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Boyd v. City of Victoria

United States District Court, D. Kansas

August 18, 2017

LISA BOYD, Plaintiff,


          Sam A. Crow, U.S. District Senior Judge.

         The case comes before the court on the following summary judgment motions that are ripe for decision: the defendants City of Victoria, Mary Pfeifer, Cole Dinkel, Ryan Mauch and Curtis Unrein (ECF# 32) (“Victoria defendants”) and the defendants Ellis County, Sheriff Ed Harbin, Wilmer Dinkel and unknown Ellis County employees (ECF# 39) (“Ellis County defendants”). The pro se plaintiff Lisa Boyd has filed responses to both motions, (ECF## 47 and 58), and the defendants have replied respectively (ECF## 59 and 60).

         Ms. Boyd brings this lawsuit alleging 16 counts for relief pursuant to 42 U.S.C. §§ 1983 and 1985 and pursuant to state tort law. ECF# 1. The factual setting for her complaint, as alleged, is that Ms. Boyd moved to the small town of Victoria, Kansas, sometime in 1998, and she soon came to believe she was the target of a civil conspiracy intent to drive her into leaving Victoria. ECF# 1, ¶¶ 24 and 26. Ms. Boyd alleges the defendants enforced laws against her, made statements to her and about her, and also conducted themselves as to oppose her interests all done in an effort to discourage her from staying there. She alleges that her arrest on June 19, 2014, for driving under the influence (“DUI”), as the culmination of the defendants' efforts.

         The defendants seek summary judgment on several different grounds. They characterize Ms. Boyd's suit as an unsuccessful financially-motivated attempt to transform “a series of unsatisfactory encounters with the citizens, officials and employees of the city of Victoria between 2006 and 2014” into a plot to drive her away “because she did not share the religion of many of her neighbors.” ECF# 33, p. 1. The defendants argue the facts show that many of encounters resulted from calls for help made either by her or her family. Id. p. 2. The defendants raise several legal defenses and argue deficiencies in the evidence that prevent the plaintiff from recovering as a matter of law.


         “Summary judgment is appropriate only if ‘the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.'” Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014)(quoting Fed.R.Civ.P. 56(a)). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A “genuine” factual dispute requires more than a mere scintilla of evidence in support of a party's position. Id. at 252.

         The moving party has the initial burden of showing “the absence of a genuine issue of material fact, ” and, if carried, the non-moving party then “must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which [it] carries the burden of proof.” National American Ins. Co. v. American Re-Insurance Co., 358 F.3d 736, 739 (10th Cir. 2004) (internal quotation marks and citation omitted). At the summary judgment stage, the court is not to be weighing evidence, crediting some over other, or determining the truth of disputed matters, but is only to be deciding if a genuine issue for trial exists. Tolan, 134 S.Ct. at 1866. The court performs this task with a view of the evidence that favors most the party opposing summary judgment. Id. 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 will not consider statements of fact, or rebuttals thereto, which are not material or are not supported by competent evidence. Fed.R.Civ.P. 56(c)(1)(A), 56(e)(2), 56(e)(3). “[O]n a motion for summary judgment, it is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without depending on the trial court to conduct its own search of the record.” Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (internal quotation and citation omitted). The Court is “not obligated to comb the record in order to make [Plaintiffs'] arguments for [them].” See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000). The court's local rule, D.Kan. Rule 56.1, provides:

         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 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.

         To be effective, summary judgment affidavits “must be based on personal knowledge and set forth facts that would be admissible in evidence at trial; conclusory and self-serving affidavits are not sufficient.” Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (quotations and citation omitted). To be viable, the summary judgment affidavits must provide evidence for which the content would be admissible even if the form would not be admissible. Adams v. American Guarantee and Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (Inadmissible hearsay evidence may not be used in summary judgment). “So it is that, although evidence presented in the form of an affidavit at summary judgment can be converted in form into live testimony at trial, the content or substance of the affidavit must be otherwise admissible, and any hearsay contained in a summary judgment affidavit remains hearsay, beyond the bounds of the court's consideration.” Johnson v. Weld County, Colo., 594 F.3d 1202, 1210 (10th Cir. 2010).

