Harden v. Hillman et al
Filing
68
MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 8/24/2017 granting in part and denying in part 58 Motion for Summary Judgment; denying as moot 64 Motion to Amend Complaint. cc: Counsel(JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:15-CV-00594-JHM
JOHN K. HARDEN
PLAINTIFF
V.
OFFICER KEITH HILLMAN,
individually and in his official capacity
as a police officer of Heritage Creek, et al
DEFENDANTS
MEMORANDUM OPINION & ORDER
This matter is before the Court on defendant Thorntons, Inc.’s motion for summary
judgment (DN 58), as well as plaintiff John K. Harden’s motion to amend his complaint. (DN
64.) Fully briefed, these matters are ripe for decision.
I. BACKGROUND
In the early morning hours of August 2, 2014, Harden entered the Thorntons gas station
and convenience store at 100 West Broadway in Louisville. Harden was attempting to buy beer
but was refused service by the cashier, as he appeared intoxicated. Defendant Hillman was
working inside the store providing security, outside of his regular hours as an officer for the City
of Heritage Creek. Hillman intervened in the situation and directed Harden to leave the store.
Harden did leave but returned a short time thereafter. Hillman verbally directed Harden to leave
the premises, but Harden refused. Hillman then physically removed Harden from the store and
placed Harden under arrest.
Once under arrest, Harden complained about being in pain.
Hillman called for
emergency medical services, who arrived and transported Harden to University of Louisville
Hospital. At the hospital, Hillman issued a citation to Harden for disorderly conduct, resisting
arrest, and public intoxication.
Harden filed this action against Hillman, the City of Heritage Creek, and Thorntons in
this Court on July 8, 2015. (DN 1.) Harden asserts claims against Hillman for deprivation of
constitutional rights (Count I), assault (Count II), false arrest and unlawful imprisonment (Count
III), and arrest without probable cause (Count IV). The complaint asserts that the City of
Heritage Creek is liable on all counts for the actions of Hillman, and it asserts that Thorntons is
liable on Counts I, III, and IV for his actions as well. Thorntons has now moved for summary
judgment on all counts. (DN 58.) Hillman has also moved to amend his complaint so as to hold
Thorntons liable on Count II. (DN 64.)
II. STANDARD OF REVIEW
A. SUMMARY JUDGMENT
Before the Court may grant a motion for summary judgment, it must find that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the
basis for its motion and identifying that portion of the record that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party satisfies this burden, the non-moving party thereafter must produce specific facts
demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986).
Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the non2
moving party to present specific facts showing that a genuine factual issue exists by “citing to
particular parts of materials in the record” 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 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.
B. MOTION FOR LEAVE TO AMEND
A motion for leave to file an amended complaint is governed by Fed. R. Civ. P. 15(a)(2),
which states that “a party may amend its pleading only with the opposing party’s written consent
or the court's leave.” A district court should freely grant leave “when justice so requires.” Id.
However, a district court may deny a motion to amend where there is “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). “A
proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to
dismiss.” Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 520 (6th Cir. 2010)
(quoting Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000)) (internal
quotation marks omitted).
III. DISCUSSION
The Court will first address Thorntons motion for summary judgment as it pertains to
Counts I, III, and IV. Count II will then be addressed in conjunction with Hillman’s motion to
amend that count.
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A. COUNT I – DEPRIVATION OF CONSTITUTIONAL RIGHTS
Count I asserts that Hillman acted under color of state law when he physically removed
Harden from the convenience store and placed him under arrest, thus depriving him of various
constitutional rights. Count I also asserts that, “at the time of the incidents complained of herein,
Defendant Hillman was an employee of Thorntons, Inc. and was acting within the scope of his
employment, thereby making Thorntons, Inc. vicariously liable for the injuries and damages
sustained by Plaintiff.” (Pl.’s Compl. [DN 1] ¶ 13.) Thorntons argues that summary judgment is
appropriate since it is not a state actor that can be liable under 28 U.S.C. § 1983 and it is not
vicariously liable for constitutional violations committed by its agents.
