Cook v. Olathe Medical Center, Inc. (773 F. Supp. 2d 990, 2011)

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

Samantha Cook brings suit against Olathe Medical Center, Inc. (“OMC”), Melissa Davenport, a nurse at OMC, Lee R. Kibbee and Wesley H. Smith, both Olathe police officers, the City of Olathe (the “City”), Ronald Karlin, a doctor at OMC and Kim Wheeler, a nurse at OMC. Under 42 U.S.C. § 1983 and Kansas law, plaintiff asserts claims for violation of her constitutional rights, battery, intentional or negligent infliction of emotional distress, negligence and violation of privacy and patient rights. See Second Amended Complaint For Damages (“Second Amended Complaint ”) (Doc. # 160) filed January 7, 2011. This matter comes before the Court on plaintiffs Memorandum In Support Of Plaintiff’s Motion For Partial Summary Judgment Against Defendants Kibbee And Smith (“Plaintiffs Memorandum ”) (Doc. # 53) filed July 27, 2010 and Defendants’ Cross-Motion For Summary Judgment (Doc. # 77) which Kibbee, Smith and the City filed August 24, 2010. For reasons stated below, the Court overrules plaintiffs motion for partial summary judgment and sustains in part defendants’ motion for summary judgment.

1. Legal Standards

A. Summary Judgment

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. A “genuine” factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive matters for which it carries the burden of proof. See Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party’s evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250-51, 106 S.Ct. 2505. In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial. Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505.

B. Qualified Immunity

Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity provides government officials immunity from suit as well as from liability for their discretionary acts. See Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The doctrine of qualified immunity serves the goals of protecting officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority. Butz v. Hconomou, 438 U.S. 478, 506, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).

When defendants assert a qualified immunity defense at the summary judgment stage, the burden shifts to plaintiff to show that defendants violated a constitutional right and that the constitutional right was clearly established at the time of the alleged violation. Vondrak v. City of Las Cruces, 535 F.3d 1198, 1204 (10th Cir.2008). To satisfy this burden, plaintiff must show facts which, when viewed in the light most favorable to plaintiff, show that defendants conduct violated a constitutional right and that the right was clearly established at the time of the alleged violation. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir.2002) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). If plaintiff does so, the burden shifts back to defendants to prove that no genuine issues of material fact exist and that defendants are entitled to judgment as a matter of law. See Olsen, 312 F.3d at 1312. If the record shows an unresolved issue of fact relevant to the qualified immunity analysis, the Court must deny the motion for summary judgment. See id.

II. Facts

The following facts are either uncontroverted or where controverted, the contentions of each party are noted.

Kibbee and Smith work as police officers for the City of Olathe. On April 17, 2008, when plaintiff was driving northbound on 1-35, Kibbee stopped her for speeding. A few minutes later, Smith joined Kibbee in the traffic stop. Kibbee smelled alcohol on plaintiff and suspected that she was driving under the influence of alcohol. Before beginning field sobriety tests, Kibbee performed a “pat-down” search of plaintiff. The search included placing his hands in plaintiffs jeans pockets. After performing field sobriety tests, Kibbee arrested plaintiff for driving under the influence (“DUI”). He cuffed her hands behind her back and placed her in the back seat of the patrol car. Kibbee and Smith left plaintiff in the back seat of the patrol car and began to search her vehicle.

While plaintiff was in the back seat of the patrol car, she began to hyperventilate. Defendants contend that plaintiff was screaming, yelling, kicking, biting and spitting. See Defendants’ Exhibit 1, suppression hearing transcript at 9. Plaintiff contends that she did not scream or kick, but only knocked on the window. See Plaintiffs Reply Exhibit 2 at 52. Defendants contend that plaintiff began yelling and informed Smith that she was claustrophobic and needed to be removed from the patrol car. Smith replied that that was not an option. A few minutes later, Kibbee and/or Smith believed that plaintiff was having trouble breathing and called an ambulance. Smith got plaintiff out of the patrol car and had her kneel on the side of the road. See Plaintiffs Exhibit I.

A Med-Act ambulance responded to the scene. Plaintiff asked to go to the hospital. Med-Act personnel strapped plaintiff to a stretcher and placed her in the ambulance. On the stretcher, plaintiff laid on her right side with her hands cuffed behind her back and straps securing her torso and feet to the stretcher. See Plaintiffs Exhibit A at approx. 3:35:06. At that time, plaintiffs behavior was cooperative. See id.; Plaintiffs Exhibit L. For at least ten minutes, plaintiff remained in the ambulance while Kibbee and/or Smith searched her vehicle. See Plaintiffs Exhibit A at approx. 3:35:00-3:42:20. At some point, Kibbee and Smith got in the ambulance and rode with plaintiff to the hospital. The ambulance ride lasted about 15 minutes.

In the ambulance, plaintiff began yelling and screaming and became combative. The parties dispute when this occurred. Defendants maintain that plaintiff attempted to kick a paramedic and that they had to restrain her to prevent injury to herself, the paramedics and the officers. See Defendants’ Exhibit 1, suppression hearing transcript at 10:12-22. Plaintiff contends that she became combative only in response to force used by the officers and that she did not intend to kick the paramedic. See Plaintiff’s Reply (Doc. # 86) ¶ 44. Plaintiff testified that after the officers got in the ambulance they started feeling around, “like checking my pockets and then, like holding, like, squeezing my face and they were just all over me.” Plaintiffs Reply Exhibit 2 at 55:16-18. Plaintiff testified that she was trying to get the officers’ hands off her and stop them from pinching, squeezing and holding her down. See Plaintiffs Exhibit Q. Plaintiff testified that at one point Kibbee choked her and that as a result of the officers’ actions, she suffered bruises on her arms. See Plaintiffs Exhibits R and T. Plaintiff remained in handcuffs during this time.

The ambulance took plaintiff to the emergency room at OMC. Upon arriving at the hospital, plaintiff continued to scream and kick. Kibbee believed that plaintiff was a threat to herself and all others present. In Kibbee and Smith’s presence, hospital nurses removed plaintiffs clothes and put her in a hospital gown. During the clothes swap, Smith held plaintiffs left arm but turned away, trying not to look at her. See Defendant’s Exhibit 1, suppression hearing transcript at 36:4-6. Dr. Karlin examined plaintiff and ordered blood and urine samples to ensure that plaintiff was not in need of potentially life saving treatment. See Defendants’ Exhibit 2, ¶ 1. Dr. Karlin also ordered that Cook be secured to the bed with hospital restraints.

