DeSpain v. City of Louisville et al
Filing
180
MEMORANDUM OPINION AND ORDER signed by Judge Claria Horn Boom on 8/19/21; granting 141 Motion for Summary Judgment; denying 164 Motion for Summary Judgment; denying 172 Motion to Appoint Expert: IT IS HEREBY ORDERED that Defendants' Mot ion for Summary Judgment [R. 141 ] is GRANTED, and Plaintiff's Motion for Summary Judgment [R. 164 ] is DENIED. A Judgment shall be entered consistent with this Memorandum Opinion and Order. It is also ORDERED that Plaintiffs Motion to Request an Expert Handwriting Analysis Witness to Assist with Scientific, Technical, or Other Specialized Knowledge in Authenticating Legal Documents, [R. 172 ], is DENIED as moot. cc: Counsel, Plaintiff(pro se) (DJT)
Case 3:14-cv-00602-CHB-RSE Document 180 Filed 08/19/21 Page 1 of 21 PageID #: 1146
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
MICHAEL RAY DESPAIN
Plaintiff,
v.
LOUISVILLE METROPOLITAN
GOVERNMENT et al.,
Defendants.
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Civil Action No. 3:14-CV-P602-CHB
MEMORANDUM OPINION AND
ORDER
*** *** *** ***
This matter is before the Court on cross-motions for summary judgment. Defendants,
Louisville/Jefferson County Metro Government (“Metro Government”), Chad Stewart, M.
Nobles, A. Browning, D. Hyche, D. Henzley, T. McKnight, J. Mattingly, T. James, J. Casse, J.
Judah, Ryan Bates (collectively “Individual Defendants”), and the SWAT Defendants 1 move for
summary judgment regarding all remaining claims of Plaintiff. [R. 141] Plaintiff, Michael Ray
DeSpain, filed a response, [R. 159], and Defendants filed a reply, [R. 162]. Likewise, Plaintiff
filed a motion for summary judgment. [R. 164] Defendants filed a response, [R. 165], and
Plaintiff filed a reply, [R. 169]. Also before the Court is Plaintiff’s Motion to Request an Expert
“Handwriting Analysis” Witness to Assist with Scientific, Technical, or Other Specialized
Knowledge in Authenticating Legal Documents (“Motion to Request an Expert”). [R. 172]
For the following reasons, Defendants’ Motion for Summary Judgment, [R. 141], is
GRANTED; Plaintiff’s Motion for Summary Judgment, [R. 164], is DENIED; and Plaintiff’s
Motion to Request an Expert, [R. 172], is DENIED as moot.
1
The Court dismissed the SWAT Defendants by a separate Memorandum Opinion and Order entered today.
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I. BACKGROUND
This is a pro se prisoner civil-rights action. Plaintiff Michael Ray DeSpain brought this
42 U.S.C. § 1983 action against the Defendants alleging violations of his constitutional rights
arising out of the execution of a search warrant at Plaintiff’s home on September 18, 2013.
[R. 1] Upon review of the Complaint pursuant to 28 U.S.C. § 1915A, the Court by
Memorandum Opinion and Order filed January 28, 2015, allowed the following claims to
proceed: failure-to-train claim against the Louisville Metro Government; individual-capacity
claims under the Fourth and Fourteenth Amendments to the United States Constitution and
Section 10 of the Kentucky Constitution against the Defendants for illegal search and seizure,
excessive property damage, excessive force, intentional destruction of physical evidence, and
refusal of EMS medical treatment; and an individual-capacity claim against Defendant Stewart
for falsifying his investigation report. [R. 8]
Defendants now move for summary judgment regarding all remaining claims of Plaintiff,
[R. 141], and Plaintiff has also moved for summary judgment, [R. 164]. As noted above, the
parties have filed responses and replies to both motions, and the matter is ripe for review. [R.
159, R. 162, R. 165, R. 169]
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, a court may grant summary judgment if it
finds 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). “A genuine dispute of material fact exists
‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’”
Winkler v. Madison County, 893 F.3d 877, 890 (6th Cir. 2018) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
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The moving party bears the initial burden “of informing the district court of the basis for
its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986); see also Anderson, 477 U.S. at 256. That burden may be satisfied by
demonstrating that there is an absence of evidence to support an essential element of the nonmoving party’s case for which he or she bears the burden of proof. Celotex Corp., 477 U.S. at
323.
