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Kinkus v. Village of Yorkville

March 13, 2007

ROBERT KINKUS, PLAINTIFF,
v.
THE VILLAGE OF YORKVILLE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Algenon L. Marbley

Magistrate Judge King

OPINION AND ORDER

I. INTRODUCTION

This matter is before the Court on two Motions for Summary Judgment filed by Plaintiff Robert Kinkus ("Kinkus") and five Motions for Summary Judgment filed by Defendants. Additionally, Defendants have filed three Motions to Strike.

In Defendant Officer James Popp's ("Officer Popp") first Motion for Summary Judgment, he asserts that he is entitled to qualified immunity on Plaintiff's 42 U.S.C. § 1983 claim that Officer Popp violated Plaintiff's First and Fourth Amendment rights.*fn1 In Plaintiff's first Motion for Summary Judgment, he states that there are no genuine issues of material fact regarding whether Officer Popp or Police Chief Gary Anderson ("Chief Anderson") violated 42 U.S.C. § 1983 by retaliating against him for exercising his right to free speech under the First Amendment. In this Motion, Plaintiff also moves for summary judgment against Officer Popp and Chief Anderson on Count II, a claim based upon an alleged "unlawful civil conspiracy" in violation of 42 U.S.C. § 1983. Officer Popp and Chief Anderson oppose this Motion, and in two separate Motions of their own, cross-move for summary judgment. In his second Motion for Summary Judgment, Plaintiff moves for Summary Judgment against the City of Yorkville, Ohio ("Yorkville") on Count III, a Monell claim. Yorkville also filed a Cross-Motion for Summary Judgment on the Monell claim. Finally, Defendants have filed three Motions to Strike various notices and responses of Plaintiff. For the reasons stated herein, the Court:

1) DENIES Officer Popp's Summary Judgment Motion based on Qualified Immunity (Doc. 68);

2) DENIES Plaintiff's Motion for Summary Judgment based on Retaliation against Officer Popp (Doc. 71);

3) GRANTS Plaintiff's Motion for Summary Judgment based on Retaliation Against Chief Anderson (Doc. 71);

4) DENIES Chief Anderson's Motion for Summary Judgment on Plaintiff's Retaliation Claim (Doc. 76);

5) DENY Plaintiff's Motion for Summary Judgment on his Conspiracy Claim against Officer Popp (Doc 71);

6) DENIES Plaintiff's Motion for Summary Judgment on his Conspiracy Claim against Chief Anderson (Doc. 71);

7) DENIES Officer Popp's Motion for Summary Judgment on Plaintiff's Conspiracy Claim (Doc. 73);

8) DENIES Chief Anderson's Motion for Summary Judgment on Plaintiff's Conspiracy Claim (Doc. 76);

9.) MOOTS Defendants' Motion to Strike Plaintiff's Notice (Doc. 83);

10.) MOOTS Officer Popp's Motion to Strike Plaintiff's Notice (Doc. 94);

11.) DENIES Chief Anderson's Motion to Strike Plaintiff's Opposition to Chief Anderson's Motion for Summary Judgment (Doc. 96);

12.) GRANTS Plaintiff's Summary Judgment Motion on his Monell claim against Yorkville (Doc. 72);

13.) DENIES Yorkville's Motion for Summary Judgment on Plaintiff's Monell claim (Doc. 77); and

14.) DENIES Officer Popp's Motion for Summary Judgment on Plaintiff's Retaliation Claim (Attachment to Doc. 111)

II. BACKGROUND

A. FACTS

On September 18, 2004, weather conditions caused a flood in Yorkville, Ohio.*fn2 Because of the rising floodwaters, many of Yorkville's streets were closed to traffic, including Ohio Route 7, the major street running through the Ohio River Valley.

On the day of the flood in Yorkville, Officer James Popp, a police officer with the Yorkville Police Department, was patrolling the low-lying south side area of Yorkville when he encountered Jim Bailey ("Bailey"), a fireman with the Yorkville Fire Department. During a conversation between Officer Popp and Bailey, a woman approached them and requested that they remove some barricades that were blocking Fayette Street so that she could move her vehicle. Officer Popp and Bailey agreed to move the barricades from Fayette Street temporarily for the woman.

After they moved the barricades from Fayette Street, Officer Popp and Bailey observed a white jeep (hereinafter, the "Jeep") pull into the area that was formerly blocked off, and they saw the Jeep park in the middle of Fayette Street. Officer Popp and Bailey walked toward it to determine why the driver had parked in that area. When they approached the Jeep, Officer Popp and Bailey identified the driver as Plaintiff, who was, at the time of the incident, a member of the Yorkville Village Council and the assistant fire chief for the Yorkville Fire Department. The Jeep was parked in the middle of the street in front of Plaintiff's residence. Officer Popp and Plaintiff conversed about why the Jeep was parked in the middle of the Street. Plaintiff did not move the Jeep from the middle of the street after his conversation with Officer Popp, and Officer Popp and Bailey eventually left the area. Officer Popp did not file any charges against Plaintiff on the day of the incident.

