Opinion
CIVIL ACTION No. 00-2158-CM
June 15, 2001
MEMORANDUM AND ORDER
Plaintiff Anthony Lewis, who appears pro se, alleges that defendant Richard Fairbanks, an officer with the Lansing Police Department, violated his constitutional rights during an incident that occurred on April 5, 2000. This matter is before the court on defendant's motion for summary judgment (Doc. 21), plaintiff's motion to strike defendant's motion for summary judgment (Doc. 23), and plaintiff's motion for summary judgment (Doc. 35).
I. Plaintiff's Motion to Strike
Plaintiff moves the court to strike defendant's motion for summary judgment because the motion allegedly does not explicitly contend that there are no genuine issues of material fact precluding summary judgment. The court finds that defendant's motion for summary judgment sufficiently alleges that there are no genuine issues of material fact as provided in defendant's statement of uncontroverted facts. It is now plaintiff's burden to show what, if any, material facts preclude summary judgment pursuant to Federal Rule of Civil Procedure 56.
Plaintiff also argues that defendant's motion for summary judgment should be stricken because the motion allegedly was signed by an attorney who was at the time not an attorney of record. On October 11, 2000, defendant's law firm, Sanders Conkright and Warren, LLP filed an answer on defendant's behalf to plaintiff's complaint. The names on the signature block for the law firm were James D. Conkright and John E. Bordeau. Plaintiff later filed an amended complaint. Defendant responded on December 19, 2000, by filing an answer that included James D. Conkright and Linda Skaggs of Sanders Conkright and Warren, LLP on the signature block as defendant's attorney, with Linda Skaggs signing the answer. On December 20, 2000, defendant filed his motion for summary judgment, which also included James D. Conkright and Linda Skaggs of Sanders Conkright and Warren, LLP on the signature block as defendant's attorney, with Linda Skaggs signing the motion. Two days later, Linda Skaggs filed a formal entry of appearance.
Under D. Kan. Rule 5.1, appearances by counsel "shall be entered by signing and filing a formal entry of appearance or by signing the initial pleading, motion or notice of removal filed in the case." Thus, counsel who have not signed the initial pleading or motion must enter their appearance by separate pleading. In this case, Linda Skaggs did not sign the initial pleading, which was defendant's original answer. Rather, Ms. Skaggs's signature first appeared on defendant's answer to plaintiff's amended complaint.
The court is not faced with a situation where one attorney ceases to represent a client, and then another attorney suddenly files a motion for that client without entering his or her appearance. Rather, Ms. Skaggs practices with the same law firm which initially appeared and which continues to appear on behalf of defendant. Moreover, James D. Conkright's name has continued to appear as counsel of record. The court determines that, in these circumstances, striking defendant's summary judgment motion is not warranted because plaintiff was in no way prejudiced by Ms. Skaggs's signature. Plaintiff's motion to strike is denied.
II. Motions for Summary Judgment
Defendant moved for summary judgment. In response, plaintiff requested that the court deny defendant's motion for summary judgment and, instead, grant summary judgment in his favor.
A. 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 summary judgment motion 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.
B. Facts
The court notes that plaintiff failed to controvert defendant's statement of uncontroverted facts. Moreover, in setting forth his own statement of facts, plaintiff failed to refer to the record for support. Notwithstanding plaintiff's failure to comply with D. Kan. Rule 56.1, the court in this opinion will set forth facts only where there exists support in the record provided and accordingly render judgment based on those facts.
On April 5, 2000, defendant was traveling northbound on Main Street in Lansing, Kansas, when he observed plaintiff's vehicle traveling southbound at what appeared to be a high rate of speed. As defendant turned his vehicle around, plaintiff's vehicle accelerated and quickly turned onto another street. Then, while continuing at a high rate of speed, plaintiff's vehicle turned onto two other streets. Finally, when defendant's vehicle was directly behind plaintiff's vehicle, plaintiff pulled over.
Once stopped, defendant approached plaintiff's vehicle and asked plaintiff why he tried to run. Plaintiff stated that he did not try to run but that he was looking for a friend's house. Defendant asked who the friend was, to which plaintiff responded by stating a female's first name. When questioned further, plaintiff told defendant that he did not know the friend's last name or her address.
At some point, Officer Gabbert, another officer with the Lansing Police Department, arrived at the scene to back up defendant. Defendant advised Officer Gabbert that he was going to arrest plaintiff and asked Officer Gabbert to get information from the passenger, who was it turns out plaintiff's mother. Defendant then told plaintiff to step out of the car and put his hands on the trunk. Defendant placed plaintiff under arrest for attempting to elude a police officer. According to plaintiff's deposition testimony, defendant asked plaintiff whether he had any weapons or knives on him and then "did a pat down." Defendant then handcuffed plaintiff and placed him in the police car.
Plaintiff further testified that, from the police car, he saw defendant open up the driver's side car door. Defendant had a flashlight and was looking around the area where plaintiff had been sitting. At the same time, Officer Gabbert, who was talking with plaintiff's mother in the passenger's seat, flashed his flashlight around the inside of the car. Plaintiff testified that neither officer got inside the car, opened the trunk, or got in the back seat.
