Boyd v. Victoria, City of et al, No. 5:2016cv04106 - Document 61 (D. Kan. 2017)

Court Description: MEMORANDUM AND ORDER granting 32 , 39 Motions for Summary Judgment. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 8/18/17. Mailed to pro se party Lisa Boyd by regular mail (msb)

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Boyd v. Victoria, City of et al Doc. 61 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS LI SA BOYD, Plaint iff, vs. Case No. 16- 4106- SAC CI TY OF VI CTORI A, KANSAS; ELLI S COUNTY, KANSAS; MARY PFEI FER; COLE DI NKEL; WI LMER DI NKEL; RYAN MAUCH; CURTI S UNREI N; SHERI FF ED HARBI N; and UNKNOWN ELLI S COUNTY, KANSAS EMPLOYEES. Defendant s. MEMORANDUM AND ORDER The case com es before t he court on t he following sum m ary j udgm ent m ot ions t hat are ripe for decision: t he defendant s Cit y of Vict oria, Mary Pfeifer, Cole Dinkel, Ryan Mauch and Curt is Unrein ( ECF# 32) ( “ Vict oria defendant s” ) and t he defendant s Ellis Count y, Sheriff Ed Harbin, Wilm er Dinkel and unknown Ellis Count y em ployees ( ECF# 39) ( “ Ellis Count y defendant s” ) . The pro se plaint iff Lisa Boyd has filed responses t o bot h m ot ions, ( ECF# # 47 and 58) , and t he defendant s have replied respect ively ( ECF# # 59 and 60) . Ms. Boyd brings t his lawsuit alleging 16 count s for relief pursuant t o 42 U.S.C. §§ 1983 and 1985 and pursuant t o st at e t ort law. ECF# 1. The fact ual set t ing for her com plaint , as alleged, is t hat Ms. Boyd Dockets.Justia.com m oved t o t he sm all t own of Vict oria, Kansas, som et im e in 1998, and she soon cam e t o believe she was t he t arget of a civil conspiracy int ent t o drive her int o leaving Vict oria. ECF# 1, ¶¶ 24 and 26. Ms. Boyd alleges t he defendant s enforced laws against her, m ade st at em ent s t o her and about her, and also conduct ed t hem selves as t o oppose her int erest s all done in an effort t o discourage her from st aying t here. She alleges t hat her arrest on June 19, 2014, for driving under t he influence ( “ DUI ” ) , as t he culm inat ion of t he defendant s’ effort s. The defendant s seek sum m ary j udgm ent on several different grounds. They charact erize Ms. Boyd’s suit as an unsuccessful financiallym ot ivat ed at t em pt t o t ransform “ a series of unsat isfact ory encount ers wit h t he cit izens, officials and em ployees of t he cit y of Vict oria bet ween 2006 and 2014” int o a plot t o drive her away “ because she did not share t he religion of m any of her neighbors.” ECF# 33, p. 1. The defendant s argue t he fact s show t hat m any of encount ers result ed from calls for help m ade eit her by her or her fam ily. I d. p. 2. The defendant s raise several legal defenses and argue deficiencies in t he evidence t hat prevent t he plaint iff from recovering as a m at t er of law. SUM M ARY JUD GM EN T STAN D ARD S “ Sum m ary j udgm ent is appropriat e only if ‘t he m ovant shows t hat t here is no genuine issue as t o any m at erial fact and t he m ovant is ent it led t o j udgm ent as a m at t er of law.’” Tolan v. Cot t on, ––– U.S. ––––, 2 134 S.Ct . 1861, 1866, 188 L.Ed.2d 895 ( 2014) ( quot ing Fed. R. Civ. P. 56( a) ) . A fact ual disput e is “ m at erial” only if it “ m ight affect t he out com e of t he suit under t he governing law.” Anderson v. Libert y Lobby, 477 U.S. 242, 248 ( 1986) . A “ genuine” fact ual disput e requires m ore t han a m ere scint illa of evidence in support of a part y's posit ion. I d. at 252. The m oving part y has t he init ial burden of show ing “ t he absence of a genuine issue of m at erial fact ,” and, if carried, t he non- m oving part y t hen “ m ust bring forward specific fact s showing a genuine issue for t rial as t o t hose disposit ive m at t ers for which [ it ] carries t he burden of proof.” Nat ional Am erican I ns. Co. v. Am erican Re- I nsurance Co., 358 F.3d 736, 739 ( 10t h Cir. 2004) ( int ernal quot at ion m arks and cit at ion om it t ed) . At t he sum m ary j udgm ent st age, t he court is not t o be weighing evidence, credit ing som e over ot her, or det erm ining t he t rut h of disput ed m at t ers, but is only t o be deciding if a genuine issue for t rial exist s. Tolan, 134 S. Ct . at 1866. The court perform s t his t ask wit h a view of t he evidence t hat favors m ost t he part y opposing sum m ary j udgm ent . I d. Sum m ary j udgm ent m ay be grant ed if t he nonm oving part y's evidence is m erely colorable or is not significant ly probat ive. Libert y Lobby, 477 U.S. at 250–51. Essent ially, t he inquiry is “ whet her t he evidence present s a sufficient disagreem ent t o require subm ission t o t he j ury or whet her it is so one- sided t hat one part y m ust prevail as a m at t er of law.” I d. at 251–52. 3 The Court will not consider st at em ent s of fact , or rebut t als t heret o, which are not m at erial or are not support ed by com pet ent evidence. Fed. R. Civ. P. 56( c) ( 1) ( A) , 56( e) ( 2) , 56( e) ( 3) . “ [ O] n a m ot ion for sum m ary j udgm ent , it is t he responding part y's burden t o ensure t hat t he fact ual disput e is port rayed wit h part icularit y, wit hout depending on t he t rial court t o conduct it s own search of t he record.” Cross v. The Hom e Depot , 390 F.3d 1283, 1290 ( 10t h Cir. 2004) ( int ernal quot at ion and cit at ion om it t ed) . The Court is “ not obligat ed t o com b t he record in order t o m ake [ Plaint iffs'] argum ent s for [ t hem ] .” See Mit chell v. Cit y of Moore, Okla., 218 F.3d 1190, 1199 ( 10t h Cir. 2000) . The court ’s local rule, D.Kan. Rule 56.1, provides: All fact s on which a m ot ion or opposit ion is based m ust be present ed by affidavit , declarat ion under penalt y of perj ury, and / or relevant port ions of pleadings, deposit ions, answers t o int errogat ories, and responses t o request s for adm issions. Affidavit s or declarat ions m ust be m ade on personal knowledge and by a person com pet ent t o t est ify t o t he fact s st at ed t hat are adm issible in evidence. Where fact s referred t o in an affidavit or declarat ion are cont ained in anot her docum ent , such as a deposit ion, int errogat ory answer, or adm ission, a copy of t he relevant excerpt from t he docum ent m ust be at t ached. To be effect ive, sum m ary j udgm ent affidavit s “ m ust be based on personal knowledge and set fort h fact s t hat would be adm issible in evidence at t rial; conclusory and self- serving affidavit s are not sufficient .” Murray v. Cit y of Sapulpa, 45 F.3d 1417, 1422 ( 10t h Cir. 1995) ( quot at ions and cit at ion om it t ed) . To be viable, t he sum m ary j udgm ent affidavit s m ust provide evidence for which t he cont ent would be adm issible even if t he form would not be adm issible. Adam s v. Am erican Guarant ee and Liabilit y I ns. 4 Co., 233 F.3d 1242, 1246 ( 10t h Cir. 2000) ( I nadm issible hearsay evidence m ay not be used in sum m ary j udgm ent ) . “ So it is t hat , alt hough evidence present ed in t he form of an affidavit at sum m ary j udgm ent can be convert ed in form int o live t est im ony at t rial, t he cont ent or subst ance of t he affidavit m ust be ot herwise adm issible, and any hearsay cont ained in a sum m ary j udgm ent affidavit rem ains hearsay, beyond t he bounds of t he court 's considerat ion.” Johnson v. Weld Count y, Colo., 594 F.3d 1202, 1210 ( 10t h Cir. 2010) . “ To defeat a m ot ion for sum m ary j udgm ent , evidence, including t est im ony, m ust be based on m ore t han m ere speculat ion, conj ect ure, or surm ise.” Bones v. Honeywell I nt ’l, I nc., 366 F.3d 869, 875 ( 10t h Cir. 2004) . “ I n a response t o a m ot ion for sum m ary j udgm ent , a part y cannot rest on ignorance of fact s, on speculat ion, or on suspicion and m ay not escape sum m ary j udgm ent in t he m ere hope t hat som et hing will t urn up at t rial.” Conaway v. Sm it h, 853 F.2d 789, 794 ( 10t h Cir. 1988) ( cit at ion om it t ed) . “ [ A] t t he sum m ary j udgm ent st age, st at em ent s of m ere belief in an affidavit m ust be disregarded.” Argo v. Blue Cross and Blue Shield of Kansas, I nc., 452 F.3d 1193, 1200 ( 10t h Cir. 2006) ( int ernal quot at ion m arks and cit at ion om it t ed) . The plaint iff subm it s an affidavit t hat sweepingly st at es, “ st at em ent s of fact m ade by Plaint iff in her Response t o t he Cit y’s Mot ion for Sum m ary Judgm ent . . . are t rue and correct .” ECF# 47- 1, p. 4; ECF# 58, p. 5 7. She also subm it s a num ber of exhibit s, and her cit at ions t o t hem are frequent ly broad and vague. The court will accept as st at em ent s of fact only t hose t hat can be read as st at em ent s of fact , because t hey are based on t he plaint iff’s personal knowledge wit h support ing det ail and are not based on speculat ion, opinion or argum ent . “ The Tent h Circuit has held t hat m erely placing evidence in t he record on sum m ary j udgm ent wit hout point ing t he Court t o it is insufficient : ‘it is t he responding part y's burden t o ensure t hat t he fact ual disput e is port rayed wit h part icularit y, wit hout . . . depending on t he t rial court t o conduct it 's own search of t he record.’” Ney v. Cit y of Hoisingt on, Kan., 508 F. Supp. 2d 877, 883 ( D. Kan. 2007) ( quot ing Cross v. The Hom e Depot , 390 F.3d 1283, 1290 ( 10t h Cir. 2004) ) , aff'd sub nom . Ney v. Cit y of Hoisingt on, Kansas, 264 Fed. Appx. 678 ( 10t h Cir. 2008) ( unpub.) “ I f a part y fails t o properly support an assert ion of fact or fails t o properly address anot her part y's assert ion of fact . . ., t he court m ay: ( 1) give an opport unit y t o properly support or address t he fact ; ( 2) consider t he fact undisput ed for purposes of t he m ot ion; ( 3) grant sum m ary j udgm ent if t he m ot ion and support ing m at erials—including t he fact s considered undisput ed—show t hat t he m ovant is ent it led t o it ; or ( 4) issue any ot her appropriat e order.” Fed. R. Civ. P. 56( e) . Being pro se, Ms. Boyd’s filings are liberally const rued, but t he court will not act as her advocat e. Jam es v. Wadas, 724 F.3d 1312, 1315 ( 10t h Cir. 2013) . Nor will t he court “ sift t hrough t he record t o find support 6 for” her argum ent s. Phillips v. Jam es, 422 F.3d 1075, 1081 ( 10t h Cir. 2005) , Nor will it “ fashion . . . [ her] argum ent s” when her “ allegat ions are m erely conclusory in nat ure and wit hout support ing fact ual averm ent s.” Unit ed St at es v. Fisher, 38 F.3d 1144, 1147 ( 10t h Cir. 1994) ( cit at ion om it t ed) . Ms. Boyd repeat edly st at es t hat she “ cannot present fact s essent ial t o j ust ify her opposit ion absent adequat e t im e t o obt ain affidavit s or t ake discovery and so st at es pursuant t o Rule FRCP 56( d) .” ECF# # 47 and 58. An opposing part y who want s t he m ot ion eit her deferred or denied “ m ust file an affidavit t hat explains why fact s precluding sum m ary j udgm ent cannot be present ed” and t hat also ident ifies “ t he probable fact s not available and what st eps have been t aken t o obt ain t hese fact s.” Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 ( 10t h Cir.) ( cit at ion om it t ed) , cert . denied, 562 U.S. 968 ( 2010) ; see also Garcia v. U.S. Air Force, 533 F.3d 1170, 1179 ( 10t h Cir. 2008) ( “ A part y m ay not invoke Rule 56( f) by sim ply st at ing t hat discovery is incom plet e but m ust st at e wit h specificit y how t he addit ional m at erial will rebut t he sum m ary j udgm ent m ot ion.” ) . Ms. Boyd’s blanket st at em ent of needing m ore t im e lacks t he required explanat ion and det ail. I n t heir m ot ions, t he defendant s have blended t heir argum ent s t o incorporat e even challenges t o pleading based on Rule 12( b) ( 6) . I n addressing t hose argum ent s, t he court applied t he following. The court accept s as t rue “ all well- pleaded fact ual allegat ions in a com plaint and 7 view[ s] t hese allegat ions in t he light m ost favorable t o t he plaint iff.” Sm it h v. Unit ed St at es, 561 F.3d 1090, 1098 ( 10t h Cir. 2009) , cert . denied, 558 U.S. 1148 ( 2010) . This dut y t o accept a com plaint 's allegat ions as t rue is t em pered by t he principle t hat “ m ere labels and conclusions, and a form ulaic recit at ion of t he elem ent s of a cause of act ion w ill not suffice; a plaint iff m ust offer specific fact ual allegat ions t o support each claim .” Kansas Penn Gam ing, LLC v. Collins, 656 F.3d 1210, 1214 ( 10t h Cir. 2011) ( quot ing in part Bell At l. Corp. v. Twom bly, 550 U.S. 544, 555 ( 2007) ( int ernal quot at ion m arks om it t ed) ) . To wit hst and a Rule 12( b) ( 6) m ot ion, “ a com plaint m ust cont ain enough allegat ions of fact , t aken as t rue, t o st at e a claim t o relief t hat is plausible on it s face.” Al–Owhali v. Holder, 687 F.3d 1236, 1239 ( 10t h Cir. 2012) ( quot ing Ashcroft v. I qbal, 556 U.S. 662, 678 ( 2009) ) . Thus, “ a plaint iff m ust offer sufficient fact ual allegat ions t o ‘raise a right t o relief above t he speculat ive level.’” Kansas Penn Gam ing, 656 F.3d at 1214 ( quot ing Twom bly, 550 U.S. at 555) . “ The plausibilit y st andard is not akin t o a ‘probabilit y requirem ent ,’ but it asks for m ore t han a sheer possibilit y t hat a defendant has act ed unlawfully.'” I qbal, 556 U.S. at 678 ( quot ing Twom bly, 550 U.S. at 556) . “ ‘A claim has facial plausibilit y when t he [ pleaded] fact ual cont ent . . . allows t he court t o draw t he reasonable inference t hat t he defendant is liable for t he m isconduct alleged.’” Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1178 ( 10t h Cir. 2012) . STATEM EN T OF FACTS 8 Ms. Boyd m oved t o Vict oria, Kansas in 1998, and Cole Dinkel becam e Vict oria Police Depart m ent ’s ( “ VPD’s” ) Chief of Police ( “ Chief” ) in May of 2008. Over t he years, Chief Dinkel in his official capacit y has had num erous cont act s wit h t he plaint iff Ms. Boyd. For exam ple, in June of 2010, he invest igat ed a report ed burglary and t heft at t he plaint iff’s shop which result ed in a confession by t he perpet rat or. I n Sept em ber of 2010, t he plaint iff’s adult daught er m ade a dist urbance call report ing t hat t he plaint iff had been hit by t he plaint iff’s boyfriend, Bent ham . Chief Dinkel went t o t he plaint iff’s hom e and saw her bruises, but t he plaint iff refused t o t ell him what had happened. Several days lat er, t he plaint iff t old Chief Dinkel what had happened, but she said she did not want Bent ham t o be arrest ed, but only rem oved. I n Novem ber of 2011, t he VPD received m ult iple calls of fight ing bet ween t he plaint iff and Bent ham which ended in Bent ham ’s arrest . When released, Bent ham was ordered not t o have cont act wit h t he plaint iff, but t he plaint iff cont inued t o cont act Bent ham even aft er she was t old t o st op. The VPD received inform at ion t hat t he plaint iff was harassing Bent ham , t hreat ening t o get him , and speaking ill of him . The VPD also received a report from anot her cit izen who com plained t hat t he plaint iff had ent ered his residence wit hout perm ission t o rant about Bent ham . The plaint iff does not effect ively cont rovert t his st at em ent . 9 The plaint iff report ed credit card fraud in February of 2012. Aft er VPD Officer Ryan Mauch’s invest igat ion of it , t he VPD underst ood t he plaint iff had been refunded t he m oney. The plaint iff’s evidence does not cont rovert Chief Dinkel’s averm ent s t hat t he plaint iff did not subsequent ly cont act t he VPD about t his credit card debt and t hat he never refused t o t ake from t he plaint iff a report of ident it y t heft . I n June of 2012, t he plaint iff’s adult daught er, Sara, cont act ed t he VPD wit h a report t hat t he plaint iff would not leave Sara’s hair salon. The incident resolved w it h t he plaint iff leaving and no act ion being t aken. On Sept em ber 6, 2012, a cit izen report ed t o t he VPD t hat t here was apparent drug act ivit y in t he plaint iff’s yard. Officer Mauch m ade cont act wit h t he plaint iff and Bent ham . Finding no evidence of drug act ivit y, no furt her act ion was t aken. The Cit y of Vict oria m aint ains one “ hard copy” of it s ordinances in several volum es, none of which m ay be rem oved from t he cit y office. Upon a cit izen’s request t o see cert ain ordinances, t he relevant ones are ident ified and produced for viewing. The affidavit of Cit y Clerk Mary Pfeifer st at es t hat t he plaint iff was never refused access t o t he cit y ordinances. The plaint iff refers t o several inst ances when Pfeifer effect ively denied her request s t o “ see a ll of t he ordinances” at t he sam e t im e. ECF# 47, ¶ 30 ( bolding added) . 10 On Sept em ber 6, 2012, plaint iff went int o t he Cit y Clerk’s office, “ slam m ed her hands on t he count er and began ram bling and com plaining loudly, yelling and behaving in what t he clerk and assist ant perceived t o be a bizarre, aggressive, and t hreat ening m anner.” ECF# 33, ¶ 31. The plaint iff referred t o herself as crazy. Fright ened and alarm ed, t he Cit y Clerk called t he VPD, and t he plaint iff t hen left . The plaint iff’s unsupport ed and unexplained use of “ cont rovert ed” and her st at em ent s concerning her subj ect ive int ent do not effect ively cont rovert t hese st at em ent s of fact . The defendant VPD Officer Ryan Mauch st opped t he plaint iff as she was driving from t he cit y hall and arrest ed her for disorderly conduct . Aft er t he plaint iff was booked and released on an OR bond, t he officer gave her a ride hom e. Lat er t hat sam e day, a hand- let t ered sign appeared in t he plaint iff’s front yard t hat read, “ St . Fidelis- Always Fait hful t o Pedophiles.” I n her com plaint , t he plaint iff alleges t hat aft er her disorderly conduct arrest she allowed her boyfriend Bent ham t o put up t his sign in her yard, because he wished t o express his opinion on t his subj ect . At paragraphs 88 and 89 of her com plaint , t he plaint iff alleges t hat in regard t o t his incident she “ hoped t hat som e feat her ruffling m ight st op or slow t he cit y’s harassm ent act ivit ies,” but she “ was m ist aken in t his hope.” ECF# 1. The VPD received calls about t he plaint iff’s sign. VPD Officer Mauch inst ruct ed t he plaint iff t o rem ove t he sign from t he cit y’s right of way, and when t he plaint iff prom ised t o com ply, Mauch left . Chief Dinkel st opped by lat er, and he t oo discussed 11 t he sit uat ion wit h t he plaint iff and Bent ham . Cit izens were not icing t he sign and obj ect ing t o it . Dinkel recalls Ms. Boyd saying t he t own disliked her t o which he replied t hat t he sign did not help. The plaint iff’s st at em ent does not effect ively cont rovert any of t he m at erial fact s here. According t o Chief Dinkel, t he plaint iff began alleging harassm ent and dem anding m oney from t he cit y for it . She also t hreat ened t o replace her St . Fidelis sign if t he cit y did not pay her. Chief Dinkel t old t he plaint iff t hat she was free t o replace her sign and t hat he could not st op her. The plaint iff’s blanket st at em ent of “ cont rovert ed” is insufficient . Because t his st at em ent addresses what t he plaint iff purport edly said at a part icular point in t im e, t he plaint iff offers not hing t o show how her cont rovert ing evidence is unavailable. On Sept em ber 11, 2012, t he owner of t he shop which t he plaint iff leased asked t he VPD t o provide a civil st andby as he served an evict ion not ice on t he plaint iff. Chief Dinkel perform ed t his dut y, and no arrest s w ere m ade. Lat er t hat sam e day, t he plaint iff cont act ed a cit y council m em ber and Mayor Unrein in regards t o t his evict ion, and Chief Dinkel received cit izen phone calls com plaining t hat t he plaint iff had re- erect ed her St . Fidelis sign. Chief Dinkel went t o t he plaint iff’s house and t hey discussed t he sit uat ion. He did not request or order her t o rem ove t he sign, and he t old her t hat he was t here t o prot ect her and her propert y. The plaint iff event ually rem oved t he sign. 12 On June 16, 2013, Chief Dinkel received a cit izen’s com plaint t hat t he plaint iff had gone t o a residence and yelled at t he cit izen in front of his children and had left harassing m essages on his cell phone. Chief Dinkel spoke wit h t he plaint iff and m ediat ed t he issues bet ween t he cit izen and t he plaint iff. During t his event , Chief Dinkel observed t he plaint iff engage in disorderly conduct by com ing out side in boxer short s and t hen yelling and cursing. Chief Dinkel repeat edly warned t he plaint iff who went back inside wit hout any furt her act ion being t aken. On July 3, 2013, t he plaint iff’s adult daught er called 911 t o report t hat t he plaint iff was not allowing her and her 6- year- old son t o leave t he plaint iff’s hom e. Chief Dinkel responded and saw t he plaint iff physically blocking t he young boy from leaving t he yard and j oining his m ot her. The plaint iff accused her daught er of being an unfit m ot her. Chief Dinkel allowed t he daught er and her son t o leave, and he t ook no act ion against t he plaint iff. On July 17, 2013, Chief Dinkel responded t o a cit izen call t hat t he plaint iff was violat ing t he Cit y’s wat er use rest rict ions. Chief Dinkel explained t he rest rict ions, and t he plaint iff accept ed t he warning. No furt her act ion was t aken. I n June of 2014, Bent ham as occupant of t he plaint iff’s house was served wit h a warning let t er t hat t he lawn veget at ion violat ed t he cit y’s environm ent al code. On June 17, 2014, Chief Dinkel followed up on t he 13 warning let t er and saw t hat t he yard st ill did not com ply. He discussed t he sit uat ion wit h t he plaint iff who dem anded t o see t he governing ordinance. So, Chief Dinkel went wit h t he plaint iff t o Cit y Hall where he m ade a copy of t he ordinance for her. The plaint iff com