Once the moving party satisfies this burden, the non-moving party must then produce
“specific facts, supported by the evidence in the record, upon which a reasonable jury could find
there to be a genuine fact issue for trial.” Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d 201,
205 (6th Cir. 1995) (citation omitted). “The evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. However, the
Court is not obligated to “search the entire record to establish that it is bereft of a genuine issue
of material fact.” In re Morris, 260 F.3d 654, 665 (6th Cir. 2001). Rather, “the nonmoving party
has an affirmative duty to direct the court’s attention to those specific portions of the record upon
which it seeks to rely to create a genuine issue of material fact.” Id. In fact, the Federal Rules of
Civil Procedure require the non-moving party to present specific facts showing that a genuine
factual issue exists by “citing to particular parts of materials in the record including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other
materials” or by “showing that the materials cited do not establish the absence . . . of a genuine
dispute.” Fed. R. Civ. P. 56(c)(1). “The mere existence of a scintilla of evidence in support of
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the [non-moving party’s] position will be insufficient; there must be evidence on which the jury
could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.
Ultimately, if the record, taken as a whole, could not lead the trier of fact to find for the
nonmoving party, then there is no genuine issue of material fact and summary judgment is
appropriate. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citation omitted).
III. ANALYSIS
To state a claim under § 1983, a plaintiff must establish both that (1) he “was deprived of
a right secured by the Constitution or laws of the United States and (2) the deprivation was
caused by a person acting under color of state law.” Redding v. St. Eward, 241 F.3d 530, 532
(6th Cir. 2001) (citation omitted). It is undisputed that Defendants were acting under color of
state law when the alleged constitutional violations occurred. “Because ‘[s]ection 1983 is not
itself a source of any substantive rights, but instead provides the means by which rights conferred
elsewhere may be enforced[,]’ the Court’s ‘first task . . . is to identify the specific constitutional
. . . rights allegedly infringed.’” Weedman v. Moutardier, No. 4:19CV-00131-JHM, 2021 WL
2604042, at *2–3 (W.D. Ky. June 24, 2021) (quoting Meals v. City of Memphis, Tenn., 493 F.3d
720, 727–28 (6th Cir. 2007) (citations omitted)). As discussed above, Plaintiff alleges that
Defendants violated his Fourth and Fourteenth Amendment rights.
The Individual Defendants contend that they are entitled to qualified immunity on
Plaintiff’s Fourth and Fourteenth Amendment claims asserted against them in their individual
capacity and seek summary judgment on those claims. The doctrine of qualified immunity
“protects government officials from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
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have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). “To
demonstrate that Defendants are not entitled to qualified immunity, [Plaintiff] must prove that a
constitutional right was violated and that the right was clearly established at the time of the
violation.” Weedman, 2021 WL 2604042, at *3 (citing Scott v. Harris, 550 U.S. 372, 377
(2007)). The Court addresses each of the allegedly unconstitutional actions in turn and finds that
Plaintiff has failed to establish a violation of his constitutional rights.
A. Forged Search Warrant
Plaintiff contends that the search warrant prepared by Defendant Chad Stewart and relied
upon by the LMPD in conducting the search was forged and backdated. In support of this
allegation, Plaintiff relies on the existence of two warrants which he contends have different
signatures. [R. 133, R. 159, R. 164] Defendants argue that summary judgment on this claim is
proper because Plaintiff has fully litigated this issue in his criminal case. [R. 141-1, p. 14]
The United States Supreme Court has noted with approval that numerous Courts of
Appeals have “held that collateral estoppel applies when § 1983 plaintiffs attempt to relitigate in
federal court issues decided against them in state criminal proceedings.” Allen v. McCurry, 449
U.S. 90, 102 (1980). This is because federal courts must “give preclusive effect to state-court
judgments whenever the courts of the State from which the judgments emerged would do so.”
Id. at 96. Under Kentucky law, “collateral estoppel requires four elements: (1) the issue in the
second case must be the same as the issue in the first case; (2) the issue must have been actually
litigated; (3) actually decided; and (4) necessary to the court’s judgment.” Harmon v. Harper,
No. 3:19-CV-823-CRS, 2020 WL 3013890, at *2 (W.D. Ky. June 4, 2020) (citation omitted).
The record reflects that the Jefferson Circuit Court and the Kentucky Supreme Court on
appeal addressed this exact argument. See DeSpain v. Commonwealth, 2018-SC-000198-MR,
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2019 WL 6972897, at *8–9 (Ky. Dec. 19, 2019). In the criminal action, Plaintiff “argued that
the duplicate search warrant and search warrant affidavit, both signed by Judge Perry, seemed to
have different signatures on the search warrant and it or its copy were ‘forged’ . . . by the officers
at his house and then back-dated later.” Id. at *8. However, according to the Kentucky Supreme
Court, “[t]he trial court reviewed the signatures and concluded that there did not appear to be any
irregularities.” Id. at *9. The Kentucky Supreme Court noted that when Plaintiff “brought up
the issue at a preliminary conference the trial judge listened to Despain’s concerns and examined
the documents. The trial court found no reason to suspect the warrant documents had been
forged.” Id. The Kentucky Supreme Court affirmed this decision. Id. Accordingly, Plaintiff is
collaterally estopped from pursuing his claim that the search warrant relied upon by the
Individual Defendants was forged and backdated because these issues were resolved against him
in the state court criminal action. See Allen, 449 U.S. at 95–96 (holding that collateral estoppel
applies in § 1983 actions). Summary judgment in favor of Defendants on this claim is granted.
