Mills v. Louisville Metropolitan Government et al

Filing 25

MEMORANDUM OPINION AND ORDER by Judge Claria Horn Boom on 3/29/2019 - Defendants' Motion to Dismiss [R. 13 ] is DENIED AS MOOT. Mills's Motion for Summary Judgment [R. 14 ] is DENIED. Defendants' Motion for Summary Judgment on a ll claims [R. 17 ] is GRANTED. Mills's Motion to Strike Defendants' Untimely Motion for Summary Judgment [R. 22 ] is DENIED. A separate Judgment will be entered consistent with this Order. Please see Memorandum Opinion and Order for further details. cc: Counsel of Record (KD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
KEVIN GERARD MILLS,

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Plaintiff,
v.
LOUISVILLE METROPOLITAN
GOVERNMENT, et al.,
Defendants.

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Civil Action No. 3:17-CV-552-CHB

MEMORANDUM OPINION AND
ORDER

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This matter is before the Court on Defendants’ Motion to Dismiss, on the parties’ cross
Motions for Summary Judgment, and on Plaintiff’s Motion to Strike Defendants’ Untimely
Motion for Summary Judgment. [R. 13; R.14; R. 17; R. 22] Defendants Louisville Metropolitan
Government (“Louisville Metro”) and Anthony Summerall (“Summerall”) moved to dismiss the
case for failure to prosecute and also moved for summary judgment on all claims. Plaintiff
Kevin Gerard Mills (“Mills”) moved for partial summary judgment on the issue of liability, and
also moved to strike Defendants’ Cross-Motion for Summary Judgement, claiming that it was
untimely filed. For the reasons stated below, the Court will grant Defendants’ Cross Motion for
Summary Judgment on all claims, will deny Mills’s Motion for Summary Judgment, and deny
the remaining motions as moot.
I.

Factual Background

The parties provide widely diverging accounts concerning the incidents that led to
Mills’s arrest and which form the basis of his claims. The following facts are not in dispute. On
or about September 11, 2016, Summerall, a patrolman with the Louisville Metro Police
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Department (“LMPD”), responded to a call of a domestic disturbance at a local residence in
Louisville, Kentucky. The residence belonged to Mills, who shared the home with Janice
Howard (“Howard”), his girlfriend. Howard made the call to the LMPD, claiming domestic
abuse.
This is where the parties’ accounts diverge. Defendants filed a DVD containing the
video from Officer Summerall’s body-cam of the incident in support of their Cross Motion for
Summary Judgment. [R. 17-3, Ex. 2, Officer Video-Cam at file nos. 1-6] The Court has
reviewed the video, which includes all the events in question, beginning with Summerall’s
arrival at Plaintiff’s residence and continuing through Plaintiff’s arrest. Defendants also filed an
affidavit of Officer Summerall, which conforms to the facts presented by his body-cam video.
[R. 17-2, Aff. Anthony Summerall] As discussed below, “where, as here, there is ‘a videotape
capturing the events in question,’ the court must ‘view[] the facts in the light depicted by the
videotape.’” Green v. Throckmorton, 681 F.3d 853, 859 (6th Cir. 2012) (quoting Scott v. Harris,
550 U.S. 372, 378–81 (2007)) (alteration in Green).
The Court finds the video depicts the following facts. Officer Summerall arrived at
Mills’s residence, and was invited in by Howard. [R. 17-3, Ex. 2, Officer Video-Cam at file no.
1, 0:55 – 10:12] Mills did not object to Summerall entering the residence. Id. When Summerall
asked what was going on, Mills and Howard began arguing, or continued an argument that they
had been having just prior to Summerall’s arrival. Id. Summerall asked Howard to come to the
other side of the room away from Mills. Id. When Summerall asked Mills to identify himself,
Mills immediately informed Summerall that he was “a police officer,” though not with the
LMPD. Id. Summerall asked to see his identification, and Mills provided his driver’s license. Id.
Summerall then asked Howard to come outside with him, separating the two. Id. While outside

