Opinion
CIVIL ACTION No. 01-2233-CM
January 8, 2003.
MEMORANDUM AND ORDER
Plaintiff Paul Van Cleave, who appears pro se, alleges that defendants infringed his constitutional rights in violation of 42 U.S.C. § 1983 and 1985. Plaintiff also asserts various state law claims. This matter is before the court on defendants City of Marysville, Kansas, Todd Ackerman, Dave Waring, Beth Waring and Terry Douglas's Motion for Summary Judgment (Doc. 57) and defendants Keith Sprouse and Kenneth Coggins's Motion for Summary Judgment (Doc. 54).
• Procedural History
On January 9, 2002, the court issued an order (Doc. 29) ruling on defendants Sprouse and Coggins's motions to dismiss (Docs. 14 16). On October 30, 2002, the court issued a second order (Doc. 59), this time ruling on defendants Sprouse and Coggins's joint motion to dismiss (Doc. 38). Pursuant to those orders, the court dismissed defendant Sprouse from this action. With respect to defendant Coggins, the court dismissed all claims except Count 3, which asserts a cause of action for negligent training or supervision.
II. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id. Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
The court acknowledges that plaintiff appears pro se and his response is entitled to a somewhat less stringent standard than a response filed by a licensed attorney. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this does not excuse plaintiff from the burden of coming forward with evidence to support his claims as required by the Federal Rules of Civil Procedure and the local rules of this court. Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988). Even a pro se plaintiff must present some "specific factual support" for his allegations. Id. III. Facts
Plaintiff failed to specifically controvert defendant's facts, and further failed to include a statement of material facts as to which plaintiff contends a genuine issue exists as required by D. Kan. Rule 56.1. Since plaintiff appears pro se, the court will liberally construe any facts alleged by plaintiff in the light most favorable to plaintiff pursuant to Federal Rule of Civil Procedure 56.
In its January 9, 2002 and October 30, 2002 orders, the court has set forth the facts of plaintiff's underlying cause of action. In brief, plaintiff alleges that, on October 31, 1999, he met Mike Frazier at a club in Marysville, Kansas. Mr. Frazier apparently had been drunk, and his wife had left him at the club. At plaintiff's suggestion, plaintiff and Mr. Frazier left the club together and went to plaintiff's residence. Plaintiff alleges that, once they arrived at plaintiff's house, Mr. Frazier pulled his pants and underwear down and asked plaintiff to have sex with him. Plaintiff claims that he told Mr. Frazier that he did not want to have sex and that he would call the police if Mr. Frazier did not stop. Plaintiff alleges he took Mr. Frazier to his (Mr. Frazier's) residence, and then drove back home.
Around midnight that evening, Mr. Frazier went to the Marshall County Confinement Center, where officer Dave Waring of the Marysville Police Department was dispatched. Mr. Frazier told defendant Waring that plaintiff had raped him. Mr. Frazier stated that he could not remember the name of the individual who raped him, but that defendant Waring should call his (Mr. Frazier's) wife, Donna, because she knew the man's name. After obtaining the telephone number from Mr. Frazier, defendant Waring called Donna, who informed the officer that Mr. Frazier had told her that he was raped by Paul Van Cleave. While defendant Waring was on the phone, Mr. Frazier told another officer that plaintiff was the person who raped him.
Chief of Police Todd Ackerman read Mr. Frazier his rights. After waiving his rights, Mr. Frazier made a statement in which he claimed that he had been at the Legion Club earlier that evening with his wife and plaintiff. After Mr. Frazier's wife left, plaintiff invited Mr. Frazier back to plaintiff's house to have a beer. Mr. Frazier stated that he accepted the offer and, shortly after arriving at plaintiff's home, plaintiff raped him. After making the statement, Mr. Frazier was transported to the hospital for a rape kit examination.
Based on Mr. Frazier's statements, defendant Ackerman prepared a probable cause affidavit and obtained an arrest warrant from a magistrate judge. Plaintiff was arrested on November 4, 1999, and charged with aggravated sodomy, kidnapping, and battery. On January 27, 2000, county attorney Keith Sprouse dismissed the criminal charges against plaintiff.
