West v. City of Paris et al

Filing 66

MEMORANDUM OPINION & ORDER: GRANTING IN PART & DENYING IN PART dfts' 62 Supplemental MOTION for Summary Judgment. Signed by Judge Joseph M. Hood on 2/10/15.(KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
MARK WEST,

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)
)
)
)
)
)
)
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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

Supplemental

Motion for Summary Judgment [DE 62], made pursuant to Fed. Rule
Civ. P. 56(c) by Defendants City of Paris, Kentucky; Officer
Shane Breslin, in his official capacity as an employee of the
City

of

Paris;

and

Officer

Steven

Morris,

in

capacity as an employee for the City of Paris.
filed a Response [DE 63].

his

official

Plaintiff has

The Court is adequately advised, and

this Motion is ripe for consideration.
I.
Summary

judgment

material

fact

exists,

judgment

as

matter

a

is

proper

and
of

the

law.

where
moving

Fed.

R.

no

genuine

party
Civ.

is
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).
II.
The

Court

has

already

set

out

the

relevant

factual

background, in large part, in its Memorandum Opinion and Order
of January 22, 2015 [DE 54].
evidence

specifically

Morris.

Witness

Additionally, Plaintiff points to

related

Kimberly

to

the

claims

Sosby-Jones

against

observed

an

Officer
officer

striking West in the face with a baton after West was stunned
with a Taser and was handcuffed on the ground.

Morris testified

that he used a baton during West’s arrest to strike Defendant on
the

back

Dempsey

of
on

his
the

legs

after

West

ground

and

stood

evidence

that

other

Finally,

Plaintiff

officers
points

on

to

no

had

struggled

up.
the

with

Plaintiff
scene

evidence

used
to

officer

offers
a

no

baton.

support

the

conclusion that Breslin used force against Plaintiff, nor does
Plaintiff point to evidence from which a jury could conclude
that

any

excessive

force

exercised

by

the

officers

was

proximately caused by a municipal policy, custom, or practice of
the City of Paris.

2

III.
Plaintiff’s claim for excessive force pursuant to 42 U.S.C.
§ 1983 and his claim for assault and battery under Kentucky law
against

Officers

Breslin

and

Morris,

in

their

official

capacities, are equivalent to claims asserted directly against
the City of Paris.

Kentucky v. Graham, 473 U.S. 159, 166 (1985)

(citing Monell v. New York City Dept. of Soc. Servs., 436 U.S.
658, 690 n. 55 (1978); Greene v. Commonwealth, 349 S.W.3d 892,
903 (Ky. 2011) (citing Commonwealth v. Harris, 59 S.W.3d 896
(Ky. 2001)).

The Court will, therefore, dismiss the official

capacity claims against Defendants Breslin and Morris since the
City of Paris is already a party.

See Thorpe ex rel. D.T. v.

Breathitt Cnty. Bd. of Educ., 932 F. Supp. 2d 799, 802 (E.D. Ky.
2013) (citing Doe v. Claiborne Cnty., Tenn., 103 F.3d 495, 509
(6th Cir. 1996); Baar v. Jefferson County Bd. of Educ., 686
F.Supp.2d 699, 704 (W.D.Ky. 2010)).
IV.
Plaintiff can prevail on his 42 U.S.C. § 1983 claim against
the

City

of

Paris

if

he

can

show

that

Officers

Morris

and

Breslin violated his rights under the Fourth Amendment and that
the violation of rights occurred pursuant to a municipal policy,
custom, or practice of the City of Paris.

Bozung v. Rawson, 439

F. App’x 513, 521 (6th Cir. 2011) (quoting Miller v. Sanilac
Cnty., 606 F.3d 240, 254-55 (6th Cir. 2010)).
3

In the absence of evidence from which a jury could conclude
that

any

excessive

force

exercised

by

the

officers

was

proximately caused by a municipal policy, custom, or practice of
the City of Paris, his claim fails.
Servs.,

No.