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the residence, Summerall asked Howard to recount what had happened. Id. Howard appeared
visibly shaken. Id. She began crying early on during her conversation with Summerall, making it
difficult to hear everything that was said. Id. However, Howard recounted other alleged
instances of Mills’s abuse. Id. at 6:38 – 10:12. After listening to Howard, Summerall returned
briefly to his LMPD vehicle and called his sergeant, Michelle Kline. Id. at 3:53. Summerall
informed Sergeant Kline that Mills was an “active police officer” and that Howard was “all
bruised up, marked up, hair pulled, shirt torn off, the house is a mess . . . He’s saying he didn’t
do anything, but she has the bruises . . .” Id. at 3:53 – 4:20. Sergeant Kline instructed Summerall
to “stand by” and not to “lock him up yet.” Id. at 4:54. Summerall then took photographs of
Howard’s bruising and torn hair. Id. at 11:00 – 13:08.
Summerall then spoke with Mills. Id. at 15:05 – 20:08. During this exchange, Mills
informed Summerall that the two had just had an argument after Howard refused to provide
Mills with his truck keys. Id. Mills denied assaulting Howard. Id. He claimed Howard
fabricated the allegations of assault in response to his asking her to leave his residence. Id.
Summerall then took pictures of Mills and some torn clothing that resulted from the altercation.
Id. At one point, Mills volunteered, “I might have ripped her shirt while she was in the process
of ripping mine.” Id. at 24:30. Summerall then left the residence, and asked Mills to have a seat.
Id. During this interview, Summerall made no physical contact with Mills.
When Summerall returned outside, Sergeant Kline had arrived on the scene and was
reviewing something on a cell phone. Id. at 26:26 through 30:31. Later footage reveals that
Sergeant Kline was playing back a recording Howard had made of the altercation that took place
between Mills and Howard. Id. at file no. 2, 00:19 – 3:36.

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Summerall’s body-cam video depicts long stretches of time where he remained outside
the residence while Sergeant Kline questioned Mills inside. Id. through file no. 3, 4:10.
Summerall only entered the residence twice during this time. He entered once to ask Mills if
Howard could provide water to her dogs, then returned outside to remain with Howard. Id. at
4:10-4:45. Another time, Summerall entered the residence to join the other responding
patrolman, Officer Sanders, who had been waiting with Mills. Summerall never touched
Plaintiff during these periods. Later, Sergeant Kline can be seen discussing something with
Howard. Id. at file no. 4, 21:58. Sergeant Kline then conferred with Summerall one final time,
explaining what the charges against Mills would be, and requested that Summerall “watch me,”
presumably to provide support for her during the arrest Id. at 24:24 – 25:05. Sergeant Kline
advised Summerall that Mills would be charged with harassment with physical contact and
terroristic threatening. Id. Sergeant Kline and Summerall then re-entered Howard’s residence.
Id. at 25:16. Sergeant Kline informed Mills that he was under arrest and placed him in
handcuffs. Id. at 25:22 – 28:27. She then removed Mills from the residence, followed by Officer
Sanders and Summerall, and placed him in her LMPD vehicle. Id. Summerall was the last to
leave the residence. Id. Throughout the arrest, Summerall stood apart from Mills and never
touched him. Id.
Following Mills’s arrest, Summerall played Howard’s recording of the altercation again
while completing the Arrest Citation. Id. at file no. 5, 4:34 – 10:30. During an explicit exchange,
Mills clearly threatens Howard and says “If you don’t give me the keys to my truck right now . .
. hurt you is not what’s going to happen. Kill you might happen.” Id. at 5:03 – 5:38. Summerall
then forwarded to another portion of the recording wherein Howard can be heard screaming,
“Get off of me!” repeatedly. Id. at 8:53.

