Cleveland et al v. Louisville Metro Government et al

Filing 44

MEMORANDUM OPINION signed by Senior Judge Charles R. Simpson, III on 4/20/2017, re Defendants Brian Smith, Beau Gadegaard, and Taylor Banks' 32 Partial MOTION to Dismiss, and 33 MOTION for More Definite Statement. cc: Counsel (RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
DANIELLE CLEVELAND and
DOMINIQUE WICKER, as
Co-Administrators of the
ESTATE OF DARNELL WICKER

PLAINTIFFS
CIVIL ACTION NO. 3:16-CV-00588-CRS

v.
LOUISVILLE METRO GOVERNMENT
d/b/a LOUISVILLE METRO POLICE
DEPARTMENT, et al.

DEFENDANTS

Memorandum Opinion
I.

Introduction
This matter is before the Court on the joint motion of Defendants Taylor Banks, Beau

Gadegaard, and Brian Smith (“the Officers”) seeking partial dismissal of the claims under
Federal Rule of Civil Procedure 12(b)(6), ECF No. 32. The Officers also jointly moved for a
more definite statement of one of the claims under Rule 12(e), ECF No. 33. Plaintiffs Danielle
Cleveland and Dominique Wicker (collectively, “Plaintiffs”), as co-administrators of the estate
of Darnell Wicker, addressed both motions in a single response, ECF No. 35. The Officers
jointly replied, ECF No. 36.
Because these motions involve the same facts and similar issues, the Court will address
them together in a single memorandum opinion and order. For the reasons discussed below, the
Court will grant the Officers’ Rule 12(b)(6) motion for partial dismissal and will deny their Rule
12(e) motion for a more definite statement.

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II.

Allegations in the Amended Complaint
Plaintiffs assert that Darnell Wicker was an African American landscaper and handyman.

Compl. ¶¶ 11, 14, ECF No. 30. He “could often be found in his neighborhood riding his bicycle
down the street, dragging his lawnmower behind, and carting a bucket of hand tools.” Id. Wicker
apparently had difficulty with his hearing. Id. ¶ 13. He could only understand people if they
stood close to him and spoke “very loudly.” Id. And when he watched television, he turned the
volume up so loudly that other people left the room. Id.
Wicker lived with his girlfriend, Anita Jones, at an apartment located at 4509 Broadleaf
Drive in Louisville, Kentucky. Id. ¶ 15. Wicker’s relationship with Jones was volatile. Id. ¶ 16.
During the time relevant to the complaint, Wicker had been staying out late, which frustrated
Jones. Id. ¶ 17.
On August 7, 2016, Jones and Wicker spent the evening away from their apartment. Id. ¶
18. Late that night, Wicker returned to their apartment. Id. ¶ 19. He arrived before Jones. Id. He
began cooking French fries. Id. ¶ 20. He was still cooking French fries when Jones returned. Id.
Jones asked Wicker to leave the apartment. Id. ¶ 21. Jones then walked outside of the apartment
to talk to her adult daughter, Denita, in the apartment’s parking lot. Id.
While in the parking lot, Denita called 911 and reported that Wicker had kicked in the
apartment door and was walking around the area with knives and a saw. Id. ¶ 22. Two police
cruisers were accordingly dispatched to the apartment complex. Id. ¶ 25. Neither Denita nor
Jones told Wicker that the police had been called. Id. ¶ 24. Wicker carried some of his
possessions out of the apartment and set them outside of the apartment’s door. Id. ¶ 26. He then
went back into the apartment. Id.

