Nichols v. Bourbon County Kentucky, Board of Education et al

Filing 29

OPINION & ORDER: GRANTING dft's 20 Motion for Summary Judgment; judgment shall be entered with this order. Signed by Judge Karen K. Caldwell on 6/12/14. (KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
AUSTIN NICHOLS,

CIVIL ACTION NO. 5:13-119-KKC

Plaintiff,
V.

OPINION AND ORDER

BOURBON COUNTY SHERIFF’S DEPT., et
al.,
Defendants.

*** *** ***
This matter is before the Court on Defendants’ motion for summary judgment. For the
reasons stated below, the motion will be granted.
I.

BACKGROUND
On March 8, 2012, Plaintiff Austin Nichols (“Nichols”) was an eighteen-year-old

sophomore at Bourbon County High School when he was arrested for disorderly conduct,
resisting arrest and assault by Deputy Sheriff and School Safety Officer Clinton Graves
(“Graves”). Nichols filed this 42 U.S.C. § 1983 action alleging that Graves used excessive force
in effectuating his arrest and that Graves was not adequately trained or supervised. Nichols
also made claims for state-law assault and battery. Second Amended Complaint, DE 1-1,
CM/ECF pp. 4-10.
Most of the facts leading up to the critical seconds of the confrontation between Graves
and Nichols are not disputed. Deputy Graves received a phone call from Teresa Cloyd, the
mother of Brittney Cloyd, Nichols’ girlfriend, saying the two were fighting in a stairwell at the
school and Brittney Cloyd was crying. Graves Dep. p. 42. Nichols admits that he and Cloyd
were in the stairwell discussing their recent breakup and that Cloyd was visibly upset and left
the building as Graves approached them. DE 25 at 1-2, 5. Nichols admits that Graves ordered

him to the school office and Graves then followed Cloyd outside the building.1 Id. About twentyfive seconds after entering the office, Nichols left and went to the front door where Graves and
Cloyd were entering. Id. at 30-31.

Nichols approached Cloyd, but Graves placed himself

between them. Nichols testified that Graves put his hand on Nichols’ chest and pushed him
toward the office. Id. at 30. Nichols said that Graves pulled him away from the office door; that
Nichols did not push off the wall and did not “offer any resistance to Deputy Graves at that
point,” but that Graves put him in a headlock. Id. at 34. Nichols admitted that Graves never hit
him with his hands, never punched him, never kicked him, and did not use any weapons on him.
Id. at 39.
The record includes two videotapes from two surveillance cameras in the lobby near the
office. DE 20-4. The video from the camera located to the left of the office and closest to the
stairwell and outside door is labeled 20120308-110700.avi. The video from the camera located
to the right of the office and away from the outside door is labeled 3-8-2012 11-07-00 AM.avi.
Id. After reviewing both videos several times, Nichols admits that “the video accurately depict[s]
the force that Deputy Graves used on you on March 8, 2012.” Nichols Dep. at 39.

He

acknowledged that there is “not something that happened either in the stairwell before or once
you’re off the screen here that you’re alleging is at issue in your complaint in terms of excessive
force or assault.” Id. at 26.
The critical incident between Nichols and Graves is found at approximately 11:09:40 on
the videotape. Nichols description is that Graves “pulls me away from the office door.” He
testified regarding this incident as follows:
Q.

Did you ever push off the wall?

A.

No.

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Nichols testified at one point that he just stayed in the hallway, but he later admitted that Deputy Graves “possibly”
asked him to go to the office. DE 20-2 at 20, 29. In any event, Nichols walked across the lobby and entered the
office. Id. at 29-30.

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Q.

Did you ever offer any resistance to Deputy Graves at that point when you were

up against the wall?
A.

No.

Q.

It is your testimony, then, that he simply pulled you back and put you on the ground

then without anything happening on your part?
A.

Right. That’s why I held onto the door.

Q.

Do you remember any conversation up to this point?

A.

No.