         “To defeat a motion for summary judgment, evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise.” Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). “In a response 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.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)(citation omitted). “[A]t the summary judgment stage, statements of mere belief in an affidavit must be disregarded.” Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) (internal quotation marks and citation omitted).

         The plaintiff submits an affidavit that sweepingly states, “statements of fact made by Plaintiff in her Response to the City's Motion for Summary Judgment . . . are true and correct.” ECF# 47-1, p. 4; ECF# 58, p. 7. She also submits a number of exhibits, and her citations to them are frequently broad and vague. The court will accept as statements of fact only those that can be read as statements of fact, because they are based on the plaintiff's personal knowledge with supporting detail and are not based on speculation, opinion or argument. “The Tenth Circuit has held that merely placing evidence in the record on summary judgment without pointing the Court to it is insufficient: ‘it is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without . . . depending on the trial court to conduct it's own search of the record.'” Ney v. City of Hoisington, Kan., 508 F.Supp.2d 877, 883 (D. Kan. 2007) (quoting Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004)), aff'd sub nom. Ney v. City of Hoisington, Kansas, 264 Fed.Appx. 678 (10th Cir. 2008)(unpub.) “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact . . ., the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it; or (4) issue any other appropriate order.” Fed.R.Civ.P. 56(e).

         Being pro se, Ms. Boyd's filings are liberally construed, but the court will not act as her advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Nor will the court “sift through the record to find support for” her arguments. Phillips v. James, 422 F.3d 1075, 1081 (10th Cir. 2005), Nor will it “fashion . . . [her] arguments” when her “allegations are merely conclusory in nature and without supporting factual averments.” United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (citation omitted).

         Ms. Boyd repeatedly states that she “cannot present facts essential to justify her opposition absent adequate time to obtain affidavits or take discovery and so states pursuant to Rule FRCP 56(d).” ECF## 47 and 58. An opposing party who wants the motion either deferred or denied “must file an affidavit that explains why facts precluding summary judgment cannot be presented” and that also identifies “the probable facts not available and what steps have been taken to obtain these facts.” Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir.)(citation omitted), cert. denied, 562 U.S. 968 (2010); see also Garcia v. U.S. Air Force, 533 F.3d 1170, 1179 (10th Cir. 2008)(“A party may not invoke Rule 56(f) by simply stating that discovery is incomplete but must state with specificity how the additional material will rebut the summary judgment motion.”). Ms. Boyd's blanket statement of needing more time lacks the required explanation and detail.

         In their motions, the defendants have blended their arguments to incorporate even challenges to pleading based on Rule 12(b)(6). In addressing those arguments, the court applied the following. The court accepts as true “all well-pleaded factual allegations in a complaint and view[s] these allegations in the light most favorable to the plaintiff.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009), cert. denied, 558 U.S. 1148 (2010). This duty to accept a complaint's allegations as true is tempered by the principle that “mere labels and conclusions, and a formulaic recitation of the elements of a cause of action will not suffice; a plaintiff must offer specific factual allegations to support each claim.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting in part Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)). To withstand a Rule 12(b)(6) motion, “a complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face.” Al-Owhali v. Holder, 687 F.3d 1236, 1239 (10th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Thus, “a plaintiff must offer sufficient factual allegations to ‘raise a right to relief above the speculative level.'” Kansas Penn Gaming, 656 F.3d at 1214 (quoting Twombly, 550 U.S. at 555). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “‘A claim has facial plausibility when the [pleaded] factual content . . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1178 (10th Cir. 2012).


