MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

Plaintiff Deron McCoy, Jr., proceeding pro se, filed this suit against Defendants David Miller, Michael Robinson, Chris Schultz, and Lee Campbell, in their individual and official capacities, for claims pursuant to 42 U.S.C. § 1983, and state law claims for false arrest and false imprisonment, seeking monetary, compensatory, and punitive damages. Only Plaintiff's Fourth Amendment claims against each Defendant in their individual capacity remain.1 The matters before the Court are (1) Plaintiff's Motion for Summary Judgment (Doc. 128) and (2) Defendants David Miller, Chris Schultz, and Lee Campbell's Motion for Summary Judgment (Doc. 132). Both motions are fully briefed and the Court is prepared to rule. As described more fully below, the Court grants Defendants' motion on the basis that the officers are entitled to qualified immunity. As such, Plaintiff's motion is therefore denied.

I. Standards for Summary Judgment on Qualified Immunity

Defendants move for summary judgment on Plaintiff's Fourth Amendment claims asserted in Count I, on the basis that they are protected by qualified immunity and are thus entitled to judgment as a matter of law. Qualified immunity protects public officials performing discretionary functions unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known."2 Qualified immunity leaves "ample room for mistaken judgments," protecting "all but the plainly incompetent or those who knowingly violate the law."3

As the Tenth Circuit explained in Rojas v. Anderson, "because qualified immunity is designed to protect public officials from spending inordinate time and money defending erroneous suits at trial," the qualified immunity defense triggers a modified summary judgment standard.4 The initial burden rests on the plaintiff, rather than the defendant; and the plaintiff must first "clear two hurdles:" (1) demonstrate that the defendant violated his constitutional or statutory rights; and (2) demonstrate that the right was clearly established at the time of the alleged unlawful activity.5 The court may decide the appropriate order to consider these issues.6 Only if the plaintiff clears these hurdles does the burden shift back to the movant defendant to make the traditional showing that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law.7

In determining whether the plaintiff has demonstrated a violation of her constitutional or statutory rights and that the right was clearly established at the time, the court must view the facts and draw reasonable inferences in the light most favorable to the party opposing summary judgment. In Scott v. Harris, the Supreme Court held that "[T]his usually means adopting . . . the plaintiff's version of the facts," unless that version "is so utterly discredited by the record that no reasonable jury could have believed him."8 In Scott, the plaintiff's version of the facts was discredited by a videotape that completely contradicted plaintiff. Thus, although the court should generally accept the non-movant plaintiff's version of the facts and draw reasonable inferences in the light most favorable to the plaintiff, the Court need not accept alleged facts that are contradicted or discredited by the record. Moreover, citing to the Scott decision, the Tenth Circuit has held that "because at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's version of the facts must find support in the record."9 In that sense, the court does not discard the Rule 56 process, but relies upon facts supported by the record, while viewing those facts and reasonable inferences therefrom, in the light most favorable to plaintiff.

Because Plaintiff proceeds pro se, some additional considerations frame the Court's analysis. The Court must construe Plaintiff's pleadings liberally and apply a less stringent standard than that which is applicable to attorneys.10 However, the Court may not provide additional factual allegations "to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf."11 Additionally, a pro se litigant is not excused from complying with the rules of the court and is subject to the consequences of noncompliance.12

II. Factual Allegations

The Court deems uncontroverted those facts that are supported by the record to which Plaintiff either stipulates, or fails to respond or otherwise properly controvert with reference to record evidence. Consistent with the standards discussed above, the Court accepts Plaintiff's factual allegations to the extent they are properly supported by the record. Many of Plaintiff's additional facts in his response to the motion for summary judgment are not properly supported by the record, are based on inadmissible hearsay, or are conclusory statements.13 The Court disregards those additional facts. Also, the Court does not accept factual allegations that are so utterly discredited by the record that no reasonable jury could believe them. Finally, the Court views these uncontroverted and stipulated facts in the light most favorable to Plaintiff and draws all reasonable inferences in the light most favorable to Plaintiff. The following facts are uncontroverted.