(holding

08-1638,

that

2009

“bare

WL

3154241,

allegations

unsupported

by

any

entitlement

to

relief”)

See Broyles v. Corr. Med.

evidence,

of

are

(citing

*2

a

(6th

custom

insufficient

League

of

Cir.
or

to

United

2009)

policy,
establish

Latin

Am.

Citizens, 500 F.3d 523, 527 (6th Cir. 2007)); Petty v. Cnty of
Franklin,

478

F.3d

341,

350

(6th

Cir.

2007)

(holding

that

plaintiff failed to establish violation of constitutional rights
attributable to county where he “was unable to come forward with
evidence—beyond the bare allegations in his complaint—showing
that [a county] custom or policy was the moving force behind the
violation”); Scherzinger v. Bolton, Civil Action No. 3:111-cv11-H, 2013 WL 3821734, *6 (W.D.Ky. July 23, 2013) (holding that
general
anything

allegation
more

than

that
a

a

policy

single

existed

incident

of

without

proof

of

unconstitutional

activity is insufficient to withstand summary judgment); Ash v.
Boone

Cnty.,

Civil

Action

No.

09-190-DLB,

2011

WL

4431820

(E.D.Ky. Sept. 22, 2011) (holding that municipal liability claim
under 42 U.S.C. § 1983 fails where one not only fails to identify
an official custom or policy of Boone County but also fails to
present facts that any such policy existed or to set forth any
4

facts

demonstrating

how

injury

was

causally

linked

to

such

custom or policy). Accordingly, Plaintiff’s claim against the
City of Paris under 42 U.S.C. § 1983 shall be dismissed.
V.
Plaintiff also sues the City of Paris under Kentucky law
for assault and battery.
and

Morris

in

their

The claims against Defendants Breslin

individual

capacities

have

already

been

dismissed as untimely due to the application of the statute of
limitations.

That does not mean, however, that Plaintiff should

not have an opportunity to demonstrate that Breslin and Morris
participated

in

actions

which

caused

him

harm

and

which

constituted assault and battery for which the City of Paris,
which was timely sued for the actions of its officers during the
event in question, is liable.
Plaintiff has presented evidence from which a jury could
reasonably conclude that Morris injured Defendant by means of
battery with a baton which was not excused by any privilege and
for which the City of Paris could be found vicariously liable
for the actions of its employee during West’s arrest.1

See

Williams v. Kentucky Dep’t of Educ., 113 S.W.3d 145, 151 (Ky.
2003) (“[u]nder common law principles of agency, a principal is
vicariously liable for damages caused by torts of commission or
1

Plaintiff offers no reference to evidence that Officer
Breslin was involved in any assault or battery in his Response.
5

omission of an agent or subagent, other than an independent
contractor, acting on behalf of and pursuant to the authority of
the principal.”) (citing Wolford v. Scott Nickles Bus. Co., 257
S.W. 2d 594, 595 (Ky. 1953); Capurso v. Johnson, 248 S.W.2d 908,
910 (Ky. 1952)); 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)) (“Assault is a tort which merely requires the threat
of unwanted touching of the victim, while battery requires an
actual unwanted touching.”); Lawson v. Burnett, 471 S.W.2d 726,
728-29 (Ky. 1971) (officer responsible for damages only where he
uses

excessive

force);

KRS

§

503.090.

Thus,

Defendants’

Supplemental Motion for Summary Judgment with respect to the
state law claims fails with respect to the City of Paris.
VI.
Finally, although all claims arising under federal law have
been

dismissed,

the

Court

elects

to

exercise

supplemental

jurisdiction over the remaining state law claim considering the
time invested in this matter before this Court and the impending
trial date.

See 28 U.S.C. § 1367(a); Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 350 (1988) (“[A] federal court should
consider

and

litigation,

weigh
the

in

values

fairness, and comity.”).

each
of

case,

and

judicial

at

every

economy,

stage

of

convenience,

This matter remains set for jury trial

6

with respect to Plaintiff West’s state law claims as to the City
of Paris on February 22, 2015.
Accordingly, IT IS ORDERED that the Supplemental Motion for
Summary Judgment [DE 62] is GRANTED IN PART and DENIED IN PART.
This the 10th day of February, 2015.

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