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Daugherty v. Denzin

United States District Court, D. Nebraska

March 25, 2014

ARRMON H. DAUGHERTY, Plaintiff,
v.
DENZIN, OFC., 1622, HOSE, OFC., 1606, and CITY OF LINCOLN, Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, District Judge.

This matter is before the court on several Motions and Objections filed by the Parties. (Filing Nos. 50, 67, 72, 79, 81, 82, and 84.) As set forth below, the court will grant Defendants' Motion for Summary Judgment and dismiss Plaintiff's claims with prejudice.

I. BACKGROUND

On June 12, 2012, Plaintiff filed the Complaint in this matter against the City of Lincoln, Nebraska ("City"), and several individual officers of the Lincoln Police Department ("LPD"). (Filing No. 1 at CM/ECF p. 1.) Plaintiff sued each of the individual LPD officers in both their individual and official capacities. ( Id. ) On September 7, 2012, the court conducted an initial review of Plaintiff's Complaint and concluded that it failed to state a claim against several of the individual officers. (Filing No. 8 at CM/ECF p. 9.) However, the court also provided Plaintiff with the opportunity to amend his complaint by October 8, 2012. ( Id. )

Plaintiff failed to amend by the court's deadline and the court dismissed Plaintiff's claims against Defendants Armstrong, Smith, and Vigil. (Filing No. 9.) However, the court permitted Plaintiff's Fourteenth Amendment claims relating to the denial of medical treatment and his state law negligence claims to proceed against Defendants Denzin, Hose, and the City. (Filing No. 9; see also Filing No. 8.)

On April 22, 2013, Plaintiff filed a Motion for Summary Judgment. (Filing No. 50.) Because discovery was still ongoing, Defendants asked the court to extend their response time. ( See Filing Nos. 47, 54 and 59.) The court extended the time for Defendants to file a response until August 19, 2013. (Filing No. 60.)

On July 22, 2013, Plaintiff filed a Motion to Compel along with a Brief and an Index of Evidence in Support. (Filing Nos. 67, 68, and 69.) On August 19, 2013, Defendants filed a Motion for Summary Judgment along with a Brief and Index of Evidence in Support. (Filing Nos. 72, 73, and 74.) Defendants' Brief included a Response to Plaintiff's previously filed Motion for Summary Judgment. (Filing No. 74 at CM/ECF p. 29.) Thereafter, Plaintiff moved to extend the time to respond to Defendants' Motion for Summary Judgment. (Filing No. 75.) The court granted Plaintiff's request and gave him until October 21, 2013, to file a response. (Filing No. 76.)

On October 25, 2013, Plaintiff filed an Objection and Brief in Opposition to Defendants' Motion for Summary Judgment along with an Index of Evidence. (Filing Nos. 79 and 80.) On November 4, 2013, Defendants filed an Objection to Plaintiff's Brief and Index arguing he filed them late and that they contained unauthenticated declarations and statements. (Filing No. 81.) On November 18, 2013, Plaintiff filed a Motion to Strike Defendants' Objection to his Brief arguing it was not filed within seven days of his Objection and Brief in Opposition. (Filing No. 82.) Thereafter, Plaintiff also filed a Motion for Leave to Supplement Evidence. (Filing No. 84.) Defendants have objected to Plaintiff's Motion arguing that his new evidence is also improperly authenticated. (Filing No. 86.)

II. ANALYSIS

Before the court addresses the pending Motions for Summary Judgment, it must resolve Plaintiff's Motion to Compel, the Parties' Objections to briefs and evidence submitted in support of their Motions for Summary Judgment, and Plaintiff's request to supplement evidence.

A. Motion to Compel

On July 22, 2013, Plaintiff filed a Motion to Compel along with a Brief in Support. (Filing Nos. 67 and 68.) In his Brief, Plaintiff expresses his dissatisfaction with Defendants' answers to his requests for admission and asks the court to compel different answers. ( Id. ) The court has reviewed Defendants' answers and finds that they comply with Fed.R.Civ.P. 36(a)(4). Accordingly, Plaintiff's Motion to Compel is denied.

B. Objections to Evidence

As discussed above, Plaintiff filed an Objection and Brief in Opposition to Defendants' Motion for Summary Judgment along with an Index of Evidence. (Filing Nos. 79 and 80.) Defendants have filed an Objection to Plaintiff's Brief and Index arguing he filed them late and they contain unauthenticated declarations and statements. (Filing No. 81.) Plaintiff argues that the court should strike Defendants' Objection because it was not filed within seven days of his Objection and Brief in Opposition. (Filing No. 82.)

Plaintiff was required to file his brief in opposition by October 21, 2013. (Filing No. 76.) Plaintiff failed to file his Objection and Brief in Opposition until October 25, 2013. (Filing No. 79.) However, Plaintiff deposited the Objection and Brief in Opposition into the prison mail on October 21, 2013. ( See Filing No. 79 at CM/ECF p. 25.) Because Plaintiff is proceeding pro se, the court will permit his late filing. However, the court warns Plaintiff that he must comply with the court's orders and the Federal Rules of Civil Procedure. Plaintiff needs to mindful to send mail so that it is received by an established deadline. To the extent that Defendants ask the court to strike Plaintiff's Objection and Brief in Opposition, their Objection (filing no. 81) is denied. To the extent that Defendants ask the court to strike unauthenticated evidence, their Objection is also denied. Indeed, requests to strike are viewed with disfavor and infrequently granted. Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977). The court will consider Plaintiff's filings in accordance with the Federal Rules of Civil Procedure and Evidence, as well as the summary judgment standards set forth in Part II.D.ii below.