plained t hat ot her yards in Vict oria were also in violat ion of t his ordinance, and Chief Dinkel responded t hat t hey were being addressed t oo. The plaint iff’s st at em ent s t o Chief Dinkel included t he com m ent t hat t he cit izens of Vict oria were Nazis. On June 19, 2014, Chief Dinkel received m ult iple calls from cit izens com plaining t hat t he plaint iff was highly int oxicat ed and was scream ing at Bent ham in front of t he church. Anot her report cam e in t hat t he plaint iff was yelling obscenit ies at t hree j uvenile boys who were riding bikes in t he area. Chief Dinkel went t o t he area and spoke wit h t he boys who confirm ed t he report ed com plaint . He t hen observed t he plaint iff driving her vehicle. She m ade a t urn wit hout using a t urn signal and t hen st opped at her hom e leaving one wheel up over t he curb. When Chief Dinkel m ade cont act wit h her, t he plaint iff was loud, belligerent , and used obscene language. Chief Dinkel sm elled a st rong odor of alcohol on t he plaint iff. The plaint iff consent ed t o t aking a prelim inary breat h t est , and t he blood alcohol result was .117. Chief Dinkel arrest ed t he plaint iff and t ook her t o t he Law Enforcem ent Cent er in Hays. At t he Cent er, t he plaint iff agreed t o a breat h t est , and t he result s were .104. The plaint iff t hen insist ed on a blood t est , and Chief Dinkel inform ed t he plaint iff t hat addit ional t est ing would be at her 14 expense. The plaint iff was t aken t o t he Hays Medical Cent er ( “ hospit al” ) , and t he blood t est result s were .084. While at t he hospit al, t he plaint iff also asked for and received t reat m ent and m edicat ion for a t oot hache and blood pressure problem . Upon her release from t he hospit al, Chief Dinkel t ook t he plaint iff t o t he j ail where she was booked in at 7: 40 p.m . The plaint iff has not effect ively cont rovert ed any of t he above fact s. The plaint iff assert s t he hospit al gave her prescript ions for pain m edicat ion, ant ibiot ic, and blood pressure m edicat ion which were not filled by t he j ail or count y personnel. St aff at t he Ellis Count y j ail did not observe t he plaint iff t o be suffering from any serious or life- t hreat ening healt h while she was det ained from t he evening of June 19 t hrough her release t he next m orning on June 20 short ly aft er 11: 00 am . Ot her t han com plaining about a t oot hache, she did not advise st aff of any serious m edical issues or healt h condit ions. While t he plaint iff denies filling out and signing an int ake form indicat ing no serious current healt h problem s, t he plaint iff does not cont rovert what t he st affers observed regarding her condit ion. The plaint iff denies being given an opport unit y t o advise st aff of her m edical condit ions. Nonet heless, it is uncont rovert ed t hat on June 20t h before she was t aken t o court and released on bond, j ail st aff t ransport ed t he plaint iff t o an urgent care cent er across t he st reet around 8: 15 a.m . based on t he plaint iff’s com plaint s of a t oot hache. While at t his urgent care cent er, she again t ook m edicat ion for her blood pressure, was encouraged t o get her ant ibiot ic prescript ion filled, 15 was t o have her blood pressure m onit ored while incarcerat ed, and was t o follow up wit h dent al care following her release. She was ret urned t o her j ail cell at 9: 10 a.m . on June 20, t ransport ed t o dist rict court at 11: 10 a.m ., and was bonded out at approxim at ely 11: 23 a.m . When t he plaint iff was booked int o j ail, she was placed in a cell wit h anot her fem ale det ainee due t o t he high num ber of fem ale det ainees on June 19t h. The cell cont ained a t oilet , sink, bed, and sufficient space for t wo det ainees. The plaint iff believes t he cell was t oo sm all for t wo beds wit h sufficient space t o t ravel from bed t o t oilet . The j ailers aver t he plaint iff never t old t hem about her t rouble wit h urinat ing or wit h her cellm at e. The plaint iff says her verbal request s were ignored during t he night , but t hat she raised her issues t he next m orning wit h t he j ailer who t ook her t o t he urgent care cent er. The plaint iff’s cellm at e began scream ing in pain and was t aken t o t he hospit al at 2: 45 a.m . on June 20t h wit h com plaint s of kidney st ones. The cellm at e was t reat ed for t his condit ion at t he hospit al and was ret urned t o t he j ail cell around 6: 10 a.m . The plaint iff was t aken t o court around 11: 00 a.m . and released before noon. The plaint iff ent ered a diversion agreem ent in which she adm it t ed t o unlawfully operat ing a vehicle on June 19t h wit h a breat h alcohol level of .104 such t hat she was incapable of driving safely. The plaint iff adm it s t he Ellis Count y At t orney’s office assist ed her in obt aining t he proper operat ion of videos she received from t he VPD. As far as t he video of 16 her DUI arrest , Wilm er Dinkel did not erase, dest roy or t am per t he video and did not conspire t o do t he sam e. The lost video from t he DUI check lane was caused by t he m echanical failure of t wo hard drives, not hum an error or m anipulat ion. Chief Dinkel has not solicit ed anyone t o act as an inform ant on t he plaint iff’s act ivit ies and has never looked for som e excuse t o arrest t he plaint iff. The plaint iff’s exhibit s do not cont rovert t hese fact s, nor does her affidavit which only recount s what she “ is alleging” and does not appear t o be based on personal knowledge. ECF# 47, p. 13, ¶ 109. Chief Dinkel did not advise Vict oria resident s t hat plaint iff was a bad person or t hat t he plaint iff was som eone likely t o get t hem int o t rouble. The plaint iff’s affidavit lacks t he cont ent and t he specificit y required by Rule 56( d) t o cont rovert t his st at em ent . Chief Dinkel avers t hat he did not t reat t he plaint iff different ly from ot her cit izens who had violat ed cit y ordinances. The plaint iff avers t hat her yard “ was cit ed on num erous occasions” when ot her cit izens who were in violat ion did not receive cit at ions. ECR# 47, pp. 13- 14. Chief Dinkel avers t hat he did not dest roy any evidence concerning t he plaint iff and did not ask or collude wit h anyone else t o dest roy evidence. The plaint iff’s affidavit fails t he requirem ent s of 56( d) concerning t his lat t er st at em ent . Su m m a r y of Com pla in t The plaint iff’s pro se com plaint is 34 pages in lengt h wit h 304 num bered paragraphs. ECF# 1. Her fact ual allegat ions com ing under t he 17 t it le of “ Nat ure of t he Case” com prise t he num bered paragraphs of 24 t hrough 188. I d. at pp. 3- 20. I nt erspersed am ong t he fact ual allegat ions are t he following bolded headings: - Chief Cole Dinkel and cit y clerk Mary Pfeifer engaged in defam at ory act ivit ies t oward Plaint iff and int erfered wit h Plaint iff’s fam ily and business relat ionships. ( p. 4) . - Mary Pfeifer, t he Vict oria Cit y Clerk repeat edly refused t o provide Plaint iff access t o t he Vict oria cit y ordinances, st at ing t hat she didn’t have t im e t o “ supervise” Plaint iff while ( sic) was reading t hem . Chief Cole Dinkel, Mayor Unrein and Mary Pfeifer em ployed t he “ m yst ery ordinances” against Plaint iff in furt herance of t heir conspiracy t o drive Plaint iff from t own. ( p. 7) . - Chief Cole Dinkel, Mary Pfeifer and Ryan Mauch conspired t o falsely arrest Plaint iff for “ disorderly conduct ” aft er Plaint iff lawfully exercised her first am endm ent right t o obj ect t o years of illegal denial of access t o t he cit y ordinances. ( p. 8) . - Officer Mauch locked Plaint iff in a police vehicle in ext rem e heat wit h no air condit ioning for an ext ended period while t alking on his cell phone wit h Mary Pfeifer and Cole Dinkel. ( p. 9) . - Defendant s Cole Dinkel, Curt is Unrein and Ryan Mauch refused t o t ake act ion on crim inal t hreat s t o kill Plaint iff as com m unicat ed t o Plaint iff by Mayor Unrein, Cole Dinkel and Ryan Mauch; These defendant s used report s of t hreat s by area resident s t o kill Plaint iff ( sic) t o chill plaint iff’s speech, force Plaint iff t o rem ove t he sign from her yard and ult im at ely t o m ove away from t he com m unit y. ( p. 10) . - A year lat er, Plaint iff ret urned t o Vict oria t o deal wit h t he house t here, and unwisely developed an im pact ed t oot h while having no m oney for a dent ist in Kansas. ( pp. 11- 12) . - Chief Cole Dinkel refused t o provide t im ely m edical care, and t he cit y had no procedures in place t o assure t hat arrest ees’ m edical needs were reasonably assessed and act ed upon. ( pp. 12- 13) . - Cole Dinkel forced Plaint iff ( an indigent person on Medicaid) t o agree t o pay for m edical care t hat t he Cit y of Vict oria was in fact obligat ed t o provide, as a condit ion t o t ransport of t he Plaint iff t o t he Em ergency Room at Hays Medical Cent er. ( p. 14) . - Chief Cole Dinkel failed t o advise Plaint iff of her right t o consult wit h an at t orney aft er Plaint iff consent ed t o and perform ed a breat halyzer t est . ( p. 15) . - Three and only t hree pieces of recorded evidence in t he DUI “ invest igat ion.” Three separat e t echnical m aladies. What are t he odds? ( p. 16) 18 - Ot her Ellis Count y Jail I ssues—I nadequat e Medical Care ( p. 17) ; Physical Disabilit y Accom m odat ion ( p. 18) ; Failure t o prot ect prisoners from ot her prisoners ( p. 18) ; Pat t ern of failure t o provide prescript ion m edicat ions ( p. 20) . These headings reveal t he plaint iff’s int ended organizat ion of her fact ual allegat ions. The plaint iff’s com plaint t hen consist s of t he following claim s for relief under federal law: Count One: 42 U.S.C. § 1983. First Am endm ent —Freedom of Religion claim . Allegat ions are t hat she was “ deliberat ely discrim inat ed against ” for not being of t he Rom an Cat holic fait h, t hat as a result she “ was denied access t o com m unit y, associat ion, and a venue for inform al disput e resolut ion,” t hat disparaging com m ent s were m ade about her, and t hat “ because t he religious discrim inat ion was overwhelm ing and int ract able,” she “ suffered dam ages relat ed t o m oving expenses, lost enj oym ent of her propert y and disrupt ion of her fam ily relat ionships.” ( ¶¶ 191, 192, 197, 199) . Count Two: 42 U.S.C. § 1983. First Am endm ent —Freedom of Speech claim . Allegat ions are t hat she was denied free expression of opinions on her propert y, including t hose crit ical of t he Rom an Cat holic church, t hat she was t hreat ened wit h violence due t o her speech and lack of respect for local church, and t hat as a result she felt “ she had t o m ove out of Vict oria” and she “ suffered dam ages relat ed t o m oving expenses, lost enj oym ent of her propert y and disrupt ion of her fam ily relat ionships.” ( ¶¶ 203- 205, 208- 209) . Count Three: 42 