Leath v. Webb et al

Filing 63

MEMORANDUM OPINION & ORDER : (1) Defendant's 37 MOTION for Summary Judgment is DENIED as to counts 3,4, and 5 against Officer Webb for the alleged throat grab; (2) All other counts, Defendant's Motion for Summary Judgment 37 is GRANTED. Signed by Judge Joseph M. Hood on 6/29/2018.(JJ)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

DARRELL LEATH,
Plaintiff,
v.
RANDALL WEBB, et al.,
Defendants.

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Civil Case No.
5:17-cv-38-JMH
MEMORANDUM OPINION & ORDER

***
While most people were busy celebrating the 2016 New Year,
police in Lexington were investigating a homicide.

The first

shooting victim of the year had arrived at University of Kentucky
Chandler Hospital on January 1.

And before the sun set on that

first day of the year, UK Police learned from Lexington Police
that someone connected to the shooting—be it another victim, a
suspect, or a witness—could show up at Chandler.

So Lexington

police asked UK officers to give them the heads up if anything of
interest occurred at the hospital.

And in the wee morning hours

of January 2, 2016, Darrell Leath walked through the door.
Leath, it turned out, was kin to the victim.

He told police

as much, and he begged them to let him see his cousin.

But police

couldn’t do so—after all, it was against hospital policy, and at
the time, officers did not know who Leath was.
1

This didn’t sit

well with Leath.
him to leave.
protest.

He grew angry and belligerent; police had to ask

Leath complied, albeit reluctantly and not without

And as Leath slowly exited UK property, police decided

they had grounds to arrest him.

So they put Leath in handcuffs

and charged him with several misdemeanors.

What transpired over

the next few hours resulted in felony charges, another trip to the
hospital, a trial, a conviction on some charges, acquittal on
others, and now this civil-rights lawsuit.

Leath claims officers

and nurses (1) violated his right to refuse medical treatment, (2)
fabricated charges against him, (3) used excessive force, and (4)
retaliated against him.

Defendants deny Leath’s allegations and

argue they enjoy qualified immunity.

So they filed a Motion for

Summary Judgment. [DE 37]. Leath responded [DE 41] and Defendants
replied [DE 45], making this matter ripe for review.

For the

reasons stated herein, Defendants’ Motion is GRANTED IN PART and
DENIED IN PART.
I.

Background
a. UK Chandler Hospital
Darrell Leath and his father arrived in the lobby of Chandler

early on January 2, 2016 hoping to see a family member.
13, McConnell Body Camera Video].

[DE 37-

Officer Joshua McConnell was

also at Chandler as part of his duties as a UK Police officer.
[DE

37-9,

Dep.

of

Josh

McConnell,

2

pp.

18–20].

That

night,

Lexington Police asked UKPD to notify them if anyone came into
Chandler with information about the recent homicide.

[Id.].

When Leath walked in and started discussing the shooting,
McConnell did not know Leath’s relationship with the victim. [Id.,
p. 20].

So McConnell notified dispatch.

[Id.].

When he informed

Leath that no one could go back to see the victim, Leath was not
happy.

[Id.; DE 37-13; DE 37-14, McConnell Body Camera Video].

By that point, backup had arrived.

[DE 37-9, p. 21].

Officers

Randall Webb, David Duncan, and Emily Faulkner joined McConnell
and warned Leath that if he didn’t “calm down here, we are going
to ask you to leave.”

[DE 37-13].

They informed Leath that they

had no information, and would try to work with him, but if “you do
not lower your voice, you are going to leave or it is criminal
trespassing.” [Id.].
Leath never did calm down.

He remained agitated and upset,

prompting police to ask Leath to leave.

[DE 37-14].

As he walked

out, police followed close behind to ensure that Leath did not
linger.

All the while, Leath yelled profanities and threats

including telling his father “if you touch me, I’m stomping you.”
[DE 37-14].

He also yelled that he “wish[ed] a motherfucker would

touch me.”

[Id. at 3:16; DE 37-15, McConnell Body Camera Video at

3:03].

After a few minutes, police suspected Leath or his father

intended to drive.

[DE 37-2, p. 6].

3

Because both men appeared

intoxicated, police intervened.

One officer can be heard on body

camera video saying “if you want a DUI, there it is.”

[DE 37-15

at 5:07].
That is when police decided to make an arrest.

[DE 37-16,

McConnell Body Camera Video at 0:23]. Leath complied but continued
to shout profanities and made threats regarding a lawsuit.
at 0:42].

[Id.

Police informed Leath that they were arresting him for

alcohol intoxication and disorderly conduct.

[Id.].

Leath’s

father admitted that Leath was driving and the two had been
drinking.

[Id. at 1:00, 5:25].

With Leath in handcuffs, officers

Faulkner and Webb began a routine pat-down.
Body Camera Video at 2:02].

[DE 37-17, Duncan

When officers told Leath to take his

boots off, he refused: “I ain’t taking off a motherfucking thing
. . . The fuck you mean? You strip search me, you better have a
warrant.”

[Id at 2:08].

The profanities and threats continued as

Faulkner executed the pat-down.

At that point, Officer Webb

grabbed Leath around the mouth and throat area and twice said “look
at her again like that.”

[Id. at 2:14].

Police then took Leath to the transport wagon.
6].

[DE 37-2, p.

Officers claim Leath began resisting and pulled away, causing

Officer Webb, who was holding Leath’s arm, to feel a pop in his
right shoulder and severe pain.
Webb p. 22].

[Id.; DE 37-6, Dep. of Randall

Webb reported his “whole left arm when numb and

4

tingly” to the point that he could not move it.

[DE 37-6, p. 22].

Officers then placed Leath in the transport wagon and took him to
Fayette County Detention Center.
b. Fayette County Detention Center
When Leath arrived at the detention center, staff nurse Sarah
Rideau attempted to evaluate him. [DE 37-18, Aff. of Sarah Rideau
p. 2; DE 37-2, p. 7].

Her duties required her to observe new

inmates to determine whether they were medically stable enough to
be

admitted.

[DE

37-18,

p.

1].

Rideau

claimed

Leath

“agitated, non-compliant, and seemed very disoriented.”
p. 2, ¶5].

was

[Id. at

Rideau also noticed Leath had large pupils and froth

coming from his mouth.

[Id. at p. 2].

Taken together, Leath’s

appearance and behavior suggested to Rideau that Leath was either
under the influence of dangerous narcotics or suffering from a
serious medical condition.

[Id.].

Rideau attempted to take

Leath’s vital signs to rule these out, but he refused to comply.
[Id.].

So Rideau refused to admit Leath to the jail—FCDC could

not accommodate any serious medical condition or narcotics that
could put Leath and others in danger.

[Id.].

Officers faced a difficult situation: They had an arrestee,
facing multiple charges, and nowhere to put him.
Leath to let the jail staff take his vital signs.
McConnell Body Camera Video at 1:10].
5

Police asked
[DE 37-21,

But he still refused.

So

police decided to transport Leath to Good Samaritan Hospital; a
doctor there could take Leath’s vital signs.

While officers and

Leath waited to leave, Leath continued his barrage of threats,
“I’m suing the shit out of y’all” [DE 37-19, McConnell Body Camera
Video at 6:19], and he challenged officers to “take these cuffs
off and see if you tough.”

[Id. at 5:40].

Leath even tried to

bargain with officers: “I can save your job now.
Say it’s a misunderstanding.”

[Id. at 7:21].

