United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
claim that Jim Bethards, a Harvey County Sheriff's
Deputy, violated their Fourth Amendment rights by shooting
and killing one of their dogs. They seek actual and punitive
damages under 42 U.S.C. § 1983. The matter is now before
the court on the following: plaintiffs' motion for
summary judgment (Dkt. 111); plaintiffs' motion for
default judgment and sanctions (Dkt. 115); and
defendant's motion for summary judgment (Dkt. 123).
Plaintiffs' Motion for Summary Judgment (Dkt.
review of plaintiffs' motion shows that it fails to
comply with Rule 56 or with the court's local rules. It
contains various factual assertions, none of which are shown
to be supported by materials contemplated by Rule 56. The
factual assertions are interspersed with legal arguments and,
with one or two exceptions, include no references or
citations to the record.
provides in part that the court shall grant summary judgment
if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). A party asserting that a
fact cannot be genuinely disputed “must support the
assertion by … citing to particular parts of the
record, including depositions, … affidavits …
or other materials.” Fed.R.Civ.P. 56(c)(1)(A).
Plaintiffs' motion does not comply with this requirement.
As defendant Bethard points out, “[t]here are no
statements of fact for him to admit or deny.” Dkt. 112
party fails to properly support an assertion of fact as
required by Rule 56, the court may give the party an
opportunity to properly support the fact, consider the fact
undisputed for purposes of the motion, grant summary judgment
if the motion and supporting materials show that the movant
is entitled to it, or issue any other appropriate order.
court concludes the appropriate course here is to deny
plaintiffs' motion for summary judgment. Although
plaintiffs' reply brief (Dkt. 116) attempts to correct
the original deficiencies, raising new factual matters and
arguments in a reply brief opens the door to yet another
round of briefs. See Pippin v. Burlington Res. Oil &
Gas Co., 440 F.3d 1186, 1192 (10th Cir. 2006) (“if
the court relies on new material or new arguments in a reply
brief, it may not forbid the nonmovant from responding to
these new materials”). The court concludes that
additional briefing would result in unnecessary delay and
expense and that the balance of factors does not warrant
re-opening summary judgment briefing. See Fed. R.
Civ. P. 1 (the rules shall be administered to secure the
just, speedy, and inexpensive determination of the action).
Because plaintiffs have failed to show their entitlement to
judgment in accordance with the standards of Rule 56, their
motion for summary judgment is denied.
Plaintiffs' Motion for Default Judgment and Sanctions
complain that defendant failed to timely serve them with a
paper copy of defendant's summary judgment response. Dkt.
115 at 1. They argue this was not a mistake but was “an
intentional inadvertence and further excusable
neglect.” Id. at 2. Plaintiffs ask the court
“to hold the [defendant's] attorneys in Civil
Contempt of Court and to request the appropriate coercive
sanctions for failure to comply to the Federal Rules of
Procedures.” Id. at 3.
essentially concedes that when he electronically filed his
response, he did not serve a paper copy on plaintiffs as
required by the rules. Dkt. 119. Defendant says that a copy of
the brief was emailed to plaintiffs on April 17 after
plaintiffs asserted a lack of service, and that plaintiffs
were able to file their reply (Dkt. 116) on April 20, 2017.
Defendant contends plaintiffs suffered no prejudice from the
failure, claims that plaintiffs failed to follow Fed.R.Civ.P.
11(c)(2) in seeking sanctions, and argues that default
judgment is not warranted in any event.
court concludes no sanctions are warranted. First and
foremost, plaintiffs point to no legal prejudice from having
received the response on April 17th rather than on or around
April 4th. Plaintiffs requested no additional time to file
their reply brief and ultimately filed it on April 20th.
Defendant does not challenge the reply brief as untimely.
Plaintiffs thus suffered no harm from the delay. Second,
plaintiffs do not say when they first became aware of
defendant's response. And third, plaintiffs cite nothing
to show that defendant's failure to serve a paper copy
was anything other than inadvertent. Plaintiffs' claim
that defense counsel has engaged in a pattern of
“blatant abuses and violations” is utterly
Defendant's Motion for Summary Judgment (Dkt.
Summary Judgment Standards. Summary judgment is
appropriate if the moving party demonstrates that there is no
genuine dispute as to any material fact, and the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
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. Haynes v. Level 3
Communs., 456 F.3d 1215, 1219 (10th Cir. 2006). The
movant bears the initial burden of proof and must show the
lack of evidence on an essential element of the claim.
Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851
(10th Cir. 2004) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986)). The nonmovant must then bring
forth specific facts showing a genuine issue for trial.
Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th
Cir. 2005). The court views all evidence and reasonable
inferences in the light most favorable to the nonmoving
party. LifeWise Master Funding v. Telebank, 374 F.3d
917, 927 (10th Cir. 2004).
Uncontroverted Facts. Defendant first argues his
motion for summary judgment should be granted as uncontested
because plaintiffs filed their response ten days beyond the
deadline. Dkt. 129 at 4. The court rejects this argument for
essentially the same reasons it rejected plaintiffs'
motion for default judgment. Defendant shows no prejudice
from this ten-day delay, he makes no showing that plaintiffs
acted in bad faith, and such a brief delay does not merit
forfeiture of plaintiffs' claims.
meritorious argument is that defendant's statement of
uncontroverted facts should be deemed admitted by virtue of
plaintiffs' failure to properly controvert it. Under the
local rules, each fact in dispute must be numbered by
paragraph, refer with particularity to the portions of the
record relied upon, and state the number of the movant's
fact that is disputed. D. Kan. R. 56.1(b)(1). Additionally,
facts on which an opposition memorandum 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
admission.” Id. at 56.1(d). Plaintiffs'
memorandum largely fails to do so. The court understands that
plaintiffs are acting pro se and may be unfamiliar
with the rules of evidence and procedure in federal court,
but having chosen to proceed pro se they are bound
to follow the rules and abide by the consequences if they
fail to comply with the rules. The court cannot act as their
lawyer, cannot construct arguments on their behalf, and will
not search the record for material facts in support of their
claim. Under the standards of Rule 56, the court finds the
following facts to be uncontroverted for purposes of summary
Kent and Tonya Mayfield are residents of Harvey County,
Kansas. They reside at 1020 South ...