Nichols Dep. p. 34.
Nichols pled guilty to charges of disorderly conduct and resisting arrest and understood
that by pleading guilty, he agreed he had committed those offenses. Id. at 40-42. Following the
incident, Nichols gave a handwritten note to Graves that said:
I am truly sorry for my actions on Thursday, March 8th. I know that you only did
what you had to do because of the bad decision I chose to make. I know that I
can be better, and like you said, we have two more years together, and I will do
everything I can to be a better person. I do not want to be someone you’ll look
down on, and I’d like to try to earn back your respect.
Sincerely, Austin Nichols
Id. at 88; DE 20-5.
Nichols argues in his responsive brief, “[t]he only facts in dispute was [sic] whether
Defendant Graves initiated the contact with the Plaintiff or whether the Plaintiff initiated the
contact with the Defendant, and whether or not Graves[‘] conduct was excessive.” DE 25 at 56. The brief continues: “Considered in the light most favorable to the Plaintiff, the evidence in
the case demonstrates an unrestrained, malicious attack on a juvenile by Defendant Graves.”
Id. at 6. “Plaintiff’s only conduct was standing outside the office door until he was attacked by
Defendant Graves. The Plaintiff’s conduct simply does not rise to the level warranting the
tackling of the Plaintiff to the ground and choking him.” Id. at 8.

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II.

ANALYSIS
A.

Summary Judgment Standard

Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material
fact exists if there is sufficient evidence favoring the nonmoving party for a reasonable jury to
return a verdict in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
In other words, the determination must be “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Id. at 251-52. The evidence, all facts, and any inferences that may
permissibly be drawn from the facts must be viewed in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
Once the moving party shows that there is an absence of evidence to support the
nonmoving party’s case, the nonmoving party must present “significant probative evidence” to
demonstrate that “there is [more than] some metaphysical doubt as to the material facts.”
Moore v. Phillip Morris Companies, Inc., 8 F.3d 335, 340 (6th Cir. 1993). Conclusory allegations
are not enough to allow a nonmoving party to withstand a motion for summary judgment. Id. at
343. Summary judgment is appropriate where the plaintiff’s evidence is merely colorable or not
significantly probative. Anderson, 477 U.S. at 249-50.
In the present case, there is an exception to the requirement that all facts and inferences
must be viewed in the light most favorable to the nonmoving party. In Scott v. Harris, 550 U.S.
372 (2007), the court said:
There is, however, an added wrinkle in this case: existence in the record of a
videotape capturing the events in question. There are no allegations or
indications that this videotape was doctored or altered in any way, nor any
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contention that what it depicts differs from what actually happened. The
videotape quite clearly contradicts the version of the story told by [plaintiff]....
Id. at 378. “When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
Id. at 380.
B.

Qualified Immunity For Deputy Graves In His Individual Capacity

“A claim that law-enforcement officers used excessive force to effect a seizure is
governed by the Fourth Amendment’s ‘reasonableness’ standard.” “[D]etermining the objective
reasonableness of a particular seizure under the Fourth Amendment ‘requires a careful
balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing government interests at stake.’

The inquiry requires

analyzing the totality of the circumstances.” The question is analyzed “from the perspective ‘of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’ We thus
‘allo[w] for the fact that police officers are often forced to make split-second judgments – in
circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is
necessary in a particular situation.’” Plumhoff v. Rickard, 134 S.Ct. 2012, 2020 (2014) (citations
omitted).
In Plumhoff, the officers were involved in a high-speed chase that threatened the lives of
innocent bystanders. Although Rickard’s car collided with a police car and temporarily came to
a near standstill, Rickard began maneuvering in an attempt to escape. The court held that the
firing of fifteen shots, which killed Rickard and his passenger, did not violate the Fourth
Amendment and, thus, was not excessive force.

Id. at 2021-22.

Even if the officers had

violated the Fourth Amendment, the court held they would still be entitled to summary judgment
based on qualified immunity. Id. at 2023.
Scott v. Harris, 550 U.S. 372 (2007), also involved a high-speed chase, which Deputy
Scott ended by pushing the rear bumper of the fleeing vehicle, causing Harris to lose control
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and crash down an embankment. Harris was rendered a quadriplegic. Id. at 375. Harris
argued there was little threat to pedestrians or other motorists and that the officer’s conduct
constituted excessive force. “The videotape tells quite a different story,” according to the court.
Id. at 379. “Where the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no ‘genuine issue for trial.’” Id. at 380. The court concluded that
“[r]espondent’s version of events is so utterly discredited by the record that no reasonable jury
could have believed him. The Court of Appeals should not have relied on such visible fiction; it
should have viewed the facts in the light depicted by the videotape.”

Id. at 380-81.