B. Unlawful Search and Seizure
LMPD officers executed a search warrant on Plaintiff’s house on September 18, 2013.
According to the search warrant affidavit, a reliable confidential informant provided information
that “‘illegal narcotics, prescription pills, marijuana, along with several stolen and defaced
firearms’ were located in Despain’s house.” DeSpain, 2019 WL 6972897, at *1. “The affidavit
stated that the informant had been in Despain’s house within the last 48 hours and viewed the
above referenced items and that Despain regularly kept semi-automatic weapons on his person.”
Id. “When police officers executed the search warrant, they located two loaded semi-automatic
handguns under the couch cushion where Despain was sitting.” Id. “They also located nine
marijuana plants in a lean-to structure attached to the back of the house, complete with lamps
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and a ventilation system. Officers seized a digital scale, rolling papers, two additional handguns
located in Despain’s bedroom, a marijuana grower’s guidebook and a surveillance system.” Id.
Based on the items recovered, Plaintiff was indicted in the Jefferson Circuit Court on charges of
cultivating marijuana (five plants or more) while in possession of a firearm, trafficking in
marijuana while in possession of a firearm, and possession of a handgun by a convicted felon.
DeSpain, 2019 WL 6972897, at *1.
In this action, Plaintiff alleges that that Defendants violated his constitutional rights by
executing an unlawful search and seizure. [R. 133, R. 159, R. 164] Specifically, in addition to
his claim that the search warrant was forged, Plaintiff asserts that Detective Stewart intentionally
falsified his September 18, 2013, affidavit, the search warrant, and the investigation report. [R.
159, pp. 1–6; R. 164, pp. 3–12; R. 164-1, pp. 1–3, 4] Plaintiff also makes additional allegations
regarding the Individual Defendants’ failure to comply with certain LMPD policies. [R. 164, p.
9] Defendants argue that Plaintiff is collaterally estopped from asserting the majority of this
Fourth Amendment claim because the constitutionality of the search warrant and the subsequent
search was previously litigated by Plaintiff in his state criminal case. [R. 141-1, pp. 14–16; R.
165, pp. 11–17]
1. Challenge to the Affidavit, Warrant, and Investigation Report
Collateral estoppel bars the relitigation of the issue of probable cause for the issuance of a
search warrant in a later § 1983 suit. See generally Allen v. McCurry, 449 U.S. 90, 102 (1980).
Here, prior to his criminal trial, Plaintiff litigated the validity of the search warrant arguing that
the warrant was invalid and the affidavit supporting the warrant contained “intentional and/or
reckless omissions and misrepresentations.” DeSpain, 2019 WL 6972897, at *7. Specifically,
Plaintiff asserted that (1) he knew who the informant was; (2) he believed the informant did not
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see any of the items listed in the warrant; (3) Detective “Stewart could not have gathered the
information and completed the search warrant in the time claimed;” and (4) Detective Stewart
had discussed the investigation with his step-daughter’s boyfriend Officer Boeckman and failed
to disclose this information in the affidavit. Id. The trial court and Kentucky Supreme Court
found that “the informant’s reliability was attested to and detailed information was provided to
the issuing judge that established a substantial basis to merit a finding of probable cause.” Id.
Additionally, the Kentucky Supreme Court held that even if the information provided in the
affidavit regarding the potential of prescription pills, semi-automatic weapons, and defaced
firearms located at the residence was inaccurate and stripped from the affidavit, “sufficient
accuracies remain, and the search warrant remains valid.” Id. at *8.
Plaintiff unsuccessfully litigated his Fourth Amendment search and seizure claim in
Kentucky state courts. Accordingly, the doctrine of collateral estoppel applies to bar relitigation
of the validity of the August 18, 2013, search and seizure in this action. See Allen, 449 U.S. at
95–96; Gray v. Lexington-Fayette Urb. County. Gov’t, No. 5:13-CV-045-DCR, 2013 WL
3322609, at *10 (E.D. Ky. July 1, 2013). Thus, with respect to this claim, the Court will grant
Defendants’ Motion for Summary Judgment, [R. 141], and deny Plaintiff’s Motion for Summary
Judgment, [R. 164].