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Summerall prepared the Arrest Citation, charging Mills with violations of KY. Rev. St. §
525.070 (Harassment – Physical Contact – No Injury) and § 508.078 (Terroristic Threatening,
2nd Degree). [R. 17-4] Officer Sanders prepared the JC-3 form that accompanied Mills’s Arrest
Citation and this form included a charge for “Terroristic Threatening, 3rd Degree,” [in violation
of KY. Rev. St. § 508.080]. Id. As Defendants explain, Summerall’s Arrest Citation contained a
typo. [R. 17-1, at p. 3; R. 17-2, Aff. Anthony Summerall] Mills focuses much of his argument
on the fact that one of the statutes relied upon (Harassment, KY. Rev. St. § 525.070) includes the
phrase “no injury,” as well as the fact that the other statutes cited in Summerall’s Arrest Citation
is Terroristic Threatening, 2nd Degree. [R. 14-4, Pl. Mem. in Supp. of Mot. Summ. J. (“Pl. Mem.
in Supp.”) at p. 2; R. 23-1, at p. 2] Mills alleges that based on the statutes cited in Summerall’s
Arrest Citation, Summerall lacked probable cause to arrest him. [R. 23-1, at p. 4] However, as
explained below, neither the statutes listed on his Arrest Citation nor the discrepancy between
the two documents affects the Court’s ruling on any of the pending motions, and is therefore not
material to the Court’s analysis.
II.

Procedural Background

Mills filed this action on September 11, 2017 alleging: (1) a Section 1983 claim against
Summerall for Fourth and Fourteenth Amendment violations, (2) state law claims against
Summerall, (3) a Section 1983 claim against Louisville Metro for failing to “adequately hire,
train and supervise its police officers, including Defendant Summerall, as to the proper use of
probable cause, force and arrest . .”; and 4) a state law claim of negligent hiring against
Louisville Metro based on Summerall’s conduct during the arrest. [R. 1, Compl., at ¶¶ 7-15, 17,
20-21, 23, 24, 27] Mills also sought punitive damages against both Defendants. Id. at ¶ 29.

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Following the discovery deadline, the Court set a telephonic status conference for July
11, 2018. [R. 11] Counsel for Mills failed to appear at this status conference, so the status
conference was not held. [R. 12] The Court ordered counsel for Mills to file a report on the
status of discovery no later than July 23, 2018. Id. Counsel for Mills failed to do so. Thereafter,
the parties filed a flurry of motions. On July 30, 2018, Defendants filed a Motion to Dismiss
pursuant to Fed. R. Civ. P. 41(b). [R. 13] That same day, and presumably in response, Mills
filed a Motion for Summary Judgment on the issue of liability as well as a late Status Report in
an attempt to comply with the Court’s July 16, 2018 Order. [R. 14; R. 15] Mills attached his
affidavit and the Arrest Citation in support of his Motion for Summary Judgment. [R. 14-2, Pl.
Aff.; R. 14-3] In his untimely Status Report, Mills advised the Court that he had a “pending
summary judgment motion” and “Plaintiff is prepared and ready for trial.” [R. 15] Mills failed to
address the Court’s Order regarding the status of discovery. See [R. 12]
Mills then filed a response to the Defendants’ Motion to Dismiss on August 20, 2018. [R.
16] That same day, Defendants filed a Cross-Motion for Summary Judgment and In Response to
Mills’s Motion for Summary Judgment. 1 [R. 17] For support, Defendants filed the affidavit of
Anthony Summerall, a DVD Exhibit of Officer Summerall’s body-cam video capturing the
incident in question, the post-arrest citations, and subsequent court filings from Mills’s criminal
proceedings. [R. 17-2, Summerall Aff.; R. 17-3, Ex. 2, Officer Video-Cam., nos. 1-6; R. 17-4; R.
17-5; R. 17-6] Mills then filed a Motion to Strike Defendants’ Untimely Motion for Summary
Judgment (“Motion to Strike”) before filing a Response in opposition. [R. 22; R. 23] Defendants
filed a Response in opposition to Mills’s Motion to Strike. [R. 24]

1

It appears [R. 18] is a duplicate entry of [R. 17] and so will be disregarded.

