West v. City of Paris et al
Filing
54
MEMORANDUM OPINION & ORDER: GRANTING dfts City of Paris, Michael Dempsey, Michael Dempsey, Paris Police Department, Scott Toadvine, Scott Toadvine's 24 MOTION for Summary Judgment. Signed by Judge Joseph M. Hood on 1/22/15.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
MARK WEST,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CITY OF PARIS, KY, et al.,
Defendants.
Civil Case No. 13-cv-193-JMH
MEMORANDUM OPINION AND ORDER
ORDER
***
This matter is before the Court upon the Motion for Summary
Judgment [DE 24] filed by Defendants City of Paris, Kentucky,
the
Paris
Police
Department,
Officer
Michael
Dempsey,
individually and in his official capacity, and Officer Scott
Toadvine, individually and in his official capacity.
Plaintiff
has filed a Response [DE 40], stating his objections to the
Motion, and Defendants have filed a Reply in further support of
their Motion [DE 41].
The Court being adequately advised, this
matter is ripe for consideration.
This case arises out of a series of events following a
fight and which led to the arrest of Plaintiff West.
He has
sued Defendants asserting that the use of excessive force during
his
arrest
violated
Constitution
and
assault
battery
and
his
Kentucky
in
rights
law
and
violation
under
that
of
the
he
United
was
Kentucky
States
subjected
law.
For
to
the
reasons which follow, his claims against these Defendants shall
be dismissed.
I.
Background
On June 22, 2012, Mark King and Regina “Belle” Johnson
picked
up
West
and
his
fiancée,
residence in Paris, Kentucky.
Megan
Kincade,
at
West’s
The couples went to dinner at a
restaurant while Kimberly Sosby-Jones, Kincade’s mother, stayed
behind at West’s home to watch West and Kincade’s children.
West,
King,
and
Johnson
consumed
alcoholic
leaving for dinner and at the restaurant.
beverages
before
King and Johnson
returned West and Megan to West’s home sometime around 11:15 or
11:30 p.m.
Kincade had a headache and went to bed.
West went
to the kitchen to talk to Sosby-Jones where she drew West’s
attention to King and Johnson yelling and fighting on the front
lawn of West’s home.
West went outside and told them to stop
but the fight continued.
of them.”
Eventually, West “got in between both
Facing away from the street, he knelt on one knee,
holding King on the ground with his right hand and holding his
left hand in front of Johnson, who was standing.
He explains
that he did not have a grasp on Johnson and that she was never
on the ground.
Meanwhile,
disturbance.
a
neighbor
had
called
911
to
report
the
Officers Toadvine, Breslin, and Stephen Morris and
Lieutenant Michael Dempsey from the Paris Police Department were
2
dispatched
and
responded
to
the
scene.
Lieutenant
Dempsey
stated,
We were dispatched to the area of 1876 Rio
Vista reference an active fight involving
several subjects. While we were en route,
dispatch advised a male subject had a female
subject down in the street and was on top of
her. Initial indication was that she only
had on a bra and panties during the
altercation.
So
that
was
the
initial
dispatch. And we were also told while we
were on the way that that – the whole
disorder, altercation, whatever you want to
call it, had been going on 20 to 30 minutes
before we ever received the first call on
it.
The
officers
hurried
sirens sounding.
to
the
scene
with
lights
flashing
and
As they approached the cul-de-sac where West
lived, they turned off their sirens so as not to disturb the
residents of the neighborhood further.
As they heard the sirens of the approaching police cars,
Kincade – now awake and on the porch – and Sosby-Jones pleaded
with West to come inside and unsuccessfully attempted to pull
him off of or away from King and Johnson.
West did not see the
lights or hear the sirens of the approaching police cars and did
not realize that police had, in fact, arrived on the scene.
The
officers did not identify themselves as “police” or otherwise
identify themselves as they approached him where he kneeled on
the ground between King and Johnson (who was, in fact, fully
clothed).
Dempsey and Breslin ordered West to get off of King
3
and Johnson, but West never heard those orders, although Dempsey
shined his flashlight in West’s eyes.
No one disputes the fact that West stayed where he was.
Thus, Dempsey felt that he “had to go hands on and get [West]
off of them” and, less than thirteen seconds later, Dempsey
grabbed West’s arms to pull him off of King and Johnson causing
West
to
fall
resisted.
forward
onto
his
belly
on
the
ground
as
he
Dempsey and West fell to the ground together, and
West struggled with Dempsey, not realizing that Dempsey was a
police officer, in an effort to get off of the ground and into a
standing position.