Just let me go.
Finally, Leath

indicated to police that he had a criminal history, telling police
to Google him to see his rap sheet.

[Id. at 16:33].

Shortly after 4:00 a.m., Leath and officers climbed into the
medical transport and headed to Good Samaritan Hospital.
c. Good Samaritan Hospital
Upon arrival at Good Samaritan, Leath again told officers he
did not consent to giving his vital signs.

Police told him at

least four times to “sit still” and when Leath began resisting
officers pleaded with Leath, “you’re going to get hurt, man, stop.”
[DE

37-20,

Duncan

Body

Camera

Video

at

12:38].

As

he

had

previously, Leath responded with profanity: “fuck you man; I’m
going to sue the fuck out of you.”

[Id. at 12:54].

A nurse

attempted to take Leath’s blood pressure, but Leath continued to
resist and he told police he would “kick you in your motherfucking

6

face.”

[Id. at 13:10].

Police warned Leath that if he kicked an

officer “you will be charged with assault.”
But Leath did not cooperate.

[Id at 13:48].

Police put Leath on the ground

so medical officials could take his vital signs, and Leath began
thrashing.

Officers placed a pillow under Leath’s head and told

him to stop fighting.

[Id. at 14:22; DE 37-23, McConnell Body

Camera Video at 2:34]. During the commotion, Officer Duncan yelled
that Leath bit him, and Leath repeatedly tells police to “break my
neck.” [DE 37-20 at 14:37, 15:19].

He also told police he was

“ready to act a fool up in this motherfucker.”

[Id. at 15:06],

and that he wanted police “to hurt me . . . so I get paid.”
at 16:22].

[Id.

A nurse took Leath’s vital signs using a finger clip

for a pulse, an arm cuff for blood pressure, and a head-swipe
thermometer. No blood was drawn. No drugs were used. No operation
performed.

The process lasted only a few minutes.

Once the nurse had obtained Leath’s vital signs, Leath noticed
his boot came off and told police “put my motherfucking shit on
before I kick you.”

[Id. at 16:34; DE 37-23 at 4:15].

Police

told Leath he was “going shoeless to jail” because he had kicked
people.

[DE 37-23 at 5:43].

Leath was then cleared to go to jail.

[Id. at 7:55].
d. Return to Fayette County Detention Center

7

Back at FCDC, Leath remained upset.

He told officers that he

was going to “find you” and mouthed that he was going to “shoot
you in the face” to officers.
Video at 2:11].

[DE 37-25, McConnell Body Camera

Officers then discussed the situation with jail

personnel who reiterated that they were not permitted to take Leath
into custody without vital signs.

[Id. at 12:19].

But since

vitals had been obtained, Leath was admitted and officials kept
close observation on him based on concerns for his safety.

[DE

37-18, p. 3].
e. Criminal Proceedings
In addition to the prior misdemeanor charges, police added
three felony assault counts against Leath for (1) pulling away
from Officer Webb, (2) biting Officer Duncan, and (3) kicking
officers at Good Samaritan.
Leath on those charges.

[DE 37-28].

[Id.].

A grand jury indicted

At trial, a jury found him not

guilty on the assault charges but guilty on three misdemeanor
charges.

[DE 37-29].

Because Leath could not make bail, he was

held in jail before trial and sentenced to time served following
his conviction.

[Id.].

f. Leath Sues Officers
Leath filed this lawsuit in Fayette Circuit Court in January
2017 alleging a range of constitutional and state-law violations
against

UKPD

officers

Webb,

Duncan,
8

Faulkner,

McConnell,

and

Flora, as well as Good Samaritan nurses Christopher Thompson and
Jeffrey Jones-Ritzler.
case to this court.

[Id.].

[DE 1].

Motion for Summary Judgment.

Defendants timely removed the

After discovery, Defendants filed a
[DE 37].

Leath responded [DE 41],

and Defendants replied [DE 45], making this matter ripe for review.
II.

Standard of Review

Summary judgment is appropriate only when no genuine dispute
exists as to any material fact and the movant is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(a).

The moving

party has the burden to show that “there is an absence of evidence
to support the nonmoving party’s case.” Celeotex Corp. v. Catrett,
477 U.S. 317, 325 (1986).

“A dispute about a material fact is

genuine if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.” Smith v. Perkins Bd. of Educ.,
708 F.3d 821, 825 (6th Cir. 2013) (internal quotations omitted).
The Court construes the facts in the light most favorable to the
nonmoving party.

See Anderson v. Liberty Lobby Inc. 477 U.S. 242,

248 (1986). “In the qualified immunity context, this usually means
adopting . . . the plaintiff’s version of the facts, unless the
plaintiff’s version is blatantly contradicted by the record, so
that no reasonable jury could believe it.”

Stoudemire v. Mich.

Dep’t of Corrs., 705 F.3d 560, 565 (6th Cir. 2013) (internal
quotations and citations omitted).

9

Once the moving party meets

its burden of production, the nonmoving party must “go beyond the
pleadings”

through

affidavits,

depositions,

answers

to

interrogatories and admissions on file to show a genuine issue
exists for trial.

See Celeotex, 477 U.S. at 323–24.

scintilla of evidence is insufficient.
Where

“there

is

‘a

videotape

A mere

Anderson, 477 U.S. at 252.
capturing

the

events

in

question,’ the court must ‘view[] the facts in the light depicted
by the videotape.’”

Green v. Throckmorton, 681 F.3d 853, 859 (6th

Cir. 2012) (quoting Scott v. Harris, 550 U.S. 372, 378–81 (2007)).
So, “[a]lthough ordinarily the plaintiffs’ version of the facts
must be accepted as true when deciding the defendant’s motion for
summary judgment, a video that contradicts a nonmovant’s version
of the facts can support a grant of summary judgment.”

Lee v.

City of Norwalk, 529 F. App’x 778, 782 (6th Cir. 2013).
III. Analysis
As an initial matter, the Court notes that Leath has withdrawn
Count IX (false arrest) against all defendants.

[DE 41, p. 4].

Leath also no longer wishes to pursue any claims against JonesRitzler.

[Id. at p. 3].

Accordingly, Defendants’ Motion for

Summary Judgment is GRANTED as to all Defendants on Count IX.

The

Court also GRANTS Summary Judgment to Jones-Ritzler on all counts.
The Court now turns to the remaining claims.

10

Leath’s federal claims brought under 42 U.S.C. § 1983 are:
(1) Count I: Unlawful Search and Seizure; (2) Count II: Unlawful
Detention and Confinement; (3) Count III: Excessive Force; (4)
Count VIII: Malicious Prosecution; and (5) Count X: Free Speech.
[DE 1].

The state-law claims are: (1) Count IV: Assault; (2)

Count V: Battery; (3) Count VI: Abuse of Process; (4) Count VII:
Malicious Prosecution.
Because

this

case

involves

nine

counts

against

multiple

defendants, the Court will address the claims in related groups.
And because Defendants invoke qualified immunity as a defense, the
Court will first discuss the qualified-immunity standard.
A. Qualified Immunity
“Qualified immunity operates ‘to ensure that before they are
subjected

to

suit,

officers

are

on

notice

their

conduct

is

unlawful.’” Occupy Nashville v. Haslam, 769 F.3d 434, 441 (6th
Cir. 2014) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).
“Qualified immunity gives government officials breathing room to
make reasonable but mistaken judgments, and protects all but the
plainly incompetent or those who knowingly violate the law.”
Stanton v. Sims, 134 S.Ct. 3, 5 (2013) (per curiam).
Qualified immunity turns on a two-part test: “whether ‘a
constitutional right would have been violated on the facts alleged’
and, if so, whether the right was ‘clearly established.’” Occupy
11

Nashville, 769 F.3d at 442 (quoting Saucier v. Katz, 533 U.S. 194,
200–01 (2001)).

