Casey v. Sanders et al

Filing 51

OPINION AND ORDER: Defendant's motion for summary judgment (DE 40 ) is DENIED. Signed by Judge Karen K. Caldwell on 3/13/2020. (RCB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
BETTY CASEY, Administrator of the
Estate of John Alexander Casey,
Deceased,

CIVIL NO. 7:17-145-KKC-EBA

Plaintiff,
V.

OPINION AND ORDER

JONATHAN ROUSE,
Defendant.

*** *** ***
This matter is before the Court on Defendant’s motion for summary judgment.
Plaintiff Betty Casey, as administrator of the Estate of John Alexander Casey, originally
brought suit against several defendants, including Jonathan Rouse. (DE 1.) Following the
Court’s ruling on Defendants’ motions to dismiss, the case proceeded to discovery on some of
Plaintiff’s claims against Defendant Rouse. (DE 11.) Defendant filed his motion for summary
judgment regarding these remaining claims. (DE 40.) For the reasons stated below, the Court
denies Defendant’s motion.
Background
I. Factual Background
On July 31, 2016, Kentucky State Police Troopers Jonathan Rouse and Curt Rowe
responded to a remote part of Pike County, Kentucky to investigate a report that two
individuals, John Casey and Lacy Wolford, had broken into a residence and assaulted a third
individual, Adam Layne. (DE 40-1 at 2.) The officers believed Mr. Casey to have had a

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“fraught relationship” with law enforcement, and that he might be dangerous. (DE 40-1 at
2.) After initially speaking with Mr. Casey and Mr. Wolford, the troopers learned from police
dispatch that there was an active warrant out for the arrest of Mr. Casey. (DE 40-1 at 3.) At
some point soon after, Mr. Wolford fled from the officers, who initially gave chase. (DE 40-1
at 3.) As the officers pursued Mr. Wolford, Mr. Casey fled as well. (DE 40-1 at 3.)
Mr. Casey eventually returned to his trailer, but escaped as Defendant pursued him.
(DE 40-1 at 3.) Defendant shortly thereafter returned to his car, which was parked near the
bottom of the hill below Mr. Casey’s trailer – from that location, he could see Mr. Casey
standing at the top of the hill. (DE 40-1 at 3.) “Mr. Casey began threatening to fight or kill
Trooper Rouse and refused to obey commands.” (DE 40-1 at 3.) Defendant claims that Mr.
Casey picked up and threw a rock at him, which struck Defendant, and that he “had to duck
to avoid being struck by a second, softball sized rock.” (DE 40-1 at 4.) Defendant fired a single
gunshot at Mr. Casey, killing him. (DE 40-1 at 4.) Defendant claims that he did not fire his
weapon “until he saw Mr. Casey reach in his pocket and saw a silver flash.” (DE 40-1 at 4.)
Defendant was standing approximately 25 to 30 yards away from Mr. Casey at the moment
he discharged his weapon. (DE 41-2 at 38.)
II. Procedural Background
On September 7, 2017, Plaintiff, Mr. Casey’s mother, brought suit in this Court on
behalf of Mr. Casey’s estate. (DE 1.) The complaint named as defendants Troopers Rouse and
Rowe; Richard W. Sanders, Commissioner of the Kentucky State Police; William Alexander
Payne, Deputy Commissioner of the Kentucky State Police; and Darren Stapleton,
Commander of Post 9 of the Kentucky State Police. (DE 1.) On October 4, 2017, Troopers
Rouse and Rowe filed a joint motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6) (DE 5);
the other three defendants filed a separate joint motion to dismiss on the same day (DE 6).
The Court ruled on both motions on June 21, 2018. Casey v. Sanders, No. 7:17-CV-145-KKC,
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2018 WL 3078758 (E.D. Ky. June 21, 2018). Pursuant to that order, Plaintiff’s claims against
Defendants Rowe, Sanders, Payne, and Stapleton were dismissed, as were her claims against
Defendant Rouse for having violated Mr. Casey’s Fourteenth Amendment rights, the
Americans with Disabilities Act, and for having committed negligence and gross negligence
against Mr. Casey. Id. Following the motions to dismiss, the Court granted Plaintiff’s motion
to amend her complaint, noting that, even though the motion was unnecessary and untimely,
it did not prejudice Defendant Rouse. (DE 33.) As a result of these orders, the remaining
claims in this case are for violations of Mr. Casey’s Fourth Amendment rights, battery, and
wrongful death, all against Defendant Rouse. On August 9, 2019, Defendant filed the motion
for summary judgment. (DE 40.)
Analysis
I. Standard
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute 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 bears the initial burden and must identify “those
portions of the [record] which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citation and internal
quotation marks omitted). All evidence, facts, and inferences must be viewed in favor of the
non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). “In order to defeat
a summary judgment motion… [t]he nonmoving party must provide more than a scintilla of
evidence,” or, in other words, “sufficient evidence to permit a reasonable jury to find in that
party’s favor.” Van Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265, 268 (6th Cir. 2007)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Summary judgment must
be entered if, “after adequate opportunity for discovery,” a party “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which
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that party will bear the burden of proof at trial.” Tolton v. American Biodyne, Inc., 48 F.3d
937, 941 (6th Cir. 1995) (citation to Celotex, 477 U.S. at 322 and internal quotation marks
omitted).
II. 42 U.S.C. § 1983 Claims
Plaintiff’s remaining claim under federal law is for a violation of Mr. Casey’s Fourth
Amendment rights, brought pursuant to 42 U.S.C. § 1983. (DE 34 at 4.) That statute provides
“a vehicle for a plaintiff to obtain damages for violations of the Constitution or a federal
statute.” Boler v. Earley, 865 F.3d 391, 401 (6th Cir. 2017). Under the statute:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress…
42 U.S.C. § 1983. However, the law provides government officials with qualified immunity
from § 1983 claims. “[G]overnment officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “If the law at the time [of the conduct]
did not clearly establish that the [official’s] conduct would violate the Constitution, the
[official] should not be subject to liability or, indeed, even the burdens of litigation.” Brosseau
v. Haugen, 543 U.S. 194, 198 (2004). The Supreme Court has further clarified that “conduct
violates clearly established law” if, at the time of the conduct, the “contours” of the right were
“sufficiently clear” such that “every reasonable official would have understood that what he
is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citations, internal
quotation marks, and brackets omitted). Qualified immunity will apply “if reasonable officials