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III.
A.

Analysis

Plaintiff’s Motion to Strike
Before addressing the merits of the parties’ cross Motions for Summary Judgment, the

Court will address Mills’s Motion to Strike Defendants’ Cross Motion for Summary Judgment as
untimely. [R. 22] Defendants filed their Cross Motion for Summary Judgment on August 20,
2018. [R. 17] Per the Court’s Scheduling Order, dispositive motions were due on July 30, 2018.
See [R. 9] First, pursuant to the Rule 16, a schedule may be modified for “good cause and with
the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The Court finds good cause exists here. Mills
created these issues by the manner in which he prosecuted his case. When Defendants filed their
Cross Motion for Summary Judgment and Response to Mills’s Motion for Summary Judgment,
Mills had failed to conduct any discovery in this matter; failed to attend the parties’ telephonic
status conference [R. 11]; failed to follow the Court’s directives following this conference [R.
12]; then failed to fully comply when he filed an untimely Status Report [R. 15]. At the time his
Motion for Summary Judgment was filed, Defendants had pending a Motion to Dismiss for
failure to prosecute. Mills failed to respond to this motion before filing his own Motion for
Summary Judgment. Considering all of this, Defendants believed they had legitimate grounds to
move for summary judgment on all claims. [R. 24, at p. 1]
Second, Mills’s Motion to Strike ignores his own untimely practice in this case. Mills’s
Motion to Strike was filed 109 days after Defendants’ Cross-Motion for Summary Judgment was
filed. [R. 17; R. 22] Further, Mills’s Reply in Support of his Motion for Summary Judgment was
filed 88 days late in violation of LR 7.1(c) - - (it was due on September 4, 2018, and was filed on
December 1, 2018). [R. 21] Similarly, Mills’s Response to Defendants’ Cross Motion for
Summary Judgment was due on Monday, September 10, 2018, but was not filed until December
17, 2018. [R. 24] Mills cannot use the Scheduling Order as both sword and shield when he
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himself wholly disregarded the Court’s deadlines and Orders. Therefore, the Court finds good
cause to modify the Scheduling Order. Defendants’ Cross Motion for Summary Judgment will
be deemed timely filed. The Motion to Strike is denied.
B.

Standard of Review – Summary Judgment
The standard for summary judgment is well known. Summary judgment is appropriate

when 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. In considering a motion for summary judgment, the Court
must construe the evidence and draw all reasonable inferences in favor of the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Where the record
taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
‘genuine issue for trial.’” Matsushita, 475 U.S. at 586–587 (citation omitted). “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson, 477 U.S. at 247–248 (emphasis in original). A fact is
“material” if the underlying substantive law identifies the fact as critical. Anderson, 477 U.S. at
248. Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Id.
Where, as here, there is “a videotape capturing the events in question,” the Court must
“view[ ] the facts in the light depicted by the videotape.” Scott, 550 U.S. at 378–81. When
opposing parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment. Scott, 550 U.S. at 380–81. Still, “[e]ven