The

Supreme Court held “it is quite clear that Deputy Scott did not violate the Fourth Amendment.”
Id. at 381.
The totality of the circumstances in the present case begin with the videotape showing
multiple students and administrative staff walking through various doors and across the high
school lobby area throughout the video. Graves leaves his office, talking on a radio, and enters
the stairwell. Tape 20120308-110700 at 11:08:12. Nichols leaves the stairwell and goes to the
office. 11:08:34. Nichols soon leaves the office and walks to the outside door. 11:09:11. Just
at the door, he confronts Graves and Cloyd who are coming inside. 11:09:21. Graves points
toward the office and puts himself between Nichols and Cloyd. 11:09:26. Graves places his
hand on Nichols chest and moves him toward the office. 11:09:29. When almost at the office
door, Graves pushes Nichols against the wall to begin a pat down. 11:09:38. Nichols rears
back against Graves, and Graves quickly takes him to the ground. 11:09:40. In something like
a wrestling position, Graves faces Nichols and leans over his back with arms around Nichols’
chest while Nichols continues to resist and fight until after he is handcuffed by the Principal and
another person. 11:09:44 – 11:11:34. Meanwhile, students, including Cloyd, and staff are in
the area.
The totality of the circumstances also include Deputy Graves knowledge that Nichols’
mother had complained to Graves about domestic issues between her son and Cloyd and that
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Nichols was using drugs, drinking alcohol, and running with the wrong people. Cloyd’s mother
also voiced concerns to Graves.

Administrators of the high school had been dealing with

Nichols and Cloyd in domestic-related issues. Graves Dep. at 22, 24, 27-28. Graves has known
Nichols’ father for several years, and he frequently mentioned concerns about his son. Id. at 25.
Graves was also aware of an incident at the vocational school where Nichols “sprayed brake
cleaner into the eyes of another student.” Id. at 31. On the morning of March 8, 2012, Graves
received a call from Teresa Cloyd that Nichols and Brittney Cloyd were fighting in a school
stairwell and Brittney was crying. Id. at 42.
The government interests at stake here were the safety and security of the high school
students and personnel. Graves Dep. at 15. There were a number of innocent people entering
and leaving the lobby area. Nichols was arguing with his girlfriend, cursing Graves and refusing
to obey Graves’ commands to go to the office. Id. at 55-56. Because of Nichols’ disorderly
behavior and the risk to the safety of Cloyd, Graves and others, Graves told Nichols that he was
under arrest. Id. at 57. Yet, Nichols continued to resist Graves.
All Nichols had to do was go into the office and stay there to end the entire confrontation.
Alternatively, he could have submitted to the order that he was under arrest. After all, it was
Nichols who started the confrontation with Graves and continued to escalate it. Instead of
obeying orders, Nichols pushed Graves out of the way in an attempt to escape. The intrusion
on Nichols’ Fourth Amendment interests involved merely holding him near the ground until he
could be handcuffed and cease being a risk to the safety of innocent bystanders.
While the safety and security risks in the present case were less than in Scott and
Plumhoff, the force Graves used was orders of magnitude less. Nichols was simply restrained
until he could be handcuffed, ending the risk of danger to others. The video demonstrates that
the precipitating conduct was Nichols’ disorderly conduct and resistance of arrest, charges to
which he pled guilty. The video refutes Nichols’ testimony that he did not provoke Graves’
reaction. Without question, Deputy Graves did not violate Nichols’ Fourth Amendment rights.
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For a plaintiff to succeed on an individual capacity claim under § 1983, he must
overcome the defense of qualified immunity shielding government officials from personal liability
for damages unless their conduct violates a clearly established constitutional right. Pearson v.
Callahan, 555 U.S. 223, 231 (2009). Nichols has failed to meet his burden of demonstrating
that Graves is not entitled to qualified immunity. Baker v. City of Hamilton, Ohio, 471 F.3d 601,
605 (6th Cir. 2006). Deputy Graves is entitled to summary judgment.
C.