U.S.C. § 1983. First Am endm ent —Freedom of Press claim . Allegat ions are t hat defendant s denied her “ request s for inform at ion,” t hat is, access t o and exam inat ion of t he ordinances which t he cit y m ust publish, t hat t his denial result ed in t he denial of her opport unit y and const it ut ional right t o publish t he ordinances, and t hat she was unable t o defend herself from fines for violat ing ordinances. ( ¶¶ 213- 215, 217) . Count Four: 42 U.S.C. § 1983. First Am endm ent —Freedom of Assem bly claim . Allegat ions are t hat t he defendant s “ discouraged ot her cit y resident s from associat ing wit h t he Plaint iff” causing t he plaint iff t o feel “ isolat ed and lonely for m ost of t he 15 years t hat she lived in t he t own. ( ¶¶ 223, 227) . Count Five: 42 U.S.C. § 1983. Sixt h Am endm ent —Fair Trial claim . Allegat ions are t hat t he defendant s deprived her of a const it ut ional right t o a fair t rial in t he DUI prosecut ion and driver’s license proceedings by dest roying evidence t hat would have benefit t ed her 19 and would have result ed in no prosecut ion and no convict ion. ( ¶¶ 233235) . Count Six: 42 U.S.C. § 1983 Sixt h Am endm ent —Right t o Counsel Claim . Allegat ions are t hat she was denied t he right t o counsel, as Chief Dinkel failed t o allow her t o cont act an at t orney aft er she t ook t he breat halyzer t est and Ellis Count y failed t o appoint her an at t orney in her dist rict court appeal from t he driver’s license adm inist rat ive hearing. Count Seven: 42 U.S.C. § 1983 Fourt eent h Am endm ent —Due Process and Eight h Am endm ent claim . Allegat ions are t hat t he condit ions of her j ail confinem ent ( placed in a cell wit h anot her person, not provided adequat e m edical care in j ail, denied t he filling of her prescript ions, not given blood pressure checks, and not provided circum st ances for em pt ying bladder) violat ed t he Eight h Am endm ent and t hat t he defendant Sheriff Harbin violat ed her due process right s by discrim inat orily subj ect ing her t o t hese j ail condit ions. Count Eight : 42 U.S.C. § 1983 Fourt eent h Am endm ent —Due Process claim . Allegat ions are t hat t he defendant s conspired by causing her t o be arrest ed for disorderly conduct wit hout evidence t o sust ain an arrest , by deliberat ely dest roying evidence, and by dem anding her t o pay for em ergency m edical services as a condit ion of t ransport at ion. Count Nine: 42 U.S.C. § 1983 Fourt eent h Am endm ent — Unenum erat ed Right s—Right t o Privacy claim . Allegat ions are t hat t he defendant s deprived t he plaint iff of her const it ut ional right t o m aint ain privacy in her fam ily and personal affairs by t alking about t he plaint iff am ong t hem selves and ot her t own resident s and by cult ivat ing inform ant s who report ed on t he plaint iff’s life wit h t enant s and fam ily. Count Ten: 42 U.S.C. § 1983 Conspiracy t o Deprive Const it ut ional Right s claim . Allegat ions are t hat t he defendant s conspired t o “ use t heir posit ions of aut horit y whenever possible in t he m ost punit ive way possible given what ever opport unit ies arose, for t he purpose of fright ening, int im idat ing and im poverishing t he Plaint iffs, all for t he ult im at e purpose of driving t he Plaint iff out of t ow n and t o t hereby t o deprive Plaint iff of her const it ut ional right s. Count Eleven: 42 U.S.C. § 1985( 3) Conspiracy t o Deprive Const it ut ional Right s claim . Allegat ions are t hat t he defendant s conspired t o deprive t he plaint iff of her const it ut ional right s as alleged above. Count s 12 t hrough 16 allege claim s for relief under st at e law. St a t u t e of Lim it a t ion s—§ § 1 9 8 3 a n d 1 9 8 5 Cla im s 20 The defendant s first argue t hat all of t he plaint iff’s federal claim s, except for t hose based on t he DUI arrest in June of 2014 and/ or t he relat ed event s occurring subsequent ly, are barred by t he st at ut e of lim it at ions. The plaint iff filed her com plaint on June 16, 2016. The com plaint fails t o set out t he dat es for m any of t he alleged event s. The headings indicat e t he different event s are generally being alleged in chronological order. The defendant s’ m ot ions, however, effect ively est ablish t he dat es for m ost of t he alleged act ions and event s. The plaint iff does not cont rovert or challenge t he dat es est ablished in t he defendant s’ m ot ions. Consequent ly, only t hose federal claim s based on t he event s occurring wit h and aft er t he plaint iff’s DUI arrest appear t o com e wit hin t he applicable t wo- year lim it at ions period. The plaint iff’s response appears t o dat e ot her event s as occurring on June 16t h and aft er. Not ably, she refers t o a t raffic st op in which Chief Dinkel t old Chris Rogers t hat t he plaint iff was a “ bad person.” The plaint iff offers not hing but her hearsay st at em ent in support of t his event . The plaint iff also alleges Chief Dinkel harassed her and issued her a m unicipal ordinance violat ion for t he condit ion of her yard. The plaint iff alleges t his issuance of a violat ion shows harassm ent because Chief Dinkel did not confront Bent ham who was t he “ prim ary resident ” of her house. This allegat ion fails t o st at e a claim for relief for it does not support any inference of im proper or illegal m ot ive behind t he ot herwise lawful enforcem ent of a m unicipal ordinance. The plaint iff does not deny she is liable for t he 21 ordinance violat ion as she adm it s being present and being t he owner of t he propert y. The governing st at ut e of lim it at ions in § 1983 act ions is t he st at e st at ut e of lim it at ions for personal inj ury act ions. See Hardin v. St raub, 490 U.S. 536, 539 ( 1989) ; Brown v. Unified Sch. Dist . 501, Topeka Pub. Schs., 465 F.3d 1184, 1188 ( 10t h Cir. 2006) . “ For conspiracy claim s under § 1985( 3) , court s have also applied t he forum st at e’s personal- inj ury st at ut e of lim it at ions.” Lyons v. Kyner, 367 Fed. Appx. 878, 881- 82 ( 10t h Cir. Feb. 10, 2010) ( cit at ions om it t ed) ; see Robinson v. Maruffi, 895 F.2d 649, 65354 ( 10t h Cir. 1990) . For Kansas, t his is t he t wo- year lim it at ions period in K.S.A. § 60- 513( a) .” Brown, 465 F.3d at 1188. The accrual of a § 1983 claim , however, is a m at t er of federal law and occurs “ when t he plaint iff has a com plet e and present cause of act ion.” Wallace v. Kat o, 549 U.S. 384, 388 ( 2007) . For § 1983 claim s arising from police act ions being t aken, t he Tent h Circuit presum es accrual “ when t he act ions act ually occur.” Beck v. Cit y of Muskogee Police Dep't , 195 F.3d 553, 558 ( 10t h Cir. 1999) ( quot ing Johnson v. Johnson Count y Com m ’n Bd., 925 F.2d 1299, 1301 ( 10t h Cir. 1991) ) . “ The lim it at ions period for a § 1985( 3) act ion ‘runs from t he occurrence of t he last overt act result ing in dam age t o t he plaint iff.’” Lyons, 367 Fed. Appx. at 882 ( quot ing Bell v. Flower, 99 F.3d 262, 270 ( 8t h Cir. 1996) ) . The Tent h Circuit has explained t he conspiracy lim it at ions period in t his way. [ I ] t runs separat ely from each overt act of t he conspiracy t hat allegedly caused inj ury, see Scherer v. Balkem a, 840 F.2d 437, 439 22 ( 7t h Cir. 1988) ; see also Robinson, 895 F.2d at 655 ( indicat ing t hat conspiracies involving “ discret e claim s of [ const it ut ional] wrongs, despit e t heir being averred as a cont inuing wrong,” accrue when t he plaint iff is inj ured) . Consequent ly, O'Connor “ m ay recover only for t he overt act s t hat [ he] specifically alleged t o have occurred wit hin t he lim it at ions period.” Scherer, 840 F.2d at 439 ( quot at ion and ellipses om it t ed) . O'Connor v. St . John's College, 290 Fed. Appx. 137, 141 ( 10t h Cir. 2008) ( unpub.) , cert . denied, 556 U.S. 1108 ( 2009) . As far as police/ st at e act ions t aken or overt act s com m it t ed wit hin t he t wo- year lim it at ion period, t he plaint iff’s com plaint does not allege any unt il ¶ 117 on page 12. These fact ual allegat ions concern her DUI arrest as well as t he circum st ances surrounding t he processing of her arrest and her subsequent t reat m ent while being held aft er t he arrest . Thus, all t he fact ual allegat ions support ing count s one t hrough four and nine are out side t he st at ut e of lim it at ions, and t hese count s are subj ect t o sum m ary j udgm ent . Only t hose overt act s t hat fall wit hin t he lim it at ion period properly rem ain t he subj ect of t he conspiracy count s of 10 and 11. Though alleged t o have st art ed out side t he lim it at ions period, t he conspiracy claim m ay rem ain viable if t he accrual dat e of t he lat er overt act s are wit hin t he lim it at ion period. See Hunt v. Bennet t , 17 F.3d 1263, 1266 ( 10t h Cir.) , cert . denied, 513 U.S. 832 ( 1994) . Con spir a cy Cla im s u n de r § § 1 9 8 3 a n d 1 9 8 5 A conspiracy claim under § 1983 requires pleading not only a conspiracy but also t he conspiracy’s act ion in depriving t he plaint iff of a 23 const it ut ional right . Dixon v. Cit y of Lawt on, 898 F.2d 1443, 1449 ( 10t h Cir. 1990) ( “ [ T] he essence of a § 1983 claim is t he deprivat ion of t he right rat her t han t he conspiracy.” ) . The delayed accrual of a conspiracy claim unt il lat er overt act s is condit ioned upon t he plaint iff alleging “ specific fact s showing agreem ent and concert ed act ion” am ong t he defendant s, because “ [ c] onclusory allegat ions of conspiracy are insufficient t o st at e a valid § 1983 claim .” Hunt v. Bennet t , 17 F.3d at 1266 ( int ernal quot at ion m arks and cit at ion om it t ed) . There is no doct rine of cont inuing violat ions applicable t o § 1983 act ions. Mercer- Sm it h v. New Mexico Children, Yout h and Fam ilies Dept ., 416 Fed. Appx. 704, 712 ( 10t h Cir. Mar. 21, 2011) . On t his count , t he plaint iff’s com plaint alleges: The Defendant s reached an agreem ent am ongst t hem selves t o use t heir posit ions of aut horit y whenever possible in t he m ost punit ive way possible given what ever opport unit ies arose, for t he purpose of fright ening, int im idat ing, and im poverishing t he Plaint iff, all t he ult im at e purpose of driving t he Plaint iff out of t ow n and t o t hereby t o deprive Plaint iff of her const it ut ional right s. ECF# 1, ¶ 277. I n t he sam e vein as § 1983, t he Suprem e Court recognizes t hat § 1985 does not creat e right s. Great Am . Fed. Sav. & Loan Ass'n v. Novot ny, 442 U.S. 366, 376 ( 1979) ( em phasis om it t ed) . Sect ion 1985 is a “ purely rem edial st at ut e, providing a civil cause of act ion when som e ot herwise defined federal right —t o equal prot ect ion of t he laws or equal privileges and im m unit ies under t he laws—is breached by a conspiracy . . . .” I d. Sect ion 1985( 3) prohibit s t wo or m ore persons fr om conspiring “ for t he purpose of 24 depriving, eit her direct ly or indirect ly, any