IV. Discussion
º Count 1: 42 U.S.C. § 1983 and 1985 In Count 1, plaintiff asserts a claim under §§ 1983 and 1985 for false arrest, false imprisonment, and malicious prosecution. The court will address this claim in a Fourth Amendment context. See Taylor v. Meacham , 82 F.3d 1556, 1560 (10th Cir. 1996) (holding that the Fourth Amendment governs pretrial deprivations of liberty). Under the Fourth Amendment, an arrest warrant must be supported by probable cause. Wong Sun v. United States , 371 U.S. 471, 481 n. 9 (1963). The absence of probable cause is an essential element of plaintiff's claims of false arrest and malicious prosecution. Elbrader v. Blevins , 757 F. Supp. 1174, 1178 (D.Kan. 1991); see also Arceo v. City of Junction City , 182 F. Supp.2d 1062, 1091 (D.Kan. 2002) ("[T]he cornerstone issue in a claim for false arrest/imprisonment is whether the arrest was based on probable cause."); Mason v. Stock , 955 F. Supp. 1293, 1307 (D.Kan. 1997) (stating that lack of probable cause is an essential element of malicious prosecution under Kansas law). Probable cause arises when the facts and circumstances within the officer's knowledge and judgment, based upon reasonably trustworthy information, would lead a prudent person to believe that the arrestee has committed the offense. Meinert v. City of Prairie Vill. , 87 F. Supp.2d 1175, 1180 (D.Kan. 2000). Specifically, probable cause for an arrest warrant is established by demonstrating a substantial probability that a crime has been committed and that a specific individual committed the crime. Taylor , 82 F.3d at 1562. Under federal law, an affidavit in support of a warrant must contain sufficient facts to enable a neutral and detached magistrate to make an independent determination that probable cause exists to believe that a crime has been committed and that the person named in the warrant committed the crime. Ill. v. Gates , 462 U.S. 213, 239 (1983). A "totality of the circumstances" test should be applied to the sufficiency of an affidavit in support of a search warrant. Id. The fact that a criminal charge was eventually dropped does not mean that an individual's arrest was without probable cause. Atkins v. Lanning , 556 F.2d 485, 487 (10th Cir. 1977).
Plaintiff claims that the arrest warrant was not supported by probable cause and, therefore, that his subsequent arrest, imprisonment, and prosecution violated his constitutional rights. In support, plaintiff points out that Mr. Frazier was intoxicated at the time he gave his statement to the police and that there was no medical evidence to support Mr. Frazier's claim. Plaintiff also complains that defendants failed to question plaintiff or do any further investigation before applying for the arrest warrant.
The issue troubling the court is that Mr. Frazier was intoxicated at the time he made his statement to defendant Waring. According to the police report prepared by defendant Waring and attached to the probable cause affidavit, defendant Waring indicated that Mr. Frazier smelled of alcohol and his speech was slurred. Mr. Frazier also was a bit confused. At first, Mr. Frazier told defendant Waring to call his (Mr. Frazier's) wife to get the name of the person who had raped him since Mr. Frazier apparently had gone home immediately after the rape to tell his wife. However, later in the conversation, Mr. Frazier asked several times for defendant Waring not to tell his (Mr. Frazier's) wife about the rape because she would be mad. Additionally, Mr. Frazier could not immediately recall who had raped him.