Qualified Immunity For Sheriff Matthews In His Individual Capacity

Nichols alleges that Sheriff Matthews failed to properly train and supervise Deputy
Graves, thereby causing a violation of Nichols’ constitutional rights. First, there was no violation
of Nichols’ constitutional rights. Second, “[a] supervisor is not liable under § 1983 for failing to
train unless the supervisor ‘either encouraged the specific incident of misconduct or in some
other way directly participated in it.’” Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A
plaintiff “must point to a specific action of each individual supervisor to defeat a qualified
immunity claim.” Id. Nichols does not point to any evidence to support a finding that Sheriff
Matthews failed to train or supervise Deputy Graves.
To the contrary, the evidence is that Deputy Graves retired after twenty-years of service
with the Kentucky State Police. Graves Dep. at 8. In addition to his training as a state trooper,
Graves had over 250 hours of training specifically tailored to his position as a school resource
officer. DE 20-6 at 3-4. Sheriff Matthews testified that he visited the Bourbon County High
School two or three days a week and communicated with Deputy Graves by phone, radio and
email. Matthews Dep. at 12-13. Nichols’ unsupported allegations are refuted by the evidence.
Sheriff Matthews is entitled to qualified immunity in his individual capacity.
D.

Official-Capacity Claims

To succeed on an official-capacity claim under § 1983, a plaintiff must establish that his
constitutional violation resulted from an official policy or custom of the municipality. Monell v.
Dept. of Social Services, 436 U.S. 658, 691 (1978). See also Los Angeles County, California v.
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Humphries, 562 U.S. ___, 131 S. Ct. 447, 449 (2010) (Civil rights plaintiffs suing a municipal
entity under 42 U.S.C. § 1983 must show that their injury was caused by a municipal policy or
custom.).

As discussed above, there was no constitutional violation of Nichols’ rights.

Accordingly, “the municipal defendants cannot be held liable under § 1983.” Watkins v. City of
Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001). Additionally, Nichols has failed to present any
evidence of a policy or custom of Bourbon County to use excessive force to violate
constitutional rights. The Defendants are entitled to summary judgment on these claims.
E.

State Law Claims

Nichols alleges that the force used in arresting him constituted assault, battery and
negligence. Kentucky law provides public officials qualified official immunity from liability for
“good faith judgment calls made in a legally uncertain environment.”
S.W.3d 510, 522 (Ky. 2001).

Yanero v. Davis, 65

Qualified immunity applies when public officials perform (1)

discretionary acts, (2) in good faith, and (3) within their scope of authority. Id. If the act was
discretionary and within the scope of authority, the burden shifts to the plaintiff “to establish by
direct or circumstantial evidence that the discretionary act was not performed in good faith.” Id.
at 523.
Kentucky law permits police officers to use reasonably necessary force to preserve
order, including to make an arrest. KRS 503.090(1). Deputy Graves was entitled to use a
reasonable amount of force to subdue and arrest Nichols for his disorderly conduct and even
more force was warranted when he struggled and resisted arrest. The determination of the
amount of force required to effect an arrest is a discretionary act and was within the scope of
Graves’ authority as a School Safety Officer. Woosley v. City of Paris, 591 F. Supp. 2d 913,
922 (E.D. Ky. 2008).

The videotape refutes any argument that the discretionary act was

performed in bad faith. Accordingly, summary judgment should be granted.
Nichols also alleged state law claims that Sheriff Matthews failed to properly train and
supervise Graves.

Supervision and training are discretionary functions.
9

Rowan County v.

Sloas, 201 S.W.3d 469, 480 (Ky. 2006); Doe v. Magoffin County Fiscal Court, 174 F. App’x 962,
973 (6th Cir. 2006). Accordingly, Nichols must demonstrate that Sheriff Matthews acted in bad
faith in training or supervising Graves. There is no evidence that Sheriff Matthews failed to train
or supervise his deputies or that he acted in bad faith. Instead, the evidence is to the contrary.
Sheriff Matthews is entitled to summary judgment on this claim.
Finally, Defendants are entitled to sovereign immunity to the extent that the state law
claims are asserted against any Defendant in an official capacity or against the Bourbon County
Sheriff’s Department. A county government is cloaked with sovereign immunity under Kentucky
law. Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 94 (Ky.
2009). A county official has absolute immunity when sued in his official capacity. Jones v.
Cross, 260 S.W.3d 343, 345 (Ky. 2008). Accordingly, the Defendants are entitled to sovereign
immunity on these claims.
III.

CONCLUSION
IT IS ORDERED that Defendants’ motion for summary judgment on all claims [DE 20] is

GRANTED. Judgment shall be entered contemporaneously with this Opinion and Order.
This June 12, 2014.

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