person . . . of t he equal prot ect ion of t he laws, or of equal privileges and im m unit ies under t he laws.” 42 U.S.C. § 1985( 3) . A claim assert ed under 42 U.S.C. § 1985( 3) requires: “ ( 1) t he exist ence of a conspiracy ( 2) int ended t o deny [ plaint iff] equal prot ect ion under t he laws or equal privileges and im m unit ies of t he laws ( 3) result ing in an inj ury or deprivat ion of federally- prot ect ed right s, and ( 4) an overt act in furt herance of t he obj ect of t he conspiracy.” Murray v. Cit y of Sapulpa, 45 F.3d 1417, 1423 ( 10t h Cir. 1995) ( cit ing Griffin v. Breckenridge, 403 U.S. 88, 102–03 ( 1971) ( furt her cit at ion om it t ed) ) . A conspiracy claim under § 1985 “ requires at least a com binat ion of t wo or m ore persons act ing in concert and an allegat ion of a m eet ing of t he m inds, an agreem ent am ong t he defendant s, or a general conspirat orial obj ect ive.” Brooks v. Gaenzle, 614 F.3d 1213, 1227–28 ( 10t h Cir. 2010) ( cit at ions om it t ed) , cert . denied, 562 U.S. 1200 ( 2011) . Mere conclusory allegat ions of conspiracy cannot st at e a valid claim under § 1985. Hogan v. Winder, 762 F.3d 1096, 1114 ( 10t h Cir. 2014) . For bot h § 1983 and § 1985 conspiracies, t he Tent h Circuit has held t hat “ a plaint iff m ust allege specific fact s showing an agreem ent and concert ed act ion am ongst t he defendant s because conclusory allegat ions of conspiracy are insufficient t o st at e a valid § 1983 claim .” Brooks, 614 F.3d at 1228 ( int ernal quot at ion m arks and cit at ions om it t ed) . For a § 1985( 3) claim , a plaint iff also m ust allege a “ racial, or perhaps ot herwise classbased, invidiously discrim inat ory anim us behind t he conspirat ors' act ions.” 25 Griffin v. Breckenridge, 403 U.S. 88, 102 ( 1971) ( relat ing t o § 1985( 3) ) ; Sm it h v. Yellow Freight Syst em , I nc., 536 F.2d 1320, 1323 ( 10t h Cir. 1976) ( relat ing t o § 1985( 2) ) . Class- based discrim inat ion m eans “ classificat ions on . . . race, sex, religion or nat ional origin.” Brown v. Reardon, 770 F.2d 896, 905- 06 ( 10t h Cir. 1985) ( alt erat ion in original) . The plaint iff’s com plaint alleges under her § 1985 count t hat , “ As described m ore fully above, each of t he Defendant conspired, direct ly or indirect ly, for t he purpose of depriving Plaint iff of her const it ut ional right s.” ECF# 1, ¶ 283. Plaint iff's conspiracy claim s cannot survive sum m ary j udgm ent . First , for t he reasons discussed lat er, t he plaint iff is unable t o show t he denial of a const it ut ional right . Second, t o bring a conspiracy claim , t he plaint iff m ust allege m ore t han conclusory allegat ions and m ake an effort t o provide som e det ails and fact s showing an agreem ent and concert ed act ion am ong t he defendant s. Tonkovich v. Kansas Bd. of Regent s, 159 F.3d 504, 533 ( 10t h Cir. 1998) . There m ust be enough specific fact ual allegat ions m aking it reasonable t o infer t he defendant s were conspiring wit h one anot her. I d.; Brooks, 614 F.3d at 1228 ( allegat ions of inconsist encies or parallel act ion or inact ion “ does not necessarily indicat e an agreem ent t o act in concert .” ) . The plaint iff’s com plaint and her m em oranda ut t erly fail t o com e forward wit h specific fact ual allegat ions or evidence t o show an agreem ent or concert ed act ion. What is offered by t he plaint iff shows no m ore t han t he expect ed and regular com m unicat ions occurring bet ween cit y 26 officials. Their act ions t oward t he plaint iff, individually and t oget her, show no m ore t han t he expect ed and regular response t o com plaint s com ing from cit izens or from t he plaint iff’s own fam ily. The plaint iff offers no reasonable inferences of an agreem ent or com bined act ion by t he defendant s, and her allegat ions are no m ore t han speculat ion and conj ect ure on her part . Third, t he plaint iff fails t o allege any recognized class- based discrim inat ion for purposes of her § 1985( 3) . She st ops wit h alleging t hat she is not Rom an Cat holic in a sm all com m unit y t hat is largely Rom an Cat holic. The plaint iff is alleging she is part of a class t hat chooses not t o be part of t he defendant ’s group. Following t he Suprem e Court ’s lead in Bray v. Alexandria Wom en’s Healt h Clinic, 506 U.S. 263, 269 ( 1993) , t he court quest ions t he plaint iff’s speculat ive ext ension of § 1985( 3) “ which unquest ionably connot es som et hing m ore t han a group of individuals who share a desire t o engage in conduct t hat t he § 1985( 3) defendant disfavors.” I n t his case, t he plaint iff is alleging no m ore t han t he desire t o not engage in conduct t hat t he § 1985( 3) defendant s favor, t hat is, part icipat ing in t he Rom an Cat holic church. I n sum , t he plaint iff does not m ake a § 1985( 3) claim out of t he defendant s enforcing t he m unicipal ordinances, t he cit izens com plaining about t he plaint iff’s behavior, or t he defendant s discharging t heir lawful official dut ies in a m anner lacking apparent conspirat orial or discrim inat ory m ot ives. The plaint iff provides no evidence t o support her allegat ions ot her t han speculat ive and conclusory m usings. They do not suffice t o creat e a 27 genuine issue for t rial. The record here cont ains no evidence t hat defendant s shared a m ut ual underst anding or reached a m eet ing of t he m inds about t hreat ening or forcing plaint iff t o leave Vict oria. Wit hout such evidence, t he court m ust grant sum m ary j udgm ent against plaint iff's conspiracy claim s ( count s 10 and 11) under 42 U.S.C. §§ 1983 and 1985( 3) . Cou n t s I a n d I I —Fr e e dom of Re ligion a n d Spe e ch Count one alleges t he plaint iff suffered discrim inat ion for not being of t he Rom an Cat holic fait h and was denied “ her const it ut ional right t o a free choice of religious belief.” ECF# 1, pp. 21- 22. The Court const rues t his claim as alleging a violat ion of t he Free Exercise clause. To est ablish such a claim , t he plaint iff “ m ust show t hat t he governm ent has placed a burden on t he exercise of [ her] . . . religious beliefs or pract ices” and m ust st at e a claim t hat t he “ exercise of religion is burdened if t he challenged act ion is coercive or com pulsory in nat ure.“ Fields v. Cit y of Tulsa, 753 F.3d 1000, 1009 ( 10t h Cir.) ( int ernal quot at ion m arks and cit at ion om it t ed) , cert . denied, 135 S. Ct . 714 ( 2014) . The plaint iff’s com plaint and evidence does not st at e a viable First Am endm ent claim . The plaint iff’s only evidence associat ed wit h t he Rom an Cat holic fait h of t he com m unit y is relat ed t o her signs disparaging Rom an Cat holic priest s t hat she put up in her yard. The signs result ed in cit izens m aking com plaint s and t he officers visit ing wit h her. There is no evidence t hat t he officers coerced t he plaint iff int o conduct cont rary t o her 28 religious beliefs or t hat burdened her from pract icing her religion. The cit izens com plaining of t he sign is not st at e act ion. The allegat ions of t he officers’ responses t o t he com plaint s and pot ent ial t hreat s show a concern for com m unit y safet y t hat was m et by a display of t heir presence. The evidence sim ply does not show t hat t he officers’ presence in it self was coercive or com pulsory conduct . The court finds no plausible Free Exercise claim t o be alleged here. Count t wo alleges t he plaint iff was denied her const it ut ional right t o com m unicat e her opinions on her pr opert y as she was t hreat ened wit h violence for put t ing up a sign t hat was crit ical of t he Rom an Cat holic church. A First Am endm ent ret aliat ion claim out side of an em ploym ent cont ext requires a plaint iff t o allege and show: ( 1) t hat t he plaint iff was engaged in const it ut ionally prot ect ed act ivit y; ( 2) t hat t he defendant ’s act ions caused t he plaint iff t o suffer an inj ury t hat would chill a person of ordinary firm ness from cont inuing t o engage in t hat act ivit y; and ( 3) t hat t he defendant ’s adverse act ion was subst ant ially m ot ivat ed as a response t o t he plaint iff’s exercise of const it ut ionally prot ect ed conduct . Leveringt on v. Cit y of Colorado Springs, 643 F.3d 719, 729 ( 10t h Cir. 2011) ( int ernal quot at ion m arks and cit at ion om it t ed) . While conceding t he plaint iff’s sign was prot ect ed speech, t he defendant s argue t hat t heir act ions did not chill t he plaint iff’s speech but prot ect ed t he plaint iff’s speech. The plaint iff alleges t he defendant s t hreat ened her, but t he uncont rovert ed fact s show t he defendant s sim ply responded t o cit izens’ com plaint s and m aint ained t he peace by t heir presence. Not only were t he defendant s’ 29 act ion not adverse t o t he plaint iff, but t hey were beneficial t o her. When t he plaint iff volunt arily chose t o t ake down t he sign, t he officers ended t heir surveillance of t he sit uat ion. I ndeed, t he plaint iff alleges she post ed t he sign wit h t he expect at ion of ant agonizing t he com m unit y, so t he defendant s’ act ions t aken t o preserve t he peace w ere expect ed, reasonable, proport ional, and not adverse. What t he plaint iff recount s as Chief Dinkel’s st at em ent s and handling of t he plaint iff’s sign and her ot her so- called “ perform ance art ” fails t o show adverse act ion t hat would chill a person of ordinary firm ness from cont inuing t o engage in t hat act ivit y. The plaint iff fails t o show any violat ion of her const it ut ional right s in count s one and t wo as alleged and shown. Cou n t 3 —Fr e e dom of Pr e ss The plaint iff explains her freedom of press claim as based on her being denied full access t o t he m unicipal ordinance books. This is not a viable legal basis for such a claim . “ [ T] here is no const it ut ional right , and specifically no First Am endm ent right , of access t o governm ent records.” Lanphere & Urbaniak v. St at e of Colo., 21 F.3d 1508, 1512 ( 10t h Cir.) , cert . denied, 513 U.S. 1044 ( 1994) . Even assum ing an act ionable right here, t he uncont rovert ed fact s are t hat t he plaint iff was not denied access t o t he ordinances, but she was subj ect t o t he sam e uniform procedure used by t he Cit y in requiring a cit izen’s request t o see cert ain ordinances and in t hen providing t he relevant volum e for viewing. Copies of t he ordinances could be 30 m ade and t aken wit h t he cit izen. The plaint iff is essent ially assert ing a const it ut ional right t o see a hard copy of all ordinances sim ult aneously. There is no allegat ion here t hat t he plaint iff did not receive const it ut ional effect ive not ice of any ordinances. The plaint iff’s preference t o see all t he ordinances at t he sam e t im e wit hout supervision as opposed t o t he clerk’s procedure of serial product ion upon specific request does not assert a claim of