2. Other Challenges
Plaintiff asserts that “Defendants intentionally neglected to complete/approve a risk
assessment matrix, . . . to obtain prior approval from a lieutenant or above, . . . to describe the
circumstances that he/she believes justify the necessity for a no-knock search warrant, . . . [and]
to verbally advise the reviewing Judge that he/she is requesting a no-knock search warrant.” [R.
165, p. 9]
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Plaintiff’s claims are refuted by the evidence of record. The record reflects that
Defendant Stewart completed the Risk Assessment Matrix and obtained approval from “a
lieutenant or above” who approved a “no-knock” plan due to the “subject’s history and current
info from weapons.” [R. 141-5, p. 4, R. 159-1] Furthermore, Plaintiff’s stated concern with the
Risk Assessment Matrix’s timestamps of 1300hrs for completion and 1500hrs for authorization
does not render the utilization of the SWAT Team improper. The record reflects that the
Individual Defendants initiated the search of Plaintiff’s residence at 1630hrs [R 141-14], which
occurred after the authorization of the search warrant and after the SWAT Team Commanding
Officer activated the SWAT Team upon review of the Risk Assessment Matrix completed by
Defendant Stewart. [R. 141-5, p. 4]
Further, “[g]enerally, the police must knock and announce their presence before they
enter a residence to execute a search warrant.” Moore v. City of Memphis, 853 F.3d 866, 870–71
(6th Cir. 2017) (citing Wilson v. Arkansas, 514 U.S. 927, 934 (1995)). However, “that rule does
not apply if the officers ‘have a reasonable suspicion that knocking and announcing their
presence, under the particular circumstances, would be dangerous or futile[.]’” Id. at 871
(quoting Richards v. Wisconsin, 520 U.S. 385, 394 (1997)); see also Doran v. Eckold, 409 F.3d
958, 964–965 (8th Cir. 2005) (explaining that “for Fourth Amendment purposes, the relevant
question is whether the police have reasonable suspicion of exigent circumstances at the time
they execute the warrant”).
Here, the record reflects that the risk assessment performed by Detective Stewart
produced a score of 59, necessitating SWAT Team activation. [R. 141-5; R. 159-6, Stewart Aff.
at ¶ 5] A review of the risk revealed that Plaintiff had been previously convicted of murder and
robbery, was always armed, and had a history of using firearms during the commission of a
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crime. [R. 141-5, pp. 1–2] Thus, the evidence of record demonstrates that the officers had
reason to believe that Plaintiff would pose an immediate threat to their safety. Stated another
way, the evidence demonstrates that the officers’ decision not to knock and announce their
presence was reasonable under the circumstances. Plaintiff has not presented any evidence to the
contrary. The Court therefore grants summary judgment in favor of Defendants on this claim.
C. Excessive Property Damage
Plaintiff maintains that Defendants caused excessive property damage during the search
depriving him of property in violation of the Fourth Amendment. [R. 159, p. 6–7] In his
Complaint, Plaintiff alleges that Defendants “knock[ed] out windows and [threw] two flash
grenades into [the] window, setting living room furniture [on] fire and tearing sofa cushions . . .
[while throwing] them [through] the window.” [R. 1, p. 6] Additionally, Plaintiff contends that
after placing him in custody, Defendants “intentionally knock[ed]-out windows from the inside
with their guns, [and then came] back and knock[ed]-out window casings from the mortar.” Id.
Defendants argue that summary judgment is warranted on this claim because Plaintiff’s
allegations are not supported by the record, and the evidence of record demonstrates that the
property damage at issue does not rise to the level necessary to justify an excessive property
damage claim. [R. 141-1, pp. 16–20; R. 162, pp. 5–6]
“[D]uring the course of a search, incidental damage to property may occur.” Cybernet,
LLC v. David, 954 F.3d 162, 170 (4th Cir. 2020). The Supreme Court has recognized that
“officers executing search warrants on occasion must damage property in order to perform their
duty.” Dalia v. United States, 441 U.S. 238, 258 (1979) (citations omitted). “This is not at all to
suggest that officers may ransack premises at will.” Cybernet, 954 F.3d at 168. Courts
recognize that the “‘excessive or unnecessary destruction of property in the course of a search
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may violate the Fourth Amendment’ and serve as a basis for liability under 42 U.S.C. § 1983.”
Id. (quoting United States v. Ramirez, 523 U.S. 65, 71 (1998)). However, the type of
“exceptional” damage necessary to trigger these constitutional concerns must be “something
more than accidental or incidental injury to property in the course of working within the
parameters of a lawful search warrant.” Id. at 170 (citation omitted). In considering this issue,
courts apply a “reasonableness” standard. Hill v. McIntyre, 884 F.2d 271, 278 (6th Cir. 1989);
see also Pena v. Marcus, 715 F. App’x 981, 985 (11th Cir. 2017) (citation omitted). “The
reasonableness of the damage must be evaluated with reference to the target of the search.”