Officers are not required to conduct full investigations before making an arrest; however, officers may not ignore easily accessible evidence and thereby abandon their duty to investigate and make an independent probable cause determination based on that investigation. Baptiste v. J.C. Penney Co. , 147 F.3d 1252, 1259 (10 Cir. 1998). Moreover, with respect to officers executing an arrest warrant, the Supreme Court has held that, "[g]iven the requirements that arrest be made only on probable cause and that one detained be accorded a speedy trial, we do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence." Baker v. McCollan , 443 U.S. 137, 145 (1970). Thus, the constitution did not require the defendant officers to completely and fully investigate Mr. Frazier's claim of rape prior to obtaining a warrant. An officer may find probable cause on the basis of a citizen complaint by a victim without investigating the truthfulness of the complaint, unless the officers have reason to believe the complaint is untrustworthy. United States v. Patane , 304 F.3d 1013, 1017 (10 Cir. 2002) (quoting Guzell v. Hiller , 223 F.3d 518, 519-20 (7 Cir. 2000)); see also Soper v. Kouba , 94-3106-DES, 1996 WL 729892, at *6 (D.Kan. Nov. 25, 1996) (holding that officers had probable cause to arrest based upon an ordinary citizen's complaint that the plaintiff committed a sexual assault, notwithstanding that charges were eventually dropped and that citizen had falsely accused plaintiff). Statements of traumatized victims, even when they have been drinking, have been held to be sufficient to establish probable cause to arrest the suspects identified by the victims. Lallemand v. Univ. of R.I. , 9 F.3d 214, 216 (1 Cir. 1993) (concluding that the fact that a victim had a lot to drink did not undercut probable cause because her identification of the suspect was positive, and there was "no suggestion that she was incoherent or vague when she gave her statements to police"); Clay v. Conlee , 815 F.2d 1164, 1168 (8th Cir. 1987) (concluding that, although the victim of a rape was intoxicated and appeared "fuzzy-headed" when she first arrived at the hospital, arrest of defendant was supported by probable cause when victim was not "incoherent, irrational, confused, or intoxicated" when she spoke to police officers). In this case, the fact that Mr. Frazier was intoxicated and appeared confused undermines defendants' argument that probable cause existed to arrest plaintiff. Accordingly, the court finds that, because the officers had probable cause to arrest plaintiff, plaintiff's arrest did not violate his constitutional rights. Count 1 is dismissed in its entirety as to the defendant officers and the City of Marysville.
A municipality cannot be liable under § 1983 for its employees' actions where the employee committed no constitutional violation. Myers v. Okla. County Bd. of County Comm'rs, 151 F.3d 1313, 1316 (10th Cir. 1998)
Count 2 of plaintiff's Complaint, entitled "Negligence in Performance of Duties," alleges that "the false arrest and imprisonment, and malicious prosecution and the resulting injuries to plaintiff's person and mind, were caused wholly and solely be [sic] reason of the negligence of the defendants." Defendants argue that plaintiff's claims are time-barred because plaintiff filed this case more than one year after his arrest.
In its October 30, 2002 order, this court held that plaintiff's claim, in which he alleges that his false arrest, false imprisonment, and malicious prosecution resulted from defendants' negligence, is subject to the one-year statute of limitations as set forth in Kan. Stat. Ann. § 60-514(b). For the same reasons as set forth in the October 30, 2002 order, the court finds that plaintiff's negligence claim against these moving defendants is barred because plaintiff did not bring this action within one year of his arrest. As such, Count 2 is hereby dismissed in its entirety. Additionally, Count 4, which alleges a claim for false arrest, is hereby dismissed based on plaintiff's untimely filing.
º Court 3: Negligent Supervision/Training
The court held in its October 30, 2002 order that plaintiff's negligent training claim is a separate cause of action, subject to the two-year statute of limitations applicable to negligence claims. As such, the court found that plaintiff's claim of negligent training and supervision was timely filed. However, because the court has found no underlying violation, plaintiff's claim for negligent training and supervision is dismissed. Webber v. Mefford , 43 F.3d 1340, 1344-45 (10th Cir. 1994) ("A claim of inadequate training, supervision, and policies under § 1983 cannot be made out against a supervisory authority absent a finding of a constitutional violation by the person supervised."); Smith v. Printup , 254 Kan. 315, 336, 866 P.2d 985, 1000 (1993) (stating that an employer is not liable for damages for negligently hiring an employee unless the employee's conduct was negligent or wrongful). IT IS THEREFORE ORDERED that defendants City of Marysville, Kansas, Ackerman, Waring, Waring and Douglas's Motion for Summary Judgment (Doc. 57) and defendants Sprouse and Coggins's Motion for Summary Judgment (Doc. 54) are granted. This case is hereby dismissed.