At an unknown time, Kibbee read plaintiff the Kansas implied consent advisory to obtain consent for a blood or urine sample. Plaintiff did not respond.

Kibbee and Smith held plaintiff down so that nurses could draw blood and take a urine sample. So that OMC nurses could insert a catheter in plaintiff, Kibbee held one of her legs while Smith held the other leg. See Plaintiffs Exhibit BB. At the time, plaintiff was restrained to the bed by hospital restraints, i.e. broad leather straps around her arms. See Plaintiffs Exhibit EE. Plaintiff was not restrained by handcuffs at that time. If Kibbee and Smith did not hold plaintiff down, OMC nurses would not have been able to obtain the blood and urine samples without jeopardizing their safety. See Plaintiffs Exhibits

Kibbee obtained plaintiffs blood and urine samples from the hospital and submitted them to the Kansas Bureau of Investigation for testing. See Plaintiffs Exhibits AA.

As a result of the arrest, the prosecutor for Johnson County, Kansas charged plaintiff with a variety of crimes including refusing a preliminary breath test, possession of drug paraphernalia, driving under the influence, battery and battery on a law enforcement officer. During plaintiffs criminal trial, Kibbee and Smith testified that plaintiff battered them, causing physical injuries. Plaintiff testified that she committed the acts of battery in self defense. Dr. Karlin testified that plaintiffs blood test showed that her blood alcohol content was .153, nearly, double the legal driving limit of .08. Following trial, a jury convicted plaintiff on all charges. Plaintiff has not been sentenced for the crimes and has not filed a notice of appeal.

On April 17, 2009, plaintiff filed a notice of claim with the City of Olathe.

On March 8, 2010, plaintiff filed her complaint in this case. See Doc. # 1. In the complaint, plaintiff asserted claims against Olathe Health System, Inc. (“OHS”), Davenport, Kellie Moulin, Kibbee, Smith and the City of Olathe Police Department (the “Police Department”) for battery, intentional or negligent infliction of emotional distress, negligence and violation of constitutional rights. See id.

On March 22, 2010, plaintiff filed an amended complaint. See Doc. # 3. In the amended complaint, plaintiff asserted claims against OHS, Davenport, Kibbee, Smith, the Police Department, Karlin and Wheeler for battery, intentional or negligent infliction of emotional distress, negligence and violation of constitutional rights. See id.

On July 27, 2010, plaintiff filed a motion for partial summary judgment on her claims against Kibbee and Smith. See Doc. # 53.

On August 2, 2010, plaintiff filed a motion for leave to file a second amended complaint. See Doc. # 57.

On August 27, 2010, Kibbee, Smith and the City of Olathe filed a motion for summary judgment on all claims against them. See Doc. # 77.

On December 30, 2010, 2010 WL 5479686, the Court granted plaintiff leave to file her second amended complaint. See Memorandum And Order (Doc. # 158).

On January 7, 2011, plaintiff filed the second amended complaint. See Doc. # 160. In the second amended complaint, plaintiff asserts claims against OMC, Davenport, Kibbee, Smith, the City, Karlin and Wheeler for battery, intentional or negligent infliction of emotional distress, negligence, violation of privacy and patient rights and violation of constitutional rights. See id

III. Analysis

Against Kibbee, Smith and the City, plaintiff asserts the following claims: (1) Kibbee unlawfully searched her in violation of the Fourth and Fourteenth Amendments (Count I); (2) Kibbee and Smith battered her in violation of state law (Count II); (3) the City is liable for excessive force, unlawful search and seizure, failure to train, allowing officers to withhold exculpatory evidence and write incomplete reports and violation of privacy rights in violation of the Fourth, Fifth, Ninth and Fourteenth Amendments (Count V); (4) Kibbee and Smith are liable for excessive force, unlawful search and seizure, violation of privacy and failure to intervene and/or prevent others from performing illegal actions against plaintiff in violation of the Fourth, Fifth, Ninth and Fourteenth Amendments (Count VI); and (5) Kibbee and Smith violated plaintiffs right to refuse treatment and right to privacy under undisclosed law (Count VIII). See Second Amended Complaint (Doc. # 160).

Plaintiff seeks partial summary judgment on her claims against Kibbee and Smith. Specifically, plaintiff asserts that as a matter of law, Kibbee and Smith violated her rights under the Fourth, Fifth and Fourteenth Amendments by (1) using excessive force in the ambulance; (2) performing an unnecessary strip search; and (3) holding her down at the hospital to obtain blood and urine samples. See Plaintiff’s Memorandum (Doc. # 53) at 7-17.

Kibbee, Smith and the City seek summary judgment on some of plaintiffs claims. Specifically, defendants assert that as a matter of law (1) Kibbee and Smith did not use excessive force against plaintiff in the ambulance or at the hospital and that even if they did use excessive force, they did not violate clearly established rights, see Defendants’ Memorandum (Doc. # 78) at 10-12; (2) Kibbee and Smith did not conduct a strip search of plaintiff and that even if they did conduct a strip search, they did not violate clearly established rights, see id. at 12-14; (3) Kibbee and Smith did not conduct a body cavity search of plaintiff and that even if they did conduct a body cavity search, they did not violate clearly established rights, see id. at 14-18; (4) Kibbee and Smith did not violate plaintiffs right to privacy or other patient rights and that even if they did, such right was not clearly established, see id. at 18-19; (5) the Supreme Court decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), bars plaintiffs Section 1983 claims, see id. at 19-21; (6) because Kibbee and Smith did not violate plaintiffs constitutional rights, the City is not liable, see id. at 21; and (7) the state law battery claims are time barred, see id. at 21-22.

A. Plaintiffs Motion For Summary Judgment

Plaintiff seeks summary judgment on her claims that Kibbee and Smith violated her constitutional rights by (1) using excessive force in the ambulance; (2) performing an unnecessary strip search; and (3) holding her down at the hospital to obtain blood and urine samples. See Plaintiffs Memorandum (Doc. # 53) at 7-

17.