West does not recall what happened as he
wrestled in Dempsey to get away from him, but others observed
that West had Dempsey pinned to the ground and would not let go.
During
that
struggle,
West
grabbed
Dempsey,
hyperextended
Dempsey’s fingers, and tore a patch from Dempsey’s sleeve when
he grabbed Dempsey’s shirt.
West
eventually
succeeded
in
rising
to
his
feet
and
realized that he had been struggling with a police officer.
Simultaneously and without warning, Toadvine deployed his Taser,
stunning West twice in what appears to be quick succession.
West found himself back on the ground where he claims that three
officers
gratuitously
hit
him
in
4
the
head,
kicked
him,
and
struck him with objects.1
West cannot identify the officers who
undertook these actions.
Other witnesses have testified that
Toadvine was not engaged in kicking or striking West.
Only
Kincade has identified Dempsey as one of the officers involved
in the effort to control West once he was again on the ground
after
being
stunned,
but
she
could
not
testify
that
Dempsey who kicked or struck West during that time.
it
was
[Page ID#
497 (“I don’t know if it was actually [Mark Dempsey] that was
doing it. . . but it was him and two other cops [trying to get
him
under
control].”).]
Both
Toadvine
and
Dempsey
deny
gratuitously hitting, kicking, or striking West at any time.
Ultimately, West was placed in handcuffs and placed upright
in a seated position.2
One of the police officers called for an
ambulance to take West to a local hospital for an evaluation of
his injuries.
A variety of charges were lodged against West,
and he ultimately pleaded guilty to disorderly conduct.
Later,
he filed this action claiming relief under 42 U.S.C. § 1983 for
the
use
of
excessive
force
in
violation
of
the
Fourth
and
Fourteenth Amendments to the United States Constitution, as well
as a claim for assault and battery under Kentucky law.
1
The officers deny that they did so.
2
West denies that he was struck again after he was placed in a seated
position. He also denies that he was stunned on a second occasion, after he
had fallen to the ground after the first use of the Taser, although Kincade
claims that he was – although not by Dempsey or Toadvine.
5
II.
Standard of Review
Summary
judgment
material
fact
exists,
judgment
as
matter
a
is
proper
and
of
the
law.
where
moving
Fed.
R.
no
genuine
party
is
Civ.
P.
issue
of
entitled
to
56(c)(2).
In
considering a motion for summary judgment, we must draw all
reasonable
inferences
in
favor
of
the
nonmoving
party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).
The central issue is “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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986).
When the question is one of qualified immunity, however,
the analysis is somewhat altered. In ruling on a motion for
summary judgment based on the defense of qualified immunity, the
existence
of
a
disputed,
material
fact
does
not
necessarily
preclude summary judgment. Even if there is a material fact in
dispute, summary judgment is appropriate if the Court finds that
— viewing the facts in the light most favorable to the plaintiff
— the plaintiff has failed to establish a violation of clearly
established constitutional law. Saucier v. Katz, 533 U.S. 194,
201 (2001); Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th
Cir. 1996).
6
III. Discussion
A. Paris Police Department
The Paris Police Department is a sub-unit or instrument of
the City of Paris and is not
sui juris, an entity that is
capable of being sued, and is, therefore, entitled to summary
judgment with respect to Plaintiff’s § 1983 claims. Sargent v.
City of Toledo Police Dep't, 150 F. App’x. 470, 476 (6th Cir.
2005) (holding that police departments are “merely sub-units of
the
municipalities
they
serve”
and
therefore
are
not
proper
defendants in a § 1983 action); Jones v. Marcum, 197 F. Supp. 2d
991,
997
juris;
(S.D.
they
serve.”).
Ohio
are
2002)
merely
(“Police
subunits
of
departments
the
are
not
municipalities
sui
they
Here, the City of Paris is the party susceptible to
suit and named in this suit as a defendant – not the Paris
Police Department.
Accordingly, the claims against the Paris
Police Department shall be dismissed.
B. Dempsey and Toadvine
1. Excessive Force
As
begins
Defendants
its
Dempsey
inquiry
with
and
the
Toadvine
issue
of
request,
qualified
the
Court
immunity.