const it ut ional significance. Cou n t 4 —Fr e e dom of Asse m bly a n d Associa t ion The plaint iff explains t his claim is based on Chief Dinkel t elling a resident of Vict oria “ t o st ay away from t he Plaint iff for no Const it ut ionally accept able reason” which violat ed t he “ [ p] laint iff’s freedom t o assem ble wit h Chris Rogers.” ECF# 47, p. 29. She also alleges her right t o pet it ion was denied because t he Cit y failed t o respond subst ant ively t o her com plaint let t ers. The plaint iff has not alleged anyt hing t hat resem bles a rest rict ion upon a right t o assem ble peaceably in a public place or a right t o pet it ion t he governm ent for redress of grievances. The right t o assem ble “ is a collect ive or group right , rat her t han t he right of a single individual.” Brown v. Cit y of Maize, Kan., 2009 WL 872905, at * 6 ( D. Kan. 2009) . The plaint iff’s allegat ions do not invoke any right t o have m eet ings, m arches, picket s, or t he like. “ The right t o pet it ion governm ent does not creat e in t he governm ent a corresponding dut y t o act .” Scroggins v. Cit y of Topeka, Kan., 2 F. Supp. 2d 1362, 1375 ( D. Kan. 1998) ( int ernal quot at ion m arks and 31 cit at ions om it t ed) . The plaint iff’s allegat ions do not show t hat she was deprived of her right t o pet it ion t he cit y governm ent for redress of grievances. The defendant s liberally const rue t he plaint iff’s com plaint as alleging a claim for int erference wit h her const it ut ional right of expressive associat ion. The court recognizes t he following as a proper sum m ary of t he cont rolling law: I ncluded am ong t he prot ect ions t he First Am endm ent guarant ees, t he Suprem e Court has recognized “ a First Am endm ent right t o associat e for t he purpose of speaking, which [ it has] t erm ed a ‘right of expressive associat ion.’” Rum sfeld v. Forum for Academ ic & I nst it ut ional Right s, I nc., 547 U.S. 47, 126 S.Ct . 1297, 164 L.Ed.2d 156 ( 2006) ( quot ing Boy Scout s of Am . v. Dale, 530 U.S. 640, 644, 120 S.Ct . 2446, 147 L.Ed.2d 554 ( 2000) ) . See Grace Unit ed Met hodist Church v. Cit y of Cheyenne, 451 F.3d 643, 658 ( 10t h Cir. 2006) ( “ I n addit ion t o freedom of speech, t he First Am endm ent also im plicit ly prot ect s t he corresponding freedom t o expressive associat ion.” ) . The First Am endm ent prot ect s associat ional right s in t wo dist inct ways: ( i) it “ prot ect s against unj ust ified governm ent int erference wit h an individual's choice t o ent er int o and m aint ain cert ain int im at e or privat e relat ionships” ; and ( ii) it ensures “ t he freedom of individuals t o associat e for t he purpose of engaging in prot ect ed speech or religious act ivit ies.” Bd. of Dirs. v. Rot ary Club of Duart e, 481 U.S. 537, 544, 107 S.Ct . 1940, 95 L.Ed.2d 474 ( 1987) . See Grace Unit ed Met hodist Church v. Cit y of Cheyenne, 451 F.3d at 658. . . . . . . . I ndeed, t here is no independent First Am endm ent right of expressive associat ion; t he First Am endm ent prot ect s t he freedom of associat ion only in cert ain circum st ances. See Cit y of Dallas v. St anglin, 490 U.S. 19, 23, 109 S.Ct . 1591, 104 L.Ed.2d 18 ( 1989) ( “ While t he First Am endm ent does not in t erm s prot ect a ‘right of associat ion,’ our cases have recognized t hat it em braces such a right in cert ain circum st ances.” ) . Alt hough an opport unit y “ m ight be described as ‘associat ional’ in t he com m on parlance,” it does not necessarily follow t hat it involves “ t he sort of expressive associat ion t hat t he First Am endm ent has been held t o prot ect .” Cit y of Dallas v. St anglin, 490 U.S. at 24, 109 S.Ct . 1591. Alt hough “ [ i] t is possible t o 32 find som e kernel of expression in alm ost every act ivit y a person undert akes ... such a kernel is not sufficient t o bring t he act ivit y wit hin t he prot ect ion of t he First Am endm ent .” Cit y of Dallas v. St anglin, 490 U.S. at 25, 109 S.Ct . 1591. A.M. ex rel. Youngers v. New Mexico Dept . of Healt h, 117 F. Supp. 3d 1220, 1243–44 ( D.N.M. 2015) . The court agrees wit h t he defendant s t hat t he plaint iff’s claim alleges som e generalized right t o associat e t hat does not fall wit hin t he First Am endm ent ’s prot ect ion. Even assum ing t he allegat ions about Chief Dinkel’s com m ent s were t rue, t hey am ount t o not hing m ore t han conversat ional advice, and t hey carry no rem ot e possibilit y of having denied t he plaint iff of any const it ut ional right . Cou n t 5 —D e st r u ct ion of Evide n ce The plaint iff alleges t he defendant s act ed individually and j oint ly in conspiracy by dest roying evidence concerning her DUI arrest “ t hat would have benefit ed Plaint iff at t rial and in t he driver’s license proceeding” and t hat “ [ a] bsent t his m isconduct , t he prosecut ion of Plaint iff could not and would not have been pursued.” ECF# 1, ¶¶ 234, 235. The plaint iff’s com plaint includes t hese fact ual allegat ions: 155. Chief Cole Dinkel dest royed evidence by deliberat ely failing t o swit ch his m icrophone input from his car m icrophone t o his personal m icrophone unit while int erviewing Plaint iff out side of t he police vehicle. Evidence of t hat exchange would have helped Plaint iff at t rial because Chief Cole Dinkel refused t o provide m edical care and m ade ot her st at em ent s which would have helped Plaint iff’s crim inal and driver’s license cases. . . . . 160. Chief Cole Dinkel colluded wit h Wilm er Dinkel and/ or som e ot her count y em ployee t o dest roy t he DUI check lane video t aken of Plaint iff 33 on June 19, 2015 by dest roying t he DUI audio video recording m achine. . . . . 163. Plaint iff believes t hat Chief Dinkel inform ed his fat her, Wilm er Dinkel of t he sit uat ion, and t hen Wilm er Dinkel dest royed or had som eone else erase t he hard drives on t he DUI audio/ video m achine which wiped out t he recording of t he Plaint iff along wit h t hat of m any ot her count y arrest ees. ECF# 1. The defendant s argue t hese conclusory allegat ions are divorced from t he fact s t hat no body m ic recording was m ade, t hat t he videos produced by t he Count y At t orney included som e unreadable port ions, and t hat an equipm ent m anufact urer said such m alfunct ions were rare. The defendant s charact erize t he plaint iff’s allegat ions of t he defendant s dest roying evidence as being “ ent irely conj ect ural and speculat ive.” ECF# 33, p. 29. As already not ed above, t he plaint iff has not cont rovert ed eit her Chief Dinkel’s averm ent or Wilm er Dinkel’s averm ent t hat t hey did not dest roy any evidence concerning t he plaint iff and t hey did not ask, conspire, or collude wit h anyone else t o dest roy evidence. I n response, t he plaint iff argues t he exist ing recording shows she request ed m edical care, but Chief Dinkel st ill t est ified in t he “ driver’s license review hearing” t hat t he plaint iff did not request m edical care prior t o arriving at t he hospit al. ECF# 47, p. 29. From t his, t he plaint iff asks t he court t o assum e t hat because Chief Dinkel was “ willing t o lie” about t his t opic at t he hearing t hen it would be no “ st ret ch t o assum e t hat he m ight dest roy evidence” t o cover him self on t his t opic. I d. I n reply, t he defendant s say t hat t he recording shows t he plaint iff 34 request ed addit ional blood work not m edical care and t hat t he plaint iff has no m at erial fact s from which t o infer t he dest ruct ion of evidence. On a § 1983 claim , t he due process right t o a fair t rial encom passes a dut y “ t o disclose and preserve im peachm ent / exculpat ory evidence.” Morgan v. Gert z, 166 F.3d 1307, 1310 ( 10t h Cir. 1999) ( cit at ions om it t ed) . “ Under Youngblood [ Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct . 333, 102 L.Ed.2d 281 ( 1988) ] , a defendant can est ablish a due process violat ion if he can show t hat ( 1) t he governm ent failed t o preserve evidence t hat was ‘pot ent ially useful’ t o t he defense; and ( 2) t he governm ent act ed in bad fait h in failing t o preserve t he evidence.” Riggs v. William s, 87 Fed. Appx. 103, 106 ( 10t h Cir.) ( cit at ion om it t ed) , cert . denied, 541 U.S. 1090 ( 2004) . “ Suprem e Court aut horit y m akes clear t hat when dealing wit h lost or dest royed evidence, ‘unless a crim inal defendant can show bad fait h on t he part of t he police, failure t o preserve pot ent ially useful evidence does not const it ut e a denial of due process of law.’” Snow v. Sirm ons, 474 F.3d 693, 716 ( 10t h Cir. 2007) ( quot ing Youngblood, 488 U.S. at 58) ( em phasis delet ed) . “ The Court t herefore im posed t he requirem ent t hat t he defendant show bad fait h on t he part of t he police when pot ent ially exculpat ory evidence is lost or dest royed.” I d.; See Unit ed St at es v. Flet cher, 801 F.2d 1222, 1224- 25 ( 10t h Cir. 1986) ( “ Absent evidence of police or prosecut orial bad fait h or m isconduct , [ relief is] warrant ed only if t he m issing evidence possesses an exculpat ory value t hat was apparent before t he evidence was 35 dest royed.” ) . “ [ T] he inquiry int o bad fait h m ust necessarily t urn on t he police's knowledge of t he exculpat ory value of t he evidence.” Riggs v. William s, 87 Fed.Appx. at 106 ( int ernal quot at ion m arks and cit at ion om it t ed) . Thus, t he “ m ere fact t hat t he governm ent cont rolled t he evidence and failed t o preserve it is by it self insufficient t o est ablish bad fait h.” I d. ( quot ing Unit ed St at es v. Bohl, 25 F.3d 904, 910 ( 10t h Cir. 1994) ) . As t he defendant s’ m ot ion shows, t he plaint iff has no evidence or fact ual basis for alleging t hat t here was evidence dest royed. Nor does t he plaint iff explain how any evidence t hat she request ed m edical care earlier t han t he hospit al would have been exculpat ory in her DUI prosecut ion or in t he adm inist rat ive driver’s license proceedings. Consequent ly, t he plaint iff’s claim is not hing m ore t han conj ect ure and speculat ion on whet her t here is m issing evidence, whet her it was exculpat ory, and whet her t here was any bad fait h on t he defendant s’ part . The plaint iff fails t o allege a claim for relief, as she is essent ially assert ing a const it ut ional right for t he police t o creat e exculpat ory evidence. She has no aut horit y for such a right . As for t he recordings allegedly not preserved or dest royed, t he plaint iff does not allege any exculpat ory value in t he recordings. I ndeed, t he plaint iff adm it t edly alleges in her com plaint t hat she “ unwisely drove t wo blocks t o t he church while under t he influence of alcohol ( for pain) and event ually blew .011 in t he count y breat halyzer.” ECF# 1, ¶ 116.The sim ple fact t hat t he defendant cont rolled evidence and t he plaint iff’s sim ple hope t hat t he 36 defendant s would have som e exculpat ory evidence are insufficient t o m ake a claim of bad fait h dest ruct ion of evidence. Count 6 —Right t o Cou nse l The plaint iff’s com plaint reads in pert inent part : 141. Plaint iff was ent it led under Kansas law t o consult wit h an at t orney as soon as t he breat halyzer t est was com plet ed or refused. 