1. Whether Plaintiff Is Entitled To Summary Judgment On Her Claim That Kibbee And Smith Used Excessive Force In The Ambulance

Plaintiff asserts that as a matter of law, Kibbee and Smith violated her constitutional rights by using excessive force in the ambulance. See Plaintiffs Memorandum (Doc. # 53) at 6-7. The objective reasonableness standard of the Fourth Amendment governs a claim of post-arrest excessive force. See Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Frohmader v. Wayne, 958 F.2d 1024, 1026 (10th Cir.1992). Under the Fourth Amendment, the question is whether the defendants’ actions were objectively reasonable in light of the facts and circumstances confronting them, without regard to underlying intent or motivation. See Graham, 490 U.S. at 397, 109 S.Ct. 1865. The fact finder must view reasonableness from defendants’ perspective on the scene rather than with the “20/20 vision of hindsight.” Id. at 396, 109 S.Ct. 1865. The ultimate inquiry is whether from the perspective of a reasonable officer, the totality of the circumstances justified the use of force. See Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1260 (10th Cir.2008). This reasonableness standard is clearly established for purposes of Section 1983 and requires the Court to balance several factors including the severity of the alleged crime, the degree of threat which the suspect poses to the officer and the public and whether the suspect cooperates or resists. See Graham, 490 U.S. at 396-97, 109 S.Ct. 1865; Olsen, 312 F.3d at 1314.

In support of her motion for summary judgment, plaintiff argues that defendants used excessive force in the ambulance, but she does not discuss the factual record in this regard. See Plaintiffs Memorandum (Doc. # 53) at 6-7. Plaintiff presents evidence that in the ambulance, she was cooperative until Kibbee and Smith got into the vehicle and started feeling around, “like checking my pockets and then, like holding, like, squeezing my face and they were just all over me.” Plaintiffs Reply Exhibit 2 at 55:16-18. Plaintiff was handcuffed and strapped to a stretcher at the time. She contends that she became combative only in response to force used by defendants, and that she was trying to get defendants’ hands off her and stop them from pinching, squeezing and holding her down. See Plaintiffs Exhibit Q. Plaintiff testified that Kibbee choked her and that as a result of defendants’ actions, she suffered bruises on her arms. See Plaintiffs Exhibits R and T.

Defendants dispute plaintiffs version of the facts. Specifically, defendants maintain that plaintiff attempted to kick a paramedic and that they had to restrain her to prevent injury to herself, the paramedics and the officers. See Defendants’ Exhibit 1, suppression hearing transcript at 10:12-22. Viewed in the light most favorable to defendants, the record presents a genuine issue of material fact as to whether under the totality of the circumstances, defendants used an objectively unreasonable amount of force in the ambulance. Plaintiff is not entitled to summary judgment on this claim.

2. Whether Plaintiff Is Entitled To Summary Judgment On Her Claim That Kibbee And Smith Performed An Unnecessary Strip Search

Plaintiff asserts that as a matter of law, Kibbee and Smith violated her constitutional rights by conducting a strip search at the hospital. See Plaintiff’s Memorandum (Doc. # 53) at 8-10, 14-15. The Fourth Amendment requires a balancing of the need for a particular search against the invasion of personal rights that the search entails. See Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir.2008) (quoting Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). In determining whether a search violates the Fourth Amendment, the Court must consider the scope of the particular intrusion, the manner in which it was conducted, the justification for initiating it and the place in which it is conducted. See id.

Plaintiff asserts that “[t]he mere fact that Defendants Kibbee and Smith, as opposite sex police officers, viewed Samantha Cook in various states of nakedness establishes a clear violation of her civil rights and Kansas law.” Plaintiffs Memorandum (Doc. # 53) at 14. As an initial matter, the summary judgment record does not establish that Kibbee and Smith viewed plaintiff “in various states of nakedness.” Plaintiff points to no evidence which supports her assertion. Smith testified that while hospital nurses removed plaintiffs clothes and put her in a hospital gown, he held plaintiffs left arm but turned away, trying not to look. See Defendant’s Exhibit 1, suppression hearing transcript at 36:4-6. Viewed in the light most favorable to defendants, the facts suggest that Kibbee and Smith remained in the hospital emergency room to prevent plaintiff from injuring herself and others during necessary medical procedures, and that they tried not to look at plaintiff during moments of undress. Plaintiff points to no authority which establishes that as a matter of law, such acts violated her constitutional rights. See Plaintiff’s Memorandum (Doc. # 53) at 8-10. On this record, plaintiff is not entitled to summary judgment on her claim that Kibbee and Smith performed an unconstitutional strip search.

3. Whether Plaintiff Is Entitled To Summary Judgment On Her Claims That Kibbee And Smith Violated Her Constitutional Rights By Holding Her Down To Obtain Blood And Urine Samples

Plaintiff asserts that as a matter of law, Kibbee and Smith violated her constitutional rights by holding her down to obtain blood and urine samples. Specifically, plaintiff contends that (1) exigent circumstances did not support a forced blood or urine draw, see id. (Doc. # 53) at 11-17; and (2) the forced catheterization constituted an unconstitutional body cavity search. See id. at 10-11.

The Fourth Amendment governs intrusions into the human body, including compulsory blood and urine tests. See Schmerber v. Calif, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Sanders v. Thomas, 167 Fed.Appx. 723, 724-25 (10th Cir.2006). Such intrusions constitute searches under the Fourth Amendment and are forbidden unless they are justified in the circumstances and made in a proper manner. See Schmerber, 384 U.S. at 768, 86 S.Ct. 1826. To determine whether a police-ordered blood or urine test violates the Fourth Amendment, the Court must determine (1) whether police were justified in requiring the test; and (2) whether police used reasonable means and procedures in taking the sample. See id. Absent a warrant, police are not justified in requiring a blood or urine sample unless probable cause and exigent circumstances exist. See Marshall v. Columbia Lea Reg’l Hosp., 474 F.3d 733, 741 (10th Cir.2007).

a. Whether Exigent Circumstances Justified Forced Blood And Urine Draws

Plaintiff asserts that based on Kansas law, exigent circumstances did not support a forced blood or urine draw. Specifically, plaintiff points to K.S.A. § 8-1001, which she contends “clearly specifies when a chemical test can be compelled in a DUI case and allows a blood or urine test to be forced only when the suspect was involved in an accident resulting in serious injury or death of any person.” Plaintiff’s Memorandum (Doc. # 53) at 12. To determine whether exigent circumstances exist for Fourth Amendment purposes, it is appropriate to look to state law. See Marshall, 474 F.3d at 742.