First, it is important to note Hillman’s theory of liability. Nowhere in the complaint does
Hillman assert that Thorntons itself committed constitutional violations.
Compare with
Cambron v. RK Shows, Inc., 2014 WL 3419128, at *2–3 (W.D. Ky. July 14, 2014) (plaintiff
alleged corporation committed constitutional violations). Instead, he argues that Hillman was the
only defendant who actually committed a constitutional violation, and Thorntons, as his
employer, is vicariously liable for those violations. Therefore, it is irrelevant whether Thorntons
itself is considered a private or a state actor. The Court will presume, without deciding, that
Hillman was acting under color of state law and was an agent or employee of Thorntons when he
physically removed Harden and placed him under arrest, as the relevant inquiry is whether an
employer may be held vicariously liable for the constitutional violations of its agents or
employees.
In a similar case in this district also involving Thorntons, this Court noted that a
corporation, whether public or private, could not be held vicariously liable for the constitutional
violations committed by its employees:
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It is not clear that Count III alleges vicarious liability against
Thorntons under § 1983. To the extent that it does, however, a
corporation cannot be vicariously liable under § 1983 for the acts
of an employee or independent contractor. See, e.g., Street v. Corr.
Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996) (citing Harvey v.
Harvey, 949 F.2d 1127, 1129-30 (11th Cir. 1992), for the
proposition that a corporation “cannot be held liable under section
1983 on a respondeat superior or vicarious liability basis,” since
though Monell v. Department of Social Serv., 436 U.S. 658 (1978),
“involved a municipal corporation . . . every circuit to consider the
issue has extended the holding to private corporations as well”).
Meinhart v. Campbell, 2008 WL 1860273, at *1 (W.D. Ky. Apr. 24, 2008). There has been no
intervening change within the Sixth Circuit to the rule that Monell prohibits vicarious liability for
both private and municipal corporations under § 1983. But see Shields v. Ill. Dept. of Corr., 746
F.3d 782, 789–96 (7th Cir. 2014) (questioning the propriety of applying Monell to private
corporations).
Therefore, Thorntons cannot be held liable for constitutional violations
committed by Hillman as its agent or employee. Accord Harris v. Goins, 156 F. Supp. 3d 857,
863 (E.D. Ky. 2015). As such, Thorntons motion for summary judgment as to Count I is
GRANTED.
B. COUNT III – FALSE IMPRISONMENT
Count III asserts that Hillman falsely arrested and unlawfully imprisoned Harden under
Kentucky law, and that as Hillman’s employer, Thorntons is vicariously liable for his actions.
Thorntons argues that summary judgment is appropriate, as the employer of a “moonlighting”
officer acting as a private security guard cannot be vicariously liable for actions taken by the
officer that are congruent with his authority as a peace officer.
“The Kentucky Supreme Court has adopted the Restatement (Third) of Agency’s
definition of vicarious liability.” Halcomb v. Black Mountain Resources, LLC, 46 F. Supp. 3d
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707, 711 (E.D. Ky. 2014) (citing Papa John’s Int’l, Inc. v. McCoy, 244 S.W.3d 44, 51–52 (Ky.
2008)). Under the Restatement’s definition,
(1) An employer is subject to vicarious liability for a tort
committed by its employee acting within the scope of employment.
(2) An employee acts within the scope of employment when
performing work assigned by the employer or engaging in a course
of conduct subject to the employer’s control. An employee’s act is
not within the scope of employment when it occurs within an
independent course of conduct not intended by the employee to
serve any purpose of the employer.
(3) For purposes of this section,
(a) an employee is an agent whose principal controls or has
the right to control the manner and means of the agent's
performance of work, and
(b) the fact that work is performed gratuitously does not
relieve a principal of liability.
