Toon v. City of Hopkinsville et al
MEMORANDUM OPINION & ORDER granting in part and denying in part 71 Motion to Alter Judgment. Signed by Chief Judge Thomas B. Russell on 5/17/2011. cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CASE NO. 5:09-CV-37
STEVEN GLEN TOON
THE CITY OF HOPKINSVILLE;
JAY R. PHELPS; MIKE FELTS;
and BRANDON TEDFORD
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendant Brandon Tedford’s Motion to Alter,
Amend, and/or Vacate Pursuant to Fed. R. Civ. P. 59 (Docket #71). Plaintiff has responded
(Docket #72). Defendant Tedford has replied (Docket #73). This matter is now ripe for
adjudication. For the following reasons, Defendant Tedford’s motion is GRANTED IN PART
and DENIED IN PART.
This case involves an incident that occurred on the evening of March 7, 2008, between
Plaintiff Steven Glen Toon and three officers of the Hopkinsville Police Department. In the end,
Plaintiff was tased twice and placed under arrest. Plaintiff filed suit in this Court on March 6,
2009, against Officers Jay Phelps, Mike Felts, and Brandon Tedford, and the City of
Hopkinsville asserting claims of excessive force, municipal liability, assault and battery, and
intentional infliction of emotional distress. This matter is currently set for trial on August 9,
Defendants moved for summary judgment on November 15, 2010. The Court granted in
part and denied in part Defendants’ motion on April 14, 2011. The Court granted summary
judgment as to Plaintiff’s intentional infliction of emotional distress claim, but found that a
genuine issue of material fact existed as to Plaintiff’s Section 1983 excessive force claims
against all Defendants and his assault and/or battery claims against the three police officers.
Defendant Brandon Tedford now asks the Court to reconsider its ruling.
A court may grant a motion to alter or amend pursuant to Federal Rule of Civil Procedure
59(e) “if there is a clear error of law, newly discovered evidence, an intervening change in
controlling law or to prevent manifest injustice.” GenCorp v. Am. Int’l, 178 F.3d 804, 834 (6th
Cir. 1999) (internal citations omitted). “[C]ourts typically will consider additional evidence
accompanying a Rule 59(e) motion only when it has been newly discovered, and that to
[c]onstitute ‘newly discovered evidence,’ the evidence must have been previously unavailable.”
Id. A Rule 59(e) motion does not provide plaintiffs another opportunity to argue the merits of
their case. Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.
1998). A party must file a motion to alter or amend a judgment under Rule 59 within 28 days
after entry of judgment. Fed. R. Civ. P. 59(e). Defendant Tedford’s motion was timely filed.
Defendant Tedford asks the Court to reconsider its ruling because there is no genuine
issue of material fact that he was the one who tased Plaintiff or directed any other officer to tase
Plaintiff. Thus, Tedford believes his role in the events of March 7, 2008, is not at issue in this
case and he is entitled to summary judgment. In contrast, Plaintiff argues that “Defendant
Tedford acted in concert and cooperation with Defendant Phelps and Defendant Felts.” Pl.
Resp., DN 72, p. 2. Plaintiff notes that the issue before the Court is whether Plaintiff was
deprived of his constitutional rights and/or subjected to assault and battery by the police officers’
collective conduct in arresting him. Plaintiff notes that Tedford held Toon while he was tased.
The Court’s April 14, 2011, Memorandum Opinion and Order noted that Officer Tedford
arrived as Officer Phelps was administering field sobriety tests on Toon. Officer Tedford
assisted Officer Phelps near the driver’s side hood of the Officer’ Phelps’s police vehicle by
grabbing Toon’s left arm. Toon was pushed down onto the hood of the vehicle by both officers.
Officer Tedford testified that he had control of Toon’s left wrist during the incident. Officer
Felts was the officer who fired the taser and then drive stunned Toon following Officer Phelps’s
direction to tase Toon again. The evidence indicates that Officer Tedford remained behind Toon
holding onto his left arm while he was tased.
Under 42 U.S.C. § 1983, a police officer may be held liable for the use of excessive force
if he or she “(1) actively participated in the use of excessive force, (2) supervised the officer who
used excessive force, or (3) owed the victim a duty of protection against the use of excessive
force.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997) (citing Durham v. Nu’Man, 97 F.3d
862, 866-67 (6th Cir. 1996), cert. denied sub nom., 520 U.S. 1157 (1997)). There is no
allegation that Officer Tedford supervised either Officer Phelps or Officer Felts. Thus, Plaintiff
must either establish that Officer Tedford actively participated in the use of excessive force or
owed Plaintiff a duty of protection. To hold a police officer liable under the third theory,
Plaintiff must show that: “(1) the officer observed or had reason to know that excessive force
would be or was being used, and (2) the officer had both the opportunity and the means to
prevent the harm from occurring.” Id. (citing Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.
Plaintiff alleges that Officer Tedford actively participated in the use of excessive force by
restraining him while he was tased. The evidence demonstrates that Officer Tedford applied
some degree of force to control Plaintiff’s movements and this force continued while Plaintiff
was tased. The evidence also demonstrates, however, that Officer Tedford did not direct the
application of the taser or apply the taser himself. Thus, the Court finds that Officer Tedford did
not actively participate in the use of excessive force. See, e.g., Haynes v. Village of Lansing, 656
F. Supp. 2d 783, 792-93 (N.D. Ill. 2009) (officer who was present throughout alleged incident of
excessive force but who only attempted to hold Plaintiff still for handcuffing did not directly use
excessive force but could be liable for a failure to intervene).
Despite Officer Tedford’s lack of participation in applying excessive force, there is a
genuine issue of material fact as to whether Officer Tedford owed a duty of protection to
Plaintiff to prevent the use of excessive force. Officer Tedford clearly observed the alleged
excessive force, thus satisfying the first requirement. Furthermore, although the events
happened quickly, there is a question of fact as to whether Officer Tedford could have prevented
Plaintiff from being tased for a second time, as the evidence indicates several seconds passed
between the first and second tasings. Viewing the evidence in a light most favorable to the nonmovant, a genuine issue of material fact exists such that Officer Tedford could be held liable for
excessive force under the theory that he owed Plaintiff a duty of protection.
Finally, the Court finds that summary judgment is appropriate as to the assault and
battery claim against Officer Tedford because there is no evidence from which a reasonable jury
could find that Officer Tedford used more force than was necessary or reasonably appeared to be
necessary to take Plaintiff into custody. See, e.g., Banks v. Fritsch, 39 S.W.3d 474, 480 (Ky. Ct.
App. 2001). Accord Jackson v. Austin, 241 F. Supp. 2d 1313, 1323 (D. Kan. 2003) (officer
could be held liable under § 1983 for failure to intervene to protect an inmate from excessive
force but was not liable for assault or battery).
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant Tedford’s Motion
to Alter, Amend, and/or Vacate Pursuant to Fed. R. Civ. P. 59 is GRANTED IN PART and
DENIED IN PART.
May 17, 2011
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