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At approximately 1:45 A.M., Officer Smith, who is white, arrived at the apartment
complex. Id. ¶¶ 7, 27. Officer Smith was wearing a black uniform. Id. He did not activate his
light bar or siren on his police cruiser. Id. The apartment complex’s parking lot was dark. Id.
Officer Smith began talking in the parking lot to Jones and Denita about the situation. Id.
¶ 28. As Officer Smith was speaking to Jones and Denita, the door to the apartment opened. Id. ¶
29. Officer Smith began to approach the apartment. Id. He walked between two parked cars,
came around a stairwell, and stopped more than 20 feet from the apartment door, where Wicker
was exiting the apartment. Id. ¶ 30. Officer Smith shined his high-powered flashlight directly at
Wicker. Id. ¶ 31.
At that point, Wicker’s bucket of hand tools was directly outside the apartment door. Id. ¶
32. Wicker was holding a pruning saw by the handle in his left hand, which was at his side. Id.
The pruning saw was pointed towards the ground. Id. Wicker stepped onto the welcome mat with
his left foot. Id. ¶ 33.
As Wicker began stepping onto the welcome mat with his left foot, Officer Smith
commanded him to “drop it,” referring to the pruning saw. Id. ¶ 34. Wicker then placed his right
foot also onto the welcome mat, in the direction of his tool bucket, outside the apartment door.
Id. ¶ 35. Plaintiffs assert that Wicker intended to put the pruning saw in the tool bucket. Id.
Moments before Officer Smith began issuing commands to Wicker, Officers Banks and
Gadegaard, who are both white, arrived at the apartment complex in their police cruiser. Id. ¶¶ 5,
6, 36. Officers Banks and Gadegaard had been disproportionately arresting, citing, and using
force against black citizens. Id. ¶ 62. Like Officer Smith, they had not activated their light bar or
siren on their police cruiser. Id. They also were wearing black uniforms. Id. Officers Banks and

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Gadegaard parked alongside Officer Smith’s police cruiser. Id. ¶ 38. They exited their police
cruiser and ran towards Officer Smith. Id.
Officers Banks and Gadegaard ran past Officer Smith as he was issuing commands to
Wicker. Id. ¶ 39. None of the Officers identified himself to Wicker as being a police officer. Id. ¶
42. Wicker had not raised his pruning saw from his side, lunged toward the Officers, moved
suddenly, possessed a knife or gun, or said anything. Id. ¶¶ 43–46. He allegedly did not hear the
Officers’ commands to “drop it,” and Officer Smith’s flashlight beam had prevented him from
seeing the Officers clearly. Id. ¶ 47. When Wicker finally planted his left foot on the welcome
mat outside the apartment, Officers Banks and Gadegaard opened fire, hitting him. Id. ¶ 40.
Wicker collapsed against the apartment building. Id. ¶ 50. His pruning saw fell by his
side. Id. Blood began pooling around him. Id. Officers Banks and Gadegaard yelled, “Don’t
move.” They approached Wicker and handcuffed him. Id. Officer Gadegaard kicked Wicker’s
pruning saw away from his body. Id. The Officers then called for an ambulance. Id.
Plaintiffs say that Wicker experienced severe pain. Id. ¶ 51. He was conscious as he lay
on the ground handcuffed and bleeding. Id. For the following twelve minutes, the Officer waited
for the EMS. Id. ¶ 52. At one point, one of the Officers noticed that Wicker’s physical condition
was deteriorating. Id. ¶ 53. The Officer radioed for an estimated time of arrival for the EMS. Id.
The Officers learned that the EMS was still about six miles away. Id.
Although the Officers knew that Wicker’s condition was deteriorating and that the EMS
was still in transit, the Officers left Wicker handcuffed and bleeding. Id. ¶ 54. They did not
render any other type of assistance. Id. Wicker eventually died from his injuries. See id. ¶ 69.
Plaintiffs filed the present suit against Officers Smith, Banks, and Gadegaard, as well as
against Steve Conrad, the Chief of the Louisville Metro Police Department, and Louisville Metro

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Government (collectively, “Defendants”). They assert five causes of action against Defendants.
First, they allege under 42 U.S.C. § 1983 that Defendants violated Wicker’s constitutional rights,
including his Fourteenth Amendment right to receive adequate medical care (Count I). Id. ¶¶ 71–
73. Second, they claim that Officers Smith, Banks, and Gadegaard caused the wrongful death of
Wicker, which resulted in damages that are recoverable under Kentucky Revised Statute §
411.130 and Kentucky Revised Statute § 411.133 (Count II). Id. ¶¶ 74–75. Third, Plaintiffs
contend that Officers Banks and Gadegaard intentionally, maliciously, and in bad faith applied
and threatened to apply unlawful and unnecessary force against Wicker, thereby committing the
common law torts of assault and battery (Count III). Id. ¶ 76. Fourth, Plaintiffs assert that
Officers Banks, Gadegaard, and Smith breached their respective duties of reasonable care to
Wicker, causing his injuries and death (Count IV). Id. ¶ 77. Fifth and finally, Plaintiffs maintain
that the negligence of Louisville Metro Government and Conrad in the hiring, training, and
retaining of the Officers was the direct and proximate causes of Wicker’s injuries (Count V). Id.
¶¶ 78–82. Plaintiffs seek compensatory damages, punitive damages, and attorney fees and costs.
Id. at 12–13.
III.