Courts have discretion to address either prong of

the analysis first.
(2009).

See Pearson v. Callahan, 555 U.S. 223, 236

But as the Supreme Court recently stressed “lower courts

‘should think hard, and then think hard again,’ before addressing
both

qualified

immunity

and

the

merits

of

an

underlying

constitutional claim.’” Dist. of Columbia v. Wesby, 138 S.Ct. 577,
589 n.7 (2018) (quoting Camreta v. Greene, 563 U.S. 692, 707
(2011)).

“Once the qualified immunity defense is raised, the

burden is on the plaintiff to demonstrate that the officials are
not entitled to immunity.”

Binay v. Bettendorf, 601 F.3d 640, 647

(6th Cir. 2010).
Plaintiffs

can

satisfy

the

clearly

established

prong

by

“citing to ‘cases of controlling authority in their jurisdiction
at the time of the incident’ or ‘a consensus of cases of persuasive
authority such that a reasonable officer could not have believed
that his actions were lawful.’” Scott v. Becher, No. 17-2146, 2018
WL 2684316, at *1 (6th Cir. June 5, 2018) (quoting Wilson v. Layne,
526 U.S. 603, 617 (1999)); Kent v. Oakland Cty., 810 F.3d 384, 395
(6th Cir. 2016)).
when

“at

the

‘sufficiently

In other words, the law is clearly established

time
clear

of

the

that

officer’s
every

conduct,

reasonable

was

would

Wesby, 138

Ashcroft v. al-Kidd, 563 U.S. 731, 741
12

law

official

understand that what he is doing is unlawful.’”
S.Ct.at 589 (quoting

the

(2011)).

In evaluating whether a right is clearly established,

courts cannot “define clearly established law at a high level of
generality.”

al-Kidd, 563 U.S. at 742.

Instead, “[t]he ‘clearly

established’ standard . . . requires that the legal principle
clearly

prohibit

the

officer’s

conduct

in

the

particular

circumstances before him.” Wesby, 138 S.Ct. at 590. The officer’s
conduct must be unlawful not in the abstract but “in the situation
he confronted.”

Id.

B. Group One: Unlawful Search and Seizure
In Count I, Leath alleges that the officers and a nurse
violated his Fourth Amendment right to be free from an unlawful
search and seizure.

[DE 41, p. 3].

Specifically, Leath asserts

this claim against officers Webb, McConnell, Duncan, and Flora,
and nurse Thompson.

[Id.].

He argues that the taking of his

blood pressure, pulse, and temperature violated his rights because
(1) it was done with no medical purpose or probable cause, and (2)
Leath had a right to refuse medical treatment.
The basis for this claim began when Leath arrived at Fayette
County Detention Center and refused to have his vitals taken. [3718, p. 2, ¶9; DE 37-19, at 3:43].

Sarah Rideau, the nurse at the

jail that night, stated in her affidavit that she routinely had to
determine

if

individuals

were

admitted.

[DE 37-18 at ¶3].

medically

enough

to

be

As discussed above, multiple factors
13

stable

led Rideau to believe that Leath was extremely intoxicated or
suffering from a serious medical condition.

[Id. at p. 2].

Leath

was disoriented, non-compliant, had large pupils, and froth was
coming from his mouth.

[Id. at ¶¶6–7].

Determining the cause of

Leath’s symptoms was important because the jail might not have
“been able to accommodate an immediate medical emergency.”

[Id.

at ¶14]. But Rideau could not even begin to evaluate Leath because
he refused to comply.
That put officers in a bind.
could not admit him to jail.

They had Leath in custody but

Sensing the problem, Leath sought to

capitalize and made a proposal: If the officers let him go scotfree, he would forget about his plans to sue (by this point, Leath
had indicated numerous times that he was going to sue officers).
[DE

37-19,

at

1:21,

4:46,

Officers had none of it.

6:19,

7:21,

9:31,

12:52,

14:34].

Instead, they decided that they had to

obtain Leath’s vitals to comply with jail policy.
That’s when an ambulance took Leath to Good Samaritan. There,
officers held him down while nurse Thompson swiped Leath’s head
for a body temperature, took his blood pressure, and used a finger
clip for his pulse.

[DE 37-22; DE 37-23].

And taking a prisoner’s

vital signs is nothing new at Good Samaritan.

Allison Rains, a

doctor who was working that night, stated in a sworn affidavit
that it was common for police to bring intoxicated people to the

14

emergency room to be medically cleared prior to going to jail.
[DE 37-22, p. 1, ¶2]. Doing so rules out any preexisting condition
or other serious injury.

[Id. at ¶3].

Indeed, it did so in

Leath’s case, and he was later admitted to jail.

[DE 37-18, p. 3,

¶16].
Leath maintains that he has a “fundamental liberty interest
under the Fourteenth Amendment to reuse any medical care or
treatment.”

[DE 41, p. 27].

As support, Leath cites Cruzan v.

Dir. Mo. Dep’t of Health, 497 U.S. 261 (1990) in which the Supreme
Court

held

protected

that

“a

liberty

treatment.”

competent
interest

Id. at 278.

in

has

refusing

a

constitutionally
unwanted

medical

Cruzan, he argues, gave officers fair

warning of his right to refuse.
not honored.

person

Leath refused, and his right was

Case closed.

Not exactly.

Even Leath admits that courts have “found that

it is constitutionally permissible to seize a person and transport
them to the hospital when the person seized is a danger to
themselves or others.”

[DE 41, p. 27].

Precisely.

The entire

point of taking Leath’s vitals was to rule out a serious medical
condition.

[DE 37-18 at ¶7].

And Leath had been so volatile and

belligerent that jail officials kept him under observation even
after taking his vitals.

[Id. at ¶16].

15

That’s not all.

The Sixth Circuit and other federal courts

have held that the right to refuse medical treatment “is not
absolute and is particularly susceptible to regulation in the
prison setting.”
2004).

Davis v. Agosto, 89 F. App’x 523, 528 (6th Cir.

In Davis, for example, officials restrained a prisoner to

close a wound on his head, even though he did not consent.
525.

Id. at

The Sixth Circuit found that it “was well within the

authority of the medical officials at the prison to determine that
closing the wound was necessary to the health and safety of Davis
as well as those around him.”
time,

medically-necessary

rights.

Id. at 528.

procedure”

did

The “routine, onenot

violate

Davis’s

Id.; see also Myers v. Jackson, No. 11-3168-SAC, 2012 WL

137935, at *4 (D. Kan. Jan. 18, 2012) (holding plaintiff “presents
neither compelling factual circumstances nor convincing legal
authority establishing that he had a federal constitutional right
to refuse to submit to a simple, one-time, diagnostic blood
test.”).
Cruzan itself does not go as far as Leath would like.

There,

the Court recognized that whether a constitutional right has been
violated “‘must be determined by balancing his liberty interests
against the relevant state interests.’”

497 U.S. at 279 (quoting

Youngberg v. Romeo, 457 U.S. 307, 321 (1982)).

Courts have found

that “the state has a substantial interest in assuring the medical
stability of its pretrial detainees.”
16

Sullivan v. Bornemann, 384

F.3d 372, 378 (7th Cir. 2004).