The following events took place on December 19, 2010. Defendants, all Hutchinson, Kansas police officers, were dispatched to a residence due to a report of a disturbance. It remains unclear exactly who placed the 911 call. Upon arriving at the scene, Defendants observed Laura Daniels standing outside the house. Laura reported that she is the owner of the house14 and that Leanna Daniels (her daughter and Plaintiff's girlfriend), Plaintiff, and the minor child of Plaintiff and Leanna were inside the house. Laura explained to Defendants that (1) Plaintiff has a history of physically abusing Leanna, (2) she has personally witnessed Plaintiff hit Leanna in the past, (3) she, herself, has been hit by Plaintiff in the past, and (4) Plaintiff threatened to kill her (Laura) if she reported Plaintiff's abuse. On this particular night, Laura reported that she heard Plaintiff and Leanna arguing upstairs, that Plaintiff indicated he was not playing with her anymore, and that she heard sounds as though someone was being pushed around—specifically, Laura thought Plaintiff may have hit Leanna. Throughout all of this, Laura appeared to be visibly shaken, very upset, and concerned about what was happening inside the house. Defendants observed that the doors to the house were locked, which prevented Laura from re-entering it.

Officer Campbell knocked on the door of the house, identified herself as a police officer, and asked that Plaintiff or Leanna open the door so that police could check on Leanna's well-being. At the time of the knock, Plaintiff was upstairs and, by the time he arrived at the downstairs door, Plaintiff observed Leanna talking through the window-less door to an officer, who indicated that she was okay. Both Leanna and Plaintiff denied Officer Campbell's request to open the door so that Leanna could be seen to verify her well-being. They also subsequently stated that entry into the house would not be permitted without a warrant. In response, Officer Campbell requested Plaintiff and Leanna come out of the house in lieu of Defendants coming in. Leanna and Plaintiff declined this compromise. As a result, and even though there was a window next to the door, Defendants were unable to see or observe Leanna throughout the entire interaction. To Defendants, it appeared Plaintiff was standing immediately next to Leanna behind the door. Concerned that Leanna was being prohibited from honestly communicating with police,15 Defendants jointly decided they should force entry—so they did.

Plaintiff estimates that two minutes elapsed between Officer Campbell's first knock and Defendants' entry into the house through a back door.16 Plaintiff was handcuffed and taken to another room of the house so that Defendants could interview each separately.17 Leanna was examined for injuries, but none were found. After checking with dispatch and learning that Plaintiff had an outstanding warrant for his arrest on October 19, 2010 (unrelated charges), Defendants' arrested him. Defendants also arrested him on probable cause for obstruction of justice, which related to Plaintiff's refusals to let Defendants into the house or to come out of the house.18 Plaintiff admits the officers told him both bases for his arrest.19

III. Discussion

The Court has discretion to determine "which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand."20 Here, the Court will begin with the second prong of the qualified immunity analysis— whether the right at issue was clearly established at the time of Defendants' alleged misconduct.

To demonstrate the infringement of a clearly established right, a plaintiff must direct the court "to cases from the Supreme Court, the Tenth Circuit, or the weight of authority from other circuits."21 This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law, the unlawfulness must be apparent.22 As the Tenth Circuit has explained, a qualified immunity analysis involves something of a "sliding scale": "[t]he more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation."23 In every case, however, it remains necessary for the plaintiff to demonstrate that "every reasonable official would have understood that what he" did violated the law.24 The question of whether a right is clearly established must be answered "in light of the specific context of the case, not as a broad general proposition."25 The Court finds Plaintiff's has not met his burden.

Warrantless searches of a person's home are presumed to be unreasonable under the Fourth Amendment, but that presumption is not absolute.26 To be sure, the established law as of October 19, 2010, permitted police officers to enter a residence without a warrant based on exigent circumstances.27 For instance, "the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid."28 In such a case, there is no bright line rule.29

Defendants argue that, because there is no bright line rule regarding exigent circumstances and thus exigency is based on the context of the situation, Plaintiff has not shown Defendants' entry and subsequent conduct violated a clearly established right. In support, Defendants cite two Tenth Circuit cases where police responded to a report alleging a domestic disturbance: Najar and United States v. Davis.30

Najar and Davis are relevant for two reasons. First, both involve police responses to an alleged domestic disturbance. Second, the cases came to different conclusions regarding exigent circumstances with respect to the safety of a third person (as opposed to cases involving officer safety). If the Tenth Circuit is split on these factually similar, domestic-disturbance cases with respect to exigency, reasonable officers would not have understood what they did violated the law.

In Davis, officers responded to an alleged domestic disturbance. The Tenth Circuit recounted the facts, in pertinent part, as follows:

The Tenth Circuit upheld the district court's finding that exigent circumstances were not present because officers made visual and physical contact with the person allegedly in need of aid (Ms. Coleman).