Plaintiff was charged with attempting to elude a police officer and with speeding. On April 20, 2000, plaintiff pleaded no contest to both counts.
C. Discussion
Plaintiff alleges the following constitutional violations: 1) false arrest; 2) failure to give Miranda warning; 3) illegal frisk; and 4) illegal search of plaintiff's vehicle. Each claim will be considered in turn.
1. False Arrest
Plaintiff has asserted an allegation of false arrest in violation of the Fourth Amendment. Any Fourth Amendment seizure relating to an arrest is constitutionally lawful if the officer making the arrest has probable cause. Cottrell v. Kaysville City, 994 F.2d 730, 733 (10th Cir. 1993). Furthermore, where probable cause exists, the subjective intent of the officer in effectuating an arrest is irrelevant. Malley v. Briggs, 475 U.S. 335, 431 (1986).
The court finds that plaintiff's plea of no contest is dispositive of his false arrest claim. In Bond v. Queen, 71 F. Supp.2d 1117, 1123 (D.Kan. 1999), plaintiff brought a false arrest claim. The court held that the false arrest claim was barred by the plaintiff's plea of no contest to the underlying charges. The court in Bond found persuasive the argument that a false arrest claim "is barred by [the plaintiff's] municipal court convictions, in which [the plaintiff] pled no contest to the domestic violence charges and essentially entered into a plea agreement which conceded probable cause." Id. Accordingly, this court finds that plaintiff's plea of no contest essentially concedes that defendant had probable cause for the arrest.
Even without considering plaintiff's plea, the court finds that defendant had probable cause to arrest plaintiff. The record indicates, and plaintiff admits, that plaintiff turned down several streets while defendant was in pursuit of plaintiff's vehicle. Plaintiff claims that he was unaware that defendant was behind him. However, a reasonable police officer in these circumstances would have cause to believe that plaintiff was attempting to elude him. Plaintiff's false arrest claim is, therefore, precluded, and defendant is entitled to summary judgment on this claim.
2. Miranda Warnings
Plaintiff alleges that his Fifth Amendment rights were violated because he was not given his Miranda rights until after the arrest. The Fifth Amendment, however, only guarantees plaintiff the right to be free from self-incrimination. The Miranda decision does not suggest that a police officer who fails to advise an arrested person of his rights is subject to civil liability. Rather, the Fifth Amendment requires, at most, only that any confession made in the absence of such advice be excluded from evidence at trial. Bennett v. Passic, 545 F.2d 1260, 1263 (10th Cir. 1976). A police officer who fails to give a Miranda warning is not subject to liability. Id. Accordingly, defendant is granted summary judgment on this claim.
3. Search of Plaintiff's Person
Plaintiff alleges that defendant conducted an illegal search of his person in violation of the Fourth Amendment. The Fourth Amendment normally requires that law enforcement officers obtain a warrant, based on probable cause, before conducting a search. There are limited exceptions to that rule, however, one of which is that officers may conduct a warrantless search of a person when it is incident to a lawful arrest of that person. United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998). A search incident to a lawful arrest can involve a relatively extensive exploration of the person. Terry v. Ohio, 392 U.S. 1, 25-26 (1968).
In this case, plaintiff has conceded by pleading no contest, and the court has found, that probable cause existed for his arrest. Thus, defendant's search of plaintiff did not require a warrant because the search was incident to the lawful arrest of plaintiff. Moreover, the scope of the search was not unconstitutional. Defendant conducted a pat down of plaintiff. In these circumstances, defendant's frisk of plaintiff was constitutionally permissible. United States v. McKissick, 204 F.3d 1282, 1296-97 (10th Cir. 2000) (concluding that officer was justified in conducting a full, warrantless search of suspect incident to arrest). Summary judgment for defendant is appropriate.
4. Search of Plaintiff's Vehicle
Plaintiff claims that defendant conducted an "exploratory" search of his vehicle which violated his constitutional rights under the Fourth Amendment. The law provides that a police officer may conduct a contemporaneous, warrantless search of a vehicle's passenger compartment incident to a lawful arrest. United States v. Humphrey, 208 F.3d 1190, 1201 (10th Cir. 2000) (citing New York v. Belton, 453 U.S. 454, 460 (1981)). Moreover, a police officer may examine the contents of any containers found within the passenger compartment. Id.
In this case, the search by defendant of plaintiff's vehicle was conducted incident to plaintiff's lawful arrest. Moreover, the scope of the search was limited to a visual inspection of the passenger compartment. The court finds that defendant's search of the vehicle did not violate plaintiff's constitutional rights. Summary judgment on this issue is granted to defendant.
IT IS THEREFORE ORDERED that plaintiff's motion to strike defendant's motion for summary judgment (Doc. 23) is denied, plaintiff's motion for summary judgment (Doc. 35)is denied, and defendant's motion for summary judgment (Doc. 21) is granted in its entirety. Plaintiff's case is hereby dismissed with prejudice.