Qualified immunity protects public officials from liability for
civil
damages
established
if
their
statutory
or
conduct
does
constitutional
not
violate
rights
of
“clearly
which
a
reasonable person would have known.” Pearson v. Callahan, 555
7
U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800,
818
(1982)).
Thus,
the
Court
engages
in
a
“two-tiered
inquiry” to determine if an officer is entitled to qualified
immunity. Martin v. City of Broadview Heights, 712 F.3d 951, 957
(6th Cir. 2013); Austin v. Redford Twp. Police Dept., 690 F.3d
490, 496 (6th Cir. 2012) (citing Saucier v. Katz, 533 U.S. 194,
201 (2001)). The first step is to determine if the facts alleged
make out a violation of a constitutional right. Pearson, 555
U.S. at 232. The second is to ask if the right at issue was
“clearly
established”
when
the
event
occurred
such
that
a
reasonable officer would have known that his conduct violated
it. Id. These two steps may be addressed in any order, but both
must be answered in the affirmative for the case to go to a fact
finder to decide if each officer's conduct in the particular
circumstances
violated
constitutional
rights.
a
Id.
plaintiff's
at
236.
clearly
If
either
established
one
is
not
satisfied, qualified immunity will shield the officer from civil
damages.
Id.
In
this
instance,
the
Court
agrees
with
the
Defendants that the facts alleged do not make out a violation of
a constitutional right with respect to the actions of Dempsey
and Toadvine for the reasons which follow.
qualified
immunity,
without
consideration
Thus, they are due
of
the
second
qualified immunity factor, and the claims against them shall be
dismissed.
8
The
Fourth
Amendment
protects
against
“unreasonable
seizures” and guarantees citizens the right to be “secure in
their persons.” U.S. Const. amend. IV.
use
of
force
in
effecting
an
“Whether an officer's
arrest
violates
the
Fourth
Amendment is a question of whether his actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting
[him], without regard to [his] underlying intent or motivation.
Martin v. City of Broadview Heights, 712 F.3d 951, 957-58 (6th
Cir. 2013) (quoting Graham v. Connor, 490 U.S. 386, 388 (1989)).
“The
test
is
‘reasonableness
at
the
moment’
force
is
used,
‘judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.’” Id.
(quoting Graham, 490 U.S. at 396).
Balancing “the nature and
quality of the intrusion on the individual's Fourth Amendment
interests against the countervailing governmental interests at
stake,” three factors guide the Court: “the severity of the
crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Id.
(quoting Graham, 490 U.S. at 396).
Ultimately, however, the
Court must determine “‘whether the totality of the circumstances
justifies a particular sort of seizure.’” St. John v. Hickey,
411 F.3d 762, 771 (6th Cir. 2005) (quoting Tennessee v. Garner,
471 U.S. 1, 8–9 (1985)).
9
Looking at the first factor, the severity of the crime at
issue, the officers were responding to a dispatch call which
informed them that there was a fight and that it had been going
on for some time.
In other words, they might have reasonably
concluded that some level of force was necessary to separate the
combatants.
used
and
The Court must consider, however, what force was
whether
reasonable.
the
degree
Accordingly,
of
force
in
used
order
against
to
West
evaluate
was
the
reasonableness of the officer’s actions, the Court turns to the
remaining Graham factors: the officers’ conduct in light of any
“immediate threat” West posed to their safety and that of others
and whether West was actively resisting arrest or attempting to
evade arrest by flight.
In this case, it is undisputed that Dempsey and Toadvine
responded
to
encountered
King.
the
West
scene
on
the
of
a
reported,
ground
making
ongoing
physical
fight
contact
and
with
West did not get up or release King when they arrived or
when ordered to do so.
It is irrelevant to the Court’s inquiry
that West was engaged in breaking up a fight between King and
Johnson or that he did not heed the officers’ order because he
did not hear them.
The Court evaluates the situation from a
reasonable officer’s perspective on the scene, not in hindsight
because the Court must take into account “the fact that police
officers
are
often
forced
to
make
10
split-second
judgments—in
circumstances that are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary in a particular
situation.”
Graham, 490 U.S. at 396-97 (citing Terry v. Ohio,
392 U.S. 1, 20-22 (1968)).
While the use of a stun gun or a
Taser on a non-resistant person would be unreasonable absent
some compelling justification “such as the potential escape of a
dangerous criminal or the threat of immediate harm,” Kijowski v.