         Ms. Boyd moved to Victoria, Kansas in 1998, and Cole Dinkel became Victoria Police Department's (“VPD's”) Chief of Police (“Chief”) in May of 2008. Over the years, Chief Dinkel in his official capacity has had numerous contacts with the plaintiff Ms. Boyd. For example, in June of 2010, he investigated a reported burglary and theft at the plaintiff's shop which resulted in a confession by the perpetrator. In September of 2010, the plaintiff's adult daughter made a disturbance call reporting that the plaintiff had been hit by the plaintiff's boyfriend, Bentham. Chief Dinkel went to the plaintiff's home and saw her bruises, but the plaintiff refused to tell him what had happened. Several days later, the plaintiff told Chief Dinkel what had happened, but she said she did not want Bentham to be arrested, but only removed.

         In November of 2011, the VPD received multiple calls of fighting between the plaintiff and Bentham which ended in Bentham's arrest. When released, Bentham was ordered not to have contact with the plaintiff, but the plaintiff continued to contact Bentham even after she was told to stop. The VPD received information that the plaintiff was harassing Bentham, threatening to get him, and speaking ill of him. The VPD also received a report from another citizen who complained that the plaintiff had entered his residence without permission to rant about Bentham. The plaintiff does not effectively controvert this statement.

         The plaintiff reported credit card fraud in February of 2012. After VPD Officer Ryan Mauch's investigation of it, the VPD understood the plaintiff had been refunded the money. The plaintiff's evidence does not controvert Chief Dinkel's averments that the plaintiff did not subsequently contact the VPD about this credit card debt and that he never refused to take from the plaintiff a report of identity theft.

         In June of 2012, the plaintiff's adult daughter, Sara, contacted the VPD with a report that the plaintiff would not leave Sara's hair salon. The incident resolved with the plaintiff leaving and no action being taken. On September 6, 2012, a citizen reported to the VPD that there was apparent drug activity in the plaintiff's yard. Officer Mauch made contact with the plaintiff and Bentham. Finding no evidence of drug activity, no further action was taken.

         The City of Victoria maintains one “hard copy” of its ordinances in several volumes, none of which may be removed from the city office. Upon a citizen's request to see certain ordinances, the relevant ones are identified and produced for viewing. The affidavit of City Clerk Mary Pfeifer states that the plaintiff was never refused access to the city ordinances. The plaintiff refers to several instances when Pfeifer effectively denied her requests to “see all of the ordinances” at the same time. ECF# 47, ¶ 30 (bolding added).

         On September 6, 2012, plaintiff went into the City Clerk's office, “slammed her hands on the counter and began rambling and complaining loudly, yelling and behaving in what the clerk and assistant perceived to be a bizarre, aggressive, and threatening manner.” ECF# 33, ¶ 31. The plaintiff referred to herself as crazy. Frightened and alarmed, the City Clerk called the VPD, and the plaintiff then left. The plaintiff's unsupported and unexplained use of “controverted” and her statements concerning her subjective intent do not effectively controvert these statements of fact. The defendant VPD Officer Ryan Mauch stopped the plaintiff as she was driving from the city hall and arrested her for disorderly conduct. After the plaintiff was booked and released on an OR bond, the officer gave her a ride home.

         Later that same day, a hand-lettered sign appeared in the plaintiff's front yard that read, “St. Fidelis-Always Faithful to Pedophiles.” In her complaint, the plaintiff alleges that after her disorderly conduct arrest she allowed her boyfriend Bentham to put up this sign in her yard, because he wished to express his opinion on this subject. At paragraphs 88 and 89 of her complaint, the plaintiff alleges that in regard to this incident she “hoped that some feather ruffling might stop or slow the city's harassment activities, ” but she “was mistaken in this hope.” ECF# 1. The VPD received calls about the plaintiff's sign. VPD Officer Mauch instructed the plaintiff to remove the sign from the city's right of way, and when the plaintiff promised to comply, Mauch left. Chief Dinkel stopped by later, and he too discussed the situation with the plaintiff and Bentham. Citizens were noticing the sign and objecting to it. Dinkel recalls Ms. Boyd saying the town disliked her to which he replied that the sign did not help. The plaintiff's statement does not effectively controvert any of the material facts here.