Chumley v. Miami County., Ohio, No. 3:14-CV-16, 2015 WL 859570, at *10 (S.D. Ohio Feb. 27,
2015) (quoting Koller v. Hilderbrand, 933 F.Supp.2d 272, 278 (D. Conn. 2013)) (internal
quotation marks omitted).
On this point, the Court notes that “establishing as a matter of law that property damage
in the course of a search was the result of reasonable and nonmalicious police action presents a
difficult task at the summary judgment stage.” Koller, 933 F.Supp.2d at 280 (citations omitted).
Nevertheless, courts considering motions for summary judgment have concluded as a matter of
law that alleged property damage was reasonable under the Fourth Amendment. See, e.g., id.;
Chumley, 2015 WL 859570, at *11.
In this case, the evidence of record supports the conclusion that Defendants’ conduct did
not amount to a constitutional violation. See id. at *11 (emptying closets, dumping items on a
bed, and leaving the home in disarray after a search did not amount to a constitutional violation).
Much of the property damage occurred as the SWAT Team Members 2 quickly entered the house
2
While the Court dismissed the 24 SWAT Team Members in a separate Memorandum Opinion and Order entered
this day, the record does not reflect whether Plaintiff alleges only SWAT Team Members destroyed property as
opposed to the other officers present at the scene. Thus, the Court addresses each allegation of property damage.
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and were attempting to expeditiously ensure that there were no persons within who could
threaten their safety. As discussed above, due to the Risk Assessment Matrix and the resulting
score, the SWAT Team was aware that Plaintiff was a violent felon with a substantial criminal
history. [R.141-14, Humphrey Aff., ¶¶ 3–4] The SWAT Team was also aware that an informant
reported that Plaintiff had multiple firearms in the residence and was known to always have one
on or around him. [R.141-14, Humphrey Aff., ¶ 3] In light of this information, SWAT
Command determined utilizing a flash-bang was necessary to disorient Plaintiff. To use the
flash-bang necessitated breaking the living room window. [R. 141-6, Cameras 2 and 7,
16:29:23–16:29:26] The flash-bang caused a very small fire that burned for less than 20 seconds
and was promptly extinguished by SWAT. [R. 141-6, Camera 7, 16:29:27–16:29:53] Similarly,
SWAT broke additional windows in the rear of the residence in an effort to distract and disorient
Plaintiff during the initial entry into the premises. [R, 141-13, Humphrey Aff., ¶ 9] With respect
to any windows broken from the inside, SWAT Team Member Paul Humphrey testified that they
were broken to let smoke out caused by the distraction device. Id.; [R. 141-6, Camera 6,
16:30:36–16:30:52]
The information regarding the safety threat posed by Plaintiff made it reasonable for
SWAT Team Members to quickly enter and search the house, even though this unfortunately
resulted in some damage to the property. See, e.g., Pena, 715 F. App’x at 985; United States v.
Banks, 540 U.S. 31, 37 (2003) (explaining that “police in exigent circumstances may damage
premises so far as necessary for a no-knock entrance”); Ramirez, 523 U.S. at 70–72 (finding it
reasonable for officers to break a window to utilize a flash-bang device); Moore, 853 F.3d at
870–71 (affirming district court’s grant of summary judgment and finding that the use of flashbangs was reasonable).
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Further, with respect to any damage to Plaintiff’s couch cushions, the record reflects that
SWAT officers did toss his couch cushions outside the living room window while searching the
premises. [R. 141-6, Cameras 2 and 7, 9/18/13 at 16:33:37–16:34:19] Defendants maintain that
the security footage reflects that the officers did so to declutter the living room area to effectively
continue the search for firearms. [R. 141-1, p. 19] While removal of the cushions from the
home seems unusual, such conduct does not amount to a constitutional violation. See Koller,
933 F. Supp. 2d at 279; Brown v. City of Utica, 854 F. Supp. 2d 255, 262 (N.D.N.Y. 2012)
(officers left the home in disarray with personal items and garbage strewn about).
Furthermore, Plaintiff failed to identify which defendants are responsible for any of the
alleged property damage. Plaintiff bears “the burden of establishing that individual officers are
directly responsible for the alleged damage.” Chumley, 2015 WL 859570, at *11; Gordon v.
Louisville/Jefferson County Metro Gov’t, 486 F. App’x 534, 541 (6th Cir. 2012) (affirming
summary judgment in favor of officers where plaintiff presented no evidence that any particular
officer was responsible for the damage alleged). For this reason, and the reasons stated above,
summary judgment in favor of Defendants is granted as to this claim.