City of Niles, 372 F. App’x
595, 600 (2010), the single use of
a stun device or Taser is not considered excessive where the
undisputed facts show that an individual is actively resisting
arrest
and
poses
a
risk
to
officer
safety.
Caie
v.
West
Bloomfield Tp., 485 F. App’x 92, 96 (6th Cir. 2012) (citing
Kijowski, 372 F. App’x at 600).
On the facts before the Court, there was enough resistance
to justify both Dempsey and Toadvine’s use of force.
Knowing
that the fight had been ongoing for some time prior to their
arrival
and
seeing
West
holding
King
on
the
ground,
it
was
reasonable for Officer Dempsey at that point to step into the
fray and attempt to separate West and King to put an end to
their confrontation.
Further, once West fell to the ground with
Dempsey and began to wrestle with him, only to then rise to his
feet, “there was, undisputedly enough resistance” on West’s part
to justify Toadvine’s use of force, deploying his Taser to stun
West once Toadvine had an opportunity to do so in order to put
11
an end to the altercation and the danger that West posed to
Dempsey and, potentially, the other officers on the scene.3
Neither
Dempsey’s
efforts
to
separate
West
from
King,
Dempsey’s efforts to subdue West and to protect himself while on
the
ground,
gratuitous.
nor
Toadvine’s
decision
to
stun
West
were
Rather, these actions served the purpose of gaining
control over and neutralizing what a reasonable officer could
perceive as a dangerous situation with an uncooperative subject.
Plaintiff was not trying to flee but neither was he subdued and
a reasonable officer on the scene would have perceived West as
posing a continuing physical threat to at least Dempsey and
perhaps the other police officers nearby, including Toadvine.
Accordingly, the Court concludes that no reasonable finder of
fact could conclude that Dempsey and Toadvine’s use of force
under these circumstances violated West’s constitutional rights.
The Court reaches a slightly different conclusion – albeit
with a similar result when it comes to Defendant’s motion for
summary judgment — when it considers whether West’s right to be
free from the use of excessive force was violated once he was
subdued.
According to West, once he was on the ground after
being stunned, he was incapacitated.
The officers deny that
any of them gratuitously hit, kicked, or struck West while he
3
Although there is evidence that West was, in fact, stunned twice at that
time, the incident is best understood as a single use of the device — albeit
twice triggered — to stun West.
12
was on the ground.
He states, however, that he took “a pretty
good beating” on the ground before officers attempted to place
him in handcuffs and, again, after he was handcuffed but before
he was lifted from where he lay on the ground on his stomach.
[PageID
##
432
and
435.]
“[m]ainly [on his] head.”
He
recalled
the
[PageID## 432-33.]
blows
landing
Sosby-Jones saw
officers kicking him in the side two or three times and striking
him with a baton on his face after he was handcuffed.
Kincade
testified that after West was handcuffed and while he was still
on
the
ground,
officers
were
kicking
him
in
the
ribs
and
midsection “to get [West] under control,” that he was punched in
the face once, and that, once West was placed in an upright,
seated position, he was stunned again using the Taser.4 [Page
ID## 496-98.]
Thus, there could be a material issue of fact as
to whether West was subjected to force – and excessive force at
that – after he was stunned and, eventually, handcuffed.
Kijowski, 372 F. App’x
However,
witness
which
there
is
See
595.
no
attributes
evidence
such
from
conduct
4
to
West
or
either
any
other
Dempsey
or
Interestingly, while West and Toadvine have identified Toadvine as the
officer who deployed his Taser, both Sosby-Jones and Kincade testified that
Scott Toadvine was not involved in the fracas and did not use the Taser to
stun West. [See Page ID## 396 and 496.] Kincade described the officer who
deployed the Taser as “bald, had glasses, short” and testified that the
officer who used the Taser was neither Dempsey or Toadvine. [Page ID# 496.]
Further, Kincade testified that West was stunned with a Taser again, once he
was handcuffed, West himself testified that the Taser was only employed once,
before he went to the ground and was handcuffed. [PageID ## 435, 497.]
13
Toadvine, both of whom deny engaging in such actions.