In Sullivan, the Seventh Circuit

found no Fourth Amendment violation when officers held down a
pretrial detainee who did not consent to a catheter; officers did
so because the state jail would not admit the detainee without
medical clearance.

See id. at 373–75.

The Court found that there

is “no rule to the effect that law enforcement officials are
constitutionally prohibited from briefly restraining a detainee at
the direction of qualified medical personnel.”

Id. at 377.

A

district court within the Sixth Circuit has also concluded that
officers did not violate the Fourth Amendment by restraining a
detainee who did not consent to a catheterization procedure.

See

Meyer v. Woodward, 617 F.Supp.2d 554, 562–64 (E.D. Mich. 2008).
Other courts have reached similar conclusions.
Richards,

384

involuntary

F.3d

444,

application

448
of

(7th

Cir.

delousing

See Russell v.

2004)

shampoo

(finding
to

new

that

inmates

permissible); Solvin v. Capello, No. 2:10-cv-297, 2012 WL 1190174,
at *5 (W.D. Mich. Apr. 9, 2012) (holding a forced blood-pressure
and weight check did not violate rights of prisoner engaged in
hunger strike); Williams v. Brann, No. 02-C-940, 2006 WL 2401112,
at *7–8

(E.D. Wisc. Aug. 18, 2006) (restraining detainee to

facilitate rectal exam did not violate Fourth Amendment).
Like
restrained

the
the

officers

in

detainee

(Leath)

admittance to jail.

Sullivan,

medically

officers
clear

simply
him

for

They did so at the direction of medical
17

to

here

professionals, and like the treatment in Davis, here the blood
pressure, temperature, and pulse check was necessary to ensure the
safety of Leath and those around him.

89 F. App’x at 528.

Rideau

said as much in her affidavit, which remains uncontroverted—Leath
does not even address Rideau’s affidavit in his response to
Defendants’ motion.
necessary,

and

The one-time tests were minimally invasive,

done

in

jail

where

the

“particularly susceptible to regulation.”
384 F.3d at 378.

to

refuse

is

Id. at 525; Sullivan,

In short, Leath did not, as he claims, have an

absolute right to refuse.
state’s interest.

right

That right had to be balanced with the

Cruzan, 479 U.S. at 279.

And balancing those

interests in a jail setting—where the state has a heightened
interest in ensuring safety—the Court finds no constitutional
violation.
But even if a constitutional violation occurred, it was far
from clearly established.

Leath’s arguments fail for two reasons.

First, his claim would require defining his clearly established
rights at a high level of generality—the right to refuse any
medical treatment in any context.

See al-Kidd, 563 U.S. at 724.

But this is precisely what the Supreme Court has warned against:
“[t]he ‘clearly established’ standard . . . requires that the legal
principle clearly prohibit the officer’s conduct in the particular
circumstances before him.”
added).

Wesby, 138 S.Ct. at 590 (emphasis

Leath does not even attempt to explain how acquiring
18

minimally invasive vital signs—in a jail setting, from a hostile
and intoxicated detainee, who could be a danger to himself and
others—violates clearly established rights.

In short, Leath fails

to establish that the officers’ conduct was unlawful “in the
situation [they] confronted.”

Id. (emphasis added).

Second, no case that Leath cites controls the situation before
the court, and none establishes that “every reasonable official
would understand that what he is doing is unlawful.”
S.Ct.

at

589

(emphasis

added).

Several

cases

Wesby, 138

suggest

that

restraining a detainee for medical purposes does not violate the
Constitution.

See Sullivan 384 F.3d 372; Davis, 89 F. App’x 523.

Indeed, other cases involve medical treatment far more invasive
than what Leath endured. In short, the case law governing detainee
and prisoner medical treatment is not so clear as to establish
that every reasonable officer would “understand that what he is
doing violates” Leath’s rights.

See Binay, 610 F.3d at 646–47.

The officers and nurses did not have “fair warning” that their
actions would violate a clearly established constitutional right,
and they are entitled to qualified immunity.

See Baynes v.

Cleland, 799 F.3d 600, 612–13 (6th Cir. 2015).
Defendants’ Motion for Summary Judgment is GRANTED as to Count
I.
C. Group Two: Leath’s Prosecution and Confinement
19

The

following

claims

are

brought

against

officers

Webb,

Duncan, and McConnell for “bringing the false felony assault
charges against the Plaintiff which resulted in this prosecution,
detention, and confinement:” (1) Count II: Unlawful Detention and
Confinement; (2) Count VI Abuse of Process: (3) Count VII State
Malicious

Prosecution;

Prosecution.
and VIII.
(i)

(4)

Count

VIII:

Federal

Malicious

Leath also includes Officer Faulkner in Counts VII

[DE 41, p. 4].
Federal Malicious Prosecution

“Individuals have a clearly established Fourth Amendment
right to be free from malicious prosecution.”
852

F.3d

568,

prosecution

582–83

claim

(6th

Cir.

“encompasses

conviction, and incarceration.”

2017).

A

King v. Harwood,
§

investigation,

1983

malicious

prosecution,

Sykes v. Anderson, 625 F.3d 294,

308 (6th Cir. 2010). Malicious prosecution contains four elements:
“(1) a criminal prosecution was initiated against the plaintiff
and the defendant made, influenced, or participated in the decision
to prosecute; (2) there was a lack of probable cause for the
criminal prosecution; (3) the plaintiff suffered a deprivation of
liberty, as understood under Fourth Amendment jurisprudence, apart
from the initial seizure; and (4) the criminal proceeding was
resolved

in

the

plaintiff's

favor.” King,

852

F.3d

at

580.

Defendants argue that Leath fails to meet element two because

20

probable cause existed to prosecute Leath on the felony assault
charges.
(a)

Probable Cause

“Probable cause to initiate criminal prosecutions exists
where facts and circumstances are sufficient to lead an ordinarily
prudent person to believe the accused was guilty of the crime
charged.”
2015).

Webb v. United States, 789 F.3d 647, 666 (6th Cir.

In a malicious prosecution case, a grand-jury indictment

presumptively establishes probable cause.

See King, 852 F.3d at

586–87. But a tainted grand-jury indictment cannot provide a basis
for probable cause.
920 n.8 (2017).

See Manuel v. City of Joliet, 137 S.Ct. 911,

In the Sixth Circuit, a plaintiff can rebut the

probable-cause presumption when:
(1) a law-enforcement officer, in the course
of setting a prosecution in motion, either
knowingly or recklessly makes false statements
(such as in affidavits or investigative
reports) or falsifies or fabricates evidence;
(2)
the
false
statements
and evidence,
together with any concomitant misleading
omissions, are material to the ultimate
prosecution of the plaintiff; and (3) the
false statements, evidence, and omissions do
not consist solely of grand-jury testimony or
preparation
for
that
testimony
(where
preparation has a meaning broad enough to
encompass conspiring to commit perjury before
the grand jury).
King, 852 F.3d at 587–88.

21

Here, a grand jury indicted Leath on the felony assault
charges, meaning the grand jury already determined that probable
cause existed.

[DE 37-28].

the presumption under King.

Leath bears the burden of rebutting
852 F.3d at 587–88.

He has not done so.
Leath attempts to show a lack of probable cause several ways.
First, Leath points out that he was acquitted on the felony assault
charges.

[DE 41, p. 18].