D. Refusal of EMS Treatment
Plaintiff argues that he suffered injury during his arrest and was refused medical
treatment by Defendants on the day of the execution of the search warrant in violation of the
Fourth And Fourteenth Amendments. [R. 1, ¶ 18] Specifically, Plaintiff alleges that Defendants
“refused all EMS medical treatment other than [taser] darts being removed from plaintiff’s
back.” Id. Additionally, Plaintiff contends that he asked to be taken to the hospital due to
having previous neck surgeries, but Defendants refused his request. [R. 159, p. 7] In support of
his claim, Plaintiff submitted medical documentation dated 16 to 19 days after the execution of
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the search warrant which, according to Plaintiff, demonstrates that he was still in severe pain and
had bruises to both sides of his lower back. [R. 159-10, pp. 1–2] Defendants argue that
summary judgment is appropriate, citing to evidence that Plaintiff was not refused medical
treatment. [R. 141-1, p. 20–22, R. 162, pp. 7–8]
The evidence of record refutes Plaintiff’s claim. The record reflects that the SWAT Team
had a medic assigned and present for the search, and Major Paul Humphrey testified that a
standby EMS vehicle was on site. [R. 141-13, Humphrey Aff., ¶10] Further, Plaintiff concedes
that medical aid was rendered to him on scene. Specifically, Plaintiff states that “[w]hen
plaintiff asked the defendants to be taken to the hospital, defendants refused the request, and
instead placed a hard collar on to the plaintiff[.]” [R. 159, p. 7] Plaintiff also states in a
December 10, 2018 letter sent to Chief Steve Conrad that EMS “wiped off my bloody head [and]
placed a bandage on the cut.” [R. 146-2, p. 3] Thus, the record reveals that Defendants provided
medical care to Plaintiff at the scene of his arrest. Additionally, the record reflects that Plaintiff
was seen by medical staff at the Kentucky State Reformatory on October 4, 2013, and was
prescribed Tylenol and Ibuprofen. [R. 159-10, pp. 1–2].
It is well settled that the Constitution does not guarantee a prisoner “unqualified access to
healthcare.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). “Where medical treatment has been
provided, a prisoner’s disagreement with the adequacy of care given does not implicate the
Constitution.” Morgan v. Stansberry, No. 1:18-CV-256, 2019 WL 6742915, at *8 (E.D. Tenn.
Dec. 11, 2019) (citing Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976)). This is
because “federal courts are generally reluctant to second guess medical judgments and to
constitutionalize claims which sound in state tort law.” Id. (quoting Westlake, 537 F.2d at 860 n.
5) (internal quotation marks omitted). “Rather, to state a constitutional claim, such a prisoner
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must show that his treatment was ‘so woefully inadequate as to amount to no treatment at all.’”
Id. (quoting Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011)). Here, the evidence of
record demonstrates that Plaintiff received medical treatment at the scene. Though he might have
preferred additional care, Plaintiff’s preference to be transferred to the hospital rather than
treated by EMS on scene does not rise to a constitutional deprivation under these circumstances.
Accordingly, the Court grants summary judgment in favor of Defendants on this claim.
E. Excessive Force
Plaintiff alleges that Defendants used excessive force in execution of the search warrant
in violation of the Fourth Amendment. [R. 1, ¶ 15] Plaintiff contends that during the execution
of the warrant, Defendants utilized a dynamic entry by detonating flash-bangs as the officers
stormed through the front door. [R. 164-1, p. 3] Plaintiff asserts that he did not resist arrest.
Instead, after the flash-bang was detonated, he placed his hands in front of his face and was
subsequently kicked twice in the chest by a SWAT Team Member. [R. 1, p. 6; R. 159, p. 8; R.
164-1, p. 3] Plaintiff further states that he was thrown to the floor, beaten, punched, handcuffed,
and then beaten and kicked some more on the porch by four SWAT Team Members. [R. 1, p. 6;
R. 164-1, p. 3] Defendants respond that the SWAT Team’s actions were objectively reasonable
under the totality of the circumstances as confirmed by the security videotape submitted to the
Court. 3 [R. 141-1, p. 23; R. 141-6; R. 162, p. 6–7]
Plaintiff’s excessive force claim arises out of his arrest by Defendants and is therefore
properly analyzed under the Fourth Amendment’s “reasonableness” standard. Graham v.
Connor, 490 U.S. 386, 395 (1989). In determining whether Defendants used excessive force
3
Both parties represent that the security videotape clearly supports their position on the excessive force claim. The
only clear information from the security videotape is that SWAT Defendants secured the apprehension of Plaintiff
within 90 seconds. After the initial two kicks of Plaintiff by one SWAT Team Member, the remainder of the arrest is
obscured by officer activity, smoke, and the location of the cameras.