Section 8 — 1001(d) provides that, inter alia, a law enforcement officer may direct a medical professional to draw a sample of blood if the person was operating a vehicle which has been involved in an accident or collision resulting in serious injury or death of any person and the operator could be cited for any traffic offense. See K.S.A. § 8 — 1001(d)(3). Under this provision, because plaintiff was not involved in an accident resulting in serious injury or death, it appears that Kansas law would not support a finding of exigent circumstances to justify a forced blood or urine draw. See, e.g., Marshall, 474 F.3d at 746.

Defendants do not contend that exigent circumstances supported a forced blood or urine draw. See Defendants’ Memorandum (Doc. # 78) at 15-25. Rather, defendants assert that they did not cause the procedures to occur. Specifically, defendants contend that they did not order the tests and that their only role was to restrain plaintiff during the procedures. See id. at 15-18. The record presents a genuine issue of material fact in this regard. Defendants have presented evidence that Dr. Karlin ordered the blood and urine draws to ensure that plaintiff was not in need of potentially life saving treatment. On the other hand, some evidence suggests that Kibbee and Smith may have facilitated the procedures to obtain samples for plaintiffs criminal proceedings. Viewing the facts in the light most favorable to defendants, a reasonable fact finder could conclude that Kibbee and Smith did not cause the forced blood and urine draws. On this record, plaintiff is not entitled to summary judgment on these claims.

b. Whether Kibbee and Smith Performed An Unconstitutional Body Cavity Search

Plaintiff contends that as a matter of law, by forcing her catheterization, Kibbee and Smith performed an unconstitutional body cavity search. In support of her argument, plaintiff cites Rochin v. Calif., 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) and Yanez v. Romero, 619 F.2d 851 (10th Cir.1980). See Plaintiff’s Memorandum (Doc. # 53) at 10-11. In those cases, the courts addressed whether police conduct violated substantive due process rights. In Rochin, the Supreme Court found that gross and extreme conduct by police which shocked the conscience — i.e. seizing defendant from his bedroom without warrant and forcibly pumping his stomach — violated a defendant’s right to due process. 342 U.S. at 172-74, 72 S.Ct. 205.

In Yanez, petitioner submitted to a urine test after police threatened to use a catheter. A jury relied on the urine tests results to convict petitioner of unlawful possession of morphine. Petitioner sought habeas relief under 28 U.S.C. § 2254, alleging that police violated his constitutional rights in obtaining the urine sample under threat of catheterization. The federal district court denied relief. On appeal, the Tenth Circuit affirmed, finding that unlike the facts in Rochin, the facts in Yanez were not gross and extreme. See id. at 854. Thus, the Tenth Circuit found no due process violation. See id. at 854-55. In dicta, the Tenth Circuit stated that if a catheter had actually been used, the case would be “much closer” to the facts in Rochin. Id. at 855-56. The Tenth Circuit stated that the forceful use of a catheter to obtain a body fluid is a “gross personal indignity,” id. at 855, and that the state’s apparent frequent use of a catheter is “an undesirable practice which is ultimately likely to produce a fact situation which will be ruled shocking and unlawful.” Id. at 854.

Rochin and Yanez provide some support for the conclusion that forced catheterization may violate a person’s substantive due process rights. They do not, however, compel such conclusion as a matter of law. Moreover, as discussed, a material fact issue exists as to whether Kibbee and Smith caused the forced catheterization. On this record, plaintiff is not entitled to summary judgment.

B. Defendants’ Motion For Summary Judgment

Defendants assert that as a matter of law (1) Kibbee and Smith did not use excessive force in the ambulance or at the hospital and that even if they did use excessive force, they did not violate clearly established rights, see Defendants’ Memorandum (Doc. # 78) at 10-12; (2) Kibbee and Smith did not conduct a strip search and that even if they did conduct a strip search, they did not violate clearly established rights, see id. at 12-14; (3) Kibbee and Smith did not conduct a body cavity search and that even if they did conduct a body cavity search, they did not violate clearly established rights, see id. at 14 — 18; (4) Kibbee and Smith did not violate plaintiffs right to privacy or other patient rights and that even if they did, such right was not clearly established, see id. at 18-19; (5) the Supreme Court decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), bars plaintiffs Section 1983 claims, see id. at 19-21; (6) because Kibbee and Smith did not violate plaintiffs constitutional rights, the City is not liable, see id. at 21; and (7) plaintiffs state law battery claims are time barred, see id. at 21-22.

1. Whether Defendants Are Entitled To Summary Judgment On Plaintiffs’ Claims For Excessive Force

Defendants assert that as a matter of law Kibbee and Smith did not use excessive force in the ambulance or at the hospital and that even if they did use excessive force, they did not violate clearly established rights. See Defendants’ Memorandum (Doc. # 78) at 10-12. To overcome the qualified immunity defense at summary judgment, plaintiff must show that defendants violated a constitutional right which was clearly established at the time of the alleged violation. See Vondrak, 535 F.3d at 1204. To determine whether plaintiff has shown violation of a constitutional right, the Court must ascertain whether viewed in the light most favorable to plaintiff, the facts show that defendants used excessive force, ie. whether in light of the facts and circumstances, defendants used an amount of force which was not objectively reasonable from the perspective of a reasonable officer on the scene. See Bridges v. Yeager, 352 Fed.Appx. 255, 258 (10th Cir.2009).

a. Whether Kibbee And Smith Used Excessive Force In Ambulance

Plaintiff presents evidence that in the ambulance, she was cooperative until Kibbee and Smith got into the vehicle and started feeling around, “like checking my pockets and then, like holding, like, squeezing my face and they were just all over me.” Plaintiffs Reply Exhibit 2 at 55:16-18. At the time, plaintiff was handcuffed and strapped to a stretcher. She contends that she became combative only in response to use of force by defendants, and that she was trying to get defendants’ hands off her and stop them from pinching, squeezing and holding her down. See Plaintiffs Exhibit Q. Plaintiff also testified that Kibbee choked her and that as a result of defendants’ actions, she suffered bruises on her arms. See Plaintiffs Exhibits R and T. Defendants dispute plaintiffs version of the facts and maintain that plaintiff attempted to kick a paramedic and that they had to restrain her to prevent injury to herself, the paramedics and the officers. See Defendants’ Exhibit 1, suppression hearing transcript at 10:12-22. In ruling on defendants’ motion for summary judgment, the Court must view the facts in the light most favorable to plaintiff. See Olsen, 312 F.3d at 1312. On this record, a reasonable fact finder could conclude that defendants used an objectively unreasonable amount of force against plaintiff in the ambulance. Thus, plaintiff has shown facts which demonstrate that defendants violated a constitutional right.