True, but that has little relevance

here where the question is whether probable cause existed, not
whether the state proved its case beyond a reasonable doubt. After
all, “’[b]ecause there is no requirement that the defendant to a
malicious-prosecution charge must have evidence that will ensure
a conviction, not every failed criminal prosecution will sustain
a

subsequent

malicious-prosecution

suit.’”

Bickerstaff

v.

Lucarelli, 830 F.3d 388, 397 (6th Cir. 2016) (quoting Harris v.
United States, 422 F.3d 322, 327 (6th Cir. 2005)).
Next, Leath presents his own affidavit in which he swears he
did not assault Officer Webb.

[DE 41-6].

But the affidavit

addresses only one of the three felony counts.

Leath does not

even mention the incident at Good Samaritan—where officers claimed
two of the alleged assaults occurred.
assaults

involving

Officers

affidavit has no effect.

Duncan

and

McConnell,

Leath’s

And as to Webb, Leath merely denies he
22

Thus, as to the alleged

assaulted Webb.

Denying he assaulted Webb does not amount to

establishing that no probable cause existed.
And in any event, Leath presents nothing that satisfies the
King standard.

After all, the statute under which Leath was

charged requires only an “attempt[] to cause physical injury to”
an officer.

KRS § 508.025.

Leath’s denial does not suggest that

Webb did not have reason to believe Leath attempted to cause
physical injury.

And Leath does not provide any other evidence

that police fabricated or falsified evidence.
at 587–88.

See King, 853 F.3d

Leath cannot rebut the probable-cause presumption

merely by denying the assault.
The video evidence also contains nothing to suggest officers
made false reports or fabricated evidence.
video

supports

assaulted them.

the

inference

that

To the contrary, the

officers

believed

Leath

For example, at Good Samaritan, Officer Duncan

immediately claimed Leath bit him.

[DE 37-20, at 14:37].

repeated it throughout the video.

Officers warned Leath that if

he kicked someone, he would be charged with assault.
at 0:32].

Duncan

[DE 37-23,

Officer McConnell then reported that Leath kicked him.

[Id. at 5:16, 5:43].

And during the altercation, Leath himself

said “I’m about to act a fool up in this motherfucker” and “put my
motherfucking shit on before I kick you.”
17:34].

Leath’s threats, coupled with the officers’ instant

23

[DE 37-20 at 15:06,

reaction suggest officers did in fact believe Leath assaulted them.
Thus, the video does not rebut the King presumption because “the
video does not support the inference that the officers made
knowingly

or

recklessly

false

statements.”

Williams

v.

Schismenos, No. 17-3786, 2018 WL 2999738, at *5 (6th Cir. June 13,
2018).

And no evidence supports what Leath needs to rebut King:

a knowing or reckless false statement or fabricated evidence.

In

sum, the grand jury’s probable-cause finding resolves Leath’s
claim. Because he cannot rebut the presumption, he cannot maintain
his claim.

Thus, summary judgment is GRANTED to defendants on

Count VIII.
(ii) State Malicious Prosecution
In Count VII, Leath makes a state malicious prosecution claim.
The

elements

in

Kentucky

are:

“1)

the

defendant

initiated,

continued, or procured a criminal or civil judicial proceeding, or
an administrative disciplinary proceeding against the plaintiff;
2) the defendant acted without probable cause; 3) the defendant
acted with malice, which in the criminal context, means seeking to
achieve a purpose other than brining an offender to justice; and
in the civil context, means seeking to achieve a purpose other
than the proper adjudication of the claim upon which the underlying
proceeding was based; 4) the proceeding, except in ex parte civil
actions, terminated in favor of the person against whom it was

24

brought; and 5) the plaintiff suffered damages as a result of the
proceeding.” Martin v. O'Daniel, 507 S.W.3d 1, 11–12 (Ky. 2016).
Thus, like his federal claim, Leath must show a lack of
probable cause.

Also like his federal claim, Leath cannot do so

because in Kentucky “where there is a specific finding of probable
cause

in

the

underlying

criminal

action

prosecution action cannot be maintained.”

.

.

.

a

malicious

Broaddus v. Campbell,

911 S.W.2d 281, 283 (Ky. Ct. App. 1995); see also Davidson v.
Castner-Knott Dry Goods Co, 202 S.W.3d 597, 607 (Ky. Ct. App. 2006)
(finding a grand jury indictment establishes probable cause).
Because Leath fails to rebut the grand-jury indictment on probable
cause, this claim also fails, and summary judgment is GRANTED to
defendants on count VII.
(iii)

Abuse of Process

Count VI alleges abuse of process under Kentucky law.

A

plaintiff may pursue abuse of process claims against “one who uses
a

legal

process,

whether

criminal

or

civil,

against

another

primarily to accomplish a purpose for which that process is not
designed.”

Sprint Commc’s Co. v. Legget, 307 S.W.3d 109, 113 (Ky.

2010) (citing Restatement (Second) of Torts § 682 (1977)).

Abuse

of process requires: “(1) an ulterior purpose and (2) a willful
act in the use of the process not proper in the regular conduct of
the proceeding.”

Simpson v. Laytart, 962 S.W.2d 392, 394 (Ky.
25

1998).

A plaintiff must show that defendants engaged in some

“definite act or threat not authorized by the process, or aimed at
an objective not legitimate in the use of the process.”

Id.

“[T]he gist of the tort is not commencing an action or causing
process

to

issue

without

justification,

but

misusing

or

misapplying process justified in itself for an end other than that
which it was designed to accomplish. The purpose for which the
process

is

used,

importance.” Flynn

once
v.

it

is

issued,

Songer, 399

is

S.W.2d

the

only

491,

494

thing

of

(Ky.1966)

(quoting Prosser, Law of Torts § 115 (3d ed.1964)). In essence,
abuse of process involves “a form of extortion, and it is what is
done in the course of negotiation, rather than the issuance of any
formal use of the process itself, which constitutes the tort.”
Simpson v. Laytart, 962 S.W.2d 392, 395 (Ky. 1998).

“[T]here is

no liability where the defendant has done nothing more than carry
out the process to its authorized conclusion even if we assume
arguendo bad intentions.”

Id.

Here, Leath makes no claim—and presents no evidence—that the
charges against him were used for non-legitimate purposes.

Leath

argues that the record contains “evidence from which a jury could
conclude that the Defendant Officers were not acting for the
purpose of ensuring justice and deliberately brought false charges
against the Plaintiff must be sufficient to infer that they had an
ulterior motive or improper purpose.”
26

[DE 41, p. 23].

But even

assuming that the officers had bad intentions and brought false
charges, they are not subject to liability unless they used the
process for something outside the criminal process.

See Simpson,

962 S.W.2d at 395; Mullins v. Richards, 705 S.W.2d 951, 952 (Ky.
Ct. App. 1986).

A defendant does not commit abuse of process for

the “formal use of the process itself.”

Simpson, 962 S.W.2d at

395. There was no extortion-like negotiation in which the officers
used the charges as leverage against Leath.

Id.

Merely carrying

out criminal charges against a defendant—even when the officers
have bad intentions—is not an abuse of process.

See Madden v.

Calvert, 2017 WL 4366746, at *7 (W.D. Ky. Sept. 29, 2017); Grise
v. Allen, 2016 WL 1261077, at *9 (E.D. Ky. Mar. 30, 2016); Simpson,
962 S.W.2d at 394.
Thus,

Leath’s

abuse

of

process

claim

fails

and

summary

judgment is GRANTED to defendants on Count VI.
(iv) Unlawful Detention and Confinement
In Count II, Leath alleges he was detained without probable
cause in violation of the Fourth Amendment.

