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Berry v. Toms

United States District Court, D. Kansas

November 7, 2014

Michael Lee Berry, Plaintiff,
v.
Travis Toms, et al., Defendants.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, District Judge.

Michael Lee Berry, appearing pro se, has brought the present action against four Kansas City, Kansas police officers (Travis Toms, David Underwood, Patrick Locke, and Jesse Crawford), alleging the officers violated the Fourth Amendment by unreasonably damaging his car and using excessive force when he was arrested on August 21, 2010. Berry is currently in prison, following his convictions for battery and aggravated battery on law enforcement officers, felony fleeing and eluding, and criminal damage to property. The defendants have moved for summary judgment, asserting the protection of qualified immunity.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita ). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Findings of Fact

On August 21, 2010, the defendants were in uniform, working the night-time community policing unit. This assignment includes patrolling high crime areas. Officer Toms and Officer Locke were patrolling in a marked patrol car near 18th and Quindaro Boulevard in Kansas City, Kansas. Around 8:30 p.m., they saw a red Chevrolet Lumina driving south on 18th Street in excess of the speed limit. The officers turned on the patrol car's lights and sirens and tried to stop the Lumina.

Berry, who was driving the Lumina, refused to stop. He tried to escape, accelerating to 60 miles per hour. The speed limit on 18th Street is 30 miles per hour. Toms and Locke asked for and were given permission for pursuit by their supervisor, Sergeant Steven Haulmark.

Berry passed a vehicle, crossing over the double yellow lines into oncoming traffic. Without signaling, Berry turned west on Stewart, passing through a stop sign without stopping. The Lumina's tires struck the curb, left the ground, and came down hard.

Defendants Crawford and Underwood were in another patrol car when they heard of the chase. They drove west on Parallel Parkway, paralleling the pursuit.

After Berry's car had stopped his car near 25th and Stewart, Locke stopped his patrol car also. Locke and Toms approached Berry's car, Locke on the driver's side and Toms on the other.

Berry was in the driver's seat of the car, yelling and screaming and attempting to start the car. The front driver's-side door of the car was locked, with the window rolled up most of the way.

Locke ordered Berry to get out of the car, but Berry ignored him. Locke then used his baton to break out the front driver's-side window of the Chevrolet.

According to Locke, as set forth in the defendants' Motion for Summary Judgment, he may have also struck Berry with the baton when he broke the window. He states that this was not intentional. Berry claims that Locke and Toms did not order him from the vehicle. However, Berry supplies no evidence in support of this assertion, whether by affidavit testimony or otherwise.[1]

It is uncontroverted that Locke leaned through the window and grabbed hold of the steering wheel and the gearshift to prevent Berry from fleeing. He pulled up ...


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