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could disagree as to whether the conduct violated the plaintiff’s rights.” Thomas v. Cohen,
304 F.3d 563, 580 (6th Cir. 2002). The law does “not require a case directly on point, but
existing precedent must have placed the statutory or constitutional question beyond debate.”
Ashcroft, 563 U.S. at 741. In other words, the conduct at issue need not have “previously been
held unlawful,” but “in the light of pre-existing law the unlawfulness must be apparent.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
“Defendants bear the initial burden of coming forward with facts to suggest that they
were acting within the scope of their discretionary authority during the incident in question.”
Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir. 1992). However, a plaintiff
has the burden of proving that a defendant is not entitled to qualified immunity and must
show that the right at issue is clearly established. Everson v. Leis, 556 F.3d 484, 494 (6th Cir.
2009). “[T]he plaintiff must effectively pass two hurdles when facing a defendant on summary
judgment who claims qualified immunity. First, the allegations must state a claim of
violation of clearly established law. Second, the plaintiff must present evidence sufficient to
create a genuine issue as to whether the defendant in fact committed those acts.” Russo v.
City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir. 1992) (citations and internal quotation
marks omitted).
Plaintiff alleges that Defendant’s conduct constituted “unreasonable, excessive force”
and a violation of the Fourth Amendment. (DE 34 at 4.) “Because it is axiomatic that
individuals have a clearly established right not to be shot absent probable cause to believe
that they pose a threat of serious physical harm, [the Court] must determine whether
[Defendant’s] use of deadly force was unreasonable under the Fourth Amendment.” Woodcock
v. City of Bowling Green, 679 F. App’x 419, 423 (6th Cir. 2017) (citation to Mullins v. Cyranek,
805 F.3d 760, 765 (6th Cir. 2015) and internal quotation marks omitted). “The Fourth

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Amendment… only permits an officer to use reasonable force to protect himself from a
reasonable threat.” Aldini v. Johnson, 609 F.3d 858, 867 (6th Cir. 2010). “Claims of excessive
force are analyzed under an objective-reasonableness standard, which depends on the facts
and circumstance of each case viewed from the perspective of a reasonable officer on the
scene.” Miller v. Sanilac Cty., 606 F.3d 240, 251 (6th Cir. 2010). “Fourth Amendment
excessive-force inquiries require a careful balancing of the force used against the
countervailing governmental interests at stake.” Lawler v. City of Taylor, 268 F. App’x 384,
387 (6th Cir. 2008) (citation and internal quotation marks omitted). The Court must consider
the totality of the circumstances, with special attention given to “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.” Graham
v. Connor, 490 U.S. 386, 396 (1989) (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)). “These
factors help inform our ultimate inquiry, which must always be whether the totality of the
circumstances justified the use of force.” Mullins, 805 F.3d at 765 (citation and internal
quotation marks omitted).
On balance, the Court finds that there are genuine disputes as to material facts and
that Defendant is not entitled to judgment as a matter of law on the question of whether he
violated Mr. Casey’s clearly established Fourth Amendment rights. The issue, as the Court
suggested in its June 21, 2018 Opinion and Order, largely turns on Mr. Casey’s “behavior
immediately prior to the moment he was shot,” and whether Mr. Casey “posed an immediate
threat to Rouse’s safety.” Casey, 2018 WL 3078758, at *4 (citation to Mullins, 805 F.3d at 766
and internal quotation marks omitted). Although it appears undisputed that Mr. Casey fled
from the officers, threw a rock at Defendant, and had been generally unwilling to comply
with the officers’ commands (DE 40-1 at 9-10, 13), the extent to which Defendant argues that
this alone means that his use of lethal force against Mr. Casey did not violate the decedent’s
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clearly established Fourth Amendment rights (DE 43 at 4), the Court disagrees. The parties
dispute whether Defendant was struck by the rock1 or whether Mr. Casey either attempted
to, or did, throw a second rock at Defendant.2 The record is also unclear as to whether
Defendant could have taken cover.3 Another critical fact in dispute is whether, in the
moments before he was shot, Mr. Casey reached for an object in his pocket that could have
reasonably been perceived to be a gun or other dangerous instrument.4 Because of the factual
disputes, the Court finds that the question of whether Defendant violated Mr. Casey’s clearlyestablished Fourth Amendment rights – which hinges on whether Defendant’s use of force
was objectively reasonable – is inappropriate for summary judgment.
III. State Law Claims
Plaintiff’s remaining claims under Kentucky state law are for battery and wrongful
death. (DE 34 at 4.) However, Kentucky state law provides government officials with
qualified immunity when sued in their individual capacities – “protection from damages
liability for good faith judgment calls made in a legally uncertain environment.” Yanero v.