         According to Chief Dinkel, the plaintiff began alleging harassment and demanding money from the city for it. She also threatened to replace her St. Fidelis sign if the city did not pay her. Chief Dinkel told the plaintiff that she was free to replace her sign and that he could not stop her. The plaintiff's blanket statement of “controverted” is insufficient. Because this statement addresses what the plaintiff purportedly said at a particular point in time, the plaintiff offers nothing to show how her controverting evidence is unavailable.

         On September 11, 2012, the owner of the shop which the plaintiff leased asked the VPD to provide a civil standby as he served an eviction notice on the plaintiff. Chief Dinkel performed this duty, and no arrests were made. Later that same day, the plaintiff contacted a city council member and Mayor Unrein in regards to this eviction, and Chief Dinkel received citizen phone calls complaining that the plaintiff had re-erected her St. Fidelis sign. Chief Dinkel went to the plaintiff's house and they discussed the situation. He did not request or order her to remove the sign, and he told her that he was there to protect her and her property. The plaintiff eventually removed the sign.

         On June 16, 2013, Chief Dinkel received a citizen's complaint that the plaintiff had gone to a residence and yelled at the citizen in front of his children and had left harassing messages on his cell phone. Chief Dinkel spoke with the plaintiff and mediated the issues between the citizen and the plaintiff. During this event, Chief Dinkel observed the plaintiff engage in disorderly conduct by coming outside in boxer shorts and then yelling and cursing. Chief Dinkel repeatedly warned the plaintiff who went back inside without any further action being taken.

         On July 3, 2013, the plaintiff's adult daughter called 911 to report that the plaintiff was not allowing her and her 6-year-old son to leave the plaintiff's home. Chief Dinkel responded and saw the plaintiff physically blocking the young boy from leaving the yard and joining his mother. The plaintiff accused her daughter of being an unfit mother. Chief Dinkel allowed the daughter and her son to leave, and he took no action against the plaintiff.

         On July 17, 2013, Chief Dinkel responded to a citizen call that the plaintiff was violating the City's water use restrictions. Chief Dinkel explained the restrictions, and the plaintiff accepted the warning. No further action was taken.

         In June of 2014, Bentham as occupant of the plaintiff's house was served with a warning letter that the lawn vegetation violated the city's environmental code. On June 17, 2014, Chief Dinkel followed up on the warning letter and saw that the yard still did not comply. He discussed the situation with the plaintiff who demanded to see the governing ordinance. So, Chief Dinkel went with the plaintiff to City Hall where he made a copy of the ordinance for her. The plaintiff complained that other yards in Victoria were also in violation of this ordinance, and Chief Dinkel responded that they were being addressed too. The plaintiff's statements to Chief Dinkel included the comment that the citizens of Victoria were Nazis.

         On June 19, 2014, Chief Dinkel received multiple calls from citizens complaining that the plaintiff was highly intoxicated and was screaming at Bentham in front of the church. Another report came in that the plaintiff was yelling obscenities at three juvenile boys who were riding bikes in the area. Chief Dinkel went to the area and spoke with the boys who confirmed the reported complaint. He then observed the plaintiff driving her vehicle. She made a turn without using a turn signal and then stopped at her home leaving one wheel up over the curb. When Chief Dinkel made contact with her, the plaintiff was loud, belligerent, and used obscene language. Chief Dinkel smelled a strong odor of alcohol on the plaintiff. The plaintiff consented to taking a preliminary breath test, and the blood alcohol result was .117. Chief Dinkel arrested the plaintiff and took her to the Law Enforcement Center in Hays. At the Center, the plaintiff agreed to a breath test, and the results were .104. The plaintiff then insisted on a blood test, and Chief Dinkel informed the plaintiff that additional testing would be at her expense. The plaintiff was taken to the Hays Medical Center (“hospital”), and the blood test results were .084. While at the hospital, the plaintiff also asked for and received treatment and medication for a toothache and blood pressure problem. Upon her release from the hospital, Chief Dinkel took the plaintiff to the jail where she was booked in at 7:40 p.m. The plaintiff has not effectively controverted any of the above facts. The plaintiff asserts the hospital gave her prescriptions for pain medication, antibiotic, and blood pressure medication which were not filled by the jail or county personnel.