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if part of [a party]’s testimony is blatantly contradicted by [an] audio [or video] recording, that
does not permit the district court to discredit his entire version of the events.” Coble v. City of
White House, 634 F.3d 865, 870 (6th Cir. 2011). Even if a recording blatantly contradicts a
party’s “[exact] version of the events,” or certain parts of his version, that alone is not fatal.
Hanson v. Madison Cty. Det. Ctr., 736 F. App’x 521, 527 (6th Cir. 2018). A recording must
blatantly contradict a party’s “entire version of the events” in material respects to each claim for
the Court to disregard Mills’s version of the facts on summary judgment. Id. (citing Coble, 634
F.3d at 870) (emphasis in Hanson).
Finally, the Court has no “duty to search the entire record to establish that it is bereft of a
genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.
1989). That is, 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. In re Morris, 260 F.3d 654, 665 (6th Cir. 2001).
To support his factual background, Mills attached his affidavit and the Arrest Citation
following the incident. [R. 14-2, Pl. Aff.; R. 14-3] However, Mills’s affidavit does not satisfy
the requirements of Fed. R. Civ. P. 56(e). Under Rule 56(e) of the Federal Rules of Civil
Procedure, “affidavits shall be made on personal knowledge [and] shall set forth such facts as
would be admissible in evidence.” Fed. R. Civ. P. 56(e). “It is well settled that courts should
disregard conclusions of law (or ‘ultimate fact’) found in affidavits” submitted for summary
judgment. F.R.C. Int’l, Inc. v. United States, 278 F.3d 641, 643 (6th Cir. 2002). Here, Mills’s
affidavit did nothing more than reach a series of legal conclusions, essentially reciting the claims
against Defendants from his Complaint. As the affidavit fails to set forth any other facts, the
Court disregards this affidavit in its entirety. Fed. R. Civ. P. 56(e). Mills has taken no discovery

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and presents no other evidence to support his Motion for Summary Judgment. After reviewing
the body-cam video of Mills’s arrest, the Court concludes that Mills’s version of events is so
utterly discredited that no reasonable jury could have believed him. Scott, 550 U.S. at 380–81.
Therefore, the Court need not adopt Mills’s version of the facts.
C.

Discussion – Motions for Summary Judgment
1.

Defendants’ Cross Motion for Summary Judgment

Defendants move for summary judgment of all claims asserted by Mills. In his
Complaint, Mills alleges that Summerall’s arrest constitutes Section 1983 violations of his
Fourth and Fourteenth Amendment rights against unreasonable searches and seizures of his
person, as well as state law torts of assault, battery, outrageous conduct, and/or intentional
infliction of emotional distress, and constitutional and state law claims for negligent training and
hiring practices by Louisville Metro. [R. 1, Compl., at ¶¶ 17, 20-21, 23, 24, 27] The gist of
Mills’s claim is that Summerall, not Sergeant Kline, arrested Mills without probable cause, and
that Louisville Metro is liable for both constitutional and state law claims for its failure to
properly hire and supervise Summerall. See generally [R. 14-4, Pl. Mem. in Supp., at p. 2; R. 21]
a.

Constitutional Claims Against Summerall

The Court construes Mills’s constitutional claims against Summerall brought under
Section 1983 as an improper arrest and detention in violation of the Fourth Amendment. Mills
has not pointed to a specific substantive or procedural right that Summerall violated under the
Fourteenth Amendment, and the Court will not endeavor to do that for him on summary
judgment. Carlisle v. Beer, No. CIV.A. 05-59-DLB-JGW, 2013 WL 6834809, at *3 (E.D. Ky.
Dec. 20, 2013) (citing McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)) (“It is not

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sufficient for a party to mention a possible argument in the most skeletal way, leaving the court
to . . . put flesh on its bones.”).
The Fourth Amendment protects the right of individuals to be free from improper arrest
and detention. U.S. CONST. amend. IV However, it is well settled that “a warrantless arrest by a
law officer is reasonable under the Fourth Amendment where there is probable cause to believe
that a criminal offense has been or is being committed,” Devenpeck v. Alford, 543 U.S. 146, 152
(2004), and the “validity of the arrest does not depend on whether the suspect actually committed
a crime.” Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). Accordingly, in order for Mills’s
wrongful arrest claim to succeed under Section 1983, he must prove that the arresting officers
lacked probable cause. Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007) (citing Fridley v.
Horrighs, 291 F.3d 867, 872 (6th Cir. 2002)) (internal citation omitted).
“Probable cause exists if the facts and circumstances known to the officer warrant a
prudent man in believing that the offense has been committed.” Logsdon, 492 F.3d at 341
(quoting Henry v. United States, 361 U.S. 98, 102 (1959)) (internal quotations omitted). The
probable cause inquiry “‘depends upon the reasonable conclusion to be drawn from the facts
known to the arresting officer at the time of the arrest,’ where supported by ‘reasonably
trustworthy information.’” Id. (citation omitted). An officer who intends to execute a warrantless
arrest is not tasked with an “overly-burdensome duty to investigate.” Id. In initially determining
probable cause, an officer need not “investigate independently every claim of innocence.” Id.
(citing Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000)). “And after the officer
determines, on the basis of the facts and circumstances known to him, that probable cause exists,
the officer has no further duty to investigate or to search for exculpatory evidence.” Id.
However, the officer's initial probable cause determination must be based on both “inculpatory