To overcome qualified immunity, plaintiff must also show that at the time of the alleged violation, the constitutional right was clearly established. See Vondrak, 535 F.3d at 1204. Ordinarily, for a rule to be clearly established, “there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must be as the plaintiff maintains.” Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). Because excessive force claims depend on the facts and circumstances of each particular case, the Tenth Circuit has found that a previously published opinion involving exactly the same circumstances will almost never exist. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir.2007). Therefore, in excessive force cases, the more relevant inquiry is whether the law put officials on fair notice that the described conduct was unconstitutional. See id. To make this determination, the Tenth Circuit has adopted a sliding scale under which the more obviously egregious the conduct is, in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation. See Casey, 509 F.3d at 1284 (quoting Pierce v. Gilchrist, 359 F.3d 1279,1298 (10th Cir.2004)). Thus, when an officer’s violation of the Fourth Amendment is particularly clear from the Supreme Court decision in Graham, the Tenth Circuit does not require a second decision with greater specificity to clearly establish the law. See Casey, 509 F.3d at 1284.

Here, plaintiff has produced evidence that while she was compliant, handcuffed and strapped to a stretcher, Kibbee and Smith started feeling around, checking her pockets and pinching, squeezing and holding her down; that Kibbee choked her; and that she suffered bruises on her arms as a result of their actions. Accepting plaintiffs version of the facts, the law is clearly established that a reasonable officer would have known that the alleged use of force was unreasonable. See, e.g., Casey, 509 F.3d at 1284-85; Bridges, 352 Fed.Appx. at 259-60. On this record, plaintiff has shown facts which demonstrate that defendants’ actions violated a constitutional right which was clearly established at the time of the alleged violation.

The burden thus shifts back to defendants to prove that no genuine issues of material fact exist and that they are entitled to judgment as a matter of law. See Olsen, 312 F.3d at 1312. Defendants assert that they restrained plaintiff for her safety and the safety of the paramedics and officers, and that the restraint was objectively reasonable under the circumstances. See Defendants’ Memorandum (Doc. # 78) at 11. Defendants have not shown an absence of material fact in this regard. As discussed, plaintiff presents evidence that while she was compliant, handcuffed and strapped to a stretcher, defendants used unreasonable physical force against her. Because the record reveals an unresolved issue of fact relevant to the qualified immunity analysis, defendants are not entitled to summary judgment on this ground. See Olsen, 312 F.3d at 1314-15; Bridges, 352 Fed.Appx. at 259-60.

b. Whether Kibbee And Smith Used Excessive Force At Hospital

Defendants assert that they are entitled to summary judgement on plaintiffs claims that they used excessive force at the hospital by holding plaintiff down for blood and urine draws. See Defendants’ Memorandum (Doc. # 78) at 10-12. As discussed, compulsory blood and urine tests constitute searches under the Fourth Amendment which must be justified in the circumstances and made in a proper manner. See Schmerber, 384 U.S. at 767-68, 86 S.Ct. 1826. Defendants do not address whether the blood and urine searches themselves were unconstitutional — only whether Kibbee and Smith used excessive force in holding plaintiff down. As noted, to overcome the qualified immunity defense, plaintiff must show that defendants violated a clearly established constitutional right, ie. that defendants used an amount of force which was not objectively reasonable from the perspective of a reasonable officer on the scene. See Vondrak, 535 F.3d at 1204; Bridges, 352 Fed.Appx. at 258.

With regard to the blood draw, plaintiff challenges the fact that Kibbee and Smith held her down for a forced blood draw, but she does not assert that in doing so, they used excessive physical force. See Plaintiff’s Response (Doc.# 98) at 21 (arguing that citizens are granted more protections in the taking of their blood than in other types of searches). In other words, if defendants were justified in holding down plaintiff for a blood draw, she apparently does not assert that they used objectively unreasonable force in doing so. On this record, to the extent plaintiff asserts a separate claim that Kibbee and Smith used excessive force in holding her down to obtain a blood sample (ie. separate from her claim that the forced blood draw constitutes an unconstitutional search), defendants are entitled to summary judgment.

With regard to the urine draw, again, plaintiff challenges the fact that Kibbee and Smith held her down for a forced catheterization, but she does not assert that in doing so, they used excessive physical force. See Plaintiffs Response (Doc. # 98) at 21 (arguing that courts have shown disdain for forced catheterization). Thus, if defendants were justified in holding plaintiff down for a urine draw, she apparently does not assert that they used objectively unreasonable force in doing so. On this record, to the extent plaintiff asserts a separate claim that Kibbee and Smith used excessive force in holding her down to obtain a urine sample (i.e. separate from her claim that the forced urine draw constitutes an unconstitutional search), defendants are entitled to summary judgment.

2. Whether Defendants Are Entitled To Summary Judgment On Plaintiffs’ Claim That Kibbee And Smith Conducted An Unconstitutional Strip Search

Defendants assert that as a matter of law, Kibbee and Smith did not conduct a strip search of plaintiff and that even if they did conduct a strip search, they did not violate clearly established rights. See Defendants’ Memorandum (Doc. # 78) at 12-14. As noted, the Fourth Amendment requires courts to balance the need for a particular search against the invasion of personal rights that the search entails. See Archuleta, 523 F.3d at 1283 (quoting Bell, 441 U.S. at 559, 99 S.Ct. 1861). In determining whether a search violates the Fourth Amendment, the Court must consider the scope of the particular intrusion, the manner in which it was conducted, the justification for initiating it and the place in which it is conducted. See Archuleta, 523 F.3d at 1283.

Defendants contend that plaintiff has presented no evidence that they conducted a strip search. The Court agrees. K.S.A. § 22-2520 defines “strip search” to mean “removing or rearranging some or all of a person’s clothing, by or at the direction of a law enforcement officer, so as to permit a visual inspection of the genitals, buttocks, anus or female breasts of such person.” K.S.A. § 22-2520. Plaintiff presents no evidence that defendants directed hospital staff to remove or rearrange plaintiffs clothing to permit visual inspection of her body. The uncontroverted evidence establishes that any removal or rearranging of clothing was done to provide medical treatment and/or obtain blood and urine samples. Moreover, plaintiff presents no evidence that defendants viewed her body. On this record, a fact finder could not reasonably conclude that defendants conducted a strip search of plaintiff. Defendants are entitled to summary judgment on this claim.