Under
these circumstances, no reasonable finder of fact could conclude
that Dempsey or Toadvine engaged in actions which could have
violated West’s constitutional right to be free from the use of
excessive force, see Totman v. Louisville Jefferson Cnty. Metro
Gov’t., 391 F. App’x. 454, 463-65 (6th Cir. 2010) (where the
plaintiff cannot attribute particular force to the particular
defendant,
the
defendant
is
entitled
to
summary
judgment
on
plaintiff’s excessive force claim), and they are protected by
qualified immunity.
They are entitled to summary judgment on
West’s excessive force claim as West has not raised a genuine
issue of material fact regarding their use of excessive force
after was stunned and fell to the ground and was, eventually,
handcuffed.
Considering the evidence in the light most favorable to
West, Dempsey and Toadvine are protected from Plaintiff’s claims
under 42 U.S.C. § 1983 by qualified immunity for the reasons set
forth above, and the claims against them must be dismissed.
2. Assault
Plaintiff also claims that Dempsey and Toadvine subjected
him to assault in violation of Kentucky law.
Assault occurs
when one person intentionally threatens another person with an
unlawful touching, or causes that person to be in imminent fear
of an unlawful touching.
“Assault is a tort which merely
14
requires the threat of unwanted touching of the victim, while
battery requires an actual unwanted touching.” Banks v. Fritsch,
39
S.W.3d
474,
480
(Ky.
Ct.
App.
2001)
(citing
Brewer
v.
Hillard, 15 S.W.3d 1, 8 (Ky. Ct. App. 1999)). However, a police
officer is privileged, under certain circumstances, to use force
in effecting an arrest. This privilege has been codified as
follows:
(1)The use of physical force by a defendant
upon another person is justifiable when the
defendant, acting under official authority,
is making or assisting in making an arrest,
and he:
(a) Believes
that
such
necessary to effect the arrest;
force
is
(b) Makes known the purpose of the
arrest or believes that it is otherwise
known or cannot reasonably be made known to
the person to be arrested; and
(c)
KRS § 503.090.
use
reasonably
Believes the arrest to be lawful.
Police officers generally have a privilege to
necessary
force
to
preserve
order.
Lawson
v.
Burnett, 471 S.W.2d 726, 728-29 (Ky. 1971) (officer responsible
for damages only where he uses excessive force).
As the Court has determined that the force used to subdue
and arrest West was both necessary and reasonable as outlined
above, the Court also concludes that Dempsey and Toadvine were
privileged
to
use
that
same
force
15
to
subdue
and
effect
the
arrest of West. In this instance, neither Dempsey or Toadvine
had an opportunity to make the purpose of the arrest known to
West beyond Dempsey and Breslin’s cursory instruction for West
to get off of King, although West apparently did not hear them,
and both Toadvine and Dempsey reasonably believed the efforts to
subdue West and the arrest to be lawful, all things considered.
Further, with respect to the “beating” that West claims he took
once he was on the ground, the Court has already determined that
there
is
no
evidence
which
attributes
those
actions
to
Defendants Dempsey and Toadvine. Summary judgment on this issue
shall be granted.
(b)
City of Paris
In order to establish liability on the part of the City of
Paris under 42 U.S.C. § 1983, Plaintiff must establish that some
individual defendant deprived him of his constitutional right
and that the moving force behind the deprivation was a policy or
custom of the City of Paris. See, e.g., Bozung v. Rawson, 439 F.
App’x. 513 (6th Cir. 2011).
constitutional
wrong
As the Court has concluded that no
occurred
as
a
result
of
the
actions
attributable to Dempsey and Toadvine, there can be no claim
against the City of Paris with respect arising out of their
actions.
Neither can the City of Paris be held responsible for
any state tort where none exists.
is appropriate.
16
Accordingly, summary judgment
IV.
CONCLUSION
For all of the reasons stated above, summary judgment is
appropriate and judgment shall be entered by separate order in
favor of Defendants City of Paris, Kentucky, the Paris Police
Department,
Officer
Michael
Dempsey,
individually
and
in
his
official capacity, and Officer Scott Toadvine, individually and
in his official capacity.
The only claims remaining for trial
in this matter are those against Shane Breslin and Steven Morris
in their official capacities as an employee of the City of Paris
and, the Court presumes, the City of Paris with respect to the
actions of Shane Breslin and Steven Morris in their official
capacities.
Accordingly,
IT
IS
ORDERED
that
Judgment [DE 24] is GRANTED.
This the 22nd day of January, 2015.
17
the
Motion
for
Summary
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