Warner v. City of Brooksville et al

Filing 49

MINUTE ENTRY MEMORANDUM OPINION AND ORDER FOR ORAL ARGUMENT HEARING held on 11/24/2014 before Judge William O. Bertelsman: 1) Defs' motion for summary judgment 30 is GRANTED; 2) Defs' motion to excludle testimony of Plf's exp et witness 31 is DENIED AS MOOT; 3) Plf's state-law claim for negligence is dismissed without prejudice pursuant to the Court's discretion under 28 U.S.C. §1367(c)(3); 4) Plf's motion for leave to file a surreply 45 is DENIED AS MOOT; 5) Separate judgment shall enter concurrently herewith. (Court Reporter LISA WIESMAN.) Signed by Judge William O. Bertelsman on 11/25/2014. (ECO)cc: COR Modified text on 11/25/2014 (ECO).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 2:13-cv-57(WOB-CJS)
JUSTIN WARNER

PLAINTIFF

VS.
CITY OF BROOKSVILLE, ET AL.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This lawsuit arises out of an alleged collision between Plaintiff
Justin Warner’s motorcycle and Defendant Chief Martin Hause’s patrol
car.

Plaintiff sued Chief Hause and the City of Brooksville, Kentucky

pursuant to 42 U.S.C. § 1983, alleging deprivations of his rights
under

the

Fourth

Constitution.

and

Fourteenth

Amendments

to

the

United

States

Plaintiff also brought a state-law negligence claim

against Chief Hause.
The case is before the Court on two motions from Defendants, a
motion for summary judgment (Doc. 30) and a motion to exclude the
testimony of Plaintiff’s expert witness, Neil Gilreath (Doc. 31), as
well as a motion from Plaintiff seeking leave to file a surreply
(Doc. 45).

The Court heard oral argument on these motions on November

24, 2014.

Thomas K. Herren represented Plaintiff Justin Warner, and

Jeffrey C. Mando represented Defendants.
recorded the proceedings.

Court reporter Lisa Wiesman

The Court now grants Defendants’ motion for

summary judgment and denies as moot Defendants’ motion to exclude the
testimony

of

Plaintiff’s

expert

witness.

The

Court

additionally

declines

to

exercise

supplemental

jurisdiction

over

the

remaining

state-law claim.
I.

FACTS1

On July 9, 2012, between 9:30 and 10:00 p.m., Plaintiff, Justin
Warner (“Plaintiff”), and his brother, Jeremy Warner (“Jeremy”), were
riding their motorcycles through the City of Brooksville, Kentucky.
(DE 31, Pl. Dep., at 46.)

As the brothers drove into Brooksville --

traveling westbound on Miami Street with Plaintiff in the lead and
Jeremy following him -- they saw Chief Hause of the Brooksville Police
in the area, sitting in or near the parking lot of a gas station close
to the intersection of Miami Street and Garrett Street.
Pl. Dep., at 73; DE 33, Jeremy Dep., at 24.)

(DE 31,

Chief Hause likewise saw

the brothers and was aware of their identities.

(DE 32, Chief Hause

Dep., at 28-29.)
Jeremy

had

neither

a

valid

driver’s

license

nor

the

proper

registration for his motorcycle, so the brothers were concerned that
Chief Hause would pull Jeremy over and cite him for those violations.
Plaintiff signaled Jeremy to pass him so that Jeremy could make it to
their nearby home first and avoid being pulled over by Chief Hause.
(DE 33, Jeremy Dep., at 25-28.)

The brothers thus made a left turn

off of Miami Street and onto Frankfort Street -- where they lived
together in a rented house -- with Jeremy in front and Plaintiff
behind him.

(DE 31, Pl. Dep., at 75-76.)

1.
This section takes all of the relevant facts in the light most
favorable to Plaintiff and omits any facts not relevant to whether summary
judgment is appropriate on Plaintiff’s § 1983 claims.

2

After making that left turn, Jeremy accelerated rapidly, causing
his motorcycle to make a loud noise.
Dep., at 28-29.)

(Id. at 79-80; DE 33, Jeremy

Chief Hause heard the noise, which he likened to the

sound of a plane’s jet engine, from his position on Miami Street.
Concluding

that

the

motorcycle

operator

must

have

been

driving

recklessly in order to cause so much noise, Chief Hause turned on his
blue lights and began to follow the brothers up Frankfort Street.
(DE 32, Chief Hause Dep., at 29-31.)
Frankfort Street between Miami Street and the brothers’ residence
includes an uphill climb and an s-curve.
at 84-85.)

(Id. at 34; DE 31, Pl. Dep.,

There is a feed mill near the top of the hill.

As

Plaintiff reached the feed mill, he saw Chief Hause’s blue lights
flashing off of the building.