After discussing this incident with Police Chief Anderson and other officers in the Yorkville Police Department, Officer Popp filed a criminal complaint against Plaintiff on October 21, 2004 (the "Criminal Complaint"), which accused Plaintiff of committing disorderly conduct on September 18, 2004. Plaintiff was not arrested or jailed as a result of the Criminal Complaint; rather, Plaintiff was presented with a criminal summons. After a short bench trial in state court, Plaintiff was acquitted of the disorderly conduct charge on December 30, 2004.

B. PROCEDURAL HISTORY

On October 11, 2005, Plaintiff filed a complaint in federal court against the Village of Yorkville, Ohio, Yorkville Police Chief Gary Anderson, and Officer Popp (collectively, "Defendants"). Plaintiff's complaint alleges that Defendants are liable to him on three separate legal bases: (1) Defendants' acts "constitute violations of the rights of Mr. Kinkus guaranteed by 42 U.S.C. § 1983, and the First, Fourth, and Fourteenth Amendments to the United States Constitution"; (2) Defendants' acts "constituted an unlawful civil conspiracy to violate [Plaintiff's] rights"; and (3) Defendants' acts "were proximately caused by certain customs and policies engaged in by Defendant Village of Yorkville, including but not limited to a failure adequately to train, supervise, and discipline officers regarding the constitutional rights of citizens; and the ratification and approval of retaliatory prosecutions to silence critics." Pl.'s Compl. at 5. Plaintiff seeks compensatory and punitive damages, attorney fees, and court costs.

On January 10, 2006, Plaintiff filed a Motion for Partial Summary Judgment on his claims against Officer Popp. Specifically, Plaintiff moved for Summary Judgment against Officer Pop on two of the three 42 U.S.C. § 1983 claims in Count I. On September 28, 2006, the Court granted summary judgment in favor of Plaintiff on these two claims.

On December 4, 2006, Officer Popp filed a motion for reconsideration of this Court's September 28, 2006 order. On February 9, 2007, this Court denied Officer Popp's motion for reconsideration.

The Parties have filed various Motions for Summary Judgment and Motions to Strike. They have also timely filed responses and replies. As such, these Motions are ripe for decision.

III. STANDARD OF REVIEW

The standard of review for cross-motions of summary judgment does not differ from the standard applied when a motion is filed by only one party to the litigation. Taft Broad. Co. v. U.S., 929 F.2d 240, 248 (6th Cir. 1991). "The fact that both parties have moved for summary judgment does not mean that the court must grant judgment as a matter of law for one side or the other; summary judgment in favor of either party is not proper if disputes remain as to material facts. Rather, the court must evaluate each party's motion on its own merits. . .". Id. (citations omitted).

Summary judgment is appropriate "[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "[S]ummary judgment will not lie if the dispute is about a material fact that is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (concluding that summary judgment is appropriate when the evidence could not lead the trier of fact to find for the non-moving party). In evaluating motions for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). In the case of cross-motions, the Court must "tak[e] care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Taft, 929 F.2d at 248. The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the non-moving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). Significantly, in responding to a motion for summary judgment, however, the non-moving party "may not rest upon its mere allegations . . . but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P.56(e); see Celotex, 477 U.S. at 324; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994).

The non-moving party must present "significant probative evidence" to show that there is more than "some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). Furthermore, the mere existence of a scintilla of evidence in support of the non-moving party's position will not be sufficient; there must be evidence on which the jury could reasonably find for the non-moving party. Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252).

IV. LAW and ANALYSIS

A. Officer Popp's Motion for Summary Judgment Based on Qualified Immunity

Officer Popp moves for summary judgment on Count I of Plaintiff's complaint, which, among other things, alleges that Officer Popp violated 42 U.S.C. ยง 1983 by abridging Plaintiff's First and Fourth Amendment rights. Officer Popp makes various arguments in support of this Motion, not the least of which is that he had probable cause to arrest Plaintiff for disorderly conduct or for failure to obey the directive of a police officer. With the exception of Officer Popp's assertion that he is entitled to qualified immunity for all of Plaintiff's Section 1983 claims, this Court addressed all of Officer Popp's arguments in its Order and Opinion granting Plaintiff partial summary judgment on his claim that Officer ...


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