142. Plaint iff request ed from Cole Dinkel t o be allowed t o cont act an at t orney prior t o chem ical t est ing and was inform ed by Defendant Cole Dinkel t hat Kansas law did not allow for t hat . 143. Defendant Cole Dinkel failed t o furt her advise Plaint iff t hat she was ent it led t o an at t orney aft er she com plet ed chem ical t est ing. 144. Plaint iff was t herefore deprived of access t o counsel from t he t im e of com plet ing t he breat halyzer t est at t he sheriff’s office unt il m uch lat er in t he evening. . . . . 243. Defendant Cole Dinkel failed t o allow plaint iff t o cont act an at t orney im m ediat ely aft er t he Plaint iff com plied wit h t he breat halyzer t est . 244. The Defendant Ellis Count y failed t o appoint an at t orney for t he Plaint iff in a dist rict court appeal of t he driver’s license adm inist rat ive hearing, even t hough t hose proceedings are t hought t o be com plex even for at t orneys. ECF# 1. From t he com plaint , it appears, as t he defendant s argue, t he plaint iff is alleging t hat she request ed counsel before any chem ical t est ing but did not request counsel t hereaft er, t hat Chief Dinkel did not advise her about cont act ing counsel aft er t he chem ical t est ing, t hat t he plaint iff asked for addit ional t est ing which was provided at t he hospit al, and t hat she was given a chance t o cont act counsel aft er being ret urned from t he hospit al. The Vict oria defendant s argue t hese allegat ions do not st at e a claim for denial of counsel but only t he failure t o advise her of “ a right she did not yet have.” ECF# 33 p. 30. The plaint iff responds t hat t he Chief Dinkel failed t o 37 advise her of t he right t o counsel aft er t he breat halyzer but before t he blood t est as required by t he Kansas Suprem e Court decision of Dum ler v. Kansas Dept . of Revenue, 302 Kan. 420, 354 P.3d 519 ( 2015) . The Ellis Count y defendant s not e t hat t hey did give t he plaint iff an opport unit y t o consult her at t orney, but t he plaint iff com plains t hat it was not unt il she was ret urned t o t he j ail and her at t orney already “ ret ired for t he evening.” ECF# 58, p. 5. They also argue t hat t he plaint iff had no Sixt h Am endm ent right t o legal represent at ion in t he adm inist rat ive proceedings, and t he plaint iff does not respond t o t his argum ent . I n reply, t he defendant s not e t he right in Dum ler is purely a creat ure of st at e st at ut e. The plaint iff’s com plaint alleges a denial only in not being advised of a right t o counsel aft er t he breat halyzer t est and failure t o appoint counsel in her driver’s license adm inist rat ive proceedings. Sect ion 1983 “ is not it self a source of subst ant ive right s, but a m et hod for vindicat ing federal right s elsewhere conferred by t hose part s of t he Unit ed St at es Const it ut ion and federal st at ut es.” Baker v. McCollan, 443 U.S. 137, 144 n.3 ( 1979) . “ [ T] he Sixt h Am endm ent right t o counsel applies only t o crim inal proceedings.” Sm it h v. Sec. of New Mexico Dept . of Correct ions, 50 F.3d 801, 821 ( 10t h Cir. 1995) ( cit ing see Maine v. Moult on, 474 U.S. 159, 170 ( 1985) ) ; see Beaudry v. Correct ions Corp. of Am ., 331 F.3d 1164, 1169 ( 10t h Cir. 2003) ( “ [ P] laint iffs have no Sixt h Am endm ent right t o counsel in a civil case.” ) , cert . denied, 540 U.S. 1118 ( 2004) . Nor does t he plaint iff have 38 a cognizable claim under § 1983 based upon a defendant ’s violat ion of a st at e st at ut e. Gaines v. St enseng, 292 F.3d 1222, 1225 ( 10t h Cir. 2002) . Because t he plaint iff alleges only a violat ion of t he Kansas st at ut ory right recognized in Dum ler and alleges no violat ion of a const it ut ional right , she brings no cognizable claim for § 1983 relief. Cou n t 7 —D u e Pr oce ss- Con dit ion s of Con fin e m e n t The plaint iff’s com plaint alleges her const it ut ional right t o be free from cruel and unusual punishm ent was violat ed in several different ways. She was placed in a cell t hat could not accom m odat e m ore t han one person sleeping “ off t he floor” and t hat her cellm at e was m ent ally inst able and t hreat ened t he plaint iff. She had m edical issues t hat were not at t ended t o while in j ail, including failure t o follow discharge orders from t he hospit al em ergency room by not filling prescript ions and by not t aking blood pressure checks. She was not provided help for em pt ying her bladder. The plaint iff alleges inj uries t hat include em ot ional dist ress, int ense pain, and loss of vision. The defendant not es t he uncont rovert ed evidence est ablishes t hat t he plaint iff was t reat ed at t he hospit al before she was booked int o t he j ail and was released from cust ody less t han sixt een hours lat er. During her brief period of cust ody, t he plaint iff did not inform t he defendant st aff of any serious healt h problem s, and t he st aff did not observe t he plaint iff t o be suffering from any serious m edical condit ions. When t he plaint iff did 39 com plain of a t oot hache, t he st aff t ook her t o t he urgent care facilit y where she received addit ional blood pressure m edicat ion. I n sum , t he plaint iff received m edical care t wice wit hin a 24- hour period, and t here is no m edical evidence of any diagnosis of a serious m edical need t hat went unt reat ed. The j ail st aff denies knowledge of any alleged bladder condit ion, and t here is no evidence of t his being a serious m edical condit ion. The defendant s deny t hat t he double bunking of t he plaint iff for less t han 16 hours does not rise t o a const it ut ional violat ion. The cellm at e’s t hreat ening gest ures do not sust ain an Eight h Am endm ent claim , and even if t hey did, t he plaint iff failed t o not ify t he defendant s as t o show deliberat e indifference. The plaint iff responds t hat t he defendant s did not answer her calls for assist ance during her incarcerat ion. I n reply, t he defendant s point out t hat t he plaint iff’s com plaint alleges t hat she received a “ dent al block” at t he hospit al but t hat it “ wore off in t he early m orning hours of June 20t h” and she did not receive t reat m ent . ECF# 1, ¶ 167. The defendant s also not e t hat t he plaint iff was alone in her cell from 2: 45 am t hrough 6: 10 am ., as her cellm at e was at t he hospit al being t reat ed. The t reat m ent and condit ions of incarcerat ion are subj ect t o Eight h Am endm ent scrut iny which “ im poses dut ies on t hese officials, who m ust provide hum ane condit ions of confinem ent ; prison officials m ust ensure t hat inm at es receive adequat e food, clot hing, shelt er, and m edical care, and m ust t ake reasonable m easures t o guarant ee t he safet y of t he inm at es.” 40 Farm er v. Brennan, 511 U.S. 825 832 ( 1994) ( int ernal quot at ion m arks and cit at ions om it t ed) . The due process right s of a pret rial det ainee parallel t he Eight h Am endm ent right s of an inm at e. Lopez v. LeMast er, 172 F.3d 756, 759 ( 10t h Cir. 1999) ; see Cit y of Revere v. Massachuset t s General Hosp., 463 U.S. 239, 244- 45 ( 1983) . “ To prevail on a condit ions of confinem ent claim under t he Eight h Am endm ent , an inm at e m ust est ablish t hat ( 1) t he condit ion com plained of is sufficient ly serious t o im plicat e const it ut ional prot ect ion, and ( 2) prison officials act ed wit h deliberat e indifference t o inm at e healt h or safet y.” DeSpain v. Uphoff, 264 F.3d 965, 971 ( 10t h Cir. 2001) ( int ernal quot at ion m arks and cit at ions om it t ed) . To m eet t he first requirem ent , “ t he inm at e m ust show t hat he is incarcerat ed under condit ions posing a subst ant ial risk of serious harm .” I d. For t he second requirem ent , deliberat e indifference is “ m ore t han m ere negligence” but equal t o “ recklessness, in which a person disregards a risk of harm of which he is aware.” I d. at 972. The plaint iff’s allegat ions fail t o show t hat t he condit ions of her 16- hour confinem ent in j ail rise were sufficient ly serious as t o im plicat e const it ut ional prot ect ion. Even assum ing such allegat ions, t he plaint iff’s com plaint ut t erly fails t o allege fact s sufficient t o infer deliberat e indifference on t he defendant s’ part . The plaint iff has failed t o cont rovert t he conclusive fact s and rebut t he com pelling legal argum ent s t hat t he defendant s have m ade for dism issal of t hese claim s. 41 To prevail on a m edical care claim , “ deliberat e indifference t o serious m edical needs of prisoners const it ut es t he ‘unnecessary and want on inflict ion of pain’ . . . proscribed by t he Eight h Am endm ent .” Est elle v. Gam ble, 429 U.S. 91, 104 ( 1976) . The Tent h Circuit has applied t he rule from Est elle t o “ pret rial det ainees” holding t hat t hey are “ ’ent it led t o t he degree of prot ect ion against denial of m edical at t ent ion which applies t o convict ed inm at es.’” Est at e of Booker v. Gom ez, 745 F.3d 405, 429 ( 10t h Cir. 2014) ( quot ing Garcia v. Salt Lake Cnt y., 768 F.2d 303, 307 ( 10t h Cir. 1985) ) . A “ due process st andard” applies t hat “ prot ect s pret rial det ainees against deliberat e indifference t o t heir serious m edical needs.” I d. The following is t he law governing t he plaint iff’s claim : To st at e a denial of m edical care claim , a plaint iff m ust sat isfy “ bot h an obj ect ive and a subj ect ive com ponent .” Mat a v. Saiz, 427 F.3d 745, 751 ( 10t h Cir. 2005) ( quot at ions om it t ed) . First , t he det ainee m ust “ produce obj ect ive evidence t hat t he deprivat ion at issue was in fact sufficient ly serious.” I d. ( quot at ions om it t ed) . “ [ A] m edical need is sufficient ly serious if it is one . . . t hat is so obvious t hat even a lay person would easily recognize t he necessit y for a doct or's at t ent ion.” I d. ( quot at ions om it t ed) ; see also Sealock v. Colorado, 218 F.3d 1205, 1209 ( 10t h Cir. 2000) ( sam e) . Second, under t he subj ect ive com ponent , t he det ainee m ust est ablish deliberat e indifference t o his serious m edical needs by “ present [ ing] evidence of t he prison official's culpable st at e of m ind.” Mat a, 427 F.3d at 751. He m ust show t hat t he prison “ official act ed or failed t o act despit e his knowledge of a subst ant ial risk of serious harm .” Farm er v. Brennan, 511 U.S. 825, 842, 114 S.Ct . 1970, 128 L.Ed.2d 811 ( 1994) . “ The Suprem e Court [ has] caut ioned t hat ‘an inadvert ent failure t o provide adequat e m edical care’ does not rise t o a const it ut ional violat ion.” Mart inez v. Beggs, 563 F.3d 1082, 1088 ( 10t h Cir.2009) ( quot ing Est elle, 429 U.S. at 105–06, 97 S.Ct . 