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and exculpatory evidence known to [him],” and the officer “cannot simply turn a blind eye
toward potentially exculpatory evidence.” Id. (citations and internal quotations omitted).
After reviewing the video capturing the event in question, the Court agrees with
Defendants that there is no genuine issue of material fact. First, the video clearly demonstrates
that Sergeant Kline, not Summerall, arrested Mills. Second, the Court finds that his arrest,
whether by Officer Summerall or Sergeant Kline, or both, was supported by probable cause.
Pursuant to KY. Rev. Stat. § 431.005:
(2) (a) Any peace officer may arrest a person without warrant when the peace
officer has probable cause to believe that the person has intentionally or wantonly
caused physical injury to a family member, member of an unmarried couple, or
another person with whom the person was or is in a dating relationship.
KY. Rev. Stat. § 431.005(2)(a). Based on the post-arrest citations, both Summerall and Officer
Sanders noted that “[t]he victim stated the perp pulled her hair causing injury to her head.” [R.
17-4] Further, when Summerall first contacted Sergeant Kline regarding the incident, he
mentioned that Howard was “all bruised up, marked up, hair pulled, shirt torn off, the house is a
mess.” [R. 17-3, Ex. 2, Officer Video-Cam, no. 1, 3:53] This version comports with the Court’s
review of the video as well as the explicit audio recording Howard made that captured the
altercation. Whether Mills was ultimately charged with causing physical injury is irrelevant.
Because the video and Summerall’s affidavit clearly demonstrate there was an injury and that the
officers had probable cause to arrest Mills, and because he has provided no other evidence to
support his claim of improper arrest, summary judgment will be awarded to Defendants
concerning Mills’s constitutional claims against Summerall.
Even after the video was submitted, Mills still argued that Summerall was the arresting
officer, not Sergeant Kline. However, this is not a genuine issue of material fact, since Mills’s
version of events is so utterly discredited by the record that no reasonable jury could have
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believed him. Scott, 550 U.S. 380–81. In addition, Mills attempts to create factual issues by
pointing to the discrepancies in the Arrest Citations. As explained above, Sergeant Kline had
probable cause to arrest Mills regardless of what the post-arrest citations indicated or what crime
he was ultimately charged with. Moreover, as this typo was committed following Plaintiff’s
arrest (which was already supported by probable cause), this fact is not material to any of
Plaintiff’s claims. Defendants submitted the Affidavit of Summerall and the irrefutable bodycam video. This video confirms that Sergeant Kline made the ultimate decision to arrest Mills,
and this decision was supported by probable cause. The responding officers listened carefully to
both Mills’s and Howard’s statements, including Mills’s admission that he “might have torn
[Howard’s] clothes” (a fact that Mills disputes in his Response and Motion for Summary
Judgment), and reviewed the explicit audio recording of the altercation. The record contradicts
Mills’s “entire version of the events” in material respects to each claim. Hanson, 736 Fed.App’x
at 527 (citing Coble, 634 F.3d at 870). Defendants’ Cross Motion for Summary Judgment on
this claim is granted.
b.

