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