Plaintiff asks the court to strike Defendants' Objection. (Filing No. 82.) Again, requests to strike are viewed with disfavor and infrequently granted. Lunsford, 570 F.2d at 229 . Moreover, the court has already denied Defendants' Objection to the extent Defendants asked to strike Plaintiff's Objection and Brief in Opposition, or portions thereof. Plaintiff's Motion to Strike is therefore denied.

C. Motion for Leave to Supplement Evidence

Plaintiff also filed a Motion for Leave to Supplement Evidence. (Filing No. 84.) In the Motion, Plaintiff argues that he is "pro se" and did not know that he needed to provide authenticated evidence with his October 25, 2013, Brief. ( Id. ) Plaintiff has filed an Index of Evidence that corresponds to his request. (Filing No. 85.) Defendants have filed a Brief in Opposition to Plaintiff's Motion arguing that his new evidence is also improperly authenticated. (Filing No. 86.)

The court will grant Plaintiff's Motion for Leave to Supplement Evidence (filing no. 84) and consider his Index of Evidence (filing no. 85) in accordance with the Federal Rules of Civil Procedure and the summary judgment standards set forth in Part II.D.ii below.

D. Motions for Summary Judgment

This court's local rules require a party moving for summary judgment to set forth "a separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitle[] 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 brief a concise response to the moving party's statement of material facts." NECivR 56.1(b)(1). The non-moving party's response must "state the number of the paragraph in the movant's statement of material facts that is disputed" and must contain pinpoint citations to the evidence upon which the non-moving party relies. Id. "Properly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response." Id. (emphasis omitted).

Plaintiff and Defendants have each filed Motions for Summary Judgment. (Filing Nos. 50 and 72.) Plaintiff and Defendants have also submitted statements of material facts, and responses to those facts. ( See Filing Nos. 51, 74, and 79.) Accordingly, this matter is deemed fully submitted and the court adopts the following relevant undisputed material facts.

i. Relevant Undisputed Material Facts

1. Plaintiff Arrmon H. Daugherty is currently confined in the U.S. Penitentiary in Leavenworth, Kansas. (Filing No. 1 at CM/ECF p. 1.)

2. At all times pertinent hereto Officer Jay Denzin ("Denzin"), Officer Derek Hose ("Hose") and Officer Robert Smith ("Smith") were law enforcement officers for the City. (Filing Nos. 73-2, 73-3, 73-4.)

3. On August 23, 2009, Plaintiff was unlawfully operating a motor vehicle in the City while under the influence of alcohol and drugs. (Filing No. 73-1 at CM/ECF p. 1.) Plaintiff was operating a motor vehicle in excess of the posted speed limits in the City. ( Id. at CM/ECF p. 6.).

4. On August 23, 2009, plain clothes officers informed Denzin that a maroon Cadillac had accelerated through a red light and was later seen crossing the yellow center line of the street. Denzin observed the Cadillac in front of a vehicle operated by the plain clothes officers. Denzin then initiated a traffic stop. The maroon Cadillac pulled over to the side of the road. As Denzin exited his police cruiser and began approaching the maroon Cadillac, it accelerated and fled. (Filing No. 73-2 at CM/ECF pp. 2-3.)

5. After the Cadillac fled, Denzin and Hose initiated a motor vehicle pursuit. Denzin observed the Cadillac strike a parked vehicle at 32nd and Q streets, then continue northbound on 32nd Street, and then westbound onto R Street. During the pursuit, Denzin and Hose communicated their location and the Cadillac's erratic driving over the police communication radio system. Denzin and Hose also responded to questions posed by Sergeant Justin Armstrong ("Armstrong"). (Filing No. 73-2 at CM/ECF p. 3; Filing No. 73-3 at CM/ECF p. 3.)

6. On August 23, 2009, at approximately 0346 hours, Smith heard over the police communication radio system that LPD officers were initiating a traffic stop at 33rd and P streets. Smith then heard the officers initiate a pursuit of a maroon Cadillac and that the vehicle was traveling north, and then west on R Street. Smith remained at his location near 27th and R streets. Smith then observed a maroon Cadillac approach his location at a high rate of speed. (Filing No. 73-4 at CM/ECF p. 3.)

7. Smith heard the Cadillac brake sharply when it came upon a T-shaped intersection at 27th Street. Denzin and Hose observed the Cadillac's brake lights. Denzin, Hose, and Smith observed the vehicle travel across 27th Street and strike a light pole. (Filing No. 73-4 at CM/ECF p. 3; Filing No. 73-2 at CM/ECF p. 3; Filing No. 73-3 at CM/ECF p. 3; Filing No. 73-1 at CM/ECF p. 2.)

8. Denzin and Hose heard Armstrong terminate the motor vehicle pursuit approximately a half of a second before the Cadillac struck the light pole. Denzin and Hose did not have an opportunity to acknowledge Armstrong's order before the Cadillac's accident ...


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