Bond v. Queen

71 F. Supp. 2d 1117, 1999 U.S. Dist. LEXIS 15206, 1999 WL 787259
CourtDistrict Court, D. Kansas
DecidedSeptember 23, 1999
DocketNo. 98-4134-JTM
StatusPublished
Cited by1 cases

This text of 71 F. Supp. 2d 1117 (Bond v. Queen) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bond v. Queen, 71 F. Supp. 2d 1117, 1999 U.S. Dist. LEXIS 15206, 1999 WL 787259 (D. Kan. 1999).

Opinion

MEMORANDUM ORDER

MARTEN, District Judge.

This is an action under 42 U.S.C. § 1983 against four Derby, Kansas police officers. The plaintiff, James R. Bond, raises claims against the defendants for, among other things, false arrest and excessive force. The defendants have moved for summary judgment. For the reasons stated herein, the defendants’ motion is hereby granted.

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 plaintiffs 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Findings of Fact

Before discussing the factual findings required by the evidence before the court, the court must address two points. First, the plaintiff has introduced videotapes taken from the two police cars, and repeatedly invoked the videotapes as proving one asserted fact after another. However, an actual viewing of the videotapes demonstrates that, far from assisting in understanding the events underlying the action, the tapes are almost completely without value. The tapes are taken from forward-looking cameras mounted in the defendants’ police vehicles parked along a city street in Derby. The incident occurred at night. In the first tape, taken from the Queen/Staats vehicle, the camera is facing another car, parked on the same side of [1119]*1119the street but pointed in the direction of the camera with its headlights on. The second tape is taken from the Lowery/Chaneellor vehicle, which is parked closely behind another police vehicle. In both tapes, the actions of the parties to the litigation occur in the darkness beyond the range of the cameras.

The audio quality of the tapes is less than poor. This may be due to the fact that much of the action between the parties occurred at some distance from the vehicles. For most of the relevant portions of the tapes, no sound at all can be detected. Even where voices can be heard, they are frequently unintelligible. All plaintiff has presented are the tapes themselves; he has made no attempt to transcribe them or to identify the voices on the tapes. With few exceptions, the tapes are simply not probative of the key facts in the case — whether the officers have probable cause for an arrest of Bond, whether he resisted arrest, and whether the level of force actually used was excessive.

The second preliminary point is the failure of the plaintiffs response to adhere to the rules regarding summary judgment briefing. Thus, the response frequently responds to facts presented as uncontro-verted by the defendants without directly citing evidentiary materials, as required by the local rules. Instead, the response frequently responds by simply stating that the asserted fact is “deceiving” and “fails to set forth important material facts as indicated by the videos ... and the Additional Facts set out below.” (E.g., Plf. Resp. Fact ¶ 10, at 3). D.Kan.R. 56.1 explicitly requires a response to a summary judgment motion to “refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of mov-ant’s fact that is disputed.” The purpose of the rule is to require litigants, if they contest an asserted fact, to present their evidence on the issue directly. The plaintiffs response frustrates this purpose by creating a separate factual narrative, frequently without any specific reference at all to the statement of facts presented by the defendants. To the extent the response does not comply with the requirements of D.Kan.R. 56.1, the fact presented by defendants is deemed admitted.

At approximately 10:50 p.m. on August 10, 1997, sixteen-year-old Celeste Morris called 911 from her home at 236 Teal Drive in Derby, Kansas. Her call was transferred by. 911 to the Derby Police Department. Celeste told the police dispatcher that her mom’s boyfriend was “throwing things” at Celeste, “physically hurting” her. She said he threw a purse and hit her in the back “real hard” and had shoved her up the stairs. She also related that he was screaming at her mom, and the dispatcher could hear yelling in the background. Celeste was crying during at least part of this conversation with the dispatcher. Celeste identified James Bond, the plaintiff in the present action, as the man doing these things. Near the end of this conversation, Celeste told the dispatcher that Bond had left the house.

The police dispatcher sent two officers, Sergeant Mark Staats and Officer Jimmy Queen, to respond to “a disturbance at 236 Teal Drive.” Staats and Queen were advised by radio that “apparently the male subject of this residence is 46 and has been throwing objects at the mother and daughter.” The code “46” meant the subject was possibly intoxicated.

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71 F. Supp. 2d 1117, 1999 U.S. Dist. LEXIS 15206, 1999 WL 787259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bond-v-queen-ksd-1999.