Houck v. City of Prairie Village, Kan.

912 F. Supp. 1428

John F. HOUCK, Jr., Plaintiff, v. CITY OF PRAIRIE VILLAGE, KANSAS and Charles F. Grover and Barbara Vernon, Defendants.

No. 95-4066-RDR.

United States District Court, D. Kansas.

January 16, 1996.

COPYRIGHT MATERIAL OMITTED

Harold S. Youngentob, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, for John F. Houck, Jr.

Patricia A. Bennett, Bennett, Lytle, Wetzler, Martin & Pishny, L.C., Prairie Village, KS, Steven D. Steinhilber, Thaddeus J. McDonald, III, Sherman, Taff & Bangert, P.C., Kansas City, MO, for City of Prairie Village, Kansas.

Patricia A. Bennett, Bennett, Lytle, Wetzler, Martin & Pishny, L.C., Prairie Village, KS, David W. Hauber, Boddington & Brown, Chtd., Kansas City, KS, for Charles F. Grover, Barbara Vernon.

MEMORANDUM AND ORDER

ROGERS, Senior District Judge.

This case arises from actions surrounding the arrest of plaintiff and his termination from employment as a police officer with the City of Prairie Village. Plaintiff has filed a complaint asking for relief under: the Civil Rights Act of 1991; Title VII of the Civil Rights Act of 1964; 42 U.S.C. § 1983; the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.; the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq.; and Kansas common law for breach of implied contract and outrage. Plaintiff also alleges violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., although this statute is mentioned only in the text of the complaint, not in the headings of the counts or in the opening paragraphs of the complaint which describe the "nature of the case."

This case is now before the court upon defendants Charles Grover's and Barbara Vernon's motion to dismiss and for summary judgment. In response to the instant motion, plaintiff has conceded the dismissal with prejudice of Barbara Vernon. Accordingly, the court shall focus upon the claims against defendant Charles Grover.¹

Allegations in verified complaint and uncontroverted facts

Plaintiff was hired as a police officer by the City of Prairie Village, Kansas on August 22, 1988. Defendant Charles Grover is the chief of police for the City of Prairie Village. Defendant Grover has been the chief of police since March 1991. Plaintiff has a history of acute depression, which led to his discharge from the United States Marine Corps before he was hired by Prairie Village. The city was aware of plaintiff's medical history when plaintiff was hired. The city was also aware that plaintiff had made several attempts at suicide and that he was under the care of a psychiatrist.

On February 5, 1994, a Saturday, plaintiff and his wife, Sherry, were arguing at their home. Plaintiff had been drinking. Plaintiff told his wife to leave. Then, in an upstairs bedroom, he placed his service revolver to his chin and pulled the trigger. Plaintiff flinched, so the bullet did not strike him. Sherry Houck called 911 for an ambulance. Police officers were dispatched to the scene.

Plaintiff was arrested and charged with domestic battery and battery on a law enforcement officer. The domestic battery charge arose from the fight plaintiff had with his wife, prior to the suicide attempt. Plaintiff allegedly struck his wife in the back, causing red marks. The battery on a law enforcement officer charge arose from allegations that plaintiff pushed an officer off the porch of plaintiff's home. Plaintiff alleges the arrest was improper. He asserts that other persons suffering mental illness who have threatened suicide and discharged weapons have not been charged with a crime, but instead have been taken to a hospital for evaluation. Plaintiff claims this is standard operating procedure which was not followed in his case. Defendant asserts that the discretion to hospitalize someone is only exercised when that person has not committed a crime against another person.

Plaintiff was held at the Johnson County Adult Detention Facility under suicide watch until February 7, 1994, a Monday, when he was released on bond and transferred to a psychiatric hospital. Plaintiff also claims he was improperly incarcerated at the detention facility and denied prompt medical attention.

The criminal charges were eventually resolved through a diversion agreement. In the agreement plaintiff acknowledged that the Johnson County District Attorney's Office believed he was guilty of the crimes charged.