[DE 41, p. 4].

Leath

argues that the felony assault charges caused him to be detained
from the date of his initial appearance through the date of his
acquittal—about 310 days.

[Id.].

“The Fourth Amendment prohibits government officials from
detaining a person in the absence of probable cause.”
27

Manuel, 137

S.Ct. at 918.

This applies “even beyond the start of legal

process.” Id. at 920. Although a grand jury or judge can determine
probable cause, those findings do not extinguish a Fourth Amendment
claim if the process is tainted by, for example, false testimony
or fabricated evidence.

Id. at 920, n. 8.

But as already discussed, the grand jury found probable cause
in this case, and Leath has presented no evidence to question that
determination.

No record evidence suggests that the grand jury’s

finding of probable cause was tainted.
Thus, Leath’s unlawful detention claim fails and summary
judgment is GRANTED to defendants on Count II.
D. Group Three: Excessive Force, Battery, Assault
The

third

group

involves

three

claims:

(1)

Count

III:

Excessive Force; (2) Count IV State-Law Assault; (3) Count V:
State-Law Battery.

[DE 41, p. 4].

Leath asserts these against

(1) officer Webb for allegedly grabbing Leath around the throat
and jerking his head during the initial arrest, and (2) officers
Webb, McConnell, Duncan, and Flora, and nurse Thompson, for their
alleged actions at Good Samaritan while restraining Leath to take
his vital signs.
(i)

[Id.].

Excessive Force

28

Excessive force claims can fall under the Fourth Amendment or
Fourteenth Amendment.
(6th Cir. 2015).

See Coley v. Lucas Cty., 799 F.3d 530, 537

The Fourth Amendment governs “a free citizen in

the process of being arrested or seized,” and the Fourteenth
Amendment governs claims from a person between a free person and
a convicted prison; i.e., “someone in ‘gray area[s]’ around the
two.” Id. (alterations in original). Under the Fourth Amendment,
courts ask whether the force used was objectively reasonable under
the circumstances.
386, 396 (1989).

See id.; see also Graham v. Connor, 490 U.S.

The “Fourth Amendment protections extend through

police booking until the completion of a probable cause hearing.”
Coley, 799 F.3d at 537 (citing Aldini v. Johnson, 609 F.3d 858,
866–67 (6th Cir. 2010)).

Here, the excessive force claims come

before any probable cause hearing.
protections apply to Leath.

Thus, the Fourth Amendment’s

See Aldini, 609 F.3d at 866–67.

“In order to comply with the Fourth Amendment, an officer’s
use of force must be objectively reasonable under the totality of
the circumstances.”

Smith v. City of Troy, 874 F.3d 938, 943 (6th

Cir. 2017). “In evaluating whether a police officer used excessive
force on a particular occasion, the court must view the situation
from the perspective of a reasonable officer on the scene at the
time and without the benefit of 20/20 hindsight.”

Id. at 943–44.

The “calculus of reasonableness must embody allowance for the fact
that

police

officers

are

often
29

forced

to

make

split-second

judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about

the

amount

particular situation.”

of

force

that

is

necessary

in

a

Graham, 490 U.S. at 396–97.

Courts balance the “nature and quality of the intrusion on
[plaintiff’s]

Fourth

Amendment

interests

against

the

countervailing governmental interests at stake.”

Ciminillo v.

Steicher, 434 F.3d 461, 466–67 (6th Cir. 2006).

Three factors

direct the analysis: (1) the severity of the crime at issue; (2)
whether the suspect poses an immediate threat to the safety of the
officers or others; and (3) whether he is actively resisting arrest
or attempting to evade arrest by flight.

Burgess v. Fischer, 735

F.3d 462, 472–73 (6th Cir. 2013). These factors “do not constitute
an exhaustive list; the ultimate question is ‘whether the totality
of the circumstances justifies a particular sort of seizure.’”
Ciminillo, 434 F.3d at 467 (quoting St. John v. Hickey, 411 F.3d
762, 771 (6th Cir. 2005)).

“[N]ot every push or shove, even if it

may later seem unnecessary in the peace of judge’s chambers,’
violates the Fourth Amendment.”

Graham, 490 U.S. at 396 (1989)

(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
a. Webb’s Throat Grab
Leath first claims Officer Webb used excessive force when he
grabbed Leath’s throat and mouth area shortly after arresting Leath
outside of Chandler.

[DE 1-1, pp. 9–10].
30

Body camera footage

from Officer Duncan shows Leath cursing and agitated, but he was
not resisting officers.

[DE 37-17].

While Officer Faulkner

searched Leath, Leath began to yell profanities at her and other
officers.

[Id. at 2:06].

Webb then grabbed Leath around the neck

and mouth area and twice said “look at her again like that.”

[Id.

at 2:15].
Webb argues that qualified immunity bars Leath’s claim.

He

alleges that he placed his hand over Leath’s mouth and moved
Leath’s face “in an effort to prevent Leath from biting or spitting
on Officer Faulkner.”

[DE 37, p. 21].

Leath argues that Webb had

no reason to believe Leath would bite or spit on Faulkner and that
Webb’s comment “look at her again like that” suggests that Webb
grabbed Leath because Webb did not like how Leath eyeballed
Faulkner.
Webb does not enjoy qualified immunity on this claim.

It is

clearly established that officers may not use gratuitous force
against subdued suspects who pose no threats to officers.

See

Ortiz ex rel. Ortiz v. Kazimer, 811 F.3d 848, 852 (6th Cir. 2016);
Baker v. City of Hamilton, 471 F.3d 601, 607 (6th Cir. 2006) (“we
have held repeatedly that the use of force after a suspect has
been incapacitated or neutralized is excessive as a matter of
law.”).

In addition, “a plaintiff may ‘allege use of excessive

force even where the physical contact between the parties did not

31

leave

excessive

marks

or

cause

extensive

physical

damages.’”

Miller v. Sanilac Cty., 606 F.3d 240, 252 (6th Cir. 2010) (quoting
Morrison v. Bd. of Tr. of Green Twp., 583 F.3d 394, 407 (6th Cir.
2009)).
In Pigram ex rel. Pigram v. Chaudoin, 199 F. App’x 509, 513
(6th Cir. 2006), a police officer slapped an arrestee in the face
after the arrestee was in handcuffs.

Id.

The Court found that “a

slap to the face of a handcuffed suspect—even a verbally unruly
suspect—is not a reasonable means of achieving anything more than
perhaps further antagonizing or humiliating suspect.”

Id.

And in

Morrison, the Sixth Circuit denied qualified immunity to officers
who pushed the plaintiff’s face while she was already handcuffed.
583 F.3d at 407.
unreasonable

“Such antagonizing and humiliating conduct is
of

the

existence of injury.”

Id. (internal quotations omitted).

In

short,

established

“[i]t

under

is

the

well

Fourth

Amendment,

in

regardless

this

circuit

that

the

gratuitous use of force on a suspect who has already been subdued
and placed in handcuffs is unconstitutional.”

Bultema v. Benzie

Cty., 146 F. App’x 28, 35 (6th Cir. 2005).
As in Pigram, so here.

Leath was neutralized, and Defendants

have presented no evidence that Leath presented a danger to
Faulkner or Webb.

Because officers have “fair warning” that using

force

subdued

against

a

suspect

32

violates

clearly

established

constitutional law, qualified immunity cannot bar Leath’s claim
against Webb.

See Baynes, 799 F.3d at 612–13; Bultema, 146 F.