         Staff at the Ellis County jail did not observe the plaintiff to be suffering from any serious or life-threatening health while she was detained from the evening of June 19 through her release the next morning on June 20 shortly after 11:00 am. Other than complaining about a toothache, she did not advise staff of any serious medical issues or health conditions. While the plaintiff denies filling out and signing an intake form indicating no serious current health problems, the plaintiff does not controvert what the staffers observed regarding her condition. The plaintiff denies being given an opportunity to advise staff of her medical conditions. Nonetheless, it is uncontroverted that on June 20th before she was taken to court and released on bond, jail staff transported the plaintiff to an urgent care center across the street around 8:15 a.m. based on the plaintiff's complaints of a toothache. While at this urgent care center, she again took medication for her blood pressure, was encouraged to get her antibiotic prescription filled, was to have her blood pressure monitored while incarcerated, and was to follow up with dental care following her release. She was returned to her jail cell at 9:10 a.m. on June 20, transported to district court at 11:10 a.m., and was bonded out at approximately 11:23 a.m.

         When the plaintiff was booked into jail, she was placed in a cell with another female detainee due to the high number of female detainees on June 19th. The cell contained a toilet, sink, bed, and sufficient space for two detainees. The plaintiff believes the cell was too small for two beds with sufficient space to travel from bed to toilet. The jailers aver the plaintiff never told them about her trouble with urinating or with her cellmate. The plaintiff says her verbal requests were ignored during the night, but that she raised her issues the next morning with the jailer who took her to the urgent care center. The plaintiff's cellmate began screaming in pain and was taken to the hospital at 2:45 a.m. on June 20th with complaints of kidney stones. The cellmate was treated for this condition at the hospital and was returned to the jail cell around 6:10 a.m. The plaintiff was taken to court around 11:00 a.m. and released before noon.

         The plaintiff entered a diversion agreement in which she admitted to unlawfully operating a vehicle on June 19th with a breath alcohol level of .104 such that she was incapable of driving safely. The plaintiff admits the Ellis County Attorney's office assisted her in obtaining the proper operation of videos she received from the VPD. As far as the video of her DUI arrest, Wilmer Dinkel did not erase, destroy or tamper the video and did not conspire to do the same. The lost video from the DUI check lane was caused by the mechanical failure of two hard drives, not human error or manipulation.

         Chief Dinkel has not solicited anyone to act as an informant on the plaintiff's activities and has never looked for some excuse to arrest the plaintiff. The plaintiff's exhibits do not controvert these facts, nor does her affidavit which only recounts what she “is alleging” and does not appear to be based on personal knowledge. ECF# 47, p. 13, ¶ 109. Chief Dinkel did not advise Victoria residents that plaintiff was a bad person or that the plaintiff was someone likely to get them into trouble. The plaintiff's affidavit lacks the content and the specificity required by Rule 56(d) to controvert this statement. Chief Dinkel avers that he did not treat the plaintiff differently from other citizens who had violated city ordinances. The plaintiff avers that her yard “was cited on numerous occasions” when other citizens who were in violation did not receive citations. ECR# 47, pp. 13-14. Chief Dinkel avers that he did not destroy any evidence concerning the plaintiff and did not ask or collude with anyone else to destroy evidence. The plaintiff's affidavit fails the requirements of 56(d) concerning this latter statement.

         Summary of Complaint

         The plaintiff's pro se complaint is 34 pages in length with 304 numbered paragraphs. ECF# 1. Her factual allegations coming under the title of “Nature of the Case” comprise the numbered paragraphs of 24 through 188. Id. at pp. 3-20. Interspersed among the factual allegations are the following bolded headings:

-Chief Cole Dinkel and city clerk Mary Pfeifer engaged in defamatory activities toward Plaintiff and interfered with Plaintiff's family ...

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