Whether Count I Should Be Partially Dismissed
The Officers now argue that the Court should dismiss Count I to the extent that it alleges

under 42 U.S.C. § 1983 that they violated Wicker’s Fourteenth Amendment right to receive
adequate medical care because they are entitled to qualified immunity. Mem. Supp. Mot.
Dismiss 4–7, ECF No. 32-1. Under Federal Rule of Civil Procedure 12(b)(6), a party may move
to dismiss a cause of action for “failure to state a claim upon which relief can be granted.” To
survive a motion to dismiss, a complaint must contain sufficient facts to state a claim that is
“plausible on its face.” Bell Atl. Corp. v. Twombly, 55 U.S. 544, 570 (2007). A complaint states a

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plausible claim for relief when the court may “draw the reasonable inference that the defendant
is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court is not
required to accept as true legal conclusions or “threadbare recitals of the elements of a cause of
action.” Id. When resolving a motion to dismiss, however, the court must “construe the
complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all
reasonable inferences in favor of the plaintiff.” Wesley v. Campbell, 779 F.3d 421, 428 (6th Cir.
2015) (quoting Directv, Inc. v. Treesch, 487 F.3d 471, 476 (6th Cir. 2007)).
In the context of § 1983 claims, the affirmative defense 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 have
known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). The determination is thus a two-part inquiry: (1) whether the defendant
violated a constitutional right; and (2) whether that right was clearly established. Aldini v.
Johnson, 609 F.3d 858, 863 (6th Cir. 2010). Whether a right was clearly established is a question
of law. Dickerson v. McClellan, 101 F.3d 1151, 1156–57 (6th Cir. 1996). The Court is not
required to undertake this inquiry in sequential order and, instead, may “exercise [its] sound
discretion in deciding which of the two prongs . . . should be addressed first in light of the
circumstances in the particular case at hand.” Pearson, 555 U.S. 223, 236 (2009).
The Officers assert they are entitled to qualified immunity because they did not violate
Wicker’s constitutional right to receive adequate medical care.1 Mem. Supp. Mot. Dismiss 4–7,
ECF No. 32-1. They explain that they promptly called the EMS and thus were not deliberately

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They do not appear to dispute that the Fourteenth Amendment right of pretrial detainees to
adequate medical care was clearly established. See Mem. Supp. Mot. Dismiss 4–7, ECF No. 321.
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indifferent to Wicker’s medical needs. Id. at 4. Plaintiffs contend, however, that, accepting all
factual allegations in the complaint as true, the Officers were deliberately indifferent to Wicker’s
medical needs in spite of their summoning of the EMS, and thus they are not entitled to qualified
immunity. Id. at 9. Resp. Opp. Mot. Dismiss 9, ECF No. 35
Government officials may be held liable for violating the Fourteenth Amendment right of
pretrial detainees to receive adequate medical care if they act with “deliberate indifference to
[the] serious medical needs of those individuals they have apprehended.” Phillips v. Roane Cty.,
Tenn., 534 F.3d 531, 539 (6th Cir. 2008); City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244
(1983). A plaintiff, to successfully prove deliberate indifference, must (1) “show the existence of
a ‘sufficiently serious’ medical need (the objective component)” and (2) “allege facts that, if true,
would demonstrate that the official ‘perceived facts from which to infer substantial risk to the
[individual], that he did in fact draw the inference, and that he then disregarded that risk’ (the
subjective component).” Bell v. Cumberland Cty., 665 F. App’x 421 (6th Cir. 2016) (citing
Phillips, 534 F.3d at 539–40).
An official acts with deliberate indifference if he deliberately denies or delays the
detainee’s access to medical care. Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir.
2004). In comparison, when an official immediately calls for the paramedics and the paramedics
arrive within minutes, he or she does not act with deliberate indifference to the detainee’s
medical needs. Rich v. Mayfield Heights, 955 F.2d 1092, 1098 (6th Cir. 1992); see also Bell, 66
F. App’x at 428 (determining that a police officer who, despite being in an incapacitated state,
called for medical assistance for a suspect did not act with deliberate indifference to the suspect’s
medical needs).