3. Whether Defendants Are Entitled To Summary Judgment On Plaintiffs’ Claim That Kibbee And Smith Conducted An Unconstitutional Body Cavity Search

Defendants assert that as a matter of law, Kibbee and Smith did not conduct a body cavity search of plaintiff and that even if they did conduct a body cavity search, they did not violate her clearly established rights. See Defendants’ Memorandum (Doc. # 78) at 14-18. Defendants apparently couch their argument in terms to match plaintiffs assertion that a forced catheterization constitutes a body cavity search. See id. at 14; Plaintiffs Memorandum (Doc. # 53) at 10. As an initial matter, the Court does not agree with plaintiffs characterization. See K.S.A. § 22-2520. Regardless of its characterization, however, the relevant inquiry is whether the forced catheterization constitutes an unreasonable search under the Fourth Amendment. Such intrusions are forbidden unless they are justified in the circumstances and made in a proper manner. See Schmerber, 384 U.S. at 768, 86 S.Ct. 1826. To determine whether the forced catheterization violates the Fourth Amendment, the Court must determine (1) whether police were justified in requiring the urine test; and (2) whether police used reasonable means and procedures in taking the urine sample. See id. Absent a warrant, police are not justified in requiring a urine test unless probable cause and exigent circumstances exist. See Marshall, 474 F.3d at 741.

Defendants assert that they are not liable for the forced catheterization because they did not cause it to occur. See Defendants’ Memorandum (Doc. # 78) at 15-18. Specifically, defendants assert that Dr. Karlin ordered the tests, that they had no involvement in the decision and that their only involvement was to restrain plaintiff for safety reasons while medical staff performed the procedures. See id. In support of their assertion, defendants cite the following cases: Lovett v. Boddy, 810 F.Supp. 844 (W.D.Ky.1993); Levine v. Roebuck, 550 F.3d 684 (8th Cir.2008); Rudy v. Village of Sparta, 990 F.Supp. 924 (W.D.Mich.1996); Sullivan v. Borne mann, 384 F.3d 372, 376-77 (7th Cir.2004); and Tinius v. Carroll County Sheriff’s Dept., 321 F.Supp.2d 1064 (N.D.Iowa 2004). Each of those cases involved distinguishing facts; none compel a conclusion that on the facts of this case, defendants are entitled to judgment as a matter of law.

Defendants contend that Dr. Karlin solely caused the catheterization. The record supports the conclusion that Dr. Karlin ordered a urine test, but it is silent as to whether he ordered staff to forcibly catheterize plaintiff. Kibbee and Smith physically held down plaintiff for the procedure and obtained a sample for criminal investigation purposes. Viewing this evidence in the light most favorable to plaintiff, a reasonable fact finder could conclude that Kibbee and Smith helped cause the catheterization to occur.

To overcome the qualified immunity defense, plaintiff must show that at the time of the alleged violation, the constitutional right was clearly established. See Vondrak, 535 F.3d at 1204. Ordinarily, for a rule to be clearly established, “there must be. a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must be as the plaintiff maintains.” Medina, 960 F.2d at 1498. In Marshall, the Tenth Circuit found that based on the Supreme Court decision in Schmerber, the law is clearly established that a non-consensual blood test is unconstitutional absent a warrant or probable cause and exigent circumstances. See 474 F.3d at 741. By analogy, the same conclusion applies to non-consensual urine tests. Indeed, in Sanders, the Tenth Circuit relied on Schmerber in concluding that a urine sample obtained under exigent circumstances did not constitute an unreasonable search under the Fourth Amendment. See Sanders, 167 Fed.Appx. at 725.

As noted, viewed in the light most favorable to plaintiff, the record supports a finding that Kibbee and Smith helped cause the catheterization to occur to obtain a sample for criminal investigation purposes. Accepting plaintiffs version of the facts, the law is clearly established that a reasonable officer would have known that absent probable cause and exigent circumstances, such conduct constitutes an unreasonable search under the Fourth Amendment. See Schmerber, 384 U.S. at 770-71, 86 S.Ct. 1826; Marshall, 474 F.3d at 741; Sanders, 167 Fed.Appx. at 725. On this record, plaintiff has shown facts which demonstrate that defendants’ actions violated a constitutional right which was clearly established at the time of the alleged violation. See, e.g., Elliott v. Sheriff of Rush County, Ind., 686 F.Supp.2d 840 (S.D.Ind.2010).

The burden thus shifts back to defendants to prove that no genuine issues of material fact exist and that they are entitled to judgment as a matter of law. See Olsen, 312 F.3d at 1312. Defendants assert that they did not cause the catheterization. See Defendants’ Memorandum (Doc. # 78) at 14-18. As noted, a material fact issue exists in this regard. Because the record reveals an unresolved issue of fact relevant to the qualified immunity analysis, defendants are not entitled to summary judgment on this ground. See Olsen, 312 F.3d at 1314-15; Bridges, 352 Fed.Appx. at 259-60.

4. Whether Defendants Are Entitled To Summary Judgment On Plaintiffs’ Claim That Kibbee And Smith Violated Plaintiffs Right To Privacy Or Other Patient Rights

Defendants assert that as a matter of law, Kibbee and Smith did not violate plaintiffs right to privacy or other patient rights and that even if they did, such rights were not clearly established. See Defendants’ Memorandum (Doc. # 78) at 18-19. In response to defendants’ motion for summary judgment, plaintiff does not respond to this argument. See Plaintiffs Response (Doc. # 98) at 18-30. On this record, defendants are entitled to summary judgment on the claim that Kibbee and Smith violated plaintiffs right to privacy or other patient rights (Count VIII).

5. Whether Defendants Are Entitled To Summary Judgment Because The Supreme Court Decision In Heck v. Humphrey, 512 U.S. 477 (1994), Bars Plaintiffs Section 1983 Claims

Defendants assert that as a matter of law, the Supreme Court decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), bars plaintiffs Section 1983 claims against Kibbee, Smith and the City. See Defendants’ Memorandum (Doc. # 78) at 19-21. In Heck, the Supreme Court ruled that a claim for monetary damages under Section 1983 is not cognizable if a judgment in favor of plaintiff would effectively invalidate her underlying conviction. See id. at 486-87, 114 S.Ct. 2364. If a favorable judgment will not demonstrate the invalidity of an outstanding criminal judgment, the Court should allow her to proceed absent some other bar to suit. See id. at 487, 114 S.Ct. 2364.