Defendant testified during his deposition that an “object,” which he “believe[d] to be a rock, struck
[him] on the left side of [his] head.” (DE 40-2 at 12.) Plaintiff, however, claims that “[t]here is no
evidence Defendant was ever struck by a rock” and that “photographs of Defendant taken at the scene
soon after the incident show no evidence of any injury.” (DE 42 at 3.)
2 Defendant testified during his deposition that saw Mr. Casey holding a second, “softball sized rock,”
which he threw at him, but that Defendant “was able to duck under that rock.” (DE 40-2 at 12-13.) An
eyewitness to the incident, however, testified that Mr. Casey only every had one rock. (DE 41-1 at 5354.)
3 Defendant testified during his deposition that “[t]here was no cover whatsoever… no cover
concealment whatsoever that I could have used.” (DE 40-2 at 16.) Plaintiff counters that “there were
abandoned vehicles and heavy vegetation in the area where Defendant was standing that could have
afforded him protective cover from a rock thrown by Mr. Casey.” (DE 42 at 3.) Further, Defendant
testified during his deposition that at the time of the incident, “it was very green… vegetation-wise…
there was a lot of weeds and grass and bushes. Everything had bloomed.” (DE 41-2 at 54.)
4 Defendant testified during his deposition that Mr. Casey “turned his right side, kind of bladed away
in a shooter stance. He reached in his pocket and what I believed to be a handgun was coming out. I
saw something silver coming out of his pocket… At that time, I believe[d] that he was drawing a –
drawing a handgun on me.” (DE 40-2 at 13.) An eyewitness to the incident, however, testified that Mr.
Casey did not have anything in his pockets – that, in fact, “his shorts didn’t even have pockets” – and
that his hand was not near his pocket area at the moment he was shot. (DE 41-1 at 51-52, 62.) Further,
no weapon was ever found on or near Mr. Casey. (DE 34 at 3.)
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Davis, 65 S.W.3d 510, 522 (Ky. 2001). “Qualified official immunity applies to the negligent
performance by a public officer or employee of (1) discretionary acts or functions, i.e., those
involving the exercise of discretion and judgment, or personal deliberation, decision, and
judgment; (2) in good faith; and (3) within the scope of the employee’s authority.” Id. (citations
omitted). Upon review of the parties’ briefs, only the second element appears to be in
question.5 As the Yanero court explained:
[I]n the context of qualified official immunity, “bad faith”6 can be
predicated on a violation of a constitutional, statutory, or other
clearly established right which a person in the public employee’s
position presumptively would have known was afforded to a
person
in
the
plaintiff’s
position,
i.e.,
objective
unreasonableness; or if the officer or employee willfully or
maliciously intended to harm the plaintiff or acted with a
corrupt motive. 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. at 523 (citations omitted).
Defendant argues that “Plaintiff is unable to establish that the shooting was
performed in bad faith.” (DE 40-1 at 16.) However, and as Plaintiff highlights (DE 42 at 8),
the analysis here should track the prior discussion of whether Defendant violated Mr. Casey’s
clearly established Fourth Amendment rights. See Woodcock, 679 F. App’x at 425. Just as the
Court rejects, at this stage, Defendant’s claim for qualified immunity under federal law, it
makes the same finding as to qualified immunity under Kentucky state law.

In its June 21, 2018 Opinion and Order, the Court found that “Trooper Rouse was engaged in a
discretionary act within the scope of his authority [when he] used force against John Casey.” Casey,
2018 WL 3078758, at *8. Nothing in the record as it has been developed since then compels a different
conclusion now.
6 The Court presumes that “bad faith” in this context is equivalent to a “lack of good faith.” See Turner
v. Hill, No. 5:12-CV-00195-TBR, 2014 WL 549462, at *9 (W.D. Ky. Feb. 11, 2014) (relying on that
presumption).
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Conclusion
Accordingly, the Court hereby ORDERS that Defendant’s motion for summary
judgment (DE 40) is DENIED.
Dated March 13, 2020

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