintiff Mark Hildebrant ("Plaintiff") seeks monetary damages, including actual and punitive damages and attorney's fees, from Defendants Sedgwick County Sheriff Department ("the Department") and Deputies Justin Maxfield ("Maxfield"), Scott Burdett ("Burdett"), Andrew Dodge ("Dodge"), and Eric Slay ("Slay") (collectively referred to as "Defendant Deputies"), for mental anguish, suffering, permanent disability, and loss of enjoyment of life under 42 U.S.C. § 1983. Defendants now move for partial summary judgment (Doc. 41). For the reasons stated below, Defendants' motion is granted in its entirety.
I. Factual and Procedural Background
This case arises out of a pursuit and use of force by Sedgwick County Sheriff's Deputies in the 5500 block of North Maize Road in Sedgwick County, Kansas, on December 30, 2010. Because of the nature of the case, Plaintiff and Defendants disagree as to some of the facts.
On December 30, 2010, at 2:35 a.m., Dodge attempted to stop a reported stolen vehicle on West Kellogg Avenue in Sedgwick County, Kansas. Instead of pulling to a stop upon the activation of Dodge's emergency lights, the suspect vehicle, driven by Colt McCammon ("McCammon"), fled, engaging Dodge, as well as deputies Maxfield and Burdett and officers from other law enforcement agencies, in a twenty-three minute pursuit. The suspect vehicle reached speeds as high as eighty miles per hour, failed to stop at multiple stoplights and stop signs, and crossed into oncoming traffic. Plaintiff, a passenger in the car, claims that he repeatedly begged McCammon to pull over or allow him to exit the vehicle, to no avail. Defendants allege that Plaintiff and McCammon threw objects, including illegal drugs, out of the vehicle's windows during the pursuit.
After being "spike stripped" multiple times, the suspect vehicle came to a stop at 5500 North Maize Road at approximately 2:58 a.m. The details of what happened next are vigorously contested by both parties. According to Plaintiff, Defendant Deputies and other officers ordered Plaintiff, who was unarmed, out of the car. Plaintiff complied, offering no resistance. Instead of merely detaining him, officers screamed obscenities at Plaintiff, calling him a "mother***ker." Defendant Deputies allegedly "bull rushed" and gang tackled Plaintiff, knocking him to the ground and instantly breaking his neck. Plaintiff alleges that the deputies then dragged him to the side of the road and ordered him to get up, at which time Plaintiff informed the deputies that they had broken his neck. According to Plaintiff, rather than immediately seeking medical attention, the deputies just left him handcuffed on the ground and made inappropriate comments about his alleged injury.
In contrast, Defendants allege that Plaintiff immediately exited the stopped vehicle before being told to do so and subsequently failed to follow the deputies' verbal commands to face away, walk backward toward them, and keep his hands above his head. Instead, Plaintiff dropped his hands, "flipped off" the deputies, and walked directly toward them while bringing his hands to his waist. According to Defendants, when Plaintiff failed to follow the deputies' commands, two of the deputies grabbed Plaintiff and used their body weight to take him to the ground. These deputies, plus one other, then restrained Plaintiff, who was resisting, and administered strikes to his shoulder, upper thigh, and ribs. At no time did Plaintiff inform the deputies that he was a reluctant participant in the stolen vehicle.
Less than three minutes after the deputies took Plaintiff to the ground, Emergency Medical Services ("EMS") was summoned to the scene. The EMS crew was en route at 3:03 a.m. and arrived on scene at 3:14 a.m. Plaintiff was treated and taken to a local hospital. Plaintiff now alleges that, as a result of Defendant Deputies' conduct, he sustained a spinal cord injury that caused him to lose the use of his legs and has confined him to a wheelchair. While Defendants acknowledge that Plaintiff incurred significant cervical injuries from the confrontation, they allege that Plaintiff had pre-existing physical conditions in his neck, including a prior cervical fusion and spinal stenosis, which made him significantly more susceptible to injury. Defendants allege that Plaintiff did not inform the deputies of this pre-existing condition.
Plaintiff filed this suit on August 30, 2012, alleging the following: (1) excessive use of force, (2) failure to train, (3) failure to seek medical attention, and (4) a state law claim of battery. On November 20, 2013, Defendants filed a motion for partial summary judgment on Plaintiff's failure to train, failure to seek medical attention, and battery claims. On January 7, 2014, Plaintiff requested a hearing on this matter. The Court held oral on May 28, 2014.
