Smith v. City of Grand Island

D. Nebraska

Smith v. City of Grand Island

DecidedJanuary 23, 2023

Docket8:19-cv-00473

StatusUnknown

This text of Smith v. City of Grand Island (Smith v. City of Grand Island) is published on Counsel Stack Legal Research, covering District Court, D. Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Smith v. City of Grand Island, (D. Neb. 2023).

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Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

PHILLIP E. SMITH,

Plaintiff, 8:19CV473

vs. MEMORANDUM AND ORDER CITY OF GRAND ISLAND, a political subdivision of the State of Nebraska; DEAN ELLIOTT, individually as patrol captain and supervisor of the Grand Island police department; JUSTIN ROEHRICH, individually as an employee of the city of Grand Island and an officer with the Grand Island police department; BRADLEY BROOKS, individually as an employee of the city of Grand Island and sergeant with the Grand Island police department; and JOSE RODRIGUEZ, individually as an employee of the city of Grand Island and an officer with the Grand Island police department;

Defendants.

This matter is before the Court on Defendants’ Motion for Summary Judgment. Filing No. 68. Also before the Court is Defendants’ Motion to Strike, Filing No. 88. For the reasons that follow, the Motion for Summary Judgment is granted, the Motion to Strike will be denied as moot. I. BACKGROUND Plaintiff Phillip E. Smith (“Plaintiff”) is an inmate at F.C.I. Beckley in Beaver, West Virginia. Filing No. 73. He brings this action under 42 U.S.C. § 1983 against Defendants City of Grand Island, Dean Elliott, Justin Roehrich, Bradley Brooks, and Jose Rodriguez all officers of the Grand Island Police Department (“GIPD”). Plaintiff alleges violations of the Fourth, Fifth, and Fourteenth Amendments based on unlawful search and seizure, excessive force, false arrest, just compensation for the taking of Plaintiff’s property, and deprivation of liberty and property without due process. See Filing No. 1, Filing No. 9. After initial review, the Court permitted the following of Plaintiff’s claims to proceed:

• Defendants Roehrich, Brooks, and Elliott unlawfully searched Plaintiff’s vehicle in violation of the Fourth Amendment; • Defendants Rodriguez and Elliott improperly seized Plaintiff’s phone in violation of the Fourth Amendment; • Defendants Roehrich and Elliott applied excessive force in violation of the Fourth Amendment; • Defendants Roehrich, Brooks, Rodriguez, and Elliott wrongfully arrested Plaintiff in violation of the Fourth Amendment; • Defendants Rodriguez and Elliott deprived Plaintiff of due process;

• Defendant City of Grand Island failed to properly train and supervise its officers; and • Corresponding state law claims if Plaintiff’s federal claims survived motion practice. Filing No. 9 at 16, 17. II. SUMMARY JUDGMENT PROCEDURE A. Facts Considered on Summary Judgment A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1). This Court’s local rules1 further specify that “[t]he moving party must include in the brief in support of the summary judgment motion a separate statement of material facts,” which “should consist of short numbered paragraphs, each containing pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials that support the material facts stated in the paragraph.” NECivR 56.1(a) (underlining in original). “The statement must not contain legal conclusions.” Id. The opposing party’s brief must include “a concise response to the moving party’s statement of material facts.” NECivR 56.1(b)(1). “Each material fact in the response must be set forth in a separate numbered paragraph, must include pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon which the opposing party relies, and, if applicable, must state the number of the paragraph in the movant’s statement of material facts that is disputed.” Id. A party’s failure to comply with these requirements can have serious consequences: The moving party’s “[f]ailure to submit a statement of facts” or “[f]ailure to provide citations to the exact locations in the record supporting the factual allegations may be grounds to deny the motion” for summary judgment. NECivR 56.1(a) (underlining

omitted). On the other hand, “[p]roperly referenced material facts in the movant’s

1 The Court’s applied its local civil rules in effect at the time Defendants filed their Motion for Summary Judgment. NECivR 56.1 has been amended, effective December 1, 2022. Both versions of the Court’s local rules can be accessed at: https://www.ned.uscourts.gov/attorney/local-rules statement are considered admitted unless controverted in the opposing party’s response.” NECivR 56.1(b)(1) (underlining omitted). In accordance with the Court’s local rules, Defendants’ brief, Filing No. 69, includes “a separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of

law.” NECivR 56.1(a)(1). Plaintiff did not directly respond to any of Defendants’ numbered statements of fact. Accordingly, those facts are considered admitted unless otherwise contained in the defendant’s verified factual submissions. See NECivR 56.1(b). Although Plaintiff is proceeding pro se, he is bound by and must comply with all local and federal procedural rules. NEGenR 1.3(g). To the extent admissible, the Court has considered Plaintiff’s Index in Opposition to Summary Judgment, Filing No. 82. However, the Court has not considered Plaintiff’s legal conclusions and arguments asserted as facts because such statements are not admissible to oppose summary judgment.

B. Plaintiff’s Evidence Considered on Summary Judgment The Court first considers which, if any, of Plaintiff’s evidence can be considered. Defendants filed a Motion to Strike, Filing No. 88, Plaintiff’s Index of Evidence, Filing No. 82. Alternatively, Defendants ask the Court to disregard Plaintiff’s evidence as inadmissible. The Court will not grant the Motion to Strike wholesale, but cannot consider much of Plaintiff’s evidence because, as addressed in the Discussion below, it is either irrelevant, inadmissible, or lacks foundation. For example, Plaintiff’s mother, Jacquelyn Bullock, testified that she has power of attorney for Plaintiff and reviewed Plaintiff’s medical records and believed “that events are accurate as written as to the occurrences in this matter.” Filing No. 82 at 8. However, her affidavit lacks any indication she was present for the incident or treatment and lacks any attestation about her medical credentials. In support of his opposition, Plaintiff’s brief also cites frequently to his unverified Complaint. However, allegations in an unverified complaint are not evidence and cannot

be used to oppose summary judgment. See Fed. R. Civ. P. 56(c)(1); see also Thomas v. Corwin, 483 F.3d 516, 526 (8th Cir. 2007) (“The party opposing summary judgment cannot rest solely on the pleadings.”); Tweeton v. Frandrup, 287 F. App’x 541 (8th Cir. 2008) (per curiam) (“[B]ecause his complaint was unverified, it could not be considered as such evidence.”); Metzsch v. Avaya, Inc., 159 F. App’x 736, 737 (8th Cir.

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