App’x at 35.

Whether Webb grabbed Leath to prevent him from

spitting on or biting Faulkner will be up to a jury.

Thus,

Defendants’ Motion for Summary Judgment on Count III against
Officer Webb for grabbing Leath’s neck, mouth, and throat area is
DENIED.
b. Restraint at Good Samaritan
Leath also makes an excessive force claim against multiple
defendants for the incident at Good Samaritan.

He argues that the

officers used excessive force when they restrained him so that a
nurse could take his blood pressure, pulse, and temperature. [DE
41, p. 30].
Although this claim and Count I (unreasonable search and
seizure) are both based on the same incident, the two claims are
distinct.

Count I challenges whether Defendants violated Leath’s

Fourth Amendment rights by restraining him and taking his vital
signs. Here, the force officers used is the relevant factor,
regardless

of

whether

the

unlawful search or seizure.
137

S.Ct.

1539,

1547

officers’

actions

(2017).

“The

framework

for

analyzing

Id. (emphasis in

“If there is no excessive force claim under Graham,
33

an

See Cty. of Los Angeles v. Mendez,

excessive force claims is set out in Graham.”
original).

constituted

there is no excessive force claim at all.
plaintiff

has

other

analyzed separately.”

Fourth
Id.

Amendment

To the extent that a

claims,

they

should

be

“We do not scrutinize whether it was

reasonable for the officer to create the circumstances” when
analyzing an excessive force claim.

Thomas v. City of Columbus,

854 F.3d 361, 365 (6th Cir. 2017).

“We consider the officer’s

reasonableness under the circumstances he faced at the time he
decided to use the force.” Id. at 365.
The distinction matters here because, at numerous points,
Leath rests his excessive force claim on the fact that he had a
right to refuse treatment.

[DE 41, pp. 30–33].

But that argument

cannot provide the basis for Count III because excessive force is
“not a claim that an officer used reasonable force after committing
a distinct Fourth Amendment violation.” Mendez, 137 S.Ct. at 1547.
The question is only whether an officer used force justified under
the circumstances—not whether the force flowed from a previous
constitutional violation.

See id.

Thus, in analyzing Leath’s excessive force claim, the Court
will consider (1) the severity of the crime at issue; (2) whether
the suspect posed an immediate threat to the safety of the officers
or others; and (3) whether he was actively resisting arrest or
attempting to evade arrest by flight.
73; Graham, 490 U.S. at 396.

Defendants argue that they are

34

Burgess, 735 F.3d at 472–

entitled to qualified immunity because (1) the force did not amount
to a constitutional violation under Graham, and (2) any possible
violation was not clearly established.

The Court first considers

whether the force violated Leath’s constitutional rights.
At the time Leath and officers arrived at Good Samaritan,
Leath was handcuffed.

And once an arrestee is subdued, officers

are limited in the amount of force they may use.

See Kulpa v.

Cantea, 708 F. App’x 846, 851–52 (6th Cir. 2017); Champion v.
Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir. 2004).
a

suspect

is

unconstitutional.

neutralized,

any

gratuitous

Bultema, 146 F. App’x at 35.

force

When
is

This applies to

any non-resisting individual, see Brown v. Lewis, 779 F.3d 401,
419 (6th Cir. 2015), and “even if some level of passive resistance
is presented.”

Meirthew v. Amore, 417 F. App’x 494, 499 (6th Cir.

2011).
But

handcuffing

alone

does

not

prevent

resisting or posing a threat to officers.

a

suspect

from

Active resistance

includes “some outward manifestation—either verbal or physical—on
the part of the suspect had suggested volitional and conscious
defiance.”

Eldridge v. City of Warren, 533 F. App’x 529, 533–34

(6th Cir. 2013) (emphasis added); see also Cockrell v. City of
Cincinnati,

468

F.

App’x

491,

495

(6th

Cir.

2012)

(active

resistance can include “physically struggling with, threatening,

35

or disobeying officers.”). “At some point, in response to defiance
and belligerence, officers are entitled to ‘preserve internal
order and discipline.’”

Hanson v. Madison Cty. Det. Ctr., No. 17-

5209, 2018 WL 2324252, at *9 (6th Cir. May 22, 2018) (quoting Bel
v. Wolfishl, 441 U.S 520, 547 (1979)).

In short, the amount of

force an officer uses cannot be detached from the situation;
circumstances matter.

And handcuffing is only one factor in

determining whether a suspect is resisting.
Here, then, as with all excessive force claims, the Court
considers context.

See Thomas, 854 F.3d at 365.

Before going to

Good Samaritan, Leath indicated to officers that he had killed
people before.

[DE 37-19 at 16:33].

Body camera footage shows

Leath telling officers to Google him to see his rap sheet.

He

taunted officers by saying “you ain’t got no bodies under your
belt.”

[Id.].

Leath also challenged officers several times and

told officers to “take these cuffs off and see if you tough.”
at 5:40].

[Id.

At Good Samaritan, Leath refused to comply and actively

resisted the blood pressure, pulse, and heart rate monitoring.
[DE 37-20].

At one point he told police “I’ll kick you in your

motherfucking face.”

[Id. at 13:10].

Police then warned Leath

“kick one of us, and you will be charged with assault.”
13:40].

[Id. at

As the struggle continued, police told Leath to stop

fighting and they put him on the ground. During the video, Officer
Duncan yelled that Leath bit him, and Leath exclaimed, “I’m about
36

ready to act a fool up in this motherfucker.”

[Id. at 15:06].

Leath then prompted officers to break his neck: “I want you to
hurt me . . . so I get paid.”

[Id. at 15:19].

And toward the end

of the incident, Leath told officers to “put my shit on before I
kick your motherfucking. . .” [DE 37-23 at 4:15].
The video is clear: a non-complaint, resisting Leath made
numerous threats to officers.

Indeed, the only reason police

touched Leath at all was because he resisted.

On top of that,

Leath had already suggested he had “bodies under [his] belt,” and
he challenged officers to take off his handcuffs.

Taken together,

Leath exhibited multiple “outward manifestation[s]” both “verbal
and physical” that suggested “volitional and conscious defiance.”
Eldridge, 533 F. App’x at 534.
reality.

Handcuffs did not extinguish this

After all, “[f]eet, too, can be weapons.”

Wood, 41 F. App’x 894, 898 (7th Cir. 2002).

Youngblood v.

And here police

believed Leath was trying to use his feet—and his mouth—as weapons.
Leath in fact threatened to kick officers.

Given Leath’s active

resistance and the threat he posed, officers had reason to apply
force.

That force did not include strikes, kicks, Tasers, batons,

guns, or chokeholds.

Instead, Leath rests his argument on the

fact that he was in handcuffs and officers were not in danger.
But thrashing, non-compliant suspects already in custody can pose
threats to officers and can be resisting arrest.
occurred here.
37

That is what

Indeed, the video tells the story and removes any genuine
dispute as to any material fact.
853,

859

(6th

Cir.

2012).

Green v. Throckmorton, 681 F.3d
Considering

“the

circumstances

[officers] faced at the time [they] decided to use the force,” the
officers’ actions were reasonable. Thomas, 854 F.3d at 365. Thus,
the Court finds no constitutional violation.
And in the absence of finding a constitutional violation, the
Court

cannot

conclude

established rights.

that

officers

violated

any

clearly

Leath “has not pointed [the Court] to any

caselaw that demonstrates a prior articulation of a prohibition
against the type of force exerted against him.” Estate of Hill v.
Miracle, 853 F.3d 306, 316 (6th Cir. 2017).
Defendants’ Motion for Summary Judgment on Count III is
GRANTED for the alleged excessive forced used at Good Samaritan
Hospital.
(ii) Assault and Battery
Leath claims Webb’s throat grab and the incident at Good
Samaritan also amount to assault (Count IV) and battery (Count V)
under state law.