Restatement (Third) of Agency § 7.07 (2006). When the employee’s conduct amounts to an
intentional tort, such as false imprisonment, an employer is only vicariously liable if the
employee acted with the purpose to serve the employer by committing the tort. See Coleman v.
Ferrell’s Snappy Serv. of Hopkinsville, Inc., 2010 WL 5393855, at *4 (W.D. Ky. Dec. 22, 2010)
(quoting Am. Gen. Life & Acc. Ins. Co. v. Hall, 74 S.W.3d 688, 692 (Ky. 2002)).
Thorntons argues that the Kentucky Court of Appeal’s decision in Smith v. Norton
Hospital, Inc., 488 S.W.3d 23 (Ky. Ct. App. 2016) requires this Court to grant summary
judgment on the vicarious liability claims in this case. In Smith, an off-duty peace officer who
was working as a private security guard for a hospital grabbed the purse of a woman who
indicated she may have a weapon on her. The woman brought various tort claims against the
officer and the hospital. The Court of Appeals affirmed the grant of summary judgment to the
officer on qualified immunity grounds, as well as the grant of summary judgment to the hospital.
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Thorntons argues that Smith precludes liability for employers of off-duty peace officers who are
moonlighting as security guards when they act within their authority as a peace officer.
The Court is not certain that Smith should be interpreted as broadly as Thorntons thinks it
should. But even so, Smith is not yet applicable to this case. The Smith court first found that the
officer was entitled to qualified immunity before finding that the vicarious liability claims must
also “necessarily fail.” Id. at 31. In this case, there has been no finding that Hillman is entitled
to qualified immunity, as Hillman has yet to raise such an argument. Therefore, it is premature
to apply the rationale of Smith to the present case, at least until Hillman has had an opportunity
to raise the issue of whether he is entitled to qualified immunity. Further, based upon the limited
record before the Court,1 Thorntons has not otherwise met its burden in demonstrating that no
genuine dispute exists as to whether Hillman’s physical altercation with Harden was done within
the scope of Hillman’s employment with Thorntons.
While Hillman acknowledged at his
deposition that he acted “as an officer, with the authority of my police authority” when he
physically removed Harden from Thorntons, he also stated that he acted once customer became
“alarmed and annoyed,” raising the issue of whether Hillman acted to serve his employer in
allegedly committing the tort against Harden. (Dep. Hillman [DN 58-1] 48:8–9, 51:24–52:2.)
Therefore, Thorntons motion for summary judgment as to Count III is DENIED.
C. COUNT IV – MALICIOUS PROSECUTION
Count IV asserts that Hillman lacked probable cause and acted with malicious intent in
bringing charges against Harden, and that as Hillman’s employer, Thorntons is liable. Hillman
does not make clear whether this malicious prosecution claim is made pursuant to Kentucky law
or § 1983. However, Thorntons motion for summary judgment treats Count IV as a state law
1
In addition to the documents Harden filed with his initial complaint, the Court only has seventeen pages of
Hillman’s deposition (DN 58-1) and five pages of Harden’s deposition (DN 58-2) to use in deciding this motion.
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claim, and Hillman’s response does not argue that the claim may otherwise continue pursuant to
§ 1983. Therefore, the Court will address the claim as only one brought under Kentucky law.
Thorntons argues it is entitled to summary judgment on the malicious prosecution claim
under the Kentucky Court of Appeals’ holding in Smith. For the same reasons as with Count III,
the Court rejects this argument, as there has been no finding that Hillman is entitled to qualified
immunity. However, Thorntons also argues that it is entitled to summary judgment on the
malicious prosecution claim since the criminal proceedings brought against Harden were not
terminated in his favor. In Kentucky, a plaintiff bringing a malicious prosecution claim must
establish the following elements:
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 bringing 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 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). Proceedings are terminated in favor of the
person against whom it was brought “only when their final disposition is such as to indicate the
innocence of the accused.” Restatement (Second) of Torts § 660. The record in this case
indicates that the charges against Harden were ultimately dismissed without prejudice, with the
notation of “wit NOT present NO trial.” (DN 1-3, at 9–10.) In its motion for summary
judgment, Thorntons interprets the notation as meaning that the charges were dismissed due to a
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witness’s failure to show up for trial. Harden does not rebut this interpretation in his response,
instead arguing that such a dismissal is a termination of proceedings in favor of the accused.