285) . But “ [ w] het her a prison official had t he requisit e knowledge of a subst ant ial risk is a quest ion of fact subj ect t o dem onst rat ion in usual ways, including inference from circum st ant ial evidence.” Gonzales v. 42 Mart inez, 403 F.3d 1179, 1183 ( 10t h Cir.2005) ( quot ing Farm er, 511 U.S. at 842, 114 S.Ct . 1970) . Est at e of Booker, 745 F.3d at 430. The plaint iff’s allegat ions and evidence do not present a quest ion of fact over t he seriousness of t he plaint iff’s m edical needs in light of t he care and t reat m ent t hat she received during t he 16 hours of confinem ent . She arrived t hat evening having been t reat ed and m edicat ed for her needs, and t he next m orning she received addit ional m edical t reat m ent and was released before noon. These sam e uncont rovert ed fact s prevent any plausible allegat ion t hat t he defendant s act ed wit h deliberat e indifference t o her m edical needs. Cou n t 8 —D u e Pr oce ss Under t his count , t he plaint iff m at erially alleges: 263. As described m ore fully above, all of t he Defendant s, while act ing individually, j oint ly, and in conspiracy, as well as under color of law and wit hin t he scope of t heir em ploym ent , deprive Plaint iff of her const it ut ional right t o due process. 264. I n t he m anner described m ore fully above, t he Defendant s deliberat ely violat ed t he const it ut ional right s of Plaint iff by deliberat ely dest roying evidence, causing t he Plaint iff t o be arrest ed for disorderly conduct wit h no basis in fact for t he arrest , and by dem anding t hat Plaint iff agree t o pay for em ergency m edical services as a condit ion of t ransport ing his prisoner, t o t he Em ergency Room for m edical t reat m ent . ECF# 1. I n opposing dism issal/ sum m ary j udgm ent , t he plaint iff argues t his due process claim is based on t he officers processing her DUI arrest while failing t o provide m edical care and m edicat ion for her abscessed t oot h and high blood pressure. Specifically, t he plaint iff com plains t he defendant s invest igat ed her DUI rat her t han addressing her m edical needs and t hen 43 refused t o help her. As for any allegat ion concerning t he lawfulness of her arrest , t he plaint iff has not cont rovert ed fact s est ablishing t hat she com m it t ed driving violat ions leading t o t he t raffic st op, t hat t here was a st rong odor of alcohol on t he plaint iff, and t hat t he breat h t est ing result s showed significant levels of alcohol. The plaint iff has adm it t ed in her com plaint t o unlawfully driving under t he influence. The sam e deliberat e indifference st andard governs t he plaint iff’s lack of m edical care claim here. The plaint iff’s allegat ions fail t o show a m edical need so obvious t hat “ a lay person would easily recognize t he necessit y for doct or’s at t ent ion.” Est at e of Booker, 745 F.3d at 430. The plaint iff’s alleged m edical needs had not forced her t o seek im m ediat e m edical care for t hem prior t o t he t raffic st op and arrest . I n fact , t hey had not kept her from driving a vehicle while she was adm it t edly under t he influence of alcohol. The plaint iff’s subj ect ive com plaint s of seriousness are not enough under t he circum st ances t o est ablish t he obj ect ive com ponent or t o provide t he defendant s wit h t he requisit e knowledge for t he subj ect ive com ponent . Cou n t 9 —1 4 t h Am e n dm e n t —Righ t t o Pr iva cy The plaint iff alleges here: 270. I n t he m anner described m ore fully above, t he Defendant s deliberat ely violat ed Plaint iff’s const it ut ional right t o privacy by discussing Plaint iff am ongst t hem selves and wit h ot her t ownspeople, including Plaint iff’s fam ily and business associat es, wit h t he int ent ion of harm ing t he Plaint iff’s incom e, fam ily relat ions, and social relat ions, com m only known as “ m eddling.” 44 271. For no j ust ifiable law enforcem ent purpose, Defendant Cole Dinkel cult ivat ed as inform ant s and discussed t he Plaint iff’s life wit h Plaint iff’s t enant s and fam ily, which had a direct and negat ive im pact on all of t heir decisions and at t it udes in regard t o t he Plaint iff. ECF# 1. The defendant s recognize t hat t he const it ut ional right t o privacy includes t he int erest of inform at ional privacy and prot ect s “ t he individual int erest in disclosure of personal m at t ers.” Whalen v. Roe, 429 U.S. 589, 599- 600 ( 1977) . “ An individual is t hus prot ect ed from disclosure of inform at ion where t he individual has a legit im at e expect at ion . . . t hat it will rem ain confident ial.” Aid for Wom en v. Foulst on, 441 F.3d 1101, 1116 ( 10t h Cir. 2006) ( int ernal quot at ion m arks and cit at ion om it t ed) . “ The legit im acy of t his expect at ion depends, at least in part , upon t he int im at e or ot herwise personal nat ure of t he m at erial which t he st at e possesses.” Sheet s v. Salt Lake Count y, 45 F.3d 1383, 1387 ( 10t h Cir.) ( int ernal quot at ion m arks and cit at ion om it t ed) , cert . denied, 516 U.S. 817 ( 1995) . At m ost , t he plaint iff alleges t he defendant s m ay have m eddled in her life by t alking about her and her life wit h fam ily and business associat es. The com plaint fails t o allege and t he plaint iff does not offer proof t hat t he defendant s disclosed personal and confident ial inform at ion held by t he Cit y about which she had a legit im at e expect at ion of privacy. The plaint iff’s com plaint does not allege int erest s or act ions t hat im plicat e a const it ut ional right t o privacy when it is based on not hing m ore t han a public em ployee giving his opinions about ot hers wit hout disclosing confident ial m at erial. Because t he plaint iff did not respond t o t he defendant s’ argum ent s 45 for dism issal of t his count , t he court also grant s here t he defendant s’ m ot ion as uncont est ed. M u n icipa l Lia bilit y For each of her federal claim s of relief, t he plaint iff includes t he conclusory allegat ion t hat , “ The m isconduct described in t his Count was undert aken pursuant t o t he policy and pract ice of t he Cit y of Vict oria in t he m anner described m ore fully above.” ECF# 1, ¶¶ 201, 211, 220, 231, 239, 247, 262, 267, 274, 281, and 286. I n som e of t hese cit ed paragraphs, t he plaint iff also nam es Ellis Count y, Kansas. The defendant Cit y cont ends t he plaint iff’s com plaint fails t o allege a specific policy, t o ident ify t he policy, or t o allege t he fact s indicat ing t he exist ence of a policy. I nst ead, t he plaint iff sim ply repeat s t his form ulaic, conclusory allegat ion. The plaint iff lim it s her response t o saying t hat in her DUI proceedings she request ed a copy of all operat ing procedures governing t he Cit y’s police depart m ent and learned t here were none for t his t wo- m an depart m ent . From t his, t he plaint iff charact erizes t he Cit y as invit ing “ arbit rary enforcem ent ” and disregard of cit izen’s right s. Finally, t he plaint iff concludes, “ I f t he only way t hat t he cit y can be held liable is t o show t hat it failed t o follow accept able policies and procedures, but t here are no writ t en policies or procedures, t hen it would be im possible t o hold ( sic) responsible for anyt hing.” ECF# 47, p. 31. I n reply, t he defendant s not e t hat t he lack of w rit t en policies does not relieve t he plaint iff from proving a policy and pract ice. 46 To prove a § 1983 m unicipal liabilit y claim , a m unicipal em ployee m ust have com m it t ed a const it ut ional violat ion, and “ a m unicipal policy or cust om was t he m oving force behind t he const it ut ional deprivat ion.” Jiron v. Cit y of Lakewood, 392 F.3d 410, 419 ( 10t h Cir. 2004) ( cit at ions om it t ed) . The above rulings show t he plaint iff has not alleged or is not able t o prove a const it ut ional violat ion. The Tent h Circuit has said t he following as t o policy or cust om : A m unicipal policy or cust om m ay t ake t he form of ( 1) a form al regulat ion or policy st at em ent ; ( 2) an inform al cust om am ount ing t o a widespread pract ice t hat , alt hough not aut horized by writ t en law or express m unicipal policy, is so perm anent and well set t led as t o const it ut e a cust om or usage wit h t he force of law; ( 3) t he decisions of em ployees wit h final policym aking aut horit y; ( 4) t he rat ificat ion by such final policym akers of t he decisions—and t he basis for t hem —of subordinat es t o whom aut horit y was delegat ed subj ect t o t hese policym akers' review and approval; or ( 5) t he failure t o adequat ely t rain or supervise em ployees, so long as t hat failure result s from deliberat e indifference t o t he inj uries t hat m ay be caused. Bryson v. Cit y of Oklahom a Cit y, 627 F.3d 784, 788 ( 10t h Cir. 2010) ( int ernal quot at ion m arks and cit at ions om it t ed) , cert . denied, 564 U.S. 1019 ( 2011) . The court agrees wit h t he defendant s t hat t he plaint iff has failed t o allege any viable basis for a m unicipal policy or cust om . D e clin e t o Ex e r cise Su pple m e n t a l Ju r isdict ion Under 28 U.S.C. § 1367( c) , t he Court m ay decline t o exercise supplem ent al j urisdict ion if it has dism issed all claim s over which it has original j urisdict ion. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 ( 2006) . The Court considers t he nat ure and ext ent of pret rial proceedings, j udicial 47 econom y, convenience and whet her fairness would be served by ret aining j urisdict ion. Anglem yer v. Ham ilt on Ct y. Hosp., 58 F.3d 533, 541 ( 10t h Cir. 1995) . I n t he usual case, t he balance of fact ors point s t oward declining t o exercise j urisdict ion over t he rem aining st at e law claim s. McWilliam s v. Jefferson Ct y., 463 F.3d 1113, 1118 ( 10t h Cir. 2006) . The Court finds no com pelling reasons t o exercise supplem ent al j urisdict ion t o decide t he m erit s of plaint iff's st at e law claim s. This ruling on t he federal law claim s is occurring early in t he lit igat ion. The m agist rat e j udge st ayed discovery pending a ruling on t he disposit ive m ot ions. ECF# 46. Under t hese circum st ances, t he court declines t o exercise supplem ent al j urisdict ion. I T I S THEREFORE ORDERED t hat t he Vict oria defendant s’ m ot ion for sum m ary j udgm ent ( ECF# 32) and t he Ellis Count y defendant s’ m ot ion for sum m ary j udgm ent ( ECF# 39) are grant ed as t o all federal claim s for relief ( Count s 1- 11) which are dism issed wit h prej udice, and t he court declines t o exercise supplem ent al j urisdict ion over t he plaint iff’s st at e law claim s for relief ( Count s 12- 16) which are dism issed wit hout prej udice. Dat ed t his 18 t h day of August , 2017, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 48

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