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Andrews v. Fickell

United States District Court, Eighth Circuit

May 16, 2013

MICHAEL ANDREWS, Plaintiff,
v.
FICKELL, Officer, et al., and HANZEK, Officer, City of Omaha Police Department, et al., Defendants.

MEMORANDUM OPINION

LYLE E. STROM, Senior District Judge.

This matter is before the Court on defendants' Motion for Summary Judgment (Filing No. 33). For the reasons discussed below, the Court finds that defendants are entitled to summary judgment.

I. BACKGROUND

Plaintiff filed his complaint in this matter on August 15, 2011, against the State of Nebraska, the City of Omaha Police Department, Douglas County, the Douglas County Department of Corrections, Robert Fickel ("Officer Fickel"), and David Hanzek ("Officer Hanzek").[1] (Filing No. 1.) Plaintiff filed an Amended Complaint on November 18, 2011, in which he named additional parties (Filing No. 10). Plaintiff's Amended Complaint is the operative complaint in this matter; however, only plaintiff's claims against Officers Fickel and Hanzek in their individual capacities are viable because all other claims against all other parties were dismissed on initial review ( See Filing No. 9 at CM/ECF p. 4 (dismissing plaintiff's claims against the State of Nebraska) and Filing No. 13 (dismissing plaintiff's claims against the City of Omaha, the City of Omaha Police Department, Douglas County, Douglas County Corrections, Douglas County Sheriff, and Fickel and Hanzek in their official capacities)).

On October 10, 2012, defendants filed a Motion for Summary Judgment and a Brief and Index of Evidence in support of their Motion (Filing Nos. 33, 34, and 35). In response, plaintiff filed a "Motion to Deny Summary Judgment" and a Brief (Filing Nos. 36 and 37).

II. DEFENDANTS' UNDISPUTED MATERIAL FACTS

The party seeking the entry of summary judgment in its favor must set forth "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). If the non-moving party opposes the motion, that party must "include in its [opposing] brief a concise response to the moving party's statement of material facts." NECivR 56.1(b)(1). Such response must "address each numbered paragraph in the movant's statement and, in the case of any disagreement, contain pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon which the opposing party relies." Id. "Properly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response." Id.

Defendants submitted a statement of material facts in accordance with the Court's Local Rules. Further, defendants submitted evidence that was properly authenticated by affidavit. Plaintiff filed a response to defendants' Motion for Summary Judgment, but the response did not include anything that could be construed as a "concise response" to defendants' statement of materials facts. ( See Filing Nos. 36 and 37.) The Court deems this matter fully submitted, and adopts the following undisputed material facts, as set forth by defendants in their Brief:

1. On May 5, 2011, at approximately 8:55 a.m., Omaha Police Officer Robert Fickel was on routine patrol conducting speed enforcement at or near 24th and F Streets in Omaha, Nebraska, in a marked Omaha Police Department cruiser (Fickel affidavit § 3).
2. At that time and location, Officer Fickel observed, and confirmed by radar, a vehicle heading [n]orthbound on 24th Street, later determined to be driven by Plaintiff, going approximately 60 mph in a 30 mph zone (Fickel affidavit §§ 4-6).
3. Plaintiff was not the owner of the vehicle (Plaintiff's Amended Complaint, § 8, page 5).
4. Officer Fickel activated his overhead lights to initiate a traffic stop for the speeding violation (Fickel affidavit § 7).
5. Although Plaintiff slowed down to approximately 30 mph, he did not immediately pull over (Fickel affidavit § 8).
6. Plaintiff kept making hand gestures out [of] the window as if he didn't know where to pull over (Fickel affidavit § 8).
7. Near 24th Street and Interstate 80, Plaintiff stopped briefly, but then drove off at a slow ...

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