After seeing the blue lights behind

him, Plaintiff began reducing his speed as he went into the s-curve.
(DE 31, Pl. Dep., at 85-87.)
While in the s-curve, Plaintiff felt a bump against the rear of
his motorcycle -- the front-right bumper of Chief Hause’s patrol car
striking

the

control.

(Id. at 88-89, 95-97.)

some

rear-left

mailboxes

Frankfort

and

Street,

handlebars.

a

swing

arm

retaining

and

the

of

the

motorcycle

--

and

lost

The motorcycle collided head on with
wall

impact

that

runs

launched

along

the

Plaintiff

side
over

of
the

He landed on the other side of the wall, suffering two

broken femurs, a collapsed lung, and a fractured wrist.

(Id. at 109-

11, 118-19.)
Chief Hause continued driving past the scene of the accident to
the brothers’ house.

He parked his patrol car in the front yard and
3

began looking around the property for the brothers.

Not long after

Chief Hause arrived at the brothers’ residence, he received a radio
call from dispatch stating that there had been a motorcycle accident
on Frankfort Street near the feed mill.

Chief Hause then got back

into his patrol car and went to the scene of the accident.

(DE 32,

Chief Hause Dep., at 23-25; DE 33, Jeremy Dep., at 40-43.)
EMS personnel arrived at the scene shortly after Chief Hause.
The EMTs airlifted Plaintiff to University Hospital in Cincinnati for
treatment of his injuries.
Jeremy

arrived

at

(DE 31, Pl. Dep., at 114.)

the

scene

after

the

EMTs;

not

long

after

Plaintiff was transported to the hospital, his mother and father,
Randy and Carol Warner, also arrived on the scene.

(DE 33, Jeremy

Dep., at 43-44; DE 35, Carol Warner Dep., at 35.)

Jeremy and the

brothers’ parents had a conversation with Chief Hause at the scene of
the accident.

According to Jeremy and Plaintiff’s parents, Chief

Hause stated numerous times: “I just didn’t see him,” referring to
Plaintiff.

(DE 33, Jeremy Dep., at 50-51; DE 35, Carol Warner Dep.,

at 39-40.)
II.

ANALYSIS

In order for Plaintiff to survive summary judgment on his § 1983
claims

against

Chief

Hause,

he

must

raise

a

genuine

dispute

of

material fact as to whether Chief Hause caused “the deprivation of any
rights,

privileges,

or

immunities

laws.”

42 U.S.C. § 1983.

secured

by

the

Constitution

and

In order for Plaintiff to survive summary

judgment on his § 1983 claim against the City of Brooksville, he must
raise

a

genuine

dispute

of

material
4

fact

as

to

whether

the

“municipality’s

failure

to

train

.

.

.

evidences

indifference’ to the rights of its inhabitants.”

a

‘deliberate

City of Canton v.

Harris, 489 U.S. 378, 388 (1989).
But Plaintiff’s counsel conceded at oral argument that Plaintiff
has

neither

pled

intentionally
inference.

that

nor

Chief

has

he

Hause

produced

struck

Plaintiff’s

evidence

motorcycle

warranting

such

an

Because intentional conduct by a government actor is a

necessary ingredient of both a § 1983 claim alleging an unreasonable
seizure

in

violation

of

the

Fourth

Amendment

and

a

§

1983

claim

alleging a violation of Fourteenth Amendment substantive due process,
Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843-44, 854 (1998), the
Court grants summary judgment to Chief Hause on those claims.
Additionally, because Chief Hause did not violate Plaintiff’s
constitutional rights, Plaintiff’s § 1983 claim against the City of
Brooksville

for

failure

to

train

cannot

survive

summary

judgment.

City of Canton v. Harris, 489 U.S. 378, 388-89 (1989).
III.
The Court grants
denies

as

moot

Plaintiff’s

Defendants’ motion for summary

Defendants’

expert

CONCLUSION

witness.

motion

to

The

Court

exclude

the

additionally

judgment and
testimony

of

declines

to

exercise supplemental jurisdiction over the remaining state-law claim.
Therefore,

having

heard

the

parties

and

the

Court

being

sufficiently advised,
IT IS ORDERED that:
(1)

Defendants’ motion for summary judgment (Doc. 30) be, and

is hereby, GRANTED;
5

(2)

Defendants’ motion to exclude the testimony of Plaintiff’s

expert witness (Doc. 31) be, and is hereby, DENIED AS MOOT;
(3)

Plaintiff’s

state-law

claim

for

negligence

is

dismissed

without prejudice pursuant to the Court’s discretion under 28 U.S.C.
§ 1367(c)(3);
(4)

Plaintiff’s motion for leave to file a surreply (Doc. 45),

be, and is hereby, DENIED AS MOOT;
(5)

A separate judgment shall enter concurrently herewith.

This 25th day of November, 2014.

TIC: 10 mins.

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