Plaintiff was placed on administrative leave status pending investigation by virtue of a memo dated February 7, 1994. On February 23, 1994, defendant Grover received an internal affairs report, which included statements from plaintiff and his wife. The report concluded that plaintiff committed battery upon his wife and upon a law enforcement officer and that he violated police regulations. It was recommended that plaintiff be terminated. A noninvestigating officer concurred in the recommendation two days later. Plaintiff's status was then changed to regular duty and attempts were made to schedule a disciplinary hearing. Plaintiff was informed that he should contact defendant Grover when he was released from inpatient care.

Plaintiff was released from the hospital on February 28, 1994. On March 9, 1994, defendant Grover wrote plaintiff that a disciplinary hearing date was set for March 14, 1994 and that if he could not be present for medical reasons his doctor should contact Grover. Plaintiff's doctor, Dr. L'Ecuyer, wrote defendant Grover that plaintiff was unable to participate in the hearing for medical reasons and that the hearing should be postponed for four to six weeks. In a later letter, solicited by defendant Grover, Dr. L'Ecuyer stated that plaintiff had been under care for major depression of the bipolar type in which he had had irritable manic episodes. The doctor further indicated that medication and shock therapy had been used. Finally, the doctor stated that plaintiff's physicians were trying to find a medication which prevented the manic periods and would allow plaintiff to maintain an even keel and return to normal functioning. Defendant Grover responded by thanking the doctor for the information and asking when plaintiff could participate in "personnel-type meetings."

The police department made further inquiry regarding plaintiff's condition on April 21, 1994. A Dr. Kisker informed the department that plaintiff "may be able to attend" a hearing in two to four weeks. On June 1, 1994, Lt. Gary Pruitt of the police department wrote plaintiff to ask if he could return to the department for an administrative hearing.

On September 27, 1994, defendant Grover wrote plaintiff to inform him that a disciplinary hearing was scheduled for October 12, 1994. The letter stated that the purpose of the hearing was to provide plaintiff with the opportunity to be heard in an effort to establish the facts of the February 5, 1994 incident. The letter also expressed a willingness to consider a request for representation at the hearing.

Apparently, plaintiff and defendant Grover spoke on the telephone around the date of the proposed hearing. Plaintiff followed up the conversation with a letter which stated:

After our conversation Tuesday, 10/12/94, I believe that it would be in my best interest to waive my right to appear at the disciplinary hearing.

Because of my illness on the date of occurrence and the resultant memory loss caused by the illness and resulting treatments, I feel that I cannot add anything more to what has already been reported. I do not think that an advocate could argue accurately on my behalf.

I do believe that the supervisor on the scene did not consider the possibility of encountering a mentally ill subject, thereby denying me to immediate medical attention. I would ask you to consider the effect that my illness had on the events of 02/05/94 and my previous work record with the department.

On October 24, 1994, defendant Grover wrote plaintiff acknowledging plaintiff's letter waiving his appearance at a hearing. Grover's letter further indicated he told plaintiff the hearing would give plaintiff the opportunity to present evidence and arguments. Since plaintiff waived the hearing, defendant Grover stated that he would review the file and take into account the facts, findings and recommendations expressed by staff members.

On November 4, 1994, defendant Grover wrote plaintiff to inform him that Grover believed a preponderance of the evidence supported the findings that he committed domestic battery, battery on a law enforcement officer, and violations of the police code of conduct. The letter further informed plaintiff that a pretermination hearing was scheduled for November 18, 1994. There, plaintiff would have the opportunity to explain any extenuating circumstances with regard to determining an appropriate sanction for the above-mentioned violations.

On November 14, 1994 plaintiff wrote a letter to defendant Grover, which said:

I understand that the case against me, based solely on the reports submitted, seems black and white. However, as you already know, neither Sherry or I were interviewed during the final investigation. It is possible that we can present a different viewpoint on the incident.

Once again I would like to ask you to consider my illness and how it affected the incident. This was not a normal case of spousal abuse. It occurred during the mania stage of my illness; a time of which I was suicidal and interested in only that. I did not try to harm anyone, including Officer Thomas.

I also ask that you consider my prior record.

On November 29, 1994, defendant Grover wrote plaintiff and stated that after reviewing the relevant files, plaintiff's past record and facts brought to light in plaintiff's letter, he had concluded that plaintiff's employment should be terminated.

Plaintiff asserts that, under city policy and procedures, he should have been placed on disability status until he was competent for other duties, instead of being forced into a disciplinary...