II. Legal Standard
Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. A fact is "material" when it is essential to the claim, and the issues of fact are "genuine" if the proffered evidence permits a reasonable jury to decide the issue in either party's favor. The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim. The nonmovant must then bring forth specific facts showing a genuine issue for trial. These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits - conclusory allegations alone cannot survive a motion for summary judgment. The court views all evidence and reasonable inferences in the light most favorable to the non-moving party.
In his Complaint, Plaintiff pled a state tort claim of battery against the individual Defendant Deputies. Under Kansas law, any action for battery must be brought within one year. The incident in question occurred on December 30, 2010. On November 29, 2011, Plaintiff filed a notice of claim pursuant to K.S.A. § 12-105, which requires any person who has a claim against a municipality that could give rise to an action under the Kansas tort claims act to "file a written notice... before commencing such action." Once such notice is filed, "no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until 120 days has passed following the filing of the notice of the claim, whichever occurs first." The statute further provides that
[n]o person may initiate an action against a municipality unless the claim has been denied in whole or part. Any action brought pursuant to the Kansas tort claims act shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, a claim shall have no less than 90 days from the date the claim is denied or deemed denied in which to commence an action.
Here, a denial of Plaintiff's claim was sent to counsel on March 21, 2012. Plaintiff's ninety-day period within which to commence an action for battery therefore expired on June 21, 2012. Plaintiff did not file his claim in this Court until August 30, 2012, more than two months after the statutory deadline under K.S.A. § 12-105b(d) and long after the one-year statute of limitations for battery had expired. In his Complaint, Plaintiff failed to present any argument or justification for tolling the statute of limitations. In his response to Defendants' motion for summary judgment, Plaintiff acknowledged that the statute of limitations has run on this claim. As such, Defendants' motion for summary judgment with regard to Plaintiff's state law battery claim is granted and the claim is dismissed.
B. Failure to Seek Medical Treatment
In his Complaint, Plaintiff alleged that Defendant Deputies "increased [his] susceptibility to injury... by failing to provide medical attention or human decency after they had broken his neck." However, the Pretrial Order (Doc. 40) does not reflect such a claim. In his response to Defendants' motion for summary judgment on this claim, Plaintiff states that he "does not make a failure to provide medical care [argument] under the Eighth Amendment in the pretrial order." Given this response, the Court now assumes that Plaintiff no longer wishes to pursue a failure to seek medical attention claim. As such, Defendants' motion for summary judgment on this issue is granted and any such claim, "whether never made or now abandoned, " to use Defendants' words, is dismissed.
C. Failure to Train
The bulk of Defendants' motion concerns Plaintiff's allegation against the Department for failure to train. According to Plaintiff, the Department is liable under 42 U.S.C. § 1983 for failing to train its deputies in the proper use of force. Unlike a typical failure to train claim, however, Plaintiff acknowledges that the Department provided, and Defendant Deputies received, the proper initial and continuing training as required by Kansas law. Instead, Plaintiff argues that the Department failed to reinforce this training. It is this lack of reinforcement, Plaintiff claims that led to his injury. In response, the Department argues that Plaintiff cannot establish that the training and policies of its deputies concerning use of force violate applicable constitutional standards. Upon review, the Court agrees.
Section 1983 states, in relevant part, that "[e]very person who, under color of [law], subjects, or causes to be subjected, any citizen... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." A municipality may be sued as a "person" under § 1983. A municipality, however, will not be held liable merely for the actions of its employees. A plaintiff must establish that it was the municipality's policy or custom that caused the constitutional deprivation. "In the absence of an explicit policy or an entrenched custom, the inadequacy of police training may serve as a basis of § 1983 liability... where the failure to train amounts to a deliberate indifference to the rights of persons with whom the police come into contact." The well-established elements of a failure to train claim under § 1983 require a plaintiff to show that:
(1) the officers exceeded constitutional limitations on the use of force; (2) the use of force arose under circumstances that constitute a usual and recurring situation with which police officers must deal; (3) the inadequate training demonstrates a deliberate indifference on the part of the city toward persons with whom the police officers come into contact; and (4) there ...