As an initial matter, the Court notes that in

Kentucky “assault and battery are two distinct and independent
legal claims.”

Ali v. City of Louisville, No. 3:05CV-427-R, 2006

WL 2663018, at *4 n.7 (W.D. Ky. Sept. 15, 2006).

“Assault is a

tort which merely requires the threat of unwanted touching of the
38

victim, while battery requires an actual unwanted touching.” Banks
v. Fritisch, 39 S.W.3d 474, 480 (Ky. Ct. App. 2001). Battery under
Kentucky law is any “unlawful touching of the person of another,
either by the aggressor himself, or by any substance set in motion
by him.”
use

of

Vitale v. Henchey, 24 S.W.3d 651, 657 (Ky. 2000).
excessive

force

by

intentional tort of battery.”

a

police

officer

constitutes

“The
the

Ali, 2006 WL 2663018, at *8.

Here, defendants argue that Kentucky’s qualified immunity
doctrine shields officers from state-law liability.
27–28].

[DE 37, pp.

Leath argues only that Defendants’ arguments against the

state-law claims “fail for the same reason as their federal law
arguments.”

[DE 41, p. 33].

But “the analysis of excessive force

claims under § 1983 is different from the analysis under state
law” in Kentucky.
Cir. 2016).

Coitrone v. Murray, 642 F. App’x 517, 524 (6th

So the Court must consider whether state qualified

immunity shields officers.
Qualified
liability

for

immunity
“good

faith

uncertain environment.”
2001).

in

Kentucky
judgment

protects
calls

made

officers
in

a

from

legally

Yanero v. Davis, 65 S.W.3d 510, 522 (Ky.

Public employees enjoy qualified official immunity for (1)

discretionary acts (2) performed in good faith and (3) within the
employee's scope of authority. Id.

Actions taken within the scope

of one’s authority as a police officer constitute discretionary

39

acts.

See Woosley v. City of Paris, 591 F.Supp.2d 913, 922 (E.D.

Ky. 2008).

Bad faith stems from objective unreasonableness or

willful or malicious intent to harm the plaintiff.
S.W.3d at 523.

Yanero, 65

Objective unreasonableness occurs when the officer

violates the plaintiff’s clearly established right that a person
in the officer’s position would have known.

Id.

“Once the officer

or employee has shown prima facie that the act was performed within
the scope of his/her discretionary 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.

Here, Leath’s state-law claims against Webb for the throat
grab

survive,

but

his

claims

related

to

the

Good

Samaritan

commotion fail.
The Webb claims survive because an officer may use only the
amount of force that the officer reasonably believes is necessary,
but no more.

See City of Lexington v. Gray, 499 S.W.2d 72, 74

(Ky. Ct. App. 1973).

The body camera video and Webb’s comments

create a genuine dispute as to whether Webb used more force than
was reasonably necessary during the arrest.

See Gordon v. Jones,

No. 3:08CV-P460-S, 2011 WL 847926, at *6 (W.D. Ky. Mar. 8, 2011).
But officials are entitled to state qualified immunity for
restraining Leath at Good Samaritan because Leath cannot show bad
faith—a burden Leath must bear.
40

See Yanero, 65 S.W.3d at 523.

This requires malicious intent or a violation of plaintiff’s
clearly established rights.
claim,

Leath

demonstrates

Id.

As in the context of his federal

neither

here

because

restraining

a

detainee to take blood pressure, pulse, and temperature does not
violate his clearly established rights.

Thus state qualified

immunity bars these claims.
Defendant’s Motion for Summary Judgment is DENIED as to Count
IV and Count V against Webb for the alleged throat grab and GRANTED
against Defendants for the incident at Good Samaritan.
E. Group Four: Violation of Free Speech
Count X alleges a violation of Leath’s Right to Free Speech
against officers Webb, Duncan, and McConnell.

[DE 41, p. 4].

Leath claims the officers retaliated against him for exercising
his free speech rights by (1) “taking him to Good Samaritan
hospital where they held him down and forced him to receive medical
care to which he did not consent, and (2) bringing false felony
charges against him.”

[Id.].

This claim is premised on the idea that officers retaliated
against Leath for refusing to consent to the taking of his vital
signs.

Leath argues “he was retaliated against for refusing to

consent to an examination at the jail and again at Good Samaritan.”
[DE 41, p 34].

Leath claims that officers invented the felony

assault charges because of this refusal.
41

A

retaliation

claim

involves

three

elements:

“(1)

the

plaintiff engaged in protected conduct; (2) an adverse action was
taken against the plaintiff that would deter a person of ordinary
firmness from continuing to engage in that conduct; and (3) there
is a causal connection between elements one and two—that is, the
adverse action was motivated at least in part by the plaintiff's
protected conduct.”
Cir. 1999) (en banc).

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th
And “[a]bsent protected conduct, plaintiffs

cannot establish a constitutional violation.”

Id. at 395.

The

plaintiff has the burden of “establishing that his protected
conduct was a motivating factor behind any harm.”

Id. at 399.

In his response to Defendants’ Motion for Summary Judgment,
Leath clarifies that his protected conduct was “refusing to consent
to an examination at the jail and again at Good Samaritan.”
41, p. 34].

[DE

But as the Court has already explained, a detainee

like Leath has no clearly established right to refuse the taking
of his vital signs.

And since his refusal was not protected

conduct, officers could not have retaliated against him.
In addition, there is no evidence that officers invented the
felony

assault

charges

to

retaliate

against

Leath.

To

the

contrary, as discussed above, officers immediately claimed that
Leath bit and kicked them at Good Samaritan.

And Leath himself

threatened to kick officers and claimed he was “ready to act a

42

fool.”

A grand jury also found probable cause on these charges,

suggesting the officers had a legitimate reason for filing the
charges. True, probable cause does not always defeat a retaliation
claim, see Lozman v. City of Riviera Beach, 138 S.Ct. 1945 (2018),
but

“[g]uilt

evidence.”

of

misconduct

may

be

relevant

summary

judgment

Maben v. Thelen, 887 F.3d 252, 262 (6th Cir. 2018).

And here evidence of misconduct—including a grand-jury indictment—
supports a legitimate basis for the felony charges.
Defendants’ Motion for Summary Judgment as to Count X is
GRANTED.
IV.

Conclusion

Two-and-a-half years ago, Leath promised he’d sue UKPD.

He

claimed from the beginning that officers and nurses violated his
federal and state rights.
overcome

qualified

Yet for the most part, Leath fails to

immunity

elements of his claims.

or

fails

to

establish

necessary

On those counts, there is no genuine

dispute as to any material fact and no need for trial.
But that’s not true on all claims.

Leath can still pursue

his excessive force (Count III), assault (Count IV), and battery
(Count V) claims against Officer Webb. Accordingly, IT IS ORDERED:

43

(1)

that Defendants’ Motion for Summary Judgment [DE 37] is
DENIED as to Counts III, IV, and V against Officer Webb
for the alleged throat grab;

(2)

that on all other counts, Defendants’ Motion for Summary
Judgment [DE 37] is GRANTED.

This the 29th day of June, 2018.

44