State Law Claims against Summerall

Defendants seek summary judgment on Mills’s state law claims, though the same were
not specifically addressed in their motion. Mills also failed to address these claims in any
meaningful way in his Response and Motion for Summary Judgment. As discussed below,
Defendants’ motion will be granted on these claims on the basis that Mills has failed to
adequately support his claims against Summerall for assault, battery, outrageous conduct, and/or
intentional infliction of emotional distress.
In Kentucky, “[a]ssault is a tort which merely requires the threat of unwanted touching of
the victim, while battery requires an actual unwanted touching.” Banks v. Fritsch, 39 S.W.3d

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474, 480 (Ky. Ct. App. 2001). Battery under Kentucky law is any “unlawful touching of the
person of another, either by the aggressor himself, or by any substance set in motion by him.”
Vitale v. Henchey, 24 S.W.3d 651, 657 (Ky. 2000). In Kentucky, the tort of intentional infliction
of emotional distress (IIED) is also referred to as outrageous conduct. “Kentucky still takes a
very restrictive/limited approach to the tort of outrageous conduct, which covers only outrageous
and intolerable conduct.” Marshall v. The Rawlings Co. LLC, 854 F.3d 368, 385 (6th Cir. 2017)
(quoting Wathen v. Gen. Elec. Co., 115 F.3d 400, 407 (6th Cir. 1997) (internal quotation marks
and citation omitted). In order to prove an IIED claim, Mills “must show that [Defendants’]
conduct has been so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Id. (citing Wathen, 115 F.3d at 407) (internal quotation marks and citation
omitted); see also Brewer v. Hillard, 15 S.W.3d 1, 6–7 (Ky. Ct. App. 1999).
Mills has done literally nothing to substantiate these claims throughout the entire course
of this case. When the Court directed Mills to provide a report with the status of discovery, he
replied only that he was “ready for trial.” [R. 15] The Court construed this response to mean that
Mills was satisfied with the evidence he had prepared for his case, and was ready to defend a
motion for summary judgment from Defendants.
When Defendants inevitably filed a Cross Motion for Summary Judgment, they supplied
the aforementioned video in support, which confirms that Summerall never touched Mills during
the course of his arrest. It also clearly demonstrates that Summerall never raised his voice to
Mills; his actions were professional, courteous, and patient. When Defendants filed their Cross
Motion for Summary Judgment on all claims, Mills had an “affirmative duty to direct the Court’s
attention to those specific portions of the record upon which he seeks to rely to create a genuine

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issue of material fact.” In re Morris, 260 F.3d at 665. He did not. Having no “duty to search the
entire record to establish that it is bereft of a genuine issue of material fact,” Street, 886 F.2d at
1479-80, the Court accepts the evidence presented by the video. The Court grants summary
judgment for Defendants as to Mills’s state law claims.
c.

Monell Claim against Louisville Metro

Defendants also move for summary judgment against Mills for his claims against
Louisville Metro. Mills alleges a separate Section 1983 claim against Louisville Metro for
failing to “adequately hire, train and supervise its police officers, including Defendant
Summerall, as to the proper use of probable cause, force and arrest towards citizens of the
Commonwealth of Kentucky.” [R. 1, Compl., at ¶ 23] Mills asserts that Summerall’s violation
of Mills’s constitutional rights “amounts to an execution and/or implementation of a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by the officers
of the Louisville Metro Police Department.” Id. at ¶ 24]
To prevail on a Section 1983 Monell claim against a city or county under the Fourth
Amendment, Mills must show “(1) that [he] suffered a constitutional violation and (2) that a
municipal policy or custom directly caused the violation.” Hardrick v. City of Detroit, Michigan,
876 F.3d 238, 243 (6th Cir. 2017) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-92
(1978)). The question for the Court at the summary judgment phase of the case is “whether
[Mills has] produced sufficient evidence for a reasonable jury to find in [his] favor.” Id.
Mills has simply argued too little with respect to this claim. Mills’s theory for a Monell
violation attaches to Summerall’s conduct, claiming violations of his constitutional rights. As
explained above, however, both Summerall and Sergeant Kline had probable cause to effectuate
his arrest. Moreover, Mills has put forth no evidence whatsoever to support these claims. Zero.