Defendants assert that a judgment for plaintiff on her Section 1983 claims would necessarily imply that her DUI conviction is invalid. Specifically, defendants assert that the jury based its conviction on the blood sample which OMC nurses took at the hospital and that at the criminal trial, plaintiff argued that nurses took the blood sample against her wishes and in violation of her constitutional rights. See Defendants’ Memorandum (Doe. # 78) at 20. As an initial matter, defendants did not include these facts in their statement of facts, see id. at 3-7, so they are not part of the record before the Court. See D. Kan. Rule 56.1(a) and (d). Moreover, the mere fact that prosecutors introduced the blood sample in plaintiffs criminal proceedings does not necessarily render her Section 1983 claims non-cognizable. In Heck, the Supreme Court noted that because of doctrines like independent source, inevitable discovery and especially harmless error, a suit for Section 1983 damages may lie even if the challenged search produced evidence that was introduced in a state criminal trial which resulted in plaintiffs conviction. See Heck, 512 U.S. at 487 n. 7, 114 S.Ct. 2364. Thus, if the jury heard other, independent evidence which would support the DUI conviction, a finding that the blood sample was unlawfully obtained would not necessarily render the conviction invalid. See, e.g., Beck v. City of Muskogee Police Dept., 195 F.3d 553, 560 (10th Cir.1999); Pearson v. Weischedel, 349 Fed.Appx. 343, 347 (10th Cir.2009) (claim for damages which would invalidate only one basis for conviction cognizable

under Section 1983 so long as other independent grounds support conviction). Moreover, even if Heck barred plaintiffs claim that defendants unlawfully obtained the blood sample, it would not necessarily preclude her claims that defendants used excessive force in obtaining the blood sample and/or unlawfully obtained a urine sample. See, e.g., Martinez v. City of Albuquerque, 184 F.3d 1123, 1125 (10th Cir.1999); Robbins v. Chronister, No. 97-3489-JWL, 2000 WL 1389616, at *4 (D.Kan. July 28, 2000) (Heck no bar to excessive force claim). On this record, defendants have not shown as a matter of law that a judgment for plaintiff on her Section 1983 claims would necessarily imply that her DUI conviction is invalid. Defendants are not entitled to summary judgment on this ground.

Defendants assert that a judgment for plaintiff on her Section 1983 claims would necessarily imply that her state court conviction for battery on a law enforcement officer is invalid. Defendants assert that because a claim that officers used excessive force is a defense to the crime of battery on a law enforcement officer, a judgment in favor of plaintiff on her Section 1983 claims would necessarily imply that her state law conviction is invalid. Specifically, defendants assert that at the criminal trial, Kibbee and Smith testified that plaintiff battered them, causing visible injuries, and plaintiff testified that she committed the acts in self defense. Under Kansas law, if a person acts in self defense, she is justified in committing battery on a police officer. See K.S.A. § 21-3211(a); State v. Heiskell, 8 Kan.App.2d 667, 672, 666 P.2d 207, 211-12 (1983).

Defendants present some evidence that at the criminal trial, plaintiff testified that in committing acts of battery against Kibbee and Smith, she acted in self defense. See Defendants’ Memorandum (Doc. # 78) at 7, ¶ 38. The record is silent, however, as to when the acts of battery occurred. In the argument section of their memorandum in support of their summary judgment motion, defendants suggest that the jury relied on evidence that plaintiff injured Kibbee and Smith in the ambulance. See id. at 20 (plaintiffs conviction for battery on law enforcement officer based on evidence that she injured Kibbee and Smith while struggling against them in ambulance). If so, Heck would apply to plaintiffs claim that defendants used excessive force against her in the ambulance, see Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir.1996), but not necessarily to her claims that defendants used excessive force at the hospital. See Bush v. Strain, 513 F.3d 492, 498 (5th Cir.2008); Pratt v. Giroir, No. 07-1529, 2008 WL 975052, at *5 (E.D.La. April 8, 2008) (Heck does not preclude excessive force claim temporally and conceptually distinct from factual basis for conviction). In other words, if the jury convicted plaintiff based on her conduct in the ambulance, a finding in this action that the officers used excessive force against her at the hospital would not necessarily imply that her conviction is invalid. See Bush, 513 F.3d at 498. On this record, the Court cannot determine which facts comprised the basis for the jury’s conviction for battery on a law enforcement officer. Defendants are not entitled to summary judgment on this ground. See, e.g., Neel v. Abrahamson, No. 07-530-KI, 2008 WL 539221, at *5 (D.Or. Feb. 27, 2008).

6. Whether The City Is Entitled To Summary Judgment Because Kibbee And Smith Did Not Violate Plaintiffs Constitutional Rights

Defendants assert that as a matter of law, the City is not liable because Kibbee and Smith did not violate plaintiffs constitutional rights. See Defendants’ Memorandum, (Doc. # 78) at 21. As discussed, the Court finds that to the extent that plaintiff asserts separate claims that Kibbee and Smith used excessive force in obtaining blood and urine samples (as opposed to claims that the forced blood and urine draws constitute unconstitutional searches) (arguably part of Count V), the Court grants summary judgment in favor of defendants. In addition, the Court grants summary judgment in favor of defendants on plaintiffs claims that Kibbee and Smith (1) conducted an unconstitutional strip search (part of Count V) and (2) violated plaintiffs right to privacy or other patient rights (Count VIII). To the extent plaintiff asserts claims against the City based on these actions, the City is entitled to summary judgment.

7. Whether Defendants Are Entitled To Summary Judgment Because Plaintiff’s State Law Battery Claims Are Time Barred

Defendants assert that as a matter of law, plaintiffs state law battery claims are time barred. See Defendants’ Memorandum (Doc. # 78) at 21-22. In Count II, plaintiff asserts state law claims for battery against Kibbee and Smith. See Second Amended Complaint (Doc. # 160) at 9-10. K.S.A. § 60-514 imposes a one-year limitations period for claims of battery. See K.S.A. § 60-514(b). Here, the alleged acts of battery occurred on April 17, 2008. Plaintiff filed her complaint almost two years later, on March 8, 2010. Unless another limitations period applies, it appears that the statute of limitations bars plaintiffs battery claims.