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against Plaintiff, “the question is whether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without regard to their underlying intent or
motivation.” Id. at 397. “It is axiomatic that a citizen has a constitutional right, secured by the
Fourth Amendment, not to be subjected to excessive force during an arrest, investigatory stop, or
other ‘seizure’ of his person.” Weedman, 2021 WL 2604042, at *3 (citing Graham, 490 U.S. at
395). “Moreover, citizens have a constitutional right to be free from police force when they are
fully compliant and not resisting reasonable police action.” Id. at *3 (W.D. Ky. June 24, 2021);
see also Hagans v. Franklin County Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012); Williams
v. Dame, No. 4:17-CV-P67-JHM, 2019 WL 691410, at *3 (W.D. Ky. Feb. 19, 2019).
In this case, it is undisputed that the SWAT Team was in charge of the entry into the
premises for the execution of the search warrant in question. [R. 141-15, Stewart Aff. ¶ 4; R.
141-13, Humphrey Aff. ¶ 8] It is further undisputed that the SWAT Team secured Plaintiff
during the execution of the search warrant. [R. 141-13, Humphrey Aff. ¶ 5] Thus, with the
previous dismissal of the SWAT Defendants on statute of limitations grounds, the bulk of
Plaintiff’s excessive force claim has essentially been dismissed.
The only remaining timely-served Defendant associated with the SWAT Team is
Defendant Ryan Bates who Plaintiff identified in his Complaint as the Unit
Supervisor/Commander of the LMPD SWAT Team. [R. 1, p. 4; R. 141-14, Items Seized Report
listing Viper Squad] In his Complaint, Plaintiff alleges that Bates had a duty and was legally
responsible for all operations, commands, and equipment, along with the proper training to
prevent civil right violations. Id. Absent his mention in the Complaint, Plaintiff did not allege
nor provide any evidence that Officer Bates was a member of the SWAT Team that executed the
search in question, was one of the five officers who allegedly used excessive force on Plaintiff,
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or authorized, approved, or acquiesced in the alleged unconstitutional conduct. The mere fact
that Officer Bates is a supervisor does not establish liability on his part. Monell v. Dep’t of
Social Services, 436 U.S. 658, 690 n. 55 (1978). The doctrine of respondeat superior, or the right
to control employees, does not apply in § 1983 actions to impute liability onto supervisors.
Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 80–81 (6th Cir. 1995); Bellamy v. Bradley, 729 F.2d
416, 421 (6th Cir. 1984). Rather, to establish supervisory liability in a § 1983 action,
[t]here must be a showing that the supervisor encouraged the specific incident of
misconduct or in some other way directly participated in it. At a minimum, a §
1983 plaintiff must show that a supervisory official at least implicitly authorized,
approved or knowingly acquiesced in the unconstitutional conduct of the offending
subordinate.
Bellamy, 729 F.2d at 421 (citing Hays v. Jefferson County, Ky., 668 F.2d 869, 872–874 (6th Cir.
1982)).
Finally, in as much as the remaining Defendants and potentially Officer Bates were a part
of the preparation leading up to the execution of the search warrant, the Court finds that the
evidence of record does not support Plaintiff’s excessive force claims. The use of a flash-bang
device in the execution of the search warrant does not necessarily constitute excessive force. See
Ramage v. Louisville/Jefferson County Metro Gov’t, 520 F. App’x 341, 347 (6th Cir. 2013). As
discussed above, Defendants had reason to believe they would encounter a dangerous, violent
suspect. The use of a flash-bang device “is more likely to be reasonable if the officers expect to
encounter an individual who is known to be armed and dangerous or who has a history of
violence.” Z.J. by & through Jones v. Kansas City Bd. of Police Commissioners, 931 F.3d 672,
682 (8th Cir. 2019). Additionally, its “use is also more likely to be reasonable if the situation
presents a need for the element of surprise in order to protect the safety of officers or others.”
Id.; see also Ramage, 520 F. App’x at 347; Moore, 853 F.3d at 870–71. Thus, the factual
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circumstances of the present case justified the use of the flash-bang device. Plaintiff does not
cite to any evidence of record suggesting otherwise. Accordingly, summary judgment is granted
in Defendants’ favor.