After careful consideration, the Court finds that the proceedings were not terminated in
Harden’s favor. The failure of a witness to appear for trial does not “reflect upon the merits of
the case,” as it does not help establish Hillman’s innocence of the conduct at the heart of the
charges. Id. at 605. In Chaney v. Robinson-Hill, 2012 WL 5274738, at *3 (Ky. Ct. App. Oct.
26, 2012), the Kentucky Court of Appeals framed the issue as whether “the Commonwealth
dismissed the charges because they believed [the accused] was not guilty.” While the failure of a
witness to appear for trial may have created a belief that the Commonwealth could no longer
obtain a conviction, it is not sufficient evidence of Hillman’s actual innocence of the charges.
Compare with Davidson v. Castner-Knott Dry Goods Co., Inc., 202 S.W.3d 597, 605 (Ky. Ct.
App. 2006) (finding that charges were dismissed due to belief that accused was innocent when,
in addition to witness no longer being available, Commonwealth learned prior to trial that checks
at issue had been stolen from accused two months before alleged writing of bad checks,
indicating innocence). Therefore, the Court finds that dismissal without prejudice due to the
failure of a witness to appear for trial does not constitute a termination of the proceedings in
Harden’s favor. Accord Caudill v. Felder, 2010 WL 411474, at *5 (E.D. Ky. Jan. 29, 2010)
(“Furthermore, since the plaintiff’s criminal case was dismissed summarily when witnesses for
the prosecution did not appear, there was no favorable termination of the proceedings on the
merits of the action”).
Because the proceedings were not terminated in Harden’s favor, he cannot maintain a
claim for malicious prosecution against Hillman. Without an underlying claim against Hillman,
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there is no claim for which Thorntons could be vicariously liable. Therefore, Thorntons motion
for summary judgment as to Count IV is GRANTED.
D. COUNT II – ASSAULT
Count II alleges that Hillman assaulted Harden and that the City of Heritage Creek is
vicariously liable for Hillman’s conduct. It makes no mention of Thorntons. On this basis,
Thorntons has moved for summary judgment as to Count II. In opposition, Harden argues that
the entirety of the complaint leaves “no doubt” that Thorntons is a defendant to Count II. Harden
has also moved to amend his complaint “to remove any ambiguity” as to whether Thorntons is a
defendant in Count II. (DN 64.)
While Count II could have been stated with greater clarity, the Court finds that it has
sufficiently asserted Count II against Thorntons. Paragraph 13, listed under Count I, states that,
“at the time of the incidents complained of herein, Defendant Hillman was an employee of
Thorntons, Inc. and was acting within the scope of his employment, thereby making Thorntons,
Inc. vicariously liable for the injuries and damages sustained by Plaintiff.” (Pl.’s Compl. [DN 1]
¶ 13.) Paragraph 15, listed at the beginning of Count II, “reiterates and incorporates by reference
as if fully set forth herein, the allegations contained in numerical paragraphs 1–14 hereinabove.”
(Id. ¶ 15.) The conduct at issue and injuries alleged in Count I are substantially the same as
those in Count II, as they both arise from Hillman physically removing Harden from the
convenience store. While Count II does not explicitly state that Thorntons is a defendant to that
count, it successfully incorporates its allegation that Thorntons is vicariously liable for Hillman’s
conduct.2 Therefore, because the complaint already establishes that Thorntons is a defendant to
Count II, Harden’s motion to amend is DENIED AS MOOT.