Plaintiff contends that a three-year limitations period applies under K.S.A. § 60-512(2). See Plaintiffs Response (Doc. # 98) at 27-28. In McCormick v. City of Lawrence, 278 Kan. 797, 104 P.3d 991 (2005), the Kansas Supreme Court found that to the extent plaintiff asserts claims for violation of a substantive right created by statute and not recognized at common law, K.S.A. § 60-512(2) imposes a three-year limitations period. 278 Kan. at 798-99, 104 P.3d at 992.

Plaintiff asserts that her battery claims are based on K.S.A. §§ 22-2521 and 22-2522. Those statutes set forth requirements for strip searches and body cavity searches. K.S.A. § 22-2523 provides liability for violations of Sections 22-2521 and 22-2522. In Count II, however, plaintiff does not assert claims for violations of Sections 22-2521 and 22-2522. See Second Amended Complaint (Doc. # 160) at 9-10. Rather, she alleges the elements of common law battery. See id.; see also Bowling v. United States, 740 F.Supp.2d 1240, 1253-54 (D.Kan.2010) (Kansas law elements of battery are (1) touching or striking plaintiff; (2) unprivileged contact; (3) intention to bring about contact or apprehension of contact; and (4) harmful or offensive contact). Specifically, plaintiff alleges that while she was handcuffed, defendants intentionally initiated offensive conduct, including pinning down her arms, legs and torso in a violent and offensive manner, choking her, cutting and ripping her clothes off her body, inserting a needle into her body, forcibly collecting her blood, and physically forcing a catheter into her body to compel collection of her urine. See Second Amended Complaint (Doc. # 160) at 9-10. Because plaintiff asserts common law claims for battery, K.S.A. § 60-514 imposes a one-year limitations period. Accordingly, defendants are entitied to summary judgment on plaintiffs claims for battery (Count II).

IT IS THEREFORE ORDERED that plaintiffs Memorandum In Support Of Plaintiff’s Motion For Partial Summary Judgment Against Defendants Kibbee And Smith (Doc. # 53) filed July 27, 2010 be and hereby is OVERRULED.

IT IS FURTHER ORDERED that Defendants’ Cross-Motion For Summary Judgment (Doc. # 77) filed August 24, 2010 be and hereby is SUSTAINED in part. To the extent that plaintiff asserts separate claims that Lee R. Kibbee and Wesley H. Smith used excessive force in obtaining blood and urine samples (as opposed to claims that the forced blood and urine draws constitute unconstitutional searches) (arguably part of Count V), the Court grants summary judgment in favor of defendants. In addition, the Court grants summary judgment in favor of defendants on the claims that (1) Kibbee and Smith conducted an unconstitutional strip search of plaintiff (part of Count V); (2) Kibbee and Smith violated plaintiffs right to privacy or other patient rights (Count VIII); and (3) Kibbee and Smith are liable for battery under state law (Count II). To the extent plaintiff asserts claims against the City based on these actions by Kibbee and Smith, the Court grants summary judgment in favor of the City. All other claims remain in the case.

. Plaintiff originally sued Olathe Health System, Inc. ("OHS”) instead of OMC. Plaintiff sought leave to amend her complaint to substitute OMC because counsel for OHS had asserted that OHS was not the correct party. See Plaintiffs Motion For Leave To File An Amended Complaint (Doc. # 57) at 2. The record does not reveal the relationship, if any, between OHS and OMC.

. Plaintiff does not identify the law under which she claims violation of privacy and patient rights. See Second Amended Complaint For Damages (Doc. # 160) filed January 7, 2011. Also, plaintiff does not specify whether she sues Kibbee and Smith in their individual capacities, official capacities or both.

. It is often appropriate to first determine whether a violation occurred and then determine whether the constitutional right was clearly established, though the order of steps is not mandatory. See Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009).

. Pursuant to D. Kan. Rule 56.1, the Court considers only those facts which the parties include in their statement of facts, in numbered fact paragraphs with proper record citation and support. See Vasquez v. Ybarra, 150 F.Supp.2d 1157, 1160 (D.Kan.2001). Pursuant to D. Kan. Rule 56.1, for the purpose of summary judgment, the Court deems all such facts admitted unless specifically controverted by the opposing party. See id. The Court does not consider facts which the parties discuss only in the argument section of their briefs and not in a statement of facts pursuant to D. Kan. Rule 56.1, see Jones v. Unified Gov't Of Wyandotte County/Kansas City, Kan., 552 F.Supp.2d 1258, 1261 n. 1 (D.Kan.2008), and the Court does not consider facts which the record citation does not properly support. Finally, the Court declines to consider arguments raised for the first time in a reply brief. See Stump v. Gates, 211 F.3d 527, 533 (10th Cir.2000); Rubio v. Turner Unified Sch. Dist. No. 202, 523 F.Supp.2d 1242, 1252 (D.Kan.2007).

. Defendants maintain that Kibbee also suspected that plaintiff was driving under the influence of drugs. Plaintiff disputes this fact.

. Shortly after Kibbee placed plaintiff in the back seat of the patrol car, the audio portion of the police video (apparently in Kibbee’s patrol car) becomes silent. See Plaintiff's Exhibit A at approximately 3:16:44. The police video depicts the scene in front of the patrol car and does not show plaintiff sitting in the back seat.

. Defendants contend that plaintiff requested an ambulance. See Plaintiff's Exhibits D and F. Plaintiff contends that Kibbee and Smith decided to call the ambulance.

. Plaintiff contends that she remained handcuffed while she kneeled on the side of the road. Although plaintiff’s citation to the record does not support the assertion, see Samantha Cook's Reply To Defendants’ Response To Her Motion For Partial Summary Judgment ("Plaintiffs Reply”) (Doc. #86) ¶41; Plaintiff's Reply Exhibit 3 at 80-81, other record evidence supports her assertion. The police video reveals that at the time paramedics carried plaintiff to the ambulance, her hands were cuffed behind her back. See Plaintiff’s Exhibit A at approximately 3:35:06. Thus, it appears that at the time plaintiff kneeled on the side of the road, her hands were cuffed.

. At an unknown time, plaintiff informed Kibbee and/or Smith that she had been molested by a police officer when she was 12 years old. See Plaintiff's Exhibit K. At an unknown time, Kibbee and/or Smith relayed this information to the Med-Act crew. See id.

. In interrogatory responses, Dr. Karlin states that at the time, he did not believe that plaintiff was capable of giving consent. See Defendant’s Exhibit 2, ¶ 1.

. The record is unclear when Kibbee asked plaintiff to consent to give a blood or urine sample.

. During criminal proceedings, Davenport testified that despite the bed restraints