In contrast, the Najar officers responded to repeated 911 calls in which the caller hung up immediately. Upon arrival, the officers repeatedly knocked and announced their presence. Eventually, Nahar opened the door and talked with the officers, denying he placed any 911 call and stating no one else was inside the home. The officers asked to come inside to verify that nobody was in need of aid. After initially refusing, Najar then permitted the officers to make sure no one else was in the home. An officer located another woman lying on the bed in a bedroom. That woman turned over her shoulder, looked the officer in the eyes, and verbally indicated she was alright. The Tenth Circuit found the entry was lawful under the exigent circumstances exception to the warrant requirement.32 In fact, the court clarified Davis's holding, stating: "Looking at the unique facts in Davis, we determined the officers did not face exigent circumstances because: (1) the officers had spoken with the defendant's wife, the possible victim, outside the home; (2) they knew the defendant had children; and (3) there was no history of violence."33

Here, the only thing Defendants knew was that a child was inside the house. Defendants knew this because Laura, Leanna's mother and owner of the house, told Defendants this upon their arrival. Unlike in Davis, Defendants did not speak with Plaintiff's girlfriend, the possible victim, outside the home, as neither Plaintiff nor Leanna presented themselves visibly to the officers before the officers came into the house through the side door, despite multiple requests to show themselves.34 Instead, both Plaintiff and Leanna—speaking through a closed, locked, and windowless door—repeatedly insisted a warrant was required to enter their home yet refused to come outside the home as a compromise. And, while Defendants did not personally know whether Plaintiff had a history of violence like the officers in Davis did, Defendants knew there was at least a potential history of violence with respect to Plaintiff because Laura explained to Defendants that (1) Plaintiff has a history of physically abusing Leanna; (2) she has personally witnessed Plaintiff hit Leanna in the past; (3) she, herself, has been hit by Plaintiff in the past; and (4) Plaintiff threatened to kill her if she reported Plaintiff's abuse. Given these differences between the circumstances in Davis and the circumstance here, the Court cannot find that every reasonable official would understand that entering Plaintiff's home violated the law.

Indeed, the instant case is factually distinguishable from both Najar and Davis on one important point: the officers in this case were not able to visually confirm the safety of the alleged victim, Leanna. While Leanna's conduct may be somewhat akin to Ms. Coleman's actions in Davis—insofar as she affirmatively indicated she did not want the officers to enter the premises—the important difference is that the officers could identify the condition of Ms. Coleman because she was visible to the officers; Leanna was not.35

Plaintiff relies heavily upon Kentucky v. King, which held that warrantless searches conducted after police-created exigent circumstances do not violate the Fourth Amendment so long as the police did not create the exigency by violating or threatening to violate the Fourth Amendment.36 But King was decided in 2011, after Defendants' conduct in 2010.37 It is therefore irrelevant to the clearly established prong of qualified immunity analysis. For all of these reasons, Plaintiff has not met his burden of proving the right at issue was clearly established at the time of Defendant's conduct.

As for Plaintiff's arrest, Plaintiff admits the officers told him he was being arrested for two reasons: (1) obstruction of the officers' duty (the safety check), and (2) a possible outstanding warrant on an unrelated matter. Plaintiff does not address his arrest in the context of clearly established qualified immunity analysis. Nevertheless, the Court finds Defendants' reliance on the information provided by dispatch indicating there was an outstanding warrant for Plaintiff was objectively reasonable under the circumstances.38 Therefore, Defendants are entitled to qualified immunity as to their arrest of Plaintiff.

IV. Conclusion

For all of the reasons above, Defendants are entitled to qualified immunity because Plaintiff has not shown the constitutional rights he alleges Defendants violated were clearly established at the time of Defendants' conduct. Plaintiff has not shown that "every reasonable official would have understood that what he" did violated the law. That goes for both Defendants' warrantless entry into Plaintiff's residence and Defendants' arrest of Plaintiff based on dispatch informing the officers that there was an outstanding warrant for Plaintiff on unrelated charges. Because the officers are entitled to qualified immunity, the Court must deny Plaintiff's motion for summary judgment. And because the only remaining claims are against Defendants in the individual capacities, this case is hereby dismissed with prejudice.

IT IS THEREFORE ORDERED BY THE COURT that Defendants David Miller, Chris Schultz, and Lee Campbell's Motion for Summary Judgment (Doc. 132) is granted. The Court finds Defendants are entitled to qualified immunity. As such, Plaintiff's Motion for Summary Judgment (Doc. 128) is therefore denied.

IT IS SO ORDERED.