2
The Court also believes that the complaint sufficiently put Thorntons on notice that it would have to defend itself
against the allegations in Count II, as it has asserted independent grounds for granting summary judgment on that
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Alternatively, Thorntons has moved for summary judgment as to Count II on the grounds
that Harden has failed to provide expert testimony that is necessary to establish causation. Count
II alleges that Hillman “willfully and intentionally assaulted” Harden,3 and it also alternatively
argues that Hillman “negligently caused the above-described injuries” to Harden’s back, neck,
central nervous system, and body as a whole. (Pl.’s Compl. [DN 1] ¶¶ 16–17.) Both claims
require evidence that the alleged damages were caused by the conduct of the defendant. See
Watts v. Appalachian Reg. Healthcare, Inc., 2005 WL 1540236, at *5 (Ky. Ct. App. July 1,
2006). Thorntons correctly notes that the time for Harden to disclose any expert witnesses has
passed. (DN 23.)
However, granting summary judgment at this stage would be inappropriate. Harden has
alleged his injuries only generally at this point, making it difficult to determine whether an expert
will be necessary to prove causation. It is true that “expert testimony is necessary to support the
element of causation in . . . [an] action when common knowledge or experience of lay persons
cannot infer a causal connection between the [tortious conduct] and the injury.” Vaughn v.
Konecranes, Inc., 2015 WL 1719672, at *3 (E.D. Ky. Apr. 15, 2015). But it is not so clear at
this point that the injuries Harden alleges are beyond the permissible inferences a lay person
could make. See Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 681 (Ky. 2005)
(necessity of expert to prove causation is a matter within the discretion of the trial court).
Hillman is alleged to have physically lifted Harden off the floor and thrown him to the ground,
causing injuries to his back, neck, central nervous system, and body as a whole. (Pl.’s Compl.
count, indicating that it was aware of at least the possibility that it was a defendant to that count. See Fed. R. Civ. P.
8(e) (“Pleadings must be construed so as to do justice”).
3
While the complaint describes the claim as one for assault, the conduct described better reflects the tort of battery,
since there was an actual touching of Harden rather than just a threatened one. See Banks v. Fritsch, 39 S.W.3d 474,
480 (Ky. Ct. App. 2001). Harden appears to recognize this in his response to the motion for summary judgment, as
he now labels his claim as one of “assault and battery.” (DN 63.)
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[DN 1] ¶ 16.) There are some injuries to those areas of the body that a lay person could conclude
were caused by those actions, whereas other may be beyond inference. But this is a case of
simple assault and battery; it is not, for example, a medical negligence case where, “[d]ue to the
complexity of medical procedures, proof . . . almost always, must take the form of expert
testimony.” Stanley v. Trover, 2016 WL 99790, at *9 (Ky. Ct. App. Jan. 8, 2016). Without a
complete record before the Court as to what precise injuries Harden alleges he has suffered, the
Court cannot say that expert testimony will be required to establish causation. Certainly, Harden
will not be able to recover for those injuries that do require expert testimony to establish
causation, but the Court cannot make that determination without knowing what those injuries
are. Therefore, the lack of expert testimony does not justify removing the question of causation
from the jury at this stage. As such, Thorntons motion for summary judgment as to Count II is
DENIED.
IV. REQUEST FOR HEARING
Thorntons has requested a hearing on its motion for summary judgment. However, the
Court feels sufficiently advised to decide the issues before it at this time without conducting a
hearing. Therefore, that request is denied.
V. CONCLUSION
Therefore, for the reasons stated above, Defendant Thorntons, Inc.’s motion for summary
judgment (DN 58) is GRANTED IN PART and DENIED IN PART. Further, Plaintiff John K.
Harden’s motion for leave to amend his complaint (DN 64) is DENIED AS MOOT.
cc:
Counsel of Record
August 24, 2017
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