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Because Mills can demonstrate no constitutional violation, and the record is devoid of any facts
supporting this claim, Defendant Louisville Metro will be granted summary judgment on this
claim.
d.

Negligent Hiring Claim

Mills also alleges a state law claim of negligent hiring against Louisville Metro based on
Summerall’s conduct during the arrest. [R. 1, Compl., ¶ 27] Just like Mills’s state law claims
against Summerall, Mills failed to address this claim in any meaningful way in his Response or
Motion for Summary Judgment. Defendants’ motion will be granted on this claim, on the basis
that Mills has failed to adequately support his claim.
“Under Kentucky law, the elements of negligent hiring and retention are: (1) the
employer knew or reasonably should have known that an employee was unfit for the job for
which he was employed, and (2) the employee's placement or retention at that job created an
unreasonable risk of harm to the plaintiff.” Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705,
733 (Ky. 2009) (citing Oakley v. Flor–Shin, Inc., 964 S.W.2d 438, 442 (Ky.App.1998)).
Mills makes only cursory reference to this claim in the Introduction to his Response to
Defendants’ Cross Motion to Summary Judgment. See [R. 23-1, at p. 1] Otherwise, he fails to
develop this argument in any meaningful way. As he has not put forth one piece of evidence in
response to Defendants’ well-supported Cross Motion for Summary Judgment, Defendants are
granted summary judgment on this state law claim as well.
e.

Punitive Damages

Because Defendants have demonstrated that no genuine issue of material fact exists with
respect to any of the claims against them, Mills’s remaining claim for punitive damages also
fails. Summary judgment is granted for Defendants on this claim.

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2.

Mills’s Motion for Summary Judgment

Typically, the Court applies the same standard of review to cross-motions for summary
judgment as when only one party files. McKim v. New Market Techs., Inc., 370 F. App’x 600,
603 (6th. Cir. 2010). The Court evaluates each motion on its own merits, drawing all reasonable
inferences against the party whose motion is under consideration. Beal ex rel. Putnam v.
Walgreen Co., 408 F. App’x 898, 902 (6th Cir. 2010). And while summary judgment for one
side is not necessarily appropriate simply because the parties file cross-motions for summary
judgment, B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 593 (6th Cir. 2001) (footnote
omitted), the existence of the video in this case shifts the Court’s analytical framework when
addressing the parties’ cross-motions. Because the video in this case decidedly contradicts
Mills’s “entire version of events” in material respects to each claim, the Court may disregard
Mills’s version of the facts on summary judgment. Hanson, 736 F. App’x at 527 (citing Coble,
634 F.3d at 870). Having reviewed the record as a whole, including the video capturing the
events in question, the Court concludes there is no genuine issue that remains for trial, and the
Plaintiff’s Motion for Summary Judgment is denied.
IV.

Conclusion
For the foregoing reasons the Court grants Defendants’ Cross-Motion for Summary

Judgment on all of Mills’s claims. Accordingly, and with the Court being otherwise sufficiently
advised;
IT IS HEREBY ORDERED as follows:
1.

Defendants’ Motion to Dismiss [R. 13] is DENIED AS MOOT.

2.

Mills’s Motion for Summary Judgment [R. 14] is DENIED.

3.

Defendants’ Motion for Summary Judgment on all claims [R. 17] is GRANTED.

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4.

Mills’s Motion to Strike Defendants’ Untimely Motion for Summary Judgment

[R. 22] is DENIED.
5.

A separate Judgment will be entered consistent with this Order.

March 29, 2019

cc:

Counsel of record

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