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In this case, Plaintiffs allege in relevant part that after being shot, Wicker collapsed
against the apartment building. Compl. ¶ 50, ECF No. 30. Blood began pooling around him. Id.
Officers Banks and Gadegaard approached him and handcuffed him. Id. The Officers then called
for an ambulance. Id. The Officers waited for the EMS for twelve minutes. Id. ¶ 52. At one point,
one of the Officers noticed that Wicker’s physical condition was deteriorating. Id. ¶ 53. He
radioed for an estimated time of arrival for the EMS. Id. The Officers learned that the EMS was
still about six miles away. Id.
Even taking all reasonable inferences in favor of Plaintiffs, these allegations fail to
demonstrate that the Officers were deliberately indifferent to Wicker’s medical needs. Instead,
these allegations indicate that the Officers perceived that Wicker needed medical help,
summoned medical help, and followed up on their previous call for medical help. Given that the
allegations fail to show that the Officers violated Wicker’s Fourteenth Amendment right to
receive adequate medical care, the Officers are entitled to qualified immunity on the issue. The
Court will accordingly grant their partial motion to dismiss Count I.
IV.

Whether the Officers’ Motion for a More Definite Statement Should Be Granted
The Officers also request that the Court order under Federal Rule of Civil Procedure

12(e) that Plaintiffs provide a more definite statement of Count IV, which asserts that they
“breached their respective duties of reasonable care to Darnell Wicker causing his injuries and
death.” Id. ¶ 77. Rule 12(e) provides that a “party may move for a more definite statement of a
pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the
party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). “[A] motion for more definite
statement is designed to strike at unintelligibility rather than simple want of detail…. [It] must be
denied where the subject complaint is not so vague or ambiguous as to make it unreasonable to

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use pretrial devices to fill any possible gaps in detail.” Midgett v. KSP Head Chaplain, No. 5:11CV-P132-R, 2012 U.S. Dist. LEXIS 132186, at *4 (W.D. Ky. Sept. 17, 2012) (alterations in
original) (citing Fed. Ins. Co. v. Webne, 513 F. Supp. 2d 921, 924 (N.D. Ohio 2007)) (internal
quotation marks omitted). “Federal courts generally disfavor motions for more definite
statements[, and i]n view of the notice pleading standards of Rule 8(a)(2) and the opportunity for
extensive pretrial discovery, courts rarely grant such motions.” Id. (alteration in original). As
such, a “Rule 12(e) motion based [only] on the belief that a better affirmative pleading by the
opposing party will enable [the movant] to provide a more enlightening or accurate response will
be denied.” Thorpe v. Wal-Mart Stores, Inc., No. 5:16CV1247, 2016 WL 4098426, at *1 (N.D.
Ohio Aug. 2, 2016).
The Officers summarily argue that their motion for a more definite statement should be
granted because Count IV lacks sufficient detail. Mem. Supp. Mot. Definite Statement 8, ECF
No. 33-1. They request “that Plaintiffs be required to identify the specific actions they contend
breached [their] duty of care, so that [they] can decide whether to seek at least a partial dismissal
of the Plaintiffs’ negligence claims.” Id. Plaintiffs maintain, however, that Count IV is clear and
that the specifics of the claim can be determined in pretrial discovery. Resp. Opp. Mot. Dismiss
12, ECF No. 35.
Given that the Officers’ motion for a more definite statement is intended to strike at want
of detail, not at vagueness, a Rule 12(e) motion is inappropriate. See Midgett, 2012 U.S. Dist.
LEXIS 132186, at *4. The details of the allegations in Count IV likely can be determined
through discovery. Therefore, the Court declines to grant the Officers’ motion for a more definite
statement.

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IV.

Conclusion
The Court will grant the Officers’ joint motion to dismiss Count I under Federal Rule of

Civil Procedure 12(b)(6). Count I will be dismissed with prejudice to the extent that it alleges
that the Officers violated Wicker’s Fourteenth Amendment right to receive adequate medical
care. The Court will deny the Officers’ joint motion for a more definite statement under Federal
Rule of Civil Procedure 12(e). An order will be entered in accordance with this memorandum
opinion.

April 20, 2017

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