F. Failure to Train
Plaintiff maintains that Louisville Metro Government failed to train LMPD and SWAT
officers in the execution of a search warrant. [R. 1, ¶ 4] Plaintiff alleges that Detective Stewart
informed Plaintiff during the search that the Viper Squad did not need a search warrant. [R. 1,
¶ 12] In his Response to Defendants’ Motion for Summary Judgment, Plaintiff also asserts that
the practice of falsifying affidavits and forging search warrants is a common practice within the
LMPD. [R. 133, p. 2; R. 159, pp. 5–6] In support of this claim, Plaintiff cites the conviction of
two LMPD police officers in 2008 for falsifying search warrant affidavits. Id. Defendant argues
that summary judgment should be granted on this claim because Plaintiff fails to point to a direct
policy, custom, or practice that satisfies the standard set forth in Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978). [R. 141-1, p. 27]
“A plaintiff raising a municipal liability claim under § 1983 must demonstrate that the
alleged federal violation occurred because of a municipal policy or custom.” Burgess v. Fischer,
735 F.3d 462, 478 (6th Cir. 2013) (citing Monell, 436 U.S. at 694). One way to prove an unlawful
policy or custom is to show a policy of inadequate training or supervision. See City of Canton v.
Harris, 489 U.S. 378, 387 (1989). To succeed on a municipal failure-to-train claim,
[a] plaintiff must establish that the municipality, through its policymakers, failed to
train or supervise employees despite: 1) having actual or constructive knowledge
of a pattern of similar constitutional violations by untrained employees . . . or 2) the
fact that the constitutional violation alleged was a patently obvious and “highly
predictable consequence” of inadequate training.
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Essex v. County of Livingston, 518 F. App’x 351, 355–56 (6th Cir. 2013) (internal citations
omitted).
In the present case, Plaintiff does not point to any unconstitutional formal or informal
policy or custom regarding the execution of a search warrant. Even if Detective Stewart made
the statement alleged by Plaintiff, the record reflects that a search warrant was obtained prior to
the execution of the search. [R. 141-4, pp. 1–5]; DeSpain v. Commonwealth, 2018-SC-000198MR, 2019 WL 6972897, at *8–9 (Dec. 19, 2019). While Plaintiff identifies other LMPD policies
regarding the preparation of risk assessments and no-knock warrants, [R. 159, pp. 2–4], Plaintiff
does not argue that these policies are unconstitutional. Rather, Plaintiff maintains that certain
officers failed to follow those policies. Id. No evidence in the record suggests that the
Louisville Metro Government failed to train its officers on the procurement and execution of
search warrants.
Furthermore, the other prior instances of misconduct by “rogue” police officers cited by
Plaintiff fail to support his failure-to-train case. [R. 133, p. 2] Plaintiff provides no information
that suggests that these “rogue” officers were not properly trained or that LMPD acquiesced to
their unlawful conduct. In fact, the tampering with public records by these officers occurred
from 1997 to 2002, and they were prosecuted for their illegal conduct. [R. 162, pp. 9–10]
The evidence does not support a failure-to-train claim against the municipality.
Accordingly, the Court will grant Defendants’ motion for summary judgment on this claim.
G. Section 10 of the Kentucky Constitution
Plaintiff also brings a state-law claim under Section 10 of the Kentucky Constitution. [R.
1, pp. 6–8] Defendants argue that Kentucky does not recognize a private cause of action for
alleged violations of state constitutional rights. [R. 139-1, p. 9] Defendants made this same
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argument in a Motion to Dismiss, [R. 139]. The Court has already addressed that argument in an
order entered this same date, granting Defendants’ Motion to Dismiss on that issue and
dismissing Plaintiff’s state law claim under Section 10 of the Kentucky Constitution.
H. Plaintiff’s Motion to Request an Expert [R. 172]
Also before the Court is Plaintiff’s Motion to Request an Expert “Handwriting Analysis”
Witness to Assist with Scientific, Technical, or Other Specialized Knowledge in Authenticating
Legal Documents, [R. 172]. In the Motion, Plaintiff cites Federal Rule of Evidence 706 and asks
the Court to appoint a “Handwriting Analysis Expert Witness.” Id. at 1. He argues that a
handwriting expert is necessary to prove his forged affidavit/forged search warrant arguments.
However, as discussed above, that claim is barred by the doctrine of collateral estoppel, and the
Court will grant summary judgment in favor of Defendants on that claim. See supra Section
III(B)(1). Accordingly, the Court will deny Plaintiff’s Motion to Request an Expert as moot.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Defendants’ Motion
for Summary Judgment [R. 141] is GRANTED, and Plaintiff’s Motion for Summary Judgment
[R. 164] is DENIED. A Judgment shall be entered consistent with this Memorandum Opinion
and Order.
It is also ORDERED that Plaintiff’s Motion to Request an Expert “Handwriting
Analysis” Witness to Assist with Scientific, Technical, or Other Specialized Knowledge in
Authenticating Legal Documents, [R. 172], is DENIED as moot.
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This the 19th day of August, 2